Xochitl Nisbet v. American National Red Cross ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XOCHITL NISBET, No. 18-55534
Plaintiff-Appellant, D.C. No.
2:16-cv-07342-GW-AS
v.
AMERICAN NATIONAL RED CROSS; MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted December 12, 2019**
Pasadena, California
Before: N.R. SMITH and WATFORD, Circuit Judges, and HELLERSTEIN,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
Plaintiff-appellant Xochitl Nisbet appeals from orders of the District Court for
the Central District of California granting summary judgment to dismiss her claims
and ordering her to pay attorneys’ fees. Plaintiff had been terminated from her
position as a Data Systems Specialist, and claims that she had been harassed and
terminated due to her race, disability, religion, and family status. She brought claims
against her employer and supervisor for 1) breach of contract; 2) breach of the
covenant of good faith and fair dealing; 3) wrongful termination in violation of public
policy; 4) violation of the California Constitution, Article I, Section 8;
5) discrimination, harassment, and retaliation in violation of the California Fair
Employment and Housing Act (“FEHA”); 6) violation of the California Business &
Professions Code § 17200, also known as the Unfair Competition Law (“UCL”);
7) intentional misrepresentation, negligent misrepresentation, and fraudulent
concealment; 8) intentional infliction of emotional distress; and 9) violation of the
California Labor Code. After disposing of all claims on summary judgment, the
district court ordered plaintiff to pay $10,000 in attorneys’ fees pursuant to the FEHA,
Cal. Gov. Code § 12965(b).
We have jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291. We
review de novo the grant of summary judgment, Jesinger v. Nevada Federal Credit
Union, 24 F.3d 1127, 1130 (9th Cir. 1994), and we review for abuse of discretion the
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award of attorneys’ fees, EEOC v. U.S. Parcel Service, Inc., 424 F.3d 1060, 1068 (9th
Cir. 2005).
Defendants were entitled to summary judgment on all claims. Plaintiff’s claim
for breach of contract fails as a matter of law. She was an at-will employee under the
express terms of her agreement with her employer, so there could not be an implied
contract requiring good cause for her termination. Tomlinson v. Qualcomm, Inc., 118
Cal. Rptr. 2d 822, 830-31 (Cal. Ct. App. 2002); Halvorsen v. Aramark Unif. Servs.,
Inc., 77 Cal. Rptr. 2d 383, 385-86 (Cal. Ct. App. 1998). Plaintiff contends that she
contracted to work from home, but she failed to produce any evidence to that effect.
Plaintiff’s claim for breach of the covenant of good faith and fair dealing fails for the
same reasons. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1110 (Cal. 2000) (Covenant
of good faith and fair dealing “cannot impose substantive duties or limits on the
contracting parties beyond those incorporated in the specific terms of their
agreement.”).
Plaintiff’s wrongful termination and FEHA claims fail because defendants
provided evidence of a legitimate, nondiscriminatory reason for plaintiff’s
termination. Defendants proved that a national restructuring of their operations
resulted in elimination of plaintiff’s position, and plaintiff failed to respond with
evidence that the justification was pretextual or discriminatory. See Santillan v. USA
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Waste of Cal., Inc., 853 F.3d 1035, 1042 (9th Cir. 2017). As to plaintiff’s claims that
her supervisor harassed her through racial comments and unfavorable scheduling,
these claims of wrongful termination and violation of the FEHA fail because the
alleged acts were “occasional, isolated, sporadic, or trivial” and were not “severe
enough or sufficiently pervasive to alter the conditions of employment and create a
work environment that qualifies as hostile or abusive.” Hughes v. Pair, 209 P.3d 963,
971 (Cal. 2009).
Plaintiff cannot support her claim for intentional or negligent misrepresentation
because an at-will employee cannot justifiably rely on oral promises of continued
employment. Slivinsky v. Watkins-Johnson Co., 270 Cal. Rptr. 585, 589 (Cal. Ct.
App. 1990). Plaintiff also has not produced any evidence or made any argument
concerning alleged fraudulent concealment. And none of plaintiff’s allegations of
intentional infliction of emotional distress rise to the level of outrageous conduct
sufficient to sustain the claim. See Hughes, 209 P.3d at 976 (“Liability for intentional
infliction of emotional distress does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” (internal quotation marks
omitted)).
Plaintiff’s claim of violation of an unidentified section of the California Labor
Code was waived by her failure to raise it in her opening brief. See Greenwood v.
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Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in a party’s opening brief.”). Article I,
Section 8 of the California Constitution does not give rise to a direct cause of action.
Himaka v. Buddhist Churches of Am., 919 F. Supp. 332, 334-35 (N.D. Cal. 1995); see
also Leger v. Stockton Unified School Dist., 249 Cal. Rptr. 688, 691 (Cal. Ct. App.
1988) (“A constitutional provision . . . is not self-executing when it merely indicates
principles, without laying down rules by means of which those principles may be
given the force of law.”). And because the UCL claim is derivative of other claims,
that claim cannot survive where all other claims have been dismissed. Aleksick v.
7-Eleven, Inc., 140 Cal. Rptr. 3d 796, 801 (Cal. Ct. App. 2012).
Regarding attorneys’ fees, plaintiff is entitled to appeal notwithstanding the fact
that the notice was an amended notice or informal. See Trinidad Corp. v. Maru, 781
F.2d 1360, 1362 (9th Cir. 1986) (“We have no difficulty in disregarding the
nomenclature assigned by appellants here and will treat the ‘second amended notice
of appeal’ as the new notice of appeal required by [Federal Rule of Appellate
Procedure 3(c) and 4(a)(1)].”). Nothing in the Federal Rules of Appellate Procedure
prohibits plaintiff from captioning a notice of appeal as a “First Amended Notice of
Appeal.” Furthermore, “[a]n appeal must not be dismissed for informality of form or
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title of the notice of appeal,” Fed. R. App. P. 3(c)(4), and the content of the notice
complied with Federal Rule of Appellate Procedure 3(c)(1).
On the merits, the district court did not abuse its discretion in awarding
attorneys’ fees related to litigation after February 9, 2018. By that date, plaintiff knew
she did not have any remaining argument to overcome the district court’s tentative
summary judgment ruling, and she did not file a supplemental brief despite multiple
requests for enlargement of time. The district court reasonably found that plaintiff
“continued to litigate after” the case became clearly “frivolous, unreasonable, [and]
groundless.” See Cal. Gov’t Code § 12965(b). Therefore, the district court was
within its discretion under the FEHA to award defendants attorneys’ fees. See id.
AFFIRMED.
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