McCrory v. Wal-Mart Stores, Inc., 98-CA-00652-COA.

• Decision Date: 18 May 1999
• Docket Number: No. 98-CA-00652-COA.,98-CA-00652-COA.
• Parties: Mark McCRORY and David Thompson, Appellants, v. WAL MART STORES, INC., Appellee.
• Court: Mississippi Court of Appeals

755 So.2d 1141

Mark McCRORY and David Thompson, Appellants, v. WAL MART STORES, INC., Appellee.

No. 98-CA-00652-COA.

Court of Appeals of Mississippi.

May 18, 1999.

Rehearing Denied September 21, 1999.

Certiorari Denied November 18, 1999.

Jim Waide, Martin D. Crump, Hamilton, Mary Terrell Monroe Vardaman, Brandon, Attorneys for Appellants.

William O. Luckett, Jr., Clarksdale, Attorney for Appellee.

BEFORE McMILLIN, C.J., DIAZ, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. The case before the Court today requires us to consider, in a slightly different context, the impact of the Mississippi Supreme Court's decision in Bobbitt v. Orchard, Ltd. on an employee's right to contest his termination from employment. Bobbitt v. Orchard, Ltd., 603 So.2d 356 (Miss.1992). As in Bobbitt, the issue before us involves a perceived conflict between the terms of an employees' handbook issued by the employer and Mississippi's long-standing doctrine of employment at will. The trial court granted summary judgment in favor of Wal-Mart and the affected former employees, Mark McCrory and David Thompson, have appealed. We affirm the judgment of the trial court.

I.

Facts

¶ 2. Mark McCrory and David Thompson were terminated from employment at Wal-Mart. Though the facts are somewhat sketchy as to the basis for termination, it appears that the decision to discharge these employees arose out of an incident involving their treatment of customers that they suspected were potential shoplifters.

¶ 3. Both employees filed suit for wrongful termination and the cases were consolidated for trial. Neither employee had a contract of employment. However, both rely upon certain provisions contained in Wal-Mart's employees' handbook that is distributed to every new employee. More particularly, these employees claim that the portion of the handbook entitled Coaching for Improvement (copied in full as Appendix A to this opinion) created a progressive disciplinary system that Wal-Mart was obligated to follow in dealing with employee misconduct and that Wal-Mart ignored the system when it summarily terminated them.

¶ 4. Wal-Mart, in its summary judgment motion, advanced several arguments. First, it suggested that the terms of the handbook regarding employees' conduct on the job did not create the same sort of progressive disciplinary system found in Bobbitt v. Orchard and, thus, these employees had no right to insist that their alleged offenses be treated less drastically than termination. Secondly, Wal-Mart points out that the handbook contained a disclaimer required to be signed by all new employees stating that the handbook "is intended solely as a general information guide to let associates know about the current policies and programs Wal-Mart has in place. The policies and benefits presented in this handbook are for your information and do not constitute terms and conditions of employment. This handbook is not a contract."

II.

Discussion

¶ 5. This case brings into focus the evident tension that exists between the common law doctrine known as "employment at will" and the apparent institutional view of the Mississippi Supreme Court that, in application, the doctrine of employment at will creates harsh results for terminated employees. See e.g., Perry v. Sears, Roebuck & Co. 508 So.2d 1086, 1087 (Miss. 1987); Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 875 (Miss.1981).

¶ 6. The employment at will doctrine is, in itself, simple to state. In the absence of a formal contract of employment containing a fixed term of employment or creating some contractual expectation of tenure during satisfactory performance, an employee works at the will of his employer and the contract of employment may be terminated at any time by either the employer or the employee without the need for explanation. In an attempt to emphasize the extent of the employer's ability to end an employment relationship with an at will employee, the courts have said (perhaps unfortunately) that an employee may be terminated for "a good reason, a wrong reason, or no reason." Kelly, 397 So.2d at 875. The unfortunate aspect of this pronouncement is that, in a world that operates on cause and effect, it seems impossible for an employee to be terminated for "no reason." Nevertheless, the phrase may be useful in its ability to convey, with something of a literary flair, the broad freedom of the employer to end an employer-employee relationship at any time. Perhaps the best interpretation of the phrase "no reason" is that an employer terminating an at-will employee, though he certainly has some reason for doing so, may not be compelled to offer an explanation for the decision even if one be demanded. Though that proposition may seem harsh at first glance, it must be remembered that the at will employee enjoys the corresponding right to cease his labor on a moment's notice once a better situation appears without any fear of legal consequence no matter what the adverse impact that action might have on the employer.

¶ 7. The Mississippi Supreme Court, though openly critical of the doctrine of at will employment, has been reluctant to end the concept. Instead, in certain instances, it has engrafted exceptions onto the doctrine to cover special situations. Thus, in the case of McArn v. Allied Bruce-Terminix Company, the court held that an at will employee who is terminated for refusing to obey a directive to do an illegal act, or who is terminated for exposing illegal activity at the workplace, may, on grounds of public policy, bring a wrongful termination action as a sort of private reward system for resisting unlawful activity that might otherwise go undiscovered. McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss.1993).

¶ 8. Besides the public policy considerations of McArn, the Mississippi Supreme Court has recognized one other means of taking an employment relationship out of the employment at will status. This exception is the one that finds application in the Bobbitt decision. In Bobbitt, the supreme court said that an employer, by promulgating an employees' handbook, may create contractual obligations on its part that override the at will doctrine. However, the Bobbitt decision presents some measure of difficulty in determining exactly what rights it created for an employee.

¶ 9. The appellants would apparently have us hold that any printed manual defining duties and obligations of the employee creates, by implication, a binding agreement that an employee will not be terminated unless a violation of some enumerated duty or obligation is demonstrated. We do not think that Bobbitt will support so broad a reading of the effect of an employee's manual on the terminability of an employment relation. The Bobbitt Court looked to the terms of the handbook itself and discovered, not a list of duties and obligations expected of an employee, but a detailed hierarchical scheme of potential offenses an employee might commit together with a concrete discipline plan for dealing with such offenses. This plan included a listing of ten Minor Offenses, sixteen Major Offenses, and ten Intolerable Offenses, together with a sanction for each such offense that was calibrated to correspond to the perceived gravity of the infraction. Bobbitt, 603 So.2d at 359-60. By way of example, Minor Offenses warranted only informal counseling, but were accumulated in the employee's file until four were accumulated, at which point they transformed themselves into two Major Offenses. Id. at 359. Major Offenses required more formal discipline and an accumulation of three Major Offenses warranted termination. Id. at 360. Intolerable Offenses, unsurprisingly, were ground for immediate dismissal. Id.

¶ 10. Bobbitt was terminated from his employment. The Orchard stated that the ground for his termination was "insubordination." There was no history of prior disciplinary offenses in Bobbitt's personnel file. "Insubordination" was an offense specifically catalogued in the employees' manual and plainly appeared as one of the ten Minor Offenses, punishable only by "discussion and a simple reminder." Id. at 359.

¶ 11. The Bobbitt Court, while giving due note to prior pronouncements by the court critical of the employment at will doctrine, nevertheless, framed the issue to be decided in the narrowest of terms:

The question in this case is when an employer furnishes its employees a detailed manual stating its rules of employment, and setting forth procedures that will be followed in event of infraction of its rules of employment, can it completely ignore the manual in discharging an employee for an infraction clearly covered by the manual? Put otherwise, when an offense specifically covered by the employer's own manual provides no more severe disciplining than a warning or counseling of the employee, may the employer pay no attention to the manual and fire the employee instead?

Id. at 361.

¶ 12. The court answered that narrowly-framed question by saying that "We hold the employer to its word." Id. The court, however, then went on to say that, by making the manual a part of Bobbitt's contract of employment, the court did not intend to "give the employees `tenure,' or create a right to employment for any definite length of time...." Id. Rather, the court said only that an employer must follow its own "provisions in reprimanding, suspending or discharging an employee for infractions specifically covered therein." Id. (emphasis supplied).

¶ 13. There is a marked contrast in the rigid, detailed disciplinary scheme in Bobbitt and the passage from the Wal-Mart manual relied upon by these appellants to give them a cause of action for wrongful termination. The provisions relating to "Coaching for Improvement" do not address itemized or even identifiable disciplinary infractions, but deal only with an employee whose on-the-job conduct "falls below the expectations of his or her position." We find nothing in...