Mix v. University of New Orleans
| Decision Date | 24 November 1992 |
| Docket Number | No. 91-CA-2720,91-CA-2720 |
| Citation | 609 So.2d 958 |
| Parties | 79 Ed. Law Rep. 1146 Morgan R. MIX v. The UNIVERSITY OF NEW ORLEANS, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Rutledge C. Clement, Jr., Amelia Williams Koch, Phyllis R. Guin, Locke Purnell Rain Harrell, New Orleans, for defendants-appellees.
John H. Brooks, Gretna, for plaintiff-appellant.
Before BYRNES, CIACCIO and LANDRIEU, JJ.
Plaintiff-appellant, Morgan Mix, was a non-classified employee serving as the assistant director of the physical plant at the University of New Orleans. The defendant-appellee is the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, hereinafter referred to as "University", which manages and controls the University of New Orleans where defendant worked. Mix was employed by the University from September 6, 1977 until July 19, 1989, when he was terminated involuntarily.
Mix disputes the reasons given for his termination. More significantly, he claims that his discharge was invalid because the University was bound by the procedures set forth in its "Grievance Procedure For Unclassified Personnel" which it failed to follow when it discharged him. Plaintiff filed suit, in effect, for wrongful discharge, and the consequent mental anguish, loss of wages, and loss of fringe benefits.
The trial court dismissed the University's exception of no cause of action, but subsequently ruled without written reasons in favor of the University on motion for summary judgment. It is from that judgment that Mix now appeals. We affirm.
Mix does not contend that the University agreed to employ him for a fixed term. Mix does not contend that the Grievance Procedure was an employment contract itself. Mix does not contend that the University ever represented to him that the Grievance Procedure was part of his employment agreement. He does not contend that there was ever any agreement to do so. He does not contend that he, or a group of employees of which he was a part negotiated or bargained for the terms of the Grievance Procedure. He does not contend that the provisions of the Grievance Procedure were arrived at mutually. He does not contend that the right to avail himself of the protections afforded by the Grievance Procedure were in any way an inducement to him to accept or continue employment by the University. He does not contend that he would have himself terminated University employment had he known that he would not be afforded the benefits of the University Grievance Procedure.
Basically, Mix only disputes two questions of fact:
(1) Were the reasons given for his termination accurate, fair or reasonable?
(2) Did the University properly follow the provisions of its "Grievance Procedure for Unclassified Personnel" when it terminated him?
In effect, Mix claims that these contentions raise genuine issues of material fact that the trial court could not properly dispose of on a motion for summary judgment. We disagree.
A motion for summary judgment may be granted if the pleading, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Urbeso v. Bryan, 583 So.2d 114, 116 (La.App. 4 Cir.1991); Woods v. ABC Ins. Co., 580 So.2d 480, 481 (La.App. 4 Cir.1991). The burden of showing that there is no genuine issue of material facts and that the mover is entitled to judgment as a matter of law is upon the mover, and all doubt must be resolved against the mover and in favor of a trial on the merits. Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979); Woods v. ABC Ins. Co., 580 So.2d at 481.
A fact is material if it is essential to plaintiff's cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Schroeder v. Board of Sup'rs of Louisiana State University, 577 So.2d 1074, 1078 (La.App. 1 Cir.), reversed on other grounds, 591 So.2d 342 (La.1991); Eads Operating Co., Inc. v. Thompson, 537 So.2d 1187, 1194 (La.App. 1st Cir.1988), writ denied, 538 So.2d 614 (La.1989). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in the light of the substantive law applicable to the case. Schroeder v. Board of Sup'rs of Louisiana State University, 577 So.2d at 1079; Sun Belt Constructors, Division of a Div. MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5 Cir.1988).
To determine what is "the substantive law applicable to the case" in a manner commensurate with the extremely demanding standards requisite to dismissing a claim on motion for summary judgment, a thorough survey and analysis of relevant legal authority is justified.
Mix argues that the University as a state entity was bound by the provisions of its Grievance Procedure because it was a "rule" as defined by the Administrative Procedures Act:
" 'Rule' means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency...." (Emphasis added). LSA-R.S. 49:951(6)
We find that the University Grievance Procedure relates only to the regulation of internal management. We hold that it is not a binding rule subject to the formalities of the Administrative Procedures Act.
Louisiana recognizes the doctrine of employment at will. Both the employer and the employee are free to terminate the relationship at any time without cause. Pitcher v. United Oil and Gas Syndicate, 174 La. 66, 139 So. 760 (1932) explains the philosophical basis of this doctrine:
An employee is never presumed to engage his services permanently, thereby cutting himself off from all chances of improving his condition; indeed, in this land of opportunity it would be against public policy and the spirit of our institutions that any man should thus handicap himself; and the law will presume almost juris et de jure that he did not so intend. And if the contract of employment be not binding on the employee for the whole term of such employment, then it cannot be binding upon the employer; there would be lack of "mutuality."
The lack of "mutuality" referred to Pitcher, supra, that characterizes the University Grievance Procedure was best described in a similar situation where a court used language which we adopt as our own for purposes of the instant case:
It was only a unilateral expression of company policy and procedures. Its terms were not bargained for by the parties and any benefits conferred by it were mere gratuities. Certainly, no meeting of the minds was evidenced by the defendant's unilateral act of publishing company policy. State v. Motor, 220 Kan. 99, 551 P.2d 783 (1976).
Gilbert v. Tulane University, 909 F.2d 124, 126 (5 Cir.1990), provides an excellent synopsis of the legal basis for the doctrine: 1
Under Louisiana law, a person employed for an indefinite period is an employee at will. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1103-04 (La.1988); see LA.CIV.CODE ANN. art. 1778 (West 1987). An at-will employee is free to quit at any time without liability to his or her employer and may be terminated at any time, provided the termination does not violate any statutory or constitutional provision. LA.CIV.CODE ANN. art. 2747 (West.1952); Johnson v. Delchamps, 897 F.2d 808, 810 (5th Cir.1990).
Mix was an unclassified employee not protected by Civil Service. He does not allege that his employment was for a definite time. "As plaintiff was not protected by Civil Service.... and as that employment was not for a fixed term, his employment could be terminated ... at any time or without cause." Laque v. St. Charles Parish Police Jury, 363 So.2d 1240, 1241 (La.App. 4 Cir.1978). Mix can cite no authority to support his contention that the doctrine of "employment at will" which is the rule in Louisiana does not apply to his employment by the defendant University. In fact the creation of Civil Service was in recognition of the doctrine of "employment at will" as the law of Louisiana. In the absence of such a doctrine there would have been no need to create a Civil Service exception to it. Mix was free to quit without notice at any minute on any day, even if he were in the middle of an important task; and he would owe no obligation to train his successor or to help locate files or tools or explain how things worked.
Therefore, he can only recover if he can show that the Grievance Procedure was part of his employment agreement with the University thereby creating a contractual exception to the employment at will doctrine. A survey of employment cases shows this is not the case.
Gilbert v. Tulane University, 909 F.2d 124 (5 Cir.1990) and Wall v. Tulane University, 499 So.2d 375 (La.App. 4 Cir., 1986), writ denied, 500 So.2d 427 (La.1987) are both strikingly similar to the instant case.
In Wall v. Tulane University, 499 So.2d 375, 375-376 (La.App. 4 Cir.1986), writ denied, 500 So.2d 427 (La.1987) this court held that the Tulane Staff Handbook was not a contract of employment. The court determined that the handbook was "primarily informational in nature and did not ... constitute a binding promise by Tulane to continue indefinitely the benefits described therein." The court also noted that no promises had been made to Wall concerning the benefits that would have made them "part of Wall's employment agreement with Tulane." The plaintiff assumed...
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