Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

MEMORANDUM^* 

Sharon Diane Goodman appeals the entry of summary judgment against her wrongful termination claim, and the denial of her second motion for reconsideration of summary judgment. Because the district court's order completely disposed of the wrongful termination claim pursuant to Fed. R. Civ. P. 54(b), the summary judgment was properly appealable. We review de novo. Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1078-79 (9th Cir. 1985). In reviewing a grant of summary judgment, we consider the record before the district court at the time the judgment was entered, Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980); 6 J. Moore, Moore's Fed. Practice p 56.27, at 56-1554, n. 18, to determine whether there is a genuine issue of material fact. Fed. R. Civ. P. 56.

In claiming she was wrongfully discharged from her position as territorial sales manager with Coca Cola Foods Division, Goodman contends that her employment contract included an implied-in-fact term permitting discharge only for cause. Under Arizona law, an employment contract for an indefinite term is presumed to be terminable at will. However, appellant can rebut this presumption with evidence that the parties modified their contract to limit the right of discharge. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 710 P.2d 1025, 1036 (1985); Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170, 172 (1984). Whether a particular policy was intended to become part of an employment contract is a question of fact. Wagenseller, 710 P.2d at 1037. Although Wagenseller and Leikvold were not decided until after Goodman was discharged, appellee has not overcome the presumption that these opinions should be applied retroactively. Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 733 P.2d 1073, 1087, cert. denied, 108 S. Ct. 212 (1987).

On appeal, we review the evidence in the light most favorable to the party opposing summary judgment. Continental Casualty Co., 763 F.2d at 1079. In support of her second motion for reconsideration, Goodman submitted her affidavit identifying the supervisors who had told her that an employee could only be terminated for cause. Other evidentiary material included two supervisors' affidavits stating it was Coca Cola's policy to discharge employees only for cause; pages from a Sales Operation Manual setting forth a procedure for discharging employees; and Coca Cola's written statement, signed by Goodman, that new employees were placed on a 90-day probation period. Appellant's Excerpt of the Record at 5.

Although this is a close case, a trier-of-fact could reasonably infer that Coca Cola's statements and conduct created a contractual right in its employees to be discharged only for cause. See, e.g., Leikvold (personnel manuals can become part of employment contracts); Wagner v. Globe, 150 Ariz. 82, 722 P.2d 250 (1986) (parties may create a different employment contract based upon the totality of their statements and actions regarding the employment relationship); Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980) (cited with approval in Wagenseller, 710 P.2d at 1036) (an employee's legitimate expectations grounded in an employer's written policy statements may give rise to an enforceable contract); Wiskotoni v. Michigan Nat'l Bank-West, 716 F.2d 378, 386 (6th Cir. 1983) (statements in manual setting a probationary period, plus company president's testimony that it was the company's practice to dismiss for cause, created a legitimate expectation that employees would not be fired except for cause).

Appellee challenges Goodman's credibility and the authenticity of her supporting materials. Brief of Appellee at 21-25. However, it is inappropriate to grant summary judgment when the affidavits and other evidence raise issues of credibility. Hoover v. Switlik Parachute Co., 663 F.2d 964 (9th Cir. 1981); 10A C. Wright, Federal Practice and Procedure Sec. 2726 (1983).

Whether Coca Cola's conduct modified Goodman's employment contract, and what the terms of such a modification might be, are questions of material fact that must be resolved at trial. Because the district court erred in granting summary judgment, we reverse and remand for further proceedings.

REVERSED.