Ritchie v. Michigan Consol. Gas Co.

• Decision Date: 28 October 1987
• Docket Number: Docket No. 92057
• Citation: 413 N.W.2d 796,163 Mich.App. 358
• Parties: Mary RITCHIE, Plaintiff-Appellee, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant-Appellant. 163 Mich.App. 358, 413 N.W.2d 796, 3 Indiv.Empl.Rts.Cas. (BNA) 242
• Court: Court of Appeal of Michigan — District of US

Page 796

413 N.W.2d 796

Mary RITCHIE, Plaintiff-Appellee, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant-Appellant.

Docket No. 92057.

163 Mich.App. 358, 413 N.W.2d 796,

3 Indiv.Empl.Rts.Cas. (BNA) 242

Court of Appeals of Michigan.

Submitted April 15, 1987.

Decided Sept. 22, 1987.

Released for Publication Oct. 28, 1987.

[163 MICHAPP 360] Kurt Berggren, Ann Arbor, for plaintiff-appellee.

Miller, Canfield, Paddock & Stone by Allyn D. Kantor and Kay Holsinger, Ann Arbor, for defendant-appellant.

Before CYNAR, P.J., and SHEPHERD and JASPER, ^* JJ.

PER CURIAM.

Defendant Michigan Consolidated Gas Company appeals as of right from a judgment for plaintiff Mary Ritchie in the amount of $560,000 plus interest entered on March 12, 1985, after a jury trial in Washtenaw Circuit Court. The jury, by its verdict, determined that plaintiff had an implied contract which prohibited her discharge except for just cause and that defendant did not have just cause to dismiss plaintiff. Defendant also appeals from an April 10, 1986, opinion and order which denied defendant's motions for judgment notwithstanding the verdict (JNOV), new trial, and relief from judgment. Additionally, defendant appeals from denial of a directed verdict at the close of plaintiff's proofs and the close of the case. Finally, defendant appeals from the February 8, 1985, denial of its motion for summary disposition.

Plaintiff filed a complaint against defendant alleging, inter alia, wrongful discharge in violation [163 MICHAPP 361] of the rule in Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). This was the only count of the complaint which went to the jury. Defendant requested a grant of summary disposition and a directed verdict on the Toussaint claim, on the basis that plaintiff was an employee at will. Both motions were denied.

Plaintiff testified that she was fired from the Michigan Consolidated Gas Company on September 13, 1983, after 18 1/2 years of employment. At the time of her discharge, her salary was approximately $25,000 per year, and her benefits were worth approximately $5,000 per year. Plaintiff stated that the reasons for her discharge, as listed in a document in her personnel file, were dishonesty and falsification of company records.

Plaintiff began working for defendant on February 1, 1965. She held a series of positions in defendant's Ann Arbor office, the last of which was section chief in the Customer Service Department. Plaintiff's supervisor at the time of her discharge was Elmer Kuebler.

One of plaintiff's duties was to investigate problem accounts. One of the accounts which plaintiff was monitoring was that of Town and Country Apartments. Pat Fillinger, a co-worker of plaintiff, worked on the account for over one year before referring it to plaintiff in April, 1976. The bills on the account had been consistently incorrect. One of the first things that plaintiff did was to put the account in her own name, so that the bills were sent directly to her at the Ann Arbor office. She would then rebill the customer when she received the bill. This was done to verify the accuracy of each bill before sending it on to the customer, in an attempt to rectify the billing problems. According to plaintiff, this was a common practice among [163 MICHAPP 362] the employees in her office when they were working on a bill and there was difficulty with the account. Plaintiff's supervisor, Elmer Kuebler, had put accounts in his own name.

Plaintiff attempted every month to correct various problems with the account, such as double billings, incorrect billings, and incorrect meter readings. However, these attempts were unsuccessful, apparently because the computer in Detroit rejected the efforts she made at correction. Before October of 1980, plaintiff estimated that she had at least twenty-five conversations about the account with Kuebler. In addition, she had numerous discussions with other people, including her co-workers and Kuebler's supervisor, Reno Maccardini, in an attempt to straighten the matter out. At this time, the customer was not making payments on the account.

In October of 1980, plaintiff decided to send out a settlement agreement to Town and Country in an attempt to elicit payment. The settlement agreement was for $43,000, the amount then owed. She told Kuebler that she was sending out the agreement. She alleges he advised her to change the "LCA" (last collection action), a computer code which shows what the last collection action on the account has been. Plaintiff believed she had authority to change LCA codes, though she had never changed one before. Plaintiff stated that at no time did Kuebler or anyone else explain to her the effects of changing an LCA code. She continued to change the LCA code on the account each month.

Plaintiff received no response to the settlement agreement. She sent out a second settlement agreement in July of 1981. At that time, she told Kuebler that she had sent out the agreement and asked him what else she should do about the account. He offered her no further suggestions. [163 MICHAPP 363] Plaintiff continued to change the LCA and to monitor and send out the customer's bills until late 1982. At that time she stopped sending out the bills though she continued to change the LCA. Plaintiff stated that she stopped sending out the bills because it was a "user tactic" which people in her office used to try to force the customer to call in and inquire about the account. However, the customer did not call.

Plaintiff testified that at 9:00 a.m. on August 18, 1983, she was notified by Kuebler that she needed to attend a meeting at 1:00 p.m. that afternoon in the Detroit office regarding the Town and Country account. He advised plaintiff to bring any records she had in reference to Town and Country. Plaintiff took the bills which she had not sent out. The meeting was attended by Mr. Kuebler, Bill Glenn, manager of the business office, Jim Jannausch, and Keith Davy. Plaintiff was shown a list which documented the changes which she had made in the LCA codes. Jannausch asked her if anyone was "in on this" with her, whether she had received any personal gain, and whether she was being blackmailed. Plaintiff did not understand what was happening, but tried to explain the billing history of the account and defend herself against the charges. Kuebler said nothing. Plaintiff finally became very upset, began crying and ran from the meeting.

Later the next day, Kuebler informed her that she was to work the balance of the day, but not to report to work the next week. The following Monday, she called Mr. Glenn, who informed her that she had been suspended. Finally, on September 13, Kuebler called her and informed her that she was fired. When she asked for an explanation, all he would tell her was that she was fired for "falsifying company records." Plaintiff's personnel file [163 MICHAPP 364] stated that she had falsified company records over a seven-year period involving amounts of $100,000 and had been terminated for falsifying company records and dishonesty.

Plaintiff testified that she was never told that she was an "employee at will." She stated that when she began working for defendant in January of 1965 she had to guarantee that she would remain for two years. Plaintiff testified that early in her career, she had received a written warning for chewing gum by her supervisor, Mr. Tucker. He informed her that if she received three written warnings, she would be fired. An employee handbook, a copy of which plaintiff had received, was introduced into evidence. It stated that such things as gambling, drinking and disorderly conduct on the job are prohibited. The parties stipulated that defendant also had a written policy which stated that an employees' employment could be terminated for excessive use of sick time.

Plaintiff stated that in 1977, when she applied for a mortgage on her home, Reno Maccardini, general manager of the Ann Arbor district, signed a statement indicating that she would be employed by defendant for the duration of the mortgage, twenty years. Plaintiff stated that once in 1979 and at least three times between 1980 and 1983, Kuebler informed her that as long as there was an Ann Arbor office she would have a job.

Plaintiff testified that, since her 1983 termination, she had sent out over one hundred resumes and had visited many different places of work to fill out applications. She stated that she had told prospective employers the truth about the reasons for her being discharged. Plaintiff had been unsuccessful in securing employment.

On cross-examination, plaintiff testified that, until the August 18, 1983, meeting, she did not know [163 MICHAPP 365] that changing the LCA code to "00" prevented the company from taking collection action on an unpaid bill. She acknowledged, however, that at the August 18 meeting she did not tell anyone that Kuebler had advised her to change the code. She also acknowledged that she made no reference to Kuebler's advising her to change the code in the letter she wrote to the company contesting her discharge. She also conceded that she did not testify at her deposition that Kuebler had instructed her to change the code.

Plaintiff acknowledged on cross-examination that she continued to change the LCA code even though no response was made by Town and Country to her October, 1980, settlement agreement.

Plaintiff conceded that in her letter to the company she stated that she had stopped mailing out the Town and Country bills because the bill form had changed and she did not feel that she could continue sending out the old-style bills. She did not mention in the letter the company practice of stopping bills to force the customer to call. At trial plaintiff denied, however, that she stopped sending out bills because the bill form changed. Plaintiff acknowledged that she never told Kuebler that she had stopped sending out b...