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ROUSE v. PEPSI-COLA METRO. BOTTLING CO.

September 17, 1985

Spurgeon ROUSE, Jr., Plaintiff,
v.
PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC., Defendant



The opinion of the court was delivered by: LA PLATA

 LA PLATA, District Judge.

 I. Introduction

 On July 12, 1983, Plaintiff, Spurgeon Rouse, Jr., filed a five-count complaint in the Wayne County Circuit Court against Defendant, Pepsi-Cola Metropolitan Bottling Company, Inc. Therein, he essentially alleged that he was terminated from his employment, without just cause, in contravention of the Elliott-Larsen Civil Rights Act *fn1" and an implied or express contract of employment. In addition to his breach of contract and racial discrimination counts, Plaintiff averred that Defendant committed (1) negligence in its failure to abide by the terms of the employment contract; (2) the tort of intentional infliction of emotional distress by virtue of termination of his employment; and (3) the tort of negligent infliction of emotional distress.

 First employed by Defendant as an hourly employee in May, 1972, Plaintiff assumed a salaried position as a load coordinator at Defendant's Romulus, Michigan, plant in January, 1979. Approximately four months thereafter, Plaintiff was transferred to the Warren, Michigan, facility, where he worked as a merchandiser, holding the position until his discharge on October 29, 1982.

 II. Defendant's Motion for Summary Judgment

 On March 29, 1985, Defendant filed a Motion for Summary Judgment, seeking a dismissal of entire cause of action. As to the five counts, it made the following arguments:

 
1. Breach of an Implied Contract of Employment: Plaintiff's claim is based on his subjective expectancies, rather than a written policy or oral representation.
 
2. Negligent Performance: Michigan law does not recognize a cause of action for a bad faith or negligent failure to perform under a contract.
 
3. Intentional Infliction of Emotional Distress: Plaintiff failed to plead that Defendant engaged in extreme and outrageous conduct.
 
4. Negligent Infliction of Emotional Distress: Michigan law does not provide a remedy for an allegedly negligent infliction of emotional distress.
 
5. Race Discrimination: The evidence reveals that no evidence exists to support a claim of intentional discrimination.

 III. Breach of Contract Claim

 At his discovery deposition, taken on November 4, 1983, Plaintiff testified that the sole basis for his claim that he would not be discharged except for good cause were performance evaluation forms used by Defendant. A review of the forms indicates that Defendant did not promise, either impliedly or expressly, ...


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