Summers v. Sears, Roebuck & Co.

• Decision Date: 18 October 1982
• Docket Number: Civ. No. 81-73233.
• Parties: Ross SUMMERS, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.
• Court: U.S. District Court — Western District of Michigan

549 F. Supp. 1157

Ross SUMMERS, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.

Civ. No. 81-73233.

United States District Court, E.D. Michigan, S.D.

October 18, 1982.

William H. Necker, Wayne, Mich., for plaintiff.

Charles C. DeWitt, Detroit, Mich., for defendant.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This civil action brought by an employee of defendant Sears, Roebuck and Co., and Carolyn Summers, his wife, is based upon an alleged unlawful demotion. Ross Summers asserts two causes of action arising out of his demotion. He claims that his demotion constituted a breach of his employment contract and unlawful age discrimination under the Michigan Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2101 et seq. Carolyn Summers claims loss of consortium under each of her husband's causes of action. Jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332. This matter is before the Court on defendant's motion for summary judgment under Fed. R.Civ.Pro. 56(c) with respect to both of Mr. Summers' claims and defendant's motion to dismiss under Fed.R.Civ.Pro. 12(b)(6) with respect to Mrs. Summers' claims of loss of consortium.

From May 15, 1964 until June 5, 1981, Mr. Summers was employed as a display manager at defendant's Livonia Mall store. Mr. Summers reported to the store manager, Arthur Cone. In December of 1980, however, Mr. Cone retired and in January of 1981 John Faucher replaced Mr. Cone as the store manager. Between January and May of 1981, there were several major remodeling projects at the store for which Mr. Summers was responsible. During Mr. Cone's tenure as store manager there had never been several major projects underway at the same time.

On Friday, May 29, 1981, Mr. Summers received a memorandum from Mr. Faucher setting forth several areas of deficiency with respect to his performance and informing him that his work had been totally unsatisfactory. On Monday, June 1, 1981, Mr. Faucher called Mr. Summers to his office and expressed dissatisfaction with his work. He indicated that Mr. Summers would probably be discharged and suggested that he would be better off with a selling job. In response to these remarks, Mr. Summers requested a commissioned selling job. Mr. Faucher told Mr. Summers to go home and discuss it with his wife. On June 2, 1981, Mr. Summers told Mr. Faucher that he was reluctantly accepting a selling job. On June 5, 1981, Mr. Summers began working as a commissioned salesman.

Motion for Summary Judgment

Defendant moves without supporting affidavits for summary judgment under Rule 56(b) on Mr. Summers' claims that his demotion to a selling job constitutes a breach of his employment agreement and unlawful age discrimination. Defendant supported its motion with specific references to the deposition testimony of Mr. Summers. Plaintiffs have not filed any affidavits in opposition to the motion.

Before addressing the parties' arguments, the Court deems it appropriate to review the principles that must guide its decision whether to grant summary judgment. Rule 56(c) provides that summary judgment shall be granted:

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.

The Sixth Circuit recently reiterated the principles governing consideration of a motion for summary judgment in Watkins v. Northwestern Ohio Tractor Pullers Ass'n., 630 F.2d 1155 (6th Cir.1980):

The District Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute. It may not make findings of disputed facts on a motion for summary judgment. The movant has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The movant's papers are to be closely scrutinized while those of the opponent are to be viewed indulgently.

Id. at 1158.

The party moving for summary judgment "bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor." United States v. Articles of Device ..., 527 F.2d 1008, 1011 (6th Cir.1975). See also United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). If the movant establishes by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, Rule 56(e) requires that the opponent produce by affidavit or otherwise "specific facts showing that there is a genuine issue for trial." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1967), reh. denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). See also Daily Press, Inc. v. UPI, 412 F.2d 126 (6th Cir.1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969); Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir.1968); Doff v. Brunswick Corp., 372 F.2d 801 (9th Cir.1967). The Supreme Court addressed the question of how much evidence the opponent must produce to avoid summary judgment in First National Bank of Arizona v. Cities Services Co., supra:

It is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial .... What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.

391 U.S. at 288-89, 88 S.Ct. at 1592-93. However, Rule 56(e) does not require the opponent to show that there is a genuine issue for trial until the movant has demonstrated by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); 2361 State Corp. v. Sealy, Inc., 402 F.2d 370, 375 (7th Cir.1968); Wright & Miller, Federal Practice & Procedure, Civil §§ 2727, 2739 (1973).

The Court will now consider defendant's motion for summary judgment on Mr. Summers' claims of breach of employment contract and unlawful age discrimination.

A. Breach of Employment Contract

Mr. Summers claims that his demotion constituted a breach of his employment contract because he was demoted without just cause. He relies on the principles set forth in Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W.2d 880 (1980), to support his claim that he could not be demoted without just cause. In Toussaint v. Blue Cross, supra, the Michigan Supreme Court recognized a cause of action for wrongful discharge of an employee at will based upon evidence of a company policy that would support an inference that there was a contract not to discharge the employee except for just cause and only in accordance with established personnel practices and procedures. Mr. Summers asserts that these principles extend to demotions as well as discharges.¹ He further argues that certain deposition testimony shows that it was defendant's policy that a person would not be demoted unless there was just cause.

Defendant argues that Mr. Summers' demotion did not breach his employment contract because he requested the selling job and was not involuntarily demoted. Defendant contends that the letter from Mr. Faucher to Mr. Summers and the deposition testimony of Mr. Summers show that Mr. Summers was given the option of improving his performance to the required level to keep his position as display manager. Plaintiffs argue that Mr. Summers' testimony shows that he had to take the selling job or he would be fired.

After reviewing the letter from Mr. Faucher and the pertinent parts of Mr. Summers' deposition, the Court finds that there is a question of fact as to whether Mr. Summers was involuntarily demoted. Defendant's second argument in support of its motion, however, is that the question of whether Mr. Summers was involuntarily demoted is not a question of material fact. It asserts that even if Mr. Summers was involuntarily demoted as he claims, he cannot establish that the demotion breached his employment contract because under the contract Mr. Summers could be demoted without just cause.

Defendant presents two arguments to support its position that Mr. Summers could be demoted without just cause. First, defendant asserts that Mr. Summers could be discharged without just cause under the contract. It argues that since it could terminate Mr. Summers without just cause, it could also demote him without just cause. It further argues that the contractual language precludes the existence of a subsequent implied contract prohibiting demotions without just cause. Plaintiffs do not dispute that defendant could terminate Mr. Summers without just cause. However, they attempt to distinguish a termination from a demotion. They argue that the contractual language is inapplicable because it fails to mention demotion and does not expressly provide that Mr. Summers could be demoted without just cause. They further argue that the contractual language does not preclude the existence of an implied contract prohibiting demotions without just cause.

Defendant's second argument in support of its position that Mr. Summers could be demoted without just cause is that there is no evidence to show that Mr. Summers could only be demoted for...