IN THE SUPREME COURT OF IOWA 

No. 06–1054 

Filed November 21, 2008 

GREGORY KERN, 

 Appellant, 

vs. 

PALMER COLLEGE OF CHIROPRACTIC, 

ROBERT PERCUOCO, GUY RIEKEMAN, 

and KEVIN MCCARTHY, Individually, 

 Appellees. 

 Appeal from the Iowa District Court for Scott County, James E. 

Kelley, Judge. 

 A discharged employee challenges summary judgment in favor of 

the employer on a wrongful termination claim and the employer’s agents 

on intentional-interference-with-contract claims. AFFIRMED IN PART; 

REVERSED IN PART; AND REMANDED. 

 Jennie L. Clausen of Cartee & Clausen Law Firm, P.C., Davenport, 

for appellant. 

Robert D. Lambert of Bittner, Lambert & Werner, Davenport, for 

appellees Palmer College of Chiropractic and Robert Percuoco. 

Brendan T. Quann and Joshua P. Weidemann of O’Connor & 

Thomas, P.C., Dubuque, for appellee Guy Riekeman. 

Earl A. Payson of Earl A. Payson, P.C., Davenport, for appellee 

Kevin McCarthy. 
2

HECHT, Justice. 

 In this case, a discharged employee sued his former employer for 

breach of an employment contract, and sued three of the employer’s 

agents for tortious interference with that contract. The district court 

concluded the termination was, as a matter of law, for cause and granted 

summary judgment to all of the defendants. We conclude the district 

court erred in granting summary judgment to the employer and one of 

the three individual defendants. 

I. Factual and Procedural Background. 

 A reasonable fact-finder viewing the summary judgment record in 

the light most favorable to the plaintiff, Dr. Gregory Kern, could find the 

following facts. Kern was employed as an assistant professor by Palmer 

College of Chiropractic. A written contract established the term of his 

employment from October 1, 1995, to September 30, 2000. The parties 

fully incorporated, as an “integral and binding part” of the contract, the 

1988 Palmer College Faculty Handbook, which stated the terms and 

conditions of employment for all Palmer College faculty members. 

The faculty handbook declared the responsibilities of Palmer 

faculty members, detailed the internal procedural protections available to 

any aggrieved faculty member, and prescribed the grounds for 

termination of faculty members’ employment. Section 6.61 of the 

handbook addressed the grounds for termination: 

Dismissal from appointment may be effected by the 

College for the following causes: 

1. Conduct seriously prejudicial to the College 

through conviction of an infraction of law or 

through moral turpitude. 

2. Willful failure to perform the duties of the 

position to which the faculty member is assigned 
3

or willful performance of duty below accepted 

standards. 

3. Breach of College regulations adversely affecting 

the College. 

During a faculty meeting attended by Kern on November 30, 1999, 

Dr. Donald Gran, Kern’s immediate supervisor, requested all faculty 

members draft twenty-five questions suitable for inclusion in the 

national chiropractic board examination. Gran described the proper 

formatting for the questions, which were to be returned to Gran in an 

electronic format. The task of writing such questions was not foreign to 

the Palmer faculty, but in previous years Kern and several other 

professors had routinely submitted proposed questions in handwritten 

form. Gran also requested all faculty members under his supervision, 

including Kern, draft and submit to him a statement of professional goals 

for the year 2000. An email from Gran to faculty members provided a 

model of the format to guide them in developing appropriate goals.1 In 

February 2000, Gran reminded the faculty that the proposed national 

board questions were due in electronic form by March 30. 

On March 22, 2000, Gran’s secretary, Sharon Boyle, sent an email 

reminder to several faculty members, including Kern, who had not 

delivered to Gran their statements of professional goals. The email set a 

new deadline of March 31 for completion of the task, and reiterated the 

four criteria for appropriate goals: 

1. List at least one primary goal you will achieve by 

December 2000 relating to your classroom teaching, 

research/scholarship, and service to the college. 

 1The summary judgment record is unclear whether Kern actually received this 

and other messages during the spring of 2000 because of problems with the College’s 

email system. 
4

2. For the goals listed, indicate the anticipated 

administrative and/or collegial support necessary to 

accomplish the goal. 

3. For the goals listed, describe the tangible end product 

which signifies the goal has been accomplished. 

4. For the goals listed, describe the anticipated timeline 

for any major milestones in accomplishing your goals. 

Gran sent additional emails on March 28 and 29 reminding faculty 

members who had not submitted goals that he expected completion of 

the task “without fail” on March 31. Kern submitted hand-written 

national board exam questions and a single goal to Gran sometime 

between April 1 and April 4. Kern articulated his goal as follows: 

1. My primary goal to be achieved by December 2000 is 

to restore all departments campus wide. These goals 

carry through to teaching, research/scholarship, and 

especially service to the college. 

2. Anticipated administrative help in this goal is very 

minimal, anticipated collegial support, i.e. faculty is 

going to have to be huge. 

3. The tangible end product to this goal is clearly better 

communication, better morale, and much better 

quality for the students & faculty. 

4. My anticipated timeline for this goal is: however long it 

takes. 

(Emphasis in original.) Kern’s reference in the statement to the 

“restoration of all departments” adverted to a decision by Palmer’s 

administration to shift from a departmental curriculum to a “year-based” 

curriculum in mid-to-late 1999. Kern was dissatisfied with the 

reorganization of the curriculum and believed it would negatively affect 

Palmer students. He had openly expressed his doubts about the 

suitability of the new organizational structure in questions posed to 

Dr. Guy Riekeman, the president of the college, during a meeting of 
5

Palmer’s faculty senate in the spring of 2000. Dr. Riekeman responded 

that anyone who disagreed with the reorganization could choose to leave. 

Kern perceived a negative response from Palmer’s administrators 

after that meeting of the faculty senate. One of Kern’s patients was an 

acquaintance of Dr. Robert Percuoco, Palmer’s Dean of Academic 

Affairs.2 The patient carried a message to Kern for Percuoco, advising 

Kern to “watch his back” and informing Kern that his days at Palmer 

were numbered because Percuoco would “see him fired.”3

Soon thereafter, Gran, who was supervised by Percuoco, 

confronted Kern and placed a record in his personnel file warning against 

excessive use of sick days. Kern was alarmed by this action as he had 

used fewer sick days than the faculty handbook authorized for that year. 

Gran also took issue with the substance of Kern’s stated goal, and 

returned to Kern his proposed national board questions because they 

were not properly formatted. In an April 7 email requesting that Kern resubmit the questions electronically that day, Gran advised Kern to 

contact Sharon Boyle for assistance with the formatting if assistance was 

needed. Kern testified at his deposition that he accepted the offer of 

assistance and turned his questions into Boyle for formatting on more 

 2Faculty members were permitted to engage in the practice of chiropractic 

during the term of their employment with Palmer. 

3Iowa Rule of Civil Procedure 1.981(5) provides “supporting and opposing 

affidavits shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent to 

testify to the matters stated therein.” The record contains no affidavit or sworn 

testimony from the patient-declarant as to her alleged conversations with Percuoco. 

The only evidence of Percuoco’s statements in the summary judgment record is Kern’s 

double hearsay account of them. Although the admissibility of these hearsay 

statements at trial is subject to question, Percuoco did not contend in the district court, 

and does not contend on appeal, that the statements should be disregarded under rule 

1.981(5). On the contrary, he conceded during the hearing on the summary judgment 

that the district court should consider the statements attributed to Percuoco in the light 

most favorable to Kern. We therefore consider them part of the summary judgment 

record on appeal as well. 
6

than one occasion after receiving notice of the electronic format 

requirement. On April 10, Gran sent a memorandum of reprimand to 

Kern stating properly formatted exam questions had not been received. 

Kern viewed Gran’s responses as harassment because he knew other 

professors who were not computer-literate had submitted proposed 

questions in handwriting and were accommodated with secretarial 

assistance, and those professors were not reprimanded. 

 On April 13, 2000, Kern met with Gran and Dr. Kevin McCarthy, 

the Vice President of Academic Affairs for Palmer College. McCarthy 

angrily confronted Kern about the substance of Kern’s goal to return to 

the former curriculum structure. Kern felt physically threatened by 

McCarthy’s demeanor during the meeting. Although various email 

messages sent to Kern after the meeting suggest McCarthy and Gran 

expected Kern would prepare a new statement of goals, Kern asserted in 

his deposition testimony that McCarthy expressly told him during the 

meeting a new statement of goals would not be required. 

 Kern did not submit a new statement of goals after the April 13 

meeting. After several subsequent email messages from college 

administrators to Kern inquiring about the status of his proposed exam 

questions and his goals, McCarthy sent a written ultimatum to Kern 

directing him to submit both to Gran by noon on June 14, 2000, or 

suffer dismissal. McCarthy sent copies of this ultimatum to Riekeman, 

Percuoco, and Gran. 

On June 14, a few minutes before the noon deadline, Kern 

submitted to Gran a handwritten group of proposed national board exam 

questions and a note. The message on the note reminded Gran that 

Kern had previously submitted his statement of goals, and offered to 

provide Gran another copy if Gran had misplaced it. On June 19, 
7

McCarthy sent Kern a letter dismissing him from employment for “willful 

failure to perform the duties of the position to which the faculty member 

is assigned and/or willful performance of duty below accepted 

standards.” 

Kern appealed his dismissal to the faculty judiciary committee as 

authorized in the faculty handbook. A grievance hearing was held on 

August 29, 2000, before the committee consisting of eight members. 

Following the hearing during which both Kern and McCarthy testified, 

the faculty judiciary committee issued its recommendation to Riekeman 

on September 1, 2000. Addressing only the college’s claim that Kern’s 

discharge was justified by his failure to timely submit satisfactory 

professional goals in a proper format, the committee found that the 

“totality of evidence presented during the hearing, in the opinion of the 

committee, did not provide clear and convincing basis to justify the 

rationale indicated in the letter of dismissal. . . .” The committee 

therefore found meritorious Kern’s appeal of the grievance and 

recommended his dismissal from the faculty be rescinded. President 

Riekeman disagreed with the committee’s recommendation, and issued a 

written decision on October 9, in which he found Kern’s employment was 

properly terminated for violation of section 6.6 of the Faculty Handbook. 

 Kern subsequently filed this action alleging breach of contract by 

Palmer College and intentional interference with contractual relations by 

Percuoco, Riekeman, and McCarthy. All of the defendants moved for 

summary judgment. Palmer’s motion asserted Kern had failed to raise a 

genuine issue of material fact on his breach-of-contract claim. The 

motions of the other defendants contended generally that Kern had failed 

to generate a fact question in support of his allegation that the 

defendants wrongfully interfered with his employment contract. The 
8

court granted Palmer’s motion for summary judgment, finding as a 

matter of law Palmer had not breached the employment contract. The 

court also granted summary judgment in favor of Reikeman, McCarthy, 

and Percuoco, concluding as a matter of law Kern had failed to engender 

a fact question on his claim that one or more of the individual defendants 

caused Palmer to breach the contract. 

II. Scope of Review. 

 We review a district court’s summary judgment ruling for errors at 

law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000). A 

party is entitled to summary judgment when the record shows no 

genuine issue of material fact and that the moving party is entitled to a 

judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The court views 

the record in the light most favorable to the nonmoving party. Smidt v. 

Porter, 695 N.W.2d 9, 14 (Iowa 2005) (citation omitted). “In deciding 

whether there is a genuine issue of material fact, the court . . . afford[s] 

the nonmoving party every legitimate inference the record will bear.” Id. 

III. Discussion. 

A. Summary Judgment in Favor of Palmer College. To 

prevail in his claim for breach of contract against Palmer, Kern must 

prove: 

(1) the existence of a contract; (2) the terms and conditions 

of the contract; (3) that [he] has performed all the terms and 

conditions required under the contract; (4) the defendant’s 

breach of the contract in some particular way; and (5) that 

plaintiff has suffered damages as a result of the breach. 

Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 

(Iowa 1998) (citing Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 

N.W.2d 821, 825 (Iowa 1993)). The fighting issues in this case at the 

summary judgment stage relate to the third and fourth elements of the 
9

cause of action: the allegations of performance by Kern and breach by 

Palmer. 

When engaging in the construction of contracts we look to the 

parties’ intent, as indicated by the terms of the contract. Iowa R. App. P. 

6.14(6)(n). The question of whether the plaintiff has proved a breach of 

contract is for the judicial fact-finder. See Davenport Bank & Trust Co. v. 

State Cent. Bank, 485 N.W.2d 476, 480 (Iowa 1992) (“The existence and 

terms of a contract and whether the contract was breached are ordinarily 

questions for the jury.”). 

The parties in this case concur that Kern’s employment contract is 

a “for cause” contract.4 Generally an employee under such an agreement 

may be terminated for reasons that relate to “performance of his or her 

job and the impact of that performance on an employer’s ability to attain 

its reasonable goals.” Lockhart v. Cedar Rapids Comm. Sch. Dist., 577 

N.W.2d 845, 847 n.1 (Iowa 1998) (citing Briggs v. Bd. of Dirs., 282 

N.W.2d 740, 743 (Iowa 1979)). “Cause” does not include “reasons which 

are arbitrary, unfair, or generated out of some petty vendetta.” Id. 

Rather than agreeing to a general “for cause” termination term, the 

parties to this contract included a specific enumeration of what would 

constitute a valid termination “for cause.” The contract provided Kern 

could be terminated for “[w]illful failure to perform the duties of the 

position to which [he] [wa]s assigned or willful performance of duty below 

accepted standards.”5 Summary judgment in favor of Palmer is 

 4Courts variously refer to “for cause” contracts as “just cause,” “for cause,” “good 

cause,” or “proper cause” contracts. We consider these appellations interchangeable. 

See Lockhart v. Cedar Rapids Comm. Sch. Dist., 577 N.W.2d 845, 846–47 (Iowa 1998). 

5As noted above, the contract also defined “good cause” to include “conduct 

seriously prejudicial to the College through conviction of an infraction of law or through 

moral turpitude” and “breach of College regulations adversely affecting the College.” As 

these alternative definitions of “good cause” were not relied on by Palmer as a 
10

inappropriate, then, if there is a genuine issue of material fact regarding 

whether Kern’s conduct amounted to a “willful failure to perform” his 

duties as an assistant professor, or whether his performance of those 

duties fell “below accepted standards.” 

In this case, Palmer concluded cause existed for the termination of 

Kern’s employment. Palmer contends, and the district court concluded, 

judicial review of the employer’s finding of cause for termination should 

be constrained by deference for the employer’s decision. Kern responds 

that employers have no legitimate claim to such deference because 

judicial fact-finders are perfectly capable of making factual 

determinations as to whether the parties’ contractual formulation of 

causes for termination has been breached, much as they are trusted to 

sort out whether a failure of performance has occurred in other contract 

litigation. 

A majority of courts addressing the standard by which 

performance of employment contracts is judged view employment 

contracts as fundamentally different from other contracts, and 

consequently grant employers great deference in making “cause” 

termination decisions. See, e.g., Braun v. Alaska Commercial Fishing & 

Agric. Bank, 816 P.2d 140, 142 (Alaska 1991); Cotran v. Rollins Hudig 

Hall Int'l, Inc., 948 P.2d 412, 420–22 (Cal. 1998); Towson Univ. v. Conte, 

862 A.2d 941, 950–51 (Md. 2004); Southwest Gas Corp. v. Vargas, 901 

P.2d 693, 701 (Nev. 1995); Kestenbaum v. Pennzoil Co., 766 P.2d 280, 

287 (N.M. 1988); Thompson v. Associated Potato Growers, 610 N.W.2d 

53, 59–60 (N.D. 2000); Simpson v. W. Graphics Corp., 643 P.2d 1276, 

1279 (Or. 1982); Baldwin v. Sisters of Providence in Wash., Inc., 769 P.2d 

 

justification for the termination of Kern’s employment, we do not discuss them further 

in this opinion. 
11

298, 304 (Wash. 1989). In Towson University, for example, the court 

concluded “the practical considerations of running a business 

overwhelmingly favor a legal presumption that an employer retain the 

fact-finding prerogative underlying the decision to terminate 

employment.” 862 A.2d at 953. In jurisdictions following this rule of 

deference to employers’ termination decisions, the judicial fact-finder’s 

role is not to determine whether the facts underlying the employer’s 

“cause” determination were actually true, or to conduct de novo review of 

whether the facts found by the employer amounted to “cause” for 

termination under the terms of the contract. Instead, the judicial factfinder determines only whether the cause claimed by the employer for 

termination was “a fair and honest cause or reason, regulated by good 

faith on the part of the party exercising the power,” based on facts 

“supported by substantial evidence and reasonably believed by the 

employer to be true,” and “not for any arbitrary, capricious, or illegal 

reason.” Baldwin, 769 P.2d at 304. This approach is generally described 

as judicial review for “objective reasonableness.” Towson Univ., 862 A.2d 

at 954. To avoid summary judgment under the objective reasonableness 

standard, a plaintiff who challenges an employer’s determination of 

cause for a discharge must show the employer had no reasonable 

grounds to believe sufficient cause existed to justify the termination. 

Kestenbaum, 766 P.2d at 287. 

The Michigan Supreme Court has adopted a different rule that 

provides greater protection to employees who have secured “for cause” 

terms in their employment contracts. In Toussaint v. Blue Cross & Blue 

Shield of Michigan, 292 N.W.2d 880 (Mich. 1980), the Michigan Supreme 

Court held the question of whether “cause” for termination actually 

existed was for the fact-finder to decide. 292 N.W.2d at 895 (“[W]here an 
12

employer has agreed to discharge an employee for cause only, its 

declaration that the employee was discharged for unsatisfactory work is 

subject to judicial review. The jury as trier of facts decides whether the 

employee was, in fact, discharged for unsatisfactory work.”). The 

Toussaint court expressly rejected the narrower role of the judicial factfinder prevailing in the jurisdictions that review the reasonableness of an 

employer’s termination decision: 

[W]e have considered and rejected the alternative of 

instructing the jury that it may not find a breach if it finds 

the employer’s decision to discharge the employee was not 

unreasonable under the circumstances. 

Such an instruction would transform a good-cause 

contract into a satisfaction contract. The employer may 

discharge under a satisfaction contract as long as he is in 

good faith dissatisfied with the employee’s performance or 

behavior. The instruction under consideration would permit 

the employer to discharge as long as his dissatisfaction 

(cause) is not unreasonable. The difference is minute. 

Where the employee has secured a promise not to be 

discharged except for cause, he has contracted for more than 

the employer’s promise to act in good faith or to not be 

unreasonable. An instruction which permits the jury to 

review only for reasonableness inadequately enforces that 

promise. 

Id. at 896. The court also rejected the employer’s argument that 

“enforcing contracts requiring cause for discharge will lead to employee 

incompetence and inefficiency,” noting employers (1) are not required to 

enter “for cause” contracts, and (2) are permitted to contract for 

standards of job performance. Id. at 896–97. 

We conclude the Touissant rule should be applied under the 

circumstances of this case. Our decision is strongly influenced by the 

fact that Palmer and Kern defined the concept of “good cause” in their 

employment agreement. The contract language thus established a 

standard that is sufficiently definite to allow a fact-finder to determine 
13

whether Palmer had “good cause” to support the termination of Kern’s 

employment. We believe the existence of the specific contractual 

standard diminishes the force of Palmer’s assertions that it should have 

the right to determine what is or is not “good cause,” and that no factfinder should be permitted to substitute its judgment for the employer’s 

on that question. Where, as here, the parties have adopted a specific 

standard for the determination of “good cause,” we believe the Touissant

rule strikes an appropriate balance between the employer’s strong 

interest in making employment decisions, and the employee’s substantial 

interest in the employment security and stability offered by contracts 

which may not be terminated at will, but only for specified “good cause.” 

Notwithstanding the policy arguments advanced by courts according 

deference to the employer’s prerogative, we conclude employment 

contracts like the one at issue in this case providing specific definitions 

of “good cause” are not so different from other contracts as to justify a 

legal construct favoring the employer’s interests over those of 

employees.6

Palmer contended, and the district court determined, that the 

application of the objective reasonableness standard would be most 

appropriate in this case because (1) Kern was given an opportunity for a 

hearing before the faculty senate to challenge the termination, and (2) 

the contract reflects the parties’ intent to maintain the employer’s 

prerogative to make employment decisions with only circumscribed 

judicial review. We disagree. The parties did not expressly contract as to 

the prospect of judicial review of breach-of-contract claims and the 

hearing before the faculty judiciary committee was not an apparent 

 6We leave for another day the decision of whether the Towson rule granting 

greater deference to the employer’s determination of “good cause” should apply where 

the employment contract fails to define the standard to be applied by the fact-finder. 
14

substitute for judicial review. The faculty senate’s decision on the merits 

of Kern’s grievance carried no force because Palmer’s administration was 

not bound under the contract to give it any weight. As it constituted only 

a recommendation to Riekeman, the hearing process provided only 

illusory security to Kern. Under the circumstances, we reject the notion 

that the parties viewed the review by the faculty judiciary committee as a 

legitimate substitute for the standard of judicial review which is the norm 

in other contract litigation. Accordingly, the hearing process and 

Riekeman’s review of McCarthy’s decision do not support Palmer’s claim 

that an “objective reasonableness” standard of judicial review is 

appropriate in this case. 

Having concluded the district court erred in applying the “objective 

reasonableness” standard in ruling on Palmer’s motion for summary 

judgment we next consider whether the evidence in the record is 

sufficient to sustain the summary judgment in favor of Palmer under the 

Toussaint rule. We conclude it is not. 

The evidence presented by Palmer suggests despite several 

requests that he do so, Kern willfully failed to submit properly formatted 

national board questions. Kern testified after his proposed questions 

were returned to him, he re-submitted them directly to Palmer’s 

secretarial staff for conversion to electronic format, but the handwritten 

questions were again returned to Kern. Kern offered testimony in the 

summary judgment record tending to prove he knew other faculty 

members had submitted their proposed questions in handwritten form, 

received secretarial assistance for formatting, and were not disciplined 

for doing so. On this record, Kern has engendered a fact question as to 

whether he willfully failed to perform his duty to submit proposed 
15

national board questions, or willfully performed that duty below accepted 

standards. 

We also conclude a fact question exists as to whether Kern willfully 

failed to comply with his duty to submit goals. At the summary 

judgment stage we must credit Kern’s testimony that McCarthy told him 

during the April 13 meeting he need not submit a new goal. Although 

this claim is disputed by Palmer, we believe a fact question exists as to 

whether McCarthy gave such assurance to Kern. Assuming, as we must 

at the summary judgment stage, such assurance was given by McCarthy, 

we conclude a genuine issue of material fact exists as to whether Kern’s 

failure to submit a new goal constituted a willful failure to perform his 

duty. 

Other evidence in the summary judgment record supports our 

determination that a fact question exists on the questions of whether 

Kern willfully failed to perform his duties or willfully performed his duties 

below accepted standards. The faculty judiciary committee determined 

Kern’s alleged misconduct did not rise to the level of an offense that 

would support termination under the faculty handbook. Additionally, 

Dr. Glenn Sorgenfrey, a Palmer faculty member, opined in an affidavit 

that other faculty members would not be fired for conduct such as 

Kern’s. It is of course not the court’s role at the summary judgment 

stage to weigh such evidence against the countervailing evidence in the 

record. When viewed in the light most favorable to Kern, the faculty 

judiciary committee’s non-binding determination and Dr. Sorgenfrey’s 

affidavit offer some factual support for Kern’s claim he did not willfully 

fail to perform his duties or willfully perform his duties below accepted 

standards. Accordingly, we reverse the summary judgment on Kern’s 

contract claim against Palmer. 
16

B. Liability of Defendants Riekeman, McCarthy, and 

Percuoco. As we have already noted, the district court granted 

summary judgment in favor of Riekeman, McCarthy, and Percuoco after 

concluding, as a matter of law, Palmer established the absence of a fact 

question as to whether Palmer breached its employment contract with 

Kern. The court reasoned that because, as a matter of law, Palmer 

committed no breach of Kern’s employment contract, the individual 

defendants could have no liability for tortiously causing Palmer to breach 

that contract. Having concluded the district court erred in granting 

summary judgment in favor of Palmer, we next consider whether the 

summary judgment record can sustain the summary judgment in favor 

of the individual defendants. 

At the summary judgment stage, we must determine whether the 

record includes evidence from which a rational jury could find intentional 

and improper interference. Green v. Racing Ass’n of Cent. Iowa, 713 

N.W.2d 234, 243 (Iowa 2006). Although the district court did not 

determine whether any of the individual defendants’ alleged actions were 

improper, we may affirm the summary judgment ruling on a proper 

ground urged below but not relied upon by the district court. DeVoss v. 

State, 648 N.W.2d 56, 62 (Iowa 2002). 

To recover for intentional interference with an existing contract, a 

plaintiff must show: 

(1) plaintiff had a contract with a third-party; (2) defendant 

knew of the contract; (3) defendant intentionally and 

improperly interfered with the contract; (4) the interference 

caused the third-party not to perform, or made performance 

more burdensome or expensive; and (5) damage to the 

plaintiff resulted. 

Green, 713 N.W.2d at 243 (quotations omitted). There is no dispute that 

Riekeman and McCarthy knew of Kern’s contract and that they 
17

intentionally caused Palmer to breach the contract. The controversy in 

this case centers on whether the defendants’ alleged intentional 

interference with Kern’s contract was “improper.” We look to the 

following factors in deciding whether the defendants’ conduct was 

improper: 

“(a) the nature of the actor’s conduct, (b) the actor’s motive, 

(c) the interests of the other with which the actor’s conduct 

interferes, (d) the interests sought to be advanced by the 

actor, (e) the social interests in protecting the freedom of 

action of the actor and the contractual interests of the other, 

(f) the proximity or remoteness of the actor’s conduct to the 

interference and (g) the relations between the parties.” 

Hunter v. Bd. of Trs. of Broadlawns Med. Ctr., 481 N.W.2d 510, 518 (Iowa 

1992) (quoting Restatement (Second) of Torts § 767 (1981)). The 

determination of whether the individual defendants’ actions in relation to 

Kern’s employment were improper turns primarily on the nature of their 

conduct, their motives, and a balancing of the respective interests of the 

parties. 

1. Defendant Riekeman. Riekeman’s role as Palmer’s President 

was to make the final decision as to whether Kern’s employment should 

be terminated. Riekeman reviewed McCarthy’s decision to terminate 

Kern’s employment, considered the faculty judiciary committee’s 

recommendation against termination, and made the final decision for the 

institution he was hired to lead. These actions by Riekeman fall 

comfortably within the range of usual and customary conduct expected 

of an employer’s chief executive officer under the circumstances of this 

case. 

Kern claims, however, that summary judgment was improper in 

this case because Riekeman’s termination decision was motivated by 

improper personal animus and therefore constituted improper 
18

interference. Kern supports this claim by reference to a statement made 

by Riekeman during a meeting with faculty members. When Kern 

challenged the wisdom of the revised curriculum during that meeting, 

Riekeman bluntly stated that anyone who opposed the reorganized 

curriculum could leave. Kern claims this statement evidenced 

Riekeman’s motivation to rid the faculty of an employee who opposed 

Palmer’s new curriculum structure. Although Riekeman’s statement, 

when viewed in the light most favorable to Kern, suggests Riekeman 

exhibited on that occasion a rather authoritarian management style, it 

fails, as a matter of law, to raise a genuine issue of fact on the question 

of whether Riekeman’s decision to terminate Kern’s employment was a 

product of an improper motive. Even if we assume at this summary 

judgment stage Riekeman’s sole motive in terminating Kern’s 

employment was to eliminate from the faculty one who had openly and 

consistently opposed the Palmer administration’s curriculum choices, 

such a motive does not rise to the level of impropriety sufficient to 

support Kern’s intentional tort claim under the circumstances presented 

here. A manager’s motivation to maintain the employment of employees 

who further the employer’s organizational objectives, and to terminate 

the employment of employees who inflexibly oppose those objectives, is 

not improper. The motive of a business manager who terminates the 

employment of an employee in the latter category solely for the purpose 

of advancing the employer’s legitimate business objectives is not 

motivated by an improper purpose. Green, 713 N.W.2d at 245 (stating 

that “[i]f the sole motive is a legitimate purpose derived from the law, 

then any interference is not improper as a matter of law”). Kern has 

failed to proffer, and the record does not disclose, any personal, non-
19

business-related motivation for Riekeman’s actions that could reasonably 

be viewed as improper. 

Kern’s interest in continued employment is, of course, substantial, 

as is Riekeman’s interest in carrying out the business functions of 

Palmer’s President. Having carefully considered the social interest in 

protecting Riekeman’s ability to execute Palmer’s management objectives 

and Kern’s contract interest in continued employment, Riekeman’s direct 

personal involvement in the termination of Kern’s employment, and the 

relations between the parties, we conclude the district court did not err 

in granting summary judgment in favor of Riekeman. Finding no 

evidence in the record tending to prove Riekeman’s conduct or motive 

were improper, we conclude Kern has failed to generate a fact question 

as to whether Riekeman improperly interfered with Kern’s contract. We 

therefore affirm the summary judgment in favor of defendant Riekeman. 

 2. Defendant McCarthy. We next consider whether the district 

court erred in granting summary judgment in favor of defendant 

McCarthy, Palmer’s Vice President of Academic Affairs. Like Riekeman, 

McCarthy had managerial responsibility over Kern and was intimately 

involved in the termination of Kern’s employment. McCarthy contends a 

reasonable fact-finder could only conclude his conduct fell within the 

range of proper managerial conduct when he decided to effect the 

termination of the employment of an employee who repeatedly refused to 

comply with simple requests and clear directives. We disagree. Viewing 

the evidence in the light most favorable to Kern, we believe a fact-finder 

could determine McCarthy represented to Kern during the April 13 

meeting that Kern need not submit new goals, and Kern relied upon this 

representation in failing to submit new goals. Contrary to his alleged 

representations at the April 13 meeting, however, McCarthy fired Kern in 
20

part because he failed to submit new goals after that meeting. Accepting 

this version of the facts as true as we must at the summary judgment 

stage, we conclude a reasonable fact-finder could determine McCarthy 

fraudulently induced Kern to engage in a course of conduct which would 

eventually result in the termination of his employment contract. 

Interference achieved through conduct that is dishonest, fraudulent, 

malicious, or otherwise wrongful will support a finding that the 

interference is improper. See Restatement (Second) of Torts § 766 cmts. 

j, r, s. We conclude Kern has raised a genuine issue of fact as to whether 

McCarthy’s conduct was dishonest, clearly outside the bounds of proper 

managerial conduct, and therefore “improper” under section 767. 

Kern further asserts the summary judgment record, when viewed 

in the light most favorable to him, includes evidence tending to prove 

McCarthy had an improper motive for his conduct. Characterizing 

McCarthy’s anger during the April 13 meeting as sufficient to put him in 

fear of an act of physical aggression, Kern contends a reasonable factfinder could determine McCarthy’s alleged misrepresentation and his 

decision to terminate Kern’s employment were motivated by personal 

animus and therefore “improper” under section 767. “Satisfying one’s 

spite or ill will is not an adequate basis to justify an interference and 

keep it from being improper.” Id. § 766 cmt. r; see also id. § 767 cmt. d

(“A motive to injure another or to vent one’s ill will on him serves no 

socially useful purpose.”). And as we have noted, the termination of an 

employee’s employment for “reasons which are arbitrary, unfair, or 

generated out of some petty vendetta” advances no legitimate goal of a 

corporation. Lockhart, 577 N.W.2d at 847 n.1. We conclude Kern has 

produced minimally sufficient evidence that McCarthy improperly 
21

interfered with Kern’s contract so as to preclude summary judgment on 

this claim. 

3. Defendant Percuoco. We next consider whether the district 

court erred in granting summary judgment in favor of defendant 

Percuoco, Palmer’s Dean of Academic Affairs. Unlike defendants 

Riekeman and McCarthy, Percuoco does not contend he is shielded from 

liability because his conduct and motive in connection with Kern’s 

termination were proper. Percuoco instead contends Kern has produced 

insufficient evidence to support a claim that Percuoco’s conduct played a 

causative role in Kern’s termination. 

 It is Kern’s burden to prove Percuoco intentionally and improperly 

interfered with the contract. Restatement (Second) Torts § 766 cmt. o

(noting question of whether the defendant’s conduct caused a breach of 

contract is a question of fact). Viewed in the light most favorable to Kern, 

the record shows Percuoco vaguely proclaimed to members of his church 

congregation several months before Kern was terminated that he was 

“battling evil at Palmer.” Percuoco asked his fellow parishioners to pray 

for strength that he might “do acts he found distasteful.” He also told a 

fellow parishioner that Dr. Kern “better watch his step because 

troublemakers g[e]t their just rewards,” stated that Kern’s days were 

numbered at Palmer, and vowed to “see [Kern] fired.” 

While this evidence certainly evidences Percuoco’s motivation to 

cause the termination of Kern’s employment, and could be reasonably 

understood as evidence of Percuoco’s personal animus toward Kern, 

these statements alone cannot suffice to generate a genuine issue of fact 

on Kern’s intentional interference claim. The record is devoid of evidence 

of any conduct by Percuoco in furtherance of any improper motive 

leading to Kern’s termination. Kern presented no evidence tending to 
22

prove Percuoco communicated to Riekeman or McCarthy his desire to see 

Kern fired, or that Percuoco otherwise influenced or attempted to 

influence McCarthy or Riekeman to cause Kern’s termination. In the 

absence of evidence tending to prove Percuoco engaged in some conduct 

calculated to effect Kern’s discharge, we must conclude the district court 

correctly granted summary judgment in Percuoco’s favor. 

IV. Conclusion. 

Having found genuine issues of fact remain for trial on Kern’s 

contract claim, we reverse the summary judgment in favor of Palmer. We 

affirm the district court’s grant of summary judgment in favor of 

defendants Riekeman and Percuoco. We reverse the summary judgment 

granted in favor of defendant McCarthy, and remand for further 

proceedings consistent with this opinion. 

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 

All justices concur except Cady, Wiggins, and Appel, JJ., who 

specially concur separately, and Baker, J., who takes no part. 

 
23

#06–1054, Kern v. Palmer Coll. 

CADY, Justice (special concurrence).

 I concur in the result reached by the majority because I agree a 

jury question is presented in this wrongful termination lawsuit to 

warrant a trial. I disagree, however, with the minority rule adopted by 

the majority to govern the resolution of the trial. 

 I believe the majority incorrectly adopted the Touissant rule by 

failing to engage in a proper construction of the employment contract. 

The majority does not consider the intent of the parties as evidenced by 

the context surrounding the contract, but, instead, essentially decides 

the legal effect of the contract as a matter of policy. As a result, the 

majority misconstrues the jury question engendered by the contract 

entered into by the parties. The approach taken by the majority will 

allow the jury in wrongful-termination lawsuits involving specific or goodcause employment contracts to revisit an employer’s decision to 

terminate the employee and to make that decision anew based on the 

jury’s own assessment of the surrounding facts and circumstances. I 

believe this approach risks ignoring the intent of employers and 

employees, unduly interferes with the decision-making that takes place 

within the broader environment of the management of a business, and 

will ultimately drive specific-cause or good-cause termination provisions 

from employee handbooks and cause employers to return to the world of 

at-will employment. The approach taken by the majority is a turn in the 

wrong direction for employees and employers and, in particular, strips 

employers of an aspect of discretion essential to the operation of a 

business. 

 A brief review of the claim is necessary to clearly identify the 

important issue at stake in this case. The college provided its faculty 
24

with a handbook that identified the grounds for termination of 

employment, including “willful failure to perform [assigned] duties” or 

“willful performance of duty below accepted standards.” Kern was 

discharged by his employer under these grounds and brought a 

wrongful-termination action based on breach of contract. This lawsuit 

presented the issue of whether Kern’s performance qualifies as grounds 

for termination as described in the handbook. Kern claimed the conduct 

relied upon by the college to terminate him did not amount to the 

grounds for termination identified in the handbook. The college, on the 

other hand, claimed it was reasonably justified in determining the 

specified grounds for termination exist. In concluding the lawsuit 

presented a jury question, the majority has determined the jury should 

decide at trial if the grounds for termination exist. 

 Unlike the majority, I would not conclude the jury should decide at 

trial if Kern’s conduct, as shown by the evidence presented by the parties 

at trial, constitutes the grounds for termination. I believe the jury should 

decide the facts of the case, but the question of fact it should decide is 

whether the employer was reasonable in deciding the employee’s conduct 

amounted to the grounds of termination. This important distinction is 

necessary to effectuate the intent of employers and employees. I find it 

inconceivable that any reasonable employee or employer would expect a 

jury to decide the ultimate fact of whether cause existed, independent of 

the judgment and authority first exercised by the employer. 

 Ultimately, the question of whether the employer contracted away 

the authority to decide when cause exists to another arbiter must be 

derived from our construction of the contract at issue. Of course, the 

language of the handbook does not provide any specific guidance. 

Nevertheless, in construing contracts, we seek to carry out the intent of 
25

the parties. Iowa R. App. P. 6.14(n) (“In the construction of written 

contracts, the cardinal principle is that the intent of the parties must 

control; and except in cases of ambiguity, this is determined by what the 

contract itself says.”). 

 In considering what the parties to this employment relationship 

intended, it is important to recognize that the specific-termination clause 

clearly required the employer to the make the decision, along with 

myriad other business decisions employers must make from day to day. 

There is no indication the parties believed the employer would make the 

specific-cause decision under standards different from the hundreds of 

other decisions made by an employer in the course of operating the 

business. 

 Additionally, the dramatic difference between the two standards at 

issue supports an intention that a reasonable-employer standard be 

used. Business decisions—such as the decision to hire or fire an 

employee—are made in the real world. Towson Univ. v. Conte, 862 A.2d 

941, 953 (Md. 2004). As such, these decisions commonly rely on 

hearsay, past conduct, personal credibility, “and other facts the judicial 

process ignores.” Id. By giving the jury the task of deciding whether 

specific cause exists in this case, the Touissant rule effectively forecloses 

employers from relying on these common sources. Nothing about the 

decision to enter into a specific-cause employment contract suggests the 

parties intended the employer would be required to make the decision 

without these common sources of information. By adopting the 

Touissant standard, the majority has effectively concluded that is exactly 

what the parties intended. See Waters v. Churchill, 511 U.S. 661, 667, 

114 S. Ct. 1878, 1889, 128 L. Ed. 2d 686, 700 (1994) (choosing the 
26

majority standard in a wrongful-termination case with First Amendment 

implications). 

 The majority relies on the parties’ definition of “good cause” in the 

employment agreement—establishing a standard a judicial fact finder 

can reference to determine whether good cause existed—to conclude we 

should adopt the Touissant standard in order to appropriately “balance” 

the parties’ interests. This argument ignores the reality that a definition 

of good cause and who decides whether good cause exists, as defined, are 

distinct questions. Additionally, when the issue is viewed as one of 

contract construction instead of as a question of policy, it is clear the 

parties’ definition of good cause militates against application of the 

Touissant standard here. Where good cause is defined in the 

employment contract, the employee is protected against the caprice of 

the employer by that definiteness. It simply does not follow that, where 

the contract gives greater protection to the employee in the first instance, 

the parties also intended the employee receive the additional protection 

of allowing the jury to decide anew whether good cause existed. 

 I otherwise concur with the majority’s disposition of the claims 

against the individual defendants. 

 
27

#02/06–1054, Kern v. Palmer Coll. 

WIGGINS, Justice (special concurrence). 

 I join in the majority opinion and concur with the views expressed 

by Justice Appel in his special concurrence. 

 
28

#06–1054, Kern v. Palmer Coll. 

APPEL, Justice (special concurrence). 

I concur with the thrust of the majority opinion in this case. I 

respectfully write separately to put the issues raised in this case in a 

fuller context. 

This case presents a simple contractual dispute. Since time 

immemorial, the law of contracts provides that parties are entitled to 

bargain freely and that their agreements will be enforced in a court of 

law. Subject to narrow exceptions, such as cases where contractual 

terms violate fundamental public policy or are unconscionable, courts do 

not modify the terms of the contract or use judicial creativity to supply 

terms that are absent from the written agreement. Courts generally 

enforce contracts as written, plain and simple. 

In this way, the parties themselves are allowed to structure their 

legal relationships as they see fit, not as the court might wish. Those 

with a philosophical bent will recognize the notion of individual liberty 

which inheres in our contract law. Our contract law is designed to 

empower parties, not discipline them, and to promote transparency and 

individual choice, not impose the social policy preferences of judges. 

In this case, the contract agreed upon by the parties does not 

simply provide that Kern could be terminated for “just cause,” an 

admittedly amorphous term, but instead establishes detailed and 

demanding standards for termination. The contract also simply does not 

contain any language stating or even implying that termination decisions 

made by the employer are subject to some kind of deferential review 

when an employee claims that the contract has been breached. If the 

words of a contract are to have any meaning, such silence is a barrier, 
29

and not a springboard, for insertion by a court of new, unstated 

contractual terms. 

Indeed, if anything were to be implied from the language that the 

parties did choose to include, it would be that the parties agreed that the 

burden on Palmer in terminating a faculty member was heavy and that 

any such decision was not to be cloaked with some kind of broad 

deference. 

Of course, any employer may seek to include in its contract with 

an employee language that any employer decision related to termination 

is valid if it is “objectively reasonable.” It is undisputed, however, that no 

such term appears in this contract. In my view, that is the end of the 

matter. The contract should be enforced as any other contract, with fact 

finding made by the court or jury. 

Any approach to this case that would imply deference to an 

employer’s decision to terminate an employee invents a round term that 

the parties chose not to include and seeks to force it into a square 

contract. It also proposes to do too much. Because the rule of law 

announced in this case has general applicability, an approach which 

implies deference to the employer’s termination decision would create by 

judicial fiat a framework where employer terminations, much like the 

actions of a state government agency under the Iowa Administrative 

Procedures Act, are subject to only limited judicial review. 

I regard this approach as an act of social engineering. The 

unstated premise of the implied employer deference approach is that, as 

a matter of social policy, employers are entitled to a wide berth in making 

decisions whether or not to retain employees. A further unstated 

premise is that if the parties do not choose to embrace this premise in 

their contract, the court should ensure that the parties do so through the 
30

addition of an extraneous contractual term, even though the parties 

established detailed and specific termination provisions and chose not to 

incorporate employer deference in it. 

The implied employer-deference position is rich in irony. This 

court has steadfastly refused to imply a duty of good faith and fair 

dealing in employment relationships. Phipps v. IASD Health Servs. Corp., 

558 N.W.2d 198, 204 (Iowa 1997); French v. Foods, Inc., 495 N.W.2d 768, 

771 (Iowa 1993); Fogel v. Trustees of Iowa Coll., 446 N.W.2d 451, 456–57 

(Iowa 1989). The theory of these cases is that if the parties desire to 

impose such a duty, it must be specifically provided in contractual terms 

by the parties themselves, not by judicial implication. In this case, 

however, the implied-employer-deference approach would create what 

amounts to a cousin of the doctrine of good faith and fair dealing that 

protects the employer, even though there are no contractual terms that 

remotely support such an implication. Thus, the duty of good faith 

cannot be used as a sword by a potential plaintiff, but its cousin—

implied employer deference to reasonable decisions made by the 

employer—may be used as a shield by an employer. This would be an 

unbalanced legal development. 

It is, of course, highly debatable whether the implied deference to 

employer termination decisions is the best social policy, particularly in 

light of an employee’s interest in job security in our modern society. 

Indeed, if judicial thumbs are to be placed on the scale of justice in 

employment disputes, an argument could be made that, like insurance 

contracts, the thumb should be placed on the side of the employee, not 

the employer. In many employment situations, the employer has 

disproportionate bargaining power. In these cases, the argument could 
31

be made that employment contracts should be construed against the 

employer because of the realities of the modern workplace. 

I also find it difficult to accept that it is somehow in the employee’s 

interest that the employer be given greater leeway in making termination 

decisions beyond the express provisions of the contract, thus decreasing 

the employee’s job security. It is inconceivable to me that a prospective 

teacher joining the faculty at Palmer intended that such an unexpressed 

term of deference to an employer’s termination decision would be implied 

into the contract for his or her own good. 

In my view, instead of implying some kind of employer deference, 

our judicial thumbs should remain hooked through our belt loops as we 

impartially review employment cases. Employment relationships are rich 

and varied and simply defy convenient categorization. Rather than 

imposing some grand view tending to favor employers or employees, I 

believe the best course is to adopt a neutral policy toward the 

interpretation of employment contracts and simply enforce them by their 

agreed upon terms. 

In addition, if we were to accept the implied-employer-deference 

approach, one would wonder what type of contracts would be next in line 

for special rules. In the end, instead of a unified theory of contracts, we 

could end up with a hefty compendium of special contract rules requiring 

lawyers to make Justinian distinctions that impede private choice, 

undermine the stability of contracts, and burden clients and their 

lawyers. Legal developments in the last hundred years have moved in 

exactly the opposite direction as artificial doctrinal distinctions have 

fallen by the wayside in favor of more generally applicable legal 

reasoning. 
32

Moreover, the views expressed here are not reserved for 

contractual purists intoxicated by normative legal theory. Many courts 

have accepted the views expressed in this and the majority opinion. The 

leading case, of course, is Toussaint v. Blue Cross & Blue Shield of 

Michigan, 292 N.W.2d 880, 896 (Mich. 1980). Courts in Nebraska, New 

Jersey, Ohio, South Dakota, and Vermont have also responded to the 

principles expressed here and in Toussaint, some of them with 

considerable enthusiasm. See Stiles v. Skylark Meats, Inc., 438 N.W.2d 

494, 497 (Neb. 1989); Witkowski v. Thomas J. Lipton, Inc., 643 A.2d 546, 

553–54 (N.J. 1994); Sowards v. Norbar, Inc., 605 N.E.2d 468, 473 (Ohio 

Ct. App. 1992); Vetter v. Cam Wal Elec. Co-op, Inc., 711 N.W.2d 612, 618–

19 (S.D. 2006); Raymond v. Int’l Bus. Mach. Corps., 954 F. Supp. 744, 

751 (D. Vt. 1997). 

In addition, many of the cases that give employers deference in 

termination decisions involve situations where the parties have only 

stated that termination may occur for “just cause” or similar vague 

phraseology. Sw. Gas Corp. v. Vargas, 901 P.2d 693, 695 (Nev. 1995); 

Simpson v. W. Graphics Corp., 643 P.2d 1276, 1277 (Or. 1982); Baldwin 

v. Sisters of Providence in Washington, Inc., 769 P.2d 298, 299 (Wash. 

1989). It may be argued, I suppose, that the phrase “just cause” 

standing alone might be interpreted to include within its scope any 

reasonable and legitimate business reason. There is simply no reason to 

believe, however, that many of these courts would extend their judicial 

creativity to express contracts where the parties have agreed upon 

specific and detailed termination provisions in a written contract. To 

adopt the notion of implied employer deference in this case attacks 

Toussaint and its progeny not at its weakest position, but at its strongest 

point. 
33

More importantly, however, the cases of this court support my 

view. In many cases in many contexts, we have repeatedly and in strong 

terms refused to supply terms that the parties for whatever reason chose 

not to include. In Smith v. Stowell, 256 Iowa 165, 172, 125 N.W.2d 795, 

799 (1964), this court declared in stentorian terms, 

[T]he court may not rewrite the contract for the purpose of 

accomplishing that which, in its opinion, may appear proper, 

or, on general principles of abstract justice, or under the rule 

of liberal construction, make for the parties a contract which 

they did not make for themselves, or make for them a better 

contract than they chose, or saw fit, to make for themselves. 

. . . 

More recently, in Thomas v. Progressive Casualty Insurance Co., 749 

N.W.2d 678, 681–82 (Iowa 2008), we again firmly laid down the gauntlet 

against contractual heretics, reaffirming that courts have no province to 

rewrite insurance contracts. 

And that’s not all. Even where parties expressly agree to indefinite 

terms to be determined in the future, we refuse to assist the parties by 

providing judicial resolution. Air Host Cedar Rapids, Inc. v. Cedar Rapids 

Airport Comm’n, 464 N.W.2d 450, 453 (Iowa 1990). Air Host rightly 

insists that the parties themselves must be accountable for their own 

contractual terms. 

Further, this court cited Toussaint favorably in Hunter v. Board of 

Trustees of Broadlawns Medical Center, 481 N.W.2d 510, 516 (Iowa 

1992). In Hunter, we noted that a jury was always entitled to determine 

the true reason for a discharge. There is no mention in Hunter of some 

kind of shroud of objective reasonableness that limited the power of the 

jury to make factual determinations. 

The majority opinion has got it right. In Iowa, parties to an 

employment contract are generally free to negotiate their own terms. If 
34

an employer wishes to protect its freedom of action in termination 

decisions, it can seek to negotiate whatever terms it deems desirable. 

Where the employer, however, expressly agrees to a contract that 

establishes with specificity the reasons for potential dismissal, but does 

not expressly provide broad discretion in making dismissal decisions, the 

law requires a court to do its duty and simply enforce the contract 

according to its terms. The implied-employer-deference approach would 

require us to depart from well-established contract principles, impose 

what amounts to a reverse doctrine of good faith and fair dealing, and 

empower this court to sit as some kind of omniscient commerce 

commission to feather into private contracts terms that a transient 

majority of the court believe are desirable. The court wisely has declined 

to follow this path.