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Employment Law No. 00-60299, 5/27/2003. Click here for the full text of this decision FACTS: David Charles Nuwer filed suit against his former employer and related corporations, seeking damages for breach of his employment contract, wrongful termination, violation of his due process rights relative to termination of his employment, and intentional infliction of emotional distress. The district court granted the defendants’ motion for summary judgment on all claims. HOLDING: Affirmed. Nuwer failed to present any evidence which creates a genuine issue of fact relative to the existence of a term of employment. Because Nuwer failed to produce such evidence, there is no genuine issue concerning the existence of an employment contract. Therefore, Nuwer must be considered an at will employee. Mississippi recognizes a narrow public policy exception to the doctrine of employment at will for employees who refuse to participate in an illegal act or who are terminated for reporting illegal acts of the employer to the employer or anyone else. McArn v. Allied Bruce-Terminix Company, Inc., 626 So.2d 603, 607 (Miss. 1993). Nuwer alleges that the exception applies because it is illegal to change a medical record in the manner directed by the appellee, i.e., to add information to a final medical record without indicating the date the addition was made and by whom the addition was made. He asserts that the appellee never told him to initial and date the corrections he made or to use an addendum to make the changes. In support of this contention Nuwer relies on the affidavit of Jacqueline Hodges, an expert in regulatory guidelines, including medical records documentation. She opined that “adding titles and subtitles such as ‘weekly summaries,’ ‘goals,’ and ‘degrees of progress,’ without any indication of the date and title of the person who made these late entries” is an illegal act as defined in 42 U.S.C. �1320a-7b(a). Hodges based her opinion on her belief that Nuwer was asked “to add late entry information to previously closed records without an indication that these entries were being made at a later date.” There is no evidence that Nuwer was told not to date and initial the changes he made to the records or told not to create an addendum to the records to reflect the changes. Nor is there any evidence that such instructions were given during the December training session conducted by the appellee. It is significant that the materials provided to Nuwer for the December workshop stated in pertinent part that “addendums [sic] should be initialed and dated” and that “[w]hen sufficient space is not available on the original documentation to make corrections/additions, a notation will be made to ‘see addendum.’ The clinician will then utilize a lined form to add the required information.” That information is consistent with that included in the employer’ 1996 “Policy and Procedure Manual” which states “[a]ddendums [sic] may be added upon the need to clarify prior related documentation in compliance with legal and regulatory standards.” Because there is no evidence to support the factual basis for the opinion of Hodges, her opinion does not create a genuine issue relative to the legality of the changes to the therapy records requested by the appellee. Mississippi courts have recognized that even at will employees may have certain contractual employment rights based upon provisions included in the employer’s employment manual. Bobbit v. The Orchard Ltd., 603 So.2d 356 (Miss. 1992). Where an employer distributes to its employees a manual setting forth policies and procedures regarding the reprimanding, suspending or discharging of an employee, the employer is bound to follow the provisions of the manual, even for an at will employee, where there is nothing in the employment contract to the contrary. Because in Bobbit there was no contrary provision, the employee had a claim. By contrast, in Perry v. Sears, Roebuck & Co., 508 So.2d 1086 (Miss. 1987), the Mississippi Supreme Court rejected a similar employee claim because the policy handbook upon which the claim was based contained a specific reservation of the employer’s right to terminate the employment at any time. The parties dispute whether the 1994 or 1996 “Policy and Procedural Manual” applies. No analysis of this issue is necessary. Suffice it to say that each of those manuals includes language explicitly preserving the “at-will” nature of the employment relationship. In describing “Types of Employment,” the 1996 manual states “[e]mployment is considered ‘at will’ and is terminable at the discretion of the employee or employer at any time during the course of employment.” The 1994 manual, in addressing “Professional Conduct Rules” and “Absenteeism and Tardiness,” states “[s]ince all employees are employed ‘at will’, with permission of Corporate Office, any employee may be terminated by supervisor at any time for any reason.” The quoted language clearly indicates that the appellee maintained the right to terminate an employee “at will,” despite the promulgation of procedures applicable to termination of employment. OPINION: Duplantier, J.; Smith, Barksdale and Duplantier, JJ.

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