848 F. 2d 1242 - Donovan v. United Technologies Inc

No. 87-6396.

United States Court of Appeals, Ninth Circuit.

Before FERGUSON and LEAVY, Circuit Judges, and JAMES A. REDDEN,** District Judge.

MEMORANDUM*

Clarence C. Donovan (Donovan) was terminated because of a dispute with his employer, United Technologies Corporation (UTC), over vacation time. He filed a complaint for wrongful discharge in state court against UTC for breach of an implied contract of permanent employment, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. The action was removed to federal court, where a motion by UTC for summary judgment was granted. We affirm.

UTC's management usually requires its employees to schedule two weeks of vacation during a yearly period in late July and early August when the plant is shut down. UTC says a scheduled vacation during shutdown avoids disruption and inefficiency.

On June 10, 1985, Donovan requested two weeks' vacation time after Labor Day in September to accommodate a planned low cost trip to Europe with friends. The request was denied. On August 10, 1985, Donovan requested, and was denied, a leave of absence from September 3 through September 20, 1985. On August 30, 1985, Donovan again requested a leave of absence for September. His supervisors denied this request and informed him that he was required to be at work the next business day. Nonetheless, Donovan departed for Europe with no notice to UTC.

UTC's policy on absences reads in relevant part:

Sec. III. A. 1. Absent Without Leave (AWOL)

An employee who fails to notify his supervisor promptly at the beginning of an absence shall be considered AWOL (Unless extenuating circumstances prevented notification).

Sec. III. A. 2. Absent Without Permission (AWOP)

a. An employee who is absent (for a reason other than illness) who asked and was refused prior permission for the absence shall be considered as being absent without permission (AWOP).

Should an employee be AWOL or AWOP, supervision should insure proper disciplinary action is taken. Advice and guidance regarding such disciplinary action may be obtained from the Personnel Counselor....

During Donovan's unauthorized absence, his supervisors consulted the Personnel Counselor. They were advised to wait until Donovan's return to see if he could satisfactorily explain his absence. When he returned, Donovan failed to provide a satisfactory explanation and he was suspended without pay. With the approval of the Personnel Department, management recommended that he be terminated. On September 30, 1985, Donovan was terminated.

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Viewing the evidence in the light most favorable to the non-moving party, this court must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

In a wrongful termination case, the plaintiff has the ultimate burden of proving he was terminated wrongfully. Pugh v. See's Candies, 116 Cal.App.3d 311, 329-330, 171 Cal.Rptr. 917, 927 (1981), Cleary v. American Airlines, 111 Cal.App.3d 443, 456, 168 Cal.Rptr. 722, 729 (1980). The legal standard which an employer must meet to justify a termination of employment for cause requires only the existence of a "fair and honest cause or reason, regulated by good faith." Malmstrom v. Kaiser Aluminum and Chemical Corp., 187 Cal.App.3d 299, 321, 231 Cal.Rptr. 820, 832 (1986) (citations omitted).

Donovan insists the real reason he was fired was not due to his unauthorized leave of absence, but rather to a supervisor's malice, ill will, personal animosity, and resentment against him. However, these contentions are based solely on conjecture, speculation, and on a mischaracterization of the company's vacation policy which states: "[c]onsideration will be given, where possible, to the preference of an employee in the scheduling of a vacation. It may be necessary, however, for the Corporation to schedule vacations." Donovan insists this policy requires his preferences to be considered. However, the policy creates only an expectation that UTC will consider an employee's preference. The company has considerable discretion to set vacation time under it. The evidence does not indicate that UTC failed to consider Donovan's preference, only that UTC rejected it on several occasions. Moreover, there is evidence UTC did consider Donovan's preferences when it previously allowed him to take vacation time outside the shutdown period. Finally, Donovan admits he knew he was to report for work after Labor Day, and that his three weeks' leave of absence was unauthorized.

There was legal cause for Donovan's dismissal when he took an unauthorized absence despite his supervisor's express orders. Therefore, the company could not have breached a contract to discharge for cause. Further, a discharge for legal cause (especially when coupled with a termination carried out in conformance with company policies) cannot establish a breach of the covenant of good faith and fair dealing or support a claim for intentional infliction of emotional distress. Under these circumstances, there are no genuine issues of material fact.

The order of the district court is AFFIRMED.