Schippers v. SPX Corp.

• Citation: 486 N.W.2d 89,194 Mich.App. 52
• Decision Date: 04 May 1992
• Docket Number: Docket No. 147499
• Parties: Joseph SCHIPPERS, Plaintiff-Appellant, v. SPX CORPORATION, and Ryder Truck Rental, Inc., Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 89

486 N.W.2d 89

194 Mich.App. 52

Joseph SCHIPPERS, Plaintiff-Appellant, v. SPX CORPORATION, and Ryder Truck Rental, Inc.,

Defendants-Appellees. (On Remand)

Docket No. 147499.

Court of Appeals of Michigan.

Submitted Jan. 16, 1992, at Lansing.

Decided May 4, 1992, at 9:00 a.m.

Released for Publication Aug. 3, 1992.

McCroskey, Feldman, Cochrane & Brock, P.C. by John P. Halloran, Muskegon, for plaintiff.

Culver, Lague & McNally (by William F. McNally and Kevin B. Even), Muskegon, for SPX Corp.

Before NEFF, P.J., and MICHAEL J. KELLY and REILLY, JJ.

ON REMAND

NEFF, Presiding Judge.

This case is before us for a second time after our Supreme Court, in lieu of granting leave to appeal, vacated our prior judgment and remanded to us for reconsideration in light of the decision in Rowe v. Montgomery Ward & Co. Inc., 437 Mich. 627, 473 N.W.2d 268 (1991). 439 Mich. 891, 478 N.W.2d 439 (1991). In our original opinion we reversed an order granting summary disposition in favor of defendant SPX Corporation (hereafter defendant) and remanded to the trial court for trial. Schippers v. SPX Corp., 186 Mich.App. 595, 465 N.W.2d 34 (1990). We now reevaluate whether, under the standards expressed in Rowe, there is a genuine issue of material fact regarding the existence of an employment contract between plaintiff and defendant providing for termination only for just cause.

I

We start from the premise that there is a presumption of employment at will ¹ that plaintiff has the burden to overcome by convincing the court that it should supply an omitted term or that the circumstances are such that the jury is entitled to do so. Rowe, supra, 437 Mich. pp. 638-639, 473 N.W.2d 268.

In Rowe, the Supreme Court took pains to explain what it was not holding:

We do not decide that the words and conduct of parties cannot, as a matter of law, create an issue submissible to a jury regarding the existence of a contract implied in fact. Moreover, we do not suggest that a contract of employment is too indefinite to be enforced where the employee's consideration is the work performed in response to a unilateral offer. [Id., p. 638, 473 N.W.2d 268.]

As noted, this case was decided in the trial court on defendant's motion for summary disposition. When ruling on a motion for summary disposition made pursuant to MCR 2.116(C)(10), courts are liberal in finding that a genuine issue exists, drawing all inferences in favor of the nonmovant and granting the motion only when the court is satisfied that it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Rizzo v. Kretschmer, 389 Mich. 363, 371, 207 N.W.2d 316 (1973); Langeland v. Bronson Methodist Hosp., 178 Mich.App. 612, 615-616, 444 N.W.2d 146 (1989).

When we examine this case within this framework, we are led to the same conclusion we reached initially, to wit, material issues of fact exist on the basis of defendant's employee handbook and testimony concerning oral representations made by SPX personnel to plaintiff.

II

According to plaintiff's deposition testimony, he was hired by the defendant's Sealed Power Division in 1973 as an over-the-road truck driver. At the time he transferred to the Hy-Lift Division, there were six over-the-road truck drivers at Sealed Power and he was second in seniority. At Hy-Lift, there was only one truck and one driver, plaintiff.

When plaintiff was approached by his superiors to transfer from Sealed Power to Hy-Lift, he was concerned about job security because Hy-Lift had only one truck and he would be the only driver in that division. Plaintiff was worried because if the one truck at Hy-Lift were to be eliminated for any reason, he would be out of work. He therefore sought assurances of continued availability of work and of his own job security. According to his testimony, plaintiff received assurances from three of defendant's employees, including plaintiff's immediate supervisor, that his job was secure, as long as they had a truck and until plaintiff was ready for retirement.

III

Careful review of the opinion in Rowe leads us to the conclusion that this case is more nearly consonant with Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), the seminal Michigan case in the law of employment contracts. As in Toussaint, plaintiff in this case expressed concerns about job security and engaged in discussions about his concerns before accepting the transfer to Hy-Lift. His concerns were met with assurances that raise a question of fact concerning whether he had a reasonable belief that he could be fired only for cause.

This conclusion is further bolstered by the existence of the employee handbook that, as we noted in our original opinion, at the very least, raised the possibility of an illusory promise of an employment contract providing for termination only for just cause meant to benefit the employer by inferring job security while retaining the benefit of denying such security at the whim of the employer. Rowe, supra, 437 Mich. p. 655, 473 N.W.2d 268; Schippers, supra, 186 Mich.App. pp. 598-599, 465 N.W.2d 34; Diggs v. Pepsi-Cola Metropolitan Bottling Co. Inc., 861 F.2d 914 (CA6, 1988).

While the handbook issued by defendant in this case does not contain the same type of language specifically providing for termination only for just cause as the one at issue in Toussaint, it does offer objective support for the oral representations allegedly made to plaintiff with regard to his concerns involving job security. Like in Toussaint, plaintiff engaged in preemployment discussions concerning job security and he specifically inquired about that issue. On the other hand, the handbook in this case did not, as did the handbook in Rowe, clearly and...