PRYSAK v. R L POLK COMPANY
Case Details
- Citation
- 193 Mich. App. 1
- Judge(s)
- Before: Reilly, P.J., and Gillis and Michael J. Kelly, JJ.; Gillis, J., concurred.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The court affirmed summary disposition in favor of the employer R.L. Polk Company and defendant Crestwood Dodge, Inc., finding no genuine issue of material fact regarding a just-cause employment contract, no actionable public policy exception to at-will employment for private-employer termination based on free speech, and no tortious interference or libel claims.
Excerpt
PRYSAK v R L POLK COMPANY Docket No. 119770. Submitted May 7, 1991, at Detroit. Decided February 3, 1992, at 9:35 A.M. Daniel T. Prysak brought an action in the Wayne Circuit Court against the R. L. Polk Company, alleging breach of an employment contract and wrongful discharge, and Crestwood Dodge, Inc., alleging tortious interference with a contractual relationship and libel. Polk terminated the plaintiff’s employment after Crestwood informed it that the plaintiff had allegedly threatened to use information available to him through his employment to contact Chrysler Corporation customers to complain about his car and the service he had received from Crestwood unless Crestwood dropped a small claims matter it had brought against him. The court, Thomas J. Foley, J., granted the defendants’ motions for summary disposition. The plaintiff appealed. The Court of Appeals held: 1. Summary disposition of the claims against Polk was properly granted because no genuine issue of material fact existed regarding the existence of a contract providing for termination only for just cause. The plaintiff did not receive a clear and unequivocal promise of job security from Polk or receive an employee policy manual or information about the contents of the manual. The plaintiff therefore cannot claim an express agreement or legitimate expectation that he would be terminated only for just cause. 2. Because Polk, a private employer, is not bound by the constitutional provisions guaranteeing freedom of speech, the alleged termination of the plaintiff’s employment for exercising his constitutional right to free speech is not actionable under the public policy exception to employment at will. 3. The granting of summary disposition before Polk answered _interrogatories designed to provide the plaintiff with information regarding Polk’s policies or criteria regarding hiring and termination practices was not premature. The plaintiff admitted that he had no knowledge of the policies or criteria and, therefore, could not claim reliance thereon, and further discovery would not have provided a fair chance of uncovering factual support for the existence of a contract providing for termination only for just cause. References Am Jur 2d, Interference §§ 45, 47; Libel and Slander §§ 195-200, 484; Master and Servant §§ 20, 27, 48.7. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. Summary disposition of the claim of tortious interference with a contractual relationship against Crestwood was proper. Crestwood’s action was not wrongful conduct per se or lawful conduct that was done with malice, and there is no evidence that Crestwood intended to interfere with plaintiffs contractual relationship with Polk. 5. The trial court correctly determined that a letter Crest-wood sent to Polk was subject to a qualified privilege. Because the plaintiff does not allege that the letter was written with actual malice, he did not overcome the privilege. Summary disposition of the libel claim against Crestwood was proper. Affirmed. Michael J. Kelly, J., dissenting in part, stated that summary disposition for Crestwood was improper because a question of fact existed whether the plaintiff threatened to use Polk’s lists to communicate his grievance to Crestwood’s customers. 1. Master and Servant — Employment at Will — Termination of Employment — Termination for Cause. A contract for permanent employment is for an indefinite period of time and is presumed to provide employment at will; a contract providing for termination for only just cause may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. 2. Master and Servant — Employment at Will — Oral Contracts. Oral statements of job security must be clear and unequivocal in order to overcome the presumption of employment at will. 3. Master and Servant — Employment at Will — Public Policy Exception — Free Speech — Private Employers. Although employment at will generally may be terminated at any time and for any reason, an exception exists where the grounds for termination are so contrary to public policy as to be actionable; the public policy exception does not apply where an employee at will of a private employer is terminated for exercising the constitutional right to free speech because the private employer is not bound by the constitutional provisions guaranteeing freedom of speech (US Const, Am I; Const 1963, art 1, § 3). 4. Motions and Orders — Summary Disposition. Summary disposition generally is premature if it is granted before discovery on a disputed issue is complete; it may be appropriate, however, if further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. 5. Torts — Interference With Contractual Relationship. A plaintiff may maintain an action for tortious interference with a contract for employment at will. 6. Torts — Interference With Contractual Relationship — Wrongful Acts Per Se. A plaintiff who alleges tortious interference with a contractual or business relationship, in order to withstand a motion for summary disposition, must allege the intentional doing of an act that is wrongful per se or the doing of a lawful act with malice and unjustified in law for the purpose of invading the plaintiff’s contractual rights or business relationship; an act that is wrongful per se is an act that is inherently wrongful or an act that can never be justified under any circumstances. 7. Libel and Slander — Privilege — Questions of Law. The initial determination whether a privilege exists is one of law for the court. 8. Libel and Slander — Qualified Privilege — Malice. The essential elements of a qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only; a plaintiff may overcome a qualified privilege only by showing that the statement was made with actual malice. Poplar & Kalis, P.C. (by John Poplar and Anrico D. Pinto), for the plaintiff. Clark, Klein & Beaumont (by Fred W. Batten and Nancy J. Gordon), for R.L. Polk Company. Abbott, Nicholson, Quilter, Esshaki & Young- blood, P.C. (by Carl F. Jarboe), for Crestwood Dodge, Inc. Before: Reilly, P.J., and Gillis and Michael J. Kelly, JJ. Reilly, P.J. Plaintiff appeals as of right from circuit court orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C) (10). We affirm. Plaintiff was employed as a computer operator by defendant R. L. Polk Company (Polk), a publishing and market research company, from November 1985 to March 1988. Plaintiff was discharged from his job in March 1988 for allegedly threatening a customer, defendant Crestwood Dodge. Before his termination, plaintiff had experienced problems with his car and took it to Crestwood for repair. A dispute arose between plaintiff and Crestwood regarding the amount owed for use of a replacement car. Crestwood brought a small claims action to recover this amount. Plaintiff participated in mediation of the action with two representatives of Crestwood. During the course of the mediation, the mediator left the room so that the parties could resolve the matter between themselves. What happened when the mediator left is disputed by the parties. Plaintiff asserts that he told the Crestwood representatives that he would take a day off from work and stand out in front of the dealership to pass out letters indicating that his Dodge Shadow was a "lemon.” The Crestwood representatives asserted that plaintiff stated that he worked for Polk and that if the small claims matter was not dropped he would send letters stating that his car was a "lemon” to all of Chrysler’s customers. The representatives believed that the mailing was to be accomplished by using information available to plaintiff through his employment at Polk. Crestwood sent a letter informing Polk of plaintiffs alleged threat. In the letter, Crestwood expressed concern regarding the improper use of its customer lists and requested assurance from Polk that "Mr. Prysak’s stated plan does not come to fruition.” On the day his employment was terminated, plaintiff was called into the personnel office and was shown the letter. Plaintiff was informed that he was being discharged for threatening a customer. In his complaint, plaintiff alleged that he was employed pursuant to a contract providing for termination for just cause only that was breached by Polk when his employment was terminated. Plaintiff also claimed that his termination was against public policy and constituted an intentional infliction of emotional distress. Additionally, it was alleged that Crestwood had intentionally interfered with the contractual relationship between plaintiff and Polk and that Crestwood’s letter to Polk contained libelous statements regarding plaintiff. Both Polk and Crestwood brought motions for summary disposition pursuant to MCR 2.116(C) (10). The circuit court granted both motions. On appeal, plaintiff asserts that the trial court improperly granted defendants’ motions for summary disposition. A motion for summary disposition premised on MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A party opposing a motion brought under C(10) may not rest upon the mere allegations or denials in the pleadings, but must by affidavit, deposition, admission, or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). Panich v Iron Wood Products Corp, 179 Mich App 136, 139; 445 NW2d 795 (1989). This Court is liberal in finding a genuine issue of material fact. St Paul Fire & Marine Ins Co, v Quintana, 165 Mich App 719, 722; 419 NW2d 60 (1988). Nonetheless, where the opposing party fails to come forward with evidence, beyond the allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. SSC Associates v General Retirement System of the City of Detroit, 192 Mich App 360; 480 NW2d 275 (1991); Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987); MCR 2.116(G)(4). i Plaintiff first claims that summary disposition was improper in regard to his claims of breach of an employment contract and wrongful discharge because there was a genuine issue of material fact whether plaintiff was employed pursuant' to a contract providing for termination for just cause only. Plaintiff asserts that his claim of a just-cause contract is supported by the employee handbook issued by Polk and statements made to him by a supervisor at Polk. Generally, a contract for permanent employment is for an indefinite period of time and is presumed to provide for employment at will. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 596; 292 NW2d 880 (1980). However, a contract providing for termination for just cause only may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. Id. at 598. An employee’s legitimate expectations may be based on the employer’s written policy statements set forth in an employee manual or handbook. Id. at 599. While plaintiff argues that the existence of Polk’s employee manual creates an issue of fact regarding the existence of a just-cause contract, he admits in his brief on appeal and in his deposition testimony that he does not recall ever receiving an employee policy manual. Nor does he claim that he was told of its contents. Therefore, we fail to see how plaintiff can assert that his interpretation or understanding of the manual or handbook gave rise to an expectation either subjective or objective, that he would be terminated only for just cause. Compare Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 465; 436 NW2d 389 (1988). Accordingly, we reject plaintiff’s argument that statements made in Polk’s employee manual or handbook create an issue of fact regarding the existence of a just-cause contract. Plaintiff also asserts that oral representations made to him by an agent of Polk create a genuine issue of material fact in regard to the existence of a just-cause contract. In his deposition, plaintiff stated that he had a discussion with a manager at Polk regarding another employee who was not "working out.” Plaintiff testified that the manager told him "you just can’t go firing people for no reason . . . you got [sic] to have a reason.” In order to overcome the presumption of employment at will, oral statements of job security must be "clear and unequivocal.” Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 644; 473 NW2d 268 (1991). The Court in Rowe determined that oral statements made to the plaintiff at her initial interview that as long as she sold, she would have a job at Montgomery Ward did not clearly indicate an intent to form a contract to terminate only for cause. Id. at 645. It was noted by the Court that the statements made to Mrs. Rowe were similar to the statement considered in Toussaint, supra. However, the Court found lacking objective evidence that would permit a reasonable juror to find that a reasonable promisee would interpret the statements as a promise of termination for cause only. Rowe, supra at 643. In making this determination, the Court noted that the statement was not made in response to any inquiry by the plaintiff regarding job security or during the course of negotiating the terms of employment. The statement relied on by plaintiff in this case is not a "clear and unequivocal” promise of job security. Furthermore, the circumstances surrounding the statement do not provide objective evidence that a just-cause contract existed. The statement was not made in the context of negotiating plaintiff’s terms of employment or in response to inquiries regarding his job security. Rather, they were made during the course of a discussion regarding the job performance of another employee. Under these circumstances, a reasonable juror could not find that the statements made to plaintiff could be reasonably interpreted as a promise of termination for cause only. On the basis of the foregoing, we conclude that no issue of fact existed regarding the existence of a just-cause contract. Polk’s motion for summary disposition of the claims of wrongful termination and breach of contract was properly granted. ii Next, plaintiff argues that summary disposition was improper because facts existed to support his claim that the termination of his employment was contrary to public policy. Specifically, plaintiff claims that he was discharged for stating that he was going to exercise his constitutional right to free speech by standing in front of Crestwood Dodge and expressing his dissatisfaction with Crestwood’s product and service. Generally, at-will employment may be terminated at any time, for any reason. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). However, there is an exception to the general rule based on the principle that some grounds for termination are so contrary to public policy as to be actionable. Id. at 695. These proscriptions have been found in explicit legislative statements that prohibit the discharge, discipline, or other adverse treatment of employees acting in accordance with a statutory right or duty. Id. at 695. See, e.g., MCL 37.2701; MSA 3.548(701) (Civil Rights Act), and MCL 15.362; MSA 17.428(2) (Whistleblowers’ Protection Act). Additionally, courts have implied a prohibition on retaliatory discharge where the reason for the discharge was the employee’s exercise of a statutory right, Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976) (employee discharged in retaliation for filing a workers’ compensation claim), or the employee’s refusal to violate a law. Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). While this Court has recognized that it may be a violation of the First Amendment for a county employer to discipline or discharge an employee for engaging in certain types of speech, Pilarowski v Brown, 76 Mich App 666; 257 NW2d 211 (1977), plaintiff has not cited, and we have not found, any Michigan authority that addresses the issue whether an employee of a private employer who is terminated for exercising his constitutional right to free speech may maintain an action under the public policy exception to at-will employment. Both the United States and Michigan Constitutions guarantee the plaintiff’s right to free speech. However, unlike the statutory provisions that have provided the basis for the public policy exception in the above-noted cases, the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protection against state action. US Const, Am I; Const 1963, art 1, § 3; Hudgens v NLRB, 424 US 507, 513; 96 S Ct 1029; 47 L Ed 2d 196 (1976); Woodland v Michigan Citizens Lobby, 423 Mich 188, 212; 378 NW2d 337 (1985). Because Polk is a private employer, it is not bound by the constitutional provisions guaranteeing freedom of speech. Accordingly, plaintiff has failed to state a claim upon which relief can be granted, MCR 2.116(C)(8), and summary disposition was properly granted with regard to the claim, albeit for the wrong reason. Griffey v Prestige Stamping, Inc, 189 Mich App 665, 669; 473 NW2d 790 (1991). hi Plaintiff’s next argument is that summary disposition was premature because it was granted before Polk answered interrogatories submitted by plaintiff. Plaintiff claims that the interrogatories were vital to discovery because they were designed to reveal Polk’s past employment and termination policies and practices. Generally, summary disposition granted before discovery on a disputed issue is complete is considered premature. Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 216; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991). However, summary disposition may be proper before discovery is complete where further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. Id. In the present case, Polk’s motion for summary disposition was not granted prematurely. The motion was granted after the discovery period had expired. See MCR 2.301(A). Although plaintiff told the court at the time the motion was granted that Polk had not answered the interrogatories, our review of the lower court record shows that there is no indication that plaintiff ever filed a motion to compel Polk to respond to the interrogatories before or after the expiration of the period for discovery. Furthermore, summary disposition was appropriate because further discovery would not have provided a fair chance of uncovering factual support for plaintiff’s claim. Plaintiff claims that the answers to interrogatories would have provided him with information regarding Polk’s policies regarding hiring and termination practices. However, as was discussed previously, plaintiff’s claim that he had a just-cause employment contract was based on the oral representations made by a superior and the statements of policy made in the employee handbook. However, as we concluded previously, because plaintiff did not remember ever receiving the handbook and he does not claim he was informed of the contents of the handbook, he could not rely on any policy statements made therein. Furthermore, plaintiff stated in his deposition that he did not know Polk’s criteria for firing someone or even if Polk had such criteria. As
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