*1 whiсh looking judgment, at the written require- technical argues that the Schultz $500,000, total fine is provides that the not met rule were because of the ments sentence, judge in which the states had the oral that Schultz not ascertain court did report. is to run concur- custody that the sentence presentence discussed read and Therefore, judgment not object rently. not the written counsel did But defense so, to do modified. opportunity will not be having the report. acknowledged receipt of fact determinations, foregoing Based on the Moreover, lengthy, impassioned in his on AFFIRM the defendant’s conviction we during the sentenc- the court statement all counts. detail he went into in which ing proceeding, health, age, family situa- about Schultz’s community, and humil-
tion, standing in the trial, did counsel
iation as a result report. challenge any aspect of report and had the had the Schultz
Since not, we infer object but did
opportunity report. to the objections no
that he had rule Therefore, requirements of the Pratt, David PRATT and Teri D. K. claim substantially and this satisfied Plaintiffs-Appellees, no merit. has “Inconsistency” Sentencing COMPANY, A BROWN MACHINE inconsistency ex- alleges that an Schultz BROWN, JOHN DIVISION OF imposed on the fine Counts ists between INC., Defendant-Appellant. sentencing and the at oral and Two One No. 87-1154. order judgment and commitment written this, day. the next Because entered Appeals, United States Court and commitment argues judgment Circuit. Sixth two modified so that must be order concurrently,” thus to- $250,000 fines “run Argued March 1988. $250,000. Schultz bases talling only Sept. Decided long line of cases argument on an oral sentence conflicts hold that when sentence, the oral sentence the written See, e.g., Hill v. United States ex
controls. 460, 56 Wampler, 298 U.S. S.Ct.
rel. (1936). L.Ed. 1283 Schultz’s reliance no misplaced and there is
these cases is argument.
merit to his reading sentence re-
A close of the oral limited the judge expressly
veals that part to the of the sentence
concurrent Therefore, true
“[cjustody sentence.” no
inconsistency exists. The cases hold that language of clear indicat- the absence
“[i]n sentences, pre-
ing consecutive will be imposed are concur-
sumed that sentences however, ambiguity,
rent. there is Where usually
courts have been able divine sentencing judge.”
intent of C.
WRIGHT, FEDERAL AND PRACTICE Here, at 116
PROCEDURE § ambiguity,
if it can be resolved there *2 III, required ny because of the extensive travel Ager, F. Gage, William A. Noel Reizen, Doctoroff, job. As Pratt recalled the conversa- Bushnell, Gage, (ar- tion, primary Mich., Bushnell “So interest Southfield, George E. [Schulte’s] longer, would be with them defendant-appellant. gued), for [that] *3 whatever, years stay with them so that (argued), Stark & Gor- J. Stark Sheldon they training could more from me.” benefit Detroit, Mich., don, plaintiffs-appellees. for ready undertaking. Pratt was for such an BOGGS, MILBURN and looking long- Before He indicated that he was for CELEBREZZE, Judges, and employment. Circuit term Judge. Senior Circuit Pratt’s initial involved a 90- probationary period. day He received a BOGGS, Judge. Circuit outlining one-page, hand-written document appeals jury a Company Machine Brown accompanying his duties. He be ser- would Teri Pratt on in favor of David and verdict personnel for six months to vice become wrongful discharge, viola- claims for their responsibilities. He familiar with his was Michigan public policy, intentional tion of give instructed to total commit- “110%” distress, emotional and loss infliction of ment; dig, questions, probe, to “ask seek” Pratt conclude that David consortium. We “respond to customer needs.” The a matter of employee, an at-will was document also indicated that Pratt would law, judgment on his and reverse the attending Septem- hydraulics school discharge affirm the wrongful claim. We ber. remaining for Pratts on the judgment Levely Pratt testified that Schulte and claims. proba- upon completion told him that of the tionary period, “perma- a would become I. FACTS Indeed, period employee. nent” when the from a appeals Since Brown expire, pay raise and did Pratt received Pratts, jury in favor of the we view verdict benefits, changed status additional light most favorable to the evidence represent- to technical service from trainee Wilson, F.2d plaintiffs. Ivey v. ative. (6th Cir.1987). Brown Machine large Company manufactures thermoform- Machine received September, In Brown machinery ing systems and sells the world- wages. garnishment writs of on Pratt’s employs a technical company wide. might prob- that the writs cause Concerned staff, repair provides work service which spoke to company, lems with machinery is located. wherever the Pratt, According indi- Schulte Schulte. Machine would not fire cated that Brown hired August If just him “without cause.” such a deci- as a technical service trainee. David Pratt made, company sion had to be company Pratt had heard about the and his co- performance consider his work Weldon, high Tim a former school class- operation employees. with fellow told Pratt that the mate. Weldon like looking for someone who “would was 1977, Brown Machine’s In November department to work in the service and trav- Personnel, Garbe, Ralph new Director el, that needed a full time and someone develop was instructed to job.” company’s for distribution to the handbook By collecting policies all the written began working time Pratt for staff. At the Machine, in the different that were then force Brown he had several conversa- Schulte, discarding those that “longevity” departments Rod tions about outdated, produce a he was able to manager Depart- the Parts and Service reference. ment, general Levely, and Richard who was then sizable handbook completed project in 1980 and Manager. the Personnel Schulte told Garbe every employ- history the handbook to Brown Machine had a of train- distributed hires, Brown Machine. ing compa- who would leave the ee at new No. Machine, hand- PRATT: each According Brown page,” which “tear-out a final book had as follows: read whether or you Do know THE COURT: copy acknowledge receipt of a hereby I page in it? that additional not it had Hourly Employee Hand- of the “Brown remember, your Honor. I don’t PRATT: sig- book,” I realize the affirm that copy of the Machine introduced rules, infor- policies and nificance of page. final tear-out with the handbook under- also in this handbook. mation every handbook testified that Garbe subject change policies are stand these page, the final and that distributed had unilaterally аnd without management, copy man- employees received a all *4 notice. However, personnel director could the ual. my employment agreed, It knowledge say personal whether from will the Company, is at the with Although Pratt. page the final went to added) (emphasis Company, placed it to be page final indicated that was requested were Although employees all return, upon Brown personnel in the file not a page, final it was sign return the and to locate and thus Machine was unable Garbe estimated company requirement. signa- page with Pratt’s introduce a final employees percent that some ture. it to signed page and returned the back entitled, a section The handbook contains Nevertheless, Ma- management. Brown Rules,” “acts” that “Company which lists including page, the final chine considered ranging disciplinary action could “result policy of language, to be the the at-will warnings suspen- from verbal or written Garbe, According to Machine. Brown discharge depending sion or to immediate employees] signed the they “Whether [the upon the act and the circumstances.” any differ- page or not didn’t make
back “pro- is one of philosophy of the section ence, compa- still a manual that was discipline,” although gressive corrective policies following employee ny was clear that certain ac- the handbook makes benefits.” discharge. in immеdiate tions will result copy of the handbook Pratt introduced a committing an fighting This included or page, which he without the final tear-out assault, using threatening lan- abusive worker; from a fellow he was received guage, disorderly, offensive or immor- Pratt testified produce unable to own. al conduct. handbook, that he did receive examined these sections when he Pratt recall he received or but did not whether recalled first the handbook. He received page. The follow- signed the final tear-out job security, thinking that he “had a lot during Pratt’s cross-examina- ing colloquy rules like that.” because did break [he not] illustrative: tion is accounts, highly By all Pratt was a val- COUNSEL: BROWN MACHINE’S employee at Brown Machine. Four ued original you got Where is the book employment, told years into Pratt’s Schulte you from rather than the one borrowed probability Pratt that “the of continued some friend? very good.” contin- employment was Pratt my personal I PRATT: I believe left it raises, compli- pay as well as ued to receive file at Brown Machine. job performance. ments on his MACHINE’S COUNSEL: So BROWN began Spring In the Teri got might original you have all book telephone receiving harassing obscene you pages, as far as know? calls, eighteen continued for some which may It PRATT: have. that she re- months. Teri Pratt estimated 80 to 100 calls. Some
ceived between sex; others threatened you THE Do have access to them demanded COURT: name, rape. knew Teri’s your pеrsonnel file now at Ma- The caller car, she lived. description of her and where chine? get prosecution Pratt would not be able to in the calls came when David Many of the matter; that, call.1 The on a service was out of town based on closed the investi Pratts, on an frightened the who lived calls gation.” pur The Pratts were reluctant to neighbors. country road far isolated phone trap. They sue the feared retalia questioned if the caller hap tion first, go Pratts did not At pened to be released.3 stop. the calls would That police, hoping did not occur. November time, During this the Pratts did not began police, which contacted the state change telephone number, their despite Of- sought Teri Pratt also investigation. suggestion contrary. ficer Peet’s to the telephone company, assistance of the Pratt, According to David caller had “[t]he long waiting list was told there was she always going insisted he come out Frustrated the de- phone trap. for a house, by changing to our and we felt that pursue not to lay, the Pratts decided number, telephone might just do trap. that.” The Pratts’ refusal to heed ad- initially in Trooper Jack Peet was State vice was not unusual. Officer Peet testi- investigation. He told charge of the Pratt everyone” chang- fied that “almost resisted calls, log of the Teri Pratt to maintain a ing telephone their numbers in these cases. *5 recording equipment pos- provided nothing He indicated that there was un- analysis. The Pratts made print voice sible doing usual about the Pratts’ reasons for voice, recordings of the caller’s but several Trooper Huber, so. State Thomas who la- quality. insufficient Even- most were of reopened investigation, ter also said he equipment, returned the tually, the Pratts understood their rationale. with better results. and used their own Thereafter, pursue Pratt decided to 1983, police By February efforts had 1983, investigation on his own. In March earlier, A month Teri been unsuccessful. pay he took a week off with to find out arranged meeting a with the Pratt had ques- who the obscene caller was. He local motel in an effort to catch caller at a people, up tioned several came with no but him, up. he never showed On Febru but leads. Peet had his last contact ary Officer investigat closed the with the Pratts and 6, 1983, August the Pratts were at a On Pratt, According to Teri Peet indi ion.2 picnic upper man- when level they “had exhausted all their cated that Griffore, ager, grace Ted said over the
possibilities, and the case should ... be public system. address After Griffore fin- he didn’t know more closed because what rushing prayer, Teri Pratt came ished He advised them to seek a he could do.” Looking scared and over to her husband. phone trap, despite their concerns and the voice, upset, she exclaimed: “that’s the long waiting Peet that a list. believed voice, guy that’s the that’s beеn that’s the phone trap only was the means of deter first, calling us.” At David Pratt did not origin telephone calls: mining the Teri was correct. believe “When I had the last contact with Mr. August On Teri Pratt received and Pratt and he indicated that he did not want three additional calls. recorded obscene telephone company], deal with [the trip, from a listened on, David Pratt returned trap put line therefore a therefore, compounding tapes, and concluded that Griffore problem, to the Peet, Peet, According "[c]losing investigation 1.According Trooper to State Jack the call- 2. investigation just er stated on several occasions that he was aware active means that no further officer, David Pratt was out of town. Because of this monthly by and a will be done pattern, the State Police believed the calls were sergeant.” not be done review will fact, originating from Brown Machine. many employees at Brown Machine were re- phone trap Eventually, the Pratts did secure a ceiving telephone during peri- obscene calls this weeks, received dur- for two but no calls were victim, French, According Rebecca od. to one ing period. this many occasions that the caller said on he would see her at work. quit probably confir- church won’t make him call- the caller. He decided to seek ing.” mation at Brown Machine. day, arrangements That the Pratts made August took one of his
On change telephone their number. David played tapes wife’s to Brown Machine was, explained: knew who “We it during company employees it to several longer and we no worried about him next, day [were] That and the ten or more time. coming place.” out to our After tape employees Machine heard the Brown change, the to the Pratt home obscene calls thought it sounded like Grif- several stopped. Weldon, office- fore’s Tim Griffore’s voice. tape supervisor, heard the mate and Pratt’s August Ralph to see On Garbe went initially thought “definitely” it sounded They Pratt. talked about the calls and the Becky like French believed Griffore. employees recognized other who had Grif- Griffore; Patty like so did Nose-d sounded They fore’s voice. also discussed the ha- a.4 rassing telephone employ- calls that other receiving. ees were When heard the Garbe August On Pratt threatened Griffore tape, agreed tape sounded sim- playing the in the latter’s office. After voice, ilar to Griffore’s he insisted that but recording manager, for the Pratt demanded believed Griffore was inno- that Griffore admit that he had been the cent. He also indicated that he did not you obscene caller. Pratt said: “If lie to involved, police thought want the state me, going you up your I’m to beat behind analysis appropriate. a voice would be Pratt, According replied desk.” Griffore Considering “personal problem,” voiсe, that “he didn’t know if it was his Garbe decided that Pratt should continue because he never heard his voice on a re- *6 with his “leave of absence.” he corder before.” Pratt told Griffore that would return in hour and wanted an get recording In order to a new of Grif- explanation. voice, fore’s Pratt made several non-threat- ening manager calls the to at Brown Ma- later, Pratt returned a short time but Griffore, chine and at home. who wanted time, plant by Griffore had left the suspect, to be cleared as a to the went director, accompanied by personnel the result, police. Trooper As a State Thomas Garbe, According Garbe. to Griffore was reopened investigation. the Huber Huber emotionally upset, having any and denied pursue believed best avenue to was a knowledge of the calls. Garbe felt it was print pro- voice identification. As events premises to take off the to best Griffore ceeded, Griffore refused to submit to the prevent him calm down and to a further analysis, despite his initial assertions to encounter Pratt. with and Huber Garbe that he would. Garbe, Weldon, At the behest of Tim Brown Machine made available to the manager who was a service at Ma- Brown information, police pertinent including chine, met Pratt at the latter’s home later schedule, Pratt’s travel in order to deter- that afternoon. Weldon told Pratt that he identity mine the of the obscene caller. things should take some time off until set- coming believed the calls Huber were try get tled down. He would also to Pratt and, listening Brown Machine after to the Pratt, pay. According some to when he recordings, Pratts’ focused his attention on why calling family, asked Griffore was Yet, coopera- Griffore. without Griffore’s stated', “Dave, saved, you’re Weldon not tion, police proceed were unable to you go replied, don’t to church.” Pratt much further. “Tim, Church, agree, I’ve been saved. I’ll going help cope things it’s me By September bet- Pratt had not still been ter, guy quit calling but won’t and the to return allowed to work and he wanted Huber, However, compared 4. Officer who later a record- fore was the caller. he cautioned that caller’s, ing of Griffore's voice to that of the print expert strictly he was not a voice and “it’s advised Pratt that there were similarities that opinion one man’s as to the conversation." suspicion led him to increase his that Ted Grif- 2,1984. January indicated arranged a Garbe on Garbe resolved. Garbe situation Pratt, Garbe, talking office; employees were about that all meeting Huber’s at present. situation, would re- Trooper Huber and Griffore Weldon had Pratt that reiterated sign told if Pratt returned. Garbe Garbe termination, he wanted but just cause many of the conditions that were discussed re Pratt and have the situation to resolve agreed Trooper Huber’s office. Pratt However, personnel di to work. turn Griffore, Shаrpe, and apologize to Jim return. for Pratt’s had conditions rector Machine, put it in Brown but would Griffore, or at apologize to had to Pratt Although writing. he still believed Grif- mistake, declare he made least admit caller, thought that it fore was the Brown not hold writing that he would try things,” especially best “to and end was calls. for the obscene responsible receiving family longer no since his was investigat drop addition, had to calls. obscene meeting ende and the Pratt refused ion.5 meeting, with President A second work, to come back Pratt wanted d.6 January Sharpe, scheduled for He said he conditions. not under those but Sharpe meeting, In that acknowl- print possible, if pursue voice would management had handled the edged that psychi seek should suggested Griffore improperly, he did not want situation help. atric Machine to considered at fault. Brown Pratt a day, sent following Garbe Sharpe had conditions for Pratt’s return to discharge. It him of his notifying letter apolo- Brown Machine. He would have to read: agree discuss gize to not to Griffore Mr. Pratt: Dear job; telephone calls on or off you by phone, are unable to reach As we directly for Griffore. have to work would letter is to state purpose of this Moreover, Pratt have to attend your position regarding Machine’s pray church and with Griffore. problem. personal recent over and Sharpe forced Pratt to rehearse your weeks since It has over six bеen it, talk again, over “I don’t want to about you appears and it suspension[7] it,” re- which Pratt was can’t talk about problem. unable to resolve have been if asked whether quired respond he were *7 Therefore, your changing are status we If Pratt caller. Griffore was obscene- as of suspension to termination refused, terminated. he would be 30, 1983. September me an exam- PRATT’S COUNSEL: Give any take action you decide to Should [Sharpe] you asked something he ple of impair reputation might which respond to? to Machine, relation- or its business Brown well, okay, suppose He said: promptly pursue appropri- PRATT: ships, shall we alley, bowling the Beaverton legal you’re remedies. ate oh, says: Then he sitting over a beer. police, continued to work with Pratt right you don’t drink. that’s By December with little success. are, sup- says: suppose you But he having financial serious the Pratts were they are pose boys says: one of the what difficulties, and, in to Brown Ma- a letter you quiet? says, He how doing, keeping Sharpe, desperate- he president, chine’s Jim going respond? you are to sought job his Pratt met with ly back. surprised of absence” police’s that his "leave involve- 7.Pratt was
5. This would have ended episode. being suspension. Officer testified Garbe ment in the Huber now considered was tapes Pratt indicated that he wanted his that had used to ensure that the latter term was testified investiga- pursue the and did not want to back tion vestigation unemployment com- receive that Pratt would further, any would have closed the in- he pensation. September as of 29. words, "Dave would not [Pratt] In Garbe’s agree drop and return to work. He to the issue be terminated.” ws told he would [sic] pictures in accompanying the it, letter I don’t want The about I can’t talk says: I “stop gathering that Pratt would dicated about it. to talk “end all information,” “stop talking” and wrong. You no, says, that’s says: he He requested sum matters,” if he received I got say: to first, says, you he can’t said Otherwise, to he threatened mis- be settlement. would to because don’t want Machine, don’t and file criminal and we company, sue Brown leading to company Company “against that think Brown people charges want thereafter, wrong. Shortly anything done individuals.” has and seven that he Pratt you’re if out Machine informed okay, what Brown says: heSo says: come The did guys rehired. not be tooling and one would us, or not? Dave, it Ted on, was agree tell settlement.8 response? your What’s 13, 1984, his Pratt and September On say well, wouldn’t probably I I said: against instant lawsuit filed the wife away. just walk I anything, would Machine, wrongful dis alleging re- no, improper an that’s says: He tort,” in policy intentional “public charge, say this got to says: you He sponse. distress loss fliction of emotional learn it and you to I want phrase, and court dismissed The district consortium. it. rehearsing on keep you going to we’re claim, and distress Teri Pratt’s emotional time, you to want slip one we you ifAnd jury returned a trial. сase went to be immediate- you’re going that know on all claims the Pratts in favor of verdict ly terminated. $152,000.9 The district amount to talk I don’t want is: phrase That motions denied Brown Machine’s court it. it, talk about I can’t about This a new trial. and for judgment NOV use that Did he PRATT’S COUNSEL: followed. appeal tone of voice? loud, yes. He PRATT: was DISCHARGE II. WRONGFUL meetings, Sharpe made a the end At complaint, Pratt asserted that In his confess- Griffore had startling revelation: Sep- just cause on discharged without calls. telephone making obscene ed claim is based 1983. His tember proved Pratt had also conceded He , & Blue Shield v. Blue Cross Toussaint a shocked Sharpe told guilt. Griffore’s 408 Mich. Michigan, over; more meeting was Toussaint, Michigan Su- they needed before would rehearsals provision of an held that a preme Court him back. to hire decide em- providing employment contract feelings: “I was feel- described discharged except for ployee shall not be crawled, [sic], I I ing like craweled although the legally enforceable cause *8 any more. I crawled, crawl and couldn’t at term. Id. not for a definite contract is He an right.” demanded it wasn’t mean provision 598, at 885. Such 292 N.W.2d damages his for the settlement out-of-court by contract may part of either become the suffered, back. job as well as his family written, or as a or express agreement, oral photo- Brown Machine to submitted He legitimate expecta- employee’s of аn result children, not- and three of wife graphs his policy employer’s in grounded an tions people they were four innocent ing that legitimate expec- Ibid. These statements. He re- nightmare. through went who employer’s “in an may grounded be $75,000 to tations check be attached that a quested in as set forth $300,000. policy statements sum of written picture, for a total each 30, damages for his termination March in noneconomic Machine on Griffore left Brown 8. $20,000 3, 1984, Sharpe Michigan public policy; for Jim was of On October violation 1984. Brown, Inc., Oper- distress; John to transferred "another infliction emotional intentional ating Unit.” $10,000 of consortium claim for Teri Pratt's loss dis- her husband’s emotional with connection $62,- damages as jury follows: The awarded 9. claim. tress damages Pratt’s for David 000 in economic $60,000 employment; wrongful termination
1233 copy of the manual asked whether Renny was policies.” personnel manual the page, respond- 415, had this he might 398 have last Mich. Hospital, 427 Port Huron v. We believe this may that have.” (1986). ed “[i]t 327 N.W.2d insuf- similar are response and statements empha Supreme Court Michigan The of fact whether to raise an issue ficient were “most sized, however, employers right the to had reserved employment into assuredly free to enter just cause. Pratt employees without fire assign at will without terminable contracts dispute concerning of fact may not create a 610, Toussaint, Mich. at 408 ing cause.” he has no recollection. issue about which an said, Elaborating, it at 890. N.W.2d 292 job agreed signed to final may has not employer That Pratt have “Where entering According dispositive. protect page it can itself is not security, tear-out , pro explicitly testimony Brown undisputed contract which Garbe’s into a written pleas policy at the reflected in employee serves Machine considered the vides employer controlling, or as even page at the will of the tear-out ure or satisfactory to the company requirement though are it was not a as his services long 24, N.W.2d at final sign n. 292 and return the employees Id. at 612 employer.” Mich. at Renny, short, 427 Brown Machine “took page. n. 24. See also at 334. expressly approved 398 N.W.2d Toussaint action employees into contracts with its entered was, that Pratt Brown Machine contends of each individual making employment law, employee who an matter of at-will as a Quik Ledl v. Pik at will.” terminable compa The fired without cause. could be Stores, Inc., Food handbook, partic employee ny relies on put says page, which ularly the tear-out at the he on notice that legitimate “serve[d] ex- argues that had he employer.” or at the will of pleasure not dis- pectations that the Toussaint, n. Mich. First, at just cause. charge him without agree. 24. at 891 n. We “Company Rules” section of on the focuses handbook, could “acts” that which lists at the important emphasize It is ranging from disciplinary “result aсtion explicit agreement there is no outset that suspension warnings to verbal or written just for cause.10 record to terminate in this depending upon discharge to immediate or case, therefore, is in this central issue Pratt ar- act and the circumstances.” page in Brown impact of the tear-out implied created an these rules gues that handbook, which ex Machine’s discharge only for cause. contract at employment was pressly indicated that reading A company. careful the will of the in Reid rejected contention We a similar light record, in a most even viewed (6th Co., F.2d 453 Sears, Roebuck & reveals that plaintiff, to the favorable There, signed appli- Cir.1986). plaintiffs policy at the Machine’s stated was that “em- providing cation Garbe, discharged. Ralph time Pratt termi- compensation can be ployment Personnel, testified Director cause, and with or without nated company’s page tear-out reflected final time, notice, option of at the without every handbook policy. He also stated that myself.” Id. at Company or either the page, and final distributed had the that was received a Sears *9 employed, plaintiffs Once copy of the employees a all received that handbook,' Acquainted “Getting employee any these of disputed Pratt never manual. Sears,” specific conduct which listed assertions. its terminate employer could which the for “by argued thаt plaintiffs handbook, employees. The he Pratt admitted received in the ter- ‘may result listing that conduct he received or not recall whether did in the hand- employment’ your of he page. When mination signed the final tear-out employ company would release distinguishes case stated that the instant This factor following period only” a of Toussaint, just cause a ees "for received where from 617, at 884. N.W.2d probation. Mich. at 292 policies explicitly 408 personnel which manual 1234 completion of that at the discharge Schulte also said right limited its
book Sears would be- period, Pratt any probationary his discharge and that a for employees Indeed, employee. “permanent” come a good not for cause.” reason would be other proba- years employment, into his argument, we four Rejecting this Id. at 460. “very employment was bility of continued said: employment verifi- good,” as stated on an listing of causes do not believe We concerning mortgage loan. form a cation in the termination of ‘may result these, argues that he had a From employment’ in the Sears handbook your just con- legitimate expectation of a cause way language any detracted disagree. tract. We provided a reason application in the the conclusion for able basis indicate that None of these statements a “for employed under plaintiffs only. cause terminated for Pratt would be The fact that certain contract. cause” “optimistic hope” They merely express as conduct identified acts were relationship employment parties to an discharge did not indicate might lead to profita- future association will be that their per were the exclusive that these acts long-standing. Carpenter v. See ble discharge. More grounds for missible 933, Co., F.Supp. American Excelsior 650 over, had no lan the Sears handbook (“neither (E.D.Mich.1987) party to n. 6 936 upon in Tous- to that relied guage similar employment relation- beginning of an leaving Blue employees “to treat saint: unsatisfactory, and expects ship and consistent manner in a fair Cross significant dura- hope it will have a both just cause employees to release for tion.”). for continued That Pratt’s chances 617, N.W.2d 880 Mich. at 292 only.” 408 “very good,” as stated employment were added). (emphasis form, mere- employment on the verification Ibid. plaintiff expect if ly reflected what could well; nothing performed job it said he Company Rules section in
Similarly, the
policy.
termination
Brown Machine’s
about
detract
case does not
the instant
Co.,
Michigan
152
Dzierwa v.
Oil
tear- See
language
way from the at-will
610,
(1986).
281,
613
Mich.App.
Machine’s
reflected Brown
page,
out
which
in the
put
much stock
discharge.
We also do
of Pratt’s
On
policy at the time
Pratt’s
Reid,
characterization of
strength
we conclude that this
generally im-
“permanent,” as that
term
jury
issue as to an
did nоt raise
section
relationship.
only
non-probationary
plies
just cause contract.
Ibid. But see
implied
Corp., 164
Egg Sales
Dalton v. Herbruck
v.
relies on Walker
Consumers
(1987).11
Mich.App.
Cir.1987),
Co.,
(6th
Power
824 F.2d
— U.S. -,
denied,
108 S.Ct.
cert.
Next,
upon certain as
Pratt relies
(1988). There, we observed
1235
instant, case, unlike Consumers
Cоwdrey v.
In the
job.
he did
long as
as
Power,
expressly indi
employer
the
has
617, 367
Mich.App.
Transport,
141
A.T.
at
employment
is terminable
cated that
(1985),
he “would
433,
that
434
N.W.2d
language in the hand
explicit
This
will.
not
long as he did
job as
lifetime
a
have
says
binding
and is
“means what
it
book
Club
v. Automobile
Bullock
steal,”
of
Montgomery
Dell v.
upon
parties.”
the
711, 715, 381
Mich.App.
Michigan,
146
Co.,
970,
(6th
974
Cir.
and
811 F.2d
Ward
(1985), appeal pending,
793,
794
N.W.2d
negate
legiti
1987).
to
the
It also serves
long
joba
as
that she would
“[have]
may
have
any expectation
macy of
job,” Hetes v.
good
adid
as [she]
Schef
representations.12
on Schulte’s
had based
Mich.App.
Office, 152
Law
& Miller
man
Quik
to Ledl v.
d
analogous
This case is
(1986).
577, 578
117, 119, 393 N.W.2
583,
Stores, Inc.,
Mich.App.
133
Pik Food
Power,
at 504. Ac-
824 F.2d
Consumers
Ledl,
(1984).
plain-
In
529
349 N.W.2d
cord,
Michigan Consolidated
v.
Ritchie
at the time she
given assurances
tiff was
358, 413 N.W.2d
Co.,
Mich.App.
163
Gas
that she would con-
accepted employment
itself,
Power
In Consumers
796
per-
long
her
employed as
as
tinue to be
jury
go to the
case
allowed a
this court
satisfactory. Approximately
formance
his em-
that
employee testified
where
later, plaintiff
years
and one-half
seven
fired as
not be
he would
ployer promised
agreement, which
employment
signed an
adequately”
long
“performed
as
employment could
that
part
in
her
stated
job.” Id.
on
performance
good
[his]
“did
cause,
without
with
“be terminated
or
at 503.
any time at the
at
or without notice
point
out
However,
quick
we were
Company
myself.”
option
either
of
Toussaint
Michigan courts denied
concluded
Appeals
Michigan Court
law,
employer
“if the
claims,
a matter
state a claim
failed
plaintiff
guaran
express
is no
discharge
that there
at-
wrongful
indicates
because
expressly
negated any
the em
or that
of the contract
employment
language
future
tee of
will
on
have had based
Id. at
may
504
she
expectations
at will.”
is terminable
ployment
assurances.
employer’s
Blue
Blue Cross &
her
(citing Ford v.
Shield
465,
462,
389
Michigan,
Mich.App.
150
statement,
Schulte’s
Pratt also relies on
v.
(1986);
Riethmiller
114, 115
N.W.2d
gar-
Pratt’s concern about
response to
Michigan,
Blue Shield
Blue
&
Cross
wages,
that Brown
nishment
227,
N.W.2d
Mich.App.
just cause.
without
not fire him
would
Stores,
Quik
Food
v.
Pik
Ledl
(1986);
expectations
legitimate
Whatever
583, 587, 349 N.W.2d
Inc.,
Mich.App.
of this state-
a result
may
harbored as
have
Power, (1984)).
Consumers
in 1980
ment,
unreasonable
they became
through an
no evidence
the handbook
employer offered
issued
when
policy
company’s
or otherwise
employee
clearly expressing
handbook
at will.
generally or Walk
terminable
employees
employment was
had informed
Ledl, at
was at will.
See
specifically that
er
doubt that the
little
try
any way
There can be
employer
531.
did the
at
Ibid.
Nor
unilaterally amend his em-
may
employer
em
expectation of continued
to negate
Renny v.
Ibid.
policy. See
ployment
Id. at
Cf.
ployment.
appropriately,
Quite
cause."
dismiss for
Michigan Nationаl
Wiskotoni
find
12. We
factors,
Cir.1983),
(6th
the court concluded
Bank-West,
to be
these
basis of
1237
Detroit,
Trombetta
example,
in
v..
claim to
For
public policy
court limited Pratt’s
Co., 81
Toledo & Ironton Railroad
Mich.
Pratt’s em-
Machine’s conduct when
Brown
489,
(1978),
App.
the Michi
By
Similarly, Pratt need not show that
suggests
Machine
requirements, Brown
either he or Brown Machine violated the
fail,
why
might
aiding
but misses
compounding
a criminal action
statute or the
point.
abetting
The district court
statute.
It is sufficient
a fundamental
drop
legisla-
company requested
plaintiff
his
merely
these statutes
as the
cited
wrongdoing,
investigation into criminal
ac-
upon
foundation
which a cause of
tive
him for his refusal
to do so.
terminated
implied. The
tion of this nature could be
compounding
rightly
court
found that
Next,
-Brown Machine
contends
statute,
conjunction
aiding
read in
with the
that,
public policy theory
even if Pratt’s
statute,
abetting
provided “sufficient
viable,
proceeded
have
first un
he should
expression”
policy
pro-
of a
legislative
Act.
Protection
der
Whistleblowers’
conditioning em-
employer
an
hibits
Michigan
Mich.Comp.Laws
15.362.
§
employee’s agreement
ployment upon the
Appeals, recognizing that
termi
Court of
investigation
or stifle an
into a
to conceal
policy
public
are
violation
nations
Smith, 107 Mich.
crime. See Case v.
contracts,
exception to at-will
Fidelity
See also
65 N.W.
280
pro
remedies
has held that “administrative
Deposit
Maryland v.
Nat.
&
Co.
Grand
statutory
Legislature
vided
Louis,
(8th
Bank
St.
69 F.2d
public policies
еmbodying those
schemes
Cir.1934) (and
therein). The
cases cited
grievant may
pursued before a
must be
suggest, quite appro-
district court did not
in the courts.” Cockels
legal
seek
redress
only
Expositions,
priately,
that Pratt could
succeed
v. International Business
Inc.,
proved
if
public policy
claim he
a viola-
Mich.App.
Indeed,
therein).
legislative
(1987) (and
enact-
underlying
tion of the
cases cited
Spengler,
Covell
support
no
for this conten-
ments. There is
(1985),
held that a
the court
tion
the case law.
knowledge
principal
committed the
says
compounding
who
stat-
13. argues
inapplicable
underlying
two additional reasons.
ute is
crime. Brown
First,
applies only
pending
provision
therefrom
or inferences
there is no evidence
trial,
jury
litigation,
grand
such as a
criminal
knowledge that Griffore
that Pratt
actual
had
pending
proceedings
com-
or at least a
criminal
caller.
was the obscene
Second,
requires
plaint.
the statute
actual
exercising his
IV.
INTENTIONAL INFLICTION OF
fired for
worker who was
pay
bring an overtime
claim to the
right to
EMOTIONAL DISTRESS
*13
maintain an action
could not
labor board
argues that Pratt has
Brown Machine
public
a
wrongful
termination under
failed,
law,
a matter of
to establish
as
to seek
theory,
he failed
policy tort
because
emotional
intentional infliction of
distress.
first under the Whistleblowers’
redress
Inc.,
Freight System,
In Polk v. Yellow
However,
Machine
Act.
Brown
Protection
Cir.1986),
190,
(6th
F.2d
195
we ob-
801
the district
raised this issue before
never
Michigan Suрreme
that the
Court
served
time,
it
any
and we deem waived.
court at
yet recognized
had not
intentional infliction
may
raising this issue
timely
A
motion
Michigan.
of emotional distress as a tort
trial,
lengthy
expense
of a
have saved
Michigan Supreme
The
Court’s most recent
gambled
either
it
of the tort was in Roberts v.
discussion
simply did not realize
win at trial or
Co., 422 Mich.
Auto-Owners
Insurance
In
make use of the Act.
perhaps
it
could
There,
594,
(1985).
Although! sault. wrongful issue of reasoning on the' ity’s that the em- disсharge, I am of the view wage gar- Incurring excessive 15. by issued
ployee handbook nishments. conflicting employment Company set forth threatening lan- Using abusive or 16. and, therefore, the conflict was policies, guage. jury. addition properly resolved Company premises. Gambling on 17. in the provision contained the at will being the influ- Using or under 18. set out in page,” which is final “tear-out or narcotics on ence of intoxicants also opinion, the handbook majority premises. Company pages 41 and 42: provided, at Disorderly, offensive or immoral 19. RULES COMPANY conduct. good promote the common In order any Company records Falsifying 20. its em- Company welfare application. Company has established ployees, the accepted in generally any Stealing rules of conduct or commission of industry. The commission Company property. criminal offense *18 discipli- in below will result acts listed HEALTH AND SAFETY or ranging verbal nary action regulations. Violating safety 22. suspension or to warnings to written machinery, use of Horseplay or 23. depending upon discharge immediate tools, in hazardous man- a equipment, act and the circumstances. ner. ATTENDANCE firearms, weapons, ex- Possessing 24. tardiness or absence. 1. Excessive etc., premises. on the plosives, notification for 2. without Absence report immediate Failing to make 25. (3) work or more consecutive three injury. occupational anof days. contributing any Creating to or 26. during company premises Leaving 3. unsanitary condition. permission. working hours without PROPERTY MISUSE OF Failing report absence within 4. improper use of Damage to or 27. starting of- time. hours IV2 willfully or either Company property Failing to return from leave of ab- 5. (cid:127) negligence. through gross (cid:127) scheduled. sence as making scrap or Intentional or 28. Improper use of accident leave 6. waste. disability leave benefits. extended 7, 12, as; Company such rules number possession of Com- 29. Unauthorized 20, 21, 27, 28, 16, 18, 19, 29. and
pany property. Thus, (emphasis supplied). J.A. at 2358-59 Compa- of confidential 30. Disclosure purport does to inform while the handbook to outsiders without ny information employees that their em- proper authorization. (the ployment terminated at will could be park oper- properly 31. Failure also page”), final “tear-out handbook Company on personal automobiles ate that certain conduct will explicitly indicates property. termination, but in less severe not result of bulletin use 32. Unauthorized discipline. boards. explicitly states in its employer When an in unauthorized Posting notices employee is at handbook places. will, necessarily follows that RULES VIOLATION OF COMPANY security aroused. job will concerns about be note that when it employees All will However, employer, if the in an effort to necessary Company apply becomes good employees allay hire and retain I, II, rules, III are estab- groups, security, concerning job addi- their fears develop philosophy pro- lished to regarding specific tionally sets out rules discipline. gressive corrective corresponding discipli- specific conduct applied, be then nary procedures that will Group “I” Rules by them. In employer should be bound “I” Rule be group of a will A violation case, con- present as Brown Machine step procedure. in a four handled brief, the conduct of Pratt cedes its warning Step confirmed 1st —Verbal arguably fell within several of the listed writing. types and would have been ar- of conduct any Step 2nd violation —Another disciplinary pro- guably subject to different working day group “I” Rules within a 30 Therefore, Brown Machine cedures. subject to a written warn- period will be escape specific should not be allowed to its ing. concerning explicit representations dis- any Step group “l” 3rd —Violation upon employ- an at cipline by relying will working days Rule from writ- within em- provision ment contained the same subject discipli- warning ten will ployee Damrow v. Thumb handbook. See nary lay-off. Terminal, Inc., Mich.App. Cooperative Step violation of 4th 354, 361-64, (1983) —Another working day “l” a 60 group Rule within depart from (Employers are not free to following disciplinary lay-off period manual existing policies policy stated in a discharge. subject to they will be under simply grounds no adopt place.). in the first obligation to them 1, 3, 4, 9, 17, Company rules number 23, 26, 31, 32, group are considered holding Company Rules sec- tyрe “l” rules. lan- not detract from the at will tion does subsequent page, tear-out guage in the Group of a “II” Rule will The violation *19 in majority upon this court’s decision relies step procedure. in a three be handled Co., Sears, F.2d 453 v. Roebuck & 790 Reid Group “H” Rules (6th Cir.1986). However, Reid is distin- a warn- Step 1st written —Constitutes Reid, In guishable present from the case. ing. question in con- employee handbook lay-off. Step Disciplinary 2nd — violation of enumer- provision tained a Step Discharge. 3rd — in result termi- “may ated rules 2, 5, 6, 8, 10, Company rules numbers your employment.” Id. at 457 nation of 11, 13, 15, 22, 24, 25, 30, are considered that delineat- (emphasis supplied). We held group type “II” rules. may result in termination ing conduct that discharge Group preclude “III” Rule nor con- The violation of a did not will discharge provision of discharge, flict with the at will subject to immediate will be
1245
Moreover,
we have
other
rected verdict.
“[a]s
On
handbook.
stated,
reviewing
‘[wjhen this
is
in this case
often
court
question
hand,
in
provision
interpretation
of state
judge’s
conduct
examples of
a district
not delineate
does
enu-
discharge,
provides
law,
weight” to the
give
“considerable
we
may result
”
specific cor-
with
of conduct
types
judge.’
Martin v.
interpretation
merated
“progressive correc-
(6th
levels of
responding
Co.,
Cir.
quent to Appeals has addressed of
Michigan Court In Dalton v. Herbruck question. very
this 543, 417 Corp., Sales Egg Michigan of (1987), Court EVANS, Plaintiff-Appellant, Vince employee handbook if an held that Appeals v. provision and will both an at contains progressive provide which provisions EINHORN, M. Edward termination, leading up discipline Defendant-Appellee. con- question whether “the No. 87-2817. policy termination just cause with tract of fact to be question is Appeals, formed has been of States Court United Dalton, 417 N.W.2d by jury." resolved Circuit. Seventh Therefore, holdings of at 498. April Argued issue of substantive on this court Reid July 1988.* Decided conflict Dalton that are in state law longer Wieczorek valid. See are no AG, F.2d Volkswagenwerk, (“The Michigan is Cir.1984) law of
(6th Michigan a decision
controlled Michigan Su Appeals until
Court panel of the Michi
preme Court or another otherwise.”); rules Appeals
gan Court Ins. Standard
Simpson v. Life Jefferson Cir.1972)(“de 1320, 1323(6th Co., F.2d be state courts must intermediate
cisions unless there court by the federal
followed they would reason to believe court.”). highest by the state’s followed
Thus, conflicting provisions *20 case question in this
employee handbook of a di- court’s denial
justified district * opinion. published July unpublished as order on was issued This sponte now sua issues and the court