Mary Haas v. Montgomery Ward and Company

MERRITT, Circuit Judge.

In this diversity action, plaintiff Mary Haas contends that her employer, Montgomery Ward and Company, discriminated against her on the basis of age, wrongfully *1016discharged her and negligently wrongfully discharged her when the company consolidated its catalogue and customer accommodation center. Haas claims that she was dismissed and a woman twenty years younger than she was retained to manage the new consolidated department because the younger woman had a social relationship with the supervisors. In addition, Haas maintains that her low performance evaluation was based not on her job performance, but on her supervisor’s dislike for her.

We affirm the District Court’s dismissal of the entire case. First, to find age discrimination under the Elliott-Larsen Civil Rights Act. Mich.Comp.Laws § 37.-2101-2804, Michigan law requires proof that age was a significant determining factor in the employer’s decision to discharge the employee. Adama v. Doehler-Jarvis, 115 Mich.App. 82, 320 N.W.2d 298 (1982), rev’d on other grounds, 419 Mich. 905, 353 N.W.2d 438 (1984); Gallaway v. Chrysler Corp., 105 Mic.App. 1, 306 N.W.2d 368 (1981). There is no such proof here. The mere fact that Haas was replaced by a younger woman is not legally sufficient to prove the company discharged her on the basis of her age.

Second, a claim for wrongful discharge cannot be maintained where, as here, the employment is on an “at will” basis. Kay v. United Technologies Corp., 757 F.2d 100 (6th Cir.1985); Valentine v. General American Credit, Inc., 420 Mich. 256, 362 N.W.2d 628 (1984); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980). The record contains documents bearing Haas’ signature which acknowledge that her employment “may be terminated at will at any time by myself or by the company,” and “may ... be terminated at any time, with or without cause, and without any previous notice.” Joint Appendix 262, 313. As the Supreme Court of Michigan has stated, “Employers and employees remain free to provide, or not to provide, for job security. Absent , a contractual provision for job security, either the employer or the employee may ordinarily terminate an employment contract at any time for any, or no, reason.” Valentine, 362 N.W.2d at 629 (footnote omitted). Haas’ “at will” employment precludes any claim for wrongful discharge.

Third, Haas’ negligent wrongful discharge claim stems from her employment contract with the company. She argues that the company’s failure to compare her prior evaluations to her most recent and lower evaluation breached the company’s contractual duty to exercise reasonable care and constitutes negligence. We find no merit in this tort claim under Michigan law.

In Michigan an action in tort requires a breach of duty separate and distinct from a breach of contract. Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956); Kewin v. Massachusetts Mutual Life Insurance Co., 409 Mich. 401, 295 N.W.2d 50 (1980); Brewster v. Martin Marietta Aluminum Sales, Inc., 145 Mich.App. 641, 378 N.W.2d 558 (1985). In the Hart opinion, Michigan’s highest court points out that “if a relation-hip exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.” 347 Mich, at 567, 79 N.W.2d at 898, quoting W. Prosser, Handbook of the Law of Torts, § 33 at 205 (1st ed.).

Haas relies on a Michigan Court of Appeals case to argue that Michigan law permits a cause of action for negligent wrongful discharge. Schipani v. Ford Motor Co., 102 Mich.App. 606, 302 N.W.2d 307 (1981). Schipani states that negligent performance of a contract constitutes a tort as well as a breach of a contract. Nevertheless, Schipani neglects an important consideration discussed in Hart and later in Brewster: an action in tort will not arise for breach of contract unless the action in tort would arise independent of the existence of the contract.

The Hart case still controls today. Citing Hart with approval, Brewster states, “[BJecause there was no breach of duty distinct from the breach of contract, plaintiff’s ... action is in contract, not in tort.” 378 N.W.2d 558 at 569 (emphasis in original). See also Prosser and Keeton on *1017the Law of Torts § 92 at 661 (6th ed. 1984). (“[Tjhere will be liability in tort for performance of a contract whenever there would be liability for gratuitous performance without the contract.”)

Here, Haas’ position with the company was the only reason she was evaluated. Without the employment contract the evaluation would never have occurred. There would be no independent action in tort for negligent evaluation causing her discharge. Therefore, under the analysis of Hart, she has no valid claim in tort.

Finally, in view of Haas’ “at will” employment contract we find no merit in her claim that the District Court should have allowed additional time for discovery.

Accordingly, the judgment of the District Court is affirmed.