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Employee handbooks or manuals only serve to create contractual relationships insofar as employers make clear that they intend to be bound by such documents’ terms, a Philadelphia judge has stressed in dismissing the wrongful termination suit of a former worker at the American College of Physicians. In Dufner v. American College of Physicians, Judge Allan L. Tereshko concluded that former ACP communications coordinator Alison Dufner had not overcome the presumption under Pennsylvania law that she was an at-will employee. Dufner, who had worked at ACP for roughly five years when she was fired in October 2003, had claimed her dismissal was retaliation for complaining about a hostile work environment, according to Tereshko’s opinion. She further asserted that she had had an implied contract with ACP. ACP responded that Dufner was an at-will employee who had been terminated after being accused of falsifying timesheets. Tereshko sided with ACP as to the nature of Dufner’s employment. “Our courts have consistently held that an employee handbook, manual, or other communication ‘only forms the basis of an implied contract if the employee shows that the employer affirmatively intended that it do so,’” Tereshko wrote, quoting relevant case law. “Plaintiff’s complaint is devoid of any allegations that there was an unequivocal expression of binding effect in accordance with principles set forth in [prior opinions concerning at-will employment]. Thus, plaintiff could not be considered an at-will employee of ACP.” According to the opinion, Dufner had served as both communications coordinator and as administrator for ACP’s board of governors during her time there. In her complaint, which was filed in June 2004, she argued that she was fired in violation of ACP’s contract with its employees. Tereshko sustained ACP’s preliminary objections and dismissed Dufner’s complaint with prejudice in November 2004. “Plaintiff claims that this contract was breached when her employment was terminated approximately one year after she had made complaints about problems she was having with her co-workers and supervisor, and that her termination was in retaliation for [her] utilizing certain ‘human resources protocols’ when she made these complaints,” Tereshko wrote. “Plaintiff has failed to identify a document which would qualify as a ‘contract’ or a person who allegedly communicated this oral agreement to her.” Under Pennsylvania law, he noted, there is a “firmly entrenched presumption,” as one Superior Court opinion put it, of at-will employment. For Dufner’s case to have been successful, she would have had to attach a copy of her contract to her complaint, or present some other compelling evidence that it existed, and even then, her evidence would need to be closely reviewed by the factfinder. “Plaintiff attempts to assert that a contractual relationship exists through policies outlined in an employee handbook,” Tereshko wrote. “Under Pennsylvania law, however, it is clear that an employer is not bound by statements of policy in employee handbooks without a very clear expression of an intent to create a binding contractual obligation.” Tereshko cited the Superior Court’s 1993 decision in Jacques v. AKZO International Salt Inc. He went on to call attention to the fact that Dufner had complained to human resources in the summer of 2002, but was not fired until the fall of 2003. Dufner was represented by Joseph McGinley of Doylestown, Pa. ACP’s attorney was Richard Sexton of Lavin O’Neil Ricci Cedrone & DiSipio. Neither immediately responded to calls seeking comment.

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