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Mark Willnerd v. Sybase

July 12, 2011


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court


Before the Court are Defendant's Motion for Summary Judgment (Dkt. 116), Plaintiff's Motion for Partial Summary Judgment (Dkt. 117), Plaintiff's Motion to Strike Parts of Defendant's Affidavits in Support of Summary Judgment (Dkt. 123), and Defendant's Motion to Strike Plaintiff's Evidence in Opposition to Summary Judgment (Dkt. 131). The Court heard oral argument on May 2, 2011. Being familiar with the record, pleadings, and parties' arguments from hearing, the Court will grant Defendant's Motion for Summary Judgment (Dkt. 116), deny Plaintiff's Motion for Partial Summary Judgment (Dkt. 117), and deny as moot, the Motions to Strike (Dkts. 123, 131), as more fully explained below.


Plaintiff Mark Willnerd was employed by Defendant Sybase until his termination on July 18, 2008. Willnerd contends that he was wrongfully discharged because of his participation in the investigation of an incident involving Willnerd. In that incident, Willnerd unbuckled his belt and held out the waistband of his pants in the presence of Stefanie Thiel, the Human Resources Manager for Sybase's Boise office, to show that he had lost weight. Second Am. Compl., Dkt. 98, ¶ 37. Sybase investigated the incident in May 2008, and advised Willnerd that his actions could be perceived as sexual harassment. Id. ¶ 42. According to Willnerd, Sybase employees subjected him to a hostile work environment in retaliation for his participation in the investigation.

In May 2007, Willnerd entered into an Educational Assistance Agreement with Sybase, in which Sybase agreed to pay for Willnerd to attend Stanford's Executive Program. Under the terms of the agreement, if Willnerd was involuntarily terminated for cause within 24 months of executing the agreement, Willnerd would be required to reimburse Sybase for the cost of the program. Id. ¶ 14; Agreement, Ex. 57 to Willnerd Dep., Dkt. 116-12 at 33.

Through May and June of 2008, Sybase investigated concerns about Willnerd's exercise of judgment; these included the belt buckle incident, Willnerd's handling of a reorganization, and his approval of expenses for a foreign national, Johannes Alberti. Second Am. Compl. ¶¶ 49, 55. Around this time, Sybase also conducted a "360" review of Willnerd, a subjective evaluation used for employee training and development through feedback from various respondents. Id. ¶ 50. Willnerd was terminated by his supervisor, Terry Stepien, at a meeting sometime in or around July of 2008. Id. ¶ 58. Stepien formalized Willnerd's termination by a letter dated July 17, 2008, stating three reasons for Willnerd's discharge: (1) Willnerd's handling of a significant re-organization, (2) Willnerd's disregard of Karen Chapin's instruction not to approach Stephanie Thiel about the belt buckle incident, and (3) Willnerd's actions in approving payments for Johannes Alberti. Termination Ltr., Ex. 90 to Willnerd Dep., Dkt. 116-12 at 60-61. In the letter, Stepien notes that Willnerd's inability to continue as an effective manager following his mishandling of the re-organization "was clearly reflected in [his] 360 review." Id.

In October 2008, Sybase demanded reimbursement of $48,950 paid by Sybase for Willnerd's tuition, under the Education Assistance Agreement. Second Am. Compl. ¶ 73. Willnerd asserts that Sybase is in breach of the Agreement, by attempting to wrongfully compel Willnerd to return the funds. Id. Willnerd seeks declaratory relief that Sybase has no right to recover the funds, because the stated "causes" for his discharge were false. Id. ¶ 112. In a counterclaim, Sybase asks for an order that it is entitled to reimbursement under the Agreement. Answer and Counterclaim, Dkt. 9, ¶¶ 21-27.

Willnerd also alleges that Senior Director of Sybase Human Resources Karen Chapin knowingly and maliciously made false and defamatory statements about Willnerd. According to Willnerd, these statements impugned his reputation at Sybase and in the general business community. Second Am. Compl. ¶¶ 117-121.


One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

However, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).


1. Willnerd's Motion for Partial Summary Judgment On His Claim That Sybase Breached the Covenant of Good Faith and Fair Dealing Under Idaho law, in the absence of an express agreement between the employer and the employee limiting either party's right to terminate the contract, either the employer or the employee may terminate the employment relationship at-will, that is, at any time for any reason without incurring liability. MacNeil v. Minidoka Memorial Hosp., 701 P.2d 208 (Idaho 1985). An express agreement sufficient to overcome the at-will presumption can be found in an employer's employment manual or policies if they limit the reasons for termination and the evidence indicates that the parties intended that the manual or policies constitute an element of the employment contract. See Jenkins v. Boise Cascade Corp., 108 P.3d 380, 388 (Idaho 2005). Employment manuals and policies do not change the employee's at-will status when they contain disclaimers that specifically negate any intention on the employer's part to have the policies become part of the employment contract or explicitly state that employment is at-will. Id.; Raedlein v. Boise Cascade, 931 P.2d 621, 623-24 (Idaho 1996); Lord v. Swire Pac. Holdings, Inc., 203 F. Supp.2d 1175, 1179 (D. Idaho 2002).

Here, there is no basis to argue that Willnerd was anything but an at-will employee. The offer of employment submitted by Sybase and signed by Willnerd included a provision entitled "Employment At Will," which stated that "Sybase can terminate your employment at any time with or without cause." Offer Letter, Ex. 1 to Banducci Dec., Dkt. 117-4 at 2. Moreover, Sybase's employee manual contains an explicit at-will policy, under which Sybase may "terminate the employment relationship at any time, with or without cause or prior notice, as it deems appropriate." Sybase H.R. Policies & Procedures, Ex. A to White-Ivy Aff., Dkt. 116-3 at 8. The employee manual's introduction also advises an employee that the employment at-will policy is not subject to change. Id. The introduction further states that "[t]he policies set forth in this Manual do not create a contract of employment and they are not to be construed to constitute contractual obligations of any kind between Sybase and you." Sybase H.R. Policies & Procedures, Ex. B to Glubetich Aff., Dkt. 126-2 at 9. Given this record, it is impossible for Willnerd to argue that he was anything but an at-will employee. And he concedes as much. See Willnerd Mem., Dkt. 117-1 at 5.

To avoid the effect of his at-will status, Willnerd argues that once Sybase elected to terminate him because his conduct, behavior, or performance was unacceptable, it had to make that determination in good faith. Id. at 6. The argument is based upon employment policies which Willnerd contends were incorporated into his employment contract. Specifically, he relies upon language in Sybase's letter offering him employment which required that he acknowledge and execute Sybase's Statement of Values and Business Ethics Policy prior to commencing work. In turn, the Ethics Statement references Sybase's "Human Resources Policies and Procedures" as the source documents that explain in "greater detail" the Statement of Ethics. Ethics Statement, Ex. 10 to Banducci Dec., Dkt. 117-14 at 1. Based upon this, Willnerd contends that the Human Resources Policies and Procedures, like the Ethics Statement, became a part of Willnerd's employment contract. Id.; Willnerd St. of Facts, ¶¶ 14, 31. Among these policies and procedures is the Termination Policy. Termination Policy, Ex. 28 to Banducci Dec., Dkt. 117-25. Section 4.0 of that policy includes a nonexclusive list of the conduct, performance, and behavior that Sybase deems sufficiently "unacceptable" to terminate those employees who exhibit them. Id. Thus, Willnerd contends that Section 4.0 became part of his employment contract and limits the grounds for which Sybase could terminate his employment.

Recognizing the futility of arguing that such provisions changed his at-will status, Willnerd couches his arguments in terms of the covenant of good faith and fair dealing, which is implied in all contracts, including those for employment-at-will. Cantwell v. City of Boise, 191 P.3d 205, 213 (Idaho 2008). However, the covenant does not provide rights beyond those available under a negotiated contract. Id. at 214. Rather, it requires parties to perform in good faith, the obligations existing under the contract. Id. at 213. Breach of the covenant occurs where a party "violates, qualifies[,] or significantly impairs any benefit or right of the other party under an employment contract[,] whether express or implied." Id. at 213-14. The test for breach of the covenant is objective, and considers the reasonableness of the parties in carrying out the contract. Independence Lead Mines v. Hecla Mining Co., 137 P.3d 409, 414 (Idaho 2006); Jenkins v. Boise Cascade Corp., 108 P.3d 380, 390 (Idaho 2005).

A. The Implied Covenant of Good Faith and Fair Dealing Cannot Alter Willnerd's At-Will Status.

The problem with Willnerd's argument is that it is a thinly veiled effort to make an end run around the legal consequences of his at-will employment status. To argue that Sybase, having stated reasons for Willnerd's termination, must do so in good faith, runs counter to decisions of the Idaho appellate courts cautioning that the implied covenant of good faith and fair dealing cannot be used in this manner. Jenkins, 108 P.3d at 390; Jones v. Micron Technology, 923 P.2d at 492 (Idaho Ct. App. 1996). The reason for such a holding is clear -- any other result would be inconsistent with the very concept of at-will employment.*fn1 Indeed, no matter how you view it, Willnerd's argument effectively converts his employment contract from "at-will" to "for cause." Although he implies that his argument is more nuanced, the Court finds no practical distinction. As noted above, the other clear language of the offer letter and employee manuals evidence that the parties did not intend such a result.

Willnerd's argument is not materially aided by his reliance upon Sybase's Ethics Statement, or the Termination Policy included in its Human Resources Procedures.

The Idaho Supreme Court has held that "an employer may provide guidelines[ ] which are necessary conditions for continued employment, and avoid having them read as . . . placing limits on the reasons for discharge." Jenkins, 108 P.3d at 389 (citation omitted). Also, a general policy statement does not constitute an enforceable promise or a modification of an at-will employment contract where the language is too vague for a reasonable person to conclude that the parties intended such a promise or modification. See Hardenbrook v. United Parcel Service, Co., 2009 WL 4798049 at *10 (D. Idaho 2009). Willnerd has not shown that Sybase's Ethics Statement had such specificity that a reasonable person would conclude the parties intended it to limit the manner in which Sybase could discharge Willnerd. This is so, whether the claim is made as a breach of an express provision of the contract or of an implied covenant.

B. Prado Is Not Applicable

Willnerd argues that the result he seeks here was strongly suggested by the decision of Judge Boyle in Prado v. Potlatch, Corp., 2006 WL 2597870 (D. Idaho). The Court has closely reviewed the Prado decision and finds little there to support Willnerd's position. In Prado, the courtgranted summary judgment to the defendant employer, finding that the implied covenant of good faith was not breached. Willnerd correctly notes that Judge Boyle granted summary judgment to Potlatch because Prado was only able to provide "a mere scintilla of evidence" regarding lack of good faith by his employer. Id. at *9. From that observation by Judge Boyle in Prado, Willnerd suggests that the implied covenant could be used to address deceitful reasons for termination if the plaintiff employee presented sufficient evidence of such. Such an argument is not well-founded for several reasons.

First, it is, at best, a strained reading of Judge Boyle's decision. Nothing about the decision suggests that Judge Boyle intended that the implied covenant could be used ...

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