UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 18, 2009
LINDA MARIE SMITH, PLAINTIFF,
WINCO FOODS, LLC, DEFENDANT.
MEMORANDUM AND ORDER
Plaintiff initiated this action by which she seeks relief for her alleged wrongful termination. Defendant timely removed to this Court and subsequently filed the instant Motion for Summary Judgment. For the following reasons, Defendant's Motion is granted.*fn1
Defendant, is an employee-owned grocery retailer. In 1999, Defendant hired Plaintiff as a cashier for one of its Idaho stores. Plaintiff transferred as a customer service representative to Defendant's Orangevale, California, store in February of 2006.
The two principal documents governing the terms and conditions of Plaintiff's employment with Defendant were the WinCo Foods #54 Hourly Employee Working Conditions and Wage Agreement ("Agreement") and the Company Personnel Policies, which were incorporated into the Agreement.
Pursuant to that Agreement, "Employees may be discharged without prior warning for gross misconduct, as defined in the WinCo Company Personnel Policies." Agreement, ¶ D. Those Personnel Policies define "gross misconduct" as, inter alia:
2. Theft. Taking, obtaining or eating (except authorized employees tasting product for quality) any merchandise of any value without paying for it, regardless of any circumstances.
Personnel Police, § XV.
Plaintiff was never advised that her employment with Defendant would continue indefinitely, and she never saw anything in writing that would lead her to conclude as much. Rather, Plaintiff claims a former company president stated to a group at a holiday party in 1991 that "you could retire a millionaire if you always do your job right." Nevertheless, Plaintiff acknowledges that everyone listening at the time, "just kind of laughed," and she admits she was aware she could be fired immediately if she failed to comply with Defendant's policies.
Pertinent to the instant action is Defendant's lost and found policy, which states that all money or items found in WinCo stores are WinCo property and that employees are not to benefit from found items. Plaintiff contends this policy was never communicated to her, but she was terminated on May 19, 2007, as a result of both her alleged violation of that policy and dishonesty.
More specifically, at the time of Plaintiff's termination, lost and found items were collected in a cupboard in the Orangevale store's Customer Service Department. The Orangevale store manager, Tina Mullins, told Plaintiff that lost and found items were customarily taken to the thrift store. Plaintiff offered to drop them off on her way home from work. On the relevant date, Smith was loading the lost and found items into a bag to take to the thrift store when another employee noticed an MP3 player and told Plaintiff she wanted it. Plaintiff told the employee that she was not allowed to take the item out of the store without a receipt and then "sold" the item to that employee for five cents.