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March 8, 2004.

JERRY H. LOVE, Plaintiff
MOTION INDUSTRIES, INC., a Corporation, and DOES 1 through 50, Inclusive, Defendant

The opinion of the court was delivered by: MARTIN JENKINS, District Judge

This case arises from the employment relationship between Plaintiff Jerry H. Love and his employer, Defendant Motion Industries. Plaintiff's complaint alleges eight causes of action ranging from wrongful termination in violation of California's whistle-blower protection law to intentional infliction of emotional distress. Defendant here moves for summary judgment on all claims. For the reasons that follow, the Court grants Defendant's motion in its entirety.


  Defendant is a company engaged in the wholesale distribution of industrial bearings as well as fluid, mechanical, electrical and power transmission components. Declaration of Dave Sharp ("Sharp Decl.") at ¶ 5. Plaintiff met with Dave Sharp, Manager of Defendant's Menlo Park Branch, during January 2000 to discuss possible employment as an Outside Sales Person with Page 2 Defendant. During the meeting, Plaintiff told Sharp that he wanted to be compensated in the amount of $43,000 per year. Deposition of Jerry H. Love ("Love Dep.") at 54. According to Plaintiff, Sharp told him that after one year his pay would shift from a guaranteed salary to a straight commission based on 15% of gross profits. Love Dep. at 58.

  On February 3, 2000, Plaintiff began his employment with Defendant. On the same day, he completed and signed an Application for Employment that stated in pertinent part:
In consideration of my employment, I agree to conform to the rules and regulations of the Company and my employment and compensation can be terminated with or without cause, and with or without notice, at any time, at the option of either myself or the Company. I understand that no manager or representative of the Company other than the President or Vice President of the Company has the authority to enter into any agreement for employment for any specified period of time, or make any agreement contrary to the foregoing.
Defendant's Motion for Summary Judgment ("Mot."), Ex. B. Plaintiff also received an employee handbook in connection with his employment which included the following text:
[M]y employment is on an at-will basis. That is, notice of termination/resignation may be given by either party at any time and for any reason. This disclaimer constitutes the complete understanding concerning my employment terms with the Company. No officer or representative of the Company has any authority to enter into any agreement of employment for any specified period or time or to make any agreements, express or implied, that is contrary to the foregoing unless it is reduced to writing and signed by the President of the Company.
Id. Plaintiff signed a document acknowledging that he received the handbook and agreed to abide by the provisions therein. Love Dep. at 68-69.

  As an Outside Sales Person with Defendant, Plaintiff's responsibilities included maintaining existing accounts and developing new businesses within a geographical territory, generating sales at the branch, developing new customers, reviewing account information for his customers to ensure that pricing and coding on their accounts was adequate, and participating in branch sales meetings. Love Dep. at 71-73. Sharp was Plaintiff's immediate supervisor throughout his employment with Defendant. Plaintiff alleges that on his first day, Sharp explained that his annual salary would be only $42,000 but that Plaintiff would receive an expense account to make up the $1,000 difference to reach the $43,000 Plaintiff had requested. Plaintiff agreed.*fn1 Love Dep. at 88. Defendant established Page 3 an expense account for Plaintiff when he began his employment. Love Dep. at 141.

  On November 29, 2000, Plaintiff and Sharp prepared a written Performance Evaluation positively evaluating Plaintiffs performance. In connection with Plaintiff's evaluation, Sharp and Plaintiff discussed areas of Plaintiff's performance where Plaintiff thought he could improve. Love Dep. at 79-83; Mot., Ex. 7.

  On January 3, 2001, Sharp sent Plaintiff a written memo citing concerns over Plaintiff's decreased sales for the fourth consecutive month. Love Dep. at 109-13; Mot., Ex. 12. According to Sharp, Plaintiff did not usually achieve one-half of the sales of Steve Hood, the only other outside salesperson in the office. Sharp Decl. at ¶ 17. After Plaintiff responded to Sharp's call for a plan to "save" him, Sharp required Plaintiff to complete Weekly Call Reports regarding customers he called upon during the week. Love Dep. at 130-31.

  On February 8, 2001, Plaintiff received a written warning for failure to comply with organizational requirements, including failure to produce name and address information on his top ten accounts. Love Dep. at 129-30; Mot., Ex. 16. Sharp outlined the behavior he expected of Plaintiff, including listing certain information regarding his top accounts, and he cautioned, "this is a minimum requirement needed for continued employment." Mot., Ex. 16. Plaintiff received a second written warning on March 1, 2001, for failure to comply with organizational requirements. Love Dep. at 131-32; Mot., Ex. 18. Both warnings cited termination as a potential consequence for not correcting the underlying problems necessitating the warnings, and Plaintiff acknowledged receipt of both warnings by signing them. Love Dep. at 130-32; Mot. Ex. 16, 18.

  On April 1, 2001, Plaintiff was removed from guaranteed salary and placed on straight commission. Plaintiff's sales figures for the month of April entitled him to receive less than the previously guaranteed salary of $3,500 per month. Sharp Decl. at ¶ 28; Love Dep. at 135-36. Sharp discussed Plaintiff's poor performance with him on May 21, 2001, and decided to terminate him. According to Sharp, he terminated Plaintiff because he was not satisfied with Plaintiff's response that his sales would be up by the end of the year. Sharp Decl. at ¶ 33; Deposition of Dave Sharp Page 4 ("Sharp Dep.") at 129. On May 24, Sharp notified Plaintiff he was being terminated for poor performance. Sharp Decl. at ¶ 33; Love Dep. at 146-47.

  Plaintiff offers a concurrent story line that he alleges renders much of the preceding pretextual and meaningless. According to Plaintiff, the problems with Plaintiff's performance were simply "trumped up"charges developed in retaliation for what follows.

  Shortly before Plaintiff was hired, Defendant was invited to review bid specifications and b on the supply of spherical ball bearings for the San Francisco. Oakland Bay Bridge West Bay Suspension Towers Project ("Towers Project"). Love Decl. at ¶ 6. While reviewing specifications for the bearings, Plaintiff and David Winke*fn2 developed concerns regarding the "corrosiveness fact in a sea-salt-air climate, the potential for slippage of the bearings called for by the bid, and the ability of the ball bearings to support certain weight loads over time." Love Decl. at ¶ 6. Plaintiff present the discovered safety concerns to his co-workers and superiors, including at times in front of Sharp Love Decl. at ¶ 8; Deposition of Steve Hood at 54, 57. Plaintiff submitted a competitive bid on behalf of Defendant to supply spherical ball bearings for the Towers Project. Love Decl. at ¶ 7; Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Opp."), Ex. F.

  In December 2000, due to Defendant's inaction in the face of his concerns, Plaintiff told Sharp that he was going to inform the media of the safety issues he uncovered with Winkel. Love Decl. at ¶ 9-10. After discussing the issue with Defendant's regional manager, Charlie Davis, Sharp later told Plaintiff he did not want the media to be contacted. By that time, Plaintiff had already contacted a Chronicle reporter. Love Decl. at ¶ 11; Sharp Dep. at 134-37. Plaintiff contacted then-State Representative Jackie Speier's office in March 2001 to request her office initiate a governmental investigation into the potential safety hazards on the Towers Project.*fn3 Love Dep. at 151. When Plaintiff described his contact with Speier's office on May 9, Sharp told him to "find Page 5 another cross to carry."*fn4 Plaintiff was terminated on May 21, 2001.


  Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.C.P. 56(c). The moving party bears the initial burden of establishing that there is no genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party does not bear the burden of proof at trial, the initial burden of showing that no genuine issue of material fact remains may be discharged by demonstrating that "there is an absence of evidence to support the non-moving party's case." Id. at 325. The moving party is not required to produce evidence showing the absence of genuine issues of material fact. See ...

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