Batchelor v. Sears, Roebuck & Co.

• Decision Date: 03 November 1983
• Docket Number: Civ. No. 83-1140.
• Citation: 574 F. Supp. 1480
• Parties: Mary BATCHELOR, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.
• Court: U.S. District Court — Western District of Michigan

574 F. Supp. 1480

Mary BATCHELOR, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.

Civ. No. 83-1140.

United States District Court, E.D. Michigan, S.D.

November 3, 1983.

L. Rodger Webb, Detroit, Mich., for plaintiff.

Charles C. Dewitt, Jr., Detroit, Mich., for defendant.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This action filed by Mary Batchelor, a former employee of defendant Sears, Roebuck and Co. (Sears), stems from defendant's discharge of plaintiff on March 22, 1982. Plaintiff, a resident of Michigan, filed a three count complaint in Wayne County Circuit Court on March 17, 1983. Sears, a New York corporation with its principal place of business in Illinois, removed the action to this Court on March 29, 1983. 28 U.S.C. §§ 1332(a), 1441(a). Count I of the complaint avers that plaintiff's employment was terminated without just cause, in contravention of her employment contract. Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980). Count II alleges that defendant failed to provide plaintiff with a hearing prior to her discharge, in violation of her right to due process of law under the fifth and fourteenth amendments to the Constitution of the United States of America and Article II, section 17 of the Constitution of the State of Michigan. Count III avers either defamation or intentional infliction of emotional distress. Plaintiff has subsequently dismissed Count II in its entirety and that portion of Count III which may have stated a claim for defamation.¹ Thus, Count I and the claim for intentional infliction of emotional distress in Count III are all that remain of the complaint.

This matter is before the Court on defendant's motion for summary judgment on Count I and defendant's motion to dismiss Count III for failure to state a claim. Defendant moves without supporting affidavits for summary judgment on Count I under Rule 56(b). Defendant supported its motion with exhibits and, in its reply brief, with specific references to plaintiff's deposition testimony. Plaintiff has filed affidavits and exhibits in her brief in opposition to the motion.

Before addressing defendant's arguments, the Court deems it appropriate to review the principles that must guide its decision whether to grant summary judgment. Rule 56(c) provides that summary judgment shall be granted:

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.

The Sixth Circuit recently reiterated the principles governing consideration of a motion for summary judgment in Watkins v. Northwestern Ohio Tractor Pullers Ass'n, 630 F.2d 1155 (6th Cir.1980):

The district Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute. It may not make findings of disputed facts on a motion for summary judgment. The movant has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The movant's papers are to be closely scrutinized while those of the opponent are to be viewed indulgently.

Id. at 1158.

The party moving for summary judgment "bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor." United States v. Article of Device ..., 527 F.2d 1008, 1011 (6th Cir.1976). See also United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). If the movant establishes by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, Rule 56(e) requires that the opponent produce by affidavit or otherwise "specific facts showing that there is a genuine issue for trial." First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1967), reh. denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). See also Daily Press, Inc. v. UPI, 412 F.2d 126 (6th Cir.1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969); Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir.1968); Doff v. Brunswick Corp., 372 F.2d 801 (6th Cir.1966). The Supreme Court addressed the question of how much evidence the opponent must produce to avoid summary judgment in First National Bank of Arizona v. Cities Services Co., supra:

It is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial .... What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.

391 U.S. at 288-89, 88 S.Ct. at 1592-93. However, Rule 56(e) does not require the opponent to show that there is a genuine issue for trial until the movant has demonstrated by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); 2361 State Corp. v. Sealy, Inc., 402 F.2d 370, 375 (7th Cir.1968); Wright & Miller, Federal Practice & Procedure, Civil §§ 2727, 2739 (1973).

This Court, in Summers v. Sears, Roebuck & Co., 549 F.Supp. 1157 (E.D.Mich. 1982), and at least two others in this district, Forrester v. Sears, Roebuck & Co., No. 81-73308 (E.D.Mich. Aug. 4, 1982) (Guy, J.); Novosel v. Sears, Roebuck & Co., 495 F.Supp. 344 (E.D.Mich.1980) (Joiner, J.), have reviewed the significance of the following language contained in the employment application made available to prospective employees by Sears.

I certify that the information contained in this application is correct to the best of my knowledge and understand that falsification of this information is grounds for dismissal in accordance with Sears, Roebuck and Co. policy. I authorize the references listed above to give you any and all information concerning my previous employment and any pertinent information they may have, personal or otherwise, and release all parties from all liability for any damage that may result from furnishing same to you. In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the president or vice-president of the Company, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing. (Emphasis added.)

Each of these cases concluded that the employment contract included the language set forth. As such, the summary judgment motion of Sears was granted in each case. The rationale, in each instance, was that "this type of contractual provision is expressly provided for by Toussaint ... and precludes a legitimate expectation of a right to a just cause determination prior to termination." Summers, supra, 549 F.Supp. at 1161. Each court concluded that, as a matter of law, the above quoted contractual provision permitted Sears to discharge employees without cause.

Plaintiff contends that the same result is inappropriate in the case at hand for three reasons which the Court will now review. First, plaintiff contends that the application for employment, from which the above quoted language is taken, does not constitute an employment contract; that at most, it is an unenforceable contract to make a contract at a later time. Plaintiff asserts that the application does not represent an offer of employment by Sears and that plaintiff did not accept an offer of employment by completing and signing it.² Plaintiff contends that the employment contract was entered into when Sears offered plaintiff employment some two weeks after she submitted her application.

The Court agrees with plaintiff that Sears did not make an offer of employment by making available to interested members of the public blank application forms. Thus, plaintiff had no offer to accept when she completed the application. The Court cannot agree, however, that the application is an unenforceable contract to make a contract at a future date. No legal significance attaches to the collection of completed applications by Sears. The issue before the Court is whether the above quoted language, taken from the employment application, ever became part of an employment contract entered into by Ms. Batchelor and Sears. The application represents some of the preliminary negotiations of the parties. The completed application made it known to Sears that plaintiff was available for "any type" of work and that plaintiff would accept employment subject to the terms set forth above. The application was completed on March 23, 1967. On or about April 6, 1967 plaintiff was hired part-time as a bus girl for $60.00.³ Plaintiff began working shortly thereafter.

The Court finds that Sears offered plaintiff a position on or about April 6, 1967, when it made known the opening in the cafeteria as a bus girl. The terms of the offer, which became the terms of the employment contract when accepted, included not only the pay scale...