Michelle London-Marable v. Boeing Company , 357 F. App'x 61 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHELLE LONDON-MARABLE and No. 08-17107
FREDERICK MARABLE,
U.S.D.C. No. 04-CV-2611 (PHX)
Plaintiffs-Appellants, (MHM)
v. MEMORANDUM *
THE BOEING COMPANY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted November 2, 2009 **
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Appellants Michelle London-Marable and Frederick C. Marable
(collectively, “Appellants”) appeal from a judgment of the United States District
Court for the District of Arizona granting summary judgment in favor of The
Boeing Company et al. (collectively, “Boeing Defendants”). Appellants brought
claims under Arizona law for: (1) breach of an employment contract; (2)
constructive discharge and wrongful termination; (3) intentional infliction of
emotional distress; and (4) loss of consortium.
We review a grant of summary judgment de novo. Buono v. Norton, 371
F.3d 543, 545 (9th Cir. 2004). A motion for summary judgment may be granted
only if the moving party shows “that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(c). However, the “mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient” to defeat a properly supported motion for
summary judgment; rather, “there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
London-Marable alleges a claim for breach of employment contract based on
the “Mesa Management Team” memorandum, a copy of which she received
shortly before her last full day of work at Boeing. London-Marable argues that the
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memo contains an express promise to put her in a light duty position after her
injury and that she relied on the statement in the memo that Boeing management
“will assist by seeking alternative work assignments” for injured employees and
“will maintain a list of available temporary job assignments.” However, Boeing
management is not obligated to do anything, as the memo simply identifies the
“goals” and “priorities” of the management team. The memo is neither a
commitment nor a promise to London-Marable to provide her with light duty
assignments. See Demasse v. ITT Corp., 984 P.2d 1138, 1143 (Ariz. 1999).
Additionally, there is no evidence in the record that Boeing engaged in any other
conduct that would have given London-Marable a reasonable expectation that
Boeing was contractually obligating itself to assign her light duty placement. See
Roberson v. Wal-mart Stores, Inc., 44 P.3d 164, 169 (Ariz. Ct. App. 2002). Lastly,
but significantly, London-Marable was not the intended recipient of the memo, as
it was sent to the “Mesa Management Team,” of which London-Marable was not a
member. It ended up with London-Marable two weeks after its initial circulation.
London-Marable’s estoppel argument is raised for the first time on appeal,
so we decline to address it. See Travelers Prop. & Cas. Co. of Am. v.
Conocophillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008).
London-Marable also alleges a claim for constructive discharge under the
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Arizona Employment Protection Act, A.R.S. §§ 23-1501, 23-1502. To succeed on
this claim, the plaintiff-employee must show either (1) working conditions that are
so objectively difficult or unpleasant that a reasonable employee would feel
compelled to resign; or (2) outrageous conduct by the employer, such as sexual
assault or threats of violence, that would similarly compel a reasonable employer
to resign. A.R.S. § 23-1502(A)(1)-(2). Under the first provision, the plaintiff-
employee must give at least fifteen days’ notice of the intent to resign because of
unpleasant or difficult working conditions. See A.R.S. § 23-1502(A)(1), (B).
Notification by the plaintiff-employee is not required where the employer’s
conduct is outrageous under A.R.S. § 23-1502(A)(2).
Here, London-Marable provided Boeing with no advance notice of her intent
to resign before she actually resigned. On April 19, 2004, London-Marable told
Boeing employee Christine Fisher that she was resigning. Fisher asked London-
Marable to write a letter with an explanation of her reasons for resigning, which
London-Marable provided on May 21, 2004. The date of her resignation, however,
remains April 19, 2004. Thus, in order for her constructive discharge claim to
survive summary judgment, London-Marable must establish that there is a genuine
issue of material fact that Boeing’s conduct was so outrageous that a reasonable
person would feel compelled to resign. The record supports the opposite
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conclusion.
It is undisputed that when London-Marable resigned on April 19, 2004, she
had not interacted with anyone at Boeing or been subjected to any working
conditions at Boeing for over one year. Further, in her May 21, 2004 letter,
London-Marable admitted that her “physical disability and mental stress” were the
“most obvious reason[s]” for her resignation and acknowledged that she was “no
longer able to perform the duties required for the position [she] held when
employed.” Considering these facts and admissions, the district court properly
granted summary judgment on London-Marable’s constructive discharge claim.
Because we find London-Marable was not constructively discharged, we do not
reach her claim for wrongful termination.
London-Marable also made a claim against the Boeing Defendants for
intentional infliction of emotional distress (“IIED”). Most of the conduct at issue
is barred by the two-year statute of limitations for an IIED claim. See Hansen v.
Stoll, 636 P.2d 1236, 1242 (Ariz. Ct. App. 1981) (citing A.R.S. § 12-542(1)).
In any event, viewing the facts in the light most favorable to London-
Marable, the conduct within the statutory period is simply not “extreme and
outrageous” as required by Arizona law. See Mintz v. Bell Atl. Sys. Leasing Int’l,
Inc., 905 P.2d 559, 562–63 (Ariz. Ct. App. 1995); Watts v. Golden Age Nursing
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Home, 619 P.2d 1032, 1035 (Ariz. 1980). Much more egregious conduct is needed
for such a claim. See, e.g., Patton v. First Fed. Sav. and Loan Ass’n of Phoenix,
578 P.2d 152 (Ariz. 1978); Midas Muffler Shop v. Ellison, 650 P.2d 496 (Ariz. Ct.
App. 1982). Therefore, the district court appropriately entered summary judgment
in favor of the Boeing Defendants on Appellants’ IIED claim.
Lastly, Appellants assert a claim for loss of consortium. This claim is
derivative and can only exist if the directly injured spouse can establish the
elements of an underlying cause of action. Barnes v. Outlaw, 964 P.2d 484, 487
(Ariz. 1998). In light of the findings that London-Marable’s underlying claims
against Boeing do not survive summary judgment, the claim for loss of consortium
was also properly dismissed.
AFFIRMED.
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