LONGLEY
v.
BLUE CROSS & BLUE SHIELD OF MICHIGAN
Docket No. 72816.
Michigan Court of Appeals.
Decided July 16, 1984.Keller & Katkowsky, P.C. (by Lawrence S. Katkowsky), for plaintiff.
Karen S. Kienbaum and Kristine J. Galien, for defendant.
*338 Before: M.J. KELLY, P.J., and BRONSON and C.W. SIMON,[*] JJ.
BRONSON, J.
Plaintiff appeals as of right an order of summary judgment in favor of defendant.
On or about September 23, 1976, plaintiff was hired by defendant as a pricer in Medicare Adjudication Unit II. Shortly after she was hired, plaintiff received a copy of defendant's employee handbook, which contained the following provision:
"Just as any employee may resign at any time and for any reason, the company, because of legal considerations, reserves the right to release an employee at any time for any reason."
In November, 1976, plaintiff was transferred to Medicare Adjudication Unit III. Plaintiff was discharged from her employment on December 30, 1976, as a result of her alleged participation in an unauthorized work slowdown. Plaintiff filed her complaint on December 23, 1982, alleging that her discharge was in violation of an implied contract to discharge only for cause. After taking plaintiff's deposition on March 4, 1983, defendant filed a motion for summary judgment. The trial court granted defendant summary judgment pursuant to GCR 1963, 117.2(3).
In Karaskiewicz v Blue Cross & Blue Shield of Michigan, 126 Mich. App. 103, 110; 336 NW2d 757, lv den 418 Mich. 882 (1983), this Court set forth the standard of review of a motion brought under GCR 1963, 117.2(3):
"GCR 1963, 117.2(3) allows a trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to *339 judgment as a matter of law. A motion based on this subrule is designed to test whether there is factual support for a claim. When passing upon a motion under the subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it."
At her deposition taken on March 4, 1983, plaintiff admitted having read the employee handbook at the time of her hiring and that she recalled reading language in the handbook which stated she could be terminated at any time for any reason. Plaintiff further admitted that she believed that the language contained in the employee handbook was correct and was, in fact, the state of her employment with defendant. The trial court found that, as a matter of law, plaintiff's admission at her deposition precluded her from claiming that she had a legitimate expectation of discharge only for good cause and that, in light of plaintiff's admission, further discovery would be of no avail to plaintiff.
In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 598; 292 NW2d 880 (1980), reh den 409 Mich. 1101 (1980), the Supreme Court held that:
"1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term the term is `indefinite', and
"2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee's legitimate expectations grounded in an employer's policy statements."
The Toussaint decision does not limit an employer's right to enter into an employment contract terminable at will without assigning cause. 408 *340 Mich 610. Rather, Toussaint makes clear that an employment contract for an indefinite period is not automatically insulated from judicial construction; our task is to determine whether, in a given case, the employer expressly agreed to terminate only for cause or whether statements of company policy and procedure gave rise to an employee's legitimate expectation of discharge only for cause.
The statements of company policy and procedure which plaintiff argues gave rise to a legitimate expectation of a just cause termination standard derive from three sources: (1) a memorandum issued to employees in Unit III by their supervisor, Eunice Armstrong, (2) the discipline and discharge guidelines in the Personnel and Procedures Manual, and (3) the alleged testimony of one of defendant's managerial employees, in a separate lawsuit, that he terminated employees only for good cause and did not personally consider employment of his subordinates to be "at will". Such policies and procedures, if substantiated by documentary evidence, ordinarily might be sufficient to withstand a motion for summary judgment. Schipani v Ford Motor Co, 102 Mich. App. 606; 302 NW2d 307 (1981). In Schipani, this Court held that even a written employment agreement in which the plaintiff acknowledged that he could be terminated at any time without advance notice did not necessarily bar an action under the Toussaint doctrine where oral representations and employer's manuals assured the employee that dismissal would be for cause only. What distinguishes the instant case from Toussaint, supra, and its progeny, is plaintiff Longley's clear admission that she understood that she could be dismissed with or without cause.
While "a mere subjective expectancy on the part of an employee" may not be sufficient to create a *341 Toussaint claim, Schwartz v Michigan Sugar Co, 106 Mich. App. 471, 478; 308 NW2d 459 (1981), lv den 414 Mich. 870 (1982), we think a subjective expectancy is necessary to establish such a claim. By "subjective expectancy", we do not mean to imply that the employee must prove "reliance" as that term is used in contract law, e.g., in connection with the doctrine of promissory estoppel. Toussaint, supra, p 613, fn 25; Damrow v Thumb Cooperative Terminal, Inc, 126 Mich. App. 354, 362; 337 NW2d 338 (1983). Even under a broad reading, however, Toussaint requires that an employee seeking to establish an implied contract must have, at least, entertained a belief that the personnel policies and practices would be applied consistently. Toussaint, supra, p 613. Accordingly, we hold that an employee's admission that she knew that she could be dismissed with or without cause logically and legally precludes her from maintaining that she had any expectation, legitimate or otherwise, of termination only for cause.
We recognize that the absence of an initial expectation of termination only for just cause would not bar an employee's claim that his or her employer subsequently modified the employment contract, i.e., at some point during the course of employment, the employer instituted policies or practices which gave rise to a legitimate expectation of contractual rights. In the instant case, however, the documentary evidence submitted by plaintiff in opposition to the summary judgment motion was insufficient to create a jury question on the issue of modification. Neither the pleadings nor plaintiff's affidavit nor any other document provides factual support for her counsel's argument that the combination of the Personnel and Procedure Manual, the Armstrong memorandum, *342 and the alleged testimony by a managerial employee in a separate lawsuit, negated or modified plaintiff's initial beliefs regarding the state of her employment with defendant.
Finally, we are not persuaded that the trial court prematurely granted summary judgment.
"This Court has held that a grant of summary judgment is premature if made before discovery on the disputed issue is complete. * * * However, there must be a disputed issue before the court. If the party opposing a motion for summary judgment cannot present competent evidence of a disputed fact because his or her discovery is incomplete, the party must at least assert that such a dispute does indeed exist and support the allegation by some independent evidence, even if hearsay." Pauley v Hall, 124 Mich. App. 255, 263; 335 NW2d 197 (1983), lv den 418 Mich. 870 (1983). (Citations omitted.)
Further discovery could not have created a material dispute. Plaintiff's binding admission[1] at her deposition that she understood that she could be discharged at any time for any reason was the dispositive fact.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] See Hollowell v Career Decisions, Inc, 100 Mich. App. 561, 568; 298 NW2d 915 (1980).