This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-2723

Anthony (Tony) Koelsch,

Appellant,

vs.

American Red Cross, et al.,

Respondents.

Filed June 4, 1996

Affirmed

Harten, Judge

Ramsey County District Court

File No. CX-94-11139

Fred A. Reiter, Fred A. Reiter & Associates, 3109 Hennepin Avenue S., Minneapolis, MN 55408 (for Appellant)

Marko J. Mrkonich, Andrew J. Voss, Oppenheimer, Wolff & Donnelly, First Bank Bldg., Ste. 1700, 332 Minnesota St., St. Paul, MN 55101 (for Respondents)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

The district court held that language of an employee manual and standard operating procedures neither creates a contract nor alters an employee's at-will employment status. We affirm.

FACTS

Appellant Anthony Koelsch worked as a tissue procurement specialist for respondent American Red Cross until his discharge on April 27, 1994. [1] At that time, the Red Cross had a Personnel Policy and Procedures Manual (Manual) and multi-subject Standard Operating Procedures (SOPs) in effect. Some of the SOPs addressed employee discipline and termination. Koelsch brought a wrongful termination suit, claiming that the Red Cross failed to follow the disciplinary procedures outlined in its Manual and SOPs. [2] The district court granted summary judgment for the Red Cross, concluding that the personnel documents contained an effective disclaimer and did not alter Koelsch's at-will employment status.

D E C I S I O N

The issue presented is whether the district court properly granted summary judgment to the Red Cross. On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court misapplied the law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

In Minnesota, the usual employer-employee relationship is terminable at will. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). Nevertheless, an employee personnel manual can create an implied contract if the language is sufficiently definite. Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983). Limiting language in a manual, such as a disclaimer, however, may preclude contract formation. Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 708 (Minn. 1992); Audette v. Northeast State Bank, 436 N.W.2d 125, 127 (Minn. App. 1989). Whether the language of an employee personnel manual rises to the level of a contract is a question of law that we review de novo. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 856 (Minn. 1986).

Here, the district court determined that the language of the Manual and SOPs is not sufficiently definite to form a contract and that the limiting language precludes contract formation, making Koelsch an at-will employee. We agree.

The Manual has a disclaimer prominently printed in boldface on page one. It states: "The provisions of this manual do not constitute a contract between you and the organization." That page also contains the following:

Employees should understand that all employment at St. Paul Blood Services Region is "at will." This means that an employee may be discharged for any reason deemed sufficient by the management, which reserves to itself the right to determine when discharge or other discipline is appropriate.

See Audette, 436 N.W.2d at 127 (holding disclaimer sufficient that read "[t]he policies described here are not conditions of employment, and the language is not intended to create a contract").

SOP 3.2a, entitled "Addressing Unsatisfactory Job Performance & Behavior," also has clear, unambiguous language that preserves management's discretion to terminate an employee without implementing the disciplinary procedures listed. It describes itself as a "guideline," announces that its procedures "generally" will be used, and states that management is the "sole and final determinate [sic] of whether conduct warrants immediate termination." Permissive language is used throughout the document to describe what supervisors "should" do. SOP 3.2a also states that the list of situations in which it will be used is "not all inclusive" and that it will not be used in circumstances warranting immediate suspension or discharge. This court has held limiting language less specific than that of SOP 3.2a to be sufficient to preclude contract formation. See Simonson v. Meader Distrib. Co., 413 N.W.2d 146, 147 (Minn. App. 1987). In Simonson, the language read:

(1) Management reserves the right to make any changes at any time by adding to, deleting, or changing any existing policy,

(2) The rules set out below are as complete as we can reasonably make them. However, they are not necessarily all-inclusive, because circumstances that we have not anticipated may arise. Some currently unanticipated circumstances may warrant the application of discipline, including discharge, and

(3) Management may vary from the above policies if, in its opinion, the circumstances require.

Id. As in Simonson, we hold that the limiting language detailed above precludes contract formation.

Associated with SOP 3.2a is SOP 3.2b, entitled "Grounds for Immediate Termination." SOP 3.2b does not contain a disclaimer, but its language shows that it must be read in conjunction with SOP 3.2a. It confirms the Red Cross' discretion: "The process described in [SOP 3.2a] will not be utilized for instances of serious employee misconduct which may warrant immediate suspension or discharge." SOP 3.2b goes on to set forth a noncomprehensive ("include, but are not limited to") list of examples that may justify immediate termination. The language of SOP 3.2b, in conjunction with SOP 3.2a, is not sufficiently definite to form a contract.

Koelsch argues that the Manual and the two SOPs are separate self-contained documents that must be read independently. We disagree. If multiple employee documents are consistent, they may be construed together. See Feges, 483 N.W.2d at 708. Although the language of the respective documents differs slightly, the differences are not material.

Finally, we note in passing that Koelsch admitted in his deposition that he was an at-will employee. He was asked:

And directing your attention to [page one of the Manual], did you understand that employees at the St. Paul Blood Services Region were "at will" employees, meaning they could be discharged for any reason deemed sufficient by management and they also had the right or ability to quit at any time?

Koelsch responded, "Yes." Koelsch later explained by affidavit that he thought "at-will" employment meant that he did not have a job for his "entire working life" but that the Red Cross was required to follow its policies and procedures for disciplining or firing him for unsatisfactory performance. A party cannot create a genuine issue of material fact by submitting a self-serving affidavit that contradicts earlier damaging deposition testimony. Banbury v. Omnitrition Int'l, 533 N.W.2d 876, 881 (Minn. App. 1995).

Because we conclude that Koelsch was an at-will employee, we need not address whether the Red Cross had just cause to fire him or whether the Red Cross followed its disciplinary procedure. At-will employees may be terminated for any reason, or no reason, with or without good cause. Here, any issue of good cause is illusory and does not amount to a genuine issue of material fact that would affect the outcome of the case.

We hold that the district court correctly granted summary judgment to the Red Cross.

Affirmed.


Footnotes

[1]The American Red Cross is the parent organization of the St. Paul Blood Services Region (SPBSR). Koelsch worked for St. Paul Tissue Services, a division of the SPBSR. Koelsch sued the American Red Cross, St. Paul Regional Blood Services, American Red Cross Tissue Services, St. Paul Tissue Services (a/k/a North Central Tissue Services), and St. Paul Blood Region. We collectively refer to the organizations as "the Red Cross."

[2]The Manual was written by the SPBSR and the SOPs by Tissue Services.