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March 6, 1994

WALTER A. HOY, Plaintiff,
SEARS, ROEBUCK & COMPANY, a corporation, et al., Defendants.

The opinion of the court was delivered by: SAUNDRA BROWN ARMSTRONG

 Plaintiff, a former employee of defendant Sears, Roebuck & Company, brings the above-captioned matter on the ground that the defendant and its managers breached plaintiff's employment contract when defendants terminated his employment. Defendants now move for summary judgment or, in the alternative, summary adjudication. After reviewing the papers submitted by both parties, and being fully informed, the Court finds that defendants' motion for summary judgment should be granted. *fn1"


 Plaintiff was employed by defendants in a variety of positions for approximately 26 years. From 1969 to 1987, plaintiff was a Division Manager. In 1987, plaintiff's position as a Home Improvement Sales Manager was to be centralized and combined with another department. Plaintiff requested reassignment to a commission salesperson in the department that sold major appliances. The request was granted.

 In August of 1991 plaintiff was fired. The reason given for his termination was his failure to maintain a sufficient ratio of Maintenance Agreements ("M/A") to Merchandise Sales.

 Plaintiff admits that he failed to maintain the standards for the sales of these M/A's. However, plaintiff contends that this failure was not good cause for his termination.

 In his original complaint, plaintiff alleged that the actual reason he was terminated was 1) age discrimination, and 2) the fact that he was a "whistle blower". On December 7, 1992, this Court granted defendants' motion to dismiss plaintiff's claims for age discrimination and intentional and negligent infliction of emotional distress on the basis of plaintiff's failure to state a claim upon which relief may be granted. Plaintiff's unsupported allegations of retaliatory termination were stricken.

 Plaintiff's only remaining claims are for breach of contract and breach of the covenant of good faith and fair dealing.


 A. Summary Judgment

 Summary judgment is appropriate under Fed. R. Civ. P. 56(b) where there exist no genuine issues of material fact and as a matter of law the moving party is entitled to win. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). For the purposes of the motion, the court must construe the opposing party's papers liberally; resolving all ambiguities and drawing all reasonable inferences in their favor. Patrick v. Le Fevre, 745 F.2d 153 (2nd Cir. 1984). That being the case, a factual dispute is to be considered genuine only if the non-moving party can offer "concrete evidence" such that a reasonable jury could return a verdict in their favor. Anderson v. Liberty Lobby, 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The burden on the moving party may be discharged by pointing out to the district court that there is absence of evidence to support the opposing party's claim. Celotex at 325.

 B. Plaintiff's Claim for Breach of Contract

 Defendants raise two arguments to establish that there is no material triable issue of fact concerning plaintiff's breach of contract claim. First, defendants contend that plaintiff's employment contract was an "at will" contract rather than a "for cause" contract. Second, defendants assert that even if plaintiff was a "for cause" employee, plaintiff's failure to meet the sales quota was good cause for his termination.

 1. Whether Plaintiff Was An "At Will" Employee

 Under California law, an employee's term of employment, when not specified in an employment contract or other document or oral agreement, is considered a term that may be terminated "at will" by either party. Cal. Labor Code § 2922. This statute creates a presumption that employment is terminable "at will". Hillsman v. Sutter Community Hospitals, 153 Cal. App. 3d 743, 749, 200 Cal. Rptr. 605 (1984).

 The existence of implied promises to discharge an employee only for good cause is generally a question of fact. Foley, supra. However, Foley does not stand for the proposition that the existence of an implied-in-fact contract is always a question of fact; the issue may be appropriately resolved as a matter of law given the facts of a particular case. Miller v. Pepsi-Cola Bottling Co, 210 Cal. App. 3d 1554, 1558, 259 Cal. Rptr. 56 (1989).

 In determining whether such promises exist, the Court must look to the entire relationship of the parties. Id. Included in the factors to consider in examining the relationship of the parties are, the terms of the employment manual, the personnel policies and practices of the employer, the employee's longevity of service, actions or communications by the employer constituting assurances of continued employment, and the practices of the ...

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