JENNIFER DAVID V SAINT MARY'S MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
JENNIFER DAVID,
UNPUBLISHED
August 16, 2002
Plaintiff-Appellant,
V
No. 231007
Saginaw Circuit Court
LC No. 98-025836-NZ
SAINT MARY’S MEDICAL CENTER,
Defendant-Appellee.
Before: Bandstra, P.J., and Hoekstra and O’Connell, JJ.
PER CURIAM.
In this employment case alleging wrongful discharge and age discrimination, plaintiff
appeals as of right from an order granting defendant’s motion for summary disposition pursuant
to MCR 2.116(C)(10). We affirm.
Plaintiff first argues the trial court erred in determining that her oral contract of just-cause
employment could be modified. To properly determine this issue, we must first determine
whether a just-cause employment relationship existed between plaintiff and defendant. Plaintiff
asserts she presented sufficient evidence of an express oral agreement for just-cause employment
and a legitimate expectation that she would be discharged only for just cause. We disagree.
A motion for summary disposition pursuant to MCR 2.116(C)(10), which tests the factual
support for a claim, is reviewed de novo. Oade v Jackson National Life Ins Co of Michigan, 465
Mich 244, 251; 632 NW2d 126 (2001). This Court considers the affidavits, pleadings,
depositions, admissions, and all other evidence submitted by the parties in the light most
favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817
(1999). If the evidence fails to establish a genuine issue of material fact, the moving party is
entitled to judgment as a matter of law. Id.
Under Michigan law, employment relationships are presumably terminable at the will of
either party. Lytle v Malady (On Rehearing), 458 Mich 153, 163; 579 NW2d 906 (1998). The
presumption of employment at will can be overcome with proof of a contract provision for either
a definite term of employment, or one prohibiting discharge without just cause. Id. at 164. A
plaintiff can establish contractual “just cause” employment in three ways:
(1) proof of “a contractual provision for a definite term of employment or
a provision forbidding discharge absent just cause”; (2) an express agreement,
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either written or oral, regarding job security that is clear and unequivocal; or (3) a
contractual provision, implied at law, where an employer’s policies and
procedures instill a “legitimate expectation” of job security in the employee. [Id.
(Citations omitted).]
Plaintiff first claims she received specific and unequivocal promises regarding job
security. Plaintiff testified at deposition that when she inquired about job security at the
initiation of her employment she was referred to the employee handbook for general reasons that
would be necessary to discipline employees. Plaintiff further testified that when she was
promoted to nurse manager of the burn unit, she expressed concerns regarding job security to her
current supervisor and was told not to worry because if she did not do anything wrong, nothing
would happen.
To create just-cause employment through oral assurances, the assurances must be clear
and unequivocal. Id. at 171. Moreover, the assertions must demonstrate both negotiation and
mutual assent to the just-cause employment relationship. Id. at 172; Bracco v Michigan
Technological University, 231 Mich App 578, 598-599; 588 NW2d 467 (1998). Negotiation is
important; statements more akin to stating a policy rather than offering an express contract are
insufficient. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991).
Viewing plaintiff’s allegations in the light most favorable to her, her assertions fail to
establish a question of fact regarding whether an express oral just-cause relationship was created.
Although plaintiff was concerned about job security and inquired about the matter, she did not
specifically negotiate for job security. Lytle, supra. Moreover, the statements made to her at
that time were merely statements of defendant’s policy, and did not rise to the level of offering
an express contract. Rowe, supra.
Plaintiff, however, also asserts that defendant created a legitimate expectation of justcause employment. Plaintiff bases this assertion on the alleged oral representations regarding job
security and sections of the employee handbooks she received at the initiation and during the
course of her employment. However, provisions in a handbook do not create enforceable rights
when, as here, the handbook expressly states that those provisions are not intended to create an
employment contract. Lytle, supra at 169, citing Heurtebise v Reliable Business Computers, Inc,
452 Mich 405; 550 NW2d 243 (1996).
The employment manual plaintiff received in 1980 specifically stated that it was for
informational purposes only, and that it did not create a contractual relationship between the
employer and employee. Further, at the time plaintiff received the 1991 and 1994 handbooks,
she signed a statement acknowledging that the manual did not constitute an employment
contract. Therefore, her reliance on any provisions in the handbooks, including those regarding
grievance and discipline procedures, to create either a contractual right to or a legitimate
expectation of just-cause employment is misguided. See Lytle, supra at 166-169; Heurtebise,
supra at 413-414. Moreover, an employer can unilaterally change a written for-cause policy to
an at-will policy without reserving the right, provided reasonable notice is given. In re Certified
Question, 432 Mich 438, 456-457; 443 NW2d 112 (1989). With the revised handbooks, plaintiff
was given sufficient notice of any alleged change in employment status. Therefore, no question
of fact exists regarding whether an express oral agreement or legitimate expectations of just-
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cause employment were created, and the lower court properly granted defendant’s motion for
summary disposition with regard to plaintiff’s wrongful discharge claim.
For these same reasons, we reject plaintiff’s contention that the trial court’s failure to
address her claim that defendant breached the fair treatment policy outlined in its employee
handbook requires reversal. Because each of the employee handbooks provided to plaintiff
either contained or were accompanied by a disclaimer indicating that the handbooks did not
create an employment contract, the policy provisions contained therein created no enforceable
rights. Lytle, supra; Heurtebise, supra.
Finally, plaintiff argues the trial court improperly granted summary disposition regarding
her age discrimination claim under the Civil Rights Act, MCL 37.2101 et seq. Under MCL
37.2202(1)(a), an employer cannot “[f]ail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment, compensation, or a term,
condition, or privilege of employment, because of religion, race, color, national origin, age, sex,
height, weight, or marital status.” The Supreme Court addressed the necessary elements of age
discrimination in Lytle, supra at 172-174:
To establish a prima facie case of discrimination, plaintiff must prove by a
preponderance of the evidence that (1) she was a member of the protected class;
(2) she suffered an adverse employment action, . . . ; (3) she was qualified for the
position; but (4) she was discharged under circumstances that give rise to an
inference of unlawful discrimination. Once plaintiff has sufficiently established a
prima facie case, a presumption of discrimination arises. The burden then shifts
to the defendant to articulate a “legitimate, nondiscriminatory reason” for
plaintiff’s termination to overcome and dispose of this presumption.
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Once the defendant produces such evidence, even if later refuted or disbelieved,
the presumption drops away, and the burden of proof shifts back to plaintiff. At
this third stage of proof, in this case in response to the motion for summary
disposition, plaintiff had to show, by a preponderance of admissible direct or
circumstantial evidence, that there was a triable issue that the employer’s
proffered reasons were not true reasons, but were a mere pretext for
discrimination.
Age discrimination can be based on either intentional discrimination or “disparate
impact” discrimination. Alspaugh v Comm on Law Enforcement Standards, 246 Mich App 547,
563; 634 NW2d 161 (2001). However, intentional discrimination is not a separate theory, but is
another method or alternative theory for disparate treatment. Meagher v Wayne State University,
222 Mich App 700, 709; 565 NW2d 401 (1997). To establish a prima facie case of intentional
age discrimination, a plaintiff must prove, by a preponderance of the evidence, the following: (1)
that she was a member of the protected class; (2) she suffered an adverse employment action; (3)
she was qualified for her position; and (4) that she was replaced by a younger person. Hall v
McRea Corp, 238 Mich App 361, 370; 605 NW2d 354 (1999), remanded on other grounds 465
Mich 919 (2001). To prove disparate treatment, the plaintiff must show that she was a member
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of the class entitled to protection under the act and that she was treated differently than persons
of a different class for the same or similar conduct. Meagher, supra.
Assuming plaintiff did in fact make a prima facie case of age discrimination, defendant
produced sufficient evidence of a legitimate nondiscriminatory reason for plaintiff’s demotion
and alleged constructive discharge. Although plaintiff refutes those reasons, plaintiff did not
meet her burden of showing by a preponderance of the evidence that defendant’s proffered
reasons were mere pretext for discrimination. Moreover, in terms of the disparate impact theory,
plaintiff failed to show that she was treated differently than any younger employees for the same
or similar conduct.
Finally, because we find plaintiff was an at-will employee who could be discharged for
any reason or no reason and there is no evidence of age discrimination, we decline to address
plaintiff’s claim that the lower court erred in failing to address her constructive discharge claim.
We affirm.
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
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