Cothern v. Vickers, Inc., No. 1999-CA-00199-SCT.

• Decision Date: 25 May 2000
• Docket Number: No. 1999-CA-00199-SCT.
• Citation: 759 So.2d 1241
• Parties: Harrold COTHERN v. VICKERS, INC.
• Court: Mississippi Supreme Court

759 So.2d 1241

Harrold COTHERN v. VICKERS, INC.

No. 1999-CA-00199-SCT.

Supreme Court of Mississippi.

May 25, 2000.

James L. Martin, Madison, Attorney for Appellant.

Douglas E. Levanway, Chad Michael Knight, Jackson, Attorneys for Appellee.

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On September 11, 1997, Harrold Cothern filed a complaint against Vickers, Inc.,¹ in the Circuit Court of the First Judicial District of Hinds County, Mississippi, seeking compensatory and punitive damages for (1) breach of an employment contract; (2) wrongful demotion and discharge; (3) breach of the covenant of good faith and fair dealing; (4) intentional infliction of mental distress; and (5) outrage. On October 8, 1998, the circuit court granted Vickers's motion for summary judgment. Feeling aggrieved, Cothern appealed, assigning three points for review:

I. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT VICKERS, INC., DID NOT BREACH A CONTRACT OF EMPLOYMENT OR, IN THE ALTERNATIVE, THAT IT DID NOT WRONGFULLY DISCHARGE COTHERN?

II. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT COTHERN WAS NOT ENTITLED TO EQUITABLE RELIEF?

III. WHETHER GENUINE ISSUES OF MATERIAL FACT EXISTS WHICH PRECLUDE THE GRANT OF VICKERS' MOTION FOR SUMMARY JUDGMENT?

Because Cothern has failed to produce evidence sufficient to generate a genuine issue of material fact on the essential elements of his claims, we affirm the circuit court's summary judgment in favor of Vickers.

STATEMENT OF FACTS

¶ 2. On or about May 10, 1965, Cothern began his employment with Vickers as an hourly production and maintenance employee. As an hourly employee, Cothern's employment relationship with Vickers was subject to a collective bargaining agreement between Vickers and the labor union of which Cothern was a member. On August 10, 1968, Cothern was promoted to a salaried, supervisory position, resulting in an employment relationship no longer covered by the labor agreement. Cothern remained with Vickers in various salaried, managerial positions, receiving several promotions and pay raises until he resigned his employment effective April 28, 1997. At no time during Cothern's employment as a salaried employee was he a party to a written contract of employment with Vickers.

¶ 3. On or about February 28, 1997, Ike Rookmaker, a line supervisor, advised Cothern that there currently were two employees clocked in on the second shift who were not doing anything since work from another department had not been released and who had failed to perform alternative work assigned to them. Cothern and Rookmaker discussed these two individuals with union representatives. Thereafter, Cothern, acting in his supervisory role as Superintendent of the Second Shift, sent the two hourly wage employees home on a temporary layoff. Vickers's senior management reviewed this action and determined, although not unanimously, that sending the employees home was in violation of the labor agreement to which the hourly employees were parties. Specifically, Cothern was told that he had violated the labor agreement by not giving the employees 48 hours notice before placing them on temporary layoff. He was also informed, on March 6, 1997, that he was being demoted to the position of Supervisor A of the first shift effective March 17, 1997. He would receive no reduction in pay, but his salary would be capped until the pay structure for the demoted position increased to a level equal to the pay for the position Cothern was in prior to his demotion.

¶ 4. After leaving the Vickers plant on March 6, 1997, Cothern sought treatment from a clinical psychologist who diagnosed him as having certain physiological and emotional ailments and advised him that it would be detrimental to his health for him to return to work in the position to which he was demoted. Vickers contacted Cothern by letter informing him that he was expected to return to work and that his failure to do so by April 28, 1997, would be considered as a resignation of his employment. Cothern did not return to Vickers.

STANDARD OF REVIEW

¶ 5. The circuit court's grant of summary judgment is reviewed by this Court de novo. Hernandez v. Vickery Chevrolet-Oldsmobile Co., 652 So.2d 179, 181 (Miss.1995). This Court's review is governed by the same standard used by the circuit court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). The trial court must review carefully all of the evidentiary matters before it: admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion is made. Id. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted in the moving party's favor. Id.

¶ 6. The burden of demonstrating that no genuine issue of material fact exists is on the moving party. Id. To defeat a motion for summary judgment, the nonmoving party must make a showing sufficient to establish the existence of the elements essential to his case. Id. In other words, the nonmovant must present affirmative evidence that a genuine issue of material fact exists. As to issues on which the nonmovant bears the burden of proof at trial, the movant needs only to demonstrate an absence of evidence in the record to support an essential element of the movant's claim. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1188 (Miss.1994). The nonmovant then bears the burden by affidavit or otherwise of setting forth "specific facts showing that there are indeed genuine issues for trial." Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988). The nonmovant should be given the benefit of every reasonable doubt. Rosen v. Gulf Shores, Inc., 610 So.2d 366, 368 (Miss.1992).

DISCUSSION OF LAW

I. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT VICKERS, INC., DID NOT BREACH A CONTRACT OF EMPLOYMENT OR, IN THE ALTERNATIVE, THAT IT DID NOT WRONGFULLY DISCHARGE COTHERN?

II. WAS THE EVIDENCE SUFFICIENT TO SHOW, AS A MATTER OF LAW, THAT COTHERN WAS NOT ENTITLED TO EQUITABLE RELIEF?

Constructive Discharge

¶ 7. Cothern asserts that he was both wrongfully demoted and constructively discharged by Vickers. Cothern bases his claim of constructive discharge on the fact that he was demoted. Specifically, Cothern contends that Vickers should have known that demoting a person with 30 years of dedicated service to the company for sending home two hourly wage employees under questionable circumstances would have caused the employee "unbearable stress and humiliation" and that a reasonable employee would have felt compelled to resign given the demotion. Cothern supports this claim by pointing to emotional and physiological ailments he suffered following the demotion and his psychologist's recommendation not to return to work under this adverse employment environment. While Cothern's demotion was unfortunate and its impact on Cothern apparently significant, his demotion alone cannot support a claim for constructive discharge. Mississippi law defines "constructive discharge" as follows:

"[A] constructive discharge may be deemed to have resulted when the employer made conditions so intolerable that the employee reasonably felt compelled to resign." Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983). Would a reasonable person in the employee's shoes have felt compelled to resign? Shawgo, 701 F.2d at 481 n. 12 (citing Pittman v. Hattiesburg Municipal Separate School Dist., 644 F.2d 1071, 1077 (5th Cir.1981)). We do not delve into the employer's state of mind or purpose; but rather the focus is on whether or not the employer made conditions intolerable. Shawgo, 701 F.2d at 481 n. 12 (citing Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980)). Additionally, the Fifth Circuit seeks to determine whether or not the employee could reasonably conclude that he had no meaningful choice but to resign. Junior v. Texaco Inc., 688 F.2d 377, 380 (5th Cir.1982).

Bulloch v. City of Pascagoula, 574 So.2d 637, 640 (Miss.1990); see also Hoerner Boxes, Inc. v. Mississippi Employment Sec. Comm'n, 693 So.2d 1343, 1346 (Miss. 1997). Several other jurisdictions have found that a demotion alone is insufficient to support a claim for constructive discharge. The United States District Court for the Central District of California has stated:

Demotion of a job level, even when accompanied by reduction in pay, cannot constitute ipso facto constructive discharge under California law. See Bourque v. Powell Elect. Mfg. Co., 617 F.2d 61, 66 (5th Cir.1980) (followed by the Ninth Circuit in Nolan [v. Cleland, 686 F.2d 806 (9th Cir. 1982)]); see also Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977).

Wagner v. Sanders Assocs., Inc., 638 F.Supp. 742, 745 (C.D.Cal.1986). See also Fischhaber v. General Motors Corp., 174 Mich.App. 450, 454, 436 N.W.2d 386, 388 (1988) (employer was not liable on wrongful discharge claim of employee who retired after being given choice of demotion from salaried position to hourly position or dismissal on constructive discharge, where employee retired without inquiring into what his hourly work assignment would be).

¶ 8. Cothern argues that the particular circumstances of his demotion created intolerable conditions. Insufferable as the demotion may have been to Cothern personally, a review of the record reveals an absence of harassment, coercion, threats, or other employer conduct which makes working conditions intolerable. Cothern was privately told of his demotion and its effective date, then offered the opportunity to take the rest of the day off. The position awaiting Cothern on his return was still a high-level supervisory position at the same rate of pay he received before the...