Opinion
NO. CIV. S-06-2813 FCD GGH.
May 20, 2008
MEMORANDUM AND ORDER
This matter is before the court on a motion for summary judgment, or alternatively, partial summary judgment brought by defendant Union Pacific Railroad Company ("defendant" or "Union Pacific") pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Randal Anderson ("plaintiff" or "Anderson") opposes the motion. For the reasons set forth below, defendant's motion for summary judgment is GRANTED.
Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
Unless otherwise noted, the court finds the following facts undisputed. (See Pl.'s Response to Def.'s Stmt. of Undisputed Material Facts ("RUF"), filed Apr. 14, 2008). Plaintiff admits that the underlying facts in this case are not in dispute. (Pl.'s Opp'n to Def.'s Mot., filed Apr. 14, 2008, at 19:3). Where the facts are in dispute, the court recounts plaintiff's version of the facts. (See Pl.'s Additional Material Facts ("AMF"), filed Apr. 14, 2008).
1. Employment Status
At all times since Anderson joined the Police Department in May 1996, the policy of the Southern Pacific Police Department and the Union Pacific Police Department has been an at-will employment policy. (RUF ¶ 2). The employment application that Anderson signed expressly stated that a non-collective bargaining unit employee could be terminated at any time with or without cause and that no statements, policies, or procedures could modify the at-will employment relationship or create an implied contract of employment for a definite period. (RUF ¶ 3; Ex. A to Decl. of James M. Schiffman ("Schiffman Decl."), filed Mar. 25, 2008). Anderson was not a collective bargaining unit employee and was subject to the at-will employment policy. (RUF ¶ 4).
While plaintiff seemingly argues to the contrary in his opposition, he does not dispute this fact or cite to any evidence that contradicts this assertion. (RUF ¶ 2).
When Union Pacific and Southern Pacific merged, Anderson was never told that his employment status changed or that he was no longer an at-will employee. (RUF ¶ 5). He did not sign another employment application, and no one ever made any representations to him that his employment status was anything other than at-will. (RUF ¶ 6).
Until January 2006, the Police Department had a written discipline policy, which set forth guidelines for correcting deficient performance and for formal discipline. (RUF ¶ 7). Under the section titled "Formal Discipline," the policy provided that the Regional Director may recommend suspension without pay for just cause and that the General Director may dismiss a department member at any time for just cause. (Ex. B to Decl. of Tania B. Rose in Supp. of Opp'n ("Rose Decl."), filed Apr. 14, 2008, at UP000053-54). The Police Department did not consider the existence of the written discipline policy to abrogate the Police Department's ability to terminate employees without cause pursuant to the existing at-will policy. (RUF ¶ 8). In January 2006, the Union Pacific Police Department made revisions to its written policy manual and changed the name of Policy No. 3.4.1, "Discipline," to "At Will Employment." (RUF ¶ 9). The revisions to the written policy manual were not intended to be a change in Union Pacific's policies, but were made in order to make the Police Department's written policy manual consistent with the company's at-will employment policy. (RUF ¶ 10).
Defendant objects to this evidence for lack of authentication. However, plaintiff's counsel asserts that these documents were produced by defendant during the course of discovery, and defendants do not contest their authenticity. See Maljack Prod., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (holding that the district court did not err in considering documents produced by the defendant during discovery where the defendant did not contest their authenticity). Defendant's objection is OVERRULED.
Plaintiff objects to this evidence for lack of foundation. However, this assertion was made by James Schiffman, the Director of Police Operations for defendant. (Schiffman Decl. ¶¶ 1, 3). Schiffman declared that as Director of Police Operations, he is responsible for overseeing the development of policies for the Police Department. (Id. ¶ 2). As such, he is qualified to testify about the interpretation of Police Department policy regarding disciplinary procedures and at-will employment status. Plaintiff's objection is OVERRULED.
Plaintiff again objects to this evidence for lack of foundation. For the reasons set forth, supra n. 4, plaintiff's objection is OVERRULED.
2. The Underlying Conduct
In January 2006, Union Pacific paid for Anderson to travel and stay in Omaha, Nebraska for three days for work-related meetings. (RUF ¶ 15). On his last night in Omaha, Anderson arranged to meet with employees of Union Pacific's Response Management Communication Center ("RMCC"), whom he had spoken to by telephone. (RUF ¶ 16). He contacted Jessica Hamilton, a dispatcher at the RMCC. (RUF ¶ 17). Around 10:00 p.m., Hamilton returned his call and told him she would pick him up at his hotel. (RUF ¶ 18). Hamilton picked Anderson up, and they met another dispatcher from RMCC, Jill Meyer. (RUF ¶ 19). Anderson, Hamilton, and Meyer went to a sports bar for drinks. (RUF ¶ 19).
According to Hamilton and Meyer, Anderson used sexual innuendos during their conversations and invited them back to his room, which made them feel uncomfortable. (RUF ¶ 20). Anderson admits that he spoke to them about his relationship with his wife and that sexual banter took place. (RUF ¶ 21). During the course of their conversations, Hamilton raised the issue that she was a lesbian. (RUF ¶ 9). Hamilton asked Anderson if Andrea Young, a co-worker of Anderson's, was homosexual. (AMF ¶ 10). Anderson responded that he didn't know, but thought that she might be bisexual. (AMF ¶ 10). After the bar closed, Hamilton drove Anderson around, including by her apartment. (AMF ¶ 11). Thereafter, Anderson told her to take him back to his hotel because it was getting late. (AMF ¶ 11).
The next day, Anderson called Hamilton and apologized about their "off color" conversation. (RUF ¶ 23). Within a week or two thereafter, Hamilton communicated with Anderson by telephone and by e-mail. (AMF ¶ 12).
In early February 2006, Hamilton spoke to another special agent, John Larkin, about her meeting with Anderson. (RUF ¶ 24). She told Larkin what Anderson had said about Young's sexual orientation. On March 6, 2006, during Advanced Officer Training ("AOT") in Ontario, Larkin told Young that there was a rumor going around, started by Anderson, that she was bisexual. (RUF ¶ 25).
On March 7, 2006, while still at AOT in Ontario, Anderson and another male police officer walked over to where Young and two other female officers were talking. (RUF ¶ 26). Anderson said, "Is this a girls' meeting?" (RUF ¶ 27). One of the female officers replied, "No dicks allowed." (RUF ¶ 27). In response, Anderson said, "Why are you still here, Andrea?" (RUF ¶ 27). Young became upset and walked away. (RUF ¶ 28).
On March 8, 2006, Young confronted Anderson about the rumor. (RUF ¶ 29). Young approached Anderson and asked him if he wanted a mouth full of teeth, indicating that she wanted to punch him. (AMF ¶ 14; Anderson Decl. ¶ 12). When asked why she was upset, Young replied that she had heard about his comment that she might be or was bisexual. (AMF ¶ 14). Anderson replied by asking Young who told her about the comment. (RUF ¶ 30). Anderson admitted that it was his opinion that Young could be gay. (RUF ¶ 30).
There appears to be some dispute regarding whether the confrontation occurred on March 8 or March 9. (Compare RUF ¶ 29with Decl. of Randal Anderson in Supp. of Opp'n ("Anderson Decl."), filed Apr. 14, 2008, ¶ 12). However, such dispute is immaterial to the merits of this case.
Later that day, Anderson asked to speak to Young about the matter. (RUF ¶ 32). Anderson apologized to Young, but told her that he was going to continue thinking of her as bisexual. (RUF ¶ 32; Decl. of Randal Anderson ("Anderson Dep."), Ex. 3 to Decl. of Stephanie L. Quinn in Supp. of Def.'s Mot. ("Quinn Decl."), filed Mar. 25, 2008, at 83:23-24, 85:22-23). Anderson told Young that his father was homosexual and that "it just didn't carry much weight" because he was so accustomed to different sexual orientations among people to whom he was close. (Anderson Decl. ¶ 15). Young returned to her room; she was very upset and way crying. (RUF ¶ 33). Anderson went to the room of John Allen, his supervisor, and asked whether he wanted to know what had happened. (Anderson Decl. ¶ 16). Allen advised Anderson that he did not want to speak about it at that point; nothing was discussed about the matter for the remainder of the evening. (Anderson Decl. ¶ 16).
On March 12, 2006, Young made a complaint of sexual harassment by Anderson over the telephone to Union Pacific's Equal Employment Opportunity ("EEO") Hotline. (RUF ¶ 34). She alleged that Anderson told someone he thought she was bisexual and that he made inappropriate comments to her. (RUF ¶ 34). Union Pacific's EEO policy prohibits offensive behavior and statements directed at a person's gender, sexuality, or other protected status. (RUF ¶ 35). It is Union Pacific's policy to investigate all EEO complaints. (RUF ¶ 36). The complaint was processed by Union Pacific's EEO Department, who provided the complaint to the Police Department for investigation. (RUF ¶ 37). The Chief of Police, Dennis Jenson, initiated an investigation into the allegations. (RUF ¶ 38). He assigned primary responsibility for conducting the investigation to Deputy Chief George Slaats, who is in charge of police operations for Union Pacific in California. (RUF ¶ 39).
Slaats interviewed 12 employees, including Young and Anderson. (RUF ¶ 40). He obtained written statements from the witnesses and prepared summaries of each interview. (RUF ¶ 40). During his interview with Young on March 13, 2006, Slaats learned that when Young confronted Anderson about the rumors regarding her sexuality, Anderson did not deny that he had made a comment and told her that he was keeping to his opinion that she was gay. (RUF ¶ 41). Slaats also learned from Young that Anderson made inappropriate comments to her in front of her co-workers during training. (RUF ¶ 42).
Slaats interviewed Anderson on March 14, 2006. (RUF ¶ 43). Slaats thought Anderson's demeanor was very defensive. (RUF ¶ 43). During the interview, Anderson tried to bring up what Young had said or done in the past; Anderson had never previously complained about Young or filed an EEO complaint about her. (RUF ¶ 44). Anderson admitted that he had responded to the "no dicks" comment with "why are you still here?" directed at Young. (RUF ¶ 46).
During the interview on March 14, Slaats directed Anderson that he was not to discuss the investigation with anyone. (RUF ¶ 49). Subsequently, Anderson contacted Jennifer Johnson, another co-worker, telling her about the EEO complaint and that she was named in the complaint. (RUF ¶ 51). Johnson told Slaats about this contact at her interview on March 16, 2006. (RUF ¶ 50). Slaats also learned that after his interview, Anderson attempted to contact Hamilton and Meyer at the RMCC. (RUF ¶¶ 52, 55, 57-59).
Plaintiff asserts that this fact is disputed because Anderson interpreted Slaat's statement as an instruction not to discuss the interview or what was discussed. (Anderson Decl. ¶ 17). However, in his deposition, plaintiff testified that he understood this directive to mean that he was no to discuss the investigation or the interview. (Anderson Dep. at 113:5-7). "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991).
Slaats interviewed Anderson again on March 22, 2006, and asked him whether he had contacted anyone and discussed the investigation. (RUF ¶ 60). Anderson admitted that he attempted to contact Hamilton to find out what she and Meyer had said. (RUF ¶ 16).
Slaats briefed Jenson on the interviews he conducted and provided him with written summaries of the interviews and the witness statements. (RUF ¶ 62). Slaats advised Jenson that he believed termination was appropriate and justified. (RUF ¶ 63). Jenson made the ultimate decision to terminate plaintiff's employment. (RUF ¶ 63). Jenson was concerned about how Anderson treated the women from RMCC and whether he could maintain the professional standards of a police officer. (RUF ¶ 64). Jenson determined that Anderson's comments regarding Young were inappropriate and that Anderson's dealings with Young showed insensitivity on his part. (RUF ¶ 65). Jenson believed that Anderson's conduct violated Union Pacific's EEO policy. (RUF ¶ 66). Jenson also believed that Anderson's contacting of witnesses was in direct violation of Slaat's directive. (RUF ¶ 68).
Jenson made his decision to terminate Anderson's employment on March 20, 2006, but waited to notify him so that additional investigation could be conducted into the allegations that Anderson had contacted witnesses during the investigation. (RUF ¶ 69). Jenson directed James Schiffman, Director of Police Operations, to draft a termination letter to Anderson, which was provided to Slaats for review as early as March 22, 2006. (RUF ¶ 72). After Slaat's follow-up interview with Anderson on March 22, 2006, Jenson believed that Anderson's conduct amounted to insubordination and was further cause to terminate his employment. (RUF ¶ 70).
On March 23, 2006, Slaats received a voicemail message from Tania Rose, stating that she was representing Anderson and asking Slaats to call her. (RUF ¶ 73). The following day, Slaats received an e-mail message from Rose. (RUF ¶ 74). Prior to Rose contacting Slaats on March 23, 2006, Anderson had not told anyone at Union Pacific that he hired an attorney or was represented by legal counsel. (RUF ¶ 75).
On March 24, 2006, Slaats met with Anderson and advised him that his employment had been terminated. (RUF ¶ 78). Slaats provided Anderson with Jenson's termination letter. (RUF ¶ 78).
3. The Litigation
On October 12, 2006, plaintiff filed an action in the Superior Court of California for the County of Shasta, alleging (1) breach of implied contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) wrongful termination in violation of public policy. (Compl., filed Dec. 11, 2006). On December 11, 2006, defendants removed the case to this court on the basis of diversity jurisdiction.
Plaintiff also pled a claim for defamation. However, the parties subsequently stipulated to dismissal of this claim.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party.See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
ANALYSIS
A. Breach of Implied Contract
Plaintiff claims that during the entire course of his employment with defendant, there was an implied in fact employment contract between plaintiff and defendant, which at the time of plaintiff's termination included terms that (1) plaintiff would be able to continue his employment with defendants so long as he carried out his duties in a proper and competent manner; (2) plaintiff would not be demoted, discharged, suspended, or otherwise disciplined without good cause and without a full and fair investigation; and (3) defendant would not evaluate plaintiff's performance in an arbitrary, untrue, or capricious manner. (Compl. ¶ 18). Plaintiff alleges that defendant breached this implied contract by terminating his employment without cause. (Compl. ¶ 22). Defendant asserts that plaintiff signed an express contract, which provided that his employment with defendant was at-will and that no conduct could modify that status. Thus, defendant contends that there was no such implied contract.1. Express Written Agreement
A clear and unambiguous at-will provision in a written employment contract, signed by the employee, cannot be overcome by evidence of a prior or contemporaneous implied contract requiring good cause for termination. Dore v. Arnold Worldwide, Inc., 39 Cal. 4th 384, 389 (2006). Under California law, an employment application completed and signed by an employee that expressly states that employment is terminable at-will also qualifies as such an agreement. See Gianaculus v. Trans World Airlines, Inc., 761 F.2d 1391, 1394 (9th Cir. 1985) (holding that an employee's claim for breach of an implied contract was precluded where the employee had signed an employment application with an express at-will provision).
In this case, it is undisputed that plaintiff signed an employment application when he was hired by defendant Union Pacific's predecessor, Southern Pacific, which unequivocally provided that he was an at-will employee. The application expressly stated that he could be terminated at any time, with or without cause, and that no statements, policies, or procedures could modify the at-will employment. It is also undisputed that after Union Pacific and Southern Pacific merged, Anderson was never told that his employment status changed, he was never asked to sign another employment application, and no representations were made that his employment status was anything other than at-will. Therefore, because plaintiff completed and signed an employment application with an express at-will provision and because there was no indication that this agreement was altered after the merger between Southern Pacific and Union Pacific, plaintiff's claim that there was an implied contract is precluded.
2. Implied Contract
However, even assuming that plaintiff argued that the original employment application does not constitute an express contract between Anderson and Union Pacific, plaintiff has failed to raise a triable issue of fact that he has rebutted the statutory presumption of at-will employment. Under California law, there is a statutory presumption that an employment relationship that has no specified term "may be terminated at the will of either party on notice to the other." Cal. Labor Code § 2922 (2008); Schneider v. TRW, Inc., 938 F.2d 986, 990 (9th Cir. 1991). "An employee may overcome this presumption with evidence of contrary intent." Schneider, 938 F.2d at 990 (citingFoley v. Interactive Data Corp., 47 Cal.3d 654, 677 (1988)). The plaintiff must produce competent evidence of an agreement with his employer that he could not be discharged without good cause.Eisenberg v. Alameda Newspapers, Inc., 74 Cal. App. 4th 1359, 1387 (1999). In evaluating whether there was contrary intent, courts consider the entire relationships of the parties, including the (1) terms of the application for employment; (2) the personnel policies or practices of the employer; (3) the practices of the industry in which the employee is engaged; (4) actions or communications by the employer reflecting assurances of continued employment; and (5) the employee's longevity of service. Schneider, 938 F.2d at 990; Foley, 47 Ca.3d at 677;Eisenberg, 74 Cal. App. 4th at 1387.
Plaintiff does not expressly make such an argument or cite to any cases in support thereof.
The existence of an implied promise to discharge an employee only for good cause is generally a question of fact for the jury.Eisenberg, 74 Cal. App. 4th at 1386. Where the facts are undisputed, the issue of the existence of an implied contract may be resolved as a matter of law. Id.
As set forth above, the employment application completed and signed by plaintiff expressly provided that he was an at-will employee who could be terminated with or without cause. There is no evidence that Union Pacific altered this agreement after the merger with Southern Pacific. Further, the Director of Police Operations declared that at all times since Anderson's employment with the Police Department in May 1996, the Police Department's employment policy has been an at-will employment policy. (Schiffman Decl. ¶ 3).
Plaintiff argues that there is an industry-wide practice of terminating peace officers only for cause, which weighs in favor of finding an implied contract in this case. Plaintiff asserts that as a general matter, public safety officers are entitled to certain rights pursuant to statute with respect to their employment and termination. See Cal. Gov't Code §§ 3300 et seq. Plaintiff contends that this standard is evidence of an industrywide practice and should be applied to plaintiff as a railroad officer. However, plaintiff concedes that these statutory provisions explicitly do not apply to railroad officers. (Opp'n at 16). Therefore, plaintiff has failed to present any evidence that there is an industry-wide practice regarding limiting termination of railroad officers based upon just cause.
In support of his contention that defendant had a policy of terminating employees only for good cause, plaintiff argues that Slaats testified in his deposition that in the last ten years, three police officers had been terminated, and there was good cause to do so in each case. Plaintiff cites to "AMF ***" to support this argument. There is no fact relating to any prior terminations in plaintiff's statement of additional material facts. Moreover, plaintiff does not include the deposition testimony of Slaats in the evidence supporting his opposition. Therefore, because there is no evidence in support of this argument, the court cannot properly consider it.
Significantly, plaintiff fails to offer any evidence of an actual promise that he would be employed for a specific term or as long as he was doing a good job, or that he could only be terminated for good cause. See Eisenberg, 74 Cal. App. 4th at 1389 (holding that summary judgment for the defendant employer was appropriate where the plaintiff employee failed to proffer any evidence that anyone told him he would have job security or could not be terminated without cause). Rather, plaintiff's sole evidence relating to modification of his employment status is a written discipline policy, which set forth a progressive discipline system and provided that the Regional Director may recommend suspension without pay for just cause and the General Director may dismiss a department member at any time for just cause. However, the existence of a disciplinary process does not rebut the presumption of at-will employment status. Davis v. Consolidated Freightways, 29 Cal. App. 4th 354, 367-68 (1994) (holding that the defendant's use of techniques to encourage compliance, other than immediate termination, did not demonstrate that the at-will employment status had been modified and stating that to hold otherwise would force an employer "to terminate employees for any and every infraction — or none at all — in order to maintain the presumption of at-will employment"). Moreover, this disciplinary process was not inconsistent with an at-will employment policy. Rather, the undisputed evidence demonstrates that in January 2006, prior to plaintiff's termination, defendant clarified that the disciplinary process did not modify the at-will employment policy by renaming the written disciplinary policy "At Will Employment." Therefore, plaintiff's proffered evidence is insufficient to raise a triable issue of fact regarding whether the statutory presumption of at-will employment was rebutted.
Plaintiff contends that this policy stated that dismissal was "for cause." This contention mischaracterizes the evidence. The written policy provided that an officer could be dismissed for cause under certain circumstances; nothing in the written discipline policy or any other evidence proffered by plaintiff provided that an officer could only be dismissed for cause.
Finally, while plaintiff's eleven years of employment as a police officer may be relevant to the existence of an implied contract, the California Supreme Court has expressly stated that "an employee's mere passage of time in the employer's service, even where marked with tangible indicia that the employer approves the employees work, cannot alone form an implied-in-fact contract that the employee is no longer at will." Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 341-42 (2000) (emphasis in original). In this case, (1) the employment application signed by plaintiff expressly provided that plaintiff's employment status was at-will and could not be modified; (2) the Director of Police Operations testified that defendant has always had an at-will employment policy; (3) there was no industry wide practice that limited termination of railroad officers employment to just cause; (4) there was no statement made by any of plaintiff's supervisors or defendant's agents indicating that plaintiff's employment status had changed; and (5) the discipline policy that was, at most, ambiguous was revised prior to plaintiff's termination to clarify that a progressive disciplinary structure did not modify the at-will employment status. Because, when viewed in the totality, the undisputed evidence clearly demonstrates that plaintiff was an at-will employee, defendant's motion for summary judgment regarding plaintiff's claim for breach of contract is GRANTED.
Because plaintiff could not raise a triable issue of fact regarding the existence of an implied contract, defendant was at liberty to discharge plaintiff for any reason or no reason.Davis, 29 Cal. App. 4th at 369. Therefore, the court need not reach the issue of whether there was good cause to terminate plaintiff. Id.
B. Breach of the Implied Covenant of Good Faith and Fair Dealing
Plaintiff also claims that the alleged implied employment contract contained an implied covenant of good faith and fair dealing, which was breached by defendant's discharge of plaintiff without good cause. (Compl. ¶¶ 26-29). Defendant asserts that this claim must fail because, as a matter of law, there was no implied employment contract that modified plaintiff's at-will employment status.
The California Supreme Court has noted that "with regard to an at-will employment relationship, breach of the implied covenant cannot logically be based on a claim that the discharge was made without good cause." Foley, 47 Cal.3d at 699 n. 39. The Foley court noted that to interpret otherwise would transmute all at-will contracts "into contracts requiring good cause for termination and Labor Code section 2922 would be eviscerated."Id. The Supreme Court recently reaffirmed this position, stating that "because the implied covenant protects only the parties' right to receive the benefit of their agreement, and, in an at-will relationship there is no agreement to terminate only for good cause, the implied covenant standing alone cannot be read to impose such a duty." Guz, 24 Cal. 4th at 350.
As set forth above, in this case, the undisputed evidence demonstrates that there was no implied employment contract between plaintiff and defendant and that plaintiff was an at-will employee. Therefore, plaintiff does not have a claim for breach of the implied covenant of good faith and fair dealing allegedly encompassed within that contract. As such, defendant's motion for summary judgment regarding plaintiff's claim for breach of the implied covenant of good faith and fair dealing is GRANTED.
C. Retaliation
Finally, plaintiff claims that defendant wrongfully terminated him in retaliation for hiring an attorney. Defendant asserts that this claim must fail because the decision to terminate plaintiff was made prior to defendant's knowledge that plaintiff hired a lawyer.
The California Supreme Court has held that "an employer's right to discharge an at-will employee is subject to limits that fundamental public policy imposes." Green v. Ralee Eng'g Co., 19 Cal. 4th 66, 71 (1998) (citing Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 172 (1980)). "[A]t will employees may recover tort damages from their employers if they can show they were discharged in contravention of fundamental public policy." Id. Fundamental public policies are delineated in constitutional, statutory, or regulatory provisions. Id. (citing Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1095 (1992)). As such, a plaintiff seeking to press a claim for wrongful termination in violation of public policy must point to a constitutional, statutory, or regulatory provision that advances general social policies, which has been violated by the defendant's conduct. Foley v. Interactive Data Corp., 47 Cal.3d at 669; see also Green, 19 Cal. 4th at 81.
To establish a prima facie case of retaliation, a plaintiff must prove (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the two. Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003). If plaintiff is able to assert a prima facie retaliation claim, the "burden-shifting" scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. See Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1453 (2002) (applying the McDonnell Douglas burden shifting analysis to plaintiff's state law claim for wrongful discharge in violation of public policy); Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005).
Under McDonnell Douglas, once a plaintiff makes out a prima facie case of retaliation, the burden shifts to defendants to set forth a legitimate, non-retaliatory reason for the adverse employment action. See Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). If defendants can make this showing, plaintiff must demonstrate that the reason is a pretext for retaliation. Plaintiff may demonstrate pretext in one of two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Calif. Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). The factual inquiry regarding pretext requires a new level of specificity. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). Plaintiff must produce specific and substantial evidence that defendants' reasons are really a pretext for discrimination.Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002); see Martin v. Lockheed Missiles Space Co., 29 Cal. App. 4th 1718, 1732-33 (1994) ("[T]o meet an employer's sufficient showing of a legitimate reason for discharge the discharged employee, to avert summary judgment, must produce substantial responsive evidence that the employer's showing was untrue or pretextual.") (emphasis added) (internal quotations omitted).
Defendant contends that plaintiff cannot establish a prima facie case of retaliation because he has failed to tether his claim to a constitutional, statutory, or regulatory provision that advances general social policies, which has been violated by the defendant's conduct. Moreover, defendant contends that even if Anderson has proffered evidence sufficient to support a prima facie case, plaintiff cannot demonstrate defendant's reason for terminating plaintiff was a pretext for retaliation.
Assuming arguendo that plaintiff has set forth a prima facie case by identifying a protected activity, an adverse employment action in his termination, and a causal connection based upon the proximity in time between his hiring a lawyer and his actual termination, defendant has presented evidence of a legitimate, non-retaliatory reason for plaintiff's discharge. Specifically, defendant presents evidence that Jenson terminated plaintiff's employment because he was concerned about Anderson's treatment of the women from RMCC and whether he could maintain the professional standards of a police officer. Jenson believed that Anderson's comments and dealings with Young were inappropriate, insensitive, and in violation of EEO policy. Jenson also believed that Anderson's contacting of witnesses was in direct violation of Slaat's directive.
Because, as set forth infra, the court holds that plaintiff has not met his burden of demonstrating retaliation, the court need not decide whether hiring a lawyer in conjunction with an internal sexual harassment complaint and investigation is a protected activity for purposes of a Tameny claim.
Most importantly, defendant presents evidence that the decision to terminate plaintiff was not based upon Anderson's hiring of an attorney because the termination decision was made prior to any knowledge by defendant or its agents that plaintiff had hired an attorney. On March 23, 2006, plaintiff's attorney first contacted Slaats via a voicemail message. It is undisputed that prior to this contact, Anderson had not told anyone at Union Pacific that he hired an attorney or was represented by legal counsel. Defendant proffers evidence, in the form of an e-mail to Slaats containing a draft of Anderson's termination letter, that defendant's decision to terminate plaintiff's employment was made by March 22, 2006, one day prior to the contact from plaintiff's attorney.
Plaintiff has not presented any specific, much less substantial, evidence to raise a triable issue of fact that defendant's proffered reason for termination is merely a pretext for retaliation. While plaintiff's burden at the summary judgment stage is not great, he cannot simply rely on generalizations and conjecture. Aragon, 292 F.3d at 661; Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995); see Martin, 29 Cal. App. 4th at 1735 (holding that speculation as to an employer's motive was insufficient to raise a triable issue regarding pretext). Plaintiff contends that defendant's assertion that it had already made the decision to terminate Anderson prior to counsel having called and e-mailed "may not be true in view of the fact that plaintiff's termination letter stated that his supposed tampering with an investigation was an aggravating factor in the termination." (Opp'n at 24). Plaintiff's bald assertion that defendant is lying is not sufficient "specific and substantial" evidence of pretext, particularly considering the evidence proffered by defendant. Plaintiff proffers no evidence to cast doubt on the validity of the March 22 e-mail that contains a draft of Anderson's termination letter. Further, it is undisputed that defendant knew of plaintiff's attempts to contact witnesses, namely Johnson, Hamilton, and Meyer, prior to March 22, 2006. Therefore, the temporal proximity between the phone call on March 23, 2006, and the actual termination of plaintiff on March 24, 2006, is insufficient evidence of pretext where the undisputed evidence demonstrates that the decision to terminate was made on or before March 22, 2006, prior to any knowledge by defendant of the alleged protected conduct. As such, defendant's motion for summary judgment regarding plaintiff's claim for retaliation is GRANTED.
Moreover, in the sole case cited by plaintiff in the discussion of his retaliation claim, the Ninth Circuit noted that "timing, standing alone, may be insufficient to raise a genuine issue with respect to pretext." Stegall, 350 F.3d 1061 (9th Cir. 2003)
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed to close this file.
IT IS SO ORDERED.