         IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                   AT JACKSON
              _______________________________________________________
                                       )
JERRY WILLIAMS,                        )     Shelby County Circuit Court,
                                       )     No. 52045 T.D.T
   Plaintiff/Appellee.                 )

VS.
                                       )
                                       )     C.A. No. 02A01-9608-CV-00190
                                                                            FILED
                                       )
MEMPHIS HOUSING AUTHORITY, )                                                June 2, 1997
                                       )
   Defendant/Appellant.                )                                  Cecil Crowson, Jr.
                                                                          Appellate C ourt Clerk
                                       )
______________________________________________________________________________
MABLE MONDAY,                          )     Shelby County Circuit Court
                                       )     No. 51932 T.D.
   Plaintiff/Appellee.                 )
                                       )
VS.                                    )     C.A. No. 02A01-9610-CV-00231
                                       )
MEMPHIS HOUSING AUTHORITY, )
                                       )
   Defendant/Appellant.                )
______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.
Honorable Wyeth Chandler, Judge

Gregory L. Perry
Attorney for Defendant/Appellant.

Alan Bryant Chambers,
Jeff A. Crow, Jr.
CHAMBERS, CROW, DURHAM & HOLTON, LAWYERS, Memphis, Tennessee
Attorney for Plaintiffs/Appellees.


OPINION FILED:

REVERSED AND REMANDED

                                          FARMER, J.
HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)
                 Defendant Memphis Housing Authority (MHA) appeals several orders entered by the

trial court in favor of two of MHA’s former employees, Plaintiffs/Appellees Jerry D. Williams and

Mable Monday (collectively, the Employees). In separate actions filed below, the Employees sued

MHA for breach of employment contract. In both cases, the trial court entered orders granting the

Employees’ motions for summary judgment based on the court’s conclusion that MHA’s Manual

of Operations constituted part of the employment contract between the parties and, further, that

MHA breached this contract by terminating the Employees without just cause. Amending the

pleadings to conform to the proof in the records, the trial court’s foregoing orders also granted

summary judgment to the Employees on their claims that, in terminating the Employees, MHA

violated their rights to substantive and procedural due process.1 After conducting a subsequent

hearing on the issue of remedies, the trial court entered final orders granting the Employees back pay

and reinstatement to their former positions with MHA.2           Upon MHA’s motion, this court

consolidated MHA’s appeals of the trial court’s judgments in favor of Williams and Monday because

the appeals involve common questions of law and fact.3



                 On appeal from the trial court’s final judgments, MHA contends that the trial court

erred in (1) permitting the Employees to amend their complaints to assert claims for substantive and

procedural due process violations; (2) granting the Employees’ motions for summary judgment;

(3) awarding the Employees back pay and reinstatement; and (4) denying MHA’s motions for leave

to renew its motions for summary judgment. We conclude that a resolution of the second issue is

dispositive of this appeal, and we reverse the trial court’s judgments.



                 For purposes of the Employees’ summary judgment motions, the parties stipulated

to the following facts. MHA hired Monday for the position of Executive Secretary in September

1989. Williams was hired as MHA’s Director of Security in April 1991. MHA’s operation is



       1
         See U.S. Const. amends. V, XIV; 42 U.S.C. § 1983 (1988); see also Tenn. Const. art. I,
§ 8. The Employees’ initial complaints did not include these due process claims, but the
Employees later sought to add these claims by filing motions to amend their complaints. The
trial court’s orders effectively granted the Employees’ motions to amend.
       2
        The trial court specified that Williams’ reinstatement was contingent upon Williams’
former position becoming available.
       3
           See T.R.A.P. 16(b).
partially governed by federal law and by federal rules and regulations implemented by the United

States Department of Housing and Urban Development (HUD). Between November 1991 and

February 1992, HUD’s district area office in Nashville conducted a Comprehensive Coordinated

Management Review of MHA. As a result of this review, HUD issued a report in March 1992 which

concluded that Williams and Monday had been improperly hired in that their employment

applications were not submitted within the advertised time frames. Specifically, Williams submitted

his application prior to the date MHA posted its solicitation for the position of Director of Security,

while Monday submitted her application after the advertised closing date for the position of

Executive Secretary. Based on these procedural violations in MHA’s hiring of Williams and

Monday, HUD instructed MHA to terminate the Employees. As instructed, MHA terminated the

Employees in April 1992. In accordance with the grievance procedures outlined in MHA’s Manual

of Operations, both Employees filed grievances, which ultimately were denied by MHA’s Board of

Commissioners.



               The Employees subsequently filed complaints against MHA for breach of

employment contract. In their complaints, the Employees alleged that MHA’s Manual of Operations

constituted an employment contract between the parties and that MHA had breached this

employment contract by terminating the Employees without just cause. Based on this argument, the

Employees moved for summary judgment on their breach of employment contract claims, as well

as their claims that they had been deprived of property rights without due process of law. After

reviewing the Manual of Operations and the stipulated facts, the trial court agreed with the

Employees’ contention and, accordingly, entered summary judgment in favor of the Employees. The

dispositive issue in this appeal, therefore, is whether MHA’s Manual of Operations constituted an

employment agreement which contractually limited MHA’s right to terminate the Employees.



               Because Tennessee adheres to the “employee-at-will” rule, a presumption arises in

this state that an employee is an employee at will. Davis v. Connecticut Gen. Life Ins. Co., 743 F.

Supp. 1273, 1280 (M.D. Tenn. 1990). Under this well-established rule, a contract for employment

for an indefinite term is considered a contract at will which can be terminated by an employer (or

an employee) at any time without cause. Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn.

App. 1985); accord Graves v. Anchor Wire Corp., 692 S.W.2d 420, 422 (Tenn. App. 1985);
Whittaker v. Care-More, Inc., 621 S.W.2d 395, 396 (Tenn. App. 1981).



               In recent years, the courts of this state have recognized, at least in theory, that an

exception to the at-will rule may arise where an employer promulgates an employee handbook which

confers certain benefits on employees4 or which limits the employer’s right to terminate employees.5

In order to be considered part of the employment contract, however, the handbook must contain

specific language showing the employer’s intent to be bound by the handbook’s provisions. Smith v.

Morris, 778 S.W.2d 857, 858 (Tenn. App. 1988). Unless the employee handbook contains specific

guarantees or binding commitments, the handbook will not constitute a contract. Whittaker v.

Care-More, 621 S.W.2d at 397. As stated by one court, “the language used must be phrased in

binding terms, interpreted in the context of the entire handbook, and read in conjunction with any

other relevant material, such as an employment application.” Claiborne v. Frito-Lay, Inc., 718 F.

Supp. 1319, 1321 (E.D. Tenn. 1989). Our research has revealed few instances in which appellate

courts of this state have concluded that the language of an employee handbook was binding on an

employer. See Williams v. Maremont Corp., 776 S.W.2d 78 (Tenn. App. 1988) (holding that terms

of employee handbook were binding on employer where handbook provided that employees would

be recalled in order of seniority); Hamby v. Genesco, Inc., 627 S.W.2d 373 (Tenn. App. 1981)

(holding that employee handbook’s “rollback” provision was binding on employer where handbook

provided that, for so long as employment relationship continued, handbook contained guaranteed

policies, practices, and procedures of employer); see also Hooks v. Gibson, 842 S.W.2d 625 (Tenn.

App. 1992) (concluding that employee handbook became part of employment contract where

handbook was promulgated pursuant to agreement between employer and state and employees were

third-party beneficiaries of such agreement).




       4
        See Smith v. Morris, 778 S.W.2d 857 (Tenn. App. 1988) (compensation for
accumulated unused sick leave); Williams v. Maremont Corp., 776 S.W.2d 78 (Tenn. App.
1988) (recall provision); Hamby v. Genesco, Inc., 627 S.W.2d 373 (Tenn. App. 1981) (rollback
provision); see also Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319 (E.D. Tenn. 1989) (seniority
provision); MacDougal v. Sears, Roebuck & Co., 624 F. Supp. 756 (E.D. Tenn. 1985) (service
allowance).
       5
        See Bringle v. Methodist Hosp., 701 S.W.2d 622 (Tenn. App. 1985); Graves v. Anchor
Wire Corp., 692 S.W.2d 420 (Tenn. App. 1985); Whittaker v. Care-More, Inc., 621 S.W.2d 395
(Tenn. App. 1981); see also Gregory v. Hunt, 24 F.3d 781 (6th Cir. 1994); Davis v. Connecticut
Gen. Life Ins. Co., 743 F. Supp. 1273 (M.D. Tenn. 1990).
                 The employee handbook at issue in this case is MHA’s Manual of Operations. The

determination of whether the Manual of Operations constitutes part of MHA’s employment contract

with Williams and Monday depends upon the specific language used in the Manual. See Davis v.

Connecticut Gen. Life Ins. Co., 743 F. Supp. at 1279; see also Gregory v. Hunt, 24 F.3d 781, 785

(6th Cir. 1994); MacDougal v. Sears, Roebuck & Co., 624 F. Supp. 756, 759 (E.D. Tenn. 1985).

Accordingly, in order to make this determination, we have examined the Manual’s specific

provisions. The Manual’s forward states:



                 This is the official Manual of Operations for the Memphis Housing
                 Authority. Its purpose is to arrange for ready reference a review of
                 the policies, relationships, and procedures of [MHA]. It is intended
                 primarily as a guide for employees in the discharge of their duties.



Article IV of the Manual, entitled AMENDMENTS, provides that:



                 The Manual of Operations and the By-Laws of [MHA] may be
                 amended by any special or regular meeting of the Board of
                 Commissioners by a simple majority of said Commissioners, there
                 being a quorum present.



Section 208 of the Manual, entitled EMPLOYMENT AND PERSONNEL REGULATIONS,

provides that:



                 All employment and personnel procedures shall be regulated by the
                 provisions hereinafter provided in this section and elsewhere in this
                 Manual.



In this section, the Manual lists four reasons for termination of services: resignation, dismissal for

just cause, retirement, and reduction in force. The Manual also lists causes for which an employee

may be suspended, demoted, or terminated, and it divides the causes into two categories, major

infractions and other infractions. After listing examples of infractions, the Manual states:



                 None of the aforementioned Major or Other Infractions will be
                 deemed to prevent the dismissal, demotion, suspension, or
                 disciplinary action of an employee for just cause. JUST CAUSE shall
                 exist when [MHA] has a reasonable basis for the action taken even
                 though such cause is not contained in those mentioned above.
Finally, Section 401 of the Manual, entitled PURPOSE, provides that:



               This Manual of Operations contemplates that every fucntion [sic] of
               [MHA] shall be carried out by its members and employees strictly in
               accordance with policies and procedures adopted by [MHA], and
               incorporated in the Manual.



               After carefully reviewing the specific language contained in MHA’s Manual of

Operations, we conclude that the Manual’s provisions are insufficient to overcome the presumption

that Williams and Monday were at-will employees. The Employees contend that the Manual

contains sufficient guarantees to be binding upon MHA because the Manual specifically

contemplates that all MHA functions “shall be carried out by its members and employees strictly in

accordance with” the Manual’s policies and procedures and, further, because the Manual states that

“[a]ll employment and personnel procedures shall be regulated by” the Manual’s provisions. If this

language evidences an intent on the part of MHA to be bound by the Manual’s provisions, however,

such intent is contradicted by the existence of a provision in the Manual giving MHA’s Board of

Commissioners the authority to amend the Manual at any special or regular Board meeting. “Any

language that preserves a unilateral right on the part of the employer to alter or modify the contents

of [a] handbook” generally precludes the handbook from being considered part of the employment

contract. Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989); see, e.g.,

Smith v. Morris, 778 S.W.2d 857, 858 (Tenn. App. 1988) (handbook’s language clearly showed

“that modifications were anticipated”); Bringle v. Methodist Hosp., 701 S.W.2d 622, 624 (Tenn.

App. 1985) (handbook reserved to employer “right to change and abolish policies, procedures, rules

and regulations”); Gregory v. Hunt, 24 F.3d 781, 786 (6th Cir. 1994) (handbook provided that

policies were “subject to change by management, unilaterally and without notice”); Davis v.

Connecticut Gen. Life Ins. Co., 743 F. Supp. 1273, 1279 (M.D. Tenn. 1990) (handbook reserved

to employer “right to change any or all such policies, practices and procedures in whole or in part

at any time, with or without notice”). Such language instead indicates “that the handbook simply

constitute[s] a set of guidelines or a source of information for an employee.” Claiborne v. Frito-

Lay, 718 F. Supp. at 1321. In the case of MHA’s Manual of Operations, this conclusion is further

supported by language indicating that the Manual’s purpose “is intended primarily as a guide for
employees in the discharge of their duties.”



               Even if the Manual of Operations’ language demonstrates an intent on the part of

MHA to be bound by the Manual, we find nothing in the Manual’s provisions which would alter the

Employees’ status as at-will employees. First, we note that the Manual did not entitle the Employees

to a specific term of employment because the Manual’s provisions gave the Employees no assurances

of employment for any definite time. See Graves v. Anchor Wire Corp., 692 S.W.2d 420, 421

(Tenn. App. 1985); Whittaker v. Care-More, Inc., 621 S.W.2d 395, 397 (Tenn. App. 1981); accord

Davis v. Connecticut Gen. Life Ins. Co., 743 F. Supp. 1273, 1280 (M.D. Tenn. 1990) (concluding

that, because Tennessee still clings to “employee-at-will” rule, presumption that employee is at will

must be overcome by specific language guaranteeing definite term of employment). Moreover,

contrary to the Employees’ argument, the terms of the Manual did not limit MHA’s right to terminate

the Employees by requiring that any termination of services be for one of the enumerated reasons,

such as just cause. Although the Manual listed only four reasons for termination, including

resignation, dismissal for just cause, retirement, and reduction in force, this list did not purport to

be exclusive. Indeed, the Manual’s inclusion of reduction in force to this list contemplates that

certain business exigencies may arise which necessitate dismissing employees for reasons other than

just cause. In this case, therefore, we can find no language that unequivocally overcomes the

presumption that Williams and Monday were at-will employees. See Gregory v. Hunt, 24 F.3d at

787; Davis v. Connecticut Gen. Life Ins. Co., 743 F. Supp. at 1280.



               Based on the foregoing analysis, we conclude that the trial court erred in ruling that

MHA’s Manual of Operations constituted an employment contract which limited MHA’s right to

terminate the Employees; therefore, we reverse the trial court’s orders entering summary judgment

in favor of the Employees on their claims for breach of employment contract. This holding leads us

to the related conclusion that MHA’s Manual did not grant the Employees any protectible property

interest in continued employment with MHA. See Gregory v. Hunt, 24 F.3d at 787. Accordingly,

we also reverse that portion of the trial court’s orders entering summary judgment in favor of the

Employees on their due process claims. Finally, our disposition of the Employees’ claims requires

that the trial court’s final orders granting back pay and reinstatement be reversed.
               The trial court’s judgments are reversed and these causes remanded for further

proceedings. Costs of this appeal are taxed one-half to Williams and one-half to Monday, for which

execution may issue if necessary.



                                                    ____________________________________
                                                    FARMER, J.



______________________________
HIGHERS, J. (Concurs)



______________________________
LILLARD, J. (Concurs)
