have also demonstrated that the plaintiff received no personal assurances that he would only be terminated "for cause".
Plaintiff contends that Mr. James Lapsley, the manager of the store where the plaintiff worked, admitted that he only fired people "for cause". However, plaintiff omitted the page of Mr. Lapsley's deposition in which he stated that it was the company's prerogative to fire people with or without cause. Mr. Lapsley admitted that he had a personal policy of firing people "for cause" only, but it was the company policy to terminate employees with or without notice or cause. See Supplemental Declaration of Jane M. Konopik In Support of Defendants' Motion for Summary Judgment or, in the Alternative, for Summary Adjudication of Issues (Supplemental Konopik Declaration), Exhibit D. Plaintiff has also failed to provide any evidence that Mr. Lapsley ever advised him that he could only be terminated "for cause". Moreover, unlike the situation in Pugh v. See's Candies, Inc., supra, where several successive company presidents promised the plaintiff he would only be fired "for cause", even if Mr. Lapsley had so advised plaintiff in the case before the Court, plaintiff has failed to establish that Mr. Lapsley had the authority to alter Sears' contractual relationship with its employees.
In support of his contention that it was general knowledge that people were only terminated "for cause", plaintiff submits his declaration and the deposition of Theresa Price, one of his co-workers. However, this testimony fails to establish plaintiff's contention that this knowledge was "general" and amounts to no more than a recitation of the subjective impressions of selected employees without any apparent foundation for these conclusions or their relevance.
Apart from the longevity of his term with Sears, Roebuck and Company, plaintiff has therefore failed to establish any of the requisite elements for this Court's finding the existence of an implied contract to terminate plaintiff's employment "for cause".
2. Whether Defendants Had Good Cause to Terminate Plaintiff
Defendants contend that even if the Court were to find that there existed an implied contract that plaintiff would only be terminated "for cause", there existed good cause for terminating the plaintiff -- he failed to meet his sales quota.
A Court may rule on whether there existed good cause for termination of employment on a motion for summary judgment. Fowler v. Varian Associates, Inc., 196 Cal. App. 3d 34, 42-43, 241 Cal. Rptr. 539 (1987). Instances of poor performance are justifiable reasons for termination. Knights v. Hewlett Packard, 230 Cal. App. 3d 775, 780, 281 Cal. Rptr. 295 (1991). When it is clear that an employee is terminated on the grounds of poor performance, where "there [is] no hint that the asserted reason for [an employee's] termination was capricious or unrelated to business needs or goals, or pretextual. . . . a jury should not be allowed to decide the correctness of [the employer's] business judgment in terminating" the employee. Moore v. May Dept. Stores Co., 222 Cal. App. 3d 836, 271 Cal. Rptr. 841 (1990).
Defendants contend that they terminated the plaintiff because he failed to meet his sales quota; in fact, defendants contend he had one of the worst M/A sales records in the Concord office. Konopik Declaration, Exhibits A-C; Supplemental Konopik Declaration, Exhibit A. Though defendants discussed this matter with the plaintiff on several occasions, and despite the fact that plaintiff attended 20 training sessions, his sales numbers continued to decline. See Declaration of Edward McComb, Exhibits A-D; Konopik Declaration, Exhibit B. By August of 1991, plaintiff's M/A ratio was 3.98%. The sales goal was 5.0% in 1990, and 5.43% in 1991. See Declaration of Edward McComb, P 7.
Plaintiff attempts to rebut this argument by contending that another employee's sales record was worse, that the 5.43% was an unreasonable quota, and that plaintiff was fired for pretextual reasons.
Plaintiff's contention that there was another employee, Theresa Price, with lower sales figures is not supported by the evidence.
See Konopik Declaration, Exhibit A-C. By reviewing the table provided by defendants, it is clear that Theresa Price's M/A sales figures were higher than plaintiff's for all of 1990 and for the period from July - August of 1991.
Plaintiff also asserts that the 5.43% sales figure was unreasonable. Plaintiff offers in support of this proposition the declaration of Mr. Berdell Schneider, the former manager of the appliance division in Concord. Mr. Schneider testified that no one could reasonably be expected to meet a 5.0% (or higher) quota, and in fact he never knew of any individual who met the quota or was terminated for failing to meet the quota. Plaintiff contends that defendants have failed to provide any information identifying any individual who met the 5.0% quota.
However, defendants, in fact, have submitted statistics demonstrating that many people met the 5.0% sales quota. Konopik Declaration, Exhibit B. Defendants also submitted the Declaration of E. Hutcheon Gibb (Gibb Declaration), the manager of a Sears store in Santa Rosa, who has also terminated employees for failing to meet the sales quota. Gibb Declaration., P 2. Moreover, in each of the depositions submitted by the plaintiff, former and current employees admitted that in late 1990 and early of 1991, the Company had notified them, through their managers, that failure to meet the sales quotas could result in termination. See Deposition of Theresa Price, at 31-32; Deposition of John Plato, at 46, Deposition of S. Wesley Russell, at 25-26; and Deposition of Michael Ambrose, at 19. More importantly, plaintiff was not only fired because he failed to meet his quota, but also because he had one of the lowest sales records in the Concord store.
Even if the Court were to accept plaintiff's assertion that the quota was unfair and difficult to meet, such a finding would not warrant a ruling in plaintiff's favor. Absent some showing that the termination of plaintiff's employment was pretextual, the fact finder should not decide the correctness of an employer's termination of a plaintiff's employment. Moore v. May Dept. Stores Co, supra.
Plaintiff cannot prevail on his assertion that he was fired for pretextual reasons. Plaintiff alleges that the defendants fired him to prove that a senior employee who failed to meet his quotas could be fired. Assuming this contention to be true, plaintiff fails to provide any authority that such a reason cannot constitute good cause to terminate an employee. Moreover, plaintiff's assertion only underscores the fact that he failed to meet his sales quota.
D. Breach of Implied Covenant of Good Faith and Fair Dealing
The implied covenant of good faith and fair dealing requires that the employer act fairly and in good faith. Burton v. Security Pacific Nat. Bank, 197 Cal. App. 3d 972, 979, 243 Cal. Rptr. 277 (1988). In an employment termination case, this covenant "is only a promise not to terminate the employment without '. . . some good reason . . .' or 'a fair and honest course of reason, regulated by good faith.'" Clutterham v. Coachmen Industries, Inc., 169 Cal. App. 3d 1223, 215 Cal. Rptr. 795 (1985).
Under California law an action cannot lie for breach of the implied covenant of good faith, when an employee may be terminated "at will". Hejmadi v. AMFAC, Inc., 202 Cal. App. 3d 525, 547, 249 Cal. Rptr. 5 (1988); Gianaculas v. Trans World Airlines, Inc., supra, 761 F.2d at 1394-95. In this case, plaintiff was clearly a party to an "at-will" employment contract. However, even if he was a "for cause" employee, plaintiff has failed to establish that he was terminated without good cause or in violation of the implied covenant of good faith and fair dealing.
To establish a breach of this covenant by asserting the employer terminated the employee based upon an improper motive, plaintiff must provide factual evidence that the dismissal was pretextual. Where plaintiff provides "no factual foundation for [the] claim that the stated reason for discharge . . was a mere pretext for some other, impermissible reason," summary judgment in favor of the employer is proper. Burton, at 978.
As previously noted, defendants have provided this Court with evidence that plaintiff's job performance was poor, and that the defendants had worked with plaintiff on numerous occasions in an attempt to correct the problem. However, plaintiff failed to improve his sales performance. Plaintiff's own evidence establishes that everyone at Sears was aware that, since Sears' reorganization, people would be terminated for failing to meet their quotas.
This Court has also already determined that plaintiff has failed to offer any persuasive pretextual reason for his termination. Plaintiff's proffered reason for his termination actually underscores the fact that he failed to meet his sales quota.
Plaintiff's employment contract clearly was "at will" rather than "for cause". Since there was an express "at will" provision both in plaintiff's employment application and defendants' personnel handbook; no "for cause" term may be implied in the employment contract. However, even if plaintiff's employment was terminable "for cause" only, defendants had good cause to terminate his employment. Accordingly
IT IS HEREBY ORDERED THAT
1. Defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED
DATED: March 6, 1994
SAUNDRA BROWN ARMSTRONG
United States District Judge
JUDGMENT - JAN 18 1994
Pursuant to an Order of this court granting defendants' motion for summary judgment,
IT IS HEREBY ORDERED that FINAL JUDGMENT be entered in favor of defendants.
IT IS SO ORDERED
DATED: January 14, 1994
SAUNDRA BROWN ARMSTRONG
United States District Judge