Opinion
CIVIL ACTION NO. 2:08cv328-MHT (WO).
January 16, 2009
OPINION
Plaintiff Brenda J. Dease filed this lawsuit against her former employer, defendant Beaulieu Group, Inc., in state court for alleged breach of contract and tort of outrage arising out of the termination of her employment. Beaulieu Group removed the case to this court pursuant to 28 U.S.C. §§ 1332, 1441 (diversity-of-citizenship jurisdiction). The case is before the court on Beaulieu Group's motion for summary judgment. The motion will be granted.
Although the complaint includes a third count for "emotional distress," Dease's counsel clarified in pretrial conference that this was not a separate claim, but rather a request for damages based on the outrage claim.
I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court's role at the summary-judgment stage is to view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. BACKGROUND
Dease was hired as an hourly employee by Columbus Mills, Incorporated. In 1999, Beaulieu Group acquired Columbus Mills, and Dease was instructed to sign a form acknowledging that she had received an employee handbook. Dease says that she asked to read the form twice, but her supervisor would not permit her to read it and told her that she would lose her job if she did not sign the form. Dease's supervisor represented that signing the acknowledgment form would constitute a contract for employment. Dease signed the form.
The handbook outlines, among other things, policies and procedures for employee discipline. In the section on employee discipline, the handbook states that it will "generally follow a `progressive' discipline procedure, involving oral or written warnings and suspensions." Def. Exh. 4 at 22 (Beaulieu Group Handbook). Nowhere does the handbook specify how many warnings precede termination, although Dease contends that Beaulieu Group's practice was to give employees three warnings prior to termination. The first page of the handbook has a disclaimer that the handbook is not an employment contract. The acknowledgment form also contains language to that effect.
On January 16, 2006, Dease was terminated by her supervisor, Pat Lafferty, for failing to resolve job performance issues. Dease was instructed to collect her belongings and escorted off the property. Dease was deeply humiliated by the manner in which she was terminated.
Lafferty had repeatedly counseled Dease for various shortcomings in her job performance, including "failing to perform her duties, failing to timely complete assigned tasks, failing to clock in and out, failing to communicate with department managers, leaving the office unattended, and being disrespectful to coworkers and supervisors." Def. Exh. 2, Lafferty Affidavit. In addition, in February and September 2005, Lafferty counseled Dease more formally for similar performance issues. Each write-up noted that failure to improve would result in additional disciplinary action, including the possibility of termination. Dease refused to sign the write-ups.
Lafferty informed Senior Human Resources Manager Jerry Layne that she had terminated Dease. Layne immediately contacted Dease and informed her that she was not terminated, and he suggested that they meet. The following day, Dease met with Layne. During that meeting, Layne reiterated that the termination was rescinded and told Dease that she should report to work the following day. Dease did not report to work again, and did not contact or respond to calls from Beaulieu Group. After Dease missed three days of work without contacting Beaulieu Group, the company deemed that Dease had voluntarily left her employment.
III. DISCUSSION A. Breach-of-Contract Claim
Dease contends that, because she was fired after two, not three, formal warnings, Beaulieu Group breached her employment contract. Beaulieu Group counters that no contractual relationship was ever formed and that, even if it was, no terms were violated.
In Alabama, absent evidence of a contract, an employee is `at-will,' meaning that either the employee or the employer may terminate the employment at any time for any reason. Ex parte Amoco Fabrics Fibers Co., 729 So. 2d 336, 339 (Ala. 1998). In certain instances, however, "the provisions of an employee handbook can become a binding unilateral contract, thereby altering an employment relationship's at-will status." Id. To show that a unilateral contract was formed this way, the employee must demonstrate: "(1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration; (2) that the hiring agent had authority to bind the principal to a permanent employment contract; and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered." Hoffman-La Rouche, Inc. v. Campbell, 512 So. 2d 725, 728 (Ala. 1987).
Dease contends that Beaulieu Group's employee handbook constituted an offer of employment that she accepted by continuing to work for the company, thereby creating a unilateral employment contract. However, the facts are insufficient to show that any contract was formed between Dease and Beaulieu Group. Dease cannot show a "clear" or "unequivocal," Hoffman-La Rouche, Inc., 512 So. 2d at 728, offer of permanent employment, because the employee handbook expressly disclaimed any such offer, and a handbook with such a disclaimer cannot be construed as a unilateral contract as a matter of law. See Abney v. Baptist Medical Centers, 597 So. 2d 682, 683 (Ala. 1992). The handbook's express disclaimer plainly contradicts any representations by Dease's supervisor and, at the very least, the disclaimer should have prompted Dease to question whether a contract was being formed. The disclaimer is on the first page of the handbook in bold and is written clearly in plain English set apart from other text:
"This Handbook should not be construed as creating an `employment contract' for any specific period of time, or to create other contractual rights of any nature. Although Beaulieu intends that the benefits, policies and regulations outlined in this Handbook will generally remain in effect, it reserves the right at any time to amend, curtail or to otherwise revise the benefits, policies or regulations outlined in this Handbook."
Def. Exh. 4 at 10 (Beaulieu Group Handbook). Even if Dease was prevented from reading the handbook at the time she signed for it, she had ample opportunity to read it afterward.
The one-page acknowledgment form also plainly states that the handbook is not a contract. The form states in full:
"I understand that this handbook represents only the current policies, regulations, and benefits and that it does not constitute a contract of employment. The Company retains the right to change these policies, benefits and procedures at any time it deems appropriate.
"I understand that I have the right to terminate my employment at any time, with or without cause, with or without advance notice, and that the Company has a similar right. I further understand that my status as an at-will employee may not be changed except in writing signed by the President of the Company.
Def. Exh. 4 at 4 (Acknowledgment Form). Because Dease contends that she was not permitted to read the form, the court does not rely on its language in reaching its conclusion.
In sum, Dease has put forth nothing that would permit a jury to conclude that Beaulieu Group extended an offer of definite or permanent employment, let alone a "clear" or "unequivocal" offer. Because no offer was extended, no contract was formed.
As a separate matter, Dease contends that the "pattern and practice of Beaulieu Group, LLC of disciplinary actions, with other employees prior to termination, established a unilateral contract with the Plaintiff upon which she reasonably relied upon to her detriment." Compl. ¶ 32. Dease seems to suggest that Beaulieu Group's practice of following certain disciplinary procedures created an offer of a unilateral contract to follow those procedures with respect to Dease. Dease offers no authority for this contention. However, even assuming that Beaulieu Group's practice of following certain procedures somehow constituted an "offer" to use those procedures with Dease, she cannot show that a contract was formed, for Dease did not provide "substantial consideration for the contract separate from the services to be rendered." Hoffman, 512 So. 2d at 728. In other words, Dease provided nothing to Beaulieu Group in exchange for its "offer" to abide by the policies in the handbook. Thus, no contract was formed.
Further, even if Dease were somehow able to show that a contract was formed, it is unlikely that she could show that Beaulieu Group breached the contract, for two reasons. First, she cannot show that Beaulieu Group violated the handbook's policies when it terminated her without a third warning, for the handbook does not state that employees will receive three warnings prior to termination, and, further, it expressly allows Beaulieu Group to deviate from its stated policies. See Def. Exh. 4 at 22 (Beaulieu Group Handbook) ("Misconduct or poor performance will be investigated and considered on a case-by-case basis" and progressive disciplinary procedure will be applied "[w]here we deem it to be appropriate."). Thus, even if the handbook constituted a contract, Beaulieu Group did not violate the contract's terms. Second, hours after she was terminated, Dease was informed that the termination was rescinded and that she should return to work the following day. Dease did not return to work; did not respond to calls from management; and did not call Beaulieu Group for at least three days. Beaulieu Group's policy is that an employee is deemed to have voluntarily terminated her employment after three "no call/no show" days. Accordingly, because Dease chose not to return to work after the termination was rescinded, she cannot show that Beaulieu Group even terminated here.
Dease's breach-of-contract claim fails.
B. Outrage Claim
Dease also brings a claim for the tort of outrage based on the manner in which she was fired and escorted out of the premises. To make this claim, Dease must show that Beaulieu Group intentionally or recklessly engaged in "extreme and outrageous conduct" that caused her to suffer emotional distress "so severe that no reasonable person could be expected to endure it." Carraway Methodist Health Sys. v. Wise, 986 So. 2d 387, 401 (Ala. 2007) (quoting American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1981)). Indeed, Beaulieu Group's conduct must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Id.
Dease seems to base her outrage claim solely on her assertion that an escort was neither necessary nor appropriate to remove her from the building. She does not allege any additional facts suggesting that the manner in which she was escorted out of the building was harsh or abusive. But the mere act of escorting a terminated employee out of the building, without more, is not "atrocious" or otherwise intolerable conduct — rather, it is arguably a routine occurrence. That Dease felt humiliated is not enough to render the conduct outrageous.
Beaulieu Group contends that Dease was escorted off the premises because she refused to leave. The court need not resolve this factual dispute, as Dease's claim fails either way.
Beaulieu Group's conduct is, if not less egregious, indistinguishable from the conduct complained of in Carraway Methodist Health Sys. v. Wise, 986 So. 2d 387 (Ala. 2007), where an employee was suddenly terminated from his long-time employment and forced to leave his workplace without being allowed to collect his personal belongings or say goodbye to his coworkers.Id. at 401. The Wise court explained that, although the termination and the manner in which it occurred may have been a "personal crisis" for the employee, it did not reach the level of conduct "intolerable in a civilized society." Id.
Even if the court accepted every single one of Dease's allegations as true, the conduct of her employer cannot be said to be "atrocious" or "beyond all possible bounds of decency." Id. at 401. Dease's claim for outrage must fail.
****
For the foregoing reasons, Beaulieu Group's motion for summary judgment will be granted on all claims. An appropriate judgment will be entered.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).