Burrell v. Carraway Methodist Hospitals of Alabama, Inc.

• Decision Date: 30 October 1992
• Citation: 607 So.2d 193
• Parties: Mitchell T. BURRELL v. CARRAWAY METHODIST HOSPITALS OF ALABAMA, INC., et al. 1910976.
• Court: Alabama Supreme Court

Page 193

607 So.2d 193

Mitchell T. BURRELL v. CARRAWAY METHODIST HOSPITALS OF ALABAMA, INC., et al.

1910976.

Supreme Court of Alabama.

Oct. 30, 1992.

William J. Baxley of Baxley, Dillard & Dauphin and Kearney Dee Hutsler, Birmingham, for appellant.

Crawford S. McGivaren, Jr. and William K. Thomas of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellees.

KENNEDY, Justice.

The plaintiff, Mitchell T. Burrell, appeals from a judgment in favor of the defendants, Carraway Methodist Hospital of Alabama, Inc. (the "hospital"), and nine of its officers, directors, or employees.

Burrell, an employee of the hospital, was dismissed from his employment as a construction foreman in 1988; the dismissal was related to his private work for a superior on hospital time. Burrell sued because of the dismissal.

Although Burrell's position related to the maintenance of hospital properties, the record indicates that Burrell and persons in similar positions were sometimes called upon to perform private work on hospital time and, in doing so, to use hospital materials or equipment for persons affiliated with the hospital.

About Burrell and this practice, Will Wakefield, a former president and CEO of Carraway Management Foundation and former associate administrator of the hospital, testified by affidavit:

"I am familiar with ... Burrell. I worked in the same hospital with [him] and was familiar with that department [maintenance] and his personal work performance from the time he began working [in] 1976 until my retirement in February of 1987. Mitchell Burrell was a good employee who was known for his exceptional work in the maintenance department. It was general knowledge that if an administrator needed some personal work done and wanted it to be high quality, he would get Mitchell Burrell to do it.

"It was also a custom and practice at Carraway ... to have workmen in the maintenance department do private work for the administrators and board members from time to time. This was generally accepted practice and the hospital would be reimbursed through an accounts receivable procedure where they would be billed by the hospital. This was a practice which I always felt was a potential problem for abuse by the board and administrators but when I objected to the practice, I was overruled by Dr. Ben Carraway.

"The employees in the maintenance department relied on their supervisors and administration to inform them of policies that might affect their employment. The policy regarding reimbursement to the hospital for private work done for administrators and board members ... was not a uniform policy. Some projects would be fully billed while others were not.... [E]mployees ... were told, on many occasions, to refrain from billing parts of their work....

"... [I]t was not part of [Burrell's] job to know how or if said work was billed to said board members or administrators. In other words, Mitchell Burrell was not responsible for knowing the hospital reimbursement arrangement at the accounts receivable level.... [E]mployees were not informed of the reimbursement arrangements....

"Howard Tyra ... was entitled to use the hospital reimbursement policy described above. He was Mitchell Burrell's boss."

The events leading up to Burrell's termination relate to his boss, Howard Tyra. ¹ The record indicates that Tyra instructed Burrell to work on private projects for him on hospital time, using hospital equipment and materials, and that Burrell did so. Burrell indicated in his deposition that, as was often his practice in such instances, he listed this time on his hospital time records as "administrative" time for the hospital. According to Burrell, he and other employees of the maintenance department were expressly encouraged by Tyra to either underreport or fail to report the labor or materials cost on a private job. Burrell testified that doing so was common practice among the maintenance workers, who, the record reflects, were generally doing the private work for persons in positions of considerable authority with the hospital. ²

Sometime after working on Tyra's projects, Burrell says, he was advised by hospital administrator James Hallmark that his services were no longer needed. Burrell stated in his deposition that he was told by the hospital's general counsel, Ann Sorge, specifically that he was "fired for stealing time, materials and [the use of] equipment for Howard Tyra." According to Burrell, he later learned that Tyra, too, had been dismissed.

The record indicates that Burrell was both confused and angered by his termination, which he said was directed toward activities he was ordered to engage in by a superior.

Burrell sued the hospital and nine of its employees, officers, or directors, both as individuals and in their capacities as representatives of the hospital, alleging fraud, based on the claim that he was directed and encouraged to engage in certain activities and then was fired for doing so. Burrell twice amended his complaint to add claims of promissory estoppel and breach of an oral contract, alleging that the hospital had represented by its practice that Burrell could be terminated only for cause, and that he had, in fact, been terminated for following a superior's directives.

The defendants moved for, and were given, a summary judgment as to all of Burrell's claims.

A summary judgment is appropriate where there "is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Ala.R.Civ.P. 56(c). The movant has the burden of establishing the nonexistence of a material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). Once the movant has made a prima facie showing that there is no genuine issue of material fact, then the burden shifts to the nonmovant to rebut that prima facie showing. Id. This Court, in determining whether there was a genuine issue of material fact, must review the evidence in a light most favorable to the nonmovant. Kizziah v. Golden Rule Ins. Co., 536 So.2d 943 (Ala.1988).

In the present case, there are disputed issues of fact. However, even if the factfinder resolves every question of fact in favor of Burrell, he could not recover against the hospital and the nine other defendants as representatives of the hospital. Here, there were no genuine issues of material fact and the defendants were entitled to a judgment as a matter of law.

Burrell presented no evidence that this purported oral contract with the hospital, which he says limited its right of termination to good cause, was anything more than a general, de facto policy. Before there can be an agreement such as that alleged by Burrell, there must be an offer. In the context of offers created by policies stated in employee handbooks, we have said that, "to become a binding promise," the representation must be more than a "mere general statement of policy." Hoffman-La Roche, Inc. v. Campbell, 512 So.2d...