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SHANKLE v. DRG FIN. CORP.

December 13, 1989

William Shankle, Plaintiff,
v.
DRG Financial Corporation, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This case involves an action for wrongful termination and breach of contract. Plaintiff alleges that his former employer, defendant DRG Financial Corporation ("DRG"), wrongfully discharged him and in the process violated the procedures for employment termination specified in DRG's personnel manual, thereby breaching the contract created between plaintiff and DRG by virtue of the personnel manual. Presently before the Court is defendant's Motion for Summary Judgment.

 Factual Background

 Plaintiff was hired by DRG as a building maintenance employee on October 1, 1985, at a salary of $ 12,000 per year. On April 1, 1986, plaintiff's salary was raised to $ 15,000 per year. At some point during the Spring, 1987, plaintiff was promoted to Office Manager and his salary raised to $ 20,000 per year. Although there is some dispute as to when plaintiff assumed his new position and what his responsibilities as Office Manager were, both parties agree that the new job involved additional duties.

 Defendant contends that plaintiff's work began to decline after his promotion and continued to deteriorate despite repeated warnings. Plaintiff disputes both that his work deteriorated and that he received any warnings concerning his allegedly deficient performance. In any case, on November 6, 1987, plaintiff's supervisor sent a memorandum to a member of DRG's Executive Committee recommending that plaintiff be discharged for unsatisfactory work performance. After being notified that plaintiff's discharge had been approved by the Executive Committee, plaintiff's supervisor met with him on November 10, 1987, and informed him of DRG's decision to discharge him for unsatisfactory work performance.

 On November 10, 1988, plaintiff filed suit against defendant DRG alleging wrongful termination. On February 2, 1989, plaintiff amended his Complaint to include a breach of contract claim.

 Discussion

 Summary judgment may be granted only if "there is no issue of material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). In reviewing a motion for summary judgment, the court must consider the pleadings, related documents and evidence in a light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). There are no triable issues, however, "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 The Court first turns to plaintiff's claim of breach of contract. Under the law of the District of Columbia, the mutual promise to employ and serve creates a contract terminable "at will" by either party. Sullivan v. Heritage Foundation, 399 A.2d 856 (D.C. 1979). Unless the parties agree to enter into a contract for a fixed duration, or a written contract for permanent employment, the employment will be regarded as terminable at will. Id. at 860. Plaintiff concedes that he had no written contract of employment with DRG and that he was given no oral assurances that he was hired for any specific duration. Rather, plaintiff claims that after beginning employment at DRG he obtained a copy of the DRG Personnel manual and that, therefore, the provisions of the manual formed contractual obligations on the part of DRG. *fn1" Thus, plaintiff's breach of contract claim rests on the allegation that DRG's manual constituted an employment contract thereby converting plaintiff from an "at will" employee to a "permanent employee."

 In order to overcome the presumption of "at will" employment, plaintiff must demonstrate that both parties intended employment to be for a fixed period. Sullivan, supra. Plaintiff has failed to demonstrate in any way that DRG intended to alter plaintiff's "at will" employment status. The presumption of terminable-at-will employment can be rebutted only by a clear statement of the parties' intention to do so. Minihan v. American Pharmaceutical Ass'n., 259 U.S. App. D.C. 10, 812 F.2d 726, 728 (D.C.Cir. 1987). Plaintiff has not introduced such evidence in this case.

 First, even a cursory reading of DRG's manual makes clear that it was never intended to confer any contractual rights on DRG's employees. For example, the disciplinary procedures outlined in the manual, which enumerate escalating disciplinary action up to and including termination for cause, are discretionary rather than mandatory. Indeed the manual expressly states that:

 
The Company reserves the right to amend these Rules of Conduct as it sees fit. Each supervisor or department head is granted the privilege of utilizing the violations procedures at any step, depending on the seriousness of the offense.

 DRG Personnel Manual at 14. Defendant's Exhibit 18. Thus, DRG's personnel manual provides company officials the discretion to terminate an employee without any need for formal procedures. ...


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