Unpublished Disposition, 855 F.2d 862 (9th Cir. 1988)

MEMORANDUM^* 

Mark Lloyd Malos appeals a summary judgment for ANR Freight Systems (ANR) on his diversity claim for wrongful discharge.

The plaintiff was hired by ANR as a supervisory trainee in May 1983. ANR's terminal manager discharged the plaintiff from his position as operations manager in February 1985.

The plaintiff's complaint alleged that ANR had breached an implied employment contract by discharging him without just cause, by failing to provide him with prior written notice of the complaints against him, and by failing to provide him with a full and fair opportunity for hearing.

Oregon law applies to the plaintiff's claim for wrongful discharge. "In the absence of a contract, statute or constitutional requirement to the contrary, ... an employer may discharge an employee at any time." Simpson v. Western Graphics Corp., 293 Or. 96, 101, 643 P.2d 1276, 1278 (1982); see Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430, 433 (1987).

The plaintiff does not invoke a statutory or constitutional provision precluding his termination without cause. Nor does he claim that ANR and he have changed the nature of the employment relationship through an express agreement. He had no written employment contract with ANR covering the terms and conditions of his employment. No ANR manager or supervisor ever told him that he could be discharged only for cause, that he would receive a hearing before any suspension or discharge became final, or that he would receive a written warning prior to termination. Thus, upon appeal the only issue is whether a reasonable jury could find an "implied agreement modifying the employment-at-will relationship." Lakeside v. Freightliner Corp., 612 F. Supp. 10, 12 (D. Or. 1984) (citing Simpson, 293 Or. at 101, 643 P.2d at 1278); see Swanson v. Van Duyn Chocolate Shops, Inc., 282 Or. 491, 493, 579 P.2d 239, 240 (1978).

The plaintiff argues that he presented evidence sufficient to allow a reasonable jury to find that a just cause provision should be implied into his contract. First, he refers to three scattered statements made to him by ANR officials: 1) ANR's terminal manager told him during his employment interview that he could have "a career" with ANR; 2) ANR's regional vice president once told him that ANR salaried employees were treated better than union employees; and 3) ANR's terminal manager rebuffed the plaintiff's attempt to have another salaried employee fired by telling him that the other employee could not be terminated because ANR lacked sufficient facts to support a discharge.

These casual comments, made over a two-year period, are too vague and general to allow a reasonable jury to find that a just cause provision is implicit in the plaintiff's contract. The offering of "a career" to the plaintiff constituted only a general statement of ANR career possibilities and was not an offer of lifetime employment. See Degen v. Investors Diversified Servs., Inc., 260 Minn. 424, 110 N.W.2d 863, 866 (1961). The statement that salaried employees were treated better than union employees provides no guidance concerning the way in which salaried employees received better treatment and thus cannot support the implication of a just cause provision. The terminal manager's refusal to fire another employee without reason to do so could not allow a jury to find that ANR had a policy of firing only for cause.

The plaintiff argues next that a just cause provision should be implied into his contract based upon the indication in his employment application form that newly hired employees would be placed on probationary status for their first 30 days on the job. He suggests that the existence of this probationary period demonstrates that he could be fired only for cause after the expiration of the period. However, the expiration of a probationary period does not constitute grounds for the implication of a just cause provision, absent more explicit statements concerning post-probationary status. See Parker v. United Airlines, Inc., 32 Wash. App. 722, 727, 649 P.2d 181, 184 (1982) (declining to imply a just cause provision where an employment status form stated that an employee "would be granted 'regular employment' upon completion of a 6-month probationary period" even though the employer had defined "a 'regular' employee as someone 'retained for an indefinite period of time' ").

The two cases cited by the plaintiff are distinguishable. Wiskotoni v. Michigan Nat'l Bank-West, 716 F.2d 378, 386 (6th Cir. 1983), found there to be a jury question concerning the existence of an implied just cause provision where an employee manual provided for a three-month probationary period and the defendant's president failed upon cross-examination to dispute a statement by the plaintiff's attorney that it was the defendant's practice to dismiss only for cause. Yartzoff v. Democrat-Herald Pub. Co., Inc., 281 Or. 651, 657, 576 P.2d 356, 359-60 (1978), found that summary judgment was inappropriate where an employee was terminated during a probationary period and an employee handbook set forth certain procedures that had to be followed prior to termination.

The plaintiff argues in conclusion that ANR breached an implied contract with him under which he could be terminated only by ANR's president, referring solely to a statement to that effect made by ANR's assistant terminal manager in response to the plaintiff's attempt to have another salaried supervisor terminated. No reasonable jury could find, based upon this evidence, that ANR and the plaintiff had entered an implied contract requiring presidential discharge. The cases cited by the plaintiff are distinguishable because they involved written manuals or employee handbooks detailing proper termination procedures.

The district court's grant of summary judgment to ANR is AFFIRMED.