Unpublished Disposition, 874 F.2d 816 (9th Cir. 1983)

MEMORANDUM^* 

Susan Luzier appeals from a summary judgment in favor of Smithkline Beckman on her claims for breach of an employment contract, retaliatory discharge, and fraud. Smithkline Beckman terminated Luzier's employment in January, 1984 during a reduction in workforce. Luzier was chosen for layoff pursuant to a company policy providing that employees on formal warning for (among other things) excessive absenteeism would be the first selected for layoff.

Luzier contends that Smithkline Beckman breached its employment contract by failing to follow the procedures outlined in its employee manuals when it placed her on pre-warning and formal warning. An employee manual can create contractual rights under Nevada law. Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 666 P.2d 261 (Nev.1983). Smithkline Beckman has stipulated that its employee manuals created contractual rights in this case.

The manuals provide a specific policy for dealing with absenteeism. Certain absences, including those related to an industrial injury, are excused and not counted for this purpose. If an employee is absent ten days within a twelve-month period, or is absent on five separate occasions, the employee is to be given a written pre-warning. If the employee's absence record deteriorates to fifteen absences within a twelve-month period or six separate occasions the employee is given a formal written warning.

Luzier contends that the manuals are ambiguous as to whether "six occasions" or "more than six occasions" constitutes excessive absenteeism. Taken together, however, the two provisions on this issue create no ambiguity. The "Procedure for Administering Attendance Policy" states that " [a] formal warning is also to be given if an employee is absent on 6 or more occasions within the preceding 12 months." This clarifies the perhaps confusing wording in the "Definitions": "Absenteeism exceeding 15 days or a maximum of 6 occasions in the preceding 12 months is defined as excessive."

The company also has a more general stated policy on absenteeism: "frequent or extended absence, even though legitimate, impairs an operation and diminishes the value of your job. p If an excessive absenteeism pattern continues even after counselling, an employee may be placed on warning."

On February 16, 1981 Luzier was counseled and verbally warned about her excessive absences. She had been absent on five occasions for a total of twenty-five days. On March 10, 1982 Luzier received a written pre-warning based on five occasions of absence in the previous twelve months. On November 14, 1983 Luzier was given a formal written warning based on six occasions of absence in the previous twelve months. In January, 1984 Smithkline Beckman reduced its workforce. Because Luzier was on warning, she was among the first to be discharged.

Luzier filed a grievance, contending that she should not have been on warning. She argued that one of the absences which formed the basis for the pre-warning should have been considered an excused absence. Thus, she only had four occasions of absence within the previous twelve months and should not have been on pre-warning. Even though the grievance committee agreed that one of the occasions should be dropped, it found that her placement on pre-warning was within company policy, "particuarly considering the employee was counseled only 13 months before."

Luzier argues that the company breached its contract with her by placing her on pre-warning when in fact she had only four occasions of unexcused absence. We disagree. The purpose for having the pre-warning system is to provide employees with the chance to correct the problems in their performance to avoid being placed on formal warning. That purpose was satisfied here. Luzier had the opportunity to improve her record of absenteeism and failed to do so. Instead she had seven more unexcused absences, six within a twelve-month period, before she was placed on formal warning.¹  Further, Luzier has not shown that she informed the company, when the pre-warning was given, that because one of the occasions was excusable the pre-warning was invalid.

Luzier also argues that the company violated its policies when it placed her on formal warning, because it should have recognized that one of the six absences that occurred in the preceding twelve months was excused. Luzier contends that the absence was related to her industrial injury. She relies on her complaint to establish that she filed a form with the company which was not properly recorded. She also asks us to infer from the fact that she saw a chiropractor about her industrial injury on July 19th and from the fact that her insurance file was thereafter reopened that her absence on July 21 was related to her industrial injury.

A person opposing a motion for summary judgment must go beyond the pleadings and show "by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' ... 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56). " [A]t least some 'significant probative evidence tending to support the complaint' " must be produced. T.W. Elec. Serv. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). "The record made on summary judgment controls, not that record plus speculative inferences a trier of fact might add." Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1542 (9th Cir. 1988) (citing Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)).

Smithkline Beckman supported its motion for summary judgment with evidence that Luzier failed to file any form regarding the absence, although asked to do so several times. Luzier has failed to present any evidence establishing that her absence was related to the industrial injury or that she filed a form telling the company that her absence was related to the industrial injury. Thus, Luzier has failed to establish that there is a genuine issue of fact regarding the number of her unexcused absences within the twelve months preceding her formal warning.

Luzier received the benefit of the pre-warning system: a chance to improve. She has failed to produce evidence sufficient to establish that there is a genuine issue of fact regarding her placement on formal warning. Thus, summary judgment was properly granted on her claim for breach of contract.

Luzier contends that a genuine issue of material fact exists regarding her claim that Smithkline Beckman used its policies as a pretext for discharging her when in fact the company's motive was to retaliate against her for reopening her industrial insurance claim. Nevada recognizes such a cause of action. See Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (Nev.1984) (per curium).

To support her contention Luzier relies on the proximity between the time her industrial insurance file was reopened and the time she was placed on formal warning and ultimately terminated. Luzier's industrial insurance file was reopened on September 1, 1983 as of July 27, 1983. She was placed on formal warning on November 14, 1983 and was informed on December 6, 1983 that she was to be discharged. She also contends that an inference that the company was trying to conceal the factual basis for placing her on warning is warranted because she produced evidence that the reporting forms for the absences forming the basis for the formal warning were not given to her when she asked for them.

Smithkline Beckman expressed dissatisfaction with Luzier's record of absenteeism two and one-half years before her insurance file was reopened, and again more than a year before her file was reopened. In the twenty months after she was placed on pre-warning she had an additional seven unexcused absences. Further, she does not dispute that she was discharged as part of a reduction in workforce.

In light of these undisputed facts an inference that she was fired in retaliation for reopening the file is not warranted. Because Luzier has failed to produce any "significant probative evidence tending to support her complaint," see T.W. Elec. Serv., supra, summary judgment on this cause of action was properly granted.

Luzier has not produced any evidence to support her contention that she was defrauded. Even if we make the dubious assumption that she adequately alleged in her complaint a cause of action for fraud, summary judgment was appropriate because Luzier did not produce any evidence to counter Smithkline Beckman's evidence showing the legitimacy of the circumstances surrounding the completion of the absence reporting form for July 21.

AFFIRMED