MacGill v. Blue Cross of Maryland, Inc.

ROBERT M. BELL, Judge. Charles G. MacGill, appellant, appeals from judgments of the Circuit Court for Baltimore County, granting motions for summary judgment and to dismiss in favor of Blue Cross of Maryland, Inc., appellee. He raises, for our resolution, two questions: 1. Was there a series of valid employee contracts] or implied contracts] based on Appellee’s job postings and personnel policies with respect to the three subject positions to which Appellant was not selected? 2.

Did the Appellant properly allege the tort of deceit? We will hold that the trial court properly granted both the motion for summary judgment and the motion to dismiss for failure to state a claim upon which relief could be granted and, thus, will affirm. 1. Appellant filed against appellee a complaint, which consisted Of three counts, sounding in breach of his employment contract. At the heart of each count was appellant’s contention that certain personnel guidelines, promulgated and issued by appellee, were contractual undertakings on ⁶¹⁵ its part, which appellant accepted, and which thus became a part of his employment contract.

He alleged that appellee failed to comply with those personnel guidelines in filling three job positions which became available, and for which appellant applied, during the later years of his employment with appellee. The personnel policies which appellant maintains became a part of his employment contract, are: 1. Memo No. 200.60, requiring “each and every member of management to administer these [personnel] policies in a consistent and impartial manner.” 2. Memo No. 200.45(C3), requiring certain vacant positions to be posted corporate wide; the personnel representative to screen applicants for minimum job qualifications; and the personnel representative to make a job offer to selected applicant and “promptly notify the remaining applicants of their status,” “[i]f the decision is properly supported.” 3.

Memo No. 200,32(C2) 1 endorsing and committing itself “to equal opportunity regardless of race, religion, color, age, sex, political affiliation, mental or physical handicap or national origin in employment...”; “to take affirmative action to employ, advance in employment and otherwise treat qualified ... veterans of the Vietnam era without discrimination based upon their ... veteran status in all employment practices... ”; and “to be consistent in our practices of treating all employees and/or applicants, whether or not members of minority groups, equally according to their individual merit, qualifications, ability, experience, and other bona fide occupational standards.” ⁶¹⁶ With particular regard to the filling of each of the vacant positions, appellant contends that appellee violated these policies in one or more of the following ways: by discriminating against him on the basis of age or sex; by not taking affirmative action in his favor pursuant to the Vietnam Era Veterans Readjustment Act; by not posting the vacant positions 2 ; by not screening the applicants for minimum job qualifications; by failing to treat him equally with the successful candidate according to his individual merit, qualifications, ability, experience, and other bona fide occupational standards; and by hiring candidates when the decision to do so was not properly supported. It is evident both from the overall tone and context of the complaint and the arguments advanced in opposition to the motion for summary judgment that the evidence of the company’s violation of its personnel policies is supplied by appellant’s perception that he was the most qualified candidate for each vacancy and by the fact that he was not selected to fill any of them. After a hearing, the trial court granted appellee’s motion for summary judgment, ruling that the personnel policies at issue were general statements of policy and not contractual undertakings by appellee. On appeal, as he did below, appellant relies upon Dahl v. Brunswick Corp., 277 Md. 471 , 356 A.2d 221 (1976) and Staggs v. Blue Cross of Maryland, 61 Md.App. 381 , 486 A.2d 798 cert. denied, 303 Md. 295 , 493 A.2d 349 (1985) to support his argument that appellee’s personnel policies constituted an implied contract of employment between himself and appellee.

Each of these cases does stand for the proposition that “employer policy directives regarding aspects of the employment relation become contractual obli ⁶¹⁷ gations when, with knowledge of their existence, employees start or continue to work for the employer.” Dahl, 277 Md. at 476 , 356 A.2d 221 , and cases therein cited. See also Staggs, 61 Md.App. at 392 , 486 A.2d 798 . In both cases, the employees, like appellant, were not subject to a written employment contract or a collective bargaining agreement. On the other hand, the incident of the employment to which the policy directives refer are different: Dahl and Staggs involved the termination stage of the employment, respectively, post-termination benefits and pre-termination procedures, while the case sub judice involves promotion procedures.

The question thus presented is: do those cases mandate the conclusion urged by appellant in this case? We seek the answer by analyzing the policies found by the Dahl and Staggs Courts to constitute contractural undertakings. The contractual obligation in Dahl was supplied by Brunswick’s written policy statements and unwritten general practice of providing its employees with two weeks severance pay upon their termination. 277 Md. at 474 , 356 A.2d 221 . Brunswick not only conceded the existence of these written policy statements and its unwritten general practice, but it also agreed that they constituted an offer of a unilateral contract of which the employees were aware and, by continuing their employment, accepted. 277 Md. at 474-75 , 356 A.2d 221 .

In Staggs , the relevant policy memorandum provided: IV. Employees terminating due to dismissal are subject to the following conditions: A. Except in extreme cases when dismissal will be immediate, employees will be given at least two formal counseling sessions by their supervisors and/or manager before final dismissal. All formal counseling sessions must be first reviewed with the Employment and Employees’ Relations Department prior to any discussion with the employee. Formal counseling sessions with employees must be substantiated in writing by filing form 5.65 Problem Solving Report with the Em ⁶¹⁸ ployment and Employee Relations Department.

During the second counseling session, the employee will be advised that continuance of the problem may result in dismissal. Failure to sign form 5.65, Problem Solving Report after it has been discussed, may provide grounds for immediate dismissal. * $ jjc if: ¡j< ¡it E. An employee may be dismissed at any time for cause without liability to Blue Cross and Blue Shield of Maryland. We held that these provisions, which, by setting out termination procedures, had the effect of limiting the employer’s discretion to terminate an indefinite employment, if properly expressed and communicated, are contractual undertakings by the employer and are enforceable by the employee, 61 Md.App. at 392 , 486 A.2d 798 and, partially on that basis, reversed the lower court’s ruling to the contrary. We were quick to point out, however, “that not every statement made in a personnel handbook or other publication will rise to the level of an enforceable covenant”, noting, as had the Minnesota Supreme Court in Pine River State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn.1983), that “general statements of policy are no more than that and do not meet the contractual requirements for an offer.” Id.

Although stated in general terms, denoting applicability to all employees, the policy directives in Dahl and Staggs , were also capable of objective application in discrete cases. Stated another way, whether an employee was entitled to receive severance pay or whether an employee was terminated in violation of the company’s