Balmer v. Elan Corp.

• Decision Date: 12 July 2004
• Docket Number: No. S03G1499.,S03G1499.
• Parties: BALMER et al. v. ELAN CORPORATION et al.
• Court: Georgia Supreme Court

599 S.E.2d 158

278 Ga. 227

BALMER et al. v. ELAN CORPORATION et al.

No. S03G1499.

Supreme Court of Georgia.

July 12, 2004.

Reconsideration Denied July 29, 2004.

Orr & Orr, LLP, E. Wycliffe Orr, Gainesville, for appellants.

Seyfarth & Shaw, Latonya Shereen S. Moore and John F. Meyers, Atlanta, for appellees. THOMPSON, Justice.

Appellants are former employees of appellee Elan Corporation.¹ ("Elan"), who sued their employer alleging breach of contract, promissory estoppel, fraud, defamation, and violations of laws penalizing whistleblowers. The complaint alleged that their employment was improperly terminated because they cooperated with an FDA inspection of Elan's facilities, despite Elan's express assurance that such cooperation would not result in termination. The trial court granted Elan's motion to dismiss for failure to state a claim with regard to the breach of contract, promissory estoppel and fraud counts of the complaint, leaving intact the defamation and whistleblower claims. The Court of Appeals granted interlocutory review and affirmed. Balmer v. Elan Corp., 261 Ga.App. 543, 583 S.E.2d 131 (2003). For the reasons which follow, we also affirm.

1. Appellants submit that the trial court erred in dismissing their claims, and that the Court of Appeals misconstrued their arguments on appeal.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.... In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501(2), 480 S.E.2d 10 (1997).

The allegations of the complaint show as follows: Appellants were formerly employed as laboratory analysts by Elan, a foreign-based pharmaceutical company with research and production facilities located in Gainesville, Georgia. Elan's operations in the United States are under the jurisdiction of the Food and Drug Administration ("FDA"), which is authorized to conduct periodic inspections of Elan's Gainesville site. FDA inspections conducted during the 1990's resulted in citations being issued against Elan due to its violation of governmental standards and regulations. Prior to 2000, Elan had instructed its employees at various times to provide as little information as possible to the FDA, and to refrain from inviting FDA inspectors into work areas.

It was further alleged that Elan informed appellants they would not be discharged or treated adversely if they cooperated with the FDA in a scheduled inspection of the Gainesville site in May 2000; and relying on these assurances, appellants provided truthful information to the FDA and cooperated with the agency's inspection. In August 2000, Elan terminated the employment of all seven appellants, for the stated reason that each had given false information to the FDA. Thereafter, Elan informed the FDA that appellants' employment had been terminated because they had deviated from the company's procedures, despite having been trained to the contrary. The May 2000 inspection resulted in a consent decree being issued by the FDA against Elan due to its violation of governmental quality control standards.

2. Georgia follows the general rule that employment relationships supported by no consideration other than the performance of duties and the payment of wages are terminable at will by either the employer or the employee, absent a controlling agreement specifying the terms of such employment. OCGA § 34-7-1 ("[a]n indefinite hiring may be terminated at will by either party"); Hall v. Answering Svc., 161 Ga.App. 874(2), 289 S.E.2d 533 (1982); Wimberly, Georgia Employment Law § 1-6 (3rd ed.2000). Under the at-will employment doctrine, "[t]he employer, with or without cause and regardless of its motives may discharge the employee without liability." (Citation and punctuation omitted.) Jellico v. Effingham County, 221 Ga.App. 252, 471 S.E.2d 36 (1996). It is uncontroverted that the employment agreement between appellants and Elan was for an indefinite term and only provided for the payment of wages in exchange for the satisfactory performance of job duties, without any additional modifying terms. Elan, therefore, was free to discharge appellants either with or without cause. Id.

Appellants nevertheless contend that their at-will employment relationship was amended orally by Elan's promise not to fire them as a result of their cooperation with the FDA. By virtue of that oral promise, appellants submit Elan agreed to forego its prerogative to discharge them for that specific conduct.

Numerous Georgia cases have held that oral promises are not enforceable by at-will employees. See e.g., Ford Clinic v. Potter, 246 Ga.App. 320, 540 S.E.2d 275 (2000) (oral promise as to an employment contract for an indefinite period of time is not enforceable); Moore v. BellSouth Mobility, 243 Ga.App. 674(1), 534 S.E.2d 133 (2000) (oral promises as to future events are not enforceable by at-will employees and cannot provide grounds for a breach of contract claim); Alston v. Brown Transport Corp., 182 Ga.App. 632(2), 356 S.E.2d 517 (1987) (oral promise of promotion unenforceable where the employment contract is terminable at will). Generally, the discharge of at-will employees is not actionable. See e.g., Dong v. Shepeard Community Blood Center, 240 Ga.App. 137(1), 522 S.E.2d 720 (1999) (cannot circumvent at-will doctrine by claiming negligent hiring); Jellico, supra (at-will employee may not maintain action for constructive wrongful termination); Barker v. CTC Sales Corp., 199 Ga.App. 742(1), 406 S.E.2d 88 (1991) ("Georgia courts have repeatedly held that a promise of employment for an indefinite term is insufficient to support a cause of action for breach of an employment contract").² With regard to the precise issue now before the Court, i.e., whether an employer's oral promise not to fire an at-will employee for specified conduct is actionable as a breach of contract, the parties have cited no Georgia precedent directly on point, and our research has revealed none.

Appellants submit that because no Georgia authority is dispositive of their claim, we are required to look to other jurisdictions which have considered the issue and apply the foreign law.³ In this regard, they argue that the employment at-will statute, OCGA § 34-7-1, is a codification of a decision of this Court (see Magarahan v. Wright & Lamkin, 83 Ga. 773, 10 S.E. 584 (1889)), and is subject to the rules of construction concerning "statutes of non-statutory origin." That rule provides "that when the Code section is a mere codification of the general law, and is not of original legislative enactment, decisions of other courts as well as our own may be looked to." (Emphasis supplied.) Sinclair v. Friedlander, 197 Ga. 797, 800, 30 S.E.2d 398 (1944). While we are at liberty to consider foreign authority, the appellate courts of this state are "not bound by decisions of other states or federal courts except the United States Supreme Court." Rodgers v. First Union Nat. Bank, etc., 220 Ga.App. 821, 822, 470 S.E.2d 246 (1996). The suggestion in Sinclair, supra at 800, 30 S.E.2d 398, that other courts "may be looked to," is consistent with that precept. That courts of other jurisdictions may have allowed an oral promise not to fire or to modify at-will employment relationships

is of no consequence because in Georgia this rule is statutory.... Georgia courts have refused to acknowledge any exceptions not encompassed by OCGA § 34-7-1, and in the absence of any express statutory provision for such a civil remedy, we decline to create judicially such a remedy. Courts may interpret laws, but may not change them. These inadequacies in our existing law, however, if they be such, cannot be supplied by the courts, and may only be corrected by the General Assembly.

(Citations and punctuation omitted.) Jellico v. Effingham County, supra at 253, 471 S.E.2d 36. Instead, we apply well-settled doctrines of Georgia law and hold that Elan's oral promise not to fire appellants does not modify the terms of their at-will employment relationship and does not create an enforceable contract.

3. Alternatively, appellants assert that if the promises made to them are not actionable as part of an enforceable agreement, the doctrine of promissory estoppel would render them enforceable. The elements of a claim of promissory estoppel are set forth in OCGA § 13-3-44(a), as follows: "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." However, the principle of promissory estoppel "has no application ... where the promise relied on was for employment for an indefinite period." (Citation and punctuation omitted.) Barker, supra at 743(2), 406 S.E.2d 88.

4. With respect to fraud, the complaint alleged that Elan's promises not to fire "were intentional and material misrepresentations of facts made willingly by [Elan] to deceive [appellants]." "[A]ny promises upon which [appellants] may rely to show misrepresentation are unenforceable because [their] underlying employment contract, being terminable at will, was unenforceable." Johnson v. MARTA, 207 Ga.App. 869, 870, 429 S.E.2d 285 (1993). Accord Cannon v. Geneva Wheel &c. Corp., 172 Ga.App. 20, 322 S.E.2d 69 (1984) (oral promise upon which the promisee...