Opinion
Civil No. 00-700-KI
August 16, 2001
Don S. Willner, Edward J. Hill, Willner Wren Hill U'Ren, LLP for Plaintiffs.
David J. Riewald, Mitchell J. Cogen, Bullard Smith Jernstedt Harnish for Defendant.
OPINION AND ORDER
Plaintiff Todd Snodgrass alleges that his former employer, defendant Lanphere Enterprises, Inc. ("Lanphere") breached an oral contract made to him concerning a job offer. Before the court is defendant's motion for summary judgment (#60). For the reasons below, I grant the motion.
FACTS
Lanphere owns several automobile dealerships in the Portland area. In mid-April 1999, David Jachter, the general manager of Lanphere's Beaverton Honda dealership, and John Hawkins, Lanphere's Chief Operating Officer, went to Las Vegas for a national meeting of Honda dealers. Snodgrass was working in Las Vegas at the time. Jachter and Hawkins met with Snodgrass at the Bellagio Hotel to discuss potential employment with Lanphere.
At that meeting, Jachter orally offered Snodgrass a job with the following terms: (1) on the first day on the job, Snodgrass would be made general sales manager of the Beaverton Infiniti dealership; (2) Snodgrass would be guaranteed a minimum compensation of $18,000 to $20,000 a month; (3) Lanphere would pay half of Todd and Kathy Snodgrass' moving expenses; and (4) Lanphere would pay for a hotel for up to 60 days while the Snodgrasses looked for a home. There is no dispute that Lanphere fulfilled the third and fourth terms.
Lanphere contests that these are the terms of the oral agreement but accepts Snodgrass' memory of the terms for purposes of this motion.
Snodgrass accepted the offer and came to work on April 27, 1999. When he arrived, Jachter told Snodgrass that he would be hired as the new car manager at the Beaverton Honda dealership, rather than the general sales manager at Beaverton Infiniti. He also learned that his compensation would be under $18,000 a month. Snodgrass signed paperwork with the new job title. Despite this knowledge, Snodgrass began working for Lanphere on that day under the new job title and compensation arrangement. On May 4, 1999, Snodgrass signed an employment agreement for commission salesperson which states that it supersedes all prior agreements and understandings. The written agreement explains some specifics on how commissions will be paid but does not state a job title or any minimum income level.
At a company dinner party which took place in celebration of a high level of business transacted in August, Jachter told Kathy Snodgrass that Todd Snodgrass would be taking over the Infinity store between the first and fifteenth of September. In early September, Snodgrass attended an interview of a new candidate. Jachter introduced Snodgrass as the used car manager and Richard Lennard as the general sales manager over all the Lanphere dealerships. This made it clear to Snodgrass that he would not be getting the promised job. Snodgrass quit on November 14, 1999.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
DISCUSSION
Snodgrass' sole claim is for breach of contract. Lanphere contends that the Bellagio agreement was modified when Snodgrass went to work for Lanphere on April 27, knowing that he would not be the Infiniti general sales manager and that he would not be paid at least $18,000 a month. Thus, Lanphere argues that summary judgment should be granted against the claim for breach of the Bellagio agreement.
Snodgrass contends that any modification does not extinguish his right to recover damages for breach of the Bellagio agreement or for failure to perform the ongoing promise to make him a general sales manager if he performed satisfactorily and the position became available. Snodgrass also argues that he mitigated his damages for breach of the Bellagio agreement by working for Lanphere under the modified terms of employment.
An employer is free to set the terms and conditions of employment which an employee may accept or reject. By continuing to work after an employee is aware of a change, he accepts the modification in the employment contract. Brett v. City of Eugene, 130 Or. App. 53, 57, 880 P.2d 937 (1994) (prospective change in ability to accrue compensatory time), rev. denied, 320 Or. 507 (1995); Page v. Kay Woolen Mill Co., 168 Or. 434, 439, 123 P.2d 982 (1942). Page is similar to the situation before me. Plaintiff had a contract for several years under which he was paid a bonus equal to 6% of the net profits. After a dispute about the bonus, management told plaintiff that it would pay the bonus for the year just ended but there would be no future bonuses. The court held that when plaintiff continued to work after being told that he would receive no further bonuses, he agreed to the modification and could not sue to collect bonuses for the next two years. Id. at 439-41.
There is no dispute that Snodgrass was employed at will. He agreed to the modification of the oral contract made at the Bellagio when he began to work for Lanphere at the lesser title and reduced compensation. It can be argued that Lanphere "strung him along" by continually asking for more time to put him into the promised position. A jury could find this to be a delay in the starting date for the performance of the contract. Even considering all evidence of on-going promises in the light most favorable to Snodgrass, by mid-September the promises had ended and it was clear to him that he would not be getting the general sales manager job at Infiniti. By this point at the latest, Snodgrass agreed to the modification by continuing to work at the lesser job. Snodgrass may not collect for breach of contract on the original Bellagio contract because it was extinguished when it was modified.
Snodgrass' contention that he was required to accept the modified employment contract to mitigate his damages is not persuasive. In Filter v. City of Vernonia, 81 Or. App. 585, 726 P.2d 946 (1986), rev. denied, 302 Or. 594 (1987), the employer terminated plaintiff and then offered to rehire her on the condition that she accept the new duties which prompted the dispute resulting in her termination. The court held that plaintiff had no obligation to accept that position. Id. at 590. "Accepting the offer of reemployment could have resulted in a modification of plaintiff's employment contract with the city, thereby compromising her claim contesting the appropriateness of the additional court reporter duties." Id. at 590-91.
In summary, Snodgrass agreed to the modification of his employment contract by mid-September. Consequently, he cannot sue for breach of the original contract. Summary judgment is granted against the claim.
CONCLUSION
Defendant's motion for summary judgment (#60) is granted. This action is dismissed with prejudice.