Johnson v. McDonnell Douglas Corp.

Decision Date17 February 1988
Docket NumberNo. 69689,69689
Citation745 S.W.2d 661
Parties2 IER Cases 1799 Sherrill JOHNSON, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Respondent.
CourtMissouri Supreme Court

John D. Lynn, Michael J. Hoare, St. Louis, for plaintiff-appellant.

Thomas C. Walsh, Michael P. Burke, Elizabeth C. Carver, St. Louis, for defendant-respondent.

BILLINGS, Chief Justice.

Plaintiff Sherrill Johnson brought an action for wrongful discharge against defendant McDonnell Douglas Corporation in the Circuit Court of the City of St. Louis. She appeals from an order of that court granting summary judgment to the defendant. The Missouri Court of Appeals, Eastern District, reversed. Transfer was granted to decide whether there is a "handbook exception" to the employment at will doctrine in Missouri. This Court declines to adopt such an exception and recognizes the continued validity of employment at will. Affirmed.

The facts in this case were stipulated by the parties. Sherill Johnson began her employment as a clerk with McDonnell Douglas on April 14, 1970. On July 18, 1979, she received a written reprimand known as an Employee Incident Report. The report, among other things, cited the plaintiff for chronic tardiness and absenteeism in violation of Rule 13 of the company's employee handbook. This handbook, distributed to McDonnell employees including the plaintiff, listed 42 rules and regulations, the violation of which constituted cause for discipline or discharge.

On August 16, 1979, another report was issued to Johnson denoted as a Notice of Probation. It stated, in part, that any absences during a four-month probationary period would result in termination, although the company would consider "extenuating circumstances". Plaintiff refused to sign this notice. On December 5, 1979, plaintiff was absent from work to attend a deposition in a civil suit in which she was a party. She was discharged on December 6 for violating the terms of her probation and for violating Rule 13 of the company handbook proscribing repeated absences and tardiness.

Plaintiff filed a two-count complaint in July 1982 alleging that her discharge (1) breached an employment contract between herself and McDonnell Douglas, and (2) gave rise to a prima facie tort. The circuit court granted defendant's motion for summary judgment on both counts. Johnson only appeals on count I.

Summary judgment is inappropriate unless the prevailing party has shown by unassailable proof that he is entitled to judgment as a matter of law. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987); Rule 74.04(h). Where the trial court's decision was based on stipulated facts, the only question for this Court is whether the trial court drew the proper legal conclusions from the facts stipulated. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979).

"Under Missouri's employment at will doctrine an employer can discharge--for cause or without cause--an at will employee who does not otherwise fall within the protective reach of a contrary statutory provision and still not be subject to liability for wrongful discharge." Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985); Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 642, 70 L.Ed.2d 619 (1981). In Dake, this Court concluded that for an at will employee to state a claim for wrongful discharge, he must plead "the essential elements of a valid contract, and a discharge in violation thereof." Dake at 193 (quoting Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688 (1965)).

The essential elements of a valid contract include offer, acceptance, and bargained for consideration. Thacker v. Massman Construction Co., 247 S.W.2d 623, 629 (Mo.1952); National Refining Co. v. McDowell, 201 S.W.2d 342, 347 (Mo.1947); Restatement of Contracts 2d Section 17 (1981). None of these elements are present in this case. McDonnell's unilateral act of publishing its handbook was not a contractual offer to its employees. The handbook was merely an informational statement of McDonnell's self-imposed policies, providing a nonexclusive list of acts for which an employee might be subject to discipline. Several of the rules and regulations in the handbook were couched in general terms and were open to broad discretion and interpretation. The handbook also provided that the rules were subject to change at any time. Given the general language of the handbook and the employer's reservation of power to alter the handbook, a reasonable at will employee could not interpret its distribution as an offer to modify his at will status. See Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830, 837-839 (1986), app. denied, 514 Pa. 643, 523 A.2d 1132 (1987). An employer's offer to modify the at will status of his employees must be stated with greater definiteness and clarity than is found here. Cottonseed Delinting Corp. v. Roberts Brothers, Inc. 218 S.W.2d 592, 594 (Mo.1949) ; Osage Homestead, Inc. v. Sutphin, 657 S.W.2d 346, 352 (Mo.App.1983). Since McDonnell Douglas made no offer to its employees, no power of acceptance was created in the plaintiff.

This Court concludes that no contract was formed between the plaintiff and the defendant on the basis of the employee handbook. Absent a valid contract of employment between the parties, plaintiff as an at will employee could be discharged for cause or without cause. Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985). Plaintiff has no cause of action for wrongful discharge as a matter of law.

Plaintiff also contends that a valid contract, altering her at will status, was created by McDonnell's August 16 probation notice. Once again, however, the elements of contract formation are lacking. The probation notice was an unilateral expression of McDonnell's intention to discharge plaintiff if she failed to meet certain conditions. This Court concludes that the probation notice issued by McDonnell Douglas failed to create a valid contract of employment and plaintiff remained an at will employee.

Plaintiff asserts for the first time on appeal that she was wrongfully discharged in violation of public policy. The Court does not deem it necessary to engraft a so-called "public policy" exception onto the employment at will doctrine. In the cases cited by plaintiff the employee had the benefit of a constitutional provision, a statute, or a regulation based on a statute. See Smith v. Arthur C. Baue Funeral Home, 370 S.W.2d 249 (Mo.1963) (discharge of an employee for asserting the constitutional right to choose collective bargaining representatives); Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985) (employee discharged for refusing to violate federal Food and Drug Administration regulations); Beasley v. Affiliated Hospital Products, 713 S.W.2d 557 (Mo.App.1986) (employee discharged for refusing to violate false advertising and federal mail fraud statutes). No statute, regulation based on a statute, or constitutional provision is implicated here.

Judgment is affirmed.

DONNELLY, WELLIVER, ROBERTSON, RENDLEN and HIGGINS, JJ., concur.

BLACKMAR, J., dissents in separate opinion filed.

BLACKMAR, Judge, dissenting.

I agree that the broad holding of Dake v. Tuell, 687 S.W.2d 191 (Mo. banc 1985), precludes the recognition of a privilege to absent oneself from work in order to give testimony. It is of no significance that the point was raised for the first time on appeal. A party against whom summary judgment is rendered may advance for reversal any legal argument that is supported by the record. Summary judgment is a drastic remedy, and the presumption is in favor of trial in the usual manner. Sensing no sentiment on the part of the court to retreat from Dake v. Tuell, supra, however, I can see no basis for holding that an at will employee may challenge a discharge when absent to give testimony.

I do not agree with the Court's disposition of the contract issue. The principal opinion gets off on the wrong foot by characterizing the issue as whether a "handbook" exception to Dake v. Tuell should be recognized. This is not the question. The question is whether the respondent has shown by unassailable proof that the plaintiff-appellant has no contract rights. Dake v. Tuell states a rule that applies only in the absence of contract rights.

We may take judicial notice of the vast McDonnell-Douglas complex. There are many thousands of employees in Missouri. A substantial number are represented by various unions which have negotiated collective bargaining agreements with the employer. The remainder, including the plaintiff, are euphemistically known as "Free Enterprise Personnel." The question is whether employees in this latter classification have any contractual rights to continued employment.

The "handbook" consists of 27 pages. It is designed for distribution to all employees, whether or not they are represented by unions. At some places the handbook lists certain benefits such as vacations and holidays, and goes on to say that the benefits for unionized employees are defined in their collective bargaining agreements. The handbook clearly has a contractual aspect as to other employees.

The handbook begins by describing company policy. Among the listed policies are the following:

To provide security of employment, the means for security after retirement.

* * *

* * *

To provide experienced counseling which can provide confidential advice regarding work or personal problems.

Under JOB ADVANCEMENT, the handbook provides:

Opportunities for promotion at McDonnell Douglas are excellent, because we fill as many jobs as possible from our ranks....

Pay reviews for free enterprise personnel (salaried new-supervisory, supervisory, and hourly personnel not affiliated with collective bargaining units) are held periodically....

The handbook then deals...

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