Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 1439 (9th Cir. 1989)

Michael D. SHACKMAN, Plaintiff-Appellant,v.BIC CORPORATION, Defendant-Appellee.

No. 88-5639.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1988.Decided July 7, 1989.

Before POOLE, REINHARDT and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Appellant Michael Shackman was hired by appellee BIC corporation in 1972 as a sales representative. Shackman signed an employment application which provided, in part:

" [F]urther, I understand and agree that my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at any time without any previous notice."

Shackman was terminated by BIC in 1983. He filed a complaint against BIC in state court for wrongful termination and breach of the implied covenant of good faith and fair dealing. BIC removed the action to federal court, where the district judge granted BIC's motion for summary judgment. We affirm.

California Labor Code Sec. 2922 sets forth the general rule governing employment contracts in California.1  "An employment, having no specified term, may be terminated at the will of either party on notice to the other." The statute creates a presumption that an employment contract is terminable at will. Pugh v. See's Candies, Inc., 116 Cal. App. 3d 321, 324, 171 Cal. Rptr. 917 (1980). BIC claims that in addition to this statutory presumption, Shackman was an at-will employee by virtue of the employment agreement signed in 1972.

We find that Shackman was an at-will employee. Shackman's employment agreement stated that his employment may be "terminated at any time". This provision is similar to language which has been held to create a contractual at-will employment relationship. See Gianaculas v. Trans World Airlines, 761 F.2d 1391, 1393 (9th Cir. 1985) ("I hereby agree that such employment may be terminated by the company at any time without advance notice and without liability to me for wages and salary.") (emphasis added). Although the agreement in Gianaculas also contains language which purports to limit the employer's liability, the operative phrases in the two agreements are virtually identical. As a result, the employment agreement created a contractual at-will employment relationship which precludes Shackman's cause of action for wrongful termination.

Even if the employment agreement had not created an express at-will employment contract, the statutory at-will presumption would apply. Shackman argues that the statutory presumption of at-will employment is overcome by BIC's encouragement of long-term employment as well as its "foster [ing] an understanding among its employees that they could enjoy reasonable job security and retire with the company as long as their position was available and they continued to perform satisfactorily." These vague representations fall short of the type of implied agreements which have been held to be sufficient to overcome the statutory presumption of at-will employment. See, e.g., Hillsman v. Sutter Community Hospitals, 153 Cal. App. 3d 743, 200 Cal. Rptr. 605 (1984) (hospital bylaws enumerating grounds for discipline, notice and hearing); Cleary v. American Airlines, 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980) (express written policy of employer adopting specific procedures for adjudicating employee disputes); Pugh v. See's Candies, Inc., supra, (32 year duration of employment combined with employer's "expressed policies").

Shackman's cause of action for breach of the implied covenant of good faith and fair dealing is barred by the California Supreme Court's decision in Foley v. Interactive Data Corp., 254 Cal. Rptr. 211, 236 (1988). Although Shackman filed this action prior to the date that Foley became final, the Foley decision was given full retroactive effect in Newman v. Emerson Radio Corp., 258 Cal. Rptr. 592 (1989).

AFFIRMED.

REINHARDT, Circuit Judge, concurring.

I concur in the result.

 *

This disposition is not appropriate for publication and may not be cited to or by courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Although Shackman signed the employment agreement in Massachusetts, it is unnecessary to determine whether California or Massachusetts law governs, since both yield identical results. See Gianaculas v. Trans World Airlines, 761 F.2d 1391, 1393 (9th Cir. 1985)

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