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McCormick v. Lake Washington School District12/6/1999
regarding whether the District was negligent in hiring, because of a failure to follow statutory procedures, and whether the District negligently misrepresented her employment status.
The District has a duty to comply with statutory procedures, but it need not exceed that requirement. McCormick argues that the District was negligent in failing to inform her that she was only a temporary employee at the time she took the job. But she provides no statutory authority prescribing the heightened duty. This court will not consider arguments "not supported by any reference to the record nor by any citation of authority {.}" Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (citing RAP 10.3(a)(5)). Here, McCormick does not introduce authority establishing the alleged duty and therefore her negligence claims fail.
PROMISSORY ESTOPPEL
McCormick argues that equitable estoppel applies. She says that even if Anderson did not have statutory or apparent authority to hire, the doctrine of equitable estoppel creates a permanent employment relationship.
Although McCormick sets forth the elements of promissory estoppel, she mistakenly labels them equitable estoppel. Equitable estoppel is available only as a defense to claims against enforcement of a contract: it is a "shield" while promissory estoppel can be used as a "sword" in a cause of action for damages. Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259, 616 P.2d 644 (1980). Because this is an action for damages, promissory estoppel, not equitable estoppel, applies. In essence, McCormick is arguing that she was a permanent employee of the District under the doctrine of promissory estoppel.
The Court has described the five elements of a promissory estoppel claim: (1) a promise, (2) that promisor should reasonably expect to cause the promisee to change his position, and (3) actually causes the promisee to change position, (4) justifiably relying on the promise, (5) in such a manner that inJustice can be avoided only by enforcement of the promise. 25 David K DeWolf & Keller W. Allen, Washington Practice sec. 6 (1998) (citing Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 876 P.2d 435 (1994)).
Here, whether an issue of material fact exists turns on whether a promise was made. In her deposition, McCormick says that Anderson's promise was based on the question: "Do you still want the job?" Further, Anderson asked McCormick to call the principal and introduce herself. A promise is a "manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." Restatement (Second) of Contracts sec. 2 (1981). This element is not satisfied if the promise is made by an unauthorized agent. King v. Riveland, 125 Wn.2d 500, 506, 886 P.2d 160 (1994) (citing Corbit v. J.I. Case Co., 70 Wn.2d 522, 539, 424 P.2d 290 (1967). Here, Anderson has no actual or apparent authority to hire permanent certified employees. That function is statutorily reserved for the Board. Therefore, Anderson is incapable of making a promise to McCormick and promissory estoppel does not apply.
Even if Anderson had authority to bind the District, McCormick is not entitled to rely. The statute requires that teachers sign a written contract. Public policy requires a background check before teachers are permanently employed. Teachers should be aware of the statutory procedures. An applicant is not entitled to rely where statutory procedure is not followed. McCormick was paid substitute wages. She knew that her paperwork had to be processed and that her references reviewed. As a matter of law, she should have
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