Jones v. Unisys Corp.

• Decision Date: 26 April 1995
• Docket Number: Nos. 93-4173,93-4177 and 93-4214,s. 93-4173
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1065, 131 Lab.Cas. P 58,054, 10 IER Cases 1098 Rolland JONES, William Eichler, Kathy Smiley, Heber R. Cantrell, John H. Barton, James A. Cole, Thelma Gordon, Linda Duncan, David Lowther, Helen McAleese, David W. Davis, Leroy Sturgeon, Scott Miller, Roger B. Englert, Jack B. Hall, William W. Hempel, Dennis Allen, Albert D. Vincent, Joseph Turner, Dorothy Lee, Plaintiffs-Appellants/Cross-Appellees, v. UNISYS CORPORATION, A Delaware corporation, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 624

54 F.3d 624

67 Fair Empl.Prac.Cas. (BNA) 1065, 131

Lab.Cas. P 58,054,

10 IER Cases 1098

Rolland JONES, William Eichler, Kathy Smiley, Heber R.

Cantrell, John H. Barton, James A. Cole, Thelma Gordon,

Linda Duncan, David Lowther, Helen McAleese, David W. Davis,

Leroy Sturgeon, Scott Miller, Roger B. Englert, Jack B.

Hall, William W. Hempel, Dennis Allen, Albert D. Vincent, Joseph Turner, Dorothy Lee, Plaintiffs-Appellants/Cross-Appellees, v. UNISYS CORPORATION, A Delaware corporation,

Defendant-Appellee/Cross-Appellant.

Nos. 93-4173, 93-4177 and 93-4214.

United States Court of Appeals,

Tenth Circuit.

April 26, 1995.

Troy K. Fitzgerald (Allen K. Young of Young & Kester, Springville, UT, and Jeril B. Wilson, Provo, UT, on the briefs), for plaintiffs-appellants/cross-appellees.

James W. Stewart (Michael Patrick O'Brien and D. James Morgan, also of Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, with him, on the briefs), for defendant-appellee/cross-appellant.

Before SEYMOUR, Chief Judge, LOGAN and EBEL, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs ¹ alleged that their employer, defendant Unisys Corporation, Inc. (Unisys) improperly discharged them in connection with a reduction in force, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. Plaintiffs also asserted a state law claim that Unisys breached their employment contract when it departed from a long-standing seniority policy in implementing the force reduction. The district court granted Unisys' motion for summary judgment on both claims. On appeal plaintiffs argue that the district court erred (1) in determining they produced insufficient admissible evidence upon which a trier of fact could find rebuttal of the Utah state law presumption of employment at will and creation of an implied contract, and (2) in concluding that age was not a determinative factor in Unisys' decision to discharge plaintiffs. Defendant Unisys cross-appeals, asserting that the district court abused its discretion in awarding Unisys, the prevailing party, only a small portion of its costs.

We review a grant of summary judgment de novo, applying the same standard as the district court. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 527 (10th Cir.1994). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We view the evidence and draw any inferences in the light most favorable to the party opposing summary judgment. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1117 (10th Cir.1991). The opposing party, however, must identify sufficient evidence to require submission of the case to a jury. MacDonald, 941 F.2d at 1121-22. We affirm the district court's decision to grant summary judgment if the record contains any basis to do so. Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir.1993).

I

Unisys was formed by a merger of the Burroughs and Sperry Corporations in 1986. It is a computer and computer products company which maintained commercial and defense divisions in Salt Lake City, Utah. Because of serious financial losses in the late 1980s and early 1990s it implemented drastic cost cutting measures including layoffs at its various facilities. ² Unisys closed the Salt Lake distribution center (a part of its commercial division) in late 1991 and shifted its remaining work to San Jose, California.

Plaintiffs asserted that in laying them off Unisys breached an implied-in-fact employment contract term that provided for termination only for cause. They also allege that employees with more seniority had the right to bump less senior employees to survive a layoff or avoid a transfer. The district court found that plaintiffs failed to establish any issues of material facts remained on the employment contract claim and that plaintiffs had not rebutted the presumption under Utah law of employment at will.

In Utah "any employment contract which has no specified term of duration is an at-will relationship." Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1044 (Utah 1989). At-will employment may be terminated at any time by the employer or the employee. Brehany v. Nordstrom, Inc., 812 P.2d 49, 53 (Utah 1991). This presumption of at-will employment may be rebutted by an employee showing "that the parties expressly or impliedly intended a specified term or agreed to terminate the relationship for cause alone." Berube, 771 P.2d at 1044. The employee must establish the existence of an implied-in-fact contract provision. Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991). The court looks for objective manifestations of the parties' intent when evaluating the factual issue whether they agreed to modify what would otherwise be an at-will relationship. Id.

Plaintiffs produced evidence that Unisys and its predecessors, Sperry and Burroughs, considered seniority in reduction in force decisions from the 1950s until sometime in the late 1980s. The seniority system allowed employees with more service to bump employees with less service. Plaintiffs produced evidence that when they were originally hired employee handbooks and other documents stated that seniority would be followed in layoff decisions. They pointed to numerous statements in employee handbooks that seniority was the determining factor under such circumstances and noted that during earlier force reductions Unisys followed a seniority policy.

Apparently sometime in 1988 Unisys decided to replace seniority-based layoffs with a skills-based system, ³ in which retention decisions accommodated the following factors in descending priority: (1) demonstrated performance, (2) skills mix, (3) length of experience, and (4) length of service as a tiebreaker. The skills-based system also eliminated bumping. Plaintiffs contend that this changed their employment contract without notice, ⁴ a claim that is relevant only if there was a contract which included the seniority policy permitting more senior employees to avoid layoffs.

The district court found that plaintiffs produced no evidence on which a jury could find the existence of an express or implied-in-fact employment contract and that their employment was terminable at will. In doing so the court relied in part on a statement in the Unisys Human Resources Policy and Procedural Manual that "[t]he policies and procedures in this manual supersede any and all prior policies and procedures of the Company, oral or written. They are subject to change, in whole or in part, at any time by Unisys and at its sole discretion." App. of Appellants & Cross-Appellees (hereafter App.) 13. The record also reveals numerous other at-will statements and contract disclaimers in job offer letters, pamphlets, policy statements posted on bulletin boards, application forms, and recent employee handbooks, as well as statements in handbooks and policy manuals that Unisys reserved the right to change policies at its discretion. See, e.g., III Supp.App. of Appellee (hereafter Supp.App.) 100770 (1987 pamphlet), 100789 (1987 employment application form), 100803 (1984 Sperry Business Ethics at DSD pamphlet), 100813 (1984 Sperry Business Ethics Guideline), 100814 (1985 Sperry Termination of Employment Report), 101025 (1985 Sperry Termination Guideline), 101037 (1986 Operating Regulations Salt Lake City), 101039 (1987 Unisys and You pamphlet), 101067 (1988 Operating Regulations Salt Lake City), 101071 (1989 Reduction in Force Procedure), 101075 (1989 Discipline/Discharge Procedure), 101195 (1992 Career Opportunity Program), 101200 (1990 Authorization to Return to Work Form).

The district court determined that because Unisys retained the discretion to change its policies at any time the seniority-based layoff policy could not be a contract term. Thus, Unisys' prior course of conduct created no binding obligation to continue that practice in the future. The district court determined that in light of the disclaimer an employee could not reasonably rely on the existence of an implied contract. We agree.

We believe the case is controlled by the decision in Johnson v. Morton Thiokol. There the Utah Supreme Court highlighted language in an employee handbook disclaiming any contractual liability and stating Thiokol's intent to maintain an at-will relationship with its employees:

The policies and procedures expressed in this book, as well as those in any other personnel materials which may be issued from time to time, do not create a binding contract or any other obligation or liability on the company. Your employment is for no set period and may be terminated without notice and at will at any time by you or the company. The company reserves the right to change these policies and procedures at any time for any reason.

Johnson, 818 P.2d at 1003. The Johnson court determined that based on this language an employee could only reasonably conclude that the employer intended to maintain the right to discharge an employee for any reason. ⁵ Thus, under Utah law, despite the historical policy and practice of following seniority in layoffs, a jury could not find that a Unisys employee would have reasonably believed that their employment was other than at will. Plaintiffs failed to establish any material issues of fact regarding the existence of an implied employment contract with Unisys. Summary judgment for Unisys was proper.

II

We turn now to plaintiffs' assertion that the district court erred in granting Unisys summary judgment on the ADEA claim. An ADEA plaintiff must establish that age was "a determining factor" in the employer's challenged decision. EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir.1988). A plaintiff may attempt to meet that burden "by presenting direct or circumstantial evidence that age was a determining factor...