Shaw v. S.S. Kresge Co.

• Decision Date: 05 June 1975
• Docket Number: No. 3--174A3,3--174A3
• Citation: 328 N.E.2d 775,167 Ind.App. 1
• Parties: , 115 L.R.R.M. (BNA) 5030 Benjamin SHAW, Plaintiff-Appellant, v. S. S. KRESGE COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 775

328 N.E.2d 775

167 Ind.App. 1, 115 L.R.R.M. (BNA) 5030

Benjamin SHAW, Plaintiff-Appellant, v. S. S. KRESGE COMPANY, Defendant-Appellee.

No. 3--174A3.

Court of Appeals of Indiana, Third District.

June 5, 1975.

Rehearing Denied July 15, 1975.

Donald D. Doxsee, Fort Wayne, for plaintiff-appellant.

J. A. Bruggeman, John M. Clifton, Jr., Barrett, Barrett & McNagny, Fort Wayne, for defendant-appellee.

HOFFMAN, Judge.

On October 19, 1972, plaintiff-appellant Benjamin Shaw filed an amended complaint wherein it was alleged, among other things, that Shaw had been wrongfully discharged from his employment with defendant-appellee S. S. Kresge Company (Kresge). Shaw sought damages totalling $47,746, for an alleged breach of his employment contract.

Both Shaw and Kresge filed motions for summary judgment and, on July 3u, 1973, the trial court denied Shaw's motion, granted Kresge's motion and entered judgment in favor of Kresge. A motion to correct errors filed by appellant-Shaw was subsequently overruled and the present appeal was perfected.

The primary issue to be considered on review is whether the trial court erred in granting summary judgment in favor of Kresge.

As noted above, both parties filed motions for summary judgment. Only that of appellant, however, was supported by affidavit. It should be pointed out that 'cross-motions for 'Summary Judgment' do not in themselves establish the absence of a genuine issue of material fact; that in such case there is no genuine issue only for the purposes of the party's own motion.' Whitcomb et al. v. Young et al. (1972), 258 Ind. 127, at 137, 279 N.E.2d 566, at 573; Ebert v. Grain Dealers Mutual Insurance Company (1973), Ind.App., 303 N.E.2d 693; Kochert v. Wiseman (1971), 148 Ind.App. 613, 269 N.E.2d 12 (transfer denied); Fischer v. Kaylor (1969), 145 Ind.App. 148, 250 N.E.2d 19. Summary judgment is proper only where there is no genuine issue of material fact, and where a party is entitled to judgment as a matter of law. North Miami Con. S.D. v. State ex rel. Manchester C.S. (1973), Ind., 300 N.E.2d 59; Central Realty, Inc. v. Hillman's Equip., Inc. (1969), 253 Ind. 48, 246 N.E.2d 383; Ross v. Farmers Insurance Exchange (1971), 150 Ind.App 428, 277 N.E.2d 29 (transfer denied); Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688 (transfer denied). The burden is on the moving party to demonstrate that no material issue of fact exists and all doubt must be resolved against the proponent of the motion and in favor of the party against whom the motion is directed. Tapp v. Haskins (1974), Ind.App., 310 N.E.2d 288 (transfer denied); Mutual Hospital Insurance, Inc. v. Klapper (1972), Ind.App., 288 N.E.2d 279 (transfer denied); Wozniczka v. McKean et al. (1969), 144 Ind.App. 471, 247 N.E.2d 215 (transfer denied). The question thus becomes one of whether, assuming the truth of all facts alleged by Shaw, Kresge is entitled to judgment as a matter of law. See: Podgorny v. Great Central Insurance Co. (1974), Ind.App., 311 N.E.2d 640.

In his amended complaint, Shaw alleged that 'on or about September 14, 1966, the plaintiff entered into a contract of employment with the defendant S. S. Kresge Company at the Fort Wayne Distribution Center in Fort Wayne, Indiana' and '(t)hat as a part of said contract of employment, the defendant published a handbook which set out the conditions of employment which the plaintiff and defendant agreed to follow . . ..' The handbook which was incorporated by reference into Shaw's complaint provided, in part, as follows:

'Warning Slips

'Management and the Advisory Committee have agreed on the use of the warning slip as a disciplinary measure.

'Smoking in restricted areas, theft and drunkenness are major offenses. The offender is subject to immediate discharge. Lesser offenses make the offender subject to a warning, issued by his foreman or supervisor.

'A total of three warnings, of any type, within a twelve-month period, brings the individual's case before the Advisory Committee. The offender can come before the committee to state his case is he so wishes. Management, in consultation with the Advisory Committee, will determine disposition.

'During the first six months a man is on the seniority list, if his work and adherence to regulations is not of a satisfactory nature, he will receive a warning slip and be subject to discharge unless improvement is shown. During his second six-month period, he will be allowed a second warning. If he still does not improve his work after that, he is subject to dismissal.' (Emphasis supplied.)

Shaw further alleged that 'he was discharged on or about the 10th day of October, 1969, for alleged absenteeism and tardiness', and that 'prior to said discharge, he did not receive the required three warning slips' or 'a hearing before the Advisory Committee.'

In its answer, Kresge stated that 'it employed the plaintiff on September 14, 1966, and at this time furnished him with a handbook which set forth certain terms and conditions of his employment with the defendant.' Kresge further stated that the plaintiff was discharged 'for chronic absenteeism and tardiness', but denied that it was required to issue three warnsing slips prior to discharging him.

The statements made by Shaw in an affidavit in support of his motion for summary judgment were substantially the same as the allegations made in his complaint. In such affidavit, Shaw reiterated that the handbook constituted a part of the contract of employment and further stated that he agreed to the terms of employment as set forth in the handbook 'by accepting said employment and by remaining in said employment.'

The judgment of the trial court granting Kresge's motion for summary judgment and denying Shaw's motion reads as follows:

'BE IT REMEMBERED that heretofore to-wit: On the 31st day of July, 1973, The Court having heretofore taken under advisement the ruling upon the motions for summary judgment filed by both the Plaintiff and the Defendant, and having examined the pleadings, responses to requests for production of documents of both Plaintiff and Defendant, the Defendant's request for admissions, together with affidavits filed in support of any of said documents, now finds against the Plaintiff upon Plaintiff's motion for summary judgment and denies the relief sought by Plaintiff therein. The Court finds for the Defendant upon the Defendant's motion for summary judgment and further finds that there is no genuine issue as to any material fact which would permit the Plaintiff to recover from the Defendant and that the Defendant is entitled to judgment as a matter of law. That as between the Plaintiff and the Defendant there was no executed contract of employment; that there was no tenure of employment provided between the Plaintiff and the Defendant; that the 'handbook for S. S. Kresge Company, Fort Wayne Distribution Center, 1968 Edition' which is identified as Exhibit A to Plaintiff's first amended complaint, does not establish a contractual relationship between the Plaintiff and the Defendant upon which the Plaintiff can rely in this cause and would constitute at most an employment arrangement between the Plaintiff and the Defendant at will or at sufference. * * *.'

Appellant contends that the trial court erred in concluding that the handbook did not constitute a contract of employment.

An examination of the handbook reveals, in addition to the provision relating to the issuance of warnings, that an employee may be discharged upon a number of grounds including tampering with another employee's automobile on the company parking lot; making a false statement relating to illness; habitual tardiness; purching a time card for another employee or permitting someone else to punch one's own time card; absence for three days without reporting as directed; a '(l)aying off or a goldbricking attitude'; deliberate hindering or tampering with the store orders or work procedures; amoking in restricted areas, theft or drunkenness; arriving on the job in a condition which threatens the safety of an employee's operation or that of his fellow employees; and failure to life a garnishment within thirty days or permitting two garnishments within a twelve month period. Appellant further argues that an implied promise of permanent employment was made by appellee-Kresge, founded upon an implication that the employer bound itself to a promise of permanent employment in the absence of a violation of one of the foregoing rules. In support of this further assertion, appellant makes note of another provision in the handbook which draws a distinction between 'temporary employees' and 'full-time employees.' Temporary employees are referred to as persons 'working for an indeterminate length of time.' Appellant thus concludes that temporary employees are retained at will or sufference and that full-time employees, including himself, are not.

In Rogers v. Rogers (1919), 70 Ind.App. 659, at 668--669, 122 N.E. 778, at 780--781, it is stated...