855 F.2d 1225 (6th Cir. 1988), 87-1154, Pratt v. Brown Mach. Co., a Div. of John Brown, Inc.

Docket Nº:87-1154.
Citation:855 F.2d 1225
Party Name:3 Indiv.Empl.Rts.Cas. 1121 David K. PRATT and Teri D. Pratt, Plaintiffs-Appellees, v. BROWN MACHINE COMPANY, A DIVISION OF JOHN BROWN, INC., Defendant-Appellant.
Case Date:September 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1225

855 F.2d 1225 (6th Cir. 1988)

3 Indiv.Empl.Rts.Cas. 1121

David K. PRATT and Teri D. Pratt, Plaintiffs-Appellees,

v.

BROWN MACHINE COMPANY, A DIVISION OF JOHN BROWN, INC.,

Defendant-Appellant.

No. 87-1154.

United States Court of Appeals, Sixth Circuit

September 7, 1988

Argued March 25, 1988.

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[Copyrighted Material Omitted]

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Noel A. Gage, William F. Ager, III, Bushnell, Gage, Doctoroff, and Reizen, Southfield, Mich., George E. Bushnell (argued), for defendant-appellant.

Sheldon J. Stark (argued), Stark & Gordon, Detroit, Mich., for plaintiffs-appellees.

Before MILBURN and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BOGGS, Circuit Judge.

Brown Machine Company appeals a jury verdict in favor of David and Teri Pratt on their claims for wrongful discharge, violation of Michigan public policy, intentional infliction of emotional distress, and loss of consortium. We conclude that David Pratt was an at-will employee, as a matter of law, and reverse the judgment on his wrongful discharge claim. We affirm the judgment for the Pratts on the remaining claims.

I. FACTS

Since Brown Machine appeals from a jury verdict in favor of the Pratts, we view the evidence in the light most favorable to the plaintiffs. Ivey v. Wilson, 832 F.2d 950, 953 (6th Cir.1987). Brown Machine Company manufactures large thermoforming systems and sells the machinery worldwide. The company employs a technical service staff, which provides repair work wherever the machinery is located.

In August 1976, Brown Machine hired David Pratt as a technical service trainee. Pratt had heard about the company from Tim Weldon, a former high school classmate. Weldon told Pratt that the company was looking for someone who "would like to work in the service department and travel, and someone that needed a full time job."

At the time Pratt began working for Brown Machine, he had several conversations about "longevity" with Rod Schulte, manager of the Parts and Service Department, and Richard Levely, who was then the Personnel Manager. Schulte told Pratt that Brown Machine had a history of training new hires, who would leave the company because of the extensive travel required by the job. As Pratt recalled the conversation, "So his [Schulte's] primary interest was [that] I would be with them 15, longer, years or whatever, stay with them so that they could benefit more from training me." Pratt was ready for such an undertaking. He indicated that he was looking for long-term employment.

Pratt's initial employment involved a 90-day probationary period. He received a one-page, hand-written document outlining his duties. He would be accompanying service personnel for six months to become familiar with his responsibilities. He was instructed to give "110%" total commitment; to "ask questions, dig, probe, seek" and to "respond to customer needs." The document also indicated that Pratt would be attending hydraulics school in September.

Pratt testified that Schulte and Levely told him that upon completion of the probationary period, he would become a "permanent" employee. Indeed, when the period did expire, Pratt received a pay raise and additional benefits, and his status changed from trainee to technical service representative.

In September, Brown Machine received writs of garnishment on Pratt's wages. Concerned that the writs might cause problems with the company, Pratt spoke to Schulte. According to Pratt, Schulte indicated that Brown Machine would not fire him "without just cause." If such a decision had to be made, the company would consider his work performance and his cooperation with fellow employees.

In November 1977, Brown Machine's new Director of Personnel, Ralph Garbe, was instructed to develop an employee handbook for distribution to the company's staff. By collecting all the written policies that were then in force in the different departments and discarding those that were outdated, he was able to produce a sizable handbook for general reference. Garbe completed the project in 1980 and distributed the handbook to every employee at Brown Machine.

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According to Brown Machine, each handbook had a final "tear-out page," which read as follows:

I hereby acknowledge receipt of a copy of the "Brown Hourly Employee Handbook," and affirm that I realize the significance of the rules, policies and information in this handbook. I also understand these policies are subject to change by management, unilaterally and without notice.

It is agreed, that my employment with the Company, is at the will of the Company. (emphasis added)

Although all employees were requested to sign and return the final page, it was not a company requirement. Garbe estimated that some 85 percent of the employees signed the back page and returned it to management. Nevertheless, Brown Machine considered the final page, including the at-will language, to be the policy of Brown Machine. According to Garbe, "Whether they [the employees] signed the back page or not didn't make any difference, it was still a manual that the company was following for employee policies and benefits."

Pratt introduced a copy of the handbook without the final tear-out page, which he received from a fellow worker; he was unable to produce his own. Pratt testified that he did receive the employee handbook, but did not recall whether he received or signed the final tear-out page. The following colloquy during Pratt's cross-examination is illustrative:

BROWN MACHINE'S COUNSEL: Where is the original book that you got rather than the one you borrowed from some friend?

PRATT: I believe I left it in my personal file at Brown Machine.

BROWN MACHINE'S COUNSEL: So the original book you got might have all the pages, as far as you know?

PRATT: It may have.

* * *

THE COURT: Do you have access to your personnel file now at Brown Machine?

PRATT: No.

* * *

THE COURT: Do you know whether or not it had that additional page in it?

PRATT: I don't remember, your Honor.

Brown Machine introduced a copy of the handbook with the final tear-out page. Garbe testified that every handbook that was distributed had the final page, and that all employees received a copy of the manual. However, the personnel director could not say from personal knowledge whether the final page went to Pratt. Although the final page indicated that it was to be placed in the personnel file upon return, Brown Machine was unable to locate and thus introduce a final page with Pratt's signature.

The handbook contains a section entitled, "Company Rules," which lists "acts" that could "result in disciplinary action ranging from verbal or written warnings to suspension or to immediate discharge depending upon the act and the circumstances." The philosophy of the section is one of "progressive corrective discipline," although the handbook makes clear that certain actions will result in immediate discharge. This included fighting or committing an assault, using abusive or threatening language, and disorderly, offensive or immoral conduct.

Pratt examined these sections when he first received the handbook. He recalled thinking that he "had a lot of job security, because [he did not] break rules like that."

By all accounts, Pratt was a highly valued employee at Brown Machine. Four years into Pratt's employment, Schulte told Pratt that "the probability of continued employment was very good." Pratt continued to receive pay raises, as well as compliments on his job performance.

In the Spring of 1982, Teri Pratt began receiving obscene and harassing telephone calls, which continued for some eighteen months. Teri Pratt estimated that she received between 80 to 100 calls. Some of them demanded sex; others threatened rape. The caller knew Teri's name, the description of her car, and where she lived.

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Many of the calls came when David Pratt was out of town on a service call. 1 The calls frightened the Pratts, who lived on an isolated country road far from neighbors.

At first, the Pratts did not go to the police, hoping the calls would stop. That did not occur. In November 1982, Pratt contacted the state police, which began an investigation. Teri Pratt also sought the assistance of the telephone company, but she was told there was a long waiting list for a phone trap. Frustrated with the delay, the Pratts decided not to pursue the trap.

State Trooper Jack Peet was initially in charge of the Pratt investigation. He told Teri Pratt to maintain a log of the calls, and provided recording equipment for possible voice print analysis. The Pratts made several recordings of the caller's voice, but most were of insufficient quality. Eventually, the Pratts returned the equipment, and used their own with better results.

By February 1983, the police efforts had been unsuccessful. A month earlier, Teri Pratt had arranged a meeting with the caller at a local motel in an effort to catch him, but he never showed up. On February 27, Officer Peet had his last contact with the Pratts and closed the investigation. 2 According to Teri Pratt, Peet indicated that they "had exhausted all their possibilities, ... and the case should be closed because he didn't know what more he could do." He advised them to seek a phone trap, despite their concerns and the long waiting list. Peet believed that a phone trap was the only means of determining the origin of the telephone calls: "When I had the last contact with Mr. Pratt and he indicated that he did not want to deal with [the telephone company], therefore a line trap would not be put on, therefore, compounding the problem, I would not be able to get prosecution in the matter; based on that, I closed the investigation." The Pratts were...

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