Fortenberry v

Haverty Furn. Cos., 176 Ga. App. 360, 335 S.E.2d 460 (1985); Ikemiya v. Shibamota Am., Inc., 213 Ga. App. 271, 444 S.E.2d 351 (1994). Period of employment deemed indefinite. — Promise to employ a person until the employer becomes insolvent is an offer of employment for an indefinite term and is insufficient to support a cause of action for breach of an employment contract. Barker v. CTC Sales Corp., 199 Ga. App. 742, 406 S.E.2d 88 (1991), cert. denied, 199 Ga. App. 905, 406 S.E.2d 88 (1991). Minimum period of employment specified in contract. — When an employment contract specified that the term of employment was to be ‘‘for a period of not less than three years,’’ the contract was not terminable at will prior to the expiration of that three year period. Wojcik v. Lewis, 204 Ga. App. 301, 419 S.E.2d 135 (1992). If a definite minimum contract period has been established by the contract of employment, only such minimum employment period falls outside the employment 87 Period of Employment (Cont’d) at will and any future contract period comes under the employment at will. Schuck v. Blue Cross & Blue Shield of Ga., Inc., 244 Ga. App. 147, 534 S.E.2d 533 (2000). Although an employment contract set up a two-week pay period, that provision did not define the employment term because the contract specifically stated that it ‘‘will run from October 10th, 1994 through January 10th, 1995,’’ a three month period. Mail Adver. Sys. v. Shroka, 249 Ga. App. 484, 548 S.E.2d 461 (2001). Breach of promise not to fire. — Trial court did not err in finding that the terminated employees did not state a claim upon which relief could be granted for their claim that they were wrongfully discharged based on the businesses’ alleged breach of a promise-not-to-fire, as the terminated employees did not show that Georgia law recognized a ‘‘freedom of contract’’ public policy exception to the general rule of at-will employment in Georgia that dictated that an employee was not hired for a specific period of employment and could be terminated for any or no reason. Balmer v. Elan Corp., 261 Ga. App. 543, 583 S.E.2d 131 (2003), aff ’d, 278 Ga. 227, 599 S.E.2d 158 (2004). Ambiguity. — When an ambiguity in a contract as to the contemplated duration of a subcontractor’s services remained even after application of applicable statutory rules of construction, construction of the contract was for the jury rather than the trial court. Lineberger v. Williams, 195 Ga. App. 186, 393 S.E.2d 23 (1990). Discharge 1. In General Employer may discharge employee without liability. — When a plaintiff ’s employment is terminable at will, the employer, with or without cause and regardless of its motives, may discharge the employee without liability. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419, 233 S.E.2d 496 (1977); Grace v. Roan, 145 Ga. App. 776, 245 S.E.2d 17 (1978); Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981); Hall v. Answering Serv., 34-7-1 Inc., 161 Ga. App. 874, 289 S.E.2d 533 (1982). Trial court’s dismissal of a city employee’s wrongful discharge action was proper because the complaint failed to state a claim upon which relief could be granted; the employee was an at-will employee and, pursuant to O.C.G.A. § 34-7-1 and as a matter of law, the employee could not assert a wrongful discharge claim. Reid v. City of Albany, 276 Ga. App. 171, 622 S.E.2d 875 (2005). No actionable conspiracy out of exercising right to discharge employee. — Granting that the allegations of the plaintiff are sufficient to sustain the conclusion of conspiracy, there could be no actionable conspiracy growing out of the exercise, in a lawful manner, of the legal right to discharge the plaintiff. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419, 233 S.E.2d 496 (1977). No actionable conspiracy arises from the authorized exercise of a legal right to discharge. Meeks v. Pfizer, Inc., 166 Ga. App. 815, 305 S.E.2d 497 (1983). Absent a racial or other motive in violation of public policy, an employer may discharge an at will employee for any reason or no reason. Phinazee v. Interstate Nationalease, Inc., 237 Ga. App. 39, 514 S.E.2d 843 (1999). Oral promise not to fire not enforceable. — Noting that Georgia courts have refused to acknowledge any exceptions not encompassed by the employment at-will statute, O.C.G.A. § 34-7-1, a court applied the well-settled doctrines of Georgia law and held that an employer’s oral promise not to fire employees for cooperating with government inspection did not modify the terms of their at-will employment relationship and did not create an enforceable contract. Balmer v. Elan Corp., 278 Ga. 227, 599 S.E.2d 158 (2004). Impermissible discharge on grounds of public policy. — At-will employee cannot maintain a successful wrongful discharge suit against an employer on grounds of public policy. Jellico v. Effingham County, 221 Ga. App. 252, 471 S.E.2d 36 (1996). 2. Illustrative Cases Employment terminable at will. — Appellant’s employment was terminable 88 34-7-1 EMPLOYMENT GENERALLY; EMPLOYERS LIABILITY at will and the evidence clearly shows that appellant was discharged by one who had the authority to do so, appellant’s lengthy allegations as to improper motive for firing are legally irrelevant and present no genuine issues of material fact. Hall v. Answering Serv., Inc., 161 Ga. App. 874, 289 S.E.2d 533 (1982). As an at-will employee terminable with or without cause pursuant to O.C.G.A. § 34-7-1, a plaintiff employee had no enforceable employment contract rights with which to interfere and, thus, had no basis for a claim that the defendant president tortuously interfered with the employee’s employment for an insurance company. Culpepper v. Thompson, 254 Ga. App. 569, 562 S.E.2d 837 (2002). Because under Georgia law, absent contractual or statutory exception, employment is terminable at will by either party, pursuant to O.C.G.A. § 34-7-1, an employee of a state university was an at-will employee with no reasonable expectation in continued employment that would give rise to a property interest; therefore, because the employee did not have an identifiable property interest in the employment, the employee could not prevail on a claim for denial of procedural due process. Braswell v. Bd. of Regents of the Univ. Sys. of Ga., 369 F. Supp. 2d 1362 (N.D. Ga. Apr. 26, 2005). Despite the fact that a teacher’s contract provided for a yearly salary, such only referred to the pay system and any presumption that such contract was for one year was rebutted by the next sentence of the contract that, ‘‘should employment be terminated prior to the end of the school year, the termination pay will be prorated on the number of days worked.’’ Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 630 S.E.2d 604 (2006). City employee was an at-will employee because the record did not show that the employee was hired for a definite term of employment, and the city’s personnel policies and practices were legally insufficient to create an implied contract for a definite term of employment. Goddard v. City of Albany, 285 Ga. 882, 684 S.E.2d 635 (2009). In a former employer’s suit to enforce noncompetition and nonsolicitation 34-7-1 clauses, summary judgment was properly granted in favor of the employer on a former employee’s wrongful termination claim; as an at-will employee, pursuant to O.C.G.A. § 34-7-1, the employee had no claim for wrongful termination. H&R Block Eastern Enters. v. Morris, 606 F.3d 1285 (11th Cir. 2010). Probationary period. — When contract between parties provided that first year of employment was a probationary period, and terms of contract did not specify duration of employment, employer had right to discharge employee without cause. Gunn v. Hawaiian Airlines, 162 Ga. App. 474, 291 S.E.2d 779 (1982). Promise of lifetime employment unenforceable. — Employment in Georgia is generally considered to be at will, and a trial court properly dismissed an employee’s breach of contract suit based on a termination of employment; since an alleged promise of lifetime employment was unenforceable, the employee’s claim of fraud could not have been predicated on that alleged promise. Jenkins v. Georgia Dep’t of Corr., 279 Ga. App. 160, 630 S.E.2d 654 (2006). Employee’s investigations into company activities. — O.C.G.A. § 34-7-1 will not allow action for wrongful discharge by a terminable-at-will employee, despite allegations by the employee that the employee’s discharge was caused by the employee’s investigations into possibly criminal company activities. Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981). Oral contract between attorney and client. — Trial court’s denial of a client’s summary judgment motion was reversed as the oral contract between an attorney and the client was unenforceable in that: (1) there was no definition of what was to be considered the ultimate or logical conclusion of any given case assigned to the attorney, nor were there standards for determining if the attorney ‘‘didn’t do the job’’; (2) there was no stated duration of the agreement, and the public policy of Georgia was clear that, absent a definite term of employment, the contract was terminable at will under O.C.G.A. § 34-7-1; and (3) the attorney’s claimed damages, the attorney’s hourly rate times 89 Discharge (Cont’d) 2. Illustrative Cases (Cont’d) the number of hours it would have taken the attorney to bring each case to its ultimate or logical conclusion, were speculative and not objectively ascertainable from the oral contract. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003). Exercising workers’ compensation rights. — There is no public policy exception to an employer’s right to discharge an employee at will when the right is exercised in retaliation for the employee’s assertion of the employee’s rights under the Workers’ Compensation Act. Evans v. Bibb Co., 178 Ga. App. 139, 342 S.E.2d 484 (1986). Termination due to application for disability benefits. — Even if an employer’s decision to separate an employee from the employee’s employment was prompted by the employee’s application for full-time disability benefits, this would not give rise to a cause of action for wrongful termination. Bendix Corp. v. Flowers, 174 Ga. App. 620, 330 S.E.2d 769 (1985). Termination due to pregnancy. — Summary judgment for employer was affirmed in former at-will employee’s action for ‘‘wrongful discharge’’ allegedly based on employee’s pregnancy, as there was no existing ‘‘public policy’’ exception for termination of at-will employees because of gender in general or pregnancy in specific. Borden v. Johnson, 196 Ga. App. 288, 395 S.E.2d 628 (1990). Discharge for violations of employment directive. — When an employee manual provided that dismissal ‘‘shall result from a serious infraction of a company rule involving misconduct such as . . .’’, it was neither the intent nor the effect of the manual to limit terminations to infractions listed but rather the list of infractions was for illustrative purposes only so that the employee had notice of the types of offenses which the company believed were of such a serious nature that termination would be warranted. Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 354 S.E.2d 204 (1987). Company handbook. — Even if company handbook was considered to be a 34-7-1 contract, as it was for no specific term, employees remained as at will and their employment was terminable at will. Jackson v. Nationwide Credit, Inc., 206 Ga. App. 810, 426 S.E.2d 630 (1992). Negligent hiring and retention claim. — Employee’s claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137, 522 S.E.2d 720 (1999). Violation of termination procedures. — The fact that an at-will employee had notice of certain policies and procedures regarding discipline and termination of employees which the employee alleges were not followed in the employee’s discharge would not give rise to an action for wrongful termination. Garmon v. Health Group of Atlanta, Inc., 183 Ga. App. 587, 359 S.E.2d 450 (1987). Evidence of wrongful discharge. — Evidence that a former fellow employee, who did not have the absolute right to discharge without consulting superiors, attempted to suborn perjury from an employee, asking the employee to lie at a deposition hearing with reference to a lawsuit then in progress involving the employer, and thereafter threatened the employee that ‘‘he would never expect to get anything out of this company again,’’ and that subsequently the employee was terminated, supported the liability of that fellow employee for wrongful discharge. Troy v. Interfinancial, Inc., 171 Ga. App. 763, 320 S.E.2d 872 (1984). President of limited liability company with contract. — Trial court erred in entering a judgment on the pleadings for a limited liability company, its founder, and a corporation, as O.C.G.A. § 34-7-1 did not bar the president’s breach of fiduciary duty claim since the president had a contract for a definite term; further, the founders were bound by the contract, which contained a clause purporting to establish a fiduciary relationship. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005). 90 34-7-1 EMPLOYMENT GENERALLY; EMPLOYERS LIABILITY Recovery for Discharge Employee’s suit on contract for compensation due. — Parol agreement in a contract to begin in praesenti for an indefinite period, terminable at will, was not inhibited by the statute of frauds; and when an employee sued on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee’s discharge, and not for damages or for compensation for services not performed or for any breach of contract, it was not necessary that the employee sue on a quantum meruit for services actually performed. Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471, 180 S.E. 853 (1935). When there is a contract of employment and the employee thereunder sues on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee’s discharge, and not for damages or for compensation for services not performed or for any breach of contract, the contract is conclusive on the matter and it is not necessary that the plaintiff sue on a quantum meruit for services actually performed. Van Houten v. Standard Fed. Sav. & Loan Ass’n, 93 Ga. App. 774, 92 S.E.2d 731 (1956). Oral contract of employment at will for an indefinite time, even though it may not be performed within one year, is not within the statute of frauds; and when the employee has actually performed services thereunder the employee may recover of the employer the compensation due the employee for the services rendered. Trade 34-7-1 City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980). Trial court did not err by granting summary judgment to the defendant, a former employer, on the plaintiff ’s claims that the plaintiff was wrongfully terminated, that the plaintiff was entitled to one year’s salary, that the plaintiff was entitled to participate in the profit sharing plan, or that the plaintiff was entitled to purchase stock in the company, when the record was clear that the plaintiff had no contract for a stated period. The mere reference to the position’s annual salary is not sufficient to invoke the presumption set forth in O.C.G.A. § 34-7-1. Foreman v. Eastern Foods, Inc., 195 Ga. App. 332, 393 S.E.2d 695 (1990). Damages for wrongful discharge. — When an employee is wrongfully discharged before the end of the employee’s term and elects to sue for a breach of the contract of employment, the employee may do so immediately and claim any special injury which the employee may have sustained in consequence of the breach; in such an action the measure of damages is the actual loss from the breach of the contract, and, in estimating the amount, all facts down to the time of the trial may be considered. Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951). No right of action for federal credit union employees. — Federal credit union employees had no right of action for wrongful termination since they had no vested property right under federal law, and there was no state law public exception to the at-will doctrine. Robins Fed. Credit Union v. Brand, 234 Ga. App. 519, 507 S.E.2d 185 (1998).