Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1989)

Edward APODACA, Gerald Dembo, Janet H. Maxwell, ShelleyWeiss Overchuck, Susan Padell, and Ria Wayner,Plaintiffs-Appellants,v.JOHN BREUNER COMPANY, a California corporation, dba BreunersHome Furnishings, Defendants-Appellees.

No. 87-2878.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1988.Decided Jan. 11, 1989.

Before ALDISERT,*  BRUNETTI and O'SCANNLAIN, Circuit Judges.


This is an appeal from the district court's entry of summary judgment in favor of the John Breuner Company ("Breuner") and against the appellants, all former employees of Breuner, on the appellants' claims of, inter alia, breach of implied contracts of employment, defamation, and intentional infliction of emotional distress. We review de novo, see Smith v. Retirement Fund Trust, 857 F.2d 587, 589 (9th Cir. 1988), and affirm.

At the outset, we reject the appellants' contention that they were not at-will employees. There is nothing in the record (including the employee manual) to show that any of the appellants had written work contracts, were bound to definite periods of employment (i.e., had set termination dates), or could not have left Breuner at any time of their own choosing. See Smith v. Cladianos, 752 P.2d 233, 234-35 (Nev.1988) (employee manual may be evidence of implied employment contract only if it manifests intent to modify "at-will" status of employee).

We also reject the contentions of appellants Dembo and Padell that their resignations were constructive discharges. Their failure to allege or show "aggravating factors" such as "a continuous pattern of discriminatory treatment," see Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987), supports the district court's conclusion that Dembo and Padell had alleged nothing more than the "friction that is common in employer-employee" situations.

The appellants' third argument is that Breuner breached its obligation of good faith and fair dealing by discharging the appellants without cause. While it is true that Nevada law imputes the obligation of good faith and fair dealing into every commercial contract, see Nev.Rev.Stat. Sec. 104.1203, apparently including contracts of employment, see K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364, 1369-70 (1987) ("bad faith discharge"), the appellants were not working under the terms of any contracts of employment. Absent a showing that they had contracts of employment, implied or otherwise, and that Breuner's "conduct [went] well beyond the bounds of ordinary breach of contract liability," see Cladianos, 752 P.2d at 235, the appellants' third claim must fail.

In order for the appellants to prevail on their fourth claim, viz., that Breuner intentionally inflicted emotional distress on them, four elements must be shown: (1) extreme and outrageous conduct (2) either with the intent to cause, or with reckless disregard to the probability of causing, emotional distress (3) resulting in severe or extreme emotional distress (4) actually or proximately caused by the defendant. Nelson v. Las Vegas, 99 Nev. 548, 665 P.2d 1141, 1145 (1983). Because the record is devoid of any showing of "extreme and outrageous misconduct" that "result [ed] in severe or extreme emotional distress," we find no error in the district court's ruling in favor of Breuner on this issue. See id.

Because we conclude that there was no merit to any of the appellants' claims asserted on appeal, we need not and do not reach the question of punitive damages under Nevada law.



The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3