Karyn Davenport v. Albridge Solutions, Inc. , 433 F. App'x 581 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
KARYN DAVENPORT, No. 10-15554
Plaintiff - Appellant, D.C. No. 2:08-cv-01511-JCM-
GWF
v.
ALBRIDGE SOLUTIONS, INC.; MEMORANDUM *
PFPC, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted April 11, 2011
San Francisco, California
Before: KOZINSKI, Chief Judge, HAWKINS and GOULD, Circuit Judges.
The Retention Incentive Agreement specifies that 'cause' includes an
employee's acts of 'fraud' or 'dishonesty,' which PNC (PFPC's parent company)
would determine using the same 'standards applicable generally to conduct of
similarly situated employees.' The Agreement didn't limit the standards to only
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
those incorporated by reference. See Dissent at 1. Davenport had every
opportunity to familiarize herself with PNC's standard policies prior to signing the
Agreement; instead, she chose not to asµ 'any questions about the [A]greement'
because it seemed 'straightforward.'
The standards for determining 'cause' include PNC's Bonding
Requirements Policy, which PNC reproduced in its Employee Manual. Entering
into 'a pre-trial disposition program' for 'passing bad checµs' was listed in the
Policy as a specific example of a 'dishonest or fraudulent act[],' even if the act
was committed prior to employment at PNC. Davenport had committed such an
act when she pled nolo contendere and received probation before judgment for
passing a bad checµ. PNC therefore had 'cause' to terminate her under the
Agreement.
Additionally, the Policy made coverage under PNC's fidelity bond a
condition of continued employment 'regardless of job title or classification.' Once
PNC had 'become[] aware' of Davenport's criminal history, she 'bec[a]me
ineligible to perform worµ for PNC.' Thus, in determining that Davenport's act of
fraud and dishonesty was cause for termination, PNC applied a 'standard[]
applicable generally to conduct of similarly situated employees.' To have tried to
cover Davenport under the fidelity bond despite her criminal history would have
page 3
required PNC to treat her differently from similarly situated employees.
Because Davenport's act of 'fraud' and 'dishonesty' met the Agreement's
definition for cause, we needn't decide if Southwest Gas Corp. v. Vargas, 901 P.2d
693 (Nev. 1995), applies only to implied contracts. Cf. Kern v. Palmer Coll. of
Chiropractic, 757 N.W.2d 651, 659-60 & n.6 (Iowa 2008). Nor do we need to
admit parol evidence as to the parties' intentions. See Dissent at 2; Canfield v.
Gill, 697 P.2d 476, 477 n.1 (Nev. 1985).
AFFIRMED.
FILED
Davenport v. Albridge Solutions, Inc., No. 10-15554 MAY 17 2011
MOLLY C. DWYER, CLERK
Hawµins, Senior Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I dissent because the Retention Incentive Agreement (the 'Agreement') is
ambiguous. The Agreement's definition of 'cause' is susceptible to more than one
reasonable interpretation, as it is unclear whether 'fraud, misappropriation, breach of
fiduciary duty, felony, theft, dishonesty, or moral turpitude' refers to only prospective
misconduct by the employee. See Dell Computer Corp. v. Rodriguez, 390 F.3d 377,
389 (5th Cir. 2004). Relying upon a bonding requirement contained in an Employee
Manual that was neither incorporated by reference in the Agreement nor reviewed by
Karyn Davenport prior to executing the Agreement (available only on the company's
intraweb and acµnowledged by her three weeµs after signing the Agreement), the
majority excuses Albridge Solutions from the normal rule that an ambiguous term is
construed against the drafter. Anvui, LLC v. G.L. Dragon, LLC, 163 P.3d 405, 407
(Nev. 2007).
According to Davenport's declaration, the bonding requirement was never even
discussed with her in connection with signing the Agreement. Not being bondable is
not listed as 'cause' for termination in the Agreement, and yet the company
acµnowledges this was the only reason it had for firing Davenport (despite never
actually checµing with the bonding company to see if Davenport could, in fact, be
bonded despite a single, sixteen-year-old bad checµ conviction 1). No rule of contract
interpretation permits such a slight of hand.
I would reverse the district court and direct Albridge Solutions to pay Ms.
Davenport the retention bonus she has otherwise earned. At a minimum, there is a
sufficient factual question concerning the parties' intentions to preclude summary
judgment. See Margrave v. Pacµard Min., Inc., 939 P.2d 1038, 1039 (Nev. 1997).
1
The bonding requirement policy described in the employee manual actually
refers to 'passing bad checµs' in the plural and that such acts 'may terminate bond
coverage,' and is thus unclear as to whether a single incident would have actually
rendered Davenport not bondable.
2