Orr v. Westminster Village North, Inc.

• Decision Date: 15 December 1997
• Docket Number: No. 49S02-9602-CV-128,49S02-9602-CV-128
• Citation: 689 N.E.2d 712
• Parties: 13 IER Cases 1161 Lee ORR, Alfred Smith, and William R. Robinson, Appellants/Respondents (Plaintiffs Below), v. WESTMINSTER VILLAGE NORTH, INC., Appellee/Petitioner (Defendant Below).
• Court: Indiana Supreme Court

Page 712

689 N.E.2d 712

13 IER Cases 1161

Lee ORR, Alfred Smith, and William R. Robinson Appellants/Respondents (Plaintiffs Below), v. WESTMINSTER VILLAGE NORTH, INC., Appellee/Petitioner (Defendant Below).

No. 49S02-9602-CV-128.

Supreme Court of Indiana.

Dec. 15, 1997.

Eric D. Johnson, Kightlinger & Gray, Indianapolis, for Appellants/Respondents.

Patrick Miller, Patrick F. Mastrian, III, Goodin & Kraege, Indianapolis, for Appellee/Petitioner.

D. Reed Scism, Barnes & Thornburg, Indianapolis, for Amicus Curiae The Indiana Legal Foundation.

ON PETITION TO TRANSFER

SELBY, Justice.

Westminster Village North, Inc., appellee/petitioner and defendant below ("Westminster" or "defendant"), challenges the decision of the Court of Appeals, 651 N.E.2d 795 (Ind.Ct.App.1995), holding that Westminster's employee handbook ("Handbook") created a material issue of fact as to whether Westminster breached an employment contract and wrongfully discharged Lee Orr, Alfred Smith, and William Robinson, appellants/respondents and plaintiffs below ("plaintiffs"). In so doing, the Court of Appeals reversed the decision of the trial court which granted Westminster's motion for summary judgment on the breach of contract claim. ¹ We disagree with the Court of Appeals. We decline to construe the employee handbook at issue as a valid unilateral contract or to abolish the rule which generally requires the employee to provide adequate independent consideration to convert an employment-at-will relationship into a relationship that the employer can terminate only for good cause. We conclude that, even if we were to adopt an exception to the employment-at-will doctrine for employee handbooks, the employee handbook in this case, as a matter of law, does not create an employment contract which alters the otherwise at-will employment status of plaintiffs. We, therefore, reverse the Court of Appeals and reinstate the trial court's decision granting summary judgment in Westminster's favor.

FACTS

Westminster operates a retirement community, which consists of several buildings located on twenty-seven to thirty acres of land in Indianapolis. Westminster employed plaintiff Lee Orr as the grounds foreman or head grounds keeper. Plaintiffs Alfred Smith and William Robinson worked under Orr's direction. On the afternoon of March 22, 1990, Kevin Strunk, the Director of Maintenance, who had oversight responsibility for all buildings and grounds and who was Orr's When Strunk returned a few minutes later with Bob Rayne, the Director of Security, they entered the attic with the fire chief and a couple of fire personnel. At that time neither Orr nor anyone else was in the attic. The hatch which opens onto the roof, which is only accessible through the attic, was open, and Strunk saw plaintiffs on the roof. According to Strunk, Orr and Smith were walking away from him on the very top of the sloped roof. After Strunk made two requests that the plaintiffs come down from the roof, they complied and, in response to questions, they all denied smoking in the attic. They maintained that maintenance foreman Gordon Counceller, who, like Orr, reported to Kevin Strunk and who also is Orr's uncle, had instructed them to clean pigeon droppings from the gutters of the building.

immediate supervisor, gave the fire chief and six to eight firefighters from the Lawrence Fire Department a tour of the Westminster facilities. When the group reached the attic of Building A at about 3:00 or 3:30 p.m., Strunk noticed that the door to the attic was ajar about three inches and the piece of wood that usually fastened the door closed was lying on the floor. When the group entered the attic, the light was on and there was a cloud of smoke. Strunk and other members of the group detected an odor of marijuana. The group then separated and walked around the attic. Strunk walked along the catwalk in the east wing and saw Orr hiding in the corner of the attic and signaling him to go back to the main common area. The group then left the attic to call security. Strunk went back down the center stairwell, the only stairwell accessing the attic, to the first floor. Several firefighters remained behind.

Westminster immediately conducted a brief investigation and concluded that plaintiffs had no business being in the attic or on the roof that day. They had no safety equipment with them for scaling the sloped roof, which Strunk maintained was wet at the time, and no one saw any equipment with them for removing pigeon droppings. Westminster terminated plaintiffs the same day. Although Westminster suspected that they had been smoking marijuana, Westminster terminated them for being in an unauthorized area and also for endangering safety and life in violation of major offense number 4 which is listed in Section V.M. of the Handbook.

Four or five days after the incident, when Strunk questioned Counceller about whether he had told Lee and his men to inspect or do work on the roof that day, he said, "well, what if I did tell them." Strunk did not get a definite answer from Counceller who then went on to simply state that he "may have" asked Orr to inspect or do work on the roof. (R. at 366-68.) Later, at Counceller's deposition, he did say that, earlier in the week of March 22, he had asked his nephew Lee Orr to clean the gutters, and Orr had advised him that it had been scheduled. He also testified that he and others had occasion to be in the attic, because it was a storage area; that no signs saying that it was an unauthorized area or prohibiting smoking were posted until after the incident; that he and others smoked cigarettes in the attic; that there was no requirement for using safety equipment while on the roof; and that they would need a garden tool and generally a hose to clean out the gutters, but would not need any tools simply to inspect the gutters. Plaintiff Smith testified at his deposition that no safety equipment was needed on the roof in question; that, as far as he could determine, the roof was dry on the day of the incident; that he had a garden hand shovel in his back pocket and believes Orr and Robinson had similar tools as well. Plaintiff Orr testified that he was on the east incline of Building A finishing up cleaning out the gutters when he was called off the roof, and that he and his co-workers all had hand shovels, but no other equipment.

Plaintiffs contend that they were wrongfully discharged because Westminster did not follow the disciplinary procedures set out in the Handbook. The contents of that Handbook are not in dispute. In the first few pages of the Handbook issued October 1988, under Section I.B. captioned "Purpose and Use of the Handbook," the following statement appears: "Its contents represent an official statement of the facility policy; however, the handbook is not a contract with the The Handbook also contains numerous other provisions covering standards of conduct, policies and procedures, and benefits. Among these is Section II.M., captioned "Employee Disciplinary Guidelines and Grievances Procedure," which provides in pertinent part as follows:

facility because it is subject to change." (R. at 18; emphasis added.)

If you fail to follow established guidelines or violate the rules and policies of Westminster Village North, you will be subject to disciplinary action. In most cases, disciplinary action will begin with an oral warning from your supervisor. ....

....

The disciplinary action taken will be determined by the seriousness of the violation. Therefore, if warranted, the oral warning may be omitted and the written warning or dismissal may occur immediately. ...

(R. at 33; emphasis added.) This Section also provides that "to resolve any misunderstandings, problems or grievances which arise in connection with disciplinary action or with your job in general," the employee grievance "should be presented either orally or in writing to your immediate supervisor/Department Head within five (5) working days following the incident in question." The Section further provides that the supervisor "must answer" the grievance "in writing within three (3) working days." (R. at 33.) If still not satisfied, the employee may take the grievance "within five (5) working days" to the Staff Council who will make a recommendation to the Executive Director. The Executive Director "will make a final determination and provide the employee with a written response." (R. at 34.)

Section V.M. of the Handbook, captioned "Rules of Employee Conduct," lists numerous violations under the subheadings of "minor" and "major" rule violations, and states at the end of the Section: "The foregoing list is not intended to be all inclusive." (R. at 81-83, 83.) Examples of major violations listed are number 2 which prohibits "[b]ringing or consuming alcohol or drugs on the premises, or reporting for duty under the influence of alcohol or drugs," and number 4 which prohibits "[a]ny act or omission which might endanger the safety or life of residents, employees or self." (R. at 82.) With regard to minor violations, the Handbook states that they "can result in either verbal or written warnings which if not corrected can result in dismissal." (R. at 81.) With regard to major violations, the Handbook expressly states that "your continued employment may not be deemed desirable," and that such violations "can result in immediate discharge without warning." (R. at 82.)

Section II.A. of the Handbook creates three categories of employees: an "orientation employee," who is in the initial three months of employment or re-employment, a "regular employee," who has completed the orientation period and been evaluated for continued employment, and a "probation employee," who has been put on probation for disciplinary problems. (R. at 21). Section II. G. provides for annual performance evaluations, and Section VI.A., captioned "What Employees Can Expect from Westminster Village North," states: "You...