Loftis v. G.T. Products, Inc., Docket Nos. 92784

• Decision Date: 31 May 1988
• Docket Number: 93353,Docket Nos. 92784
• Citation: 167 Mich.App. 787,423 N.W.2d 358
• Parties: Richard C. LOFTIS, Plaintiff-Appellee, Cross-Appellant, v. G.T. PRODUCTS, INC., Defendant-Appellant, Cross-Appellee. 167 Mich.App. 787, 423 N.W.2d 358, 3 Indiv.Empl.Rts.Cas. (BNA) 641
• Court: Court of Appeal of Michigan — District of US

Page 358

423 N.W.2d 358

Richard C. LOFTIS, Plaintiff-Appellee, Cross-Appellant, v. G.T. PRODUCTS, INC., Defendant-Appellant, Cross-Appellee.

Docket Nos. 92784, 93353.

167 Mich.App. 787, 423 N.W.2d 358,

3 Indiv.Empl.Rts.Cas. (BNA) 641

Court of Appeals of Michigan.

Submitted Oct. 20, 1987.

Decided April 18, 1988.

Released for Publication May 31, 1988.

[167 MICHAPP 788] Philip E. Hodgman, East Lansing, for plaintiff-appellee, cross-appellant.

Miller, Johnson, Snell & Cummiskey by Jon G. March, William H. Fallon and Elizabeth M. McIntyre, Grand Rapids, for defendant-appellant, cross-appellee.

Before KELLY, P.J., and DOCTOROFF and CORDEN, ^* JJ.

[167 MICHAPP 789] DOCTOROFF, Judge.

Plaintiff filed suit against defendant, his former employer. He now appeals by leave granted from the trial court's order granting defendant's motion for summary disposition on count I of his complaint, alleging wrongful discharge, and count III, alleging violation of the Employee Right to Know Act, M.C.L. Sec. 423.501 et seq.; M.S.A. Sec. 17.62(1) et seq., accompanied by an invasion of privacy claim. MCR 2.116(C)(10). Consolidated with plaintiff's appeal is defendant's appeal by leave granted from the trial court's order denying its motion for summary disposition on count II of plaintiff's complaint, alleging negligent evaluation. MCR 2.116(C)(8). We reverse in part and affirm in part.

On March 15, 1982, defendant hired plaintiff to work as a machine operator. On April 12, 1983, plaintiff was fired. The immediate cause of plaintiff's firing was his failure to appear for at least two consecutive weekend overtime shifts. Missing overtime is a violation of the rules of good conduct established in defendant's employee information handbook, Sec. 19.

Plaintiff had also been cited several times for poor attitude and work problems. Between June and September, 1982, plaintiff was written up seven times for low productivity, wasting time, quitting early and poor attitude. Plaintiff met with his supervisor, the plant superintendent, and the personnel director, as required in the employee information handbook, Sec. 18. There was no disciplinary action taken against plaintiff at that time.

From September, 1982, to February, 1983, plaintiff was laid off from work. Plaintiff contends that his productivity improved following his recall in February 1983, but the record does not contain any performance evaluations reflecting this improvement. Further, plaintiff admitted that he [167 MICHAPP 790] missed scheduled Saturday overtime, without excuse, on two occasions. Defendant alleges plaintiff missed three overtime sessions.

In April, 1983, A.H. Turner, president of defendant corporation, decided to discharge plaintiff. He referred the matter to a committee known as the Employee Committee, which was comprised of plaintiff's coworkers. The purpose of this was to ascertain the committee members' opinions regarding whether plaintiff should be given another chance. The Employee Committee reviewed plaintiff's personnel file, which included documentary evidence of his absences and write-ups for the period of June to September, 1982. It unanimously recommended that plaintiff be fired. The president informed plaintiff that he was being fired for missing the scheduled Saturday overtime.

I

Plaintiff first claims that the trial court erred by granting summary disposition for defendant on count I, plaintiff's wrongful discharge claim. MCR 2.116(C)(10). We disagree.

Summary disposition pursuant to MCR 2.116(C)(10) is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. The motion tests the factual support of the claim. Maccabees Mutual Life Ins. Co. v. Dep't of Treasury, 122 Mich.App. 660, 663, 332 N.W.2d 561 (1983), lv. den. 417 Mich. 1100.15 (1983). The court must consider the pleadings, affidavits, and other available evidence, give the benefit of any reasonable doubt to the party opposing the motion, and draw inferences in favor of that party. Vitale v. Reddy, 150 Mich.App. 492, 498, 389 N.W.2d 456 (1986). Before granting summary[167 MICHAPP 791] disposition, the court must be satisfied that no factual development could possibly justify recovery by the nonmoving party. Id.

In Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), the defendant company had promulgated personnel policies and disciplinary procedures in the Blue Cross "Supervisory Manual" and "Guidelines" pamphlet. The manual included provisons for warnings, notices and hearing procedures in the event of disciplinary actions. The manual also stated that termination would only occur for just cause. The plaintiff was terminated after the decision was reviewed by the personnel department, the company president and the chairman of the board of trustees, but he was not given the benefit of all the procedures in the Supervisory Manual. The plaintiff argued that Blue Cross and Blue Shield was obliged to follow its written and oral promises. The Court held that, since Blue Cross and Blue Shield had willingly published its personnel policies and practices, a jury could find that contractual obligations existed between the employer and the employee, such that the employer could only terminate for just cause. 408 Mich. at 617-619, 292 N.W.2d 880. Accordingly, judgment for the defendant was reversed.

Toussaint demonstrates that an employee handbook can generate contractual obligations between the employee and the employer. Accordingly, defendant in the present case had an obligation to plaintiff to follow the personnel policies and practices set forth in its G.T. Products employee handbook. According to the handbook's provisions, defendant could not fire plaintiff at will.

Section 19 of the handbook is entitled, "Rules of Good Conduct." It states:

[167 MICHAPP 792] "The following rules of good conduct are established in the best interest of all concerned. Willful infraction of these rules will be cause for immediate discharge or other disciplinary action, depending upon the seriousness of the offense. Examples of misconduct, which are not all inclusive, are listed below:

* * *

"(23) Failure or refusal to work overtime as instructed by supervision."

Examining the language of Sec. 19 leads to the unalterable conclusion that defendant's employees could be disciplined for refusing to work overtime and could possibly be discharged for refusing to do so. Without involving the court in an examination and technical evaluation of the legal niceties of Sec. 19, we believe that an employee reading said section could only conclude that refusing overtime could result in termination.

Plaintiff argues that Sec. 18 of the employee handbook lists a four-step procedure for disciplinary action and that defendant failed to follow the last two steps. He asserts that a genuine issue of fact was presented concerning the section under which he was terminated. Section 18 states that the procedure will be used for infractions such as improper work procedures, poor attendance, tardiness and unacceptable work habits. By its own terms, the procedures set forth in Sec. 18 are not involved when disciplinary action is required for a variety of specified acts, such as fighting, theft, use of alcohol or drugs, or other "serious misconduct." Section 19 then proceeds to list twenty-five broad-ranging examples of misconduct for which an employee can be immediately discharged. We note that although the firing was presumably done pursuant to Sec. 19, the defendant's president gave plaintiff's personnel file to the employee committee,[167 MICHAPP 793] a procedure called for only under Sec. 18. This procedure was not completed through all four steps. Nonetheless, the effect of reading Sec. 18 and Sec. 19 together gives the company total discretion to decide when it will use the graduated Sec. 18 disciplinary procedure and when it will fire an employee on the spot pursuant to Sec. 19. Defendant granted plaintiff an opportunity to which he was not entitled by providing for advisory review by the employee committee. Plaintiff is in the position of one who, having claimed a benefit pursuant to a program such as established in the employee handbook, must take the bitter with the sweet. If there are conditions attached to that employment contract, his failure to abide by them may cost him the benefits that would otherwise accrue. See Riethmiller v. Blue Cross & Blue Shield of Michigan, 151 Mich.App. 188, 198, 390 N.W.2d 227 (1986). When reading Sec. 18 and Sec. 19, we are left with the conclusion that Sec. 19 clearly grants to the defendant the right to fire the plaintiff and that the plaintiff, on reading Sec. 19, must know that this provision gives defendant that right. The clear meaning of Sec. 19 is that termination can result from failure to work overtime.

Plaintiff relies on Damrow v. Thumb Cooperative Terminal, Inc, 126 Mich.App. 354, 337 N.W.2d 338 (1983), which is distinguishable from the present case. In Damrow, the plaintiff was hired as a bookkeeper and later became office manager. The defendant company issued a policy manual that stated that no employee would be discharged without prior final warning. The manual also outlined a graduated disciplinary procedure for poor work performance. There were provisions for immediate discharge in the event of gross misconduct. The plaintiff in Damrow was fired by her superior after receiving two verbal warnings. This Court concurred[167 MICHAPP 794] in the trial court's implicit finding that plaintiff was not discharged for gross misconduct. Therefore, in order to fire the plaintiff, the defendant had to comply with the graduated disciplinary procedures outlined under the section dealing with performance. 126 Mich.App. 364, 337 N.W.2d 338. The Court found that defendant did not comply.

That case is distinguishable from the present case, in that...