Snell v. UACC Midwest, Inc., Docket No. 138335

• Citation: 487 N.W.2d 772,194 Mich.App. 511
• Decision Date: 10 June 1992
• Docket Number: Docket No. 138335
• Parties: Robert SNELL, Plaintiff-Appellee, v. UACC MIDWEST, INC, d/b/a UA Cablesystems of Michigan, a Delaware corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 772

487 N.W.2d 772

194 Mich.App. 511

Robert SNELL, Plaintiff-Appellee, v. UACC MIDWEST, INC, d/b/a UA Cablesystems of Michigan, a Delaware corporation, Defendant-Appellant.

Docket No. 138335.

Court of Appeals of Michigan.

Submitted March 10, 1992, at Grand Rapids.

Decided March 30, 1992.

Approved for Publication

June 10, 1992, at 9:00 a.m.

Released for Publication Aug. 28, 1992.

Buchanan & Bos by Bradley K. Glazier, Grand Rapids, for plaintiff-appellee.

Keywell & Rosenfeld by Gary W. Klotz, Denise S. Gold, Elaine A. Parson, and Eric B. Gaabo, Troy, for defendant-appellant.

Before FITZGERALD, P.J., and HOOD and MARK J. CAVANAGH, JJ.

PER CURIAM.

Defendant appeals as of right from a circuit court order granting judgment consistent with a jury verdict in favor of plaintiff and from the court's denial of defendant's motions for judgment notwithstanding the verdict, a new trial, and remittitur. We affirm.

I

Defendant first argues that the trial court erred in failing to grant its motion for a directed verdict with regard to the issue whether plaintiff was employed pursuant to an express or implied contract of employment that prohibited his termination except for just cause. We disagree.

Oral contracts of employment for an indefinite term are presumed to be terminable at the will of either party. This presumption can be overcome, however, by the existence of an express agreement to the contrary, or by the employee's legitimate expectations of continued employment absent "just cause" for termination arising from the employer's established policies and procedures. Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). To infer that an employment contract provides for termination only for just cause, the employee must have an objective expectation of continued employment, not merely a subjective one. Grow v. General Products, Inc., 184 Mich.App. 379, 382-384, 457 N.W.2d 167 (1990).

Whether an employer's policies and procedures constitute sufficient bases for the creation of an objective expectation of employment terminable only for just cause is a question for the jury. Toussaint, supra, 408 Mich. at pp. 620-621, 292 N.W.2d 880. See also Renny v. Port Huron Hosp., 427 Mich. 415, 417, 398 N.W.2d 327 (1986). Further, in determining whether a reasonable finder of fact can conclude that a promise of job security is implied, this Court must look at all the facts and circumstances to evaluate the intent of the parties. Rowe v. Montgomery Ward & Co., Inc., 437 Mich. 627, 639, 473 N.W.2d 268 (1991). With respect to oral statements, this requires a determination of the meaning that reasonable persons might have attached to the language given the circumstances presented. Id., p. 640, 473 N.W.2d 268. The statements must "clearly permit a construction which supports the asserted meaning." Id., p. 641, 473 N.W.2d 268.

We have carefully reviewed the record and remind defendant that plaintiff has not based his claim solely on the preemployment statements made by Alan Bigelow. Rather, plaintiff points to other statements made by Bigelow as well as the apparent practice of progressive discipline engaged in by Bigelow and other supervisors. Viewing all the evidence in a light most favorable to plaintiff, and according plaintiff all reasonable inferences, we conclude that a genuine issue of material fact existed upon which reasonable minds could differ regarding the existence of an employment contract providing for termination only for just cause. Stoken v. J.E.T. Electronics & Technology, Inc., 174 Mich.App. 457, 463, 436 N.W.2d 389 (1988). The trial court, therefore, did not err in denying defendant's motion for a directed verdict.

II

Defendant next argues that the trial court should have granted its motion for judgment notwithstanding the verdict because (1) plaintiff failed to prove he was employed pursuant to an employment contract providing for termination only for just cause, (2) defendant had just cause for terminating plaintiff, (3) defendant did not have a policy requiring three warnings before discharging for "really screwing up", (4) plaintiff received at least three warnings before termination, (5) defendant had the right to terminate plaintiff without further warning for his dishonesty, and (6) plaintiff failed to mitigate his damages.

A motion for judgment notwithstanding the verdict should be granted only where the evidence presented is insufficient to create an issue for the jury. Wilson v. General Motors Corp., 183 Mich.App. 21, 36, 454 N.W.2d 405 (1990). As with a motion for a directed verdict, the evidence and all reasonable inferences are to be viewed most favorably to the nonmoving party. Shipman v. Fontaine Truck Equipment Co., 184 Mich.App. 706, 711, 459 N.W.2d 30 (1990).

A

As discussed previously, plaintiff presented sufficient evidence of defendant's statements and procedures to justify submitting to the jury the issue of the existence of an employment contract providing for termination only for just cause. Denial of defendant's motion for judgment notwithstanding the verdict on this basis was therefore proper.

B

Once the jury determined that plaintiff was employed pursuant to a contract that entitled him to the protection of termination only for just cause, the question whether his discharge was in breach of that contract was also one for the jury. Toussaint, supra, 408 Mich. at pp. 620-621, 292 N.W.2d 880. In connection with this duty, the jury is permitted to determine the employer's true reason for the discharge and whether the stated reason amounts to good cause. Id., p. 622-623, 292 N.W.2d 880.

The various arguments raised by defendant on appeal all focus on factual decisions required to be made by the jury in order to render a verdict. Plaintiff claimed that his employment contract provided for three warnings (possibly written) as part of the progressive discipline policy apparently in effect. Plaintiff offered evidence explaining, in part, his failure to adequately perform his duties on September 16, 1988, and presented the jury with his theory that his discharge was spurious because the job assignment was designed to give defendant the means to the desired end.

Whether the employment contract provided for the warnings plaintiff claims and whether he did in fact receive such warnings were clearly issues of fact to be resolved solely by the jury. Further, the jury was entitled to determine defendant's true motive for discharging plaintiff and whether its stated reason amounted to good cause. Moreover, the jury was able to view the demeanor of the witnesses and assess credibility. The trial court therefore properly denied defendant's motion for judgment notwithstanding the verdict on the basis of the jury's factual findings.

C

Lastly, defendant claims that the trial court should have granted judgment in its favor because plaintiff failed to mitigate his damages. We disagree.

Although the principle of mitigation obligates the plaintiff to accept employment of like nature, whether the plaintiff is reasonable in not seeking or accepting particular employment is a question for the trier of fact. Hughes v. Park Place Motor Inn, Inc., 180 Mich.App. 213, 220, 446 N.W.2d 885 (1989); Brewster v. Martin Marietta Aluminum Sales, Inc., 145 Mich.App. 641, 663, 378 N.W.2d 558 (1985); Higgins v. Kenneth R Lawrence, DPM, PC, 107 Mich.App. 178, 181, 309 N.W.2d 194 (1981). Upon...