Alexander Whittington, Jr v. City of Crisfield

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1399
ALEXANDER WHITTINGTON, JR.,
Plaintiff - Appellant,
versus
CITY OF CRISFIELD; CLARENCE BELL,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:05-cv-02783-WMN)
Submitted: September 27, 2006 Decided: November 2, 2006
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.
Alexander Whittington, Jr., Appellant Pro Se. Robin R. Cockey,
COCKEY, BRENNAN & MALONEY, PC, Salisbury, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Alexander Whittington, Jr., appeals the district court’s
order granting summary judgment to the City of Crisfield and
Clarence Bell on Whittington’s state and vicarious liability
claims for breach of employment contract and wrongful discharge;
free speech and procedural and substantive due process claims under
both the United States Constitution and the Maryland Declaration of
Rights; and the deprivation of federal constitutional rights under
42 U.S.C. § 1983 (2000). With regard to all but the breach of
contract claim, we have reviewed the record and find no reversible
error. We conclude that the district court erred, however, in
finding that the City’s policy manual did not, as a matter of law,
create any contractual obligations.
The district court reasoned that although employee
handbooks or other, similar materials may function as unilateral
contracts, making the provisions they contain binding on the
employer, a clear disclaimer prevents them from having that effect.
It then found that because the handbook at issue in this case
contained such a disclaimer, Mr. Whittington was an at will
employee with no expectation to be fired only for cause.
Whittington v. Bell, No. 1:05-cv-02783-WMN (D. Md. Feb. 23, 2006).
In arriving at this conclusion, the court did not address the
language in Elliott v. Board of Trustees of Montgomery County
Community College, 104 Md. App. 93 (Md. App. 1995), to the effect

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that “[n]ot every disclaimer in an employer's employee manual,
however, will effectively disclaim contractual liability.” Id. at
102. It also ignored Haselrig v. Public Storage, Inc., 86 Md. App.
116 (Md. App. 1991). In Haselrig, language in an employee handbook
indicated that, “[t]he relationship between you and PSI is
predicated on an at will basis. That is to say that either the
Employee or the Company may terminate their employment at their
discretion,” and “[i]t should be understood that employment and
compensation can be terminated, with or without cause and with or
without notice at any time, at the option of either the Company or
the Employee.” Id. at 120-21. The court held those provisions
insufficiently clear “disclaimers” to support a motion for summary
judgment on the employee’s wrongful discharge claim, finding that,
viewing the handbook as a whole, there was a genuine issue of
material fact regarding whether an employee justifiably relied on
it in believing he could only be terminated for cause. See id. at
127-28 (finding that “an ambiguity exists when the language in the
provision is, to a reasonably prudent layman, susceptible of more
than one meaning, or where the placement of the provisions in the
handbook has that effect”) (citation omitted).
The “disclaimer” here seems similarly ambiguous, if not more
so. The manual contains a Section 15 which distinguishes between
employees who have been with the Department less than 90 days and
can be fired for any reason not in violation of the City’s Equal

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Employment/Affirmative Action Statement, and those who have been
employed longer than 90 days and can only be discharged for the
reasons specified in Section 17. Section 17 contains a list of 15
reasons. The disclaimer to which the district court refers is
contained at the end of that section. It is preceded by four
asterisks. Four asterisks also follow reasons “N” and “O” on the
list, suggesting that it applies only to them. The full disclaimer
begins “Discipline for any of the foregoing violations may include
. . . .” and indicates that two violations will result in
suspension and three will bring about dismissal. The language
quoted by the district court follows. (E.R. at 61.) As a result,
it is not at all clear that the disclaimer stating that the City
reserves the right to waive or change its policy is not directed
solely at the disciplinary procedures. It does not refer back to
Section 15 at all, or alter the distinction between employees on
the 90 day probation period and those who have been employed
longer.
Moreover, nothing in the handbook contains the kind of clear
and conspicuous language disclaiming any contractual obligation
held considered unambiguous in other cases. See, e.g., Zahodnick
v. International Business Machines Co., 135 F.3d 911, 914-15 (4th
Cir. 1997) (disclaimer “reserv[ing] the right to change all []
benefits, separation plans, programs, practices, policies and rules
at any time” and stating that “[t]he employment relationship . . .

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is at will. This means that the relationship can be ended at any
time for any reason by the employee or by IBM or the Federal
Systems Company” considered unambiguous); Castiglione v. Johns
Hopkins Hosp, 69 Md. App. 325, 338 (Md. App. 1986) (“The handbook
contained a statement that it ‘does not constitute an express or
implied contract’” and “[o]ther provisions of the manual reserved
appellee’s discretion to ‘discipline our workforce’”).
Accordingly, we reverse the grant of summary judgment on the
breach of contract claim and remand that claim for further
proceedings. We affirm the disposition of the other claims for the
reasons stated by the district court. Whittington v. Bell, No.
1:05-cv-02783-WMN (D. Md. Feb. 23, 2006). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART

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