Rouse v. PEPSI-COLA METRO. BOTTLING CO., INC.
| Decision Date | 17 September 1985 |
| Docket Number | No. 83-CV-3243-DT.,83-CV-3243-DT. |
| Citation | 642 F. Supp. 34 |
| Parties | Spurgeon ROUSE, Jr., Plaintiff, v. PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC., Defendant. |
| Court | U.S. District Court — Western District of Michigan |
George Jones, Detroit, Mich., for plaintiff.
Gregory V. Murray, Detroit, Mich., William M. O'Reilley, Chicago, Ill., for defendant.
LA PLATA, District Judge.
On July 12, 1983, Plaintiff, Spurgeon Rouse, Jr., filed a five-count complaint in the Wayne County Circuit Court against Defendant, Pepsi-Cola Metropolitan Bottling Company, Inc. Therein, he essentially alleged that he was terminated from his employment, without just cause, in contravention of the Elliot-Larsen Civil Rights Act1 and an implied or express contract of employment. In addition to his breach of contract and racial discrimination counts, Plaintiff averred that Defendant committed (1) negligence in its failure to abide by the terms of the employment contract; (2) the tort of intentional infliction of emotional distress by virtue of termination of his employment; and (3) the tort of negligent infliction of emotional distress.
First employed by Defendant as an hourly employee in May, 1972, Plaintiff assumed a salaried position as a load coordinator at Defendant's Romulus, Michigan, plant in January, 1979. Approximately four months thereafter, Plaintiff was transferred to the Warren, Michigan, facility, where he worked as a merchandiser, holding the position until his discharge on October 29, 1982.
On March 29, 1985, Defendant filed a Motion for Summary Judgment, seeking a dismissal of entire cause of action. As to the five counts, it made the following arguments:
At his discovery deposition, taken on November 4, 1983, Plaintiff testified that the sole basis for his claim that he would not be discharged except for good cause were performance evaluation forms used by Defendant. A review of the forms indicates that Defendant did not promise, either impliedly or expressly, Plaintiff that he would remain employed unless good cause existed for his discharge.
In Touissant v. Blue Cross and Blue Shield of Michigan,2 the Michigan Supreme Court held that written policy statements or oral representations, which provide that an employee can be discharged only for good cause, may be the underpinnings for a breach of contract action. The Touissant case does not vitiate the venerable rule that an employment contract for an indefinite period is terminable by either party, regardless of whether cause exists for the termination.
In Kay v. United Technologies Corp.,3 a discharged employee filed a wrongful termination action against his employer, averring that he and his employer entered into an implied contract whereby he would not be discharged without "just cause." In support of his implied contract claim, the Plaintiff relied upon (1) phraseology contained in his performance appraisal form; (2) a letter mailed to the employees by the company's president, which described the improvements in the employees' benefits and stated that maximum effort by management and the employees would contribute to the company's growth; and (3) a statement made at a deposition by Plaintiff's supervisor that the evaluation forms were used to improve job performance in order for the company and the employees to prosper. Granting summary judgment to the employer, the Sixth Circuit Court of Appeals held that the employer did not make any representations from which the employee could glean that he could be terminated only for good cause:
In relation to none of these three claims do we find a basis for an employment contract which promised Kay that he would not be discharged without "just cause." Our review of Plaintiff's claims leads us to agree with the District Judge that Plaintiff has not pled facts which establish a right to a jury trial on "just cause" under the Toussaint standards.4
The appraisal form used by Plaintiff's employer in the case at bar is similar to the one featured in the Kay opinion. The Court holds that the record is devoid of proof for Plaintiff's claim that he reasonably believed, based on the appraisal forms, he would remain employed by defendant as long as good cause did not exist for his termination from employment. At most, Plaintiff had an unsubstantiated subjective belief that he could be terminated only for just cause; such a belief alone does not create an enforceable contract right.5 Therefore, Defendant's Motion to dismiss the contract claim is GRANTED.
In light of the Court's dismissal of the breach of employment contract claim, Plaintiff's negligent performance of its contractual duties also must fall. Without a duty to abide by the terms of a contract, a party, of course, cannot be held accountable for negligence in failing to perform that duty. Additionally, under Michigan law, a party may not maintain a tort action for a violation of a promise to perform under a contract.6
Without specifically setting forth the facts surrounding his claim for Intentional Infliction of Distress, Plaintiff merely incorporated the details supporting his breach of contract claim. Defendant's allegedly wrongful conduct in discharging Plaintiff does not nearly reach the "extreme and outrageous" element of the tort, as required by Swenson-Davis v. Martel,7 along with numerous other Michigan Court of Appeals' cases. A second basis for dismissing this count is the Supreme Court's holding in Valentine v. General American Credit, Inc.,8 in which it held that emotional distress damages are not awardable in a breach of an employment case:
Plaintiff also alleged that he sustained emotional distress as a result of Defendant's negligence in performing under the implied contract of employment. As enunciated in Smith v. Teledyne Industries, Inc.,9 Michigan law does not appear to recognize a cause of action for negligent infliction of emotional distress. Clearly, if a Defendant's conduct is not of a magnitude to amount to outrageous, shocking, and mortifying behavior, a Plaintiff cannot recover damages for mental distress. Consequently, Count IV of Plaintiff's Complaint is DISMISSED.
For his race discrimination claim, Plaintiff pleaded that he was terminated on October 29, 1982, while Defendant permitted similarly situated white workers to remain in their positions. In opposition to Defendant's Motion for Summary Judgment on this count, Plaintiff submitted an affidavit, containing mainly conclusory statements.
In support of its motion, Defendant attached an affidavit of Scott Ledgerwood, who was Plaintiff's immediate supervisor in 1982. Therein, Ledgerwood stated that Plaintiff's termination was the result of a reduction in force, which resulted in the lay off of four salaried employees, Plaintiff and three white males. Ledgerwood asserted that Plaintiff and the three white workers were selected for discharge because they were deemed to be "marginal performers."
Ledgerwood's description of Plaintiff as a marginal performer is buttressed by numerous performance appraisals. In many of the evaluations, Plaintiff was described as having a poor attitude, a lack of motivation, and a lack of initiative. A warning contained in a letter dated April 9, 1981, typifies Defendant's evaluation of Plaintiff's performance:
To: Spurgeon Rouse Date: ...
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...were undertaken not for job security but to improve employee performance. Kay, 757 F.2d at 101-02. Rouse v. Pepsi-Cola Metropolitan Bottling Co., 642 F.Supp. 34 (E.D.Mich.1985) and Copeland v. Pepsi-Cola Metropolitan Bottling Co., No. 84-CV-1180-DT, slip op. (E.D.Mich. April 17, 1985), are ......
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...Co., 861 F.2d 914, 917 (6th Cir.1988); Kay v. United Technologies Corp., 757 F.2d 100, 102 (6th Cir.1985); Rouse v. Pepsi-Cola Metro. Bottling Co., 642 F.Supp. 34 (E.D.Mich.1985). Because Kubicek did not claim that JWT promised to terminate him only for good cause, the district court did no......