Ellison v. DeKalb County, A98A1786.

• Decision Date: 02 February 1999
• Docket Number: No. A98A1786.,A98A1786.
• Citation: 511 S.E.2d 284,236 Ga. App. 185
• Parties: ELLISON v. DeKALB COUNTY.
• Court: Georgia Court of Appeals

511 S.E.2d 284

236 Ga. App. 185

ELLISON v. DeKALB COUNTY.

No. A98A1786.

Court of Appeals of Georgia.

February 2, 1999.

Certiorari Denied May 14, 1999.

Ralph S. Goldberg, Decatur, for appellant.

Jonathan A. Weintraub, Joan F. Roach, Howard W. Indermark, Decatur, for appellee.

RUFFIN, Judge.

Sergeant Robert K. Ellison of the DeKalb County Police Department sued DeKalb County, claiming that the county improperly denied him the opportunity to be considered for promotion to lieutenant. The trial court granted summary judgment in favor of the county, and Ellison appeals. For reasons discussed below, we affirm.

In 1987, DeKalb County entered into a court-approved settlement agreement in two separate lawsuits filed by associations of law enforcement officers. The settlement agreement set specific rules governing the promotional process within the DeKalb County Police Department. In July 1996, the settlement agreement was modified to require that, in order to be eligible for testing and promotion to the position of lieutenant, an applicant must have served at least three years in the rank of sergeant. Prior to this time, only two years experience at the sergeant level had been required. However, when the settlement agreement was modified, the county did not amend the Department of Public Safety Employee Manual to reflect the change in the promotion process. The employee manual continued to state as follows: "To be eligible to take the promotional exam for Police Lieutenant, the candidate must have attained the rank of Police Sergeant and served in that capacity for at least two years (24 months). The position of Police Lieutenant requires the candidate to complete a series of testing procedures, and these procedures along with the selection process will be located in the Settlement Agreement."

Ellison was promoted to sergeant on April 30, 1994. In March 1997, the county solicited applications for promotion to the position of lieutenant. The notice of the promotion process, dated March 3, 1997, stated that the qualifications for the position included three years of experience at the level of police sergeant and that applicants must meet the minimum requirements as of March 14, 1997. On March 3, 1997, Ellison submitted an application for promotion to lieutenant, although he testified that he did not recall whether he had seen the posted notice. On March 24, 1997, the county recruiting manager sent Ellison a letter indicating that he met the minimum requirements for the position of lieutenant. Ellison subsequently participated in the evaluation process, which included a written test, an oral interview, and a role playing exercise. Ellison contends that he ranked eleventh out of seventy applicants based on these tests.

On May 29, 1997, the county merit system coordinator sent Ellison a letter informing him that, upon further review, it had been determined that he did not satisfy the minimum eligibility criteria for the position of lieutenant. Specifically, Ellison did not have the required three years of experience at the level of police sergeant as of the March 14, 1997 cut-off date.

Ellison testified that he knew the promotional process was governed by the settlement agreement, and that he had heard that the agreement had been modified, but that he was not sure if he knew about the modification before he submitted his application for promotion. He testified that it was common knowledge in the police department that promotions were governed by the settlement agreement.

1. Ellison contends that the employee manual amounted to a binding contract and gave him the right to be considered for promotion after only two years experience as a sergeant. This contention is without merit.

An employee manual "setting forth certain policies and information concerning employment [is not] necessarily [viewed] as a contract." (Punctuation omitted.) Burgess v. Decatur Fed. Sav. &c. Assn., 178 Ga.App. 787, 788, 345 S.E.2d 45 (1986). However, we have held that provisions in an employee manual relating to additional compensation plans, of which an employee is aware, may amount to a binding contract between the parties. See Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga.App. 595, 596-597(2), 417 S.E.2d 163 (1992) (disability benefits); Shannon v. Huntley's Jiffy Stores, 174 Ga.App. 125, 126(2), 329 S.E.2d 208 (1985) (vacation pay); Fletcher v. Amax, Inc., 160 Ga.App. 692, 695, 288 S.E.2d 49 (1981) (severance pay). The reasoning in these cases is that the additional compensation plan set forth in the manual represents an offer by the employer which the employee implicitly accepts by remaining in employment. Id. However, not all provisions in employee manuals are to be considered binding agreements. For example, we have held that "personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable." Jones v. Chatham County, 223 Ga.App. 455, 459(5), 477 S.E.2d 889 (1996). Moreover, Jones expressed agreement with the broad proposition that "a violation of procedures in a personnel manual is not actionable as a breach of...