DIYORIO v AT&T
Jun 25, 2007OUTCOME: U.S. 9th Circuit Court of Appeals affirmed summary judgment for defendent Avaya Inc., concluding plaintiff failed to raise any triable issues of fact.
Plaintiff Diane Diyorio sued her employers AT&T, Lucent Technologies Inc. and Avaya Inc. for claims of age and gender discrimination, retaliation, wrongful termination, intentional infliction of emotio ... nal distress, violation of implied contract, violation of the implied covenant, and violation of the unfair competition law (B & P Code § 17200 et seq.). From the California Employment Lawyers Association Bulletin, July 2007, Vol. 21, No. 7, citing portions of the Court's unpublished opinion: “We assume without deciding that Diyorio established a prima facie case of age and gender discrimination. Defendants, however, have offered several legitimate, nondiscriminatory reasons for Diyorio’s discharge... Diyorio has failed to discredit any of these reasons. Nor has she put forward any other appreciable evidence of discriminatory motive on defendants’ part... “Diyorio also asserts that defendants fired her in retaliation... In this case, Diyorio has not demonstrated any basis for a reasonable belief on her part that her employers were behaving in a discriminatory manner towards her, and she cannot claim the protection of § 12940(h). [FN3. Although we doubt that Diyorio’s offhand remark was sufficient to amount to a ‘complaint’ of age discrimination, we need not reach that issue.] “Three of Diyorio’s remaining claims are premised on her allegations of age and gender discrimination: (1) wrongful termination in violation of public policy; (2) intentional infliction of emotional distress; and (3) violation of California’s unfair competition law... Given Diyorio’s failure to come forward with evidence that would allow a reasonable factfinder to find that defendants discriminated against her, those claims also fail. “Finally, Diyorio alleges that she was fired in violation of an implied-in-fact employment contract providing that she would not be fired without cause. She also argues that once defendants put her on a short-term performance improvement plan with a deadline of February 1, 2003, to meet its goals, this action amounted to a promise that she would not be fired before that date. “Here, Avaya’s written personnel policies provide that employment ... is at will. Although Diyorio points to the longevity of her employment, this factor standing alone cannot overcome California’s presumption that employment is at-will and Avaya’s express policies affirming that principle. [cite omitted] The fact that a company official allegedly asked Diyorio to stay on with Avaya rather than taking an early retirement in 2001 is also insufficient to show an implied-in-fact contract... Finally, there is no suggestion anywhere in Diyorio’s short-term development plan that her job was secure until February 2003. [FN4. Although Diyorio pled a separate claim [for breach of the implied covenant], California law ... does not allow such a stand-alone claim in the circumstances of this case.”]
