Falcone v. Columbia Pictures Industries, Inc.

• Decision Date: 13 November 1986
• Docket Number: No. 86-5209,86-5209
• Citation: 805 F.2d 115
• Parties: 105 Lab.Cas. P 55,610, 1 Indiv.Empl.Rts.Cas. 1148 Samuel J. FALCONE v. COLUMBIA PICTURES INDUSTRIES, INC. Appeal of Samuel J. FALCONE.
• Court: U.S. Court of Appeals — Third Circuit

Page 115

805 F.2d 115

105 Lab.Cas. P 55,610, 1 Indiv.Empl.Rts.Cas. 1148

Samuel J. FALCONE v. COLUMBIA PICTURES INDUSTRIES, INC Appeal of Samuel J. FALCONE.

No. 86-5209.

United States Court of Appeals, Third Circuit.

Argued Sept. 19, 1986.

Decided Nov. 13, 1986.

David R. Simon (argued), Andrew Muscato, Simon & Allen, Newark, N.J., for appellant.

Ronald M. Green, Robert Jauvtis (argued), Patrick Westerkamp, Epstein Becker Borsody & Green, P.C., New York City, for appellee.

Before SEITZ, SLOVITER, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal once again calls upon us to decide whether and under what circumstances an employer's right to dismiss an "at will" employee is limited by a requirement that the employer follow certain procedures before terminating employment. The district court granted the employer's motion for summary judgment, orally holding that because the employer made no oral or written representations at the time of hiring limiting its right to dismiss, plaintiff's claim failed to set forth a cause of action. We affirm. ¹

I.

Samuel J. Falcone was first hired by Columbia Pictures Industries, Inc. (Columbia) in March 1976 to work at its Music Publications Division in Hialeah, Florida. At that division Falcone was the business manager and controller, and as such was responsible for not only the financial affairs of the division, but for handling personnel matters as well. In this latter capacity Falcone reported to both the Corporate Personnel Director of Columbia and the President of the division.

In opposition to Columbia's motion for summary judgment, Falcone asserted that at the "inception" of his employment in March 1976, he was advised orally that it was Columbia's policy and practice before terminating an employee to first give an oral warning to the employee with respect to the problem requiring improvement, and to then give a second warning in writing with a copy to the personnel file of the individual, and finally to terminate the employee if necessary after allowing thirty days for improvement. Falcone conceded before the district court, however, and again before this court, that he was not so advised on the day he was hired but "within the first week of his employment." Falcone further averred that he and other managers, department heads, and supervisors at Columbia administered this "warnings" policy in connection with employees whom they supervised. Falcone did not know, however, of any written policy at the time he was hired.

In September 1981 Columbia promoted Falcone to the position of Controller of its International Pictures division headquartered in New York City. Here he reported to Peter C. Kells, the Senior Vice President of Finance and Administration at Columbia. In connection with this appointment Falcone received an increase in his base salary, and moved himself and his family from Florida to New Jersey.

In January 1982 Columbia issued a Personnel Policy Manual. This manual of restricted circulation was "designed to assist Executives, Department Heads, and managers in communicating and implementing Company personnel policy," and was apparently available only for inspection by, and not distribution to, other Columbia employees. The manual does not appear to discuss termination other than to provide for termination pay in the event of retirement, voluntary termination, or involuntary termination for other than just cause.

In April 1982 Columbia distributed and Falcone received a copy of a booklet entitled "The Company You Have Joined." The booklet contained a section on termination which provided that before dismissal the supervisor would meet with the employee to attempt to resolve the problem, give the employee a chance to improve, and, if necessary, "after sufficient warnings," discuss with the employee the reasons for the termination. It also provided that if any conflicts existed between the booklet and "applicable legal documents," the latter would govern.

On or about August 17, 1982, Columbia notified Falcone that they were terminating his employment and giving him five months severance pay. Falcone asserts that the procedures in Columbia's booklet were not followed, and that the only reason Kells gave for Falcone's termination was that his assignment to the International Pictures division "just hasn't worked out."

After Columbia filed its answer to the complaint a United States Magistate scheduled a conference at which, over Falcone's objection, the magistrate stayed the depositions which had been noticed by Falcone, as well as requests for documents and interrogatories which had already been served. Falcone alleges that the Magistrate entered this order based upon Columbia's promise that it would stipulate that it did not follow the dismissal procedure alleged by Falcone; however, Columbia denies having agreed to so stipulate. Falcone made further discovery requests and when these were not complied with, the Magistrate determined that Columbia could withhold compliance pending the outcome of defendant's summary judgment motion.

On February 24, 1986, the district court ruled against Falcone on Columbia's motion for summary judgment. The court found that because Falcone failed to present any evidence that he relied upon the company's alleged oral and written representations when he accepted employment, he did not come within New York's narrow limitation on an employer's ability to terminate an at will employee as set forth in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982).

II.

On appeal, Falcone argues that the district court erred in its award of summary judgment against him because it improperly read Weiner as requiring the satisfaction of a four part test. Rather, argues Falcone, Weiner requires the enforcement of an employer's oral or written promise to limit its right to dismiss an at will employee whenever the employee in any way relies upon the employer's promise. According to Falcone, he relied upon Columbia's alleged promises by continuing his employment and by moving himself and his family from Florida to New Jersey. ²

The Supreme Court has recently set forth the appropriate standard of review in a case in which the district court has awarded summary judgment:

Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.... The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986). Thus, we review the record to determine whether the district court properly concluded that Falcone failed to establish an essential element of his case. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977) ("On review the appellate court is required to apply the same test the district court should have utilized initially.").

It is undisputed that New York law governs. As a federal court sitting in diversity, we are "not free to follow our own inclination as to the manner in which the common law should develop...." Bruffett v. Warner Communications, Inc., 692 F.2d 910, 918 (3d Cir.1982). Rather we must apply the law as it has been developed by the New York courts. Novosel v. Nationwide Ins. Co., 721 F.2d 894, 897 (3d Cir.1983). New York has long held that employment for an indefinite term is terminable at the will of either party at any time, for any reason, or for no reason at all. See, e.g., Parker v. Borock, 5 N.Y.2d 156, 159, 156 N.E.2d 297, 298, 182 N.Y.S.2d 577, 579 (1959). This rule was recently reaffirmed by the New York Court of Appeals in Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 448 N.E.2d 86, 91, 461 N.Y.S.2d 232, 237 (1983), subject to "a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment...." At issue in the instant matter is the existence of an express limitation in the individual contract of employment.

In Weiner v. McGraw-Hill, Inc., supra, the court of appeals gave effect to an express limitation which stated that the employer could not fire an employee absent just cause or rehabilitative efforts where (1) the employee was induced to leave his prior job with the assurance that he would not be dismissed without just cause; (2) the assurance was incorporated into the employment application; (3) the employee had rejected other offers of employment in reliance on the assurance; and (4) the personnel manual involved expressly stated that dismissal would be only for just cause and only after rehabilitation efforts had failed. Id., 57 N.Y.2d at 465-66, 443 N.E.2d at 445, 457 N.Y.S.2d at 197. However, as Falcone correctly points out, the four factors relied upon in Weiner do not constitute a strict test which must be met in every instance. Lapidus v. New York State Association for Retarded Children, Inc., 118 A.D.2d 122, 504 N.Y.S.2d 629, 632 (1st Dep't 1986). Rather, the Second Circuit has interpreted Weiner to stand "for the...