Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Ivin V. HINTON, Plaintiff-Appellant,v.The MAY DEPARTMENT STORES COMPANY, a New York corporationdba Meier & Frank Company, Defendant-Appellee.

No. 90-35456.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1991.Decided March 18, 1991.

Appeal from the United States District Court for the District of Oregon; No. CV-89-00700MA, Malcolm F. Marsh, District Judge, Presiding.

D. Or.

AFFIRMED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT, and FARRIS, Circuit Judges.


MEMORANDUM* 

Ivin Hinton appeals summary judgment on his claim of breach of an implied employment contract. We affirm.

Hinton was terminated from his position as store manager without a warning. When he was hired, Hinton signed a copy of defendant's Rules of Conduct which stated in pertinent part:

I certify that I have read and understand the Meier & Frank Rules of Conduct.... I realize these rules cover any period during which I am employed by Meier & Frank. I understand that neither these rules nor any other policy or practice of the Company or its agents constitute a contract of employment written or implied, for any specific or indefinite duration.

Plaintiff concedes he signed this disclaimer free of duress, and that the provision is not unconscionable. If the disclaimer is effective in making his employment "at-will," he may be terminated at any time for any reason. Nees v. Hocks, 536 P.2d 512, 514 (Or.1975).

Oregon courts have never decided whether a disclaimer in an employee handbook is effective to avoid formation of an implied-in-fact employment contract. They have ruled that a handbook may create such a contract, Fleming v. Kids and Kin Head Start, 693 P.2d 1363, 1364-65 (Or.1985), as may oral representations, Sabin v. Willamette-Western Corp., 557 P.2d 1344, 1347 (Or.1976). The Oregon cases plaintiff cites only confirm this general proposition: none deals with the effect of a disclaimer in the employment context. Nonetheless, Oregon courts have held disclaimers effective in preventing reliance on oral representations in other areas. See Duyck v. Northwest Chemical Corp., 764 P.2d 943, 945-46 (Or.1988). We agree with the district court that Oregon courts would find a disclaimer effective in the employment context as well.

Hinton argues an implied contract existed despite the disclaimer. He relies on evidence that May Department Stores made written and oral representations that executives would not be fired unless first warned their jobs were in jeopardy. He failed to present evidence that May Dept. Stores consistently warned executives before termination or that he relied on any representations. His evidence is insufficient to avoid summary judgment. See Celotex v. Catrett, 477 U.S. 317, 323 (1986).

This court has upheld summary judgment based on Hawaii law in a case involving a disclaimer and an allegation of an implied-in-fact employment contract1 . Courtney v. Canyon Television and Appliance Rental, 899 F.2d 845, 850 (9th Cir. 1990). See also Doe v. First Nat'l Bank of Chicago, 865 F.2d 864, 872-73 (7th Cir. 1989) (dismissal of contract claim upheld because disclaimer made employment manual insufficiently promissory); Reid v. Sears Roebuck & Co., 790 F.2d 453, 461 (6th Cir. 1986) (disclaimer upheld on summary judgment despite later communication of assurances of employment security).

Plaintiff argues the disclaimer is ineffective because defendant has not demonstrated it was still in effect on the date he was terminated. However, once the moving party establishes the disclaimer's existence, the burden is on the nonmoving party to show that it was waived or rescinded. See Courtney, 899 F.2d at 850; Oregon Bank v. Nautilus Crane & Equip. Corp., 683 P.2d 95, 102 (Or.1984). Plaintiff's evidence of waiver is insufficient to avoid summary judgment. See Celotex, 477 U.S. at 323.

AFFIRMED.

 *

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

 1

Hawaii law, like Oregon's, holds that employment is at will, but an employee handbook can create enforceable obligations. See Courtney, 899 F.2d at 850