Bobbitt v. Orchard, Ltd.
| Decision Date | 17 June 1992 |
| Docket Number | No. 89-CA-1157,89-CA-1157 |
| Citation | 603 So.2d 356 |
| Parties | Bernette BOBBITT v. THE ORCHARD, LTD.; The Orchard Development Co.; and the Madison Group. |
| Court | Mississippi Supreme Court |
Keith R. Raulston, Heidelberg & Woodliff, Jackson, James A. Bobo, Brandon, for appellant.
Stephen E. Gardner, James Leon Young, John S. Simpson, Young Scanlon & Sessums, Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and McRAE, JJ.
On November 7, 1988, Bernette Bobbitt filed a complaint in the circuit court of Madison County against her nursing home employers, The Orchard, Ltd., The Orchard Development Company, and The Madison Group (The Orchard) for wrongfully discharging her. The Orchard had in effect published and disseminated "The Orchard Employee Manual," setting forth the administrative procedures which would be followed in event of an employee's incompetence or misconduct. On October 11, 1988, Bobbitt had been fired for insubordination.
Bobbitt's complaint alleged, inter alia, that The Orchard completely ignored the manual in discharging her. While disputing this, The Orchard contended that because Bobbitt's contract of employment was terminable at will by either party, the manual imposed no legal requirement that it be followed before she could be discharged. Following discovery, The Orchard moved for summary judgment, and upon the sole basis that this was a terminable-at-will contract, the circuit court held that as a matter of law The Orchard was not required to follow its manual before it discharged her, and dismissed her complaint.
We reverse, holding that when an employer publishes and disseminates to its employees a manual setting forth the proceedings which will be followed in event of an employee's infraction of rules, and there is nothing in the employment contract to the contrary, then the employer will be required to follow its own manual in disciplining or discharging employees for infractions or misconduct specifically covered by the manual.
Because this case is before us on a summary judgment against the plaintiff Bobbitt, our recitation of facts will be summary and favorable to Bobbitt, subject to fuller development upon trial.
Bobbitt, 28 years of age, was employed as a licensed practical nurse at The Orchard, a retirement complex in Ridgeland, on July 2, 1987, following her execution of an application which stated in pertinent part:
I certify that the information given by me in this application is true and correct to the best of my knowledge and belief and I agree that if employed and it is found to be false in any way, I will be subject to dismissal without notice. I authorize the use of any information in this application to verify my statements and authorize past employers, doctors, all references and any other persons to answer any questions concerning my ability, character, reputation, and previous employment record.
I understand that the first three months of employment will be considered as a period of probation and that my employment and compensation may be terminated with or without notice at any time, at the option of either The Orchard or myself. I agree to submit to any physical examination as required by The Orchard and if employed, I agree to abide by all present and subsequently issued Orchard rules.
I understand that no representative, employee or resident of The Orchard has authority to enter into an agreement with me for employment for any specified period of time, or to make any agreement with me contrary to the foregoing. (Emphasis added)
In August, 1987, she was promoted to the position of assistant nursing supervisor. On October 11, 1988, after a rather mild exchange with the executive director, Sandra Simmons, over some minor problem in serving lunch, she was fired.
The Orchard had in effect a manual, "The Orchard Employee Manual," consisting of fourteen single-spaced pages outlining the policies, purposes and procedures of the nursing home complex, and the mutual responsibilities of the employees and The Orchard. Pertinent portions follow:
This Manual was prepared so you'll be aware of our policies and the benefits available.
....
We have policies governing employee actions. These policies outline expected job performance and resident services.
....
All licensed employees (nurses, etc.) must carry a policy of malpractice insurance for themselves.
....
To permit you time to adapt and become acquainted, and permit your supervisor time to determine your job performance, the first three months of employment are considered probationary. During this period, you are considered a temporary employee (full time or part time).
....
At the end of the three months, you're evaluated.... If evaluated as satisfactory, you gain regular employee status. If not, you are terminated.
....
At the end of your Probation/Adjustment Period, credits [for vacation and wellness/personal days and benefits] are given retroactively as of the date of initial employment.
....
Should you wish to resign, first inform your department head. Because advance notice is essential, ... four weeks [notice] of exempt employees [is required] in order to receive payment for accrued vacation time.
....
Except in emergency circumstances, a notice of less than the required calendar days places an employee in a position of not being eligible for re-hire.
....
In the interest of maintaining quality personnel, along with a quality work environment, annual job performance evaluations will be scheduled with each employee.
....
All Regular full time Employees who work 30 hours a week or more are eligible to earn vacation leave.
....
Should an employee resign or be terminated prior to completion of a year of continuous service, that employee will not be entitled to receive any vacation pay.
Should an employee resign or be terminated by the company after completing a year of continuous employment, that employee will be entitled to receive vacation pay for vacation time earned, unless separated for the reasons listed in the Conduct and Discipline Procedures Section of this Manual (see Section XXIII) or if proper notification of resignation has not been given.
....
The Company maintains a hospitalization, major medical, dental and life insurance program for its employees as follows:
All full time Regular Employees who work an average of 30 hours per week may elect to receive Health Insurance coverage and the related Life Insurance Coverages.
....
The Company pays 50% of the premium for employees ... (medical and dental coverage).
....
It is our policy to establish and enforce rules and regulations which contribute to efficient and effective productivity and satisfactory working relationships.
As a condition of employment, the employee has been informed of and has agreed to abide by the rules and regulations set forth in this Manual.
The following guidelines for employee conduct and the procedures described for administering corrective disciplinary action will be adhered to in a fair and consistent manner. We recognize the following as policy violations:
Minor Offenses:
Following is a list of those actions regarded as a Minor Offense:
MI. 1--inappropriate dress or poor appearance
MI. 2--wasting time or loitering
MI. 3--leaving the work premises without permission during working hours
MI. 4--failure to report to work on time
MI. 5--failure to record work time accurately
MI. 6--negligence in the performance of duty or productivity not up to standards
MI. 7--violation of or disregard of common safety practices, i.e., smoking in unauthorized areas
MI. 8--absenteeism
MI. 9--horseplay on the job
MI. 10--other minor offenses not included above
Generally, a Minor Offense is successfully corrected through discussion and a simple reminder. A brief notation of this offense is placed in the employee's file. The seriousness of a minor offense [sic] comes with repeated occurrences of the same incident or multiple offenses of a minor nature. A fourth Minor Offense will be regarded as a second Major Offense.
Major Offenses:
Following is a list of those actions regarded as a Major Offense:
MA. 1--falsification of personnel records, time cards, employment applications, and health records
MA. 2--neglect of duties, insubordination, disobedience (emphasis added)
MA. 3--absent for three consecutive days without notification or reasonable cause of failure to notify
MA. 4--unauthorized use or removal of company property
MA. 5--any act of fighting on company property
MA. 6--clocking the time card of another employee
MA. 7--divulging confidential information on any resident or any employee or the unauthorized release of any other material regarding company information
MA. 8--misuse of sick leave privileges and benefits
MA. 9--negligence or abuse in the use of company property or equipment
MA. 10--failure to report an accident or injury to resident, employee, visitor or self occurring on company property
MA. 11--sleeping during work hours
MA. 12--reporting to work under the influence of alcohol or narcotics, barbiturates, hallucinogenics, amphetamines, marijuana or when suffering from alcoholic hangover
MA. 13--discourteous treatment to residents
MA. 14--gambling on company premises
MA. 15--discriminatory action or harassment of one employee against another because of physical disability, race, age, sex, or religion that interferes with good working conditions is prohibited
MA. 16--other major offenses not included above
An employee found in a Major Offense will receive counseling and formal written warnings--which will be signed by the employee and the department head. This document will become a part of the employee's file after having been brought to the attention of the Executive Director.
A second Major Offense will result in a disciplinary suspension (the rest of the shift and up to five (5)...
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