Opinion
No. 59721-3-I.
April 14, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-13565-2, Richard J. Thorpe, J., entered February 21, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Schindler, C.J., and Lau, J.
Darrell Peebles (Peebles) appeals a summary judgment order dismissing his claims of employment discrimination, negligent infliction of emotional distress, promissory estoppel, tortious interference with a contractual relationship, and negligent misrepresentation against his former employer, Rodland Toyota, Inc. (Rodland Toyota). Because he failed to raise a genuine issue of material fact about any of these claims, we affirm the trial court's summary judgment order.
FACTS
Rodland Toyota hired Peebles on the suggestion of David Van Noy (Van Noy). Van Noy was General Manager of Rodland Toyota at the time. He had been hired in August 2002 and was terminated in October 2004 for poor performance. Van Noy convinced Wallace Rodland (Rodland), the owner and president of Rodland Toyota, to create the new position of used car director and to hire Peebles for the position. Van Noy and Peebles were friends and had worked together in the past. Before Van Noy created the used car director position, two other employees shared responsibility for the used car department. In August 2002, when Van Noy contacted Peebles about a potential position at Rodland Toyota, Peebles was working at Lithia Ford in California. He was in his early sixties, and the management at Rodland Toyota was aware of his age. Most of the pre-hire discussions about the logistics of the position were between Van Noy and Peebles, but Peebles also spoke with Rodland. Peebles claims that those conversations led him to believe he would be able to work at Rodland Toyota until he retired. On August 28, 2002, while he was still employed at Lithia Ford, Peebles returned by fax a compensation plan agreement to Rodland Toyota. The agreement stated that he would be an at-will employee and that Rodland Toyota could terminate him "at any time and for any reason."
In December 2002, Peebles had heart surgery. On December 23, 2002, his doctor cleared him to return to work on a part-time basis, moving toward full time as he felt ready. On December 26, 2002, Tom Diefendorf, the general manager who replaced Van Noy, confronted Peebles about his purchase of a used 1994 Cadillac that he considered impossible to sell. During this confrontation, Peebles claims that Diefendorf yelled: "If you don't watch yourself, I'm going to fire your ass." Peebles was very upset by this conversation and told Jane Hogland, the personnel manager, that he was going home. She told him that she did not have the authority to talk to Diefendorf about the incident and that he would need to bring his complaint to Rodland. Peebles declined to speak with Rodland and went home. He did not return to the office or call anyone to say that he was sick between December 26 and 31. He claims that he stayed home and failed to call because his conversation with Diefendorf caused him to have an anxiety attack and made him too sick to work or call. On December 31, Diefendorf called Peebles at home and fired him. Diefendorf then sent Peebles a termination letter authorized by Rodland, and Rodland sent a similar letter. Both letters stated that Peebles was terminated and that his position was being eliminated.
Peebles sued Rodland Toyota for disability discrimination, age discrimination, negligent infliction of emotional distress, breach of an implied contract, promissory estoppel, tortious interference with a contractual or business relationship, and fraudulent or negligent misrepresentation. In her deposition, Hogland stated that the company decided to eliminate Peebles' position because "[i]t wasn't working out." Rodland testified that Peebles' performance was not what he had hoped it would be, specifically because Peebles repeatedly bought cars that would be difficult to sell. The trial court granted Rodland Toyota's motion for summary judgment.
DISCUSSION
Standard of Review
We review a summary judgment order de novo and engage in the same inquiry as the trial court. We will affirm summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there are factual issues, we must construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. A material fact is one upon which the outcome of the litigation depends. Although a party moving for summary judgment has the initial burden of showing there is no dispute about any issue of material fact, once that burden is met, the burden shifts to the nonmoving party. The nonmoving party cannot rely on speculation but must assert specific facts to defeat summary judgment. Summary judgment is appropriate if reasonable minds could reach only one conclusion after considering all of the evidence presented.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963).
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992).
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Hiatt, 120 Wn.2d at 65-66 (citing LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989)).
In evaluating summary judgment motions in an employment discrimination case where the plaintiff lacks direct evidence of discriminatory animus, Washington courts have adopted the federal McDonnell Douglas burden-shifting protocol. The plaintiff bears the initial burden of demonstrating a prima facie case of unlawful discrimination. The employer must then produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the presumption of discrimination is rebutted, and the plaintiff must present evidence sufficient to question the veracity of the employer's explanation. Ordinarily, such a showing suffices to require a jury trial.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180-81, 23 P.3d 440 (2001) (adopting protocol from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).
Id.
Id. at 181.
Id. at 185.
Id.
Age Discrimination
To establish a prima facie case of age discrimination, an employee must show that he was (1) within the statutorily protected age group (40 to 70), (2) performing satisfactorily, (3) discharged by his employer, and (4) replaced by a younger person. Here, the evidence is clear that Peebles was not replaced by a younger person. Instead, his employer chose to eliminate the position that was created specifically for him. Therefore he fails to establish even a prima facie case of age discrimination. And the fact that he was terminated only four months after he was hired creates a strong inference that his termination was not based on his age. Without citing any authority, Peebles attempts to argue that his heart condition somehow refutes this inference. But this court generally will not consider arguments that are not supported by authority. We therefore affirm the trial court's summary dismissal of his age discrimination claim.
Id. at 188.
Id. at 189 (citing Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270-71 (9th Cir. 1996)).
See RAP 10.3; Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Disability Discrimination
Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, protects employees from discrimination based on a disability. Under WLAD it is unlawful for an employer to discharge any employee because of the presence of any sensory, mental, or physical disability. To establish a prima facie case, a plaintiff must present evidence that he (1) had a disability, (2) was able to do his job, (3) was discharged from employment, and (4) was replaced by someone who did not have a disability. His employer can rebut the prima facie case by providing a nondiscriminatory reason for his termination. If his employer provides a nondiscriminatory reason for his termination, the employee must show the employer's reason was a mere pretext.
Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 94 P.3d 930 (2004).
Hines v. Todd Pac. Shipyards, Corp. 127 Wn. App. 356, 371, 112 P.3d 522 (2005) (citing Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 488, 84 P.3d 1231 (2004)).
Id.
As with his age discrimination claim, Peebles cannot establish a prima facie case because he fails to present any evidence that he was replaced by someone without a disability. Even assuming that Peebles could establish each element of the prima facie case, he cannot show that his employer's stated reason for terminating him — that it decided to eliminate his position because he was not working out as used car director — was pretextual. To prove pretext, an employee must show that his employer's stated reason for termination is unworthy of belief. No evidence in the record supports Peebles' claim that he was terminated because of his heart condition or that the reasons given for terminating him and eliminating his position were pretextual.
See id.
Id. at 372 (citing Kuyper v. Dep't of Wildlife, 79 Wn. App. 732, 738, 904 P.2d 793 (1995), review denied, 129 Wn.2d 1011 (1996)).
Peebles contends that two Ninth Circuit cases, Little v. Windermere Relocation, Inc., and Passantino v. Johnson Johnson Consumer Products, Inc., support the proposition that mere temporal proximity between the onset of a disability and termination is sufficient to create an inference that any other stated reason for termination is pretextual. But neither of these cases deals with disability discrimination. They are retaliation cases and, thus, not persuasive on this issue. And, even in the retaliation context, temporal proximity suffices to establish a prima facie case but cannot establish pretext in the absence of any other evidence.
301 F.3d 958, 970 (9th Cir. 2002).
212 F.3d 493, 507 (9th Cir. 2000).
See Anica, 120 Wn. App. at 491-94 (considering temporal proximity for the purpose of establishing the causal link necessary for a prima facie retaliation case but rejecting employee's argument that temporal proximity alone is sufficient to create an inference of pretext).
Peebles relies on Renz v. Spokane Eye Clinic, P.S., to argue that pretext should be inferred because his employer gave multiple incompatible reasons for his discharge. But his employer's reasons are not incompatible. The termination letters explain that Peebles was terminated because his position was eliminated. In her deposition, Hogland explained that she prepared the termination letter and packet for Peebles at Diefendorf's request because Peebles' position with the dealership was not working out. Rodland's deposition reveals that his decision to create a position for Peebles was not working out because Peebles was not performing at the level he had envisioned. There is nothing incompatible about these reasons for discharging Peebles. Consequently, we hold that Peebles failed to raise a genuine issue of material fact about whether he experienced disability discrimination.
114 Wn. App. 611, 623-24, 60 P.3d 106 (2002).
Promissory Estoppel
Peebles claims the trial court erred in summarily dismissing his promissory estoppel claim because, although he signed a compensation plan stating that he was an at-will employee, he moved from California to Washington because Rodland Toyota promised him long-term employment. A promissory estoppel claim has five elements:
"`(1) [a] promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise.'"
Havens v. C D Plastics, Inc., 124 Wn.2d 158, 171-72, 876 P.2d 435 (1994) (quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 259 n. 2, 616 P.2d 644 (1980)).
When an employee claims that his employer made a promise that changed his terminable-at-will status, he must provide evidence of a clear and definite promise. General statements about the employer's hope that an employee will remain with the company for a long time or statements by an employee that he hopes to stay with the company until he retires are not sufficiently definite to support a promissory estoppel claim. And, even if Peebles could show a clear and definite promise by Rodland to employ him until retirement, his decision to sign an at-will employment agreement while he was still employed at Lithia Ford negates his claim of justifiable reliance on any earlier promise. Peebles failed to present any evidence of a clear and definite promise of long-term employment to contradict his signature on a form acknowledging his status as an at-will employee. He cannot, given his acknowledgment of his at-will status at a time when he could have remained in his job in California, claim to have justifiably relied on a promise of long-term employment. We affirm the trial court's summary dismissal of his promissory estoppel claim.
Id. at 173.
Id. at 174-75.
Negligent Infliction of Emotional Distress
Peebles contends that Diefendorf's yelling at him about his purchasing a 1994 Cadillac constituted negligent infliction of emotional distress because following the confrontation he had what he believes to have been a panic attack. In the employment context, an employer may be held responsible for negligent infliction of emotional distress only if the alleged negligent acts "are not in the nature of employee discipline." A confrontation about a poor purchasing decision is clearly an act of employee discipline. And to prove negligent infliction of emotional distress, the plaintiff must present some medical evidence of emotional distress. Here Peebles merely claims to have called his doctor, described his symptoms, and determined that he suffered a panic attack. He presented no independent medical evidence to support his testimony. Thus, we affirm the summary dismissal of his negligent infliction of emotional distress claim.
Haubry v. Snow, 106 Wn. App. 666, 678, 31 P.3d 1186 (2001).
Id. at 678-79.
Tortious Interference With a Contractual Relationship
Peebles asserts that Rodland Toyota tortiously interfered with a contractual relationship by offering him a job that induced him to leave his former employer. In Washington, to maintain a claim for tortious interference with a contractual relationship the following elements are required: (1) a valid contractual relationship, (2) knowledge of that relationship by the defendant, (3) intentional interference by the defendant inducing or causing a breach or termination of the relationship, (4) interference by the defendant based on an improper purpose or improper means, and (5) damages. Intentional interference in this context requires proof that the employer made the offer with the objective of harming the employee or used wrongful means that in fact caused injury to the person's contractual relationship. Because nothing in the record suggests that Rodland Toyota offered Peebles the job using wrongful means or with the objective of harming him, we hold that the trial court correctly dismissed the claim for tortious interference with a contractual relationship.
Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 288 (1997).
Schmerer v. Darcy, 80 Wn. App. 499, 505, 910 P.2d 498 (1996) (citing Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158 (1989)).
Negligent Misrepresentation
To establish a negligent misrepresentation claim, the plaintiff must show: (1) the defendant provided false information, (2) which he knew or should have known would guide the plaintiff in a business transaction, (3) the defendant was negligent in obtaining or communicating the false information, (4) the plaintiff justifiably relied on the false information, and (5) it proximately caused his damages.
Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002).
Peebles' negligent misrepresentation claim is based on his assertion that Rodland Toyota was not as financially stable as Rodland led him to believe. He asserts that Rodland should have disclosed that the dealership had only a two year contract with Toyota instead of a standard six year contract. But, even assuming these assertions are true, Peebles fails to show how less than full disclosure about the dealership's financial status proximately caused his damages. The evidence does not suggest that Rodland eliminated Peebles' position because the dealership was financially unstable, but rather because he determined that the new position was not working out the way he had hoped. Thus, we hold that the trial court properly dismissed Peebles' negligent misrepresentation claim on summary judgment. We affirm.
WE CONCUR: