Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 04-CECG-02632 of Fresno County. Alan Simpson, Judge.
Law Offices of Stephen Murphy, Stephen Murphy, Law Offices of Tania B. Rose and Tania B. Rose for Plaintiff and Appellant.
Littler Mendelson, Dennis M. Brown, Michelle B. Heverly and Erica H. Kelley for Defendant and Respondent.
This is an appeal from summary judgment granted in favor of defendant and respondent Sears, Roebuck and Co. and against plaintiff and appellant Erik Lacour. We will affirm the judgment.
VARTABEDIAN, Acting P. J.
OPINION
Facts and Procedural History
A. Appellant’s Employment with Respondent
Appellant was a customer service technician for respondent, going to customers’ homes to service heating and air conditioning units. He had been employed with respondent for 11 years when, in 2003, his employment was terminated for absenteeism and insubordination.
For some time prior to 2002, appellant had been the emergency service technician. Apparently this meant appellant had only one scheduled workday per week, received seven hours of pay for being on standby, and usually totaled about 30 hours per week, including those items and his emergency service calls. He was considered a full-time employee and received fringe benefits as such.
In January or February of 2003, respondent canceled its emergency service program. In early 2003, appellant’s supervisor, Acord, acting on instructions from his own supervisor, Willis, told appellant he would have to choose between part-time status with no benefits or work a full 40 hours per week to retain full-time status and benefits. Acord did not press appellant for a decision and the matter continued unresolved and unchanged until September of 2003. Appellant was scheduled to work 30 hours per week and continued as a full-time employee for the purpose of fringe benefits.
Appellant’s declaration stated that, when he initially went to work for respondent in 1992, his supervisor told him he was subject to a collective bargaining agreement. At some point the union apparently lost its representational status. In early 2003, there was another representation election and appellant served as the union’s “election observer.” He actively supported unionization of the technicians.
“The union” refers to Machinists Local Lodge No. 1173, District Lodge No. 190, International Association of Machinists and Aerospace Workers, AFL-CIO.
In addition, there apparently was a class action lawsuit on behalf of respondent’s service technicians, involving respondent’s “home dispatch program.” In that program, technicians were allowed to drive their service vans home; they went to their first service call of the day directly from home. The primary issue in the class action concerned a claim that technicians did not go “on the clock” until they arrived at their first appointment or until they had driven more than 35 miles, whichever came first. Appellant testified he had repeatedly complained to Acord that the policy cost technicians up to 90 minutes of compensation each day.
During this entire time, as appellant phrases the matter in his opening brief, “his work was indisputably regarded as outstanding.” Appellant received regular pay increases and positive performance reviews throughout his term of employment with respondent. On August 23, 2003, respondent awarded appellant an “Exceptional Customer Service” certificate, together with a gift certificate, in recognition of the results of a survey of customers. In the September 2003 company newsletter, appellant was recognized as a “top performer.”
B. The Scheduling Dispute and Termination of Appellant’s Employment
As the summer of 2003 pressed on, respondent got further and further behind on air conditioning service calls. Willis began insisting to Acord that Acord resolve appellant’s employment status so that appellant could perform more service calls and Willis could determine whether staffing levels should be increased. On September 2, 2003, Acord met with appellant and told him Willis wanted appellant scheduled for 40 hours the next week if he was going to remain a full-time employee. Appellant said he already had plans for Wednesday and Friday of the next week and could not work 40 hours. Acord told appellant that Willis was insistent. Appellant offered to take accrued vacation on the two days in question, thereby permitting Acord to show that appellant was full time, then appellant would work a full schedule the next week. Acord’s exact response is the subject of dispute, but the parties agree that he did not categorically reject this proposal.
Appellant and Acord met again on September 4, 2003. This time, Acord wanted appellant to sign a “home dispatch reminder notice” that, as the trial court found, reminded technicians of the rules of the home dispatch program or, as appellant contends, was an effort to collect evidence to oppose the class action suit. Acord told appellant “everybody” had signed the notice and that he needed appellant to sign it at that time. Appellant told Acord some of the information on the notice did not seem correct, that appellant did not want to interfere with the class action, and that he would like to have an attorney review the notice before he signed it. Acord would not give appellant a copy of the notice. The men did not discuss the next week’s work schedule at this meeting.
Two days later, on Saturday, September 6, 2003, while making service calls, appellant received two text messages over the computer in his work van. In the messages, Acord said he needed appellant to work Tuesday through Saturday of the following week. Appellant tried to call Acord, failed, and left a voicemail message reminding Acord that appellant had requested vacation on two of the scheduled days. Acord responded with another text message reiterating that he needed appellant to work all five days because of the buildup of customer appointments. The last appellant heard from Acord, Acord was apologetic but insistent that appellant work all five days.
Acord scheduled a service route for appellant for Wednesday, September 10, 2003. Appellant did not report for work. Acord left a message on appellant’s work cellular telephone asking where appellant was and informing him his absence was unexcused. Because appellant was not working, in accordance with respondent’s policies, he did not have the work telephone turned on that day and received Acord’s message the next day. Appellant was unable to reach Acord, who was on vacation that week. Appellant spoke with another technician supervisor; appellant told the supervisor that he had asked for the next day, Friday, off and that Acord had “not gotten back to him” about it. This supervisor checked the Friday schedule. She saw appellant had a full route and reassigned the work while appellant was still on the telephone; she told appellant it should not be a problem for him to take Friday off.
On Saturday, September 13, 2003, Acord and another supervisor met with appellant; they suspended appellant and required him to turn in all company tools and property. After a conference call on September 16 among Willis, Acord, other Fresno supervisors, and Willis’s supervisor, Willis made the decision to terminate appellant’s employment.
When appellant met with Acord on September 16 and received news of his termination, he told Acord that the action was blatant retaliation for his support for the class action lawsuit and union organizing efforts in the past, according to appellant’s deposition testimony.
C. The Unfair Labor Practices Complaint
After appellant’s employment was terminated, he filed an unfair labor practices charge with the National Labor Relations Board (NLRB). The NLRB regional director initially issued an administrative complaint, but withdrew the complaint after further investigation. On review by the Office of General Counsel of the NLRB, withdrawal of the complaint was affirmed. According to the office of general counsel, the regional director’s further investigation had determined “the Employer had a reasonable basis for concluding that the employee had failed to appear for work as required, and had misled another supervisor.”
D. The Present Case
In the hiatus between the withdrawal of the regional director’s complaint and the confirmation of that action on administrative appeal, appellant filed a superior court complaint for damages and punitive damages, alleging wrongful and retaliatory termination of employment. Appellant ultimately filed a second amended complaint alleging wrongful termination/retaliation in violation of public policy, breach of implied employment contract, and breach of implied covenant of good faith and fair dealing.
On respondent’s motion, the trial court granted respondent’s motion for summary judgment on the second amended complaint. The court determined that appellant’s action was not preempted by federal labor laws and that the NLRB action was not res judicata. The court granted summary adjudication of the implied covenant cause of action on the basis it duplicated the implied employment contract cause of action. It granted summary judgment on the remaining causes of action on the basis that respondent had established a legitimate, nondiscriminatory reason for terminating appellant’s employment and appellant had failed to produce substantial evidence showing respondent’s reasons were untrue or pretextual. Judgment for respondent and against appellant was entered accordingly and appellant filed a timely notice of appeal.
Discussion
A. Review of Summary Judgment in Wrongful Termination Cases
The process involved in deciding a summary judgment motion in an employment case can be complex, with shifting burdens of production of evidence and the necessity of evaluating the strength of the parties’ evidence. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-362 (Guz).) The process is not difficult in the present case, however. Here, respondent had clear, articulated, and compelling reasons to terminate appellant’s employment; appellant has presented no substantial evidence to support an inference that respondent’s asserted reasons were not its real reasons for firing appellant. Accordingly, we will not restate in detail the methodology and standards that must be applied in a closer case, relying instead on the full explanation of those issues in Guz.
As in other summary judgment appeals, “we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz, supra, 24 Cal.4th at p. 334.) “In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties.… In this case, we liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, citations omitted.)
B. Termination in Violation of Public Policy
A private employer in California cannot fire an at-will employee if the employer acts for reasons prohibited by considerations of public policy. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 242 et seq., p. 311 et seq.) “[F]or a policy to support a wrongful discharge claim, it must be: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.)
Appellant’s second amended complaint alleged his employment was terminated “in retaliation for plaintiff’s exercise of the following rights: To be represented by an attorney with regard to issues related to employment, to assert his right to be paid overtime compensation, and to be truthful.… Such conduct was in violation of the public policy of the State of California.” This public policy is alleged to be embodied in Labor Code sections 98.6, 923, and 1102.5.
Labor Code section 98.6 prohibits retaliatory firing by an employer of an employee because the employee exercised rights under the Labor Code. Labor Code section 1102.5 prohibits retaliation against an employee who has refused to commit violations of state or federal law or has reported such violations to a government agency. Labor Code section 923 declares a public policy against, among other things, employer interference with an employee’s designation of a representative “to negotiate the terms and conditions of his employment .…”
C. Appellant’s Contentions on Appeal
On appeal, appellant does not address the statutory basis for his public policy claim in any detail. His entire argument on this issue is “that his refusal to sign a document that contained false material statements about issues that were the subject of the class action, and his outward support of the class action for reimbursement of overtime wages were motivating factors in defendant’s decision to retaliate against him by terminating his employment.” The trial court suggested that there was no evidence to support the claim that appellant engaged in any protected activity and appellant does not undertake any detailed refutation of that conclusion.
In a separate argument, appellant contends he was protected by the public policy against retaliation for his request to seek legal counsel, citing Gelini v. Tishgart (1999) 77 Cal.App.4th 219. In Gelini the employee hired an attorney to contact her employer with a claim the employer had engaged in certain retaliatory conduct once he learned the employee was pregnant. The attorney wrote a letter to the employer on the employee’s behalf. A few days after receipt of the letter, the employer fired the employee. (Id. at pp. 222-223.) In the present case, there is no evidence appellant sought advice from an attorney and none that an attorney ever contacted Acord or Willis concerning the home dispatch reminder notice. Under these circumstances, the assertion of the right to contact an attorney was part and parcel of appellant’s refusal to sign the notice; he did not engage in the separate -- and, perhaps, protected -- activity of asserting employment rights through an attorney.
The trial court did not rest its decision on that issue, however. Instead, the trial court concluded there was no evidence that respondent’s stated reasons for terminating appellant’s employment were not its actual reasons for the termination. In other words, the trial court concluded appellant was not fired for any of the reasons claimed by appellant, whether those reasons involved protected activity or not.
Appellant contends he presented sufficient evidence to permit a jury trial on the question of respondent’s motivation for terminating his employment. He says there is direct evidence that, as part of respondent’s fight against a union-organizing campaign, his supervisors were told to “document a case” with legitimate reasons for firing appellant. He also contends there is circumstantial evidence that supports an inference that respondent had impermissible motivations for firing appellant.
1. Appellant’s claims of direct evidence.
Appellant contends declarations by two of respondent’s supervisors establish that appellant was fired for impermissible reasons. The supervisors said that as part of respondent’s drive to prevent union success in an ongoing representation drive, supervisors were told to rank their supervisees as either supportive of respondent’s “company culture” as a nonunion workplace, neutral on the subject, or supportive of the union’s campaign. Supervisors were told to “document a case for termination” against employees in this third category. Appellant was ranked as a supporter of the union and appellant’s supervisor was directed to “begin documenting a case for termination against [appellant].”
This is not direct evidence of respondent’s motivation for firing appellant. It is direct evidence only that respondent wanted to document a case for appellant’s termination. (See Evid. Code, § 410 [direct evidence is evidence of a fact that, “if true, conclusively establishes that fact”].) While our conclusion might be different if such a “documentation” file had existed and was part of the record (depending on the particular contents of the hypothetical file), that is not the case. There is no evidence beyond the direction to appellant’s supervisor to “begin documenting a case for termination.”
The evidence of such a direction to appellant’s supervisor is, however, weak circumstantial evidence of respondent’s motivation for firing appellant, since the evidence permits an inference of antiunion animus in at least some of respondent’s management team. The strength of this inference is greatly reduced by the absence of any showing the directive was implemented or that it resulted in a negative personnel file on appellant. We will discuss below the overall sufficiency of this and other circumstantial evidence to raise a triable issue of fact.
Appellant further contends there is direct evidence the home dispatch program notice, which he refused to sign, “related to the class action and the rush to get it signed related directly to the fact that the lawsuit was pending.” That may be so. However, the fact that respondent was opposing the class action, in itself, is not probative of any issue in the present case. At most, respondent’s opposition to the class action and appellant’s refusal to sign the notice constitute weak circumstantial evidence possibly probative of the relevant issue of respondent’s motivation in terminating appellant’s employment.
The strength of this evidence is greatly reduced by two considerations: First, as the trial court found, the notice consists of a reiteration of existing instructions to the employee, not an undertaking by the employee to abide by those instructions; accordingly, appellant’s refusal to sign the notice did not exempt him from the existing rules and signing of the notice would not have constituted an admission by appellant that claims in the class action were meritless. Second, there is uncontradicted evidence that appellant’s refusal to sign the notice was of little importance to respondent’s managers. What is left of the inference that appellant’s refusal motivated respondent’s action is, in itself, very minimal. However, we will discuss below the overall sufficiency of this and other circumstantial evidence to raise a triable issue of fact.
The notice itself is directed to “managers,” in this case Steve Acord. It directs the manager to “review the following Home Dispatch program reminders with all technicians .… The District Service General Manager is responsible for insuring that the program requirements as detailed below are followed:” There follow five paragraphs, each of which begins, “Confirm that technicians are .…” There are boxes beside each paragraph for the manager to note “yes” or “no” to the question whether the technician is “in compliance.” The form does not have a signature blank for the employee, but appellant apparently was asked to sign by his name in the box at the top of the form entitled “Technician Name:” in which someone already had printed appellant’s name. Willis, who required supervisors to review the form with their technicians, testified in his deposition that he told the supervisors to have the technicians sign the notice so management knew the supervisors had reviewed the notice with all technicians.
For example, Willis stated in his deposition that he told Acord it did not matter that appellant had refused to sign the form: “I just told [Acord] that it’s no big deal. He doesn’t have to sign it.” Neither Acord’s contemporaneous notation on the form nor appellant’s account of the relevant meeting indicates appellant was told he needed to sign the form or there would be repercussions.
2. Additional circumstantial evidence asserted by appellant.
Appellant contends an inference of wrongful motivation can be drawn from the fact that he was fired only 10 days after he refused to sign the home dispatch reminder notice. He correctly notes that cases have recognized the commonsense proposition that two related events that happen in close sequence are more likely related causally than if the same two events are separated by a greater period. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467; see also Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1154 [The employer’s “decision to take these [punitive] actions on the heels of [the employee’s] participation in the investigation might strike a trier of fact as being rather suspicious”].)
There is a commonsense corollary, however: Where the employee misconduct occurred in the interval between protected activity by the employee and termination, there is no such inference of causation arising merely from the temporal proximity. (See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1113.) That is the case here: appellant was suspended immediately after his second unauthorized absence, more than a week after the last claimed protected activity (the refusal to sign the notice). The converse is also true: after appellant’s active role in the union organizing effort, and only a few weeks before he was fired, appellant was awarded the “Exceptional Customer Service” certificate by respondent. Accordingly, while there is temporal proximity between the refusal to sign the notice and appellant’s termination, when viewed in the overall context of events, any inference of retaliation arising from that proximity is exceptionally weak. (See Colarossi v. Coty US Inc, supra, 97 Cal.App.4th at p. 1154 [evidence of temporal proximity to be viewed “as part of the mosaic of evidence”].)
In cases such as Colarossi v. Coty US Inc, supra, 97 Cal.App.4th at page 1154, there was evidence that the employee’s misconduct had occurred both before and after the protected activity, but the employer’s enforcement of the rule followed soon after the protected activity. In such a case, the misconduct upon which the employer claimed to act does not disturb the inference to be drawn from temporal proximity. Appellant does not contend he previously had disregarded work assignments without repercussions.
Appellant contends there is circumstantial evidence respondent’s stated reasons for terminating his employment are untrue and that the untruthfulness of the stated reasons is circumstantial evidence that respondent acted because of appellant’s anticompany attitudes. We conclude that most of this evidence does not support an initial and necessary inference, namely, that the proffered legitimate reasons are untrue. As a result, the evidence cannot support an inference that untrue reasons (if they existed) are evidence of pretext. Appellant asserts four facts that support an inference the stated reasons for discharge were untrue; we examine each in turn.
(1) Appellant contends his deposition testimony establishes, for summary judgment purposes, that Acord expressly agreed at the September 2 meeting that appellant could take the two vacation days in question. This, however, is beside the point. The undisputed evidence is that the demand for repair services was high and that Willis ordered Acord to schedule appellant to work the two days in question. Thus, whether Acord changed his mind or his agreement with appellant was simply reversed by Acord’s superiors, the change was clearly and repeatedly communicated to appellant. There is no hint, for instance, that respondent trapped appellant into misconduct by secretly revoking the previously promised vacation. The evidence does not even marginally support an inference that respondent’s expressed reasons for firing appellant were untrue.
(2) Appellant contends that Willis’s admitted failure to investigate whether appellant “intentionally” misled the second supervisor when obtaining permission to take off the second of the requested days means that “there was no evidence to support one of the main reasons” articulated for appellant’s dismissal, “that is, that he was dishonest.” The stated reason for termination was not dishonesty but, rather, insubordination. As stated in the written notice provided to appellant: “Insubordination. [Appellant] was informed by his immediate manager, Steve Acord, that due to state of service issues, the days off could not be allowed. [Appellant] then went to a different manager for permission to have Friday off.” (Boldface in original.) This is rephrased later as: “[Appellant] disobeyed a direct requirement of his manager.” Thus, appellant’s representations to the second supervisor, whether intentional or otherwise, were not relied upon by respondent to fire appellant and no inference can be drawn from Willis’s failure to investigate appellant’s “dishonesty.”
(3) Appellant contends an inference that respondent’s stated reasons were untrue is supported by evidence that one of respondent’s managers did not think appellant’s conduct justified termination of employment and that appellant’s supervisor, Acord, “felt terrible” about firing appellant. The relevant declarations, however, did not state or suggest that respondent’s expressed reasons for the termination were false. The supervisors’ mere expressions of regret do not support an inference that they thought management was acting to get rid of someone considered anticompany, prounion, or generally uncooperative; rather, the reasonable inference is that the supervisors thought respondent’s stated reasons would not have been sufficient to discharge appellant if these supervisors had been making the decision.
(4) Appellant contends respondent’s employee manual defined “no call/no show” as failure to report for work on two consecutive days. He says that since his absences were not consecutive and he did try to call Acord about the second day, respondent’s use of this phrase in stating its reasons for firing appellant is circumstantial evidence the reasons were false. The stated reason for appellant’s termination was not a claimed violation of the employee manual; instead, it was a claim that he missed two days after being directed to report for work on those two days. Although the phrase “no call/no show” may have had a different usage elsewhere, in the termination notice it is clearly used in a more generic sense to characterize the circumstances fully described in the notice. Accordingly, the discrepancy between the two uses of the phrase is, at most, very weak circumstantial evidence that respondent’s stated reasons were pretextual.
Appellant’s opening brief does not provide a record citation for this claim about the employee manual. Our own review of the record discloses that respondent’s In-Home Technician Operating Policies (Feb. 2003 rev.) does not use the phrase “no call/no show.” Instead, it simply states that among the examples of conduct that “can lead to termination of employment” is “[e]xcessive absences or tardiness, including absence from your job for two consecutive days without notifying your unit.” The next example is “[w]illful misconduct, including insubordination (disregarding legitimate directions from a member of management).”
We note that appellant’s opening brief refers to this discrepancy of usage as “perhaps [the] most striking … evidence casting doubt on believability” of the stated reasons. While we might agree with appellant on this point, it is only because the other evidence so weakly supports appellant’s claims.
To summarize, we have concluded appellant’s evidence supports the following inferences: There was antiunion animus among some of respondent’s managers and appellant was viewed by them as prounion. Appellant’s refusal to sign the home dispatch reminder notice evinced his support of (or, at least, refusal to undermine) the class action and supports an inference of a possible motivation for appellant’s discharge. The temporal proximity of appellant’s refusal and his firing supports an inference that the former was a possible motivation for the latter. And, finally, respondent’s description of appellant’s misconduct as “no call/no show” does not meet the definition of the misconduct described as violative of respondent’s “no call/no show” policy. We have explained why each of these inferences is, by itself, very weak. We now turn to the question whether the interplay of these inferences is strong enough to permit a rational inference that appellant was fired in retaliation for his protected activities. (See Guz, supra, 24 Cal.4th at p. 362.)
D. Evaluation of the Circumstantial Evidence
Guz, supra, 24 Cal.4th at page 362, states the standard for reviewing the sufficiency of circumstantial evidence to raise a triable issue on the employer’s motivation for firing an employee: Once the employer establishes the existence of permissible reasons for its actions, the employee must produce evidence that allows a rational inference that the employer actually acted for wrongful reasons. Importantly, however, “summary judgment for the employer may … be appropriate where, given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that [prohibited action] occurred.” (Ibid.)
Here, respondent’s showing of innocent reasons for the termination was very strong. Acord decided he could not spare appellant on the tentatively scheduled vacation days and told appellant, subsequent to any agreement reached at the September 2 meeting, that appellant could not take the planned vacation days. Appellant advised Acord he thought they had agreed he could have the days off; Acord then told appellant specifically that the workload necessitated that appellant not take the days off. After appellant failed to work as directed on the first of the scheduled days, Acord advised him the absence was unexcused and that he was required to work on the second of the days off. Appellant spoke to a different supervisor and misrepresented that the day off had been approved by Acord -- and did not advise this supervisor Acord had directly ordered appellant to work that day -- in order to receive authorization for the second day’s absence. While it is conceivable that there exist employers who would not fire an employee for similar incorrigible behavior, it is clear that no employer would be required to accept such actions from an at-will employee. We conclude the inherent plausibility of respondent’s stated reasons for firing appellant is very high.
By contrast, appellant’s evidence, even when (or, perhaps, especially when) considered in the overall “mosaic of evidence” (Colarossi v. Coty US Inc, supra, 97 Cal.App.4th at p. 1154) is “too weak to raise a rational inference” of wrongful termination (Guz, supra, 24 Cal.4th at p. 362). The possibility of appellant’s prounion stance as a reason for termination is not reinforced by evidence concerning his refusal to sign the home dispatch reminder notice: the two events were separated by respondent’s entirely discretionary award to appellant for excellent service and both reasons were contradicated by the evidence that appellant’s supervisors hated to see him fired. The temporal proximity of the refusal to sign the notice and appellant’s termination does not reinforce the possibility that appellant’s protected activities motivated respondent to fire appellant both because those activities had, in fact, been ongoing both before and after the service award and because appellant’s clear misconduct was even more temporally proximate -- indeed, it preceded by only a day -- the termination. Finally, the discrepancy between appellant’s misconduct and the “no call/no show” misconduct described in the policy manual provides no additional support for appellant’s desired inference because, however categorized, appellant’s misconduct was clearly serious enough to justify dismissal, even if it was not what the policy manual prohibited. If nondiscriminatory, an employer’s true reasons for discharging an employee “need not necessarily have been wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.)
Thus, appellant’s evidence, even if it is technically sufficient to constitute a prima facie case, ultimately adds up to nothing and fails to permit a reasonable inference of impermissible motivation for appellant’s termination. (See Guz, supra, 24 Cal.4th at p. 362.)
E. Cause of Action for Breach of Implied Employment Contract
Appellant contends the trial court did not address his separate cause of action for breach of an implied contract to terminate appellant’s employment only for good cause. However, appellant relies on exactly the same evidence of retaliation and pretext to conclude that respondent did not discharge him for good cause. The trial court thoroughly considered and discussed this evidence and granted summary judgment on “the remaining two causes of action [that is, wrongful termination and breach of implied contract] on the grounds that the Defendant has met its burden of showing a legitimate, nondiscriminatory reason for discharge … and the Plaintiff has failed to meet his burden of producing” evidence that these stated reasons were not the real reasons for discharge.
It is true that the court did not specifically find that this same evidence establishes that there was good cause for the discharge, but such a conclusion follows as a matter of legal necessity from the finding that respondent’s stated reasons were the actual reasons for discharge: Even if there were an implied employment contract, a matter which we do not need to decide, good cause for termination would include those rules and policies in the employee manual specifically identified as good cause for termination. (See Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 276.) As set forth in footnote 7, ante, respondent’s stated reasons for discharging appellant included at least one reason expressly included in the policy manual. The court properly granted summary judgment on the implied contract cause of action.
F. Other Issues
Respondent presents as alternative grounds to affirm the judgment its preemption and res judicata arguments rejected by the trial court. In light of our disposition of appellant’s claims on appeal, it is not necessary to revisit the trial court’s determination of those issues.
Disposition
The judgment is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: HARRIS, J., WISEMAN, J.
Appellant also contends respondent failed to negate this theory in its summary judgment motion. The employer has the burden of establishing legitimate and lawful reasons for termination but, that having been done, the employee is then required to produce evidence that permits a rational inference that impermissible motivations spurred the employer’s decision to terminate employment. (Guz, supra, 24 Cal.4th at p. 360.) There was no requirement that respondent directly negate each portion of the evidence appellant chose to submit in his attempt to meet this burden.
In his reply brief, appellant cites to testimony in a deposition given by respondent’s human resources manager, in which she uses the phrase “no call/no show” to describe absences for which an employee does not provide an explanation. The manager testified that this action justifies termination only “[i]f it happens two days in a row.” That is not the case here (and the witness was not asked whether that would be the applicable rule here); instead, appellant called in, but was expressly instructed to report for work.