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Estate of Curtis v. Costco Wholesale Corporation

United States District Court, D. Idaho

March 18, 2015



RONALD E. BUSH, Chief Magistrate Judge.

Pending before the Court is Defendant's Motion for Summary Judgment (Dkt. 26). Having carefully considered both parties' briefs, the record, and oral arguments, the Court enters the following Memorandum Decision and Order denying Defendant's Motion:


This case arises from Defendant Costco Wholesale Corporation's ("Costco") termination of Patrick Curtis's employment on November 27, 2010, after nearly 27 years of employment. Patrick Curtis ("Curtis") is now deceased. Def.'s St. Facts, ¶¶ 1, 2 (Dkt. 26-2). Plaintiffs Nicole S. Grimmer and Barbara Charbonneau (collectively "Plaintiffs"), are the co-representatives of Curtis's estate.

Costco fired Curtis because he allegedly violated Costco's Drug and Alcohol-Free Workplace Policy. See Kelso Aff., Termination/Resignation Form (Dkt. 29-2, p. 63). Costco store manager Steve Marcy ("Marcy") testified that when Curtis arrived for a work meeting on November 20, 2010, he was "stumbling and staggering", "appeared very inebriated", and "smelled like alcohol." Dale Aff., Ex. B, pp. 33-36 (Dkt. 26-9). See also Def.'s St. Facts, p. 5 (Dkt. 26-2). Marcy then drove Curtis to Kootenai Urgent Care for an alcohol concentration test, which indicated Curtis had a.293 blood alcohol level. (Dkt. 26-2, p. 5). Costco placed Curtis on suspension following the test and eventually terminated his employment altogether. (Dkt. 26-2, p. 7).

Costco's 2007 Drug and Alcohol-Free Workplace Policy (the "2007 Policy") describes two circumstances in which an employee is deemed to be "[u]nder the influence": (1) when an employee has tested positive for an unauthorized substance, like alcohol, or (2) when Costco concludes, due to an employee's appearance, actions, speech or bodily odors, that the employee is under the influence of an unauthorized substance. Dale Aff., Ex. E, p. 1 (Dkt. 26-12). The Policy allows the manager who "reasonably suspects an employee is... under the influence of an unauthorized substance" to "require the employee to undergo" an alcohol test. Dale Aff., Ex. E, p. 2 (Dkt. 26-12). When the testing process is employed, an initial screening test is administered and, if the results of that test are.02 or above, the employee is required to undergo a second, "confirmation test." Id. at p. 3. "Employees who test positive for drugs and/or alcohol or who otherwise violate" the 2007 Policy are subject to disciplinary action "including termination of employment." Id. at p. 4.

Plaintiffs' Complaint alleges that Curtis had a contract of employment with Costco that was breached when Costco failed to obtain a blood alcohol level confirmation test or provide Curtis with "the due process" provided by the Employee Agreement (Count One). Amd. Compl., ¶ 28 (Dkt. 14). Plaintiffs further allege that Costco did not have cause to terminate and, therefore, Costco's actions also violated the implied covenant of good faith and fair dealing (Count Two). Id. at ¶ 30.

Costco seeks summary judgment on both counts. Costco contends that the 2007 Policy disclaims any intention to create a contract; therefore, Costco was not required to obtain a confirmatory alcohol concentration test before terminating Curtis. In the alternative, Costco argues that even if required, Curtis refused to take a second test. Finally, Costco contends that the testing process is not the exclusive means by which Costco can determine that an employee is under the influence of alcohol. Applied to this case, Costco claims it could properly terminate Curtis's employment because he allegedly admitted to being under the influence, making the testing procedure unnecessary.


A. Legal Standards.

In exercising diversity jurisdiction, this Court must apply state substantive law. See Industrial Indem. Ins. Co. v. U.S., 757 F.2d 982, 985 (9th Cir. 1995). The federal rules, however, apply to the summary judgment procedure. Summary judgment is not a procedural shortcut, but rather a means to ensure justice while maintaining judicial efficiency and economy. See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-24 (1986). A "principal purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses". Id. The Court must grant a motion for summary judgment when the evidence shows there is no genuine issue of material fact. Trinity Mountain Seed Co. v. MSD Agvet, a Div. of Merck & Co., Inc., 844 F.Supp. 597, 598 (D. Idaho 1994). A dispute is genuine when both parties' arguments are supported by sufficient evidence and require a fact finder to make a determination. Id. at 599.

In deciding a motion for summary judgment, the Court must construe the evidence in favor of the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court does not determine the credibility of evidence. Mintun v. Blades, CV-06-139-S-BLW, 2008 WL 711636, at *2 (D. Idaho Mar. 14, 2008). However, the party opposing summary judgment cannot rest its argument solely on statements un-supported by the record. Sommer v. Elmore Cnty, 1:11-cv-00291-REB, 2013 WL 5274223, at *2 (D. Idaho Sept. 18, 2013). It takes more than a mere "scintilla of evidence... to defeat a motion for summary judgment. International Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1068 (9th Cir. 2011).

At first, the moving party carries the burden, and must "[demonstrate] the absence of a genuine issue of [material] fact". Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry its burden, the moving party only needs to point out that there is no sufficient evidence to support the nonmoving party's claim. Mintun v. Blades, 2008 WL711636, at *2. This shifts the burden to the non-moving party. Muffley v. Gem County, CV-05-466-S-BLW, 2008 WL 110970, at *1 (D. Idaho Jan. 8, 2008). "The nonmoving party must [then] go beyond the pleadings and show by [its'] affidavits, ... depositions, answers to interrogatories, or admissions on file' that a genuine issue of material fact exists." Id. (quoting Celotex, 477 U.S. 317 at 324).

The Court need not "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. P. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Rather, 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).

B. The 2007 Policy and the 2010 Employee Agreement, together, constitute an employment contract ...

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