Opinion
Case Number 01-CV-10266-BC
August 5, 2002
Attorney for plaintiff; Russell C. Babcock [COR LD NTC] Cady, Mastromarco, Saginaw, MI.
Attorney for defendant; Donald A. Van Suilichem [COR LD NTC] Rebecca G. Simkins [COR LD NTC] Van Suilichem Assoc. Bloomfield Hills, MI. Victor J. Mastromarco, Jr. [COR LD NTC] Cady, Mastromarco, Saginaw, MI. Russell C. Babcock [COR LD NTC] Cady, Mastromarco, Saginaw, MI.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Robert Baur, an over-the-road trucker, has filed an action invoking this Court's diversity jurisdiction, 28 U.S.C. § 1332 (a)(1). alleging that the defendant violated Michigan law by firing him after he was involved in a motor vehicle crash causing personal injuries and approximately $20,000 of property damage. The plaintiff alleges that the defendant, J.B. Hunt Transport, Inc., breached a contract by tiring him without "just cause," and that it violated the Michigan Civil Rights Act, Mich. Camp. L. § 37.2201 et seq., by firing him on account of his age, The defendant filed a motion for summary judgment arguing that the plaintiff has not come forward with sufficient evidence to sustain his age discrimination claim, that the plaintiff was an at-will employee, and that defendant's employment policies did not include a reasonable expectation of "just cause" employment. The Court heard the arguments of the parties through their respective counsel on July 30, 2002, and the matter is ready for a decision. The Court concludes that the plaintiff has not come forward with sufficient evidence to create a material fact question on either his age discrimination claim or his breach of contract claim, and the defendant is entitled to judgment as a matter of law. The Court therefore will grant the defendant's motion for summary judgment.
I.
Robert Baur was hired as an over-the-road truck driver by J.B. Hunt on June 23, 1988 when he was 49 years old. Baur's employment lasted until he was terminated on July 28, 1999 following a "major preventable accident." Baur applied for the position by signing an employment application on June 1, 1988 which included the following acknowledgment: "I further agree that my employment may be terminated for any reason, without liability to me for wages or salary except such as may have been earned at the date of such termination." According to the plaintiff, he mailed his application to J.B. hunt and was subsequently hired. Thereafter, Baur attended a three-day orientation training session in Springfield, Ohio although he never met or interviewed individually with any J.B. Hunt employee. After the orientation, Baur was told to pick up his truck in Chicago and begin working.
On December 17, 1994, Baur signed a Certificate of Understanding and Agreement acknowledging receipt of certain specific sections of the J.B. Hunt Driver's Manual published August 1, 1993. Specifically, Baur certified that he "read, under[stood], and agree[d] to abide by the policies and procedures" which included provisions concerning automatic terminations and disciplinary guidelines. The "disciplinary guidelines" described conduct which would result in automatic termination, and other conduct which "may result" in termination without a prior warning. and it also contained provisions which entitled drivers to request and obtain meetings and reviews of decisions to impose discipline or terminate employment. Among the conduct that "may result" in "termination" was a "[m]ajor preventable accident or more than one minor preventable accident."
It is undisputed that during his tenure of employment, Baur became a million mile driver, received driving safety awards, and participated in training less experienced drivers. However, on April 22, 1999, Baur was involved in a "minor preventable accident" in the company truck, for which he was placed on probation. According to J.B. Hunt's Driver's Manual, a "preventable accident" is "[a]ny accident in which you failed to do everything you reasonably could have done to prevent it. An accident can be preventable even if the other party is at fault." Baur had stopped at a funeral home to visit a close friend and while backing up his tack, he ran over a curb causing damage to it. J.B. Hunt paid $115 to the funeral home to compensate it for the property damage and Baur was placed on probation until July 22, 1999.
The day after he was off probation, July 23, 1999, Baur was operating his truck southbound on I-75 near Bowling Green, Ohio. He states that he was traveling approximately 35 miles per hour and seven seconds behind a van on the rain-soaked road. When the van switched lanes, Baur saw that a truck was stopped in the road ahead of him, so he veered left following the van and then activated his left blinker. Another car tried to pass him on the left shoulder, and so Baur locked up his brakes to avoid hitting that car, which caused his trailer to skid sideways and jackknife, catching the corner of the stopped truck. According to Baur, no one was injured in the accident, but there was a lawsuit filed against J.B. Hunt and Baur alleging personal injuries. J.B. Hunt settled the property damage portion of the claim for $19,150.48. When the police were called to the scene, they investigated the accident and gave Baur a ticket as the at-fault driver for following too closely.
Thereafter, J.B. Hunt conducted an internal accident review at which point Baur was interviewed about the accident. The review consisted of a conference call in which several J.B. Hunt employees participated, including the plaintiff and Regina Carmean, the defendant's area risk manager. The plaintiff claims that the meeting was brief and he was not given a chance to explain the circumstances of the accident. However, at the conclusion of the meeting Carmean summarized the discussion, concluding with a decision to terminate Baur's employment. The summary stated:
ACCIDENT REVIEW CONDUCTED BY CONFERENCE CALL. TAMMY PRIDDY, MARK JONES, ALBERT RAVERA, (DRV-) ROBERT BAUR MYSELF WERE ON THE CALL. [VEHICLE 1] BEGINS IT WAS RAINING. TRAFFIC COMING TO A STOP STARTING TO BACK UP. DRIVER WAS IN THE LEFT LANE, HE MOVED OVER TO THE RIGHT THINKING HE [COULD GET] AROUND TRAFFIC. HE SEES A CAR TRYING TO PASS HIM ON THE SHOULDER. HE BRAKED HARD AND JACKKNIFED. HIS TRA[ILER] CAME AROUND STRIKING [VEHICLE 2] PUSHING [VEHICLE 2] INTO [VEHICLE 3]. [VEHICLE 1] WAS CITED FOR FOLLOWING TOO CLOSE. [VEHICLE 1] AGREES HE MAY HAVE ALSO BEEN DRIVING A LITTLE TOO FAST FOR CONDITIONS. DRIVER SAW TRAFFIC BACKING UP SAW [VEHICLE 2] AND [VEHICLE 3] STOPPED AHEAD, BUT CONTINUED TO SPEED UPON IMPACT. HE SAY HE WAS TRAVELING APPROX. 35 MPH. ACCIDENT RESULTED IN MAJOR COLLISION. ACCORDING TO J.B. HUNT POLICY AUTOMATIC TERMINATION.
Accident Review Summary at 1.
Baur signed the bottom of the summary, although he now claims that the form was simply handed to him and he did not read it before signing it. Albert Ravera, J.B. Hunt's safety dircetor, reviewed and approved the termination because he concluded that the accident was preventable inasmuch as it occurred while Baur was in the process of changing lanes and failed to make a visual observation as to what was on the side of the truck.
Baur states that throughout his career he attended various monthly and quarterly safety and training meetings at which, he claims, he learned that other drivers had committed "major preventable accidents" and were not terminated. Baur is not able to name any of these drivers or remember any of the specifics concerning the accidents. J.B. Hunt has filed an affidavit and exhibit summarizing the major preventable accidents over the last five years, and the summary shows that there were 62 such accidents involving drivers ranging in age from 22 to 70 years old. All but one of those drivers have been discharged by the company. According to Mark Whitehead, J.B. Hunt's vice-president of claims, the one driver that was not terminated was involved in an accident "of very questionable fault."
The defendant contends that Baur was terminated in accordance with company policy that provides for termination "which may result" from a "[m]ajor preventable accident or more than one minor preventable accident." J.B. Hunt Driver's Manual at 7. The plaintiff argues that he was fired on account of his age and further that the defendant was contractually bound to engage in a form of progressive discipline and then only to terminate him for just cause.
II.
The defendant has filed its motion for summary judgment pursuant to Fed.R.Civ.P. 56. A motion for summary judgment under Rule 56 presumes the absence of a genuine issue of material fact for trial. A party opposing a motion for summary judgment must show by affidavits. depositions, or other factual material that there is "evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the non-moving party," there is no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party opposing the motion may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The Court may grant summary judgment on the issue of causation when warranted. Bailey v. Floyd County Bd of Educ., 106 F.3d 135, 145 (6th Cir. 1997). Reliance solely on the fact that an adverse employment decision occurred after the alleged protected conduct is insufficient. Id. at 144-45. "A mere scintilla of evidence is [likewise] insufficient" to create a genuine issue of material fact. Landham v. Lewis Galoob Toys; Inc., 227 F.3d 619, 622 (6th Cir. 2000).
A.
As noted above, the plaintiff in this case has invoked this Court's diversity jurisdiction. Generally, in federal cases based upon diversity jurisdiction, the Court must apply the law of the forum state's highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Thus, federal courts look to the state's highest court for a definitive answer on state law, and if none exists, federal courts "ascertain the state law from `all relevant data.'" Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995) (quoting Bailey v. VO Press Co., 770 F.2d 601, 604 (6th Cir. 1985)). "Relevant data" includes the state's intermediate appellate court decisions, id., as well as the state supreme court's relevant dicta, "restatements of law, law review commentaries, and the `majority rule' among other states." Angelotta v. Am. Broad. Corp., 820 F.2d 806, 807 (6th Cir. 1987).
However. "Michigan courts have considered federal law when reviewing claims of age discrimination based on state law." Plieth v. St. Raymond Church, 210 Mich. App. 568, 573, 534 N.W.2d 164, 167 (1995). Thus, Michigan courts have adopted the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to determine whether inferential evidence has established a prima facie case of discrimination. See Lytle v. Malady (On Rehearing), 458 Mich. 153, 173 n. 19, 597 N.W.2d 906, 914 (1998). See also Matras v. Amoco Oil Co., 424 Mich. 675, 683, 385 N.W.2d 586, 589 (1986).
The Michigan Civil Rights Act states:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge. or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
Mich. Comp. Law's § 37.2202(1)(a).
Employment discrimination claims may be proved by either direct or circumstantial evidence that an improper motive was a factor in an adverse employment decision. DeBrow v. Century 21 Great Lakes Inc. (After Remand), 463 Mich. 534, 539-540, 620 N.W.2d 836, 838 (2001): Harrison v. Olde Fin. Corp., 225 Mich. App. 601, 606, 572 N.W.2d 679, 681 (1997). The plaintiff in this case has conceded at oral argument that there is no direct evidence of age discrimination. Therefore, the plaintiff must proceed on the basis of circumstantial or inferential evidence.
In age discrimination cases, Michigan courts employ a "presumptive approach" to determine whether there is sufficient circumstantial evidence of discrimination to allow the plaintiff to proceed. See Lytle, 458 Mich. at 173, 597 N.W.2d at 914-15; Meagher v. Wayne State Univ., 222 Mich. App. 700, 708-10, 565 N.W.2d 401, 409-10 (1997), leave to appeal denied, 457 Mich. 874, 586 N.W.2d 919 (1998). Under this analysis, often called the McDonnell Douglas approach, the plaintiff must first show that (1) he is a member of a protected class; (2) he suffered an adverse action, such as termination; (3) he was qualified for the position from which he was terminated; and (4) the adverse action occurred under circumstances which give rise to an inference of unlawful discrimination. See McDonnell Douglas, 411 U.S. at 802. The burden of production then shifts to the defendant who must demonstrate a legitimate, non-discriminatory motivation for its action. See id. The defendant does not need to prove that its motives were completely free of discrimination; rather the defendant is only required to raise a genuine issue of fact that it acted for legitimate reasons. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Once the defendant has made this showing, the burden of production shifts back to the plaintiff to show that the defendant's nondiscriminatory reason is merely a pretext. See McDonnell Douglas, 411 U.S. at 804. "Pretext" may be proved by showing that the reason given had no basis in fact, or, if a factual basis existed, by showing that the reason was not an actual factor that motivated the decision. See Dubey v. Stroh Brewery Co., 185 Mich. App. 561, 565-66, 462 N.W.2d 758, 760 (1990). Throughout the burden-shifting process, the plaintiff always bears the burden of persuasion. See Burdine, 450 U.S. at 256.
In this case, it is undisputed that the plaintiff was more than forty years old at the time of the alleged discrimination and thus a member of a protected class, and that he was subjected to an adverse employment action, thus satisfying the first and third elements. As to the second element of the prima facie case, to be "qualified," an employee must have "perform[ed] his job at a level that met the employer's legitimate expectations." Town v. Michigan Bell Tel. Co., 455 Mich. 688, 699, 568 N.W.2d 64, 69 (1997). "Qualified" means that the individual "was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative." Id. at 699 n. 22, 568 N.W.2d at 69 (quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)). "A court must evaluate whether a plaintiff established his Qualifications independent of the employer's proffered nondiscriminatory reasons for discharge. . . In short, a court must be careful not to conflate the distinct stages of the McDonnell Douglas test." Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 585 (6th Cir. 2002).
The plaintiff worked for J.B. Hunt for about eleven years prior to his termination. During his employment, he served as a trainer for drivers. Prior to running over the curb in April 1999, the plaintiff did not have any accidents or collisions. He was a million mile driver and had also received some driving safety awards. Independent of the collision on July 23, 1999, there is sufficient evidence to establish that the plaintiff was qualified for the position.
In termination cases, one way of demonstrating that the adverse employment action occurred under circumstances inferring discrimination, the fourth element of the prima facie case, is proving that the plaintiff was replaced by a younger person. See Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992). however, the plaintiff has offered no evidence that he was replaced. Rather, the defendant contends and the plaintiff has offered no contrary evidence — that the plaintiffs position was not immediately filled and that his job duties were spread among the work force. "Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement." Id. at 752; see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 253 (6th Cir. 1998). Another way of demonstrating an inference of discrimination is by showing through circumstantial or statistical evidence that the plaintiff has been discriminated against. Simpson v. Midland-Ross Corp., 823 F.2d 937, 940 (6th Cir. 1987) (citing Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir. 1983)). The plaintiff testified at his deposition that he heard that younger drivers who had been involved in accidents were treated more leniently than he. However, the plaintiff could not identify by name or description any such drivers, nor did he give evidence that these drivers were similarly situated. To infer discrimination from disparate treatment of similarly situated employees outside the protected class,
the plaintiff must show that the "comparables" are substantially similar in all respects. . . Thus to he deemed "similarly situated," the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.Gray v. Toshiba Am. Consumer Prod. Inc., 263 F.3d 595, 599 (6th Cir. 2001) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)) (emphasis in original). Thus, the plaintiff must demonstrate his situation was similar to another employee's in all relevant respects; otherwise, the other circumstances surrounding the situation would be considered "differentiating." See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001). The plaintiff has come forward with no evidence that the drivers about which he had heard were involved in similar accidents, or had similar safety records, or were otherwise similar in all relevant respects. The defendant offered a summary chart of 62 drivers between ages 22 to 70 who had been in "major preventable accidents." All but one was fired, and the defendant offered an affidavit explaining how that driver's accident circumstances differed from the plaintiffs. The plaintiff offered no evidence to dispute these assertions.
The Court concludes that the plaintiff has not established the fourth element of a prima facie case of age discrimination, and his claim under the Michigan Civil Rights Act fails.
But even if the plaintiff had come forward with sufficient proof to make out a prima facie case, his claim must fail nonetheless because the defendant has offered a legitimate. nondiscriminatory reason for terminating the plaintiffs employment which has not been rebutted by pretext evidence. The plaintiffs only response to the argument that he was fired because he was involved in a major preventable accident is that he had heard that other, younger drivers were not terminated after they had been in such accidents. However, "[a] plaintiff must do more than simply impugn the legitimacy of the asserted justification for her termination; in addition, the `plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation.'" Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 730 (6th Cir. 1999) (quoting Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994)). And under Michigan law, "disproof of an employer's articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer's adverse action. in other words, plaintiff must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was a pretext for age or sex discrimination." Lytle, 458 Mich. at 175-76, 579 N.W.2d at 916 (footnote omitted).
The plaintiff in this case simply has not come forward with evidence from which a jury could infer that his termination following the July 23, 1998 accident was not due to the accident but rather was on account of his age. Summary judgment on this count, therefore, will be granted.
B.
The plaintiff also contends that J.B. hunt was contractually bound to terminate the plaintiff only for just cause. In Michigan, all employment is presumed to be "at will," that is, terminable at the will of the employee or the employer. Lynas v. Maxwell Farms, 279 Mich. 684, 687, 273 N.W. 315, 316 (1937). However, it is well recognized that employers may enter into contractual relationships with their employees which limit the employer's ability to fire an employee without a valid reason to do so.
Courts have recognized the following three ways by which a plaintiff can prove such contractual terms: (1) proof of a contractual provision for a definite term of employment or a provision forbidding discharge absent just cause; (2) an express agreement, either written or oral, regarding job security that is clear and unequivocal; or (3) a contractual provision, implied at law, where an employer's policies and procedures instill a "legitimate expectation" of job security in the employee.Lytle, 458 Mich. at 164, 579 N.W.2d at 911 (internal quotes and footnotes omitted).
The plaintiff in this case must rely on the third method to prove that his employment could only be terminated for just cause. There is no evidence of an explicit contractual provision for a term of years or a formal "just cause" agreement. Further, the Michigan courts require express agreements concerning job security based on mutual assent to "be clear and unequivocal to overcome the presumption of employment at will." Rood v. General Dynamics Corp., 444 Mich. 107, 119, 507 N.W.2d 591, 598 (1993) (quoting Rowe v. Montgomery Ward Co., Inc., 437 Mich. 627, 645, 473 N.W.2d 268, 275 (1991)). Such a determination requires an examination of pre-employment negotiations and conduct under an objective test analyzing "all the relevant circumstances surrounding the transaction" to ascertain the nature and scope of traditional contract elements including offer, acceptance and consideration. See Rowe, 437 Mich. at 641-44, 507 N.W.2d at 273-75; Bullock v. Automobile Club of Mich., 432 Mich. 472, 481-84, 444 N.W.2d 114, 118-19 (1989). The plaintiff here does not allege that any such negotiations took place, or that there were any representations made to induce him to hire on, or that J.B. Hunt ever intended the provisions of its policy manual to become an employment contract term. See Rood, 444 Mich. at 137, 507 N.W.2d at 606 ("[W]e hold that where an employer establishes a policy of discharge for cause, it may become part of an employment contract only when the circumstances (e.g., the language in the handbook itself, or an employer's oral statements or conduct) clearly and unambiguously indicate that the parties so intended."). Absent evidence of an express contract, the plaintiff must rely upon the theory that J.B. Hunt's policy manuals and practices created a legitimate expectation that he would not be terminated except for just cause.
The implied contract theory was described in the watershed case of Toussaint v. Blue Cross Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880 (1980), as follows:
[W]here an employer chooses to establish such policies and practices and makes them known to its employees, the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly. No pre-employment negotiations need take place and the parties minds need not meet on the subject; nor does is matter that the employee knows nothing of the particulars of the employer's policies and practices or that the employer may change them unilaterally, it is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation "instinct with an obligation."Id. at 613, 292 N.W.2d at 892.
This now well-established "handbook exception" to the employment-at-will doctrine, see In Re Certified Question (Bankey v. Storer Broad Co.), 432 Mich. 438, 448, 443 N.W.2d 112, 116 (1989), recognizes that employees may hold employers to enforcement of policy terms relating to job security as long as the policy remains in effect. Id. at 454-55, 443 N.W.2d at 119. of course, as is demonstrated by this case, not all employee manuals clearly articulate a termination for just cause policy in so many words, even where such a policy might be inferred from the manual. Consequently, Michigan courts have developed a two-step approach for evaluating legitimate expectation claims under Toussaint's implied contract cause of action. "The first step is to decide what, if anything, the employer has promised, and the second requires a determination of whether that promise is reasonably capable of instilling a legitimate expectation of just-cause employment." Lytle, 458 Mich. at 164-65, 579 N.W.2d at 911 (internal quotes omitted).
In Rood, the court expounded the first-step inquiry beginning with the definition of "promise" taken from Restatement of Contracts (Second,) § 2(1), which is "a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made." See Rood, 444 Mich. at 138-39, 507 N.W.2d at 606-07 (emphasis in original). The court then explained:
As is readily apparent, not all policy statements will rise to the level of a promise. For instance, an employer's policy to act or refrain from acting in a specified way if the employer chooses is not a promise at all. Also apparent in the definition of a promise is the need for specificity. The more indefinite the terms, the less likely it is that a promise has been made. And, if no promise is made, there is nothing to enforce.Id. at 139, 507 N.W.2d at 607 (emphasis in original). The court cited the employee handbooks in Toussaint and Renny v. Port Huron Hosp., 427 Mich. 415, 398 N.W.2d 327 (1986), as examples of specific policy statements which created an enforceable promise. In Toussaint, there was an express provision that employees would be terminated "for just cause only," and in Renny, the handbook contained a list of offenses along with appropriate penalties together with a statement that the employer's right to terminate was expressly "subject to" the restrictions in the handbook.
Perhaps more enlightening, however, is the court's treatment of the companion claim in Rood which involved a truck driver employed by the SPX Corporation, who claimed a breach of an implied just cause agreement. That truck driver, Joseph Schippers, like the plaintiff in this case, was fired after he was involved in an accident. SPX's employee handbook did not contain an express statement that termination would only occur for just cause. It did contain a provision allowing termination of employees during their initial sixty-day probationary period, a list of prohibited practices that "may" result in "disciplinary action up to and including discharge," which included involvement in "chargeable accidents," and a disclaimer which provided that the company reserved the right to change its policies at any time. There also was testimony of an informal policy that management required "good reason" before discharging an employee. Rood, 444 Mich. at 120-22, 507 N.W.2d at 598-99. The court found that no just cause contract was implied on these facts. Id. at 141, 507 N.W.2d at 607. Although there was a promise by the company to treat the employees fairly, the court held that "[a] promise of fairness, without more, is too vague to judicially enforce." Id. Similarly, the court found that a "probationary period for newly hired employees is likewise insufficient to overcome the presumption of employment at will." Id. Finally, as to the list of offenses and conduct that could result in termination, the court held that "[a] nonexclusive list of common-sense vales of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to discharge an employee at will." Id. at 142, 507 N.W.2d at 608.
In this case, the plaintiff points to J.B. Hunt's Driver's Manual coupled with testimony as to the company's disciplinary practice in an effort to show that a promise of termination only for just cause was implied. However, the Driver's Manual does not contain an express statement of a just cause termination policy. It does purport to "contain highlights of most policies and guidelines concerning your performance while employed at J.B. Hunt Transport, Inc." Driver's Manual at VI. It contains a section describing standards of conduct expected of drivers and describes the process by which drivers' performance will be evaluated. Id. at 3-5. It creates an adjusted 90-day probationary period during which the company may terminate any probationary employee for any reason "not prohibited by statute." Id. at 5. It also sets up boards of appeal and review to which terminated employees may resort. Id. at 6-7. The Manual contains a list of offenses that "warrant automatic discharge on the first occurrence with no review regardless of length of service," conduct "which may result in termination without a prior warning," and actions that "normally result in warning prior to discharge" (although even here, depending on severity, "termination could be immediate.") Id. at 7-8.
This Court finds the evidence in this case to be virtually indistinguishable from the facts concerning Schippers' relationship with SPX described in Rood. Neither the probation provision nor the list of offenses with attendant penalties is sufficient to create a promise of just cause employment implied in fact. Nor does the testimony of Albert Ravera, J.B. Hunt's safety manager, that the company's custom was to terminate only when it had a reason to do so establish a promise by J.B. Hunt to limit its discretion in that fashion. in addition, when the plaintiff applied for his job, he signed an employment application containing an acknowledgment that his "employment may be terminated for any reason." And although the appeal and review process creates in a driver a right to be heard when a termination decision is disputed (a process which Baur did not invoke in this case), it does not create a legitimate expectation of job security.
The Court finds that the plaintiff has failed to come forward with evidence at this stage of the proceedings which creates a genuine issue of fact as to whether the defendant made a promise that was reasonably capable of instilling a legitimate expectation of just-cause employment. The defendant, therefore, is entitled to judgment as a matter of law on the plaintiffs breach of contract count.
III.
The defendant fired the plaintiff after he collided his truck into another vehicle on the day after he completed another safety-related probation period. The plaintiff has not established a jury-submissable claim that his termination violated an express or implied contractual provision with his former employer, or that was contrary to the Michigan Civil Rights Act.
Accordingly, it is ORDERED that the defendant's motion for summary judgment [dkt #20] is GRANTED, and the plaintiffs complaint