Opinion
Case Number 99-10482-BC
November 27, 2001
The plaintiff, Jerald Bala, was a store manager at the defendant's Saginaw retail store; he lost his job in 1999. Thereafter, Bala filed suit in this Court against Jacobson Stores, Inc. alleging six theories of liability: violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.; violation of Persons With Disabilities Civil Rights Act (PWDCRA), Mich. Comp. L. § 37.1101, et seq.; violation of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq.; breach of legitimate expectations; breach of an express contract; and promissory estoppel. The matter is now before the Court on cross-motions for summary judgment on the FMLA claim, and the defendant's motion for summary judgment on the remaining claims. The Court finds that the defendant is entitled to a judgment of dismissal as a matter of law as to the ADA, PWDCRA, and FMLA claims. The balance of the claims may proceed to trial.
I.
The claims in this case arise from a series of events which began with the plaintiff's request to take a medical leave of absence in October 1998 and ended with his termination from employment in February 1999. The plaintiff, who was suffering from depression, alleges that his firing was due in part to the defendant's discrimination against him on account of a disability, real or perceived, in violation of the ADA and the PWDCRA. The plaintiff also alleges that he never received notification that his leave of absence was considered by the defendant to be pursuant to the FMLA until the end of December 1998, and his termination thereafter occurred within 12 weeks of the notification date in violation of the FMLA. Finally, the plaintiff contends that during his absence from work, he received assurances from the defendant that his "job was secure," and that he relied on those assurances to his detriment by choosing to return to work at a later date after his position was filled by someone else.
Jerald Bala was hired by Jacobson's on July 18, 1983, as a department manager at the Saginaw store. On March 26, 1989, he became the store manager, a position he held until his termination. According to the plaintiff's wife, Peggy Bala, Jerald began experiencing physical problems in April 1997 which developed into weight loss, fatigue and anxiety. Fearing cancer, the plaintiff sought medical diagnostic treatment, which yielded negative findings. The plaintiff continued to experience feelings of despair and in early October 1998 he made a serious suicidal gesture. At the urging of his wife, Bala contacted Jacobson management to request a leave of absence on October 6, 1998, and sought and obtained treatment for depression within a few days thereafter.
Bala had sought and obtained medical leaves of absence in the past. The record indicates that he applied for and received FMLA leave for a seven-week period in June and July 1995. On October 6, 1998, Bala's request for leave was granted verbally over the telephone by James Delaney, Vice-President for Human Resources at Jacobson's. On October 12, 1998, Peggy Allen, the Jacobson's Human Resources Leave Coordinator, sent the plaintiff a letter with a Family Medical Leave of Absence application form, a Jacobson's Family and Medical Leave Acknowledgment form, and a medical certificate to be completed by the plaintiff's physician. The plaintiff testified that he completed the application and signed the acknowledgment on October 21, 1998.
In the Family Medical Leave of Absence application, plaintiff wrote that his leave began on October 7, 1998, and was "continuous" for the purpose of dealing with a "[s]erious health condition." The Acknowledgment Form, which plaintiff signed on October 21, 1998, stated the following:
On 10-6-98, you notified us of your need to take family/medical leave due to . . . [a] serious health condition that makes you unable to perform the essential functions of your job. . . .
If you have worked for Jacobson's for at least one year and have worked at least 1,250 hours in the 12 months immediately preceding this request, you are eligible for an FMLA leave. You have a right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period for the reasons listed above.
This leave is governed by the FMLA and Jacobson's policies. . . .
I understand:
1. That requested leave will be counted against my annual 12-week FMLA entitlement. My annual FMLA entitlement is computed based on a rolling leave year backward.
2. . . .(b) That my failure to provide the FMLA paperwork within 15 days will result in denial of leave benefits until I provide the required certification paperwork.
. . .
(d) That my failure to provide the FMLA paperwork within 30 days will be interpreted as my voluntary resignation from Jacobson's.
3. That I am required to use my accrued sick pay during the first three weeks of my FMLA leave.
4. That after my accrued sick pay is exhausted, I may use earned vacation pay for any part of my FMLA leave.
. . .
5.[sic] That if I am on leave due to a personal serious health condition, I will be required to provide a medical certificate at the time I seek reinstatement showing that I am fit for duty and able to return to work. I understand that the Company may deny job reinstatement until I provide this certificate.
. . .
7. That upon return from 12 or less weeks of FMLA leave, I am entitled to be returned to the same position that I held when my leave began, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. However, I acknowledge that I have no right to return to the same position and that I have no right to job restoration if I would not have otherwise been employed at the time reinstatement is requested, or if I have taken more than 12 weeks of leave.
The plaintiff mailed all of the forms to Jacobson's on October 21, 1998. In accordance with Jacobson's leave policy, Bala received his full salary for three weeks and two-thirds of his salary thereafter.
Bala was absent from work through the balance of October, November, and December 1998. He claims that he never received written confirmation during this period that Jacobson's considered his leave to qualify under the FMLA, so his wife called Jacobson's in November. She was allegedly told that
the 12 weeks really didn't apply to Jerry; that if he needed — you know, if he got to the 12 weeks and for some reason needed a few more weeks or his doctor — he said has to be still a doctor — this doctor felt he needed a few more weeks, it probably wouldn't be a problem; that he could go on the wage continuation.
And he said that everything was going well at the store, there would really be no reason for him to be concerned.
He said that they had at other — how did he put it — he didn't say other stores, Jerry told me that later — He said in the past that they had replaced store managers on a temporary basis, you know, if something unforeseen came up at the stores, they would put somebody in on a temporary basis.
But he said, there's no reason to think that we would need to do that in Jerry's case. You know, it's not anything to worry about. So I really felt pretty comfortable with the idea that now, you know, even though Jerry had mailed everything in, I felt like I understood a little better, you know, that there was a 12-week time period, but then there was an additional 14 weeks.
Dep. of Peggy Bala at 77-78.
The parties agree that Peggy Allen sent a letter on December 28, 1998, informing Bala of the impending expiration of his FMLA leave. The letter stated:
This letter is to inform you that you are approaching the end of your Family and Medical Leave of Absence (FMLA-12 weeks). Your leave will end on 12-30-98.
If you are on leave due to your own illness or injury, your leave may be extended by conversion to a Medical Leave of Absence. The enclosed Application for Medical Leave of Absence must be completed and returned for your leave to continue. If your leave is for any reason other than your own illness or injury, you must return to work after your FMLA leave or terminate your employment.
Please complete the enclosed Leave Application Form. . . .
The next day, the plaintiff telephoned Human Resources Vice-President Delaney to discuss his status. The two parties' versions of the conversation differ. The plaintiff remembers that Delaney told him "that coming back to work on the 29th was not an issue, that if I needed extra time to go ahead and take it. . . . Jim thought that that extra time, that there was no problem; everything was status quo, don't worry about your job, don't worry about anything, don't take — you don't need to take vacation, everything is fine, and we'll just set [the return to work date] for February 1st." Dep. of plaintiff at 228-29. Delaney described the conversation somewhat differently. He testified, "I believe he told me that he really wasn't in very good shape to return to work but if he had to that he would. And I . . . told him that his convalescence was the most important thing for him to focus on and that he should get healthy." Dep. of James Delaney at 39.
The plaintiff maintains that he was mentally and physically able to return to work on December 30, 1998, but that he forbore based on Delaney's assurances of job security. Dr. Michael Hunt, the plaintiff's treating psychiatrist, testified:
My impression was that he enjoyed his job, that he liked doing it, and he would have gone back to it if he could. That was my understanding. Yes, I think it was stressful. But I think it was something that he, to the best of my knowledge, something he did cope with. . . . And when Mr. Bala told me that as far as he could tell, the Company had said, take as much time as you want. And I had said, well, look, Jerry, you could go back to work, and I think it was the 29th of December. I don't remember the exact date. But whatever date it was, I said, you could go back then, but if you don't absolutely have to, I would advise you not to. . . . And I think he would have gone back to work even though I didn't think it was quite the right timing. But I think he would have been able to resume work at that time, although I think it would have been tough for a while.
Dep. of Michael Hunt at 43, 45-46.
When asked to describe his own condition in December 1998 after his medications were properly adjusted, the plaintiff said that he was "[a] born again person . . . in all respects. . . . I started gaining weight back. . . . Everything. My relationship with my wife . . . resumed back to normal. . . . I was a normal person again. . . . Everything was fine." Plaintiff's dep. at 113-14.
Following instructions in Peggy Allen's December 28, 1998 letter, Bala completed an application on January 4, 1999 to convert his FMLA leave into Jacobson's Medical Leave of Absence. Jacobson approved the plaintiff's request January 8, 1999.
During the plaintiff's absence from work, his duties were redistributed among various assistant store managers. In fact, the plaintiff testified that he was informed that the store was running smoothly due in part to his skill in training his assistants. However, in early January 1999, James Rodefeld, Executive Vice-President of Stores and Marketing, decided to replace the plaintiff as the Saginaw Store Manager. The plaintiff was notified of this decision verbally and James Delaney confirmed the decision in writing on January 11, 1999. The letter stated:
Management has decided to replace the position of Store General Manager at the Saginaw store. Management made the decision at this time to restore stability to the store in light of your protracted absence.
You should be aware that you still have a wage continuation bank of 17 weeks, if necessary. of course, if you are still unable to work at that time, you can apply for Long-Term Disability coverage. Jerry, as I mentioned, your first objective should be to continue to recuperate. When you become available to return to work, you should contact me so that we can explore options.
The defendant contends that its decision to replace Bala as Store Manager was motivated not only by his extended absence but also by performance issues. The defendant points to an assessment of store managers in the same region as the plaintiff conducted in 1997, in which Bala's score was two points lower than the average. Only two other managers scored lower than Bala, and they were both terminated sometime before Bala's termination. During March 1997, rumors that the Saginaw store would be closed were persistent, inasmuch as the Dearborn, Jackson, and Kalamazoo stores had recently closed. The Executive Management Team, who believed that Bala was doing nothing to quell the rumors, met with the Saginaw store management and staff in November 1997. The Team felt that the meeting adequately reassured the staff that Jacobson's had no immediate plans to close the store. The Team charged Bala with the responsibility of quelling any further rumors. Jacobson's contends that rumors once again reached a "fevered pitch" in the summer of 1998.
Meanwhile, on January 25, 1999, Peggy Bala telefaxed a letter from the plaintiff's doctor to James Delaney. In the letter, Dr. Michael Hunt stated that Bala could return to work on February 8, 1999, "on the condition that his position is consistent with the work load and time requirements of his previous position." The defendant contends that when Delaney received the letter, he attempted to find another position for the plaintiff within the company. However, he was unsuccessful, and thus he met with Bala on February 8, 1999 and terminated his employment.
Thereafter, the plaintiff filed a complaint with the EEOC, which was decided against him. This lawsuit followed. After discovery, the plaintiff filed a motion for partial summary judgment as to count three of the complaint which alleges a violation of the FMLA notice requirements. The defendant responded and followed with a cross-motion seeking a dismissal of that count. The defendant has also filed a motion for summary judgment on the remaining five counts, to which the plaintiff responded. The Court heard the arguments of the parties through their respective counsel in open court on January 3, 2001.
II.
The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. 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 v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
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 nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). 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 Agric. Implement Workers of 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, after sufficient opportunity for discovery, the non-moving party is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present 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.
The Court turns first to the plaintiff's claims under the ADA and the PWDCRA. Those claims can be addressed in tandem because, as the plaintiff has acknowledged, the claim under Michigan law mirrors the federal claim. In Monette v. Electronic Data Sys. Corp., 90 F.3d 1173 (6th Cir. 1996), plaintiff brought an action against his former employer under the ADA and PWDCRA. The Court held that because claims of disability discrimination under Michigan law essentially track those under federal law, resolution of Monette's claim under the ADA also dispensed with his claims under the PWDCRA. Id. at 1178 n. 3.
Congress enacted the Americans with Disabilities Act in an effort to "eliminate discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). The Act prohibits qualifying employers from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to . . . hiring, advancement or discharge, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). If an employee suffers discrimination because he or she has a disability as defined by the ADA, or has a record of having such a disability, or is regarded by his or her employer as having such a disability, 42 U.S.C. § 12102(2), the employee may bring an action seeking various remedies, including damages, provided that the employee first files a timely complaint with the EEOC. 42 U.S.C. § 12117, 2000e-5(f)(1). See Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309 (6th Cir. 2000).
When an employer moves for summary judgment on an ADA claim, an employee must come forward with evidence which demonstrates genuine material fact issues on each of the following elements: "(1) he or she is disabled; (2) otherwise qualified for the position, with or without reasonable accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason to know of the plaintiff's disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced." Cehrs v. Northeast Ohio Alzheimer Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (citing Monette, 90 F.3d at 1186).
The main dispute between the parties in this case is whether the plaintiff is disabled. To be "disabled," the plaintiff must have a "physical impairment" which "substantially limits a major life activity." McKay v. Toyota Motor Mfg. U.S.A., Inc., 110 F.3d 369, 372 (6th Cir. 1997). "Depression" qualifies as an impairment under the ADA. 29 C.F.R. § 1630.2(h)(2). The question which remains, therefore, is "whether a reasonable jury could conclude that [the] depression substantially limited a major life activity." Swanson v. Univ. of Cincinnati, 268 F.3d 307, 315 (6th Cir. 2001).
In determining whether a condition subject to treatment is substantially limiting, the Court must take account of the treatment prescribed and administered. Thus, "[t]he use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantial limiting." Sutton v. United Air Lines, 527 U.S. 471, 488 (1999) (emphasis in original). If, for instance, an otherwise substantially limiting impairment is brought under control with medication, the individual is not disabled. Hein v. All America Plywood Co., Inc., 232 F.3d 482, 487 (6th Cir. 2000) (Plaintiff who "functions normally and has no problems `whatsoever'" with aid of blood-pressure medication not disabled). On the other hand, if the medication itself produces disabling side-effects, a finding of disability is appropriate. Sutton, 527 U.S. at 484.
In this case, the Court finds that the plaintiff is hard-pressed to advance a credible claim of actual disability in light of the admissions at his deposition. He testified that after his medication dosage was adjusted, he "was a normal person again" and that "[e]verything was fine." Although he described a medication side-effect causing a dysfunction, after additional medication it did not cause a substantial limitation of a major life activity. Despite his own testimony, the plaintiff points to evidence from Dr. Hunt which suggests that the plaintiff did not enjoy a "complete 100 percent recovery." However, full recovery from a medical or psychiatric condition is not the standard against which "disability" is measured. The undisputed facts in this case establish that the plaintiff suffered a serious bout of depression in summer and fall of 1998, and that he was ready to return to work in December 1998 according to his own testimony, and by February 1999 according to everyone else. Short-term, temporary limitations on major life activities do not constitute disabilities under the ADA. See Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996).
The plaintiff also contends that the defendant perceived that he was disabled, so that the first element of his ADA claim has been satisfied. If "a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities," a disability for the purpose of the ADA may be established. Sutton, 527 U.S. at 489; Koscis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996). The plaintiff contends that a jury could infer that Jacobson regarded Bala as disabled from the January 11, 1999 letter announcing the replacement of the store manager, in which Jacobson professed a desire to "restore stability" to the store. The plaintiff argues that this choice of words revealed a belief on the part of Jacobson that Bala was clinically depressed and therefore unstable and incapable of performing his job. Although the Court must view the evidence at this stage in the light most favorable to the plaintiff, the Court cannot find justification for the suggested inference. It is undisputed that during the plaintiff's leave, his duties were redistributed among the department managers. The "stability" which Jacobson sought to restore was not a reflection on the plaintiff's personality but on the internal company organization which was taxed by the "protracted absence" of its store manager. No words in the letter nor any conduct by the defendant's management suggest a perception that plaintiff suffered an impairment causing "a substantial limitation on a major life activity." Koscis, 97 F.3d at 884. The plaintiff has not established a factual dispute on the question of whether he suffered from an actual or perceived disability within the meaning of the ADA.
B.
The plaintiff's FMLA claim (Count III) is based on the contention that his termination on February 8, 1999 occurred within the protected twelve-week period created by the FMLA. This contention is in turn based on the premise that the acknowledgment form Bala signed on October 21, 1998 did not properly designate Bala's leave as FMLA-qualifying, a point which the defendant disputes. The parties have filed cross-motions for summary judgment on this count.
The Family Medical Leave Act grants to eligible employees, such as the plaintiff in this case, up to twelve weeks leave of absence from work for a "serious health condition" that impairs the employee's ability to perform his or her job duties. 29 U.S.C. § 2612(a)(1)(D). If the employee returns to work within twelve weeks, he or she is entitled to the prior job, or to an equivalent position if the prior job is no longer available. 29 U.S.C. § 2614(a)(1). Department of Labor regulations require the employer "to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee. . . ." 29 C.F.R. § 825.208(a). If an employer fails to properly designate leave as FMLA-qualifying, it may not later retroactively so designate it; rather, the employee is entitled to the twelve-week protected period beginning with the proper designation. Plant v. Morton Int'l, Inc., 212 F.3d 929, 935 (6th Cir. 2000).
Notice under FMLA is required "[o]nce the employer has acquired knowledge that the leave is being taken for an FMLA required reason." 29 C.F.R. § 825.208(b)(1). That notice may be given
orally or in writing. If the notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). The written notice may be in any form, including a notation on the employee's pay stub.29 C.F.R. § 825.208(b)(2). The Sixth Circuit has upheld this regulation in Plant.
Jacobson argues that by sending the FMLA Acknowledgment Form to Bala on October 12, 1998, it complied with the notice requirements of FMLA. Bala contends that this notice was not complete because his actual Application for Family and Medical Leave of Absence was never countersigned and returned to him in accordance with company practice.
The plaintiff does not argue that he was confused or misled by the paperwork. Indeed, it would be difficult to make a credible argument to that effect, given the explicit written advice contained in the acknowledgment form which the plaintiff signed. Further, it does follow that the reason Jacobson sent the FMLA forms to Bala was because it "acquired knowledge that the leave is being taken for an FMLA required reason." 29 C.F.R. § 825.208(b)(1). Bala's leave was orally approved by Delaney on October 6, 1998, for "extreme fatigue and depression." Although the notice "may be in any form," id., Delaney told the plaintiff he would "have the paperwork sent to [him]," and the application arrived within two weeks. Delaney Dep. 29-30. In addition, the plaintiff appears to contradict himself. In his motion for summary judgment, he claims he never received notice his leave was covered under FMLA. However, in his "Charge of Discrimination" form to the EEOC, he admits that "[o]n October 6, 1998, I left work under the FMLA due to my disability." Def.'s Cross-Mot. for Summ. J. as to Pl.'s FMLA Claim, Ex. 14.
The DOL regulations for designating FMLA leave are not intended to create hypertechnical requirements designed to trap employers or confuse employees. Once oral approval is given, the requirement of written confirmation of FMLA leave may be as simple as a notation on a pay stub. 29 C.F.R. § 825.208(b)(2). There is no requirement for countersignatures or formal declarations. On the other hand, employer practices which are technically adequate but which mislead, confuse or deceive an employee regarding an employer's leave designation may not comply with statutory or regulatory requirements. The facts in this case establish that the plaintiff asked for time off under the FMLA (a request with which he was familiar having done it before), his request was verbally granted, and within a reasonable time, paperwork — which included a precise description of his rights and responsibilities under the FMLA and his employer's policy — was sent to him. He acknowledges receiving this written documentation. Neither the FMLA nor the implementing regulations require more.
The Court finds, therefore, that the plaintiff has not established any violation of the FMLA as a mater of law. The plaintiff's motion for summary judgment on Count III will be denied and the defendant's motion for summary judgment on this count will be granted.
C.
The plaintiff's remaining three theories — breach of legitimate expectations, breach of an express contract, and promissory estoppel — are based on the disputed versions of the conversation which Bala had with Delaney on December 29, 1998 concerning the plaintiff's return to work. The plaintiff posits that he was ready to return that day, but that he chose to convalesce for a longer period in reliance upon Delaney's urging that Bala's recuperation was more important than returning to work and his assurance that Bala's "job is secure." Jacobson argues that Bala was an at-will employee who did not return to work within twelve weeks of his leave date and that it was not contractually bound to him in any manner.
All contracts, including those in the employment context, require the parties to mutually assent to be bound by the terms. Rood v. General Dynamics Corp., 444 Mich. 107, 118, 507 N.W.2d 591, 598 (1993). "[O]ral statements of job security must be clear and unequivocal to overcome the presumption of employment at will." Id. at 119, 507 N.W.2d at 598. The Court must "look to the expressed words of the parties and their visible acts" and "focus on how a reasonable person in the position of the promisee would have interpreted the promisor's statements or conduct." Id. The Rood Court found relevnt the context in which the statements were made. A statement made specifically in regard to job security and concerning the likelihood of being discharged may provide sufficient evidence of an express agreement. Id. at 124-25, 507 N.W.2d 600-01 (citing Toussaint v. Blue Cross Blue Shield of Michigan, 408 Mich. 579, 597-98, 292 N.W.2d 880, 884-85 (1980)).
On the other hand, oral promises must be based on more than an optimistic hope that an employment relationship will be long-lasting. Kvintus v. R.L. Polk Co., 3 F. Supp.2d 788, 798 (E.D. Mich. 1998). In Kvintus, the plaintiff took a medical leave in February 1995 because of "stress." The plaintiff returned to work in a new, higher-level position. The plaintiff took another medical leave in July 1996. Before this second leave, plaintiff was told repeatedly "[he] would have a job when [he] came back to work." Id. The Kvintus Court found a First Circuit decision persuasive, where that Court stated that "[a] contract to reinstate an at-will employee to an at-will position (from which she could immediately be removed without cause) is no contract at all." Id. (quoting Smith v. F.W. Morse Co., Inc., 76 F.3d 413, 426 (1st Cir. 1996)).
The promissory estoppel theory allows for recovery only when no contract exists. Advanced Plastic Corp. v. White Consol. Indus., Inc., 828 F. Supp. 484, 491 (E.D.Mich. 1993). Promissory estoppel requires (1) a promise, (2) the promisor reasonably expects the promise to induce action "of a definite and substantial character," (3) reliance or forbearance in fact occurs, and (4) the promise be enforced to avoid injustice. Novak v. National Mut. Ins. Co., 235 Mich. App. 675, 686-87, 599 N.W.2d 546, 552 (1999). The promise must be "definite and clear," the facts must be "unquestionable," and the wrong to be prevented must be "undoubted." Cole v. Knoll, Inc., 984 F. Supp. 1117, 1133 (W.D.Mich. 1997).
The legitimate expectations theory is not based on contract analysis. Rood, 444 Mich. at 137, 507 N.W.2d at 606. It is an independent basis for enforcing promises. Id. at 138, 507 N.W.2d at 606. According to the Michigan Supreme Court, this judicial enforcement of employer policies and procedures "encourage[s] an `orderly, cooperative and loyal work force.'" Id. at 137-38, 507 N.W.2d at 606. The first step in the analysis requires determining "what, if anything, the employer promised." Id. at 138, 507 N.W.2d at 606. "The more indefinite the terms, the less likely it is that a promise has been made." Id. at 139, 507 N.W.2d at 607. The second step is "whether the promise is reasonably capable of instilling a legitimate expectation of just-cause employment." Id.
In the instant case, Bala alleges Delaney told him his "job is secure." Bala Dep. 158. Jacobson argues that Bala could not reasonably rely on such a statement, if made, as a promise of long-term employment since it contradicted the employee handbook which explicitly provided that their relationship "is not a contract for personal services. . . . Either you or the company may terminate your employment at any time, for any reason, or for no reason. This employment relationship may only be altered in writing directed to you by the Chairman or Vice Chairman of Jacobson's." Def.'s Mot. for Summ. J. as to Counts I-II and IV-VI, Ex. 14. The Rood Court regarded "only policies and procedures reasonably related to employee termination capable of instilling such expectations." Rood, 444 Mich. at 139, 507 N.W.2d at 607.
Normally, statements of job security and promises which suggest a just-cause requirement for termination will not suffice to alter written employer statements which themselves declare their unalterability absent another writing by an authorized company representative. The distinguishing feature of this case, however, is the claim that Delaney's promise did not just assure continued employment or just-cause grounds for termination, but it induced the plaintiff to give up his rights to which he was otherwise entitled under the FMLA. The plaintiff's job, or equivalent employment, was statutorily protected if he returned to work within twelve weeks. The plaintiff alleges that he gave up that protection in reliance on Delaney's promise and assurance. Jacobson disputes that such a promise was even made, but, as noted above, this Court must view the evidence in the light most favorable to the plaintiff as the nonmoving party in the summary judgment context. Since there is a dispute as to the nature of the "promise," if any, Delaney made to Bala, a genuine issue of material fact exists and summary dismissal is not appropriate on any of these three alternate theories the plaintiff has put forward.
III.
The Court finds that the plaintiff's federal ADA and PWDCRA claims are factually unsupportable, and therefore summary judgment of dismissal as a matter of law is appropriate. However, there are genuine disputes as to the material facts supporting the plaintiff's common law claims based on state law. The Court will retain jurisdiction over those claims under 28 U.S.C. § 1367(a) because the Court had original federal question jurisdiction, the matter has been pending on this docket for several months, discovery is complete, and dismissing the state law claims at this stage of the proceedings thereby requiring the plaintiff to refile the matter in state court would not constitute an efficient use of judicial resources. Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996) (district court has "broad discretion in deciding whether to exercise supplemental jurisdiction over state law claims" when all federal claims are dismissed before trial).
Accordingly, it is ORDERED that the plaintiff's motion for summary judgment [dkt. #17] is DENIED.
It is further ORDERED that the defendant's cross-motion for summary judgment as to Count III of the complaint [dkt. #21] is GRANTED and Count III of the complaint is DISMISSED WITH PREJUDICE.
It is further ORDERED that the defendant's motion for summary judgment as to the remaining counts of the complaint [dkt. #23] is GRANTED IN PART AND DENIED IN PART, and Counts I and II of the complaint are DISMISSED WITH PREJUDICE; Counts IV, V, and VI will proceed to trial.
It is further ORDERED that a status conference is scheduled for Tuesday, December 11, 2001 at 10:30 a.m. at the U.S. Courthouse in Bay City, Michigan.