Hartnett v. Papa John's Pizza USA, Inc. (912 F. Supp. 2d 1066, 2012)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Papa John’s Motion for Summary Judgment Re: Plaintiffs Breach of Contract Claim, filed August 29, 2012 (Doc. 92)(“MSJ”). The Court held a hearing on October 15, 2012. The primary issues are: (i) whether a reasonable jury could find that Defendant Papa John’s Inc., by its words and conduct, modified an express at-will employment contract, and communicated to Plaintiff Timothy Hart-nett that he would only be terminated for cause and in accordance with specified procedures; and (ii) whether, if an implied contract exists that modified the express contract, a genuine issue of material fact exists whether Papa John’s terminated Hartnett in accordance with that implied contract. Because the Court concludes that genuine issues of material fact are present and evidence exists to support all of Hartnett’s claims, the Court will deny Papa John’s motion. The Court is not persuaded that Papa John’s is entitled to judgment as a matter of law that no implied contract for employment exists that modified Hartnett’s at-will status. Although Papa John’s Management Agreement, filed August 29, 2012 (Doc. 92-3)(“Management Agreement”), and Papa John’s Corporate Restaurant Team Member Handbook, filed August 29, 2012 (Doc. 92-2)(“Team Member Handbook”), expressly provide Hartnett’s employment to be at-will, neither document disclaims the possibility of modifying Hartnett’s at-will status through either written or oral communications. Additionally, Hartnett attended five mandatory training workshops, at which he was taught that certain procedures must be followed prior to terminating an employee in certain instances, and was taught that guidelines, including investigating circumstances and communicating with the investigated team member, should be followed in a termination process. When Hartnett was promoted to a Director of Operations in 2003, he was told by a supervisor, Dan Braafhart, that he need not worry about leaving Papa John’s, as long as Hartnett continued to perform and did not violate company policy or procedures. Lastly, Hartnett, received a memorandum from a supervisor who oversaw his own termination process, Memorandum from Rick Woods Re: People Policies, filed September 12, 2012 (Doc. 101— 18)(“Woods Memo.”), which established mandatory policies and procedures that must be. followed by Directors of Operations, such as Hartnett, and applied to the termination of management team members, such as Hartnett. In light of the totality of Hartnett’s relationship with Papa John’s, the Court concludes that a reasonable jury could find that Hartnett could objectively and reasonably rely on Papa John’s words and conduct for Hart-nett’s expectation that his employment would only be terminated for cause, and after certain procedures were followed. Additionally, evidence exists to support Hartnett’s contention that Papa John’s lacked sufficient cause to terminate Hart-nett, because the evidence Papa John’s relied upon in terminating Hartnett may not be objectively reasonable. Lastly, if an implied contract to follow certain procedures in terminating Hartnett was created, Hartnett has put forward evidence showing that Papa John’s did not follow some procedures that could be part of that implied contract. Accordingly, the Court denies Papa John’s motion for summary judgment.

FACTUAL BACKGROUND

The parties do not contest each other’s facts. Papa John’s hired Hartnett on August 17, 1998. See MSJ ¶ 1, at 2. Papa John’s terminated Hartnett on October 17, 2007, at which time Papa John’s employed him as a Senior Director of Operations. See MSJ ¶¶ 2, 4, at 2. Papa John’s terminated Hartnett for falsifying company documents, in violation of Hartnett’s responsibility to comply with Papa John’s policies and procedures. See MSJ at ¶¶ 3-4, at 2; Response ¶¶ 1-2, at 1 (citing Deposition of Robert Wesley Smith, taken May 16, 2012, filed Sept. 12, 2012 (Doc. 101-6)(“Smith Deposition”)).

I. Hartnett’s Management Agreement.

Hartnett’s Management Agreement with Papa John’s, signed on the day he was hired, provides:

Notice to Employees. This document does not grant, create or extend any contractual rights the above employee [sic] with respect to (i) such employee’s current or future employment, or (ii) any benefits in connection with such employment. The employee or the employer may sever the employment relationship at any time or for any reason at all.

Management Agreement, ¶ 6, at 1. Hart-nett signed the Management Agreement, affirming that the contract was executed and delivered to him, and that he relied upon the agreement to explain his “consideration [for] such employment” with Papa John’s. Management Agreement at 1.

2. Papa John’s Corporate Restaurant Team Member Handbook.

Papa John’s Corporate Restaurant Team Member Handbook provides that:

Neither this Code nor any of the policies described in this Code may be construed as an employment contract. Papa John’s does not create any contractual rights for any team member by issuing this code or other policies.

Employment At Will

Employment with Papa John’s is entered into voluntarily. Team members may resign at any time, for any reason, with or without notice. Similarly, Papa John’s is free to conclude the employment relationship at any time.

Neither this handbook nor any of the provisions contained in the handbook can or should be construed as giving rise to any sort of contractual or legal obligation on the part of Papa John’s. This team member handbook supersedes all previous team member handbooks. The effective date of this handbook is June 2006.

MSJ ¶ 17, at 4-5 (citing “Team Member Handbook”). Additionally, in the section of the handbook titled “Standards of Conduct and Corrective Action,” the handbook states:

Violation of Papa John’s standards of conduct in one of the following forms of corrective action [sic]: separation of employment, demotion, written warning, verbal warning, coaching or training. In arriving at the appropriate decision for corrective action, the following will be considered:

• the seriousness of the infraction;

• the past work record for the team member; and

• the circumstances surrounding the matter.

Team Member Handbook at 4 (Doc. 101-9). The Team Member Handbook then provides a “partial list of infractions which may result in corrective action up to and including separation of employment,” after which the Team Member Handbook states: “This list is intended to be representative of the types of activities which may result in corrective action. It is not intended to be comprehensive and does not alter the employment at-will relationship between the team member and Papa John’s.” Team Member Handbook at 5 (Doc. 101-9).

3. Dan Braafhart’s Statements to Hartnett.

Hartnett believed, while employed with Papa John’s, that his employment would not be terminated except for cause or under performance. See MSJ ¶ 13, at 3 (citing Hartnett Depo. at 62:20-63:3). This belief is based largely on a conversation Hartnett had with his then Regional Vice President, Dan Braafhart, in 2003, when Hartnett was given a promotion and asked to sign a Confidentiality and Non-Competition Agreement. See MSJ ¶ 13, at 3 (citing Hartnett Depo. at 62:20-63:3); Response ¶ 5, at 2. Hartnett was concerned about the terms of the agreement, and wanted more time to consider executing agreement, but Braafhart told Hartnett: “Don’t worry about it. As long as you perform, don’t violate any policies and procedures, you’ll be here forever.” MSJ ¶ 13, at 3 (citing Hartnett Depo. at 63:1-3); Response ¶¶ 4-5, at 2. Hartnett construed Braafhart’s statements to mean that he would always work for Papa John’s, and thus Hartnett believed he did not need to worry about any non-compete clauses, and on that belief Hartnett signed the agreement. See MSJ ¶ 14, at 4; Response ¶ 6, at 2.

Hartnett’s “Confidentiality and Non-competition Agreement,” with • Papa John’s, executed in 2003, does refer to Hartnett’s at-will employment status. MSJ ¶ 18, at 5 (citing the Confidentiality and Non-Competition Agreement, filed Aug. 29, 2012 (Doc. 92-5)(“CNC Agreement”)). The CNC Agreement generally required Hartnett to not work in the pizza industry for eighteen months after leaving Papa John’s. See Response ¶ 3, at 1 (citing Hartnett Dep. at 62:22-23). The CNC Agreement states that signing executing the CNC Agreement is “a condition to the employment of Employee.” CNC Agreement ¶ 4, at 3.

4. The Managing Within the Law Workshops.

Hartnett believed, based on Papa John’s internal program, “Managing Within the Law,” he would only be terminated for cause or under performance.' MSJ ¶ 15, at 4. Managing Within the Law is an annual workshop that Papa John’s’ human resources officers lead, and which Papa John’s requires its managers and officers to attend. See Response ¶¶ 7, 9, at 2. Hartnett attended the workshop five times over the course of his employment with Papa John’s. See Response ¶ 8, at 2. Hartnett received a participant’s guide for the workshop. See Response ¶ 10, at 2. The human resources officers at the workshops informed Hartnett that Papa John’s primarily terminated employees for violating company policy and poor performance, but did not give other reasons for termination. See Response ¶ 11, at 2 (citing Training Guide at 6, 22, Smith Dep. at 63:11-12). Papa John’s human resources officer did not state during the Managing Within the Law seminar, nor did the Training Guide state, that employment with Papa John’s was at-will. See Response ¶ 12, at 2-8 (citing Training Guide). The human resources officers at Managing Within the Law did. not state that the policies and procedures in the workshop would supercede the Team Member Handbook. See Response ¶ 13, at 3 (citing Training Guide). Hartnett believed from Managing Within the Law that he would receive due process if he were investigated for a violation of company policy; Hartnett was told that due process meant that Papa John’s follows a fair process when providing corrective action. See Response ¶ 14, at 3 (citing Training Guide at 2-4;Hartnett Dep. at 68:3-18, 69:19-25, 70:1-2).

Hartnett was told at Managing Within the Law that the three guidelines for due process are: (i) act fairly; (ii) act consistently; and (iii) act legally. See Response ¶ 15, at 3. Hartnett was told that to act fairly meant taking corrective. action on legitimate, non-discriminatory reasons, taking into account a team member’s performance record and past infractions when determining the appropriate corrective action, and determining if any circumstances beyond the team member’s control affected the team member’s behavior. See Response ¶ 15, at 3. Hartnett was told that to act consistently meant being consistent in applying corrective action, and ensuring that managers are not “coming down” especially hard on a- team member because of personal dislike of discriminatory facts. Response ¶ 15, at 3. Hartnett was told that to act legally meant acting promptly after a violation occurs, documenting the infraction, ensuring that any corrective action is fair, and asking oneself whether a reasonable person could interpret the corrective action as retaliation or whether the corrective action fits the offense. See Response ¶ 15, at 3. Hartnett was taught at Managing Within the Law that Papa John’s’ company guidelines would be applied equally to all employees, and managers should not ignore infractions committed by team members whom the managers personally like. See Response ¶ 16, at 3 (citing Training Guide at 6). Managing Within the Law taught Hartnett that, before terminating an employee for violating a company policy, certain actions were to be taken, including: (i) gather facts, interview witnesses, determine if the employee knew of the policy violation, and investigate any extenuating circumstances; (ii) decide if separation from the company is appropriate by ensuring that termination will be consistent with treatment of employees in similar situations, and ensuring that termination is both legal and fair to the employee; and (iii) contact human resources or a superior to determine if they support terminating the employee. See Response ¶ 17, at 4 (citing Training Guide at 22). Managing Within the Law taught Hartnett that an objective standard — “only a reasonably prudent man-would approve the termination” — would be used to determine if termination was proper. See Response ¶ 19 (citing Training Guide at 3). Hartnett believes, from Managing Within the Law, that after an investigation into an infraction was complete, human resources would thoroughly review the investigation before terminating an employee. See Response ¶ 20, at 4. Hartnett believes, from Managing Within the Law, that, Papa John’s human resources would not approve a termination that did not conform with the steps provided in Managing Within the Law. See Response ¶ 21,-at .4 (citing Hartnett Dep. at 68:3-18, 69:17-25, 70:1-8).

The Training Guide from Managing Within the Law discusses “Due Process” at the beginning of the materials and provides three “Guidelines for Following Due Process.” Training Guide at 5-6. The Training Guide does not state that the guidelines are mandatory, but the speaker is directed to state: “Because it’s important to be fair to team members, follow these guidelines.” Training Guide at 5-7. The speaker is not directed to state that the guidelines are discretionary; however, the speaker is directed to state that the guidelines include:

• Informing team members of unsatisfactory performance as soon as possible

• Giving team members an opportunity to respond

• Developing a plan to improve the behavior

• Ensuring documentation outlines the consequences for continued unsatisfactory performance ...

• Allowing team members a reasonable period of time to meet behavior or performance goals

• Following through on documented consequences

Training Guide at 5. Under the “Three Guidelines for Following Due Process” section, text purportedly from the “Participant’s Guide,” reads:

1.Act Fairly

• Take corrective action based on legitimate, non-discriminatory business reasons.

• Take into account a team member’s performance record and prior infractions when determining corrective action.

• Determine if any circumstances beyond the team member’s control affected the team member’s behavior.

• Determine if the team member knew and understood the penalties for the rule violation.

• Maintain perspective, don’t treat minor infractions the same as serious ones.

2. Act Consistently

• Be consistent in applying corrective action when a rule or standard is violated.

• Handle the same or similar infractions in the same way.

• Ensure managers are “not coming down” especially hard on a team member because of personal dislike or discriminatory factors.

• Ensure managers are not “looking the other way” on infractions of team members they personally like.

3. Act Legally

• Act promptly after a violation occurs, even if you’re just giving a verbal warning.

• Document the infraction, when it happened, the corrective action taken and when corrective action was taken [sic] Document as appropriate (managers of company owned restaurant send in documents as needed). Franchise managers send in documents as is appropriate.

• Ensure corrective action is fair and consistent in terms of what’s happened with other team members in the past.

• Ask whether a reasonable person could interpret your corrective action as retaliation for exercising legal rights.

• Ask whether a reasonable person could interpret your corrective action as discriminatory.

• Ask whether a reasonable person would feel your “corrective action” fits the “offense.”

Training Guide at 5-6.

The Training Guide also contains a page labeled “Participant’s Guide Text;” that is supposedly from the materials given to workshop attendees. Training Guide at 12. That page lists “Suggested Form of Corrective Action,” and describes different corrective action that may be used, but does not contain any words indicating that a certain corrective action must, as a matter of established policy, be used to respond to a particular action. Training Guide at 12. In the section that apparently outlines group activities to be used during the workshop, one particular activity suggests that “separation” is the proper form of corrective action for an employee who calls an hour before her shift and states that she cannot report to work, after the manager has had documented discussions with the employee in the past and the employee has not improved. Training Guide at 13. No further policies or procedures are discussed in this activity that must be taken before choosing to separate the employee from Papa John’s. See Training Guide at 13.

The Training Guide contains a section titled “Lecturette: Guidelines for Selecting Separation from the Company as a Corrective Action.” Training Guide at 25. Text is provided for the human resources officer to read, stating: “There are two primary reasons we separate team members from the company: for policy violations and poor performance----Each has guidelines that must be followed.” (emphasis added) Training Guide at 25. In the section labeled “Participant’s Guide Text,” three actions are listed “to take before separating team members from the company for policy violations.” Training Guide at 25.

1.Gather the facts

• Interview team members and witnesses

• Determine if the team member knew of the policy violation

• Investigate extenuating circumstances

2. Decide if separation from the company is appropriate

• Ensure you are being consistent with other similar situations

• Ensure you are being fair to the team member

• Ensure you are being legal

3. Contact your resources

• Find out if your DO/OVP/OP supports separation from the company

• Find out if you HR support suggests separation from the company

• Seek help with your documentation

Training Guide at 25. The following page lists five actions “to take before separating team members form the company for performance,” and provides similar, and more in depth steps, than the actions to be taken before separating an employee for a violation of company policy. Training Guide at 26.

The Training Guide contains a section on “Separation Meetings.” Training Guide at 27-28. The speaker is directed to discuss “Meeting Do’s and Dont’s,” on page 13 of the Participant’s Guide, the text of which is not included in the Training Guide. Training Guide at 27. The speaker is directed to discuss the “key ideas for conducting a separation meeting” with attendees. Training Guide at 27. “Suggested Answers” for the “key ideas” are listed, including:

• Conduct the meeting promptly and privately.

• Have a witness present. The witness should be another manager or HR support person, not a peer of the team member being separated from the company.

• Explain the meeting’s purpose.

• Provide a review of the violation or performance issue.

• Avoid making promises regarding benefits, another job, etc.

• Clearly state that the decision is final.

• Do not apologize as it often makes ■ the situation worse.

Training Guide at 27. Towards the end of the Training Guide, in the “Workshop Recap” section, the speaker is directed to ask what the “key points [are] to remember when conducting a separation meeting,” and the “Suggested Answers” include: (i) “Remain calm;” (ii) “Get to the point;” and (iii) “Focus on behavior.” Training Guide at 30.

The end of the Training Guide contains questions for the speaker to ask the audience regarding an “effective separation meeting,” and “[suggested answers.” Training Guide at 27. The speaker was given text to say that HR support “can help you before your separation meeting,” and “[w]hen in doubt, call your HR support.” Training Guide at 27.

In his deposition, Smith, as human resources director for Papa John’s who has also taught Managing Within the Law, referred to Managing Within the Law as a “training workshop,” and “not a policy.” Smith Dep. at 66:23-24. Smith also testified that Papa John’s terminates employees for poor performance and policy violations, “among other things.” Smith Dep. at 66:18-21.

5. Hartnett’s Experience Working with Papa John’s.

Throughout the nine years that Papa John’s employed Hartnett, Hartnett was required to comply with Papa John’s policies regarding employee discipline, and he worked with Papa John’s human resource department. See Response ¶ 22, at '4-5. Working with the human resources department confirmed to Hartnett what he had learned from Managing Within the Law. See Response ¶ 23, at 5 (citing Hartnett Dep. at 67:19-25). In general, a human resource officer would participate in the termination of an employee so as to ensure that the investigation was thorough and complete, and that good cause existed for the termination of the employee. See Response ¶ 24, at 5 (citing Jackson Dep. at 42:3-10, 66:3-10, 66:18-25). Human resources officers generally ensure that an operations manager seeking discipline is doing so for the right reasons, and a human resources officer generally seeks a legal opinion from the corporate legal division before termination of an employee. See Response ¶¶ 26-27, at 5 (citing Smith Dep. at 80:1-16; Woods Memo. ¶ 3(c), at 1; Jackson Dep. at 176:11-13, 218:l-4). A human resources officer does not generally approve a termination if there was inadequate documentation, a vendetta between the operations manager and the employee, or if the employee did not know that a company policy was violated. See Response ¶ 28, at 5 (citing Smith Dep. at 80:17-19, Wood Memo. ¶ 3(c), at l). A human resources officer would generally perform the investigation into the employee’s infraction, or the investigation would be performed under a human resources officer’s supervision. See Response ¶ 29, at 5 (citing Smith Dep. at 46:20-25, 47:1-6). The person conducting the investigation would generally interview the employee and then have the employee write a statement consistent with the interview. See Response ¶ 31, at 6 (citing Hartnett Dep. at 69:17-25, 70:1-8; Jackson Dep. at 66:18-25). Employees are not terminated without good cause, and generally are not terminated unless a complete investigation shows how they violated a company policy or failed to perform. See Response ¶¶ 25, 33, at 6, 7 (citing Jackson Dep. at 41:24-25, 42-.1-10).

Jackson testified that statements were not always taken from employees, but rather taking a statement from an employee prior to termination would “depend[] on the situation.” Jackson Dep. at 42:11-13. On the other hand, Jackson testified that he could not recall a situation where an employee was terminated without being given coaching prior to termination, even if a statement was not taken from the employee prior to the employee’s termination. See Smith Dep. at 43:16-44:10.

6. The Memorandum from Rick Woods.

In paragraphs 25 and 28 of his facts, Hartnett cites to a Memorandum from Rick Woods, an Operations Vice President for Papa John’s, dated February 15, 2005. See Response ¶¶ 25-28, at 5 (citing to Ex. 18, Woods Memo.). The Woods Memo. states that it is regarding “People Policies,” and that: “This memo serves as official communication on procedures for handling demotions, terminations, promotions, selection, and hiring of all management team members in Star Papa restaurants. Some of these procedures are already in place, but all policies listed herein take effect immediately.” Woods Memo, at 1. In the third paragraph, titled “Terminations,” the Woods Memo, reads as follows:

a. Terminations of a [sic] salaried manager must be communicated to the OYP and PSD prior to communication to the team member

b. Termination must be preceded by documented coaching and action plan to correct the performance issues (reviewed by PSD prior to termination) Exceptions to this include theft, manipulation, harassment, etc [sic]

c. All pertinent company policies must be followed during the termination process (PSD is resource for ensuring compliance to all policies)

Woods Memo. ¶ 3, at l. The Woods Memo, does not address the at-will nature of any managerial employee’s relationship with Papa John’s. See Woods Memo. The Woods Memo, contains sections with provisions regarding demotions, promotions, selection and hiring, salary administration, salaried managerial scheduling, as well as the section on termination. See Woods Memo, at 1-3.

7. Papa John’s Termination of Hart-nett.

The false reporting incident that led to Hartnett’s termination began when Hart-nett reported a work-related accident to Rick Thompson, Vice President of Operations for Papa John’s, on August 14, 2007. See Response ¶39, at 7 (citing Hartnett Dep. at 116:1-12). Thompson did not turn Hartnett’s workers’ compensation claim over to insurance, as Papa John’s company policy requires him to do. See Response ¶ 40, at 7 (citing Smith Dep. at 28:15-25, 29:1-17, 50:19-25, 51:1-4). On October 2, 2007, Hartnett informed Laura Jackson, who works in Papa John’s human resources department, that he would be unable to attend the management inventory meeting scheduled for October 10 and 12, 2007, because of the injury he suffered at work. See Response ¶ 41, at 7 (citing Deposition of Laura Jackson at 135:11-23, taken June 10, 2009, filed Sept. 29, 2012, (Doc. 101-l)(“Jackson Dep.”)). At the management inventory meeting, Papa John’s upper management inquired whether Hartnett’s injury was work related; immediately following the meeting, Thompson initiated an investigation of Hartnett. See Response ¶¶ 42, 44, at 7 (citing Deposition of Rick Thompson at 48:21-25, 1-23, taken June 10, 2009, filed Sept: 12, 2012 (Doc. 101-2)(“Thompson Dep.”); Corporate Incident Report re: Timothy Hart-nett, filed Sept. 12, 2012 (Doc. 101-21)(“Incident Report”). Hartnett was not interviewed as part of the investigation. See Response ¶ 46, at 7 (citing Thompson Dep. at 93:7-25). Thompson emailed Hartnett several months prior to commencing the investigation, and expressed concern about the number of stores Hart-nett was visiting each day, but no further communication with Hartnett was made before his termination. . See Incident Report at 1-2. The other employees interviewed were asked to recall, between twenty-four and twenty-eight days after the fact, whether they had seen Hartnett on September 22, 2007. See Response ¶ 45, at 7 (citing Letter of Megan Herren, filed Sept. 12, 2012 (Doc. 101-14)(“Herren Letter”)); Letter of David Montoya, filed Sept. 12, 2012 (Doc. 101-15)(“Montoya Letter”). Thompson collected statements from two store managers at the stores that Hartnett visited as part of his of his supervisory duties, and these managers gathered statements from their employees regarding whether Hartnett visited their stores on September 22, 2007. See Response ¶¶ 47-48, at 7 (citing Incident Report; Jackson Dep. at 48:14-25). Having the store managers collect statements from their employees was not normal; investigators normally interviewed the employees personally and had the employees write a statement consistent with the interview. See Response ¶ 31 at 6, ¶ 48, at 7 (citing Incident Report; Hartnett Dep. at 69:17-25; Jackson Dep. at 48:14-25, 66:18-25). Thompson did not obtain a statement from an employee named Cody, a-manager-in-training at one of the stores Hartnett was to visit on September 22, 2007, who closed the store in lieu of the manager from whom Thompson obtained a statement. See Response ¶¶ 55-57, at 8 (citing Deposition of Benny Trujillo at 20:1-23, 93:18-25, 94:1-4, 10-20, taken June 12, 2009, filed Sept. 12, 2012 (Doc. 101-5)(“Trujillo Dep.”))). According to Benny Trujillo, the manager at one of the stores Hartnett was to visit on September 22, 2007, Thompson told Trujillo that “[Hartnett] is on his way out ... so I need a statement from you.” Response ¶ 60, at 8-9 (quoting Trujillo Dep. at 15:20-25, 16:1-9). Thompson concluded, after obtaining statements from store managers and employees at three of the five restaurants Hartnett was to visit, that Hartnett had falsified mileage accounts on his expense reports for September, 2007 expenses. See MSJ ¶¶ 3, 4, 7-8, • at 2-3; Response ¶ 64, at 9 (citing Thompson Dep. at 43:8-16). Papa John’s had no written policy regarding a required method to fill out the form for mileage reimbursement on expense reports. See Response ¶ 34, at 6.

Papa John’s expects its employees to conduct themselves 'in an honest and ethical manner during their employment. See MSJ ¶ 9, at 3. Hartnett understood that violating Papa John’s code of ethics and business conduct policy could result in an employee’s termination, and that any falsification of a report for Papa John’s could result in the employee’s termination. See MSJ ¶ 10-11, at 3. Hartnett believed Papa John’s would not terminate an employee’s employment unless it was for cause, or under performance, a belief which Hart-nett’s long tenure with Papa John’s affirmed. See MSJ ¶ 12, at 3 (citing Deposition of Timothy Hartnett, at 67:15-24; id. at 85:5-13, taken May 31, 2012, filed Aug, 29, 2012 (Doc. 92-1)). Hartnett was trained to fill out mileage reimbursement forms in a different method than that of other Papa John’s’ employees. See Response ¶ 35, at 6. Jackson, a Papa John’s’ human resources “expert,” did not participate in the investigation, and her lack of participation is inconsistent with company policy. Response ¶¶ 51-53, at 8 (citing Jackson Dep. at 91:15-18, 91:22-24, 107:24-25, 108:l-4). Jackson later admitted that the statements taken from one of the stores were faulty and unusable. See Response ¶ 65, at 9 (citing Jackson Dep. at 216:11-13). Jackson also informed other human resources employees that she had obtained statements from all the stores, when she did had not. See Response ¶ 67, at 9 (citing Herren Letter at 1; Montoya Letter at 1; Jackson Dep. at 107:14-16, 108:1^1).

Hartnett’s termination was approved by the director of human resources, Robert Wesley Smith, who had not reviewed the investigation and documents submitted by Jackson, another human resources officer. See Response ¶ 68, at 9 (citing Smith Dep. at 39:9-24). The human resources employee who approved Hartnett’s termination did not know that he had been injured in a work-related accident, and was only performing light duty. See Response ¶¶ 69-70, at 9-10 (citing Smith Dep. at 31:17-25, 32:1-8). The human resources employee who approved Hartnett’s termination did not have knowledge of Hart-nett’s past, including his “experience, his integrity, and his credentials.” Response ¶ 71, at 10 (citing Smith Dep. at 33:10-14). Hartnett was terminated at a Wendy’s restaurant patio, during the afternoon of October 17, 2007. See Response ¶ 74, at 10 (citing Managing Within the Law, Training Guide at 20, filed September 12, 2012 (Doc. 101-7)(“Training Guide”); Jackson Dep. at 85:1-25, 87:4-15).

After his termination, Hartnett found a store inspection form from one of the stores he visited on September 22, 2007, which he submitted to Jackson. See Response ¶¶ 77-78, at 10 (citing Jackson Dep. at 110:1-25). Thompson then contacted store managers who had previously given statements to determine if Hartnett in fact conducted a store inspection on September 22, 2007. See Response ¶ 79, at 10 (citing Jackson Dep. at 54:11-25, 55:1-21). Additionally, Thompson directed a store manager to visit the hotel in Los Lunas, New Mexico, to determine if Hartnett had stayed at the hotel on September 22, 2007. See Response ¶ 80, at 11 (citing Thompson Dep. at 89:1-25; id ', at 90-92).

PROCEDURAL BACKGROUND

On October 8, 2010, Hartnett filed a complaint in the Second Judicial District, County of Bernalillo, State of New Mexico. See Complaint for Damages for Wrongful Termination, Retaliatory Discharge, Defamation of Character, and Punitive Damages, filed in State Court Oct. 8, 2010, filed in federal court Nov. 19, 2010 (Doc. 1-1). On November 19, 2010, Papa John’s removed the action, pursuant to 28 U.S.C. § 1441(a) and 1446 to the United States District Court for the District of New Mexico. See Defendant’s Notice of Removal at 1, filed November 19, 2010 (Doc. 1). On March 9, 2011, Hartnett filed an Amended Complaint for Damages for Breach of an Implied Contract, Retaliatory Discharge, Defamation of Character, and Punitive Damages (Doc. 25)(“Amended Complaint”), alleging: (i) breach of an implied contract of employment and breach of the implied covenant of good faith and fair dealing; (ii) retaliatory discharge; and (iii) defamation. See Amended Complaint ¶¶ 8-4, at 2.

Hartnett filed a Motion for Summary Judgment on May 25, 2011 (Doc. 29), and Papa John’s filed a Cross Motion for Summary Judgment on June 14, 2011 (Doc. 33). See Memorandum Opinion and Order, filed October 7, 2011, 828 F.Supp.2d 1278 (D.N.M.2011) (Doc. 47)(“MOO”). On October 7, 2011, the Court: (i) granted in part Hartnett’s Motion for Summary Judgment and precluded the parties from relitigating the existence of good cause; and (ii) granted Papa Jokds Cross-Motion for Summary Judgment and dismissed the retaliatory discharge claim with' prejudice. See MOO, 828 F.Supp.2d at 1280-81. The remaining claims after, this point were Hartnett’s .allegation of breach of an implied contract for employment and good faith and fair dealing, and for defamation. See MOO, 828 F.Supp.2d at 1286-87, 1288-90. Within days of filing this motion for summary judgment, Papa John’s filed a stipulation to dismiss Hartnett’s defamation claim. See Stipulation to Dismiss Plaintiffs Defamation Claim at 1, filed Aug. 31, 2012 (Doc. 93).

Papa John’s moves the Court, pursuant to rules 54(b) and 56 of the Federal Rules of Civil Procedure, and D.N.M. LR-Civ. 56.1(d), for summary judgment in its favor and against Hartnett on its breach of implied contract claim. See MSJ at 1. Papa John’s asserts that there is no genuine issue of material fact and that Papa John’s is entitled to judgment as a matter of law. See MSJ at 1. Papa John’s asserts that, under New Mexico law, employment is terminable at will unless an express contract exists to the contrary. See MSJ at 5 (citing Gormley v. Coca-Cola Enters., 135 N.M. 128, 134, 85 P.3d 252, 258-59 (Ct.App.2003)(internal citations omitted)). Papa John’s admits that there is an exception to this general rule when an implied contract limits the employer’s authority to terminate, the employment. See MSJ at 5 (citing Lopez v. Kline, 124. N.M. 539, 541, 953 P.2d 304, 306 (Ct.App.1997)). Papa John’s asserts that the Supreme Court of New Mexico has found an implied contract restricting an- employer’s ability to terminate an employee where: (i) “the employer makes a direct or indirect reference that termination would-be only for just cause;” or,(ii) “the employer .has established procedures for termination that include elements , such as [a] probationary period, warnings for. certain proscribed conduct, or procedures for. employees to express their grievances.” MSJ at 5 (citing Hartbarger v. Frank Paxton Co., 115 N.M. 665, 668, 857 P.2d 776, 779 (1993)). Papa John’s asserts that the existence of an implied contract is :a question of fact, which should -be determined by a totality of the parties’ relationship, and- the .circumstances and objective thereof. See MSJ at 5 (citing Newberry v. Allied Stores, Inc., 108 N.M. 424, 427, 773 P.2d 1231, 1234 (1989)(internal citations omitted)).

Papa John’s contends that, when determining if an implied contract for employment exists, the “ultimate question is whether the employer, by sufficiently specific words or conduct, has created in the employee a ‘reasonable expectation’ of job security.” MSJ at 6 (quoting Hartbarger v. Frank Paxton Co., 115 N.M. at 672, 857 P.2d at 783). Papa John’s argues that the reasonableness of any expectation is measured by how definite, specific, or explicit the employer’s representation or conduct was. Papa John’s states that the representations may be written, oral, or a combination, but an oral representation must be sufficiently explicit and definite to create the implied contract. See MSJ at 6 (citing Newberry v. Allied Stores, Inc., 108 N.M. at 427-28, 773 P.2d at 1234-34; Garrity v. Overland Sheepskin Co. of Taos, 121 N.M. 710, 713-14, 917 P.2d 1382, 1385-86 (1996)).

Papa John’s argues that no implied contract exists in this case. Papa John’s argues that Hartnett’s belief that he had an implied contract is in “direct contrast to the language in his management contract and the Handbook.” MSJ at 7. Papa John’s argues that Hartnett cannot rely on his long tenure with Papa John’s as evidence that an implied contract existed. Papa John’s contends that the Supreme Court of New Mexico has ruled that reliance upon a long tenure of employment, or an employer’s practice of only firing for-cause, is insufficient to create an implied contract that termination would only be for-cause. See MSJ at 7 (citing Hartbarger v. Frank Paxton Co., 115 N.M. at 674, 857 P.2d at 785). Papa John’s contends that Hartnett’s reliance on statements that Braafhart made, in the context of Hartnett receiving a promotion and voicing concerns about the non-competition agreement, is misplaced under New Mexico law, as Braafhart was only responding to Hart-nett’s concerns and not expressing the terms of a contractual promise. See MSJ at 8 (citing Hartbarger v. Frank Paxton Co., 115 N.M. at 674, 857 P.2d at 785).

Papa John’s also contends that, even if an implied contract existed, Papa John’s was justified under New Mexico law in terminating Hartnett. See MSJ at 8-9 (citing N.M.R.A., UJI 13-2306 (1999)). Papa John’s argues that Hartnett was terminated for having falsified company documents — specifically, the mileage on an expense report Hartnett submitted for September expenses. See MSJ at 9. Papa John’s asserts that Hartnett understood that he was expected by Papa John’s to conduct himself in an honest and ethical manner during his employment. See MSJ at 6. Papa John’s asserts that Hartnett understood that falsifying any report for Papa John’s could result in his termination. See MSJ at 6. Papa John’s argues that Hartnett’s supervisor, Thompson, investigated Hartnett’s expense reports in conjunction with Jackson, from Papa John’s’ human resources department. See MSJ at 9. Papa John’s asserts that Jackson’s Incident Report on Hartnett concluded that Hartnett had falsified the mileage on his September expense report. See MSJ at 9-10. Papa John’s argues that falsifying mileage is an offense that warrants immediate termination, and Hartnett knew these consequences would occur. Papa John’s thus argues that it had cause to terminate Hartnett, and thus Hartnett’s termination was within the terms of his employment agreement even if an implied contract existed. See MSJ at 10.

Hartnett agrees that New Mexico law provides for employment to be at will, unless an implied contract is created either by the employer expressing that termination will only be for cause, or by the employer providing procedural protection before termination. See Response at 11 (citing West v. Washington Tru Solutions LLC, 147 N.M. 424, 224 P.3d 651 (Ct.App.2009)). Hartnett argues that, even though statements within the Handbook disclaim the existence of any specific employment contract between Papa John’s and its employees, the totality of Papa John’s statements and actions — not a personnel manual alone — determine whether a contractual obligation exists. See Response at 11-12 (citing McGinnis v. Honeywell, Inc., 110 N.M. 1, 5-6, 791 P.2d 452, 456-57 (1990); Kiedrowski v. Citizens Bank, 119 N.M. 572, 575, 893 P.2d 468, 471 (Ct.App.1995)). Hartnett contends that “any” statements made by an employer may be sufficient to create an implied contract .that employment is terminable for cause only. See Response at 12 (citing Kestenbaum v. Pennzoil, Co., 108 N.M. 20, 766 P.2d 280 (1988)). Hartnett argues that Braafhart’s statements to Hartnett when he signed the CNC Agreement, as well as the Managing Within the Law workshops, constitute an agreement not to discharge Hartnett other than for good cause, for a violation of company policy, or for poor performance. See Response at 12-13. Hartnett’s argues that Jackson’s statements at her deposition support the existence of an implied contract that Hartnett would not be terminated except for cause. See Response at 13.

Hartnett also argues that he and Papa John’s had an implied agreement to follow particular procedures in discharging him. See Response at 13. Hartnett asserts that the Managing Within the Law workshops informed Hartnett that, when investigating a supposed infraction, following an interview, an investigator would take statements from team members directly — an understanding that Hartnett asserts Jackson’s statements supports. See Response at 13-14. Hartnett contends that Managing Within the Law taught him that any investigation would be conducted in confidence, a term of the alleged agreement that Hartnett argues was broken by Papa John’s communications with other managers in Hartnett’s termination process. See Response at 14-15. Hartnett also contends that the reasonableness of his termination is a question for a jury to decide, as “there are multiple issues which raise an issue of whether or not.a reasonable man would have terminated Mr. Hartnett.” Response at 15.

Papa John’s responds that, even accepting Hartnett’s testimony as true, in light of Hartnett’s Management Agreement and the Handbook, Hartnett cannot establish, as a matter of law, that “he had an objectively reasonable expectation that Papa John’s could only fire him for cause or only after following certain procedures.” Papa John’s Reply at 1-2. Papa John’s contends that the Court must “begin with the proposition that employment without a definite term is presumed to be at will.” Papa John’s Reply at 2 (internal alterations omitted)(quoting Trujillo v. N. Rio Arriba Elec. Coop., 131 N.M. 607, 615-16, 41 P.3d 333, 341-42 (2001)). Papa John’s again asserts that the Court must determine whether “a reasonable jury could find that Papa John’s words and conduct support an objectively reasonable expectation that its employees will be dismissed only in accordance with specified procedures and for specified reasons.” Papa John’s Reply at 3 (quoting West v. Washington Tru Solutions, LLC, 147 N.M. at 426, 224 P.3d at 653).

In support of its argument that Hart-nett’s emplojunent with Papa John’s was mutually at will, Papa John’s points to the Management Agreement which Hartnett signed the first day he was hired. The Management Agreement states that it does not “grant, create, or extend any contractual right ... to [Hartnett’s] current or future employment,” and that Papa John’s “may sever the employment relationship at any time for any reason at all.” Papa John’s Reply at 3 (quoting Management Agreement). Papa John’s also points to the Handbook, which contains a section entitled “Employment At Will,” which states that employees “may resign at any time, for any- reason, with or without notice,” and that Papa John’s “is free to conclude the employment relationship at any time.” Papa John’s Reply at 3-4.

Papa John’s argues that Hartnett’s at-will status was never altered. Papa John’s contends that the authority upon which Hartnett relies in his Response discusses an implied contract where a contract that provides for employment at will also qualified the circumstances under which an employee could be terminated. See Papa John’s Reply at 4-5 (discussing McGinnis v. Honeywell, Inc., 110 N.M. at 6, 791 P.2d at 457). Papa John’s contends that Hartnett’s employment contract is unambiguous in its language that Hartnett’s employment is at will only, and that there are not qualifying procedures which must be followed before Papa John’s was able to terminate Hartnett. See Papa John’s Reply at 5. Papa John’s contends once again that Hartnett’s reliance on any statements that Braafhart made when Hartnett executed the CNC Agreement is misplaced— Papa John’s contends that the Supreme Court of New Mexico has rejected the possibility that such statements are sufficient to create an implied contract of employment. See Papa John’s Reply at 6 (citing Hartbarger v. Frank Paxton Co., 115 N.M. at 674, 857 P.2d at 785). Papa John’s contends that a reasonable person would not construe such statements to create an implied employment contract, and thus there is no basis for a reasonable jury to conclude that Braafhart’s alleged statement was sufficiently explicit, specific, or definite enough to alter the at-will presumption. See Papa John’s Reply at 7. Additionally, Papa John’s argues that Hartnett’s reliance on the Managing Within the Law workshops as a basis for his supposedly implied contract for employment is insufficient: Papa John’s contends that Hartnett does not state that anyone ever told Hartnett that Papa John’s could not terminate an employee without good cause or without complying with certain procedures. See Papa John’s Reply at 7. Papa John’s asserts that any information the instructors at Managing Within the Law gave Hartnett regarding the termination policies did not purport to be the exclusive methods or reasons which may lead to an employee’s termination. See Papa John’s Reply at 7. Papa John’s further contends that having a “track record of only terminating employees for certain reasons does not mean that an employer has surrendered its right to terminate at will.”1 Papa John’s Reply at 8 (citing Zarr v. Washington Tru Solutions, LLC, 146 N.M. 274, 279, 208 P.3d 919, 924 (Ct.App.2009)). Papa John’s thus argues that the “general approach” discussed in the Managing Within the Law workshops were not definite, specific, or explicit statements that could create a reasonable expectation that Papa John’s would terminate an employee only for good cause and after following certain procedures. See Papa John’s Reply at 8.

Papa John’s further re-states its argument that it did not violate any implied contract in terminating Hartnett’s employment. See Papa John’s Reply at 9. Papa John’s once again argues that Hartnett violated a company policy by falsifying the mileage on his expense report, an infraction which warrants termination. See Papa John’s Reply at 9. Papa John’s asserts that Hartnett knew such an infraction would lead to termination. See Papa John’s Reply at 9.

The Court held a hearing on this motion on October 15, 2012. At the outset, the Court inquired of Papa John’s whether the facts are uncontested, as neither party indicated any disputes to the other party’s facts in their respective briefings on the MSJ. See Tr. at 3:16-4:1 (Court). Papa John’s replied that it did not contest Hart-nett’s facts — Papa John’s does “[not] think it matters.” Tr. at 4:2-4 (Prynkiewicz). Papa John’s stated that the facts “will be uncontested at trial, at least from the facts that the plaintiff put forward.” Tr. at 4:4-6 (Prynkiewicz). Papa John’s stated that on a summary judgment motion, it always assumes that the Court will accept the plaintiffs facts as true. Tr. at 4:6-9 (Prynkiewicz). Papa John’s stated: “[W]e didn’t contest the facts because we don’t think it matters ... because they’re uncontes[ed] and they will be uncontested at trial at least from the facts that the plaintiffs put forward.” Tr. at 4: 3-6 (Prynkiewicz). Papa John’s stated that, even “assuming [Hartnett’s facts are] true, as we do for purposes of this motion, individually or collectively [they] are not enough to create a triable issue.” Tr. at 5:2-5 (Prynkiewicz).

Papa John’s then asserted that there is “no evidence before the Court that there was any promise, in terms of a specific length of time or a definite term,” and Papa John’s employment “is presumed to be at will.” Tr. at 3:5-9 (Prynkiewicz). Papa John’s pointed to the Management Agreement, which Hartnett asserted is an “express contract between Plaintiff and Papa John’s,” that provides that Papa John’s will hire Hartnett to supervise and oversee several restaurants in exchange for Hartnett agreeing to the terms of the agreement. Tr. at 3:10-15 (Prynkiewicz).

The Court inquired of Papa John’s whether the motion for summary judgment turned entirely on Braafhart’s statements because the facts are uncontested. See Tr. at 4:10-13 (Court). Papa John’s asserted that the result would be the same even with Braafhart’s statement. See Tr. at 4:16-18 (Prynkiewicz)(“No. Even if its in I think the result is the same.”). Papa John’s stated that, even assuming that Braafhart’s statement is true, and that Hartnett was told what he alleges he was told at Managing Within the Law, there is still no triable issue of fact. See Tr. at 4:24-5:5 (Prynkiewicz). Papa John’s contended that there is no triable issue, because Hartnett must overcome the presumption of at-will employment, and Hartnett must show that the express contract should be ignored or somehow modified. See Tr. at 5:5-7 (Prynkiewicz). Papa John’s argued that the cases which support finding an implied contract all did so where there was no express contract for at-will employment. See Tr. at 5:9-18 (Prynkiewicz). Papa John’s asserted that the one case to which Hartnett cited, where a plaintiff had an express contract for at-will employment, see McGinnis v. Honeywell, Inc., 110 N.M. 1, 791 P.2d 452, not only held that the express contract controlled, but is distinguishable, because the express contract stated that at-will employment was qualified as “subject to the policy and procedures that will be distributed to employees.” Tr. at 5:18-6:6 (Prynkiewicz).

The Court inquired whether there were other New Mexico cases which have held that the words and conduct of a corporation may amend an express contract, and Papa John’s admitted that New Mexico cases do so provide. See Tr. at 6:16-12 (Court, Prynkiewicz). Papa John’s argued that, nonetheless, it is unaware of any case that would allow an implied contract to modify an express contract based on the facts that Hartnett has put forward. See Tr. at 6:23-7:3 (Prynkiewicz). Papa John’s asserted that this case is unique from most cases, where an implied contract modifies the presumption of at-will employment, because an express contract existed for Hart-nett’s employment by Papa John’s. See Tr. at 8:11-18 (Prynkiewicz). Papa John’s contended that there is not a case where the representation which Hartnett has put forward modify an express contract. See Tr. at 8:19-21 (Prynkiewicz).

Papa John’s then argued that the statement upon which Hartnett relies, made to him by Braafhart, is very similar to that in Hartbarger v. Frank Paxton Co., which the Supreme Court of New Mexico ruled was not promissory in nature in light of the context and circumstances. See Tr. at 9:2-13 (Prynkiewicz). Papa John’s contended that Braafhart’s statement was not a statement of company policy and that no one could assume from the statement that there was any bargained-for exchange in the employment terms. See Tr. at 9:17-21 (Prynkiewicz). Papa John’s also contended that Hartnett’s reliance on his managerial training from Managing Within the Law is similar to the training given in Hartbarger v. Frank Paxton Co. and Zarr v. Washington Tru Solutions, LLC, wherein employees argued that, because human resources taught them to follow certain procedures in disciplining émployees, their managerial training created an implied contract for employment. See Tr. at 9:24-10:10 (Prynkiewicz). Papa John’s argued that the New Mexico courts in both cases found an employer’s practice of following certain procedures and not discharging employees except for good reason insufficient to create an implied contract for employment. See Tr. at 10:10-14 (Prynkiewicz).

The Court stated that Hartnett’s case seemed to have more than the plaintiffs had in either Hartbarger v. Frank Paxton Co. or Zarr v. Washington Tru Solutions, LLC, because Hartnett had both statements from Braafhart and the managerial training from Managing Within the Law. See Tr. at 10:19-24 (Court). The Court stated that, while managerial training may not be enough, Braafhart’s oral, statements caused the Court concern. See Tr. at 11:1-3 (Court). The Court also stated that having five separate managerial training workshops, in which good cause seemed to be the exclusive reason for terminating an employee, was evidence of a stronger magnitude than Papa John’s had characterized Managing Within the Law. See Tr. at 11:19-24 (Court). The Court noted that Hartnett was not referring to his experience in disciplining employees alone, but had managerial training that seemed to state the exclusive reason to terminate an employee was for cause. See Tr. at 11:15-19 (Court). Papa John’s argued that New Mexico cases have held handbooks that “[express] the way the company does business and the way [it] applies [its] policies,” are not contractual promises. See Tr. at 12:7-15 (Prynkiewicz).

Regarding Hartnett’s argument that the implied contract for employment was breached, Papa John’s contended that the correct standard to apply is whether “Papa John’s reasonably believe[d] that there was a falsification [of] the expense report,” not “whether a reasonable person [would] have gotten a statement or whether a reasonable person would have done any number of things,” as Papa John’s asserted Hartnett contends. Tr. at 13:9-16 (Prynkiewicz). Papa John’s argued that Hartnett must bring evidence to show that the decision-makers could not have reasonably believed that Hartnett falsified an expense report, because Hartnett agrees that falsifying an expense report is grounds for termination. See Tr. at 13:16-21 (Prynkiewicz). The Court inquired why the standard was not whether Papa John’s was correct, rather than “good-faith belief,” as Papa John’s argues. Tr. at 14:3-5 (Court). Papa John’s contended that New Mexico’s jury instruction, see N.M.R.A., Civ. UJI 13-2306, supports the use of “reasonable belief’ as the standard to determine whether terminating Hartnett was proper, arguing that the case is similar to the way discrimination cases are handled. Tr. at 14:10-20, 24-25 (Prynkiewicz). The Court stated that it was not aware of such a standard being used in an implied contract case. See Tr. at 15:16-19 (Court).

Hartnett then responded, and began by stating that the jury instruction was actually a two-prong test, requiring a discharge to be both reasonable and that an employer had sufficient cause. See Tr. at 16:9-11 (Fogel). The Court agreed that the jury instruction required an employer to have both cause to terminate an employee and a reasonable belief in the cause. See Tr. at 16:14-16 (Court).

Turning to his allegation that an implied contract existed, Hartnett argued that Braafhart’s statements track those of the supervisor in Kestenbaum v. Pennzoil, which the Supreme Court of New Mexico found were sufficient to create an implied contract. See Tr. at 16:21-17:5 (Fogel). Fogel argued that Papa John’s stated through the Managing Within the Law workshops that Papa John’s only fires or terminates for poor performance, under performance, and for violation of policies, without qualifying that employment with Papa John’s is at will. See Tr. at 17:24-18:1 (Fogel). The Court inquired whether Hartnett’s case turned on the admittance and use of Braafhart’s stamens, and Hart-nett stated that he did not know. See Tr. at 18:3-10 (Court, Fogel). The Court inquired whether Hartnett could sustain his case based only on the Managing Within the Law workshops, which the Court stated are similar to an employee merely observing progressive discipline and attempting to claim an implied contract off of the employee’s observations' — evidence that New Mexico cases have held is insufficient to create an implied contract. See Tr. at 18:16-19:5 (Court). Hartnett argued that human resources officers testified that practices enunciated at Managing Within the Law are company policies, specifically regarding confidentiality in the termination process. See Tr. at 19:6-23 (Fogel). Hartnett argued that Managing Within the Law is a mandatory course and that statements made at Managing Within the Law are statements of company policy, unlike the statements made in Hartbarger v. Frank Paxton Co. See Tr. at 20:1-13 (Fogel). Hartnett pointed to the Smith Deposition in support of Managing Within the Law being a forum where company policy is taught. See Tr. at 20:9 (Fogel).

Hartnett then argued that the express Management Agreement was modified in 2003. See Tr. at 20-15-18 (Fogel). Hart-nett asserted that, but for Braafhart’s statements in 2003,, he would not have signed the CNC, Agreement. See Tr. at 20:23-25 (Fogel). The Court inquired whether Hartnett .agreed that th,ere was an express contract in, place in 1998, and Hartnett agreed. See Tr. at 21:19-24 (Court, Fogel).

Papa John’s responded first by stating that both sides agree that an express contract for employment was in place in 1998 — the Management Agreement. See Tr. at 21:10-12 (Prynkiewicz). Hartnett argued that the existence of an express contract is crucial, and that no party has cited a case where an oral agreement modified an express contract. See Tr. at 22:2-5 (Prynkiewicz). Hartnett admitted that it would be possible to modify an express contract orally, but that' there was not a reported case where it has been done. See Tr. at 22:10-13 (Prynkiewicz). Papa John’s argued that neither Managing Within the Law or Braafhart’s statements were sufficient to support an implied contract, much less a modification of an express contract. See Tr. at 22:17-23:5 (Prynkiewicz). Papa John’s contended that, Braafhart’s statements were not in relation to the CNC Agreement, which Braafhart did not even mention, and were only an expression of opinion. See Tr. at 22:17-24 (Prynkiewicz). Papa John’s pointed to the CNC Agreement not even referencing the Management Agreement as evidence that the CNC Agreement was not a modification of the Management Agreement. See Tr. at 22:20-22 (Prynkiewicz). Regarding Managing Within the Law, Papa John’s contended that because Hartnett’s express agreement was never discussed in the workshops, nor was employment at will ever discussed at the workshops, “there is just no way that a jury could conclude from either piece of evidence, [Braafhart] or Managing [WJithin the [L]aw, that this express management agreement ... was modified.” Tr. at 23:10-13 (Prynkiewicz). Papa John’s further alleged that, according to Hartnett’s facts, Managing Within the Law did not teach that performance and policy were the exclusive reasons an employee would be terminated, only the primary reasons. See Tr. at 23:16-25 (Prynkiewicz). Papa John’s asserted that Hartnett has not .shown how Managing Within the Law is different from the facts in cases were an observed company policy was a plaintiffs basis for alleging the existence of an implied contract for employment, and Papa John’s argued that Hart-nett has not shown how Managing Within the Law is different from the cases where a policy written in a handbook or taught in a managerial course was insufficient to support the existence of an implied contract. See Tr. at 24:2-14 (Prynkiewicz).

LAW REGARDING SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designat