Walpus v. Milwaukee Elec. Tool Corp.

• Decision Date: 02 June 1995
• Docket Number: No. S-93-753,S-93-753
• Citation: 532 N.W.2d 316,248 Neb. 145
• Court: Nebraska Supreme Court
• Parties: , 131 Lab.Cas. P 58,090 Carl R. WALPUS, Appellant, v. MILWAUKEE ELECTRIC TOOL CORPORATION, Appellee.

Page 316

532 N.W.2d 316

248 Neb. 145, 131 Lab.Cas. P 58,090

Carl R. WALPUS, Appellant, v. MILWAUKEE ELECTRIC TOOL CORPORATION, Appellee.

No. S-93-753.

Supreme Court of Nebraska.

June 2, 1995.

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.

2. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court.

3. Summary Judgment: Appeal and Error. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Employment Contracts: Breach of Contract: Proof. In an action for breach of an employment contract, the burden of proving the existence of a contract and all the facts essential to the cause of action is upon the person who asserts the contract.

5. Employment Contracts. The language which forms the basis of the employment contract, whether oral or written, must constitute an offer definite in form which is communicated to the employee, and the offer must be accepted and consideration furnished for its enforceability.

6. Employment Contracts: Termination of Employment: Evidence. The subjective opinions of supervisors or managers regarding whether an employee may be terminated without cause, without objective evidence that those thoughts were communicated to the employee, are irrelevant to determining whether the employer is contractually limited to terminating the employee for cause.

7. Termination of Employment. Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason.

8. Employment Contracts. Oral representations may, standing alone, constitute a promise sufficient to create contractual terms which could modify the at-will status of an employee.

Thomas J. Young, of Young & LaPuzza, Omaha, for appellant.

Robert F. Rossiter, Jr., and Lori L. Fuhrman, of Fraser, Stryker, Vaughn, Meusey Olson, Boyer & Blotch, P.C., Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT and CONNOLLY, JJ.

CONNOLLY, Justice.

Carl R. Walpus appeals the decision of the Douglas County District Court sustaining the summary judgment motion filed by Walpus' former employer, Milwaukee Electric Tool Corporation (METCO), in Walpus' wrongful termination action. Walpus also assigns as error the district court's decision finding certain evidence irrelevant and therefore inadmissible. For the reasons cited below, we affirm.

I. FACTUAL BACKGROUND

1. EVENTS LEADING TO TERMINATION

METCO is a Wisconsin-based company which manufactures and sells portable electric tools on a worldwide basis. Walpus began working for METCO as a district manager in May 1974. Walpus' duties primarily involved selling METCO's products to purchasers in Nebraska and Iowa. Walpus is credited with developing and maintaining METCO's clientele in his region and was considered by his immediate supervisor, Jim Jenkins, to be one of the top salespersons in that region.

Walpus' employment with METCO became tenuous on January 5, 1990, when his biggest client, Kel-Welco, banned him from its property. The president of Kel-Welco, Phil Welch, banned Walpus after hearing that Walpus had discussed Kel-Welco's credit situation with representatives from Thacker Electric, a METCO client and a competitor of Kel-Welco's. Richard Randlett, the vice president of marketing for METCO, testified that Kel-Welco's decision to ban Walpus from its property would have had a negative impact on METCO's ability to do business with Kel-Welco over time. However, the record reflects that from the time Kel-Welco banned Walpus until the date of Walpus' termination, Kel-Welco continued to make regular purchases from METCO.

When Jenkins learned of the Kel-Welco situation, he telephoned Walpus and informed him that he had until February 16 to resolve his problems with Kel-Welco. A memorandum from Jenkins to Walpus dated January 13, 1990, confirmed the telephone conversation and clearly indicated that if Walpus did not resolve the Kel-Welco situation by the February 16 deadline, Walpus' employment with METCO would be terminated.

Walpus wrote a letter to Jenkins denying any wrongdoing and expressing his disappointment with the way METCO handled the Kel-Welco situation. Walpus also made numerous attempts to discuss the Kel-Welco situation with Welch after he received the memorandum from Jenkins. However, when the February 16 deadline arrived, Walpus was still banned from Kel-Welco property. For that reason, on February 16, Jenkins informed Walpus that his employment with METCO had been terminated.

2. FACTUAL SUPPORT FOR EMPLOYMENT CONTRACT

In his petition, Walpus alleged that certain oral and written representations made by METCO management contractually restricted METCO's ability to terminate Walpus without cause. We will review the alleged representations in chronological order.

The first representation cited by Walpus occurred during his first job interview with METCO. Walpus claimed that during that first interview, Jenkins told him that he could only be terminated if he stole from the company or if he did not do his job. According to Walpus, Jenkins repeated the same limited grounds for termination during his third job interview with METCO.

Walpus next contends that he received a written "sales manual" on his first day of work. METCO distributed the sales manual, a booklet which outlined various terms and conditions of employment, to all its district managers. The sales manual contained the following language regarding termination of employment:

TERMINATION OF EMPLOYMENT

District Managers may be discharged by the Company for any of the following reasons:

1. Falsification of forms or reports. These would include employment form, expense sheet, route sheet, call reports, etc.

2. Failure to develop the sales territory after a reasonable length of time. This would be documented by a number of letters and warnings from supervisors.

3. Conduct unbecoming an employee of the Company. This could range from being convicted of a felony to drinking on the job to cashing worthless checks with customers.

4. Personally buying or selling Company merchandise, accepting distributor kickbacks, or charging for repairs or replacement parts furnished from the service kit.

5. Insubordination, wherein a salesman fails to discharge his normal responsibilities or is habitually uncooperative with supervisors or Company department heads.

6. Excessive or unexplained absenteeism.

If it becomes necessary to terminate a District Manager, he will be given two weeks salary as severance pay. His final salary and commission checks will be held up until all the demonstration equipment, automobile, manuals and displays have been accounted for and checked in at either the Factory or Branch. Walpus claimed that this language in the sales manual expressly limited METCO's ability to discharge employees to those instances listed therein.

Additionally, Walpus claimed that during group meetings held two to three times a year, Jenkins discussed the issue of termination for cause with the district managers. In his affidavit, Walpus testified that "[a]t a great many of these meetings Mr. Jenkins repeatedly informed all of the sales representatives, including myself, that the provisions of the Sales Manual were binding upon both the District Managers and [METCO], inclusive of the provisions with regard to termination of District Managers." That statement from Walpus' affidavit is the most detailed explanation of the alleged statements attributed to Jenkins at the group meetings.

Walpus also cited the deposition testimony of Jenkins and Randlett as evidence supporting his contention that METCO contractually limited its ability to terminate Walpus without cause. Jenkins and Randlett each testified that they believed they needed cause to terminate Walpus.

3. PROCEDURAL HISTORY

Walpus filed the instant lawsuit against METCO for wrongful termination. METCO filed a motion for summary judgment, which the district court granted.

II. ASSIGNMENTS OF ERROR

Walpus contends that the district court erred in (1) sustaining METCO's relevancy objections to portions of Walpus' evidence and (2) granting METCO's motion for summary judgment.

III. STANDARD OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. Kroeger v. Ford Motor Co., 247 Neb. 323, 527 N.W.2d 178 (1995); Terry v. Duff, 246 Neb. 524, 519 N.W.2d 550 (1994); McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994). The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. Kroeger v. Ford Motor Co., supra; Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994); Kudlacek v. Fiat S.p.A., 244 Neb. 822, 509...