Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 159592
SIMS, J.In an action alleging wrongful termination of employment, plaintiff Scott J. Small appeals from summary judgment entered in favor of the employer, defendant Raley’s, Inc. Defendant admits he violated Raley’s nonfraternization policy but claims he was entitled to a lesser disciplinary action than termination. We shall affirm the judgment.
STANDARD OF REVIEW
A motion for summary judgment should be granted if the submitted papers show that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c), (§ 437c).) A defendant meets its burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)
The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true, or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence. (Id. at p. 854.) We review the record and the determination of the trial court de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
“‘First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ [Citations.]” (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
THE PLEADINGS
On March 6, 2007, plaintiff filed a complaint in two counts, (1) breach of implied contract, and (2) declaratory relief, alleging as follows:
Plaintiff was employed by Raley’s from September 1, 1987, to June 7, 2005. He consistently received good or excellent performance evaluations. During the employment, Raley’s “consistently represented, covenanted, and assured plaintiff, partly orally, partly in writing, and partly defined by the construction placed thereon by defendant Raley’s, that it would not discharge plaintiff from his employment without good cause, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for plaintiff to respond, and to have plaintiff’s response be fairly considered by defendant Raley’s, and only pursuant to progressive and positive discipline procedures such that prior to termination for any cause which did not endanger the health and safety of others, plaintiff would first receive verbal warnings, followed by written warnings, and temporary suspension or suspensions.” Based on these assurances, “an employment contract developed over time... which employment contract was partly written, partly oral, and further defined by the policies, deeds, actions, and forbearance[s], of Defendant Raley’s....” Notwithstanding the employment contract, Raley’s terminated plaintiff on June 7, 2005, “without just cause; without specifying its cause for such termination; without notice of the facts or reports which allegedly justified such termination; without notice of the basis of such termination; without any opportunity by plaintiff to be heard or comment regarding the factual basis which allegedly justified such termination; without any opportunity to comment on the merits or scope of plaintiff’s termination by defendant Raley’s; and, without any verbal warnings, written warnings, temporary suspension or any other form of progressive discipline.”
Plaintiff sought reinstatement to his job, compensatory damages, and (in the second count for declaratory relief) a declaratory judgment declaring rights of Raley’s employees. Raley’s filed an answer denying the allegations.
SUMMARY JUDGMENT MOTION
Raley’s moved for summary judgment on the grounds that (1) plaintiff was an at-will employee who could be terminated without cause; (2) alternatively, Raley’s had good cause to terminate the employment due to plaintiff’s knowing violation of Raley’s Non-Fraternizing Policy; and (3) the declaratory relief count depended on and therefore failed with the wrongful termination count.
Since neither side assigns reversible error to the trial court’s rulings on evidentiary objections, our recitation of evidence on both sides excludes evidence to which the trial court sustained evidentiary objections.
Raley’s separate statement of undisputed facts included the following:
When plaintiff was hired as a courtesy clerk in 1987, he signed an employment application acknowledging his employment was at will and could be terminated with or without cause, at any time. Raley’s never modified the at-will status, and plaintiff acknowledged it again less than one year before his termination. In October 2001, plaintiff was promoted to Customer Service Manager (CSM) at one of Raley’s stores in Redding. No written policies require good cause for termination or mandate progressive discipline. Plaintiff understood some policy violations are so severe that they can result in immediate termination. Raley’s provided training that distinguished between minor offenses resulting in progressive discipline (such as dress code violations) and major offenses warranting immediate termination (such as insubordination and improper behavior).
Plaintiff was terminated for violating Raley’s Non-Fraternizing Policy, which states, “All employees who serve in any managerial capacity may not become romantically involved with anyone within their chain-of-command. Raley’s wants to avoid any employee misunderstandings, complaints of favoritism, claims of sexual harassment and the potential conflicts of interest that may arise from personal or social relationships involving employees and their Managers.”
Plaintiff acknowledged receipt of the Non-Fraternizing Policy on April 26, 2003, when he signed an acknowledgement form stating that failure to comply with the policy “can lead to discipline up to and including termination.” He also acknowledged receiving Raley’s 2004 Employee Handbook on October 5, 2004, which contained the Non-Fraternizing Policy, and he signed an acknowledgement that “failure to comply with any company policy (including, but not limited to, those listed in the Employee Handbook) may result in immediate discharge or other discipline, where applicable.” Plaintiff was also advised as part of a new management training program that “[f]ailure to notify the company of a romantic involvement between a management employee and an employee in that manager’s chain-of-command... will not be tolerated,” and Raley’s reserved the right “to transfer, reassign, demote, or terminate employees to resolve violation of this policy.”
The trial court sustained plaintiff’s evidentiary objections to admission of the written documents as evidence but, as the court observed, plaintiff admitted signing them and their content.
As CSM, plaintiff was in a managerial capacity. He supervised the store’s head clerks and checkers, including Nancy Harper. Shortly after being promoted to CSM in October 2001, plaintiff began socializing outside of work with Harper and other employees. Harper’s declaration stated that by early 2002, plaintiff and Harper were spending one-on-one time together outside of work. By March 2002, plaintiff and Harper were personally, socially and sexually intimate. During the next three years, they engaged in a long-term, on-again-off-again sexual relationship. Plaintiff knew he was violating Raley’s Non-Fraternizing Policy, feared discipline, and told Harper to keep the relationship a secret or he would end it. Each time they stopped seeing each other, she felt he “reel[ed]” her back into the relationship. The last time they had sex was April 2005, at which point Harper believed they were a couple again. However, within one week, plaintiff told her he was seeing another woman. Harper was devastated. She found it difficult to go to work and report to plaintiff. She called in sick to avoid him. In May 2005, another employee, Lisa Poarch-Siem, asked Harper if she was okay. Harper broke down and said she had been sexually involved with plaintiff for portions of the past three years.
With the coworker’s encouragement, on May 27, 2005, Harper told Store Director Bill Webb about the relationship and her difficulty working under plaintiff’s supervision. Webb attested he was previously unaware of the relationship. That afternoon, Webb met with plaintiff, who admitted the relationship. The following morning, Webb advised plaintiff he was being suspended pending investigation regarding potential violation of the Non-Fraternizing Policy.
On June 8, 2005, after reviewing written statements by plaintiff and Harper, as well as corroborating statements from Webb and Poarch-Siem, Raley’s terminated plaintiff for violating its Non-Fraternizing Policy. Webb and Harper attested that, following plaintiff’s termination, the store split into two camps and underwent turmoil. Many employees were cold to Harper and blamed her for plaintiff’s departure. Due to distress from the breakup and the turmoil, Harper took a leave of absence and sought additional counseling.
OPPOSITION
In opposition to summary judgment, plaintiff admitted that the allegations of his declaratory relief count mirrored his wrongful termination count.
Plaintiff admitted the relationship with Harper but (irrelevantly) claimed it was sexual only, not romantic, and both parties were free to, and did, pursue other relationships. Plaintiff admitted having sex with Harper around April 2005 but claimed the relationship had already ended six months before he was fired in June 2005.
In response to Raley’s undisputed fact about the turmoil in the store and Harper’s distress, plaintiff responded: “Deny: [¶] This is a half truth. Harper believes she made a huge mistake in reporting the relationship and was irrational in her perceptions. Neither she nor Lisa Siem expected that Plaintiff would be terminated.”
Plaintiff objected to the submission as exhibits of the written acknowledgements that policy violations may lead to termination, yet he admitted in his response to the separate statement of facts that he signed them. He responded, “Plaintiff admits he signed the referenced acknowledgement form but alleges that discipline for violating Raley’s non-fraternization policy was reasonably expected to be a transfer and only after he was provided with an opportunity to cease the relationship. Since Plaintiff had ceased the relationship approximately six months earlier[] (with one exception)[,] Plaintiff did not anticipate any action by Raley’s.”
Plaintiff argued that Raley’s created an implied employment agreement not to terminate without cause and not to terminate without following progressive discipline by (1) never terminating anyone without cause or business reasons, and (2) having and consistently following a policy of progressive discipline.
Plaintiff admitted Raley’s non-fraternization policy prohibited relationships between managers and subordinates, but he claimed Raley’s discipline policy modified the non-fraternization policy to exclude relationships that are kept out of the workplace and that have no impact on Raley’s or its employees. He admitted signing the acknowledgements but did not recall the topic being covered in a management training program. Plaintiff asserted he reasonably expected that discipline would be a transfer and only after he was provided with an opportunity to cease the relationship. Since he said he ceased the relationship six months earlier, except for one incident of sexual intercourse, he did not anticipate any action by Raley’s. Plaintiff admitted telling Harper to keep the relationship a secret but denied threatening her. He claimed his main concern was that coworkers not invade his private life. His secondary concern was that Raley’s would tell him to stop seeing Harper or transfer him.
Plaintiff claimed that Raley’s instructed its employees through written policies and “its culture” that infractions of policies that did not involve theft or endanger others, would be subject to progressive discipline with sequential steps for the same infractions including oral warnings, written warnings, suspension and, only when all else failed, termination. Plaintiff asserted Raley’s trained its employees and by its conduct reinforced, that its non-fraternization policy was a minor policy. Plaintiff admitted signing the document of at-will employment, but cited deposition testimony of Raley’s Human Resources Director Gerald Landers that all terminations of which he was aware were for cause or business reasons such as store closure.
With his opposition, plaintiff submitted declarations from former Raley’s managers, Steve Bodine, Alan Smith, and Steve Barbich. Among the attestations remaining after the sustaining of evidentiary objections, the declarants were unaware of any other instance where violation of the non-fraternization policy resulted in immediate termination. The declarants were shocked to learn that plaintiff was terminated for a non-fraternization violation. Steve Barbich attested he was store director until he retired in 2004, and he never saw any evidence of a romantic relationship between plaintiff and Harper and never saw any evidence that the relationship affected the workplace.
The trial court sustained blanket objections to declarations and deposition testimony for failure to cite to relevant pages. However, the court also addressed individualized objections to specified statements within those exhibits, sustaining some and overruling others. We shall therefore consider specific statements to which evidentiary objections were overruled.
Plaintiff presented a separate statement of facts in dispute, reiterating his position and asserting that Raley’s treats its non-fraternization policy as a non-material term of the employment agreement. The Handbook prescribes specific discipline for violations of various policies, but not for the non-fraternization policy. Plaintiff asserted Raley’s does not prescribe discipline for policy violations that occur off-premises and do not impact the workplace. According to Raley’s discipline procedures, if the conduct occurs entirely off premises, Raley’s must prove the conduct had an impact on someone’s job performance or Raley’s mission before it can impose discipline.
Thus, plaintiff submitted Raley’s written Discipline Procedures, which said, “We divide discipline into two categories; Minor Discipline (Work Performance) and Major Discipline (Punitive). [¶]...[¶]... We use progressive discipline step for work performance type issues.” The document identifies as Minor Discipline: Failure to maintain work schedule, dress code, checkstand violations, poor customer service, failure to perform job duties, failure to follow sanitation procedures, and unsafe work habits. The document identifies as Major Discipline: Misappropriation of company funds or merchandise, substance abuse, physical or verbal violence, insubordination, falsification of company documents (timesheets), sexual harassment, altercation, use of profanity toward a customer or fellow employee, job abandonment, and “Improper behavior.” The same document also said regarding Major Discipline, “Can we terminate for a first offense? Yes, provided they know the rules or a reasonable person should know their actions could lead to termination. [¶]·Punitive - Certain behaviors are unacceptable and the progressive discipline steps can be waived.”
Regarding off-premises conduct, Raley’s written Discipline Procedures said, “Off-premises conduct - long arm of the employer to review conduct outside of work. Need to prove a nexus to the job. Questions that must be asked? [¶] a. Did the private behavior impact the employee’s ability to do their job (example, being arrested) [¶] b. Did the behavior impact the morale and efficiency of co-workers? [¶] c. Did the behavior have an impact on the mission of the Company (example customer complaints) [¶] Difficult area to discipline employees.”
We indulge for the moment plaintiff’s belief that a sexual relationship between a manager and subordinate is “off-premises conduct” as long as the sex occurs away from the workplace.
Plaintiff submitted his own declaration asserting his relationship with Harper was conducted entirely off-premises and never impacted anyone’s job performance or the company’s mission. The only negative effect was the indirect effect on Harper, which was caused by plaintiff’s declining to rekindle the relationship. Plaintiff cited Harper’s deposition testimony that reporting the relationship was a “huge mistake.”
REPLY
Raley’s filed reply papers, including numerous evidentiary objections.
THE RULING
The trial court ruled on the evidentiary objections of both sides (stating it did so despite procedural noncompliance on both sides) and granted the defense motion for summary judgment.
The court sustained plaintiff’s objections to written acknowledgements that he could be terminated immediately for violation of any company policy, but the court observed plaintiff admitted in his response to the separate statement of undisputed facts that he signed the acknowledgements. The court found no triable issue regarding plaintiff’s at-will employment status, and therefore Raley’s could terminate the employment without cause. Alternatively, assuming for the sake of argument that Raley’s needed good cause, plaintiff’s violation of the Non-Fraternizing Policy constituted good cause. The evidence showed the relationship had a major impact on the subordinate. The court should not second-guess managerial decisions. The court observed plaintiff was not entitled to the declaratory relief he sought, which asked the court to adjudicate rights of other employees who were not before the court.
Judgment was entered on February 1, 2008.
MOTION FOR NEW TRIAL
On March 7, 2008, plaintiff moved for a new trial on the ground that the court’s October 15, 2007, order denying plaintiff’s peremptory challenge to the judge (Code Civ. Proc., § 170.6) as untimely in light of an all-purpose assignment made at the case’s inception, was erroneous as a matter of law, rendering the subsequent rulings and judgment void as being in excess of the court’s jurisdiction.
The trial court denied plaintiff’s motion for new trial, concluding the peremptory challenge was untimely and, in any event, a writ of mandate is the exclusive method to contest denial of a peremptory challenge.
Plaintiff filed a notice of appeal from the summary judgment, the order denying his peremptory challenge to the judge, the denial of a discovery motion, and the order denying a new trial.
DISCUSSION
Although the notice of appeal specified an appeal from various rulings, plaintiff’s opening brief on appeal addresses only the summary judgment, and we therefore need not consider the other matters. Plaintiff mentions his peremptory challenge of the judge (Code Civ. Proc., § 170.6) in the introduction and background portions of his brief, but he makes no legal argument on this issue, and we therefore need not consider it. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We therefore need not address Raley’s argument that the trial court properly denied the motion for new trial because writ relief was the sole remedy for denial of a peremptory challenge.
Plaintiff argues he did not voluntarily sign anything making his employment at-will. However, we need not tarry on the question of at-will status, because both sides admit plaintiff violated and was terminated for violating the anti-fraternization policy. The judgment can be readily affirmed on this ground.
An employee’s violation of the employer’s policies provides grounds for termination, and juries should not be allowed to decide the correctness of an employer’s business judgment in making termination decisions, particularly with respect to managerial employees (absent an unlawful basis such as illegal discrimination). (Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th 93, 100 (Cotran); Moore v. May Dept. Stores (1990) 222 Cal.App.3d 836, 838-839 [affirmed summary judgment in favor of employer who discharged employee for serious misconduct -- leaving gold jewelry unattended -- in violation of company policies].) Though it involved distinguishable facts, Crosier v. United Parcel Service, Inc. (1983) 150 Cal.App.3d 1132 (overruled on other grounds in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 688), affirmed summary judgment in favor of an employer who terminated a managerial employee after he admitted lying about cohabiting with a subordinate in violation of an unwritten company rule prohibiting social relationships between managerial and nonmanagerial employees. Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256 affirmed summary judgment in favor of an employer who discharged a managerial employee after the employer conducted an investigation into reports that the manager had sexually harassed two employees.
Plaintiff contends Raley’s routinely treated violations of its Non-Fraternizing Policy as minor infractions, and its published discipline procedures required Raley’s to demonstrate a negative impact on the workplace and entitled plaintiff to progressive discipline. Plaintiff cites Cotran, supra, 17 Cal.4th 93, for the proposition that, if plaintiff was entitled to the protection of the employer’s published discipline procedures, then a triable issue exists as to whether Raley’s terminated him for good cause or for reasons that were trivial or pretextual.
However, Cotran, supra, 17 Cal.4th 93, does not help plaintiff. It held an employer need not prove an employee actually committed misconduct. Rather, the question is whether the employer’s finding of misconduct was reached honestly, after an appropriate investigation and for reasons that were not arbitrary or pretextual. (Id. at pp. 107-108.) Here, plaintiff admitted the misconduct, and he presents no evidence of any unlawful pretext.
Moreover, Raley’s published discipline procedures did not promise progressive discipline for this violation. Although the document did not specify the anti-fraternization policy as a “major discipline,” it did specify “improper behavior” as a “major discipline,” and further specified that employees could be terminated for a first offense provided they know the rules or a reasonable person should know their actions could lead to termination. Thus, even assuming for the sake of argument that a triable issue exists as to whether plaintiff could reasonably think his violation would not immediately lead to termination, he nevertheless could be fired as long as he knew the rules, which he clearly did. A manager’s sexual relationship with a subordinate constituted improper behavior, and plaintiff knew it.
Aside from Raley’s business reasons for the policy, as expressed in the document, the policy is also important to ward off sexual harassment lawsuits, as also expressed in the document. That this relationship was consensual and that this subordinate blamed herself is without consequence.
Plaintiff says he submitted evidence (declarations from former managers and deposition testimony of Raley’s employees, including the Human Resources Director) supporting his contention that there was an implied agreement arising from the published policies and past conduct of Raley’s which contradicted the documents plaintiff was forced to sign, and which required Raley’s to prove that plaintiff’s off-premises conduct had a negative impact on the workplace, and that he was entitled to progressive discipline (warnings and suspension) before he could be terminated. Plaintiff says the trial court ignored this body of evidence.
However, it is plaintiff who ignores the legal insignificance of this evidence. Even assuming Raley’s never fired any other employee for violating the anti-fraternization policy, that does not mean plaintiff has a viable lawsuit for his termination, absent evidence that Raley’s used his violation as a mere pretext to cover up an unlawful reason for getting rid of him. No evidence of pretext appears in the record.
Moreover, plaintiff is wrong in his reliance on the “off-premises conduct” policy. He argues his violation of the anti-fraternization policy constituted “off-premises conduct” and therefore Raley’s was required by its own policies to prove the off-premises conduct affected the workplace. However, the fact that plaintiff and Harper did not have sex on store premises does not save plaintiff’s complaint. Clearly, the non-fraternization policy did not merely prohibit off-premises activity. The policy expressly stated what any reasonable person would understand, i.e., that sexual relationships inevitably spill over into the workplace. Indeed, that is what happened here. The undisputed evidence showed Harper was stressed at work and was unable to do her job because it required interaction with plaintiff. Plaintiff splits hairs, asserting this evidence post-dated the relationship. However, aside from plaintiff’s self-serving definition of a relationship (he does not want to count his sexual encounter with Harper one week earlier because by his definition the relationship had already ended months before that encounter), the plain and undisputed fact is that the relationship caused this stress on this subordinate and affected her work.
Nor does it matter that the subordinate regrets reporting the relationship. Thus, plaintiff considers it significant that Harper said in a deposition that it was a “huge mistake” to report the relationship to Bill Webb, because “I should have handled my personal business with Scott privately, outside of work.” She spoke to Webb because she wanted and asked to take two weeks off, because she was having a hard time keeping her emotions and tears at bay while at work, and she worked in a public place. She spoke to Webb spontaneously, did not consider the consequences to plaintiff, and never thought they would be this severe. She is very sorry. Most employees turned against her after plaintiff got fired. Raley’s did not discipline her. She felt terrible that plaintiff lost his job. None of this saves plaintiff’s complaint. Rather, it reinforces the good sense of an employer having an anti-fraternization policy.
Nor is plaintiff’s case assisted by his assertion that other violators of the non-fraternization policy got away with a lesser punishment. Plaintiff ignores the fact that the trial court excluded his evidence on this point. The court allowed only evidence that the declarants were unaware of any other employee being fired for violating the non-fraternization policy. Moreover, even assuming other violators received a lesser punishment, that would not raise a triable issue of an implied contract not to terminate plaintiff without first using progressive discipline. Indeed, one of the declarations submitted by plaintiff said progressive discipline was “generally” employed.
Plaintiff complains the trial court did not expressly determine whether progressive discipline was part of the employment agreement. However, the trial court’s order granting summary judgment necessarily rejected plaintiff’s theory that progressive discipline was part of his employment contract.
Plaintiff’s opening brief on appeal presents no legal argument or analysis to save his declaratory relief count.
We conclude the trial court properly entered summary judgment in favor of Raley’s.
DISPOSITION
The judgment is affirmed. Defendant Raley’s, Inc., shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur, BLEASE, Acting P. J., BUTZ, J.