Demasse v. ITT Corp.

• Decision Date: 04 March 1996
• Docket Number: No. Civ-94-1399-PHX-ROS.,Civ-94-1399-PHX-ROS.
• Citation: 915 F. Supp. 1040
• Parties: Roger DEMASSE, et al., Plaintiffs, v. ITT CORPORATION, Defendant.
• Court: U.S. District Court — District of Arizona

915 F. Supp. 1040

Roger DEMASSE, et al., Plaintiffs, v. ITT CORPORATION, Defendant.

No. Civ-94-1399-PHX-ROS.

United States District Court, D. Arizona.

May 24, 1995.

Order Denying Motion to Amend March 4, 1996.

Jack C. Levine, Phoenix, AZ, James W. Hill, Phoenix, AZ, for plaintiffs.

Teresa D. Forst, John Alan Doran, Bryan Cave McPheeters & McRoberts, Phoenix, AZ, for defendant.

ORDER

SILVER, District Judge.

On February 3, 1994, Plaintiffs filed a Complaint with this Court. On July 11, Judge Strand issued an order severing the original case into three separate actions, one of which is the instant case. In this case Plaintiffs allege that they were laid off in breach of a contract provision requiring that layoffs be carried out according to seniority. This Court has jurisdiction under 28 U.S.C. § 1332.

On November 16, 1994, Plaintiffs filed a Motion to Amend the Complaint. An Amended Memorandum of Law was filed on December 15, 1994. On February 14, 1995 Defendant ITT filed a Motion to Sever. Also on February 14, 1995, Defendant ITT filed six separate Motions for Summary Judgment, one against each of the Plaintiffs in this case. The Plaintiffs are Roger Demasse, Billy W. Jones, Greg Palmer, Maria A. Garcia and Socorro Soza. Defendants responded and filed a Cross-Motion for Summary Judgment on March 10, 1995. A hearing was held on the Motions on May 22, 1995.

Background

This action arises from layoffs at ITT's Phoenix facility caused by the decrease in expenditures by the Federal Government for Defense. (DSOFI at ¶ 2, 3; DSOFII at ¶ 2, 3; DSOFIII at ¶ 2, 3; DSOFIV at ¶ 2, 3; DSOFV at ¶ 2, 3; DSOFVI at ¶ 2, 3)¹ Between January 1990 and May 1992, ITT reduced the number of hourly production workers from 132 to 68. (DSOFI at ¶ 4; DSOFII at ¶ 4; DSOFIII at ¶ 4; DSOFIV at ¶ 4; DSOFV at ¶ 4; DSOFVI at ¶ 4) Further layoffs were necessary in 1993 and decreased the labor force to 49. (DSOFI at ¶ 6; DSOFII at ¶ 6; DSOFIII at ¶ 6; DSOFIV at ¶ 6; DSOFV at ¶ 6; DSOFVI at ¶ 6) In 1994 the labor force was decreased to 36. (DSOFI at ¶ 6; DSOFIV at ¶ 6) It is the layoffs in these last two years that form the subject matter of the instant case.

Plaintiffs Roger Demasse, Socorro Soza and Greg Palmer were laid off on April 29, 1993. (DSOFII at ¶ 23; DSOFIII at ¶ 23; DSOFVI at ¶ 22) Next, Plaintiff Viola Munguia was laid off on May 4, 1993. (DSOFV at ¶ 17) Finally, Plaintiffs Billy W. Jones and Maria Garcia were laid off on January 10, 1994. (DSOFI at ¶ 22; DSOFIV at ¶ 23)

Did the ITT Handbooks Issued to the Employees create an "Implied in Fact Contract?"

In Leikvold v. Valley View Community Hosp., 141 Ariz. 544, 548, 688 P.2d 170, 174 (1984), the Arizona Supreme Court held that if an employer issues a personnel policy manual or handbook upon which its employees may reasonably rely, the employer may not treat the contents of these documents as illusory. Consequently, the contents of a personnel manual or handbook can become part of an enforceable contract of employment. See also, Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 381-382, 710 P.2d 1025, 1036-37 (1985); Thomas v. Garrett Corp., 744 F.Supp. 199, 201 (D.Ariz.1989) aff'd 904 F.2d 41, 1990 WL 71468 (9th Cir.1990); Chambers v. Valley Nat'l Bank, 721 F.Supp. 1128, 1131 (D.Ariz. 1988); Bedow v. Valley National Bank, CIV 88-417 PCT RCB (D.Ariz. Oct. 6, 1988). Whether the handbook creates an implied contract depends on the language in the handbook as well as the course of conduct of the employer. Leikvold, 141 Ariz at 548, 688 P.2d at 174.

A related issue is whether the terms of an employment contract created by one handbook can be superseded by a subsequent handbook. The Chambers court held that the parties were free to change the terms of an employment contract at any time. Chambers, 721 F.Supp. at 1131, citing Wagner v. City of Globe, 150 Ariz. 82, 85-86, 722 P.2d 250, 253-54 (1986). The decision of the employee to continue to work for the employer is consideration for the change. Id. at 1131-32, citing Mattison v. Johnston, 152 Ariz. 109, 112-13, 730 P.2d 286, 289-90 (Ct.App. 1986).² Chaos would result if the employer was bound by prior handbooks and employees hired at different times when different handbooks were in effect were under different contracts. Bedow v. Valley National Bank.

Plaintiffs challenge their layoffs as breaches of seniority provided for in their employment contracts. They claim that pre-1989 employee handbooks created an employment contract between them and ITT under which layoffs would be made by seniority. (DSOFI ¶ 32; DSOFII at ¶ 30; DSOFIII at ¶ 38; DSOFIV at ¶ 30; DSOFVI at ¶ 29).

In the instant case, the pre-1989 employee handbooks stated that employees would be selected for layoff by their length of service. (DSOF at ¶ 8; PSOF at ¶ 2) Defendants do not dispute that these pre-1989 handbooks create a contract term requiring layoffs to be made according to seniority. Significantly, the pre-1989 handbooks do not contain language that clearly and conspicuously informed the employees that the handbook was not part of the employment contract and that their jobs were terminable at the will of the employer with or without reason. (DSOF at ¶ 8, Ex. E).

A revised handbook was published in 1989. (DSOF at ¶ 9; PSOF at ¶ 4) This handbook also stated that layoffs would be carried out according to seniority. (p. 36 of Exhibit F to DSOF; PSOF at ¶ 2) However, on page one of the new handbook there was a disclaimer stating that the contents shall not be construed as a guarantee of continued employment, and that ITT reserves the right to layoff employees. (DSOF at ¶ 10) The first page also states that ITT reserved the right to amend, modify or cancel the handbook or the policies rules or procedures contained in it. (DSOF at ¶ 11; PSOF at ¶ 4). Finally, the new handbook stated that the specific "provisions of policies, rules, procedures and programs supersedes the contents" of the handbook. (DSOF Exhibit F at page 1).

All of the Plaintiffs signed a receipt for the new 1989 handbook stating that they had received the handbook understood that it was their responsibility to read it, comply with its contents, and contact Personnel if they had any questions concerning the contents. (DSOFI at ¶ 12; DSOFII at ¶ 12; DSOFIII at ¶ 12; DSOFIV at ¶ 12; DSOFV at ¶ 12; DSOFVI at ¶ 12). In addition Jones (DSOFI at ¶ 13) Palmer (DSOFIII at ¶ 13) and Soza (DSOFVI at ¶ 13) admitted that they read the handbook including the disclaimers on page one. Jones (DSOFI at ¶ 16) Demasse (DSOFII at ¶ 18), Garcia (DSOFIV at ¶ 17) and Soza (DSOFVI at ¶ 16) admitted that they understood that ITT had the right to amend modify or cancel provisions in the handbook. Munguia admits that in May 1989 she was advised that ITT Cannon was reserving the right to "amend modify or cancel" the handbook "as well as any or all of the various policies, rules, or procedures and programs within it". (Munguia Affidavit at ¶ 7) It is therefore clear that Plaintiffs continued to work for Defendant after they had read or were aware of the statement that the provisions of the handbook could be changed.

The first issue is whether, as Defendant claims, the statements in both the handbooks "conspicuously tells ITT's employees that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason," Leikvold, 688 P.2d at 174. Neither of the handbooks i.e., the pre-1989 contract or the 1989 contract satisfy this requirement. Nowhere in the handbooks does the language appear that the employment relationship was "at will". See, Bedow v. Valley National Bank. Also, in Thomas v. Garrett Corp, relied upon by the Defendants, the employee had completed and signed a separate employment contract stating that his employment contact was terminable at will by either party. In particular immediately above the place for the applicant's signature there was a notice to "PLEASE READ CAREFULLY" and text which followed which made clear that the company could terminate him with or without cause and with or without notice at any time. Finally, in Chambers v. Valley National Bank, also relied upon by the Defendants, the handbooks contained distinct disclaimers prominently displayed in their introductory paragraphs which plainly communicated that the handbook was only a guideline and that they did "NOT CONSTITUTE THE TERMS OF A CONTRACT OF EMPLOYMENT." Further the handbooks stated that nothing in the handbook should be construed as a guarantee of continued employment, but employment was at will.

The handbook language in the instant case contains no such clear and conspicuous language. The statement that "ITT Cannon does not guarantee continued employment to employees and retains the right to terminate or layoff employees" (DSOF, exhibit F, p. 1) could be read to mean that termination or layoff will always be completed according to the terms provided in the handbook. It does not "conspicuously tell" the employee that the handbook does not create an employment contract as were the facts in Bedow, Garrett Corp., and Chambers. Nor does the statement "ITT Cannon reserves the right to amend, modify or cancel this handbook, as well as any or all of the various policies rules procedures and programs outlined within it" (DSOF exhibit F at p. 1) "conspicuously tell" the employee that the manual is not part of the employment contract.

Thus, as in Leikvold where entry of summary judgment was inappropriate "because a material question—whether the policy manual was incorporated into and became part of the terms of the employment contract —remain in dispute" summary judgment is inappropriate here. Id. at 174. As the Supreme Court of Arizona held in Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985) the general rule is that the determination whether in a particular case a promise should be implied in fact is a question of fact and where...