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Merlino v. MGM Grand Detroit9/14/2004
UNPUBLISHED
Plaintiff filed suit alleging that he was wrongfully terminated from his position as a pit manager at defendant's casino after several female co-workers filed written complaints with defendant alleging that plaintiff had sexually harassed them by making inappropriate comments. Plaintiff appeals as of right from an order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(10) and dismissing plaintiff's complaint with prejudice. We reverse, and remand for further proceedings.
A trial court's ruling on a motion for summary disposition under MCR 2.116(C)(10) is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 644 NW2d 151 (2003). Our Supreme Court stated the legal standard to be applied to a motion for summary disposition brought under MCR 2.116(C)(10) in Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
The parties first dispute whether plaintiff could only be terminated for just cause. Specifically, defendant asserts that, pursuant to plaintiff's employment contract, plaintiff could be terminated for just cause at any time without notice, and could be terminated without cause upon sixty days' notice. Therefore, defendant asserts that, even if just cause did not exist for plaintiff's termination, defendant has only violated the sixty-day notice provision and plaintiff's damages are limited to the amount of wages that he would have received during that notice period. Plaintiff, however, asserts that the manuals and policies that defendant subsequently circulated, coupled with a provision of his contract that states that he would become entitled to all of the employee benefits commensurate to an employee in his position after a sixty-day introductory period, effectively modified his contract. Therefore, plaintiff contends that, after his initial sixty-day period, the notice provision in his letter of acceptance was no longer part of his contract and he could only be terminated for just cause.
Our Supreme Court has recognized that employment relationships are generally presumed to be terminable at the will of either party. Lytle v. Malady (On Reh), 458 Mich 153, 163-164; 579 NW2d 906 (1998) (citation omitted). The employee may, however, rebut this presumption by introducing sufficient proofs that contractual obligations and limitations have been placed on the employer's right to terminate. Id. at 164 (citations omitted). The presumption of at-will employment is overcome with proof of either a contract provision for a definite term of employment, or one that forbids discharge absent just cause. Id. A plaintiff can prove such contractual terms in the following three ways: (1) introducing proof of a contractual provision forbidding discharge absent just cause, or providing for a definite term of employment,
(2) introducing evidence of a clear and unequivocal, written or oral, express agreement regarding job security, or (3) introducing proof of "a contractual provision, implied at law, where an employer's policies and procedures instill a 'legitimate expectation' of job security in the employee." Id. (cit
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