Thebner v. Xerox Corp.

• Decision Date: 12 December 1985
• Docket Number: No. 84-824,84-824
• Parties: William THEBNER, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee. 480 So.2d 454
• Court: Court of Appeal of Louisiana — District of US

Page 454

480 So.2d 454

William THEBNER, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.

No. 84-824.

480 So.2d 454

Court of Appeal of Louisiana, Third Circuit.

Dec. 12, 1985.

Rehearing Denied Jan. 16, 1986.

Cox, Cox, Townsley and Fowler, James J. Cox, Lake Charles, for plaintiff-appellant.

Sessions, Fishman, Rosenson, Boisfontaine & Nathan, Robert E. Barkley, Jr., New Orleans, for defendant-appellee.

Before DOMENGEAUX, LABORDE and KNOLL, JJ.

KNOLL, Judge.

William Thebner appeals from a partial summary judgment granted in favor of his former employer, Xerox Corporation (hereafter Xerox). Thebner sued Xerox contending that he was wrongfully discharged in contravention of Xerox's employee policy manual; that he was entitled to severance pay under the provisions of the employee policy manual; and that he was due an additional $710.90 under the Xerox retirement plan. The trial court summarily dismissed all of Thebner's claims which were based on Xerox's employee policy manual and referred the issue of Thebner's claim under Xerox's retirement plan to the trial on the merits.

Thebner appeals contending that the trial court erred in failing to find that there was a question of material fact since he was wrongfully discharged in contravention of the employee policy manual. The issue presented is whether Xerox's personnel policy manual constituted an employment contract. We affirm, finding that no issues of material fact existed and that Xerox was entitled to judgment as a matter of law.

FACTS

The facts are undisputed. Thebner began his employment with Xerox in 1969 as a technical representative, servicing Xerox machines. He worked in New York until he was transferred to Lake Charles in 1978. Xerox furnished him a company car which was available for his personal use, subject to reimbursement for personal mileage. In January 1983, Thebner submitted an inaccurate expense report on the company car; he reported approximately 200 miles less than his actual personal mileage and 164 business miles on a company holiday. Thebner's supervisor recommended termination. Twice before, Xerox had placed Thebner on probation.

In mid-February 1983, Thebner submitted a letter of resignation, but withdrew it at the exit interview on February 24, 1983. Thereafter he was suspended without pay, pending a reasonable explanation of his activities. Upon Xerox's request, for purposes of the motion for partial summary judgment and this appeal, it is assumed that Thebner was fired.

SUMMARY JUDGMENT

Thebner contends that whether an implied contract or estoppel was created by Xerox's promises in its personnel policy manual is a question of fact for the jury to decide.

LSA-C.C.P. Art. 966 provides:

"A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.

B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith 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 material fact, and that mover is entitled to judgment as a matter of law.

C. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981); Employers' Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law based on the facts before the court is a summary judgment warranted. Thornhill v. Black, Sivalls & Bryson, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is no genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt will be resolved against the granting of summary judgment and in favor of a trial on the merits. Thornhill v. Black, Sivalls & Bryson, Inc., supra; Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981).

The record before us includes Thebner's deposition, a copy of Xerox's personnel policy manual, all relevant correspondence between Thebner and Xerox management, the company vehicle expense reports, and a memorandum in support of Xerox's motion for partial summary judgment. We find the record supports that there is no genuine issue of material fact and that Thebner's contention presents issues that are clearly questions of law.

PERSONNEL POLICY MANUAL

Three of Thebner's four claims against Xerox are premised on the contention that the Xerox personnel policy manual constitutes a binding employment contract. Accordingly, he argues that his employment was not terminable at will. We disagree.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. Art. 1906. Four elements are required for confection of a valid contract: (1) the parties must possess the capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. LSA-C.C. Arts. 1918, 1927, 1966, 1971; First National Bank of Shreveport v. Williams, 346 So.2d 257 (La.App.3rd Cir.1977). There is no contract unless both parties are bound.

Thebner does not allege that he was employed for a fixed term. Further, the personnel policy manual clearly states: "The policies are not intended to create, nor are they to be construed to constitute a contract, express or implied, between Xerox and any of its employees." After a careful study of Xerox's personnel policy manual, we find that the requisite elements for the confection of a valid contract are not contained therein. Accordingly, Xerox's personnel policy manual does not constitute an employment contract.

LSA-C.C. Art. 2747 provides:

"A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause."

It is well settled that an employee who is...