Berry v. Doctor's Health Facilities

• Decision Date: 12 June 1986
• Docket Number: No. 05-85-00715-CV,05-85-00715-CV
• Citation: 715 S.W.2d 60
• Parties: Jeffrey BERRY, Appellant, v. DOCTOR'S HEALTH FACILITIES d/b/a Doctors Hospital, Appellee.
• Court: Texas Court of Appeals

Page 60

715 S.W.2d 60

Jeffrey BERRY, Appellant, v. DOCTOR'S HEALTH FACILITIES d/b/a Doctors Hospital, Appellee.

No. 05-85-00715-CV.

Court of Appeals of Texas Dallas.

June 12, 1986.

Frank P. Hernandez, Dallas, for appellant.

John F. McCarthy, Jr., Dallas, for appellee.

Before AKIN, HOWELL and HOLLINGSWORTH, JJ.

HOWELL, Justice.

Jeffrey Berry sued Doctor's Health Facility (DHF) alleging that it had wrongfully discharged him from his job as a maintenance technician. He appeals from a summary judgment rendered for DHF. Finding no reversible error, we affirm the trial court's judgment.

In reviewing summary judgments the following standards apply: (1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549 (Tex.1985); Wilcox v. St. Mary's University, 531 S.W.2d 589, 592-593 (Tex.1975). To prevail, a movant must negate one or more elements of the plaintiffs' case as a matter of law or prevail as a matter of law on a defense. Rosas v. Buddie's Food Store, 518 S.W.2d 534, 537 (Tex.1975); Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex.1972); see also Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

The evidence before the trial court consisted of depositions of Berry as well as other witnesses. For purposes of summary judgment review, we will accept his version of the facts and make every reasonable inference in his favor.

On the day in question, Berry was to work two shifts separated by several hours. Between shifts a co-worker drove Berry to cash a paycheck and to run some errands. They returned to the co-worker's residence where Berry drank two beers at most. He then returned to work. He told the supervisor of his drinking the beer and the supervisor replied that he could not have Berry on the job in that condition. Berry believed that the supervisor was referring to his ankle, which was in a cast because of an accident. The following day, however, the personnel director called Berry into his office and fired him for coming to work intoxicated.

Berry insists that he was not, in fact, intoxicated. He asserts that the alleged drinking incident was merely a pretext, that the supervisor himself had often been under the influence of alcohol while on duty and on one occasion had even brought beer to the job for the employees. Berry speculates that the true motive underlying his discharge was retaliation. This supervisor had previously discharged him but the action had been overturned by DHF's internal appeals procedure. He also suggests that DHF fired him because he "knew too much" about alleged improprieties in the DHF administration.

Any discussion of wrongful discharge must commence with the longstanding employment at will doctrine. First enunciated in East Line & R.R.R. Co. v. Scott, 73 Tex. 70, 75, 10 S.W. 99, 102 (1888), the doctrine provides that absent an express agreement to the contrary, either the employer or the employee may terminate their relationship at any time, for any reason. Mitsubishi Aircraft International, Inc. v. Mauer, 675 S.W.2d 286, 289 (Tex.App.--Dallas 1984, no writ).

Berry does not attempt to show an express agreement securing his continued employment. The at-will doctrine would seem to preclude his recovery under the facts presented. Berry, however, urges that his discharge falls within three exceptions to the at-will doctrine.

First, Berry contends that DHF's employee handbook creates a contract and that he could be legally discharged only by its terms. Other jurisdictions have held that employee handbooks can become part of the employment contract and limit the employer's right to discharge an employee. Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Touissant v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). See Comment, The At-Will Doctrine: A Proposal to Modify the Texas Employment Relationship, 36 Baylor L.Rev. 667, 673-74 (1984).

The Corpus Christi Court of Appeals considered the handbook question in Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex.App.--Corpus Christi 1982). The court rejected the claim that Reynolds's employee handbook gave the employee a protectable contract right in continued employment. The court stressed that Reynolds retained the right to amend or withdraw the handbook. The handbook in question merely provided general guidelines and was not intended to set forth the sole means of termination. Reynolds, 644 S.W.2d at 539. Cf. Smith v. Kerrville Bus Co., 709 F.2d 914 (5th Cir.1983).

We need not decide whether an employee handbook can limit a Texas employer's right to discharge an employee at will. The summary judgment evidence establishes as a matter of law that DHF's handbook did not circumscribe its ability to dismiss Berry.

The inside back cover of the handbook contains the following language:

I UNDERSTAND THAT THIS HANDBOOK IS A GENERAL GUIDE AND THAT THE PROVISIONS OF THIS HANDBOOK DO NOT CONSTITUTE AN EMPLOYMENT AGREEMENT (CONTRACT) OR A GUARANTEE TO CONTINUE EMPLOYMENT.

I FURTHER UNDERSTAND THAT DOCTORS HOSPITAL RESERVES THE RIGHT TO CHANGE THE PROVISIONS OF THIS HANDBOOK AT ANYTIME.

Directly beneath this disclaimer is a form acknowledging that the employee has received and read the handbook. Berry signed this form.

Berry's employment application stated "I understand and agree that, if hired, my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at any time without any prior...