Rick Gress v. Conover Insurance Inc. , 494 F. App'x 772 ( 2012 )

FILED
NOT FOR PUBLICATION OCT 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK GRESS, No. 11-35835
Plaintiff - Appellant, D.C. No. 2:10-cv-03056-RMP
v.
MEMORANDUM*
CONOVER INSURANCE, INC., a
Washington corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna M. Peterson, Chief District Judge, Presiding
Argued and Submitted August 8, 2012
Seattle, Washington
Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.
Appellant Rick Gress (Gress) appeals the district court’s entry of summary
judgment in favor of defendant Conover Insurance, Inc. (Conover).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Under Washington law, a claim for wrongful discharge in violation of a
public policy is a “narrow exception to the employment at-will doctrine.” Cudney
v. ALSCO, Inc., 259 P.3d 244, 246 (Wash. 2011) (en banc). Because Gress failed
to establish that Conover’s conduct was linked to a violation of the Washington
Family Leave Act (WFLA) or the Family Medical Leave Act of 1993 (FMLA), he
failed to raise a genuine issue of material fact that he was terminated in violation of
public policy. See Sanders v. City of Newport, 657 F.3d 772, 777-78 (9th Cir.
2011); see also Sicilia v. Boeing Co., 775 F. Supp. 2d 1243, 1256 (W.D. Wash.
2011) (order) (explaining that the FMLA and the WFLA do not entitle employees
to rights or benefits that “they would not have been entitled to had they not taken
leave”) (citations omitted). Because Gress never requested family leave, he did not
establish a prima facie case of retaliation under either law. See Little v.
Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002), as amended
(considering state and federal claims together); see also Sullivan v. Dollar Tree
Stores, Inc., 623 F.3d 770, 779 (9th Cir. 2010) (noting that general assertions are
not adequate to defeat summary judgment).
2. The Americans with Disabilities Act of 1990 (ADA) and Washington Law
Against Discrimination (WLAD) are public policy mandates prohibiting
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discrimination or retaliation against individuals with disabilities. See Pardi v.
Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004); see also Becker v.
Cashman, 114 P.3d 1210, 1215 (Wash. Ct. App. 2005). It was undisputed that
Conover accommodated Gress’ injury. Because Gress did not raise a material
issue of fact regarding whether his termination was due to his asserted disability or
his exercise of rights under the ADA or WLAD, the district court properly granted
summary judgment in favor of the employer. See Coons v. Sec’y of U.S. Dep’t of
Treasury, 383 F.3d 879, 887-88 (9th Cir. 2004); see also Becker, 114 P.3d at 1213.
3. When there is a bona fide dispute regarding wages, no intentional and
willful violation of the public policy requiring prompt payment of wages exists.
See Snoqualmie Police Ass'n v. City of Snoqualmie, 273 P.3d 983, 990 (Wash. Ct.
App. 2012). Gress did not disagree that there was a bona fide dispute regarding the
wages due to him. In view of the conceded existence of a bona fide dispute, entry
of summary judgment in favor of the employer was warranted. See id.; see also
Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948, 952 (9th Cir. 2012)
(explaining that summary judgment is appropriate when no genuine issue of
material fact exists).
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Gress engaged in a protected activity when he challenged Conover’s failure
to pay his commission earnings. See EEOC v. Luce, Forward, Hamilton &
Scripps, 303 F.3d 994, 1004-05 (9th Cir. 2002) (noting that protected activity
includes protesting an unlawful employment practice). However, as discussed
above, Gress failed to establish a causal link between the wage dispute and his
termination. Therefore, summary judgment in favor of the employer was
appropriate. See Coons, 383 F.3d at 887-88.
4. Washington state law applies the general concept that consideration exists
for an employment contract when an “[e]mployee enters into a noncompete
agreement when he or she is first hired.” Labriola v. Pollard Group, Inc., 100 P.3d
791, 794 (Wash. 2004) (en banc) (citations omitted). Because Gress signed an
employment agreement at the time of his initial hiring that included a
noncompetition clause, the district court correctly determined that the
noncompetition clause was enforceable and binding. See id.
5. “A contract is illusory when its provisions make performance optional or
discretionary. . . .” Cascade Auto Glass, Inc. v. Progressive Cas. Ins. Co., 145
P.3d 1253, 1258 (Wash. Ct. App. 2006) (citation omitted). The fact that Conover
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retained the right to unilaterally modify the contract did not render the agreement
illusory, because the performance obligations remained fixed. See id. at 1257; see
also Duncan v. Alaska USA Fed. Credit Union, Inc., 199 P.3d 991, 1002 (Wash.
Ct. App. 2008) (noting that “[i]t is beyond dispute that Washington law provides
that a terminable-at-will contract may be unilaterally modified”) (footnote
reference and internal quotation marks omitted). That circumstance did not render
the contract illusory. See Cascade, 145 P.3d at 1257.
AFFIRMED.
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