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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, Plaintiff that he would remain employed unless good cause existed for his discharge.

 In Touissant v. Blue Cross and Blue Shield of Michigan,2 the Michigan Supreme Court held that written policy statements or oral representations, which provide that an employee can be discharged only for good cause, may be the underpinnings for a breach of contract action. The Touissant case does not vitiate the venerable rule that an employment contract for an indefinite period is terminable by either party, regardless of whether cause exists for the termination.

 In Kay v. United Technologies Corp., *fn3" a discharged employee filed a wrongful termination action against his employer, averring that he and his employer entered into an implied contract whereby he would not be discharged without "just cause." In support of his implied contract claim, the Plaintiff relied upon (1) phraseology contained in his performance appraisal form; (2) a letter mailed to the employees by the company's president, which described the improvements in the employees' benefits and stated that maximum effort by management and the employees would contribute to the company's growth; and (3) a statement made at a deposition by Plaintiff's supervisor that the evaluation forms were used to improve job performance in order for the company and the employees to prosper. Granting summary judgment to the employer, the Sixth Circuit Court of Appeals held that the employer did not make any representations from which the employee could glean that he could be terminated only for good cause:

 
In relation to none of these three claims do we find a basis for an employment contract which promised Kay that he would not be discharged without "just cause." Our review of Plaintiff's claims leads us to agree with the District Judge that Plaintiff has not pled facts which establish a right to a jury trial on "just cause" under the Toussaint standards. *fn4"

 The appraisal form used by Plaintiff's employer in the case at bar is similar to the one featured in the Kay opinion. The Court holds that the record is devoid of proof for Plaintiff's claim that he reasonably believed, based on the appraisal forms, he would remain employed by defendant as long as good cause did not exist for his termination from employment. At most, Plaintiff had an unsubstantiated subjective belief that he could be terminated only for just cause; such a belief alone does not create an enforceable contract ...


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