Eliel v. Sears, Roebuck and Co.

• Decision Date: 18 June 1986
• Docket Number: Docket No. 76014
• Citation: 150 Mich.App. 137,387 N.W.2d 842
• Parties: , 43 Fair Empl.Prac.Cas. (BNA) 899, 43 Empl. Prac. Dec. P 37,122, 1 Indiv.Empl.Rts.Cas. (BNA) 1842 Albert W. ELIEL, Sr., and Mrs. Albert W. Eliel, Sr., Plaintiffs-Appellants, v. SEARS, ROEBUCK AND COMPANY, a foreign corporation, Harry Birney, and Arthur Cone, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 842

387 N.W.2d 842

150 Mich.App. 137, 43 Fair Empl.Prac.Cas. (BNA) 899,

43 Empl. Prac. Dec. P 37,122,

1 Indiv.Empl.Rts.Cas. (BNA) 1842

Albert W. ELIEL, Sr., and Mrs. Albert W. Eliel, Sr., Plaintiffs-Appellants, v. SEARS, ROEBUCK AND COMPANY, a foreign corporation, Harry

Birney, and Arthur Cone, jointly and severally,

Defendants-Appellees.

Docket No. 76014.

Court of Appeals of Michigan.

Submitted Nov. 7, 1984.

Decided May 24, 1985.

Released for Publication June 18, 1986.

Levon G. King, P.C. by Lee C. Wenskay, Allen Park, for plaintiffs-appellants.

Dykema, Gossett, Spencer, Goodnow & Trigg by Charles C. DeWitt, Jr., Detroit, for defendants-appellees.

Before R.S. GRIBBS, P.J., and HOLBROOK and N.J. LAMBROS ^*, JJ.

PER CURIAM.

In this action, plaintiffs sought to recover damages for breach of an employment contract, age and sex discrimination, and loss of consortium. The circuit court granted defendants' motions for summary judgment pursuant to GCR 1963, 117.2(3), holding that there was no genuine dispute as to any material fact and that defendants were entitled to prevail as a matter of law. Plaintiffs appeal as of right.

In Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 598; 292 N.W.2d 880 (1980), the Court said:

"We hold that

"1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term--the term is 'indefinite,' and

"2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee's legitimate expectations grounded in an employer's policy statements."

Here, Albert W. Eliel (hereinafter referred to singularly as plaintiff) acknowledges having signed a written application for employment with defendant Sears, Roebuck and Company. The application contained the following provision:

"In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck, and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the President or Vice President of the Company, has any authority to enter into any agreement for employment for any specified period of time, or make any agreement contrary to the foregoing."

Plaintiff attempts to avoid the effect of this provision by contending that he signed the job application as a ruse in connection with his employment as an undercover agent for Pinkerton, Inc. Later, according to plaintiff, he was hired by defendant Sears by an oral agreement with a Sears store superintendent named Yates. However plaintiff's deposition testimony demonstrates that, whatever the circumstances under which he filled out the application, plaintiff knew that at the time he was hired by Sears his employment with Sears was governed by the terms of the application:

"Q. So Yates comes to you and says, 'How would you like to work for Sears,' right?

"A. Yes.

"Q. And this is while you are already working undercover at Sears.

"A. Being paid by Pinkerton and Sears at the same time.

"Q. Okay. So then Yates says, what, 'Fill out an application'?

"A. No. I had already filled out an application when I come in.

* * *

* * *

"Q. [By defense counsel, continuing.] Did you fill this out before you met Yates or after you met Yates?

"A. Before. That was the first day I walked into that store.

"Q. Then Yates told you to apply for a job, didn't he?

"A. He didn't say 'apply for a job.' He asked me if I would like to go to work for Sears. I said, 'Yes,' and he said, 'You're hired.' He said, 'You made out an application already,' blah, blah, blah, and so forth, and I said, 'Yes.' "

Plaintiff claims that subsequent statements by representatives of Sears established a contract that plaintiff could not be discharged except for just cause. Plaintiff does not contend that any such statements were made by the president or vice-president of Sears. The express terms of the application show that plaintiff's contract of employment with Sears was terminable at will. See, for example, Summers v. Sears, Roebuck & Co., 549 F.Supp. 1157, 1161 (E.D.Mich., 1982).

Michigan courts have held that essential elements of a claim that a plaintiff was discharged due to age discrimination include: (1) that the plaintiff had skills, experience, background or qualifications comparable to other employees who were not discharged, and (2) that age was a determining factor in the discharge. See, for example, Bouwman v. Chrysler Corp., 114 Mich. 670, 680, 319 N.W.2d 621 (1982). Plaintiff relies on his deposition testimony to show the existence of a genuine issue of material fact as to age discrimination. Plaintiff first points to testimony that a younger employee was not discharged even though plain...