Opinion
Case No. 8:01CV100
April 29, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Defendants' Motion for Summary Judgment (Filing No. 53). Marriott International, Inc., and Marriott Senior Living Services, Inc., (collectively "Marriott") contend that Plaintiff Larry Sieler's Complaint should be dismissed and that Marriott is entitled to judgment as a matter of law on all claims. Both parties have briefed the issues, and both parties have submitted evidence in support of their respective positions (Filing Nos. 54 and 63). Also presented in connection with the motion for summary judgment is Marriott's Motion for Leave to Submit a Reply Brief and Additional Evidence (Filing No. 66) and Plaintiff's Motion to Supplement (Filing No. 70), both of which are granted and have been considered; and Plaintiff's Motion to Strike (Filing No. 67), which is denied.
Factual Background
Larry Sieler was first employed with Marriott in 1988. From 1999 until sometime in August 2000, Sieler was employed as Marriott's Area Manager for an area including cities in Illinois and Nebraska. In that job, he managed several assisted living centers that are owned by Marriott. One of those assisted living centers is Brighton Gardens in Omaha, Nebraska, which is also a skilled nursing facility and an Alzheimer's special care unit. Filing No. 63, Sieler Dep. at 30:18-19.
Sometime in June 2000, Sieler recalls that he and Randi McGough, his immediate supervisor and Regional Vice President, discussed his performance, and he knew that she had some concerns about it. Id. at 38:11-25, and Ex. 13, page 3. Sieler received a written warning in the form of correspondence from McGough on June 22, 2000, in which she criticized his management of five different facilities. Id. at Exhibit 1. The three-page letter was specific and detailed, listing 16 items that needed immediate action at Brighton Gardens, and from three to eight items that needed immediate action in each of four other facilities. McGough gave him 30 days to take the actions identified in her correspondence. Id.
In response to the warning, Sieler sent a rebuttal to McGough and his other supervisors in which he outlined the areas of dispute. Id. at Sieler Dep. Ex. 2. Sieler's rebuttal is a 10-page letter that outlines the condition of the facilities when he took over Area Manager responsibilities and that identifies the progress that he and the facilities' general managers had made during his tenure. The rebuttal memorandum set into motion Marriott's "Guarantee of Fair Treatment" ("GFT") policy, substantially similar versions of which can be found in the 1994 employee handbook and the 2000 human resources manual. Filing No. 54, Sieler Dep. C at Exhibit 10, and at 39:16 — 43:25; and Filing No. 54, Sieler Dep. B at Exhibit 5. Pursuant to the GFT policy, Marriott human resources representative Dedie Giuliani commenced an investigation relating to the June 22, 2000, warning. Filing 63, Sieler Dep. at 44:10-25.
In September 2000, Sieler and Giuliani spoke on the phone, and Giuliani informed him that she could not uphold his rebuttal following her investigation, and that the disciplinary action would stand. Sieler requested that she put her decision in writing. If she did, he never received a copy of it. Id. at 45:8-46:19. Sieler told Giuliani that he was not satisfied with her decision and that he wanted to take it to the next level, although he never made contact with anyone other than Guiliani about the GFT. Id. The GFT policy is one basis upon which Sieler asserts that he has an employment contract with Marriott.
Conversation with McGough and Written Offer
In July 2000, Sieler was informally notified that the investigation into his GFT was not proceeding favorably to his position. During a meeting in Houston, Texas, also held during July, McGough, Cellar, and a third Marriott employee had a conversation about Celeries willingness to take the job as general manager for Brighton Gardens and to voluntarily step down from his job as Area Manager. Id. at 48:13-49:6. During that conversation, Sieler states that he was offered a two-year position as the general manager of Brighton Gardens. They discussed salary, length of employment, time frames for beginning work, and McGough's expectations. Sieler contends that this conversation resulted in an employment contract. Id. at 50:2-17. Although Sieler admits that no one from Marriott ever said that he would have the job for two years, the Marriott representatives told Sieler that his salary would be at a specific level for two years, and he understood them to mean that the term of his employment contract was two years. Id. at 51:1-21.
After the conversation, Marriott provided Sieler with a two-page written offer of employment to be the general manager for Marriott's Brighton Gardens facility in Omaha. Filing No. 54, Sieler Dep.B. at Ex. 3. The August 9, 2000, written job offer states in relevant part:
The deposition excerpts of Larry Sieler are located in the record in at least three different places. Citation to the deposition text will be to Filing No. 63, Sieler Dep. at the page. Citations to certain of Sieler's deposition exhibits, however, will be to Filing No. 54, either Sieler Dep Exhibit B or Exhibit C, and then to the deposition exhibit number.
Your salary will remain at $88,000 per year ($1692.31 per week) and will be grandfathered at this rate for 2 years effective August 8, 2000. Your performance will be reviewed on August 8, 2001, and annually thereafter.
* * * * *
This letter constitutes the full commitments that have been extended to you. However, this does not constitute a contract of employment for any period of time . . .
Id. Although there is a place at the bottom of the letter's second page for Sieler's signature, it is undisputed that Sieler never signed the written offer. Nevertheless, Sieler states that he accepted the offer of employment as the General Manager on or about August 9, 2000, but that the "terms had not yet been worked out."
In mid to late August, a local Omaha newscaster went to Brighton Gardens to investigate a story about treatment one of the residents had received. The reporter questioned the individual's treatment and also the facilities' lack of certification by Medicare. There is no dispute that Sieler knew that one of the resident's relatives stated her intention of contacting the local news media with her concerns about the facility. The relative made her intention known at an open family meeting conducted at Brighton Gardens that Sieler could have attended but did not attend because he was at his home in Chicago. After the meeting, Brighton Gardens employees reported the relative's stated intention to Sieler who cautioned the employees not to overreact. Sieler states that he reported these comments to McGough, but McGough did not become involved until she was contacted on the day the media went to the facility.
On the day that the newscaster was at Brighton Gardens, Sieler was taking vacation time and was at his home in Chicago. He was contacted at his Chicago home after the media had already left the facility. During that call, he was informed that McGough already had been contacted and that she had someone in the corporate public relations office working on a response for the media. Sieler then attempted to contact McGough directly but succeeded only in leaving her a message informing her of the developments in Omaha and of the fact that he was in Chicago. She left a return message for Sieler, stating something to the effect of, "if he was on vacation then he should stay on vacation" and she would handle it.
The following weekend, Sieler went to Brighton Gardens. When McGough learned that he had been there, she left him another voice message stating that she knew he had been in the facility, that he was to stay out of the facility, that he was treading on thin ice, and that she would speak to him later in the week. Id. at 84:1-6. The following Thursday or Friday, he met with McGough and the national director of human resources, Betsy Kramer. During the meeting, Sieler was presented with a severance package. For the first hour of the two-hour meeting, Sieler met with both McGough and Kramer and was presented with the package. During the second hour, he met alone with Kramer. During that meeting, Sieler told Kramer that he felt that he was not being fairly treated by McGough and that he believed she had it out for him. He also informed Kramer that despite McGough's assertions to the contrary, he had informed McGough of the media's interest in the Omaha facility and had contacted her the day of the incident. Id. at 84-90.
Employee handbooks
During the time that Sieler was employed at Marriott, he received several handbooks. One of his claims is that two provisions contained in two different handbooks constituted terms of an employment contract between Sieler and Marriott. The first provision is a "Guarantee of Fair Treatment" ("GFT") policy contained in "The Marriott Senior Living Services Associate Team Handbook," dated November 1994 (hereafter "Handbook") Filing No. 54; Exhibit C at Sieler dep. exhibit 10. The second provision is the progressive discipline policy contained in a manual entitled "Key Human Resources and Related Policies for Marriott International, Inc., Corporate Headquarters Satellite Offices" dated June 2000 (hereafter "HR Manual") Filing No 54; Exhibit B, at Sieler dep. exhibit 5. The HR Manual also contains a GFT policy that is very similar to the GFT policy contained in the 1994 Handbook. The GFT provision relates to Marriott's complaint resolution process.
The GFT policy states:
It is the policy of Marriott International to treat all associates with respect and in a fair manner at all times. Every individual will have an opportunity for employment, promotion or training, depending upon his or her qualifications, without regard to race, creed, sex, national origin, age, veteran status or disability. We recognize that, being human, mistakes will happen occasionally despite our best efforts. We are committed to correcting such mistakes as they happen. If there is a problem, we have established a process we believe will aid in its resolution.
Step One: Talk with your immediate Supervisor. During this discussion, please share your honest feelings and concerns. Your supervisor wants to help solve the problem. He or she will listen and respond in a friendly and courteous manner. This discussion should lead to actions which will resolve the problems.
Step Two: If you do not feel satisfied with the resolution proposed by your Supervisor, talk with your Department Head. He or she should listen to you, then gather any additional facts or appropriate input, and attempt to settle the problem in a fair and courteous manner.
Step Three: If you still do not feel satisfied, request a meeting with your community's General Manager. The GM will arrange a meeting with you, and all others involved, to review the facts and circumstances. If, following these procedures, you are still unable to reach a resolution, your Regional Director of Operations will be called upon to handle the situation.
You may, at any time, wish to discuss the problem directly with a representative of Senior Living Services (SLS) Human Resources, or a Corporate Employee Relations staff member. We encourage you to do so. All associate suggestions and concerns will receive full attention and consideration. There will be no recriminations or counter charges taken against any associate as a result of the presentation of a complaint or a problem.
Nothing in the policy states that it forms the basis of a contract. Rather the policy sets forth procedures to assist an employee in communicating complaints to management. The 1994 Handbook contains disclaimer language at the beginning of the Handbook. The disclaimer language states:
The contents of this handbook . . . are presented as a matter of information only and are not intended to create, nor are they construed to constitute, a contract, express or implied, between Marriott International, the division of Senior Living Services and its Retirement Communities, and any of its associates.
Senior Living Services reserves the right to modify, change, disregard, suspend or cancel, at any time, without written or verbal notice, all or any part of the Handbook's contents as circumstances may require.Id. at 3.
The HR Manual describes the progressive discipline policy applicable to "Corporate Management Associates (Grade 39 and higher)." Sieler's grade was 54. The policy is several paragraphs long and is detailed. Filing No. 54 at Exhibit C, Sieler Dep. Ex. 5, page 8. The procedures described under the policy can be fairly summarized as follows: the initial step in progressive discipline is coaching and counseling. If that is not effective, or if another action occurs that warrants discipline, a warning is provided and documented. Two kinds of warnings are described in the policy, written and verbal. The policy allows termination of an employee's employment if he "has one written warning and a second incident or situation occurs which is a violation of policy or is indicative of . . . unacceptable performance that results in suspension, with recommendation for termination." Id. After a written suspension notice is prepared, the Human Resources Executive or her designee coordinates and summarizes an investigation and presents it to the appropriate person for review and approval or disapproval of the termination. Id. The HR Manual also contains disclaimer language:
Marriott International, Inc. Reserves the right to modify, change, disregard, suspend or cancel at any time without written or verbal notice all or any part of the Key Human Resources and Related Policies as business circumstances may require.
Filing No. 54, Sieler Dep. Ex. 5 at hand-numbered page 2.
Final Warnings
After Sieler met with McGough and Kramer in mid to late August, 2000, he knew he was suspended and was not allowed to return to Brighton Gardens until an investigation into McGough's recommendation for termination was completed. During that time, Sieler's state license as an assisted living center administrator continued to hang on the wall at Brighton Gardens. Based on documentation submitted by Sieler, it appears that Marriott may have continued to operate the facility under Sieler's license during the time that he was suspended and before his termination became final (Filing No. 63, Tab 3 and Filing No. 71, Tab 4).
On or about September 11, 2000, Sieler received the first of two "Second Written Warnings" relating to his handling of the local media story on Brighton Gardens in August 2000. On or about October 18, 2000, Sieler received the second of the two "Second Written Warnings." Filing No. 54, Sieler Dep. at exhibits 7 and 8. While there was some ambiguity about the date of Sieler's termination, his employment with Marriott was terminated on or before October 18, 2000. Even after his employment was terminated, Kramer apparently gave him the opportunity to exercise the GFT policy, but Sieler chose not to exercise the GFT because he felt that Marriott did not give him fair treatment under his first GFT request. He believed that further attempts to exercise his GFT after the August media attention would have been futile.
Summary Judgment Standard
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party, in this case Larry Sieler. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2001). However, summary judgment 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, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
The Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D.Ill. 1994).
ANALYSIS
Marriott argues that Sieler was an at-will employee, and that no handbook, manual, conversation or correspondence changed that status, and that it is entitled to summary judgment as a matter of law. Sieler maintains that he has an employment contract with Marriott comprised of portions of the Handbook, the HR Manual, the July conversation with McGough and the August 9, 2000, correspondence from McGough.
Nebraska law applies to the Sieler's breach of employment contract claims. As a preliminary and potentially dispositive matter, the Court must determine, based on the evidence taken most favorably to the Plaintiff, whether there is an employment contract in this case or, at a minimum, whether there is a genuine issue of material fact regarding the existence of the contract. The Nebraska Supreme Court has stated:
Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason. See Blair v. Physicians Mut. Ins. Co., 242 Neb. 652, 496 N.W.2d 483 (1993); Goodlett v. Blue Cross, 234 Neb. 5, 449 N.W.2d 9 (1989); Johnston v. Panhandle Co-op Assn., 225 Neb. 732, 408 N.W.2d 261 (1987). An employee's at-will status can be modified by contractual terms that may be created by employee handbooks and oral representations. Hebard v. AT T, 228 Neb. 15, 421 N.W.2d 10 (1988).Hillie v. Mutual of Omaha Ins. Co., 245 Neb. 219, 223, 512 N.W.2d 358, 361 (Neb. 1994). It is the plaintiff's burden to prove the existence of the contract and all the facts essential to the cause of action. Id. at 224, 512 N.W.2d at 358. The Nebraska Supreme Court has clearly articulated a standard for determining whether particular language or oral representations constitute an employment contract.
In order for the language of a handbook to change the employee's status,
the language . . . Must meet the requirements for formation of a unilateral contract. . . . In other words, the language must constitute an offer definite in form which is communicated to the employee, and the offer must be accepted and consideration furnished for its enforceability.Hillie 245 Neb. at 224, 512 N.W.2d at 358 (citations omitted.) With regard to the acceptance of an offer of employment by a current employee, the Nebraska Supreme Court has stated:
The employee's retention of employment constitutes acceptance of the offer of [the] unilateral contract because by continuing to stay on the job although free to leave, the employee supplies the necessary consideration for the job.Overmier v. Parks, 242 Neb. 458, 462, 495 N.W.2d 620 (1993).
Written Representations
Sieler claims three written bases for the employment contract: the GFT policy, the progressive discipline policy, and the August 9, 2000, written offer of employment. With regard to each of these documents, the Court finds that Sieler has failed to carry his burden of demonstrating any facts that constitute a unilateral contract that modified his status as an at-will employee. Neither one of the policies nor the offer of employment is sufficiently definite to constitute a unilateral contact under Nebraska law.
Nowhere in the GFT policy is it stated that Marriott must agree with the employee's complaint that he or she has been unfairly treated. No where in the GFT policy does it state that the GFT policy must be applied before an employee is terminated. At the most, the GFT policy offers a procedure that may be followed if the employee has a complaint, but it is not mandatory or "guaranteed," despite its title. Filing No. 54, Sieler Dep. Ex. 10 at hand-numbered page 21-22, and Filing No. 54, Sieler Dep at Ex. 5 pages 13-14. This Court concludes that the GFT policy does not create a unilateral contract. The language of the policy itself is not definite or firm. Moreover, the 1994 Handbook includes broad disclaimer language that reserves to Marriott the power to "modify, change, disregard, suspend or cancel, at any time, without written or verbal notice, all or any part of the Handbook's contents as circumstances may require." Id. at 3. The Court finds no basis upon which to conclude that the GFT is a term of an employment contract.
Another version of the GFT is included in the HR Manual revised in 2000. This Manual, as described more fully later in the memorandum, also includes disclaimer language.
The Court notes that when Sieler put into motion the GFT policy following his receipt of the June 22, 2000, written warning from McGough, it is undisputed that a human resources representative undertook an investigation. The human resources representative concluded that there was no basis upon which to uphold Sieler's rebuttal or to revoke the discipline. This determination was communicated to Sieler. Sieler submitted no evidence to cast doubt upon the integrity of the human resources investigation, other to state that he felt that the outcome was not fair. In addition, the undisputed evidence was that Sieler chose not to request an investigation under the GFT policy after he was suspended following the problems with the media. Even if the GFT could somehow be construed as a contractual term, which this Court finds it cannot, Marriott acted on the representations that it made to Sieler under the GFT policy.
Sieler also contends that Marriott's progressive discipline policy applicable to senior managers, which is contained in the HR Manual (revised 2000), forms the basis of an employment contract. While the language used in the progressive discipline policy is more definite and the procedures outlined are more detailed than the GFT policy, the Court finds that the progressive discipline policy does not form the basis of an employment contract. Some of the language used in the policy itself allows for the exercise of discretion on the part of Marriott and its managers. For example, in the second paragraph of the policy, it provides that "[g]enerally" the first step in progressive discipline is coaching and counseling. In the policy's fourth paragraph, it states that "a manager may be terminated upon receipt of two written warnings within a one-year period." Then, in the sixth paragraph, the policy states that "[a]n associate can be terminated under progressive discipline if he/she has one written warning and a second incident or situation occurs which is a violation of policy or is indicative of inappropriate behavior or unacceptable performance that results in suspension, with recommendation for termination." Filing No. 54, Sieler Dep. Ex. 5 at hand-numbered page 8. These excerpts from the progressive discipline policy are some evidence that Marriott has reserved to itself some discretion in the handling of disciplinary matter. The Court also notes that the policy does not state that an employee cannot be terminated absent the progressive discipline. The analysis is greatly simplified, however, because Marriott also included a disclaimer at the beginning of the HR manual. The disclaimer states:
Marriott International, Inc. reserves the right to modify, change, disregard, suspend or cancel at any time without written or verbal notice all or any part of the Key Human Resources and Related Policies as business circumstances may require.Id. at 2. The discretionary language used in the policy, combined with the reservation of the right to modify, change, disregard or cancel the policy, demonstrates that the progressive discipline policy does not constitute an offer sufficiently definite in form so as to constitute an employment contract.
As was the case with the GFT policy, the Court notes that Marriott at least substantially complied with the terms of the progressive discipline policy with regard to Sieler's termination. The undisputed facts are that following McGough's and Sieler's tour of the facilities under Sieler's management, they discussed the state of the facilities. In connection with those events, McGough prepared a written memorandum outlining several items that Sieler needed to address in the following 30 days. In response to this memorandum, which Sieler referred to as a "written warning" in his rebuttal, Sieler exercised the GFT policy. While the GFT investigation was underway, Sieler accepted the offer to transfer to the General Manager position at Omaha's Brighton Garden. After just a few weeks in that position, McGough decided that Sieler's inability to manage the media's interest in Brighton Gardens warranted additional discipline. As a result, Sieler, McGough and Betsy Kramer met at the Brighton Gardens facility and Sieler was informed that he was suspended pending an investigation into his handling of the media's interest. During that meeting, Sieler was provided with an opportunity to tell his version of the events when he met alone with Kramer for approximately one hour. In September and again in October 2000, Sieler received documents entitled "Second Written Warning" which were authored by McGough. In the document she explained the basis of her criticism and informed him that his employment with Marriott was terminated. While Sieler's receipt of two written "second warnings" undoubtedly caused some confusion, at least by October 18, 2002, the date of the second "second warning," Sieler had been discharged. These undisputed facts demonstrate that Marriott followed in all material respects its progressive discipline policy in connection with Sieler's termination.
Sieler also maintains that the August 9, 2000, correspondence from Jane Meyer constitutes an employment contract. Sieler has stated that no one at Marriott ever told him that his term of employment was two years, only that he understood from the correspondence that he was being offered the position for a two year period. The correspondence states.
Your salary will remain at $88,000 per year ($1692.31 per week) and will be grandfathered at this rate for 2 years effective August 8, 2000. Your performance will be reviewed on August 8, 2001, and annually thereafter.
Filing No. 54, Sieler Dep. Ex. 3. The Court finds that this language makes no promise of employment for a term of two years. Rather, it provides information relating to the salary that he could expect Marriott to pay him provided that Sieler remained employed with Marriott during that time. In this respect, the facts are similar to those presented in Johnston, where the employee's base pay and commissions were discussed prior to his acceptance of the job. In that case, the Nebraska Supreme Court stated, "This agreement is consistent with an employment at will and merely provides what the salary would be for the specific year if an employee was still employed." Johnston, 225 Neb. at 737, 408 N.W.2d at 265.
Sieler's correspondence also states,
This letter constitutes the full commitments that have been extended to you. However, this does not constitute a contract of employment for any period of time. . . .
Filing N. 54, Sieler Dep at exhibit 3. If there was any doubt about whether the written offer of employment constituted an employment contract, this language makes it clear that Marriott did not extend an offer of employment that included a promise of a definite term of employment. "An employee's subjective understanding of `job security' is insufficient to establish an implied contract of employment to that effect." Hillie, 245 Neb. at 225, 512 N.W.2d at 362, quoting Johnston, 225 Neb. 732, 408 N.W.2d 261 (1987).
Regardless of whether Marriott set forth procedures in the Handbook or HR manual or made reference to salary expectations in the correspondence, the determinative issue remains whether the language setting forth those items "me[ets] the requirements for formation of a unilateral contract." Pfister v. Bryan Memorial Hosp., 874 F. Supp. 993, 998 (D.Neb. 1995), quoting Hillie, 245 Neb. at 224, 512 N.W.2d at 361. Because Sieler has failed to carry his burden of showing that a genuine issue of material fact remains relating to whether the Handbook, the H.R. Manual, and the August 9, 2000, correspondence created a unilateral contract, the Court will grant the Defendants' motion for summary judgment on each and all of these claims.
Verbal Representations
Sieler stated that he did not sign his name on the space provided on the written offer of employment, indicating acceptance of the offer of employment as General Manager, because he was told things during his conversation with McGough that differed from the correspondence. "Oral representations may, standing alone, constitute a promise sufficient to create contractual terms which could modify the at-will status of an employee. Hamersky v. Nicholson Supply Co., 246 Neb. 156, 160, 517 N.W.2d 382, 386 (Neb. 1994), citing Hillie, supra. As with written representations, verbal representations must be sufficiently definite to constitute a unilateral contract before a court can find that an employee's at-will status has been modified. Hillie 245 Neb. at 224, 512 N.W.2d at 358.
With regard to the conversation between McGough and Sieler that occurred in July 2000, in Houston, Texas, Sieler stated they discussed a duration of employment and also what his salary would be if he accepted the General Manager job at Brighton Gardens. Sieler Dep. at 49-51. After this conversation, Sieler received the correspondence from Jane Meyer, formally offering him the position. In his deposition, Sieler stated that at the time he received the offer letter, he "was moving towards" accepting the general manager position, but that he "hadn't actually signed the document . . ." Id. at 94. And when he was asked again about his acceptance of the offer to work as general manager, Sieler stated that as of August 10:
I had accepted the relocation of Brighton Gardens. We still hadn't concluded on the terms of the agreement. That was still up in the air.Id. at 96:11-17. These facts alone, without even getting into the substance of the July 2000 conversation, demonstrate that as of August 10, the only certainty relating to Sieler's future with Marriott was that he would be employed as the general manager at Brighton Gardens in Omaha. There simply is no evidence that the parties had a meeting of the minds about the duration of employment or what Sieler would be paid and for how long.
When Sieler was asked during his deposition about the conversation in July between McGough and him, he stated:
Q: But they never stated that you would be employed for two years?
A: They said this is what — the salary rate I would be paid at for two years.
Q: But did they ever state that you would be employed for two years?
A: That's the impression I got.
Q: But did either Randi McGough or Janice Taylor ever state that you would be employed for two years?
A: I couldn't be certain on that.
Q: Do you ever recall either Janice Taylor or Randi McGough stating that you would be employed for two years?
A: No.
Filing No. 63, Sieler Dep. at 51:7-21.
Even though the Court has considered the evidence in the light most favorable to the Plaintiff, the Court finds no basis for concluding that the conversation between McGough and Sieler resulted in a contract of employment. No definite terms came out of the conversation. No offer was made or accepted. Accordingly, Marriott's motion for summary judgment will be granted on this claim.
Public Policy Exception
Marriott asks the Court for summary judgment on Sieler's claim of wrongful discharge based on the public policy exception to the employment-at-will doctrine. The Nebraska Supreme Court recognizes a very narrow exception to the employment-at-will doctrine when an employer discharges an employee who refuses an employer's demand or request that the employee do something contrary to the law or contrary to clearly mandated public policy. The Nebraska Supreme Court has stated:
The right of an employer to terminate employees at will should be restricted to exceptions created by statute or those instances where a very clear mandate of public policy has been violated.Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 905, 416 N.W.2d 510, 515 (Neb. 1987). In identifying the appropriate bases for the exception, the Nebraska Supreme Court has considered whether the statute in question contains "a specific provision restricting an employer's right to discharge an at-will employee," or whether the statute "impose[s] any criminal sanctions" thereby identifying it as a clearly mandated public policy. Malone v. American Business Information, 262 Neb. 733, 738, 634 N.W.2d 788, 792 (Neb. 2001).
Sieler contends that because Marriott operated Brighton Gardens under his nursing home administrator's license during the time he was suspended until his termination in October, Marriott has violated the law and acted in contravention of a clearly mandated public policy. The statute upon which Sieler bases his claim states:
Each home for the aged or infirm or nursing home within the state shall be operated under the supervision of an administrator duly licensed in the manner provided in section 71-6053 to 71-6068.
Neb. Rev. Stat. § 71-6062 (Reissue 1996). This statute does not expressly restrict an employer's right to terminate an at-will employee. Additionally, because it is regulatory in nature and does not include a criminal penalty provision, the statute does not state such a clearly mandated public policy to form the basis for an exception to the employment at will doctrine. Finally, there is nothing in the record to support the claim that Marriott's decision to terminate Sieler had anything to do with Sieler's license as a nursing home administrator or with Marriott's lawful or unlawful use of his license after he was suspended. Sieler's claim for wrongful discharge must at least demonstrate that his discharge is causally related to wrongful conduct alleged by Marriott. Thus, even if Sieler could show that Marriott violated the law, Sieler has failed to demonstrate that Marriott demanded he do anything improper. Accordingly, the Court finds that Sieler's wrongful discharge claim must be dismissed as a matter of law.
For all the reasons provided in this memorandum, Marriott is entitled to summary judgment on all claims stated in Sieler's Complaint. Judgment shall be entered accordingly.
IT IS ORDERED:
1. Defendants' Motion for Summary Judgment (Filing No. 53) is granted in its entirety;
2. Defendants' Motion for Leave to Submit a Reply Brief and Additional Evidence (Filing No. 66) is granted;
3. Plaintiff's Motion to Supplement (Filing No. 70) is granted;
4. Plaintiff's Motion to Strike (Filing No. 67) is denied; and
5. All pending motions are denied as moot.