*1 RKA, Zeniuk v INC ZENIUK 1990, at Detroit. Decided No. 119801. Submitted November Docket 6, 1991, May 10:05 a.m. at brought in the Oakland Circuit Court Zeniuk an action Criston R.K.A., Inc., alleging wrongful discharge. plaintiff against The just alleged that he was entitled to be dismissed cause policy company’s the basis of the termination em- on summary disposi- ployee The moved for handbook. defendant ground timely to file a that the failed tion discharge mandatory under the arbitra- for arbitration demand plain- procedure The set forth the handbook. tion argued that he never received an handbook and tiff remedy The his sole was defen- unaware that arbitration. was plaintiff’s explicit responded sworn that the and factual dant complaint regarding the handbook demon- his Statements familiarity and with the that he had of strated court, Breck, J., F. provisions of the handbook. The David questions the that of the motion on there were denied plaintiff had received the fact about whether the material granted appeal. leave to defendant was Appeals held: The Court of granted motion have The defendant’s should been because the is no issue of material fact and entitled there judgment as a matter law. rely 1. If the is entitled to on the handbook to Only may just he his claim that be terminated cause, then he bound the other terms relative to the is also provide policy claim of in the handbook which termi- grievance by filing just a without cause must be made nation request did file a a for arbitration. Plaintiff not Having pursue for arbitration. failed or make plaintiff may provided by company policy, the the as wrongful discharge pursue court a claim based on circuit policy. required to show that 2 The was References 2d, Labor 9.§ Am Jur Labor and Relations Employment. See Index to Annotations under Labor Opinion of the Court advantage was communicated to him in order to take Because he did not claim that was handbook, through communicated to him other than he is obligations bound as well as the benefits of the as *2 expressed in the handbook. entry granting Reversed and remanded for of an order disposition. defendant’s motion for Wahls, J., dissenting, plaintiff’s stated that the claim is not solely general knowledge defeated because he had of the defen- just-cause policy. plaintiff dant’s termination is not re- quired specific just-cause to know the terms of the termination legiti- clause in the in handbook order to show that he had a expectation applied him; rather, mate that it would be all required general knowledge that is is that he had of the applicability question and its to him. A of material fact existed regarding plaintiff whether the received the hand- book and therefore was aware of and to the arbitration policy. — Employee — Master and Servant Termination for Cause Handbooks. only An just who claims entitlement to dismissal for cause on the company basis of the termination in a handbook is also bound other terms in the handbook rela- making tive to the of claims under the Poplar Kalis), (by Kalis, & P.C. Michael L. for plaintiff. Keywell (by Gary & Rosenfeld W. Klotz and Sperstad-McElyea), Kari for the defendant. P.J., Before: Reilly, Doctorqff, and Wahls and JJ. appeals by granted
Reilly, P.J. Defendant leave deny- from an order of the Oakland Circuit Court ing summary disposition, its motion for 2.116(0(10), plaintiffs complaint, alleged which wrongful discharge. We reverse. hired
Plaintiff was October 1987 part-time general July as a contract laborer. plaintiff employee, 1988, became a full-time and in Zeniuk Opinion of the Court posi- promoted was October supervisor. evening tion of 23, 1988, his immedi- On December pay suspended supervisor without ate allegedly misappropriating were company funds. How- January 15, 1989, ever, supervisor immediate on acting misap- she, alone, confessed that the funds question. Despite plaintiff’s propriated February 16, 1989, exoneration, on he was fired on company allegedly that he falsified the records. alleging wrongful complaint Plaintiff filed his discharge April 11, on 1989. Plaintiff claimed he just cause was entitled because defendant be dismissed promulgated termi- company nation complaint, argu- Defendant moved to dismiss the ing, alia, inter was an with *3 seniority employee status. Defendant’s handbook "discharge procedure” contained a "discharge which stated that arbitration” was the employees seniority sole available with procedure required status. The arbitration a dis- charged regular employee seniority status to with grievance thirty days file a with defendant within discharge request after the and a written for arbi- thirty days tration within after defendant’s re- sponse grievance. employee’s to the Plaintiff did not file a or a written for arbi- argued, Thus, tration. it entitled to was summary disposition dismissing plaintiff’s breach employment ground of contract claims on the that plaintiff timely failed to file a demand for arbitra- mandatory "discharge tion under the arbitration” procedure set forth in the response summary
In to defendant’s motion for disposition, plaintiff argued he received that never that his handbook and was unaware [May- Opinion of the Court
sole responded was arbitration. Defendant remedy- explicit made factual sworn statements in his the complaint regarding em- handbook which ployee demonstrated had of familiarity provi- with the sions of the handbook.
The trial court denied defendant’s motion for disposition with respect to the breach of i, ii, employment contract claims counts and m plaintiffs of complaint that "there are questions of material fact about whether received the handbook.” Defendant appeals portion from that of the trial court’s decision.
A motion for summary disposition premised on
2.116(0(10)
tests the
factual
for a
motion,
claim.
on
ruling
the
the trial
court
affidavits,
must consider
pleadings,
depositions,
the
and other documentary
evidence submitted
Ass’n,
Dumas v Auto Club Ins
parties.
626;
Nonetheless, where the opposing fails party evidence, come forward with beyond allega- tions or denials in pleadings, establish existence of a material factual dispute, the motion Morganroth Whitall, is properly granted. *4 Mich App
2.116(G)(4).
Defendant’s motion for un- 2.116(0(10) der MCR should granted have been because there is no issue of material fact and Zeniuk Opinion op the Court judgment to as a matter of is entitled defendant law. to dis- that he was entitled be Plaintiff claims just employer only because the missed promulgated cause just-cause a termination company either em- handbook. Plaintiff was just only ployee cause who could be terminated employee. If the is he was an at-will rely on the handbook to entitled just-cause employee than that he is a rather claim employee, then he must also be bound an at-will just-cause policy by in the the other terms of the handbook, i.e., that of termination with- claim filing just must be made a out cause request may not a for arbitration. Plaintiff of a stated while claim rejecting the benefits obligation griev- file
the concomitant a to enforce ance and order those benefits. argues that he is entitled to the
Plaintiff further expressed company policy as benefits though copy copy handbook, not receive a even he did of the of can If did not receive a handbook. handbook, contents, how didn’t know its just-cause employee? he he a Tous- claim Michigan, saint v Blue Cross & Blue Shield (1980), requires a com- policy, just subjective munication of the not a expectation. Plaintiff does not claim that the com- pany’s just-cause policy him was communicated to through other offered than He has any basis, handbook, other than for his just-cause employee. claim that he is a Either he is company because the com- simply him municated that or he is an at- will with no for his termination. just-cause employee, If he is a obligations he is bound
as well as the benefits of that *5 by Wahls, J. Dissent parties agree filed neither a Having nor a pursue policy, plaintiff for arbitration. failed to provided company
his as pursue cannot now circuit court wrongful discharge a claim based on that entry
Reversed and remanded for of an order granting disposi- summary defendant’s motion for 2.116(0(10). tion under MCR J., concurred.
Doctoroff, (dissenting). case, In this I am of the Wahls, opinion question whether re- employee ceived the of and handbook and was thus aware to defendant’s arbitration presented question of material fact for the fact- respectfully finder’s Therefore, determination. I dissent. response
In addition to his to defendant’s motion summary disposition, plaintiff presented his argued own sworn affidavit in which he that he never received an handbook and was remedy, following discharge, unaware that his sole response, argued was arbitration. that sworn statements, factual in complaint, plaintiff’s knowledge established of and familiarity with However, plaintiff argued rebuttal, that while he was told general employment about terms in employee handbook, i.e., that defendant would plaintiff only upon just through terminate other cause, employees, plaintiff never received or viewed plaintiff argued Further, the actual handbook. (not "employee guide” his reference to an ployee an "em- handbook”) complaint was not so intelligent, unequivocal clear, knowledge as to constitute
of the handbook in its en- tirety. Notably, plaintiff’s complaint does not cite Zeniuk by Wahls, J. any specific paragraphs or reference sections employee handbook. defendant’s summary A motion general that there is no issue of material fact tests claim. the factual enko, (1988). for a Leitch v Switch- granting Before a motion for 2.116(0(10), pursuant disposition made to MCR *6 the court must consider the affidavits and the pleadings evidence,
as well as all other and be impossible that it is for the satisfied supported claim to be deficiency at trial because of some that Schippers Corp, cannot be overcome. v SPX 186 (1990). App 595, 596; 465 34 Mich are giving NW2d Courts finding genuine exists, in that a liberal issue resolving all benefits of doubt and all rea- nonmoving in sonable inferences party. favor of the Slaughter App Smith, v 167 Mich NW2d 2.116(G)(4)provides party that "an adverse may upon allegations not rest the mere or denials pleading, must, of his or her but affidavits or as provided specific rule, otherwise in this set forth showing genuine facts trial.” there is a issue for plaintiff Morganroth
Thus, unlike the (1987), Whitall, 161 Mich any response who failed to file to the defendant’s motion and did not come support finding forward with evidence to that a genuine existed, issue of material fact in this case claim not could be defeated on the opposition that he based his to defendant’s summary disposition allega- motion on the mere pleadings. tions and denials majority argues if is enti- rely tled to handbook of his just-cause employee, claim that he is a then he is the other also bound terms by Wahls, handbook, that he is namely, stated terms I disagree. therein. in an contract which provision employment
A discharged that an shall be provides is enforceable whether except legally for cause written, or express agreement, is an oral provision legitimate expec- employee’s the result of an or is state- employer’s policy in an grounded tations expectations be legitimate may ments. These written state- grounded employer’s in an personnel poli- in a manual of ments as set forth Blue Shield of v Blue Cross & cies. Toussaint 579, 598-599; 292 Michigan, 408 Mich NW2d Hosp, Huron Renny v Port 428; 398 personnel employer an need not establish While
policies establish them known to its relationship practices, employer where an chooses to policies practices such and makes
employees, employment presumably enhanced. The em- cooperative ployer orderly, loyal secures *7 force, peace the the of mind work and security and the job associated with conviction preemployment fairly. that he will be treated negotiations minds No parties’ place and the need take subject; it need not meet on the nor does nothing of the matter knows policies practices particulars employer’s of the and change employer may them unilater- or that chooses, pre- enough employer It is ally. interest, sumably in its own to create an environ- that, ment in which the believes what- practices, personnel policies they are ever the time, given purport and official at established fair, applied consistently and are and uni- to be [Toussaint, employee. supra, p 613. formly to each Emphasis added.] required specific
A
is not
to know the
41
Zeniuk v
Inc
by Wahls, J.
in an
of
termination clause
terms
employee handbook;
of the em-
applicability
ployer’s policy
its
required.
Jordan, 141 Mich
See Rasch v East
is
App
(1985).
Therefore,
336,
345;
While
disputes,
of
it is well settled
resolution
tion
Grand
is a matter of contract.
that arbitration
Rapids
628,
Police,
Order
415 Mich
v
of
Fraternal
(1982). An
634-635;
agreement
52
arbitration
330 NW2d
requiring
contract,
the mutual
is a
parties
parties, by
which all
assent
agree
rights
proceed
forego
their
with a court
disputes
instead,
to a
and,
their
action
panel
submit
179, 186; 321
case,
In
supporting
this
claimed
affidavit
that he did not receive an
hand-
book,
and did not have
of the arbitra-
agreement
tion
plain-
contained therein. Whether
tiff is subject
agreement
to the arbitration
is a
question of material
fact
this case. Where the
truth of a material
factual assertion of a movant’s
depends
affidavit
on the affiant’s
there
credibility,
genuine
inheres a
issue to be decided at
trial by
trier of
fact and a motion for summary disposi-
Pointer,
Brown v
granted.
tion cannot be
346, 354;
doubt all resolving reasonable favor, inferences I am not satisfied it impossible would be his claim at trial. is Summary never proper present, when an issue of material fact it is an overuse of to make appellate authority *9 Zeniuk 43 by Wahls, findings appeal.
what amounts of fact on See Cronin, Ridge Pine Coal Co v Kratochvil v Grayling, (1972); 682, 687; Warren Mich NW2d Stephenson, Tool Co v