Elliott v. Board of Trustees of Montgomery County Community College

• Citation: 655 A.2d 46,104 Md.App. 93
• Decision Date: 01 September 1994
• Docket Number: No. 1002,1002
• Parties: , 98 Ed. Law Rep. 227, 10 IER Cases 762 James ELLIOTT v. BOARD OF TRUSTEES OF MONTGOMERY COUNTY COMMUNITY COLLEGE. ,
• Court: Court of Special Appeals of Maryland

Page 93

104 Md.App. 93

655 A.2d 46, 98 Ed. Law Rep. 227, 10

IER Cases 762

James ELLIOTT v. BOARD OF TRUSTEES OF MONTGOMERY COUNTY COMMUNITY COLLEGE.

No. 1002, Sept. Term, 1994.

Court of Special Appeals of Maryland.

March 6, 1995.

John J. Beins (Protas & Spivok, Chartered, on the brief), Bethesda, for appellant.

Darrell R. VanDeusen (Venable, Baetjer and Howard, Baltimore, Joyce R. Stern, County Atty., John S. Joseph, Asst. County Atty. and Joan I. Gordon, General Counsel-Montgomery College of Rockville, MD, on the brief), for appellee.

Argued before MOYLAN, BISHOP and CATHELL, JJ.

CATHELL, Judge.

Appellant, James Elliott, appeals from the judgment of the Circuit Court for Montgomery County (Cave, J., presiding), granting appellee's, the Board of Trustees of Montgomery County Community College's, Motion for Summary Judgment in this breach of employment contract case. Appellant presents the following questions on appeal:

A. Did Montgomery College's Policies and Procedures Manual create an enforceable employment contract between Montgomery College and its employee, James Elliott[?]

B. Did Montgomery College clearly and conspicuously disclaim any intent to create an enforceable contract by virtue of the Montgomery College Policies and Procedures Manual[?]

C. Did the trial Court err in finding, as a matter of law, that Montgomery College did not breach the contract created by its Employee Handbook[?]

D. Was the Trial Court precluded by the Maryland Administrative Procedures Act from allowing a jury to determine whether Mr. Elliott was terminated for cause[?]

Appellant was hired by Montgomery County Community College (the College) in 1979. He was promoted to a supervisory position in 1988. In 1992, a female employee charged appellant with sexual harassment. As a result, appellant was disciplined, an action that included a demotion and a transfer to the College's Germantown campus. A "last chance letter" was issued to appellant, which provided, in pertinent part:

It is very important that you understand that these actions are taken in the context of giving you a last chance to remain employed at Montgomery College. Any violation of ... College ... policy ... and procedures will lead to immediate disciplinary action, up to and including dismissal.

In February of 1993, appellant was charged with violating College policy by leaving work early without permission. The College's "Policies/Procedures Manual" (P & P Manual) provides that employees are "[t]o report to work on time and stay until the end of the work day...." It is undisputed that appellant left his shift up to one hour early on four separate occasions. Appellant claimed that his immediate supervisor, John Day, gave him permission to leave work whenever he had completed his duties, even if this occurred before the end of his shift. Day claimed that he only gave appellant permission to do this during the "winter term" and the four occasions on which appellant was charged with leaving early took place after the "winter term" was over.

Day's supervisor filed a recommendation with the Director of Human Resources that appellant's employment be terminated. The Director approved the recommendation and notified appellant that he was terminated, effective April 2, 1993. Appellant filed a Notice of Appeal on March 23, 1993. An appeal hearing was thereafter held before Provost O. Robert Brown on the issue of whether cause existed to discharge appellant. Dr. Brown recommended that the dismissal be upheld and that recommendation was upheld by the Chief Administrative Officer of the College.

Appellant's supervisor gave him a copy of the P & P Manual to read when he first started working at the College in 1979. Appellant was issued his own P & P Manual when he was promoted to his supervisory position in 1988. That same year, the College issued a new P & P Manual. It is not clear when appellant's promotion occurred in relation to the distribution of the new manual. A two-page memorandum accompanied the new manual that provided, in part:

The new manual, while similar in content to the old one, has been restructured to make it easier to use and update as follows....

It then listed six numbered paragraphs concerning the use of the manual, a paragraph concerning computer access, and then notes that:

The primary purpose of changing the format of the manual is to make it easier for you to use it as a reference document.

Conspicuously absent from the memorandum is any acknowledgement that the manual modification also changed the inherent nature of the employment relationship. No attempt was made to indicate that the new manual provided the following disclaimer in its introduction: "[The manual] does not contain all terms and conditions of employment nor constitute an express or implied employment contract."

After exhausting his remedies at the College, appellant filed this suit in the circuit court, alleging breach of an employment contract. Appellee filed a Motion for Summary Judgment, including with the motion an affidavit that provided that the handbook containing the disclaimer had been distributed to all employees eligible to receive it in 1988 and, thereafter, to each employee that had since become eligible to receive it. In support of his opposition to appellee's Motion for Summary Judgment, appellant provided an affidavit in which he stated that he had never seen the disclaimer. At the hearing held on the motion, appellant argued that the disclaimer might not have been distributed to all the College's employees that were entitled to receive the P & P Manual. The hearing judge reserved ruling on the motion to allow appellant more time for discovery. After appellant failed to provide any evidence that the manual containing the disclaimer had not been distributed as appellee had claimed, the hearing judge granted appellee's Motion for Summary Judgment.

A. & B.

In Castiglione v. Johns Hopkins Hosp., 69 Md.App. 325, 338, 517 A.2d 786 (1986), we stated:

In Maryland, an employment contract of indefinite duration is considered employment "at will" which, with few exceptions, may be terminated without cause by either party at any time. Page v. Carolina Coach Co., 667 F.2d 1156 (4th Cir.1982); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). In two limited situations an "at will" employee may not be discharged without cause. First, the rule that employment contracts of indefinite duration can be legally terminated at any time is inapplicable where the employee is discharged for exercising constitutionally protected rights.... The second exception [was] adopted by this court in Staggs v. Blue Cross of Maryland, Inc., 61 Md.App. 381, 486 A.2d 798 (1985), cert. denied, 303 Md. 295, 493 A.2d 349 (1985).... [Citations omitted.]

The exception to the employment at will doctrine that we adopted in Staggs v. Blue Cross of Maryland, 61 Md.App. 381, 486 A.2d 798, cert. denied, 303 Md. 295, 493 A.2d 349 (1985), was that an employee handbook may, in some circumstances, become an unilateral contract. In Staggs, we stated:

The question is whether the contracts in dispute here, which are otherwise of indefinite duration, have been so modified by the personnel policy statement as to remove them from the full strictures of the common law rule....

There has been a great deal of litigation in recent years, throughout the country, over the effect of personnel handbooks and other types of policy statements issued by employers on "at will" employment agreements. Although there has yet to develop any uniform rule and the decisions vary somewhat, depending on the type of provision sought to be enforced and the theory pled by the employee, most of the more recent decisions seem to reflect the view that such unilateral pronouncements by an employer may create legally enforceable expectations on the part of its employees.

Perhaps the best exposition of this view is found in Toussaint v. Blue Cross & Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880, 892 (1980). The Court there began by confirming the general rule that indefinite hirings are terminable at the will of either party. It noted, however, that,

"While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly."

Id., 292 N.W.2d at 892....

From this, the Court concluded that where the employer "had established a company policy to discharge for just cause only, pursuant to certain procedures, had made that policy known to Toussaint, and thereby had committed itself to discharge him only for just cause in compliance with the procedures," a jury could find that "[a]lthough Toussaint's employment was for an indefinite term ... the relationship was not terminable at the will of Blue Cross."

Id., 61 Md.App. at 388-90, 486 A.2d 798 (some citations omitted). We adopted the Michigan court's Toussaint decision as the law in Maryland, finding support for doing so in Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221 (1976). There, the Court of Appeals stated that an employer's "policy directive with respect to severance pay constituted an offer of a unilateral contract of which the employees were aware and, by continuing to work for Brunswick, accepted." Id. at 475, 356 A.2d 221. The Court added that "there is abundant support for the proposition that employer policy directives regarding aspects of the employment relation become contractual obligations when, with knowledge of their existence, employees start or continue to work for the employer." Id. at 476, 356 A.2d 221. See also Hrehorovich v. Harbor Hosp. Center, Inc., 93 Md.App. 772, 793, 614 A.2d 1021 (1992), cert....