dissenting.
The majority seemingly premises its affir-mance, at least in part, upon Swan's failure to adequately designate portions of the record reflecting the existence of a material fact upon the issues of whether TRW offered Swan permanent employment and whether Swan gave independent consideration for the employment.2 This determination is puzzling in light of the majority's observations contained in its Footnote 1. There, the majority concludes that neither party was in strict compliance with the designation requirements, and although the majority accepts the format used as "substantial compliance with the designation requirement", (Op. at 796, n. 1) the opinion appears to excuse TRW's noncompliance, yet utilizes Swan's non-compliance to affirm the summary judgment.
The majority holds that Swan failed to demonstrate that there was an offer from TRW of permanent employment and that such failure is wholly fatal to Swan's claim. The majority, however, correctly observed that "if an employee gives independent consideration for an employment contract" the employer may not terminate the employee without good cause. Op. at 796. The opinion does not, however, seem to take that factor into consideration as to whether there are any genuine issues of material fact.
Taking into consideration the pleadings and Swan's deposition, TRW has not shown the absence of any genuine issue of a material fact and has not demonstrated that it is entitled to judgment as a matter of law. A reasonable trier of fact could conclude that Swan suffered a detriment when he accepted employment by TRW, thereby giving independent consideration. A fact finder might further conclude that under the cireum-stances Swan was entitled to rely upon the representations, specifically representations concerning future retirement and pension benefits, as an offer of more than an at-will employment. In my view, there are genuine issues of fact which should result in reversal.
The majority aptly observes that whether Swan's on-site gambling activity constituted grounds for termination is a non-issue. The sole basis for the summary judgment is that Swan was, as a matter of law, an employee at will. - in that determination are the implicit conclusions that, as a matter of law, Swan did not give independent consideration for the re-hire; that, as a matter of law, TRW did not offer Swan employment expressly or impliedly represented to be for a duration contemplating voluntary retirement; and that, as a matter of law, the employee handbook providing for only a three-day suspension for a first violation was not applicable to Swan's employment relationship.
There are genuine issues of fact as to one or more, if not all, of these questions. For this reason I dissent.
. My conclusion in this regard is drawn from the majority's statement: "In this case, Swan presented no materials to the trial court demonstrating that TRW offered him permanent employment." Op. at 797.