Novosel v. Sears, Roebuck & Co.

• Decision Date: 05 September 1980
• Docket Number: Civ. A. No. 79-73926.
• Parties: Steven NOVOSEL, Plaintiff, v. SEARS, ROEBUCK AND COMPANY, a New York corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

495 F. Supp. 344

Steven NOVOSEL, Plaintiff, v. SEARS, ROEBUCK AND COMPANY, a New York corporation, Defendant.

Civ. A. No. 79-73926.

United States District Court, E. D. Michigan, S. D.

September 5, 1980.

David W. Wright, Bloomfield Hills, Mich., for plaintiff.

Charles C. DeWitt, Jr., Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This action, originally brought in Oakland County Circuit Court, is properly before this court upon a timely filed petition for removal. The plaintiff alleges two causes of action arising out of his termination from employment: wrongful discharge and intentional infliction of emotional distress. The defendant has made a motion to dismiss or for summary judgment.

At the time of his termination, the plaintiff had been a Sears employee for nearly twelve years. He was terminated after a disputed incident in the company parking lot. As the plaintiff was leaving work and getting into his car on the evening of January 27, 1979, a security guard drove up and asked to talk with him. The plaintiff drove off without responding. It is alleged that the security officer wanted to talk to the plaintiff about a box he was seen carrying from the store. The plaintiff returned approximately five minutes later, allegedly without the box, and stated that he did not know that it had been a security guard who approached him. Rather, he contended, he thought the car approaching him was driven by the boy friend or husband of a woman he was dating. The plaintiff alleges that the box he carried out of the store was empty. On January 30, 1979, the plaintiff's employment was terminated by Sears.

A. Wrongful Discharge

The plaintiff alleges that he was wrongfully discharged from employment because his employer had a duty not to terminate him without just cause, which he contended had not been demonstrated. The plaintiff relies on the recent Michigan Supreme Court decision, Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W.2d 880 (1980).

As is true in this case, the Toussaint court was called upon to construe the obligations of an employer where the employment was for an indefinite or continuous term. The Court held that the general "rule" in these matters is actually a rule of construction rather than one of law. That "rule" is that in the absence of representations or agreements between the parties, terms of employment which are indefinite or continuous are terminable at the will of either party. 408 Mich. at 597, 292 N.W.2d 880. The Court went on to hold that when an employer promises in an employment manual that employees will not be discharged without just cause, the employer by its actions may not discharge an employee without just cause. The Court read the promises and representations of the employer into the contract.

Indeed, Toussaint held that company personnel policies and employer assurances can give rise to an employee's reasonable expectation of a just cause prerequisite for termination, which is legally enforceable even though the agreed upon duration of the employment contract is for an indefinite term. 408 Mich. at 598, 292 N.W.2d 880. But Toussaint is different from the instant case. The present case does not involve such representations and assurances and, in addition, it falls squarely within an exception noted in the Toussaint holding.

Employers are most assuredly free to enter into employment contracts terminable at will without assigning cause. We hold only that an employer's express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.

408 Mich. at 610, 292 N.W.2d at 890.

* * * * * *

If Blue Cross or Masco had desired, they could have established a company policy of requiring prospective employees to acknowledge that they served at the will or the pleasure of the company and, thus, have avoided the misunderstandings that generated this litigation.

408 Mich. at 612, 292 N.W.2d at 891.

* * * * * *

Where the employer has not agreed to job security, it can protect itself by entering into a written contract which explicitly provides that the employee serves at the pleasure or at the will of the employer or as long as his services are satisfactory to the employer.

408 Mich. at 612 n.24, 292 N.W.2d at 891.

Here, the employment relationship between the plaintiff and the defendant was expressly set out in the employment application, which governs the rights and duties of the parties. The contract, which was signed by the plaintiff, states:

I certify that the information contained in this application is correct to the best of my knowledge and understand that falsification of this information is grounds for dismissal in accordance with Sears, Roebuck and Co. policy. I authorize the references listed above to give you any and all information concerning my previous employment and any pertinent information they may have, personal or otherwise, and release all parties from all liability for any damage that may result from furnishing same to you. In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck and Co., and my employment and compensation can be terminated, with or without cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no store manager or representative of Sears, Roebuck and Co., other than the president or vice-president of the Company, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing. (Emphasis added.)

This type of contract is expressly provided for by Toussaint. Therefore, the plaintiff had no right to a just cause determination prior to his severance, and Sears did not abridge any legal duty owed to the plaintiff by terminating his employment in the manner they did. Based on this agreement, there is...