Solomon v. Walgreen Co., 92-7265

• Decision Date: 21 September 1992
• Docket Number: No. 92-7265,92-7265
• Citation: 975 F.2d 1086
• Parties: 123 Lab.Cas. P 57,154, 8 IER Cases 34 Sandra Judith "Sandy" Simons SOLOMON, Plaintiff-Appellant, v. WALGREEN CO., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1086

975 F.2d 1086

123 Lab.Cas. P 57,154, 8 IER Cases 34

Sandra Judith "Sandy" Simons SOLOMON, Plaintiff-Appellant, v. WALGREEN CO., Defendant-Appellee.

No. 92-7265

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 21, 1992.

John A. Hatcher, Duncan Lott, Booneville, Miss., for plaintiff-appellant.

Thomas D. Murry, Taylor B. Smith, Mitchell, McNutt, Threadgill, Smith &amp Sams, P.A., Tupelo, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before KING and WIENER, Circuit Judges. ^*

PER CURIAM:

The district court for the Northern District of Mississippi granted defendant Walgreen Co.'s motion for summary judgment against plaintiff Sandra Judith "Sandy" Simons Solomon (Solomon) in her action for the alleged breach of an employment contract. Finding that no genuine issue of material fact exists from which a jury could determine that Walgreens was in breach of contract with Solomon, we affirm.

I.

On August 26, 1985, Solomon applied for and accepted the job of liquor department manager at the Walgreens store located in Hoffman Estates, Illinois. In 1988 she learned of Walgreens' plans to open a store in Antioch, Illinois, and requested a transfer to Antioch, which she received. In May of 1989, Solomon changed stores again, and went to work at the Walgreens in Fox Lake, Illinois.

Sometime in February of 1990, Solomon approached Roy Grauer, her district manager, and informed him that she was in the process of obtaining a divorce and desired to move to Tupelo so she could be near her adult daughter. Upon learning that a Memphis Walgreens store had a liquor department but that the Tupelo location did not, Grauer asked Solomon if she would consider working in Memphis instead. Solomon refused, stating that Memphis was too far away from her daughter. Grauer then contacted Mike Earnest, manager of the Tupelo Walgreens, who informed Grauer that hours were currently available at the Tupelo store. Grauer initiated no further steps regarding the possibility of Solomon's employment in Tupelo. Solomon acknowledged that Tupelo was not within Grauer's district, and that he had no authority to move Solomon to the Tupelo store himself.

In March of 1990, Solomon again approached Grauer, requesting him to prepare a letter which she could give to the judge presiding over her divorce action to verify that she would be able to retain her health insurance on her minor children upon her move to Mississippi. As an accommodation to Solomon, Grauer prepared a letter addressed "To Whom It May Concern," stating that "Sandy Simons has been guaranteed 30 hours of employment at the Walgreen Drug Store located at 423 S. Gloster Street, Tupelo, Mississippi. This will enable Sandy to maintain her health insurance with Walgreen." Earnest wrote a similar letter stating that "We will be able to guarantee the employee 35 to 40 hours so she can keep her major medical."

In mid-April, Solomon was in Tupelo for her daughter's wedding and dropped in unexpectedly at the Walgreens store. She introduced herself to Earnest who told her to come and see him when she got down to Mississippi. Solomon did not tell Earnest when she anticipated moving to Tupelo, and there was no discussion of any employment positions, hours, schedule, or rate of pay. Upon ascertaining the date of her move, she made no effort to contact Earnest to inform him of her anticipated arrival date. On June 28, 1990, Solomon requested three months personal leave to relocate to Mississippi. On July 2, 1990, she presented herself at the Tupelo store for employment. Solomon was not hired, as no job openings were available.

Sometime in March of the following year, Solomon filed a lawsuit against Walgreens alleging breach of contract of her "guaranteed job" in the Tupelo Mall Walgreens. On June 1, 1991, Walgreens hired Solomon to work at the Tupelo location. She continued to work at this location until August 31, 1991, when Walgreens closed its Tupelo store.

In April of 1992, the district court for the Northern District of Mississippi granted summary judgment in favor of Walgreens, holding that nothing in the record would lead a reasonable juror to believe that Walgreens breached an employment contract with Solomon.

II.

On appeal we review a summary judgment de novo, applying the same standards as the district court. Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir.1989). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the facts drawing all inferences in the light most favorable to the nonmoving party. Duvall v. The Ritz Carlton Hotel Co., 946 F.2d 418, 420 (5th Cir.1991). If the record taken as a whole, however, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact to be resolved at trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The substantive law of the case identifies which facts are material for the purposes of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In the case at bar, the substantive law of Mississippi controls. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). This court is Erie-bound to apply state law as it currently exists, and may not change that law or adopt innovative theories of recovery. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 396-97 (5th Cir.1986); see also United Parcel Serv., Inc. v. Weben Indus., Inc., 794 F.2d 1005, 1008 (5th Cir.1986).

III.

A. The Mississippi Employment at Will Doctrine

Mississippi has long adhered to the common law rule that "where there is no employment contract (or where there is a contract which does not specify the term of the worker's employment), the relation[ship] may be terminated at will by either party." Perry v. Sears, Roebuck, & Co., 508 So.2d 1086, 1088 (Miss.1987). The employment at will doctrine was explained in Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 874-75 (Miss.1981), as follows:

The employee can quit at will; the employer can terminate at will. This means that either the employer or the employee may have a good reason, a wrong reason, or no reason for terminating the employment contract.

Id. Mississippi has rigidly adhered to this rule since 1858. See Butler v. Smith & Tharp, 35 Miss. 457, 464 (1858). ¹

Acknowledging this doctrine to be controlling, Solomon nonetheless attempts to escape its application by arguing that she had a specific contract of employment with Walgreens evidenced by the letters from Grauer and Earnest, and the Walgreens employment manual and handbook. Despite Solomon's arguments, we find the facts clearly indicate that the relationship between herself and Walgreens was at will.

Solomon's original employment application from 1985, signed by Solomon herself, specifically states as follows:

3. I understand that my employment with Walgreen Co. is for no definite period and may be terminated at any time, with or without cause, and without any previous notice, at the option of either Walgreen Co. or me. I further understand that no employee, manager or other agent or representative of Walgreen Co., other than its Chief Executive Officer, has any authority to enter into any agreement for employment for any specified time, or to make any agreement or amendment contrary to the foregoing.

This clearly indicates that the relationship between the two parties was at will. ²

Solomon argues that the letters supplied at her request by Grauer and Earnest modified her at-will status and gave her a specific contract of employment with Walgreens. Under Mississippi law, we fail to see how this can be so. As the facts state, the two Walgreens managers provided Solomon with letters stating that she would be guaranteed a specific number of hours. First of all, by the unambiguous terms of Solomon's signed employment application, Solomon had express notice that no manager, such as Grauer or Earnest, had the authority to modify her at-will status by employing her for a definite term. Second, while a specific number of hours is given, no definite length of term of employment--nor any other details of her allegedly "guaranteed" position--appear in either letter. Length of employment is a substantial term and must be included in a writing offered to show a contract of employment for a definite term in order for the statute of frauds to be satisfied. Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309, 1313 (Miss.1989); see Miss.Code Ann. § 15-3-1(d) (1972).

Solomon tenuously attempts to argue that this critical missing element is supplied by Grauer's and Earnest's references to "30 hours" and "35 to 40 hours" of employment. We fail to see how this reference establishes a definite term of employment. In the brief she submitted to this court, Solomon contends that this statement of hours establishes a definite period of employment "[w]hether the term be one hour or one month," and that "[w]hether the plaintiff's employment were for one day or six months, the length of that employment is not relevant." The argument Solomon is attempting to advance is far from definite; she herself cannot devine a definite term of employment from the nebulous writings of Grauer and Earnest. ³ Employment of an agent for an indefinite time is terminable at will under Mississippi law. Butler, 35 Miss. at 464. Without a written confirmation of length of employment, Solomon remained an employee at will subject to dismissal for a good reason, a wrong reason, or no reason at all. See Robinson v. Coastal Family...