Sepanske v. Bendix Corp.

• Decision Date: 04 April 1986
• Docket Number: Docket No. 75371
• Citation: 147 Mich.App. 819,384 N.W.2d 54
• Parties: Larry T. SEPANSKE, Plaintiff-Appellee, v. The BENDIX CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 54

384 N.W.2d 54

147 Mich.App. 819

Larry T. SEPANSKE, Plaintiff-Appellee, v. The BENDIX CORPORATION, Defendant-Appellant.

Docket No. 75371.

Court of Appeals of Michigan.

Submitted Feb. 20, 1985.

Decided Dec. 17, 1985.

Released for Publication April 4, 1986.

Donnelly & Associates, P.C. by Timothy G. Hagan and Beth M. Rivers, Detroit, for plaintiff-appellee.

Noel C. Crowley and Carol N. Lieber, Morristown, N.J., for Bendix corp.

Dykema, Gossett, Spencer, Goodnow & Trigg by George N. Bashara, Jr., Ronald J. Santo, Richard L. Hurford, and Michael R. Lied, Detroit, for amicus curiae Michigan Chamber of Commerce.

Before WAHLS, P.J., and SHEPHERD and QUINNELL ^*, JJ.

PER CURIAM.

Plaintiff, Larry T. Sepanske, was awarded $75,206 in damages following a district court jury trial of his breach of employment contract claim against the defendant. Defendant Bendix Corporation appeals by leave granted from the circuit court's affirmance of the 43rd District Court's refusal to grant defendant a judgment notwithstanding the verdict (JNOV). We reverse the jury's award of damages.

Plaintiff was employed by defendant in 1969. In March, 1973, he began working in defendant's pension and payroll department. Later that year, he decided to participate in defendant's social service leave program, in which an employee may volunteer to work for a charitable organization while collecting his salary from defendant. Before plaintiff went on leave, he carefully examined defendant's policy manual, which provided in section G:

"G. REINSTATEMENT FROM A SOCIAL SERVICE LEAVE OF ABSENCE.

"1. Upon completion of the assignment, the employee will be reinstated to his former position or to a position of equivalent or greater responsibility at the same location from which leave was granted."

Section D(3)(e) of the manual required defendant, prior to authorizing leave, to identify the specific position which the employee could return to:

"D. SELECTION OF APPLICANTS

"3. Upon reaching a preliminary decision as to the appropriateness of the Social Service Leave, the local Personnel representative will forward the request to Corporate Personnel and Organization Development for review and consideration. The following information on the candidate should be forwarded to Corporate Personnel and Organization Development.

* * *

* * *

"e. Identification of a specific position(s) or assignment(s) that the employee could assume upon return from leave of absence."

Plaintiff's contention on appeal that defendant promised to return him to his former position in the pension and payroll department following his social service leave is based on a letter written in June, 1974, by George Giza, a personnel manager for defendant:

"We are pleased to advise you that your request for social leave of absence has been approved for the period August 1, 1974 through July 31, 1975. Please report to the Personnel Department at 2:00 p.m. on July 31, for your leave processing. Upon completion of your assignment you are scheduled to return to your former position with the Corporate Pension and Payroll Department. Also, you are requested to provide written and/or verbal reports concerning your social service leave assignment to Mr. K. Pearce and me. If you have any further questions, please let me know." (Emphasis added.)

Plaintiff began his social service leave in August, 1974, and returned in May, 1975. Prior to his return, Giza told him that his job with the pension and payroll department was no longer available. Kenneth Pearce, plaintiff's supervisor in pension and payroll, informed plaintiff that they were searching for other jobs for plaintiff. ¹ Plaintiff indicated he was most interested in a marketing or sales position. Contrary to plaintiff's preference, Giza instructed plaintiff to work in the tax department. Giza's supervisor, Anthony Procassini, told plaintiff to accept the tax department position or be terminated. Both Procassini and Giza testified that they understood plaintiff wanted a management level position when he returned from leave, and that every effort was made to find him one. Giza indicated the tax department job, which had the same job title and salary as plaintiff's former position with pension and payroll, was the best opportunity he could locate.

Following denial of defendant's motion for a directed verdict, the jury was given a special verdict form, which it answered as follows:

"1. Did Bendix promise Mr. Sepanske before he went on social service leave of absence that at the end of his leave of absence he would be returned to his old job in the Pension and Payroll Department?

"ANSWER: Yes.

"2. Did Bendix reserve the right either to return Mr. Sepanski [sic ] to his old position in the Pension and Payroll Department, or to a new position of equal or greater responsibility at the same location elsewhere within the Bendix organization?

"ANSWER: No.

"3. Was the position given to Mr. Sepanski [sic ] in the Bendix Tax Department a position of significantly lower rank and status than his previous job in the Bendix Pension and Payroll Department?

"ANSWER: Yes.

"4. Did Mr. Sepanske settle his claim by accepting the position in the Bendix Tax Department as a substitute for his old position in the Pension and Payroll Department?

"ANSWER: No.

"5. Did Mr. Sepanske settle his claim by resigning his position in the Bendix Tax Department in exchange for two months' salary without having to report for work?

"ANSWER: No.

"6. Did Mr. Sepanske sustain any damages as a result of a wrongful failure by Bendix to return him to his old job in the Bendix Pension and Payroll Department?

"ANSWER: Yes.

"7. If your verdict on the previous question is 'yes', what was the amount of damages?

"ANSWER: $75,206.

"8. Did Mr. Sepanske sustain any damages as the result of a wrongful failure by The Bendix Corporation to return him to a position equivalent to his old job in the Bendix Pension and Payroll Department.

"ANSWER: Yes.

"9. If your verdict on the previous question is 'yes', what was the amount of the damages?

"ANSWER: $75,206."

Defendant's motion for JNOV, which spawned this appeal, followed. It was denied by the district court. The circuit court affirmed.

I

On appeal, defendant first argues that plaintiff failed to produce sufficient evidence to establish a breach of employment contract. We review the denial of a motion for JNOV by considering the evidence in a light most favorable to the nonmoving party and determine whether evidence was offered upon which reasonable minds could differ. Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 792, 369 N.W.2d 223 (1985); Goins v. Ford Motor Co, 131 Mich.App. 185, 191-192, 347 N.W.2d 184 (1983), lv. gtd. 422 Mich. 857 (1985). Where reasonable minds could differ, the question should go to the jury. 131 Mich.App. at 192, 347 N.W.2d 184.

We recognize that either party to an at-will employment contract for an indefinite term may terminate it at any time and for any reason, unless the employer has violated a specific public policy in discharging the employee. Ledl v. Quik Pik Food Stores, Inc, 133 Mich.App. 583, 588, 349 N.W.2d 529 (1984); Suchodolski v. Michigan Consolidated Gas Co, 412 Mich. 692, 695, 316 N.W.2d 710 (1982); Trombetta v. Detroit, T & I R Co, 81 Mich.App. 489, 495, 265 N.W.2d 385 (1978), lv. den. 403 Mich. 855 (1978); Schipani v. Ford Motor Co, 102 Mich.App. 606, 302 N.W.2d 307 (1981). However, the employment relationship is enhanced where, as here, the employer establishes specific personnel policies and practices. Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), reh. den. 409 Mich. 1101 (1980). Such statements of company policy and procedure create enforceable contract rights. Toussaint, supra, 598, 609-610, 292 N.W.2d 880. While defendant was not duty bound to establish a policy for employees returning from social service leave, having done so, the policy became a contractual obligation. Defendant's employees could expect that the policies would be followed. Toussaint, supra, pp. 613-615, 619, 292 N.W.2d 880.

It is undisputed that the policy manual provided that, upon plaintiff's return from social service leave, defendant had to reinstate him to his former position or to a position of equal or greater responsibility. The evidence does not support the jury's finding that defendant promised plaintiff that he would be returned to his position in the pension and payroll department. Nor does the evidence support the jury's finding that defendant did not reserve the right to place plaintiff in his old position or a new one of equal or greater responsibility. We do not believe that Giza's letter to plaintiff stating that plaintiff was "scheduled to return" to pension and payroll foreclosed the defendant's right, reserved in its policy manual, to return plaintiff to another job of equal or greater responsibility. Moreover, plaintiff's subjective expectation does not create an enforceable contract right. Schwartz v. Michigan Sugar Co, 106 Mich.App. 471 478, 308 N.W.2d 459 (1981), lv. den. 414 Mich. 870 (1982). ²

Our finding on that issue is not, however, dispositive. The nature of plaintiff's job in the tax department was the subject of conflicting evidence upon which reasonable minds could differ. In the pension and payroll department, plaintiff was the second-ranking employee. He supervised other employees. In the tax department, plaintiff assisted in preparation of tax returns. He did not supervise other employees, and he reported to the fourth-ranking person in the department. Plaintiff told the jury he felt ill-equipped to handle the tax job, and that he had to take a class to acquire basic skills in tax and accounting. Plaintiff also testified that he believed the position was low-level, and that, because of his inexperience, it would take a long time for him to advance. Several of defendant's...