Wynkoop v. TOWN OF CEDAR LAKE

ROBB, Chief Judge,

concurring in result with opinion.

I respectfully concur in result. Although I agree the trial court did not err in granting summary judgment in favor of the Town, I do so on a basis different from my colleagues.

The majority holds that Wynkoop was an at-will employee and he therefore had no property interest entitling him to due process protection under the terms of the Manual. As I noted in my concurring in result opinion in McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind.Ct.App.2007), however, our supreme court has recognized exceptions to the employment-at-will doctrine, including promissory estoppel. Id. at 896 (citing Orr, 689 N.E.2d at 718). To successfully invoke the doctrine of promissory estoppel, an employee must assert and demonstrate that the employer made a promise; that the employee relied on that promise to his detriment; and that the promise otherwise fits within the Restatement test for promissory estoppel. Orr, 689 N.E.2d at 718.

When an employer drafts and offers an employee handbook containing specific disciplinary and grievance procedures, or makes promises regarding the same, I believe the provisions of the handbook and the promises of the employer should mean something. In McCalment, the employee was given a handbook that described disei-pline to be handled by the employee’s direct supervisor first, who had authority to make commitments to employees. The handbook also described a grievance procedure. The employee was given two warnings by his supervisor but was promised that the discipline would be removed from his file one year after being issued. Based on those promises, the employee did not invoke the grievance procedure. Over a year from the last warning, the employee was placed on probation due in part to the two previous warnings, both of which should have been removed from his file. The employee was also reassigned, and upon committing an error in his new job, was terminated. The majority held that notwithstanding the provisions of the handbook and the promises made by his supervision, the employee was an at-will employee who could be terminated at any time for any reason. Although I agreed that the handbook did not in and of itself create a contract of employment for a definite term, I also believed the employee had shown a promise had been made to him that disciplinary matters would be handled at the lowest level first, that he had relied on the statements of his direct supervisor that the warnings about his job performance would be removed from his file after one year and not considered in any future discipline, and that he relied on those promises to his detriment because he did not engage the grievance procedures available to him after either warning. 860 N.E.2d at 896-97. Although I agreed that the employee could be fired for any proper reason, I believed that firing him based in part on past warnings which he had been told would be removed from his file was an improper basis.2 Id. at 897; see also *239McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-94 (Ind.1988) (holding even an employee at will who can be fired for any reason cannot be fired for an improper reason, such as a refusal to break the law in carrying out his duties).

As in McCalment, the City here unilaterally wrote and provided to its employees, including Wynkoop, the Manual which describes disciplinary and grievance procedures. The Manual specifically states that it is not a contract of employment and does not guarantee employment for any specified length of time and it states that an employee may be terminated at any time with or without cause. However, the Manual also includes two levels of rules of conduct, a “progressive disciplinary policy,” and an employee appeal procedure, and states that in the event disciplinary action is taken against an employee, “it will be for just cause and normally in a progressive manner....” App. at 78-81. If the Manual is to mean anything at all, these provisions allowing for progressive discipline and discipline for just cause must be given effect. In an at-will state such as Indiana, an employer is not obligated to furnish to its employees a statement of its employment policies. Having made statements in writing about the terms and conditions of employment, however, it is fundamentally unfair to allow an employer to essentially declare those statements illusory and raise the “employment at will” doctrine as a shield when it is called to task by an employee who can demonstrate detrimental reliance on the employer’s failure to abide by those terms and conditions.

Wynkoop, however, has not demonstrated detrimental reliance on the provisions of the Manual. When he was informed of the disciplinary action against him, he received a hearing as provided by the employee appeal section of the Manual. There is no evidence that he forewent any other available recourse. He was also informed that the recommended discipline was termination. The Manual does provide that disciplinary action could consist of immediate termination, and there is no evidence that in the course of the disciplinary action against Wynkoop he was promised and agreed to any lesser discipline. Thus, regardless of what, if any, rights Wynkoop may have had, he has not shown detrimental reliance on any statements in the Manual and I concur in the result reached by the majority that the trial court properly granted summary judgment in favor of the Town.

. Nonetheless, because after the employee learned the employer would not be honoring its previous promises regarding removal of prior discipline from his file, he did not use the grievance procedures available to him to contest being placed on probation, his reliance became unreasonable, and I concurred *239with the majority’s decision that his complaint was properly dismissed. Id. at 898.