Salazar v. Monaco Enterprises Inc et al

Filing 259

ORDER Re Defendants' Motion for Reconsideration; granting 217 Motion for Reconsideration with respect to the discrete component of the Court's Order Re Summary Judgment Motions Hearing (ECF No. 206 ) addressing the Handbook Claim. Plaintiff's Handbook Claim is dismissed with prejudice as a matter of law. Signed by Senior Judge Lonny R. Suko. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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MAXIMILLIAN SALAZAR III,
Plaintiff,

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-vsMONACO ENTERPRISES, INC.; and
GENE MONACO and MARTI MONACO,
Husband and wife and the marital
community thereof; and ROGER
BARNO and NOELLE BARNO, Husband
and wife and the marital
community thereof; and STRATEGIC
ADVANTAGE, LLC; and STEVE CESARE
and JANE DOE CESARE, Husband and
wife and the marital community
thereof,

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Defendants.

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NO.

CV-12-0186-LRS

ORDER RE DEFENDANTS’ MOTION
FOR RECONSIDERATION

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BEFORE THE COURT, is Defendants’ Motion For Reconsideration of Order

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Re: Summary Judgment Motions Hearing (ECF No. 206), noted without oral

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argument for April 30, 2014 and opposed by Plaintiff on the hearing date.
Defendants objected to Plaintiff’s untimely filed response and requested
that any such submission be stricken pursuant to the Eastern District of

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Washington local rules, LR 7.1(b).

Defendants ask for the Court to

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reconsider a discrete component of its Order Re Summary Judgment Motions
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ORDER - 1

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Hearing (ECF No. 206) which requires the Court to consider whether the

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handbook promised specific treatment in specific situations, and, to the

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extent such promises exist, whether there is evidence that such promises

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were relied upon and subsequently breached.

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A.

Defendants’ Request to Reconsider Ruling on Handbook Claim

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Defendants request that the Court reconsider its oral ruling that
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a question of fact existed as to whether the language of the Monaco
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handbook created a promise of future treatment. Defendants challenged
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Salazar to come forward with admissible evidence of all three components
of a prima facie handbook claim. Defendants argue Salazar failed to show

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he relied upon the alleged promises contained in the handbook. Defendants

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assert that their motion for partial summary judgment was filed months

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prior to the hearing and Plaintiff has failed to timely file an affidavit

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or make a factual showing that Salazar relied on a specific promise or

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provision.

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of treatment did exist, they were expressly and clearly disclaimed within

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the contents of the handbook.

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Additionally, Defendants assert, even if specific promises

Defendants rely on Francom v. Costco Wholesale Corp., 98 Wash.App.
845 (2000), which case they argue precludes Salazar’s claim based on

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Monaco’s alleged handbook promises for two primary reasons.

First,

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Salazar cannot enforce an employer policy because it overlaps with an
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employer’s legal obligations. And second, an employer is not bound by
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statements

in

employment

manuals

if

they

specifically

state

in

a

conspicuous manner that nothing contained therein is intended to be part

ORDER - 2

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of the employment relationship but rather are general statements of

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company policy. Id at 867.

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seeks to enforce simply does not promise any specific treatment of

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Defendants conclude that the policy Salazar

employees in specific situations, and did not create any obligation by
Monaco to

do

anything

other

than

comply

with

the

law

prohibiting

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retaliation under 31 U.S.C. §3730(h). Defendants add that even if the
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Court finds that any promise(s) do exist, it was expressly and clearly
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communicated to Plaintiff that none of the handbook contents constituted
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terms of an employment contract or created a promise or assurance of
continued employment in the future.
Therefore, as a matter of law, Defendants conclude that Monaco is

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not liable to Salazar under a "handbook" theory.

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reconsideration, Defendants attach the Affidavit of Molly McLaughlin (ECF

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No. 219)1 to provide additional clarity of Salazar’s acknowledgment of

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his “At-Will Employment Status” and his agreement that “the Handbook is

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for informational purposes only, and that it is not a contract for, or

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a guarantee of, employment or continuing employment.”

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B.

With its motion for

ECF No. 219-1.

Plaintiff’s Opposition

Plaintiff opposes the motion for reconsideration and requests the

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Affidavit of Molly McLaughlin be stricken, or in the alternative, to
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Monaco, through the human resources department, distributed a new
employee handbook to Salazar containing a signature page where employees
sign to indicate they have received the new handbook. The copy of the
handbook Salazar signed for in June of 2011 appears to be the handbook
attached to the Gilbert Affidavit (ECF No. 164-2, Ex. B). The McLaughlin
Affidavit contains the signature page evidencing Salazar's signature on
June 7, 2011. ECF No. 219-1.
ORDER - 3

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consider the Affidavits of Max Salazar (ECF No. 197) and Eric Wesselman

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(ECF No. 198), which were filed with the Court to supplement Plaintiff’s

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summary judgment response the night before the hearing date on February

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19, 2014.2 Plaintiff asserts that promises of specific treatment in

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specific situations found in an employee manual or handbook issued to
Plaintiff

obligated

Defendant

Monaco

to

act

in

accord

with

those

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promises.

Plaintiff argues, at a minimum, the Court is unable to

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determine at the summary judgment stage, the effect of the employee
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handbooks or manuals issued by Monaco and whether any statements therein
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amounted to promises of specific treatment in specific situations.

And

if so, whether Plaintiff justifiably relied on any of those promises.

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Finally,

Plaintiff

argues,

material

fact

issues

exist

whether

any

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promises of specific treatment were breached by Defendants making summary

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judgment improper.

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To support his arguments, Plaintiff relies on the Thompson3 case and

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various quotations made in one or more employee handbooks that Plaintiff

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purportedly relied upon.

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specific promises that an employee will not suffer adverse employment

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Plaintiff argues that the handbook makes

action for raising questions “that concern his/her employment in any
way”. ECF No. 162 at 21. Plaintiff further argues that the handbook(s)

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Defendants objected to the late filed declarations of Maximillian
Salazar III (ECF No. 197) and Eric Wesselman (ECF No. 198) on February
19, 2014. Defendants objected in writing to Plaintiff’s late filings (ECF
No. 200) and raised an oral motion to strike the declarations and deny
any consideration of them in ruling on the dispositive motions.

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3

Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 222 (1984)).

ORDER - 4

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specifically promise that an employee is encouraged to come forward

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“without fear of ridicule, retaliation, or reprisal”, and he “should feel

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confident that in no event will he or she be penalized for his or her

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beliefs ...”.

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Id.

Plaintiff then argues that these phrases/quotations,

combined with the preamble statement: "Monaco retains its management

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right to terminate an employee at its will, within the confines of our
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judicial

system,”

is

evidence

that

MEI

made

promises

of

specific

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treatment in specific situations. Id. Plaintiff asserts he justifiably
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relied on the promise(s) and MEI breached the promises of specific
treatment when it terminated him in retaliation for his speaking out

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about fraud and corruption.

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whether an employment policy manual issued by an employer contains a

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promise

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employee justifiably relied on the promise, and whether the promise was

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breached are questions of fact.

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of

specific

Plaintiff’s

Id. Plaintiff asserts that under Thompson,

treatment

counsel

also

in

specific

states,

at

situations,

the

whether

February

20,

the

2014

dispositive motions hearing, that discovery issues in this case have
prevented him from knowing what Defendant Monaco and its Human Resources
representatives would say about the handbook claim until a week before

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the hearing. ECF No. 205 at 48. Counsel further notes that Plaintiff
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Salazar was not deposed prior to the hearing.

Id.

Therefore, Plaintiff

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concludes, summary judgment is improper based on the discovery status and
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factual nature of the elements to be determined for Plaintiff’s claim
that Defendant Monaco breached promises of specific treatment in specific

ORDER - 5

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situations.

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C.

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Motions for reconsideration serve a limited function.

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Analysis
Under the

Federal Rules of Civil Procedure, motions for reconsideration may be made
pursuant to Rule 59(e).

The major grounds for granting a motion to

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reconsider a judgment are: (1) intervening change of controlling law; (2)
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availability of new evidence; and (3) the need to correct clear error or
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prevent manifest injustice. School District No. 1J, Multnomah County
Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993).

A motion for

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reconsideration is not appropriately brought to present arguments already

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considered by the Court.

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Cir.1985).

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controlling law, or that new evidence is available, but rather suggests

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that the Court committed error of law or fact and reconsideration is

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necessary to prevent a manifest injustice.

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Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th

Defendants do not argue that there has been a change of

ECF No. 217 at 2-3.

Generally, employment contracts that are indefinite as to duration
may be terminated by either the employer or the employee at any time,
with or without cause. Thompson v. St. Regis Paper Co., 102 Wash.2d 219,

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223

(1984).

A

terminable

at

will

relationship

can,

however,

be

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contractually modified by an employee policy manual. Id. at 229–30;
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Swanson v. Liquid Air Corp., 118 Wash.2d 512, 520, 826 P.2d 664 (1992).
A promise contained in an employee manual of specific treatment in

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specific situations may be enforceable if an employee relies thereon.

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Thompson, 102 Wash.2d at 223; Swanson, 118 Wash.2d at 520; Toussaint v.

ORDER - 6

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Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980).

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An employee handbook or manual may modify the terminable-at-will

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relationship if it creates an atmosphere of job security and fair

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treatment by promising specific treatment in specific situations, thereby
inducing the employee to remain on the job and not seek other employment.

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Thompson, 102 Wash.2d at 230, 685 P.2d 1081; Gaglidari v. Denny's
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Restaurants, Inc., 117 Wash.2d 426, 433, 815 P.2d 1362 (1991). Where an
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employee handbook promises specific treatment in specific situations, an
employer may disclaim any intent to be bound by the handbook, and if such
a disclaimer is effectively communicated, employees may not justifiably

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rely upon

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Wash.App. 895, 900-01 (1994), review denied, 124 Wash.2d 1020 (1994).

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Therefore, the Court will consider in its analysis whether Monaco’s

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disclaimer effectively communicated that Monaco did not intend to be

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bound by its handbook.

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the

handbook

provisions.

Birge

v.

Fred

Meyer,

Inc.,

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The Washington Supreme Court in Burnside v. Simpson Paper Co. noted
that whether an employment policy manual issued by an employer contains
a promise of specific treatment in specific situations, whether the

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employee justifiably relied on the promise, and whether the promise was
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breached are questions of fact. Burnside v. Simpson Paper Co., 123
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Wash.2d 93, 104-05 (1994).

“Only if reasonable minds could not differ

in resolving these questions, is it proper for the trial court to decide
them as a matter of law.

Id. (citing Swanson, 118 Wash.2d at 522).

The Washington Supreme Court in Korslund v. DynCorp Tri–Cities

ORDER - 7

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Services, Inc., 156 Wash.2d 168, 184–85 (2005) explained that the

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Thompson specific treatment claim is not an implied or express contract

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claim, but is independent of a contractual analysis and instead rests on

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a justifiable reliance theory. DePhillips v. Zolt Constr. Co., 136

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Wash.2d 26, 34–36, 959 P.2d 1104 (1998); Swanson, 118 Wash.2d at 525;
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Gaglidari v. Denny's Restaurants, Inc., 117 Wash.2d 426, 433 (1991);
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Thompson, 102 Wash.2d at 229–30.

Korslund sets forth a three-step test

that applies when the parties have not agreed that the provisions in an

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employee handbook constitute a contract, as is the situation here.

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employee must prove these three elements of the cause of action [for

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breach of a promise of specific treatment]: (1) that a statement (or

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statements) in an employee manual or handbook or similar document amounts

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to a promise of specific treatment in specific situations, (2) that the

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employee justifiably relied on the promise, and (3) that the promise was

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breached.

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The

Korsund, 156 Wash.2d at 178 (citations omitted).

Defendants contend that Salazar’s signing the handbook signature
page on June 7, 2011, acknowledging that his employment was at will,

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precludes his justifiable reliance on promises in employee policy manuals
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as a matter of law.

The handbook Salazar received contained the

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following

definitions and acknowledgments:

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This
Employee
Handbook
is
not
a
contract.
Accordingly, it should not be interpreted to create
any expressed or implied contract between the
Company and any employee. It is expressly stated,
and should be understood by all employees, that the
contents of this Employee Handbook do not constitute
the terms of an employment contract, and do not
create any promise or assurance of continued

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ORDER - 8

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employment in the future. It is also stated that
isolated inaccuracies contained in this Employee
Handbook do not invalidate the remaining content
within this document or the Employee Handbook in its
entirety.

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Employment with the Company is on an "at-will"
basis. This means that the employment relationship
is for an unspecified period of time and may be
terminated at-will at any time, either by the
employee or the Company for no reason or for any
reason not expressly prohibited by law. This at-will
employment relationship, which includes the right to
discipline, demote, or transfer an employee with or
without advance notice, cannot be changed, modified,
waived, or rescinded except by an individual written
agreement signed by the employee and the Chief
Executive Officer of the Company. This represents an
integrated agreement with respect to the at-will
nature of the employment relationship. Any verbal or
written representations to the contrary are invalid
and should not be relied upon by anyone.
ECF No. 164-2 [emphasis added].

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Salazar also signed an acknowledgment on June 7, 2011 that reads,
in relevant part:

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ACKNOWLEDGMENT OF AT-WILL EMPLOYMENT STATUS
AND
RECEIPT
OF
EMPLOYEE
HANDBOOK AND ARBITRATION
AGREEMENT
__________________________________________________

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1. I acknowledge that I have received a copy of the
Employee Handbook, have read the Handbook and am
familiar with the contents therein. I agree to
follow the guidelines and policies contained in the
Handbook and any amendments to the Handbook. It is
specifically agreed that the Handbook is for
informational purposes only, and that it is not a
contract for, or a guarantee of, employment or
continuing employment. I further understand that the
Company has the right to revise the policies and
procedures in this Handbook at any time. Any such
revisions must be in writing. No statements,
representations or actions of any employee or
executive of the Company will modify these policies

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ORDER - 9

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and procedures unless they are in writing and signed
by the Chief Executive Officer.

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2. I also acknowledge and understand that, unless I
am advised in writing otherwise, my employment is
for no definite period and I am an at-will employee
of the Company. This means that the terms and
conditions of my employment may be changed at any
time. It also means that I may leave my employment
at any time and the Company may terminate my
employment at any time.
. . . . .
5.
I
understand
and
acknowledge
that
this
constitutes the entire agreement between me and the
Company regarding my at-will employment status, and
that it supersedes and replaces any prior written,
oral or implied agreements concerning this subject.
1 further acknowledge that this integrated at-will
relationship cannot be modified or changed during my
employment except by specific written agreement
between me and the Company, signed by the Chief
Executive Officer.

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ECF No. 219-1 [emphasis added].
Defendants assert that handbooks may contain disclaimers which
vitiate alleged promises supporting a handbook employment claim.

To

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explain its dispositive argument, Defendants quote from Thompson the
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following passage:
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It may be that employers will not always be bound by
statements
in
employment
manuals.
They
can
specifically state in a conspicuous manner that
nothing contained therein is intended to be part of
the employment relationship and are simply general
statements of company policy. Additionally, policy
statements as written may not amount to promises of
specific treatment and merely be general statements
of company policy, and, thus, not binding. Moreover,
the employer may specifically reserve the right to
modify those policies or write them in a manner that
retains discretion to the employer.

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ECF No. 150 at 7.
ORDER - 10

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This Court agrees with Defendants that the “ACKNOWLEDGMENT OF AT-WILL

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EMPLOYMENT STATUS

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AGREEMENT” signature page, that Salazar signed on June 7, 2011, was

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conspicuous and clearly stated that statements as written may not amount

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AND

RECEIPT

OF

EMPLOYEE

HANDBOOK AND ARBITRATION

to promises of specific treatment.

The Court, however, is cognizant of

the

the

policy-linked

concerns

that

Supreme

Court

of

Washington

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articulated

in

Korslund

and

the

Ninth

Circuit

in

an

unpublished

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memorandum4 that called into doubt the Costco case holding:
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As discussed in Swanson, the employment relationship
can be altered through the employer's issuance of
policy manuals either as a matter of promises of
specific treatment in specific situations or as a
matter of contract modification, provided, in the
latter case, that the formalities of contract
formation are met. Swanson, 118 Wash.2d at 531–35.
It would be inconsistent with Thompson and its
progeny to conclude that once an application
containing an at-will provision is signed, the
employer is thereafter free to make whatever
promises it wishes to make without any obligation to
carry them out.
Korslund, 156 Wash.2d at 188.
The Washington Supreme Court in Korslund held potentially enforceable a

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policy forbidding

retaliation

against

whistleblower

employees at a

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nuclear reactor. Under the reasoning in Korslund, an employee that signs

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a statement that his employment was at will does not necessarily preclude

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his justifiable reliance on promises in employee policy manuals and thus

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does not bar his claim for breach of promise of specific treatment in

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specific situations.

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Tracy Jonassen v. Port of Seattle, 2013 WL 6653683 (C.A.9 (Wash)).

ORDER - 11

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This Court is now tasked in this motion for reconsideration with

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determining whether there is sufficient evidence to create a factual

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dispute

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relationship with Salazar by issuing its policy manuals with alleged

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on

the

question

whether

Monaco

modified

the

employment

promises of specific treatment in specific situations.
Turning now to the elements of the specific treatment claim,

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Defendants initially argue that Salazar has not shown that he relied on
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any specific promises in an employee manual or handbook upon which the
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specific treatment claim can be based.

Although Plaintiff’s counsel

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points out at the hearing that there have been discovery issues, i.e.,
Salazar had not been deposed and counsel hasn’t had a chance to digest

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the recent depositions of Defendant Monaco and its Human Resources

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representatives, the fact remains that a declaration of Salazar, filed

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the night before the hearing, could have been filed months prior.

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Court will consider, however, the late-filed Declarations of Salazar (ECF

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No. 197) and Wesselman (ECF No. 198) in light of the elongated discovery

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track this case has found itself on. Similarly, the McLaughlin Affidavit

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(ECF No. 219) filed in support of Defendants’ Motion for Reconsideration

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The

and objected to by Plaintiff, will also be considered.
The next question is whether there is sufficient evidence that

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Monaco made promises to Salazar of specific treatment in specific
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situations. This question brings us to the Costco case which Defendants
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rely upon to argue that with regard to a contract-based claim, the
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employment handbook contained general policy statements, obligating

ORDER - 12

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Monaco to comply with the law and thus were akin to illusory promises

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unsupported by consideration.

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Plaza Corp. v. Synapse Software Sys., Inc., 87 Wash.App. 495, 501, 962

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P.2d 824 (1997).

Costco, 98 Wash.App. At 867, citing Crown

This Court finds that there is no contract-based claim

that could go forward under the Costco and Thompson cases. These cases

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stand for the notion that an employer can specifically state in a
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conspicuous manner that nothing contained within an employee handbook is
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intended

to

be

part

of

the

employment

relationship

or

that

such

statements are general statements of company policy, or obligations which
a company is already held to pursuant to the law or statute.

Such

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conspicuous disclaimers have occurred in the employee handbook expressly

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acknowledged by Salazar in June of 2011.

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ECF No. 219.

Next is Plaintiff’s specific treatment claim,5 which rests on a

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justifiable reliance theory.

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policy forbidding retaliation against whistleblower employees and that

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opinion

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discussed

Reorganization Act.

the

Korslund held potentially enforceable a

protections

provided

under

the

Energy

The Korslund opinion, however, did not analyze the

substantial overlap between the employer-policy’s protections and those

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accorded by statute.

The Costco case did include the overlap in its

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analysis, which may account for the tension between Korslund and Costco
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cases. Costco held, and Defendants argued in their Second Motion for
Partial Summary Judgment, that when a handbook contains a specific

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It appears that Plaintiff alternatively argues a contract-based
theory and a breached promise of specific treatment in specific
situations claim.
ORDER - 13

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promise to comply with employment laws generally, such a generic promise

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cannot be a basis for a handbook claim as a matter of law. ECF No. 150

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at 9.

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In its motion for reconsideration, Defendants do not argue whether
or not any statements amounted to promises but only that the Court found
a question of fact existed in its oral ruling (i.e., whether any

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statements made in the employment manual were sufficiently specific to
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constitute promises of treatment) and that Salazar failed to offer timely
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evidence

that

he

relied

upon

an

alleged

promise(s).

The

Court,

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therefore, will begin with this first prong of the three-prong test for
handbook claims enunciated in Korslund.

The quotation or “promise”

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Salazar focused on and which the Court based its ruling upon, was that

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the handbook(s) specifically promised that an employee is encouraged to

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come forward "without fear of ridicule, retaliation, or reprisal", and

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he "should feel confident that in no event will he or she be penalized

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for his or her beliefs . . .".

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alleged promise quotation, in its proper context, pursuant to the motion

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before it.

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The Court now analyzes the first

This statement or quotation is found under the "Grievance

Procedure" in the Employee Relations and Conduct Section. ECF No. 164-2,
Ex. B. The handbook describes the formal grievance procedure as follows:

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GRIEVANCE PROCEDURE
The Company realizes that disagreements can occur at
work. Rather than have those disputes damage morale,
the Company has established a formal grievance
procedure which enables employees to address their
concerns openly and professionally, without fear of
ridicule, retaliation, or reprisal. The Company will
take steps and conduct a prompt and thorough

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ORDER - 14

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investigation, and make a good faith determination
about each problem, concern and dispute while
exercising its business judgment.

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Problem resolution is often conducted using an
Informal Process. A problem cannot be addressed
unless management knows that one exists. Employees
are encouraged to first seek assistance with
problems or issues by contacting their immediate
supervisor as early as possible unless the
supervisor is the subject of the complaint. If an
employee cannot discuss the problem with his/her
supervisor, then the problem should be discussed
with the Department Manager. The majority of
misunderstandings can be resolved at this level. If
the supervisor’s conduct is what concerns the
employee, then the employee should go directly to
Human Resources.

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Beyond the Informal Problem Resolution Process, the
Company also has a formal Grievance Process.
Employees who have experienced conduct they believe
is contrary to a [sic] Company policies have an
obligation to take advantage of this grievance
process. Employees should be aware that it is
possible to lose certain legal rights for failure to
follow the internal complaint procedures of the
Company. The following steps must be taken by an
employee to file a complaint:

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. . . .

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After the final disposition of the complaint, a copy
shall be placed in the employee’s confidential file;
and if the final decision changes any Company
procedure or policy, Human Resources shall make the
necessary changes upon approval of the Department
Manager, or the Chief Executive Officer as
appropriate. Nothing in this grievance procedure is
intended to create an express or implied agreement
that alters the “at-will” employment agreement.

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. . .

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ECF No. 164-2 at 113 [emphasis added].

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///

ORDER - 15

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The Court finds that this alleged promise quotation Salazar relies

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on, when read in proper context within the company’s grievance procedure,

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does nothing to alter the at-will employment status under the facts of

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this case.

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In the context of the grievance procedure section, it does

appear that the quotation “enables employees to address their concerns
openly and professionally, without fear of ridicule, retaliation, or

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reprisal,” could be perceived as a promise of specific treatment in a
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specific situation, i.e., the grievance procedure.
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As to the second prong, whether the employee justifiably relied on
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this promise, reasonable minds could not differ in finding that although
the employer appears to promise not to ridicule or retaliate when an

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employee formally grieves a dispute, the bringing of a grievance or

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written complaint6 does not alter the at-will status of employment based

15

on the express and conspicuous disclaimer within the grievance procedure

16

section itself.

17

manner that nothing contained in the handbook, manual, or similar

18

document is intended to be part of the employment relationship and that

19

such statements are instead simply general statements of company policy.”

20
21

At a minimum, a “disclaimer must state in a conspicuous

Swanson v. Liquid Air Corp., 118 Wash.2d 512, 527, 826 P.2d 664 (1992).
A disclaimer also must be effectively communicated to the employee, who

22
must have reasonable notice that the employer is disclaiming an intent
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24
6

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26

There is no evidence before the Court that Salazar brought a
written complaint pursuant to the formal grievance procedure. According
to the late-filed Salazar Declaration (ECF No. 197), Plaintiff appears
to have started the Informal Process described in the Grievance Procedure
section.
ORDER - 16

1

to be bound by what appear to be promises. The effect of a disclaimer in

2

an employee manual is a question of law under these facts because

3

reasonable minds could not differ.

4
5

Swanson, 118 Wash.2d at 529.

Plaintiff Salazar was an Applications Engineer at Monaco and would
certainly be able to understand from the unambiguous disclaimer that

6
Monaco was disclaiming an intent to be bound by what is argued to be an
7
enforceable promise(s).

Disclaimers appear throughout the Employee

8
Handbook which the Court finds are “effectively communicated.”

As in

9
10
11

Fred Meyer, a disclaimer was within the same page as the statement of
policies upon which the employee, Salazar, claimed to have relied.

12

Salazar was required to sign on the acknowledgment signature page as

13

well, acknowledging that the policies did not constitute an employment

14

contract.

15

Where a disclaimer is effectively communicated, employees may not

16

justifiably rely upon the handbook provisions. Birge v. Fred Meyer, Inc.,

17

73 Wash.App. 895, 900-01 (1994). Therefore, as a matter of law, Salazar

18

cannot satisfy this component of the three-prong test for the handbook

19
20

claim based on a promise of specific treatment.
As for the second alleged promise quotation, i.e., "should feel

21
confident that in no event will he or she be penalized for his or her
22
beliefs . . .", the Court finds this fails to amount to a promise of
23
specific treatment in a specific situation under the first prong of the
24
25
26

test under Korslund.

Even if it did amount to a first prong promise,

reasonable minds could not differ on the justifiable reliance prong as

ORDER - 17

1

explained above. In light of the effective disclaimers throughout the

2

handbook, Salazar cannot be said to have justifiably relied on this

3

isolated quotation to be an enforceable policy (promise) that could have

4

been breached.

5
6

Having not found, as a matter of law, that Salazar justifiably
relied on any promises of specific treatment in specific situations due

7
to what the Court finds as effective disclaimers throughout the handbook,
8
the Court finds that as a matter of necessity, the third element, i.e.,
9
breach of a promise, has not been met.
10
11
12

Accordingly,
IT IS HEREBY ORDERED:

Defendants’ Motion for Reconsideration, ECF

13 No. 217, is GRANTED with respect to the discrete component of the Court’s
14 Order Re Summary Judgment Motions Hearing (ECF No. 206) addressing the
15 Handbook Claim.

Plaintiff’s Handbook Claim is dismissed with prejudice

16 as a matter of law.
17
18

IT IS SO ORDERED. The District Court Executive is directed to enter
this Order.

19
DATED this 15th day of May, 2014.
20
21

s/Lonny R. Suko

22

LONNY R. SUKO
SENIOR UNITED STATES DISTRICT JUDGE

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ORDER - 18