Workman, Rex A. v. UPS Inc ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2159
Rex A. Workman,
Plaintiff-Appellant,
v.
United Parcel Service, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99-CV-0339-AS--Allen Sharp, Judge.
Argued November 15, 2000--Decided December 12, 2000
Before Posner, Easterbrook, and Kanne, Circuit Judges.
Posner, Circuit Judge. This is a diversity suit,
governed by Indiana law and resolved in favor of
the defendant on summary judgment, for breach of
contract and promissory estoppel. The plaintiff
is an employee of UPS who claims that the company
made a binding promise not to demote him without
just cause and broke its promise. A threshold
question is whether the stakes exceed (more
precisely, whether it is legally possible that
they exceed, The Barbers, Hairstyling for Men &
Women, Inc. v. Bishop, 132 F.3d 1203, 1205 (7th
Cir. 1997)) $75,000; if they do not, the district
court had no jurisdiction. 28 U.S.C. sec.
1332(a). The case had been removed to federal
court from state court, and so the defendant had
the burden of alleging and if necessary proving
that the case was indeed within the federal
diversity jurisdiction. St. Paul Reinsurance Co.
v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir.
1998). The plaintiff contested the allegation,
precipitating an evidentiary hearing that
persuaded the district court that there was
jurisdiction. On appeal the plaintiff repeats in
its jurisdictional statement, but does not argue,
that the district court lacked jurisdiction.
Although challenges to the subject-matter
jurisdiction of a federal court are
conventionally said not to be waivable, so that
such a challenge can be mounted for the first
time on appeal and can indeed be made by the
court itself, it is not true that waiver or
forfeiture plays no role in determinations of
jurisdiction. If the district court makes a
factual determination that supports jurisdiction
and the party opposing jurisdiction does not
challenge the finding, or, as here, does not
press the challenge (for, as we said, the
plaintiff has made no attempt to support his
claim that the requirement of a minimum amount in
controversy has not been met), he forfeits his
objection to the finding, though not to the
inference of jurisdiction drawn from the finding.
Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132,
134-35 (7th Cir. 1996); cf. United States v.
County of Cook, 167 F.3d 381, 388 (7th Cir.
1999). Any other rule would impose an undue
burden on the appellate court by requiring it to
review factual determinations without any help
from the challenger. Of course if the court has
reason to think there is no jurisdiction, maybe
because the parties are colluding to conceal the
absence of jurisdiction from the court, then, as
we held in the Prizevoits case, 76 F.3d at 134-
35, it can order a further evidentiary hearing.
But it is not required to do so when there is no
basis for thinking that the district court’s
finding may be incorrect. And a bare assertion
does not create such a basis.
This rule should not impose a hardship on the
plaintiff who has a modest claim that he does not
want to be forced to litigate in federal court.
He can avoid that fate, in a case in which only
monetary relief is sought, simply by stipulating
that he is not seeking and will neither demand
nor accept any recovery in excess of $75,000
exclusive of costs and interest, In re Shell Oil
Co., 970 F.2d 355 (7th Cir. 1992) (per curiam),
though the stipulation must be made at the time
the suit is filed since jurisdiction is
determined as of then and not later. Id.; Chase
v. Shop ’N Save Warehouse Foods, Inc., 110 F.3d
424, 430 (7th Cir. 1997); St. Paul Reinsurance
Co. v. Greenberg, supra, 134 F.3d at 1253-54. If
he doesn’t make such a stipulation, the inference
arises that he thinks his claim may be worth
more.
On the merits, the plaintiff relies for both his
contractual claim and his claim of promissory
estoppel on a handbook that UPS gives its
employees explaining its employment policies.
Under the law of many states, such a handbook can
create a binding contract if it contains clear
promissory language that makes the handbook an
offer that the employee accepts by continuing to
work after receiving it. See, e.g., Duldulao v.
St. Mary of Nazareth Hospital Center, 505 N.E.2d
314, 318 (Ill. 1987); Snow v. Ridgeview Medical
Center, 128 F.3d 1201, 1208 (8th Cir. 1997)
(Minnesota law); Varrallo v. Hammond, Inc., 94
F.3d 842, 845 (3d Cir. 1996) (New Jersey law).
Indiana has yet to decide whether to follow these
states. Orr v. Westminster Village, 689 N.E.2d
712, 720 (Ind. 1997). We need not speculate about
whether it will. Even if we assume it will, and
even if the UPS handbook could, as we doubt, be
interpreted to contain a clear promise not to
demote an employee except for cause, the
plaintiff’s contractual claim is extinguished by
the statement in the handbook that "this Policy
Book is not a contract of employment and does not
affect your rights as an employee of UPS."
Such a disclaimer, if clear and forthright, as
it is here (in contrast to cases such as United
States ex rel. Yesudian v. Howard University, 153
F.3d 731, 747 (D.C. Cir. 1998)), is a complete
defense to a suit for breach of contract based on
an employee handbook. Freeman v. Chicago Park
District, 189 F.3d 613, 617 (7th Cir. 1999); Doe
v. First National Bank, 865 F.2d 864, 873 (7th
Cir. 1989); Berg v. Norand Corp., 169 F.3d 1140,
1146 (8th Cir. 1999); Zenor v. El Paso Healthcare
System, Ltd., 176 F.3d 847, 863 (5th Cir. 1999);
Eldridge v. Evangelical Lutheran Good Samaritan
Society, 417 N.W.2d 797, 800 (N. Dak. 1987);
Davis v. Times Mirror Magazines, Inc., 697 N.E.2d
380, 388 (Ill. App. 1999). Raymond v.
International Business Machines Corp., 148 F.3d
63, 67 (2d Cir. 1998), seems to reach an opposite
result, but its abbreviated discussion leaves us
in doubt whether the court meant anything more
than that the effect of a disclaimer can be
canceled by evidence not presented here that
casts the disclaimer’s meaning or intended effect
into doubt. Since an employer is under no legal
obligation to furnish its employees with a
statement of its employment policies, we cannot
think of a basis for holding that any statement
it does give them has to be legally binding. The
only effect of such a rule would be to extinguish
employee handbooks.
We are mindful of cases that hold, contrary to
the cases we cited in the preceding paragraph,
that it is not enough for the handbook to
disclaim creating an employment contract; it must
state in addition that the employee can be
terminated at the will of the employer. Russell
v. Board of County Comm’rs, 952 P.2d 492, 503
(Okla. 1997); Jones v. Central Peninsula General
Hospital, 779 P.2d 783, 787-88 (Alaska 1989);
Preston v. Claridge Hotel & Casino, Ltd., 555
A.2d 12, 15 (N.J. App. 1989); Perman v.
Arcventures, Inc., 554 N.E.2d 982, 987 (Ill. App.
1990). Perman, however, is contrary to another
Illinois intermediate appellate case, Davis v.
Times Mirror Magazines, Inc., supra. The state’s
supreme court has yet to address the issue,
although Doyle v. Holy Cross Hospital, 708 N.E.2d
1140, 1145-46 (Ill. 1999), might be read to imply
that a disclaimer which appears in the original
handbook that the employee received, rather than
being added later, is effective to bar the
employee’s claim of breach of contract.
The decisions that refuse to give effect to the
short-form disclaimer strike us as paternalistic
in the extreme. Employment at will is the norm in
the United States. An employee therefore has no
reason to presume that he has tenure, and a
disclaimer that a handbook creates a contract is
a clear statement that if he is fired he can’t
sue for breach of contract. What more is needed?
But there was more here, enough more perhaps to
satisfy the courts that rendered the decisions we
just cited: the statement that the handbook gives
the employee no rights.
One might wonder what function an employee
handbook serves if it does not create enforceable
obligations. The answer is that it conveys useful
information to the employee. And more--for to the
extent that it does contain promises, even if not
legally binding ones, it places the employer
under a moral obligation, or more crassly gives
him a reputational incentive, to honor those
promises. Such promises may not be worth as much
to the promisee as a promise that the law
enforces, but they are worth more than nothing,
and it is nothing that the employee can expect if
employers must choose between nothing and giving
up employment at will.
A disclaimer that is effective against a claim
of breach of contract is also effective, we
believe, against a claim of promissory estoppel.
Thacker v. Menard, Inc., 105 F.3d 382, 385 (7th
Cir. 1996); Orback v. Hewlett-Packard Co., 97
F.3d 429, 433 (10th Cir. 1996); Bouwens v.
Centrilift, 974 P.2d 941, 947 (Wyo. 1999). (The
last two cases are both handbook cases.) The
function of the doctrine of promissory estoppel
is to provide an alternative basis to
consideration for making promises legally
enforceable. Consolidation Services, Inc. v.
Keybank Nat’l Ass’n, 185 F.3d 817, 822 (7th Cir.
1999). A promise can be legally binding because
it is supported by consideration or because it
induces reasonable reliance, but in either case
the promisor is free by a suitable disclaimer to
deny any legally binding effect to the promise.
To put this differently, consideration or
reliance is a necessary but not a sufficient
condition of the enforceability of a promise.
Another necessary condition is that the promise
be worded consistently with its being intended to
be enforceable. Bouwens v. Centrilift, supra, 974
P.2d at 947; Phipps v. IASD Health Services
Corp., 558 N.W.2d 198, 204 (Iowa 1997). Because
of the disclaimer, that condition was not
fulfilled in this case.
Affirmed.