Opinion
19-P-1460
07-13-2020
KRIS ENGLUND v. BIG Y FOODS, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Kris Englund, filed a complaint in the Superior Court against the defendant, Big Y Foods, Inc. (Big Y), her former employer, alleging breach of an implied contract, wrongful discharge, and breach of the covenant of good faith and fair dealing. The judge allowed Big Y's motion for summary judgment, dismissed all of Englund's claims, and denied her motion for reconsideration. Englund appeals from so much of the judgment that dismissed her claims for breach of an implied contract and the covenant of good faith and fair dealing. We affirm.
Englund raises no separate issue on appeal regarding the dismissal of her wrongful discharge claim. Accordingly, it is waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 384 n.20 (2018) (claim considered waived where issue was raised in complaint, but not on appeal); Doe v. New Bedford Hous. Auth., 417 Mass. 273, 279 n.7 (1994) (same).
"We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
We recite the facts in the light most favorable to Englund. Englund was hired by Big Y, a family-owned supermarket chain, on November 4, 1996. As part of the hiring process, she filled out an employment application that stated, on page two, that her employment was at-will. Once hired, Big Y provided Englund with a document titled "Conditions of Employment," that stated that her employment was at-will. There is no dispute that Englund read, understood, and signed both documents.
Englund received a copy of Big Y's employee handbook. The first page of the handbook contained a disclaimer, set forth in all capital letters, that the terms of the handbook "DO NOT CONSTITUTE THE TERMS OF A CONTRACT OF EMPLOYMENT." The handbook stated that Englund's employment was at-will and that she could be discharged at any time, for any reason. When changes were made to the handbook, Englund was given an updated copy.
Over the course of Englund's employment, Big Y claimed that there were performance issues, and ultimately discharged her. Englund disputes the allegations, and we assume, for purposes of summary judgment, that a jury would credit her version of events. On April 6, 2013, Englund's supervisor gave her a disciplinary notice that resulted in a one-day suspension, without pay. Thereafter, as required by the handbook, Englund submitted an "action plan" to address the issues raised by her supervisor.
Englund's supervisors placed "notes" in her file documenting their concerns. The notes were the subject of a motion to strike. We need not decide whether the denial of the motion was correct, as the notes were admissible for a nonhearsay purpose -- as notice to Englund of the employer's complaints, as evidence of the information the employer had on hand, and as evidence of the employer's implementation of and adherence to (or lack thereof) its policies. See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686 (1996). Moreover, as we view the evidence in the light most favorable to Englund, the truthfulness of the statements contained in the files is not part of our summary judgment analysis, and the notes are, in any event, immaterial to the contract question before us.
Page thirty-four of the handbook, titled "Progressive Discipline Policies & Counseling Guidelines," outlines procedures relating to employee discipline.
In May 2013, Englund was transferred to another Big Y store. On January 10, 2015, Englund's supervisor filed another disciplinary notice that was also sent to a district director. After speaking with other managers, the district director decided to terminate Englund's employment. On January 15, 2015, she was terminated.
Englund contends that the progressive discipline provisions set forth in the handbook created a legally enforceable, binding contract, that her termination violated these provisions, and therefore it was error to enter summary judgment in favor of Big Y. We are not persuaded. In determining whether the handbook is a contract, we consider whether (1) the employer retained the right to modify unilaterally the manual's terms; (2) the manual stated that it was to be used as "guidance" concerning the employer's policies; (3) there was any negotiation between the employer and employee over the terms of the manual; (4) the manual stated a term of employment; (5) the employer called special attention to the manual; and (6) the employee signed or manifested his or her assent to the manual. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 14-15 (1988). In addition, "[i]f an employer adheres to the procedures set forth in its manual, that would be some evidence that the terms of the manual were part of the employment contract." O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 691-692 (1996), citing Jackson, 403 Mass. at 14.
An employee manual may form the basis of an implied contract if its provisions "instill a reasonable belief in the employees that management will adhere to the policies therein expressed." Ferguson v. Host Int'l, Inc., 53 Mass. App. Ct. 96, 101-102 (2001), citing O'Brien, 422 Mass. at 694. The factors set forth in Jackson "are not a rigid list of prerequisites." Id. at 692. Rather, they reflect considerations that "might make a difference in deciding whether the terms of a personnel manual were at least impliedly part of an employment contract." Id. The presence or absence of certain factors is not determinative. Id. at 692-693. Instead, "the context of the manual's preparation and distribution is . . . the most persuasive proof that it would be almost inevitable for an employee to regard it as a binding commitment." Id. at 694, quoting Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 299 (1985). See LeMaitre v. Massachusetts Turnpike Auth., 452 Mass. 753, 755-756 (2008).
As a general rule, for employers to ensure that a manual is not construed as a contract, "[a]ll that need be done is the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual." Ferguson, 53 Mass. App. Ct. at 103, quoting Woolley, 99 N.J. at 309. However, "[n]either the wording of disclaimers nor their absence is dispositive." LeMaitre, 452 Mass. at 756.
Here, the record amply supports the conclusion that the handbook is not a contract. The best example of this is the first page of the handbook. It includes a prominent, unambiguous disclaimer that the contents of the handbook "DO NOT CONSTITUTE THE TERMS OF A CONTRACT OF EMPLOYMENT. Nothing in this handbook should be construed as a guarantee of continued employment or treatment in any particular manner in any given situation; but rather, employment with Big Y is on an at-will basis" and "may be terminated at any time . . . for any reason, with or without notice" (emphasis in original).
Englund's reliance on Ferguson is misplaced. In Ferguson, the disclaimer was "buried" in the manual and could be viewed as "the functional equivalent of fine print." Ferguson, 53 Mass. App. Ct. at 103. By contrast, here, the disclaimer is set forth in its own separate paragraph surrounded by little else. Both the use of capital letters in the disclaimer and the statement at the bottom of the page that warned employees to "PLEASE READ THIS HANDBOOK CAREFULLY" reflected Big Y's effort to notify its employees that the handbook did not confer contractual rights to them. Indeed, Englund testified at her deposition that she understood precisely that -- the handbook did not create a contract.
We do not require that "an employer must utilize a specific set of words" to prevent a manual from being legally enforceable. LeMaitre, 452 Mass. at 755. Here, Big Y retained the sole discretion to amend the handbook at any time, with or without notice. Contrast id. It also retained the discretion to deviate from the progressive discipline measures set forth in the handbook by the imposition of more or less severe measures. And again, Englund testified that she understood that Big Y retained this discretion. In every respect, the handbook was not an implied contract.
Because we conclude that the handbook did not create an implied contract, we conclude that Englund was an employee at-will. At-will employment "is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all," as long as the reason is not unlawful. Jackson, 403 Mass. at 9. See Ferguson, 53 Mass. App. Ct. at 98 n.3. Accordingly, it was proper to grant summary judgment in favor of Big Y and dismiss Englund's claims.
Because we conclude that the handbook did not constitute an implied contract, we need not reach Englund's other claims. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 288 (2007) ("the scope of the covenant [of good faith and fair dealing] is only as broad as the contract that governs the particular relationship" [citations omitted]).
Judgment affirmed.
By the Court (Sullivan, Blake & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 13, 2020.