855 F.2d 861 (9th Cir. 1988), 87-2563, Hewko v. Digital Equipment Corp.

Docket Nº:87-2563.
Citation:855 F.2d 861
Party Name:Kathleen HEWKO, Plaintiff-Appellant, v. DIGITAL EQUIPMENT CORPORATION, Defendant-Appellee.
Case Date:August 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 861

855 F.2d 861 (9th Cir. 1988)

Kathleen HEWKO, Plaintiff-Appellant,



No. 87-2563.

United States Court of Appeals, Ninth Circuit

August 15, 1988

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted May 11, 1988.



Appeal from the United States District Court for the Northern District of California, Alfonso J. Zirpoli, District Judge, Presiding.

Before SCHROEDER, NOONAN and O'SCANNLAIN, Circuit Judges.


Appellant Hewko appeals summary judgment of her complaint against her former employer, appellee Digital Equipment Corporation. Appellant originally filed her action in state court; appellee removed to federal district court on the basis of diversity and, after discovery, moved for summary judgment. The district court granted summary judgment in July, 1987 and dismissed the complaint's Doe defendants without prejudice.

Appellee is in the business of selling computer hardware and services. Appellant was one of appellee's sales people. Prior to mid-1984, appellant's work reviews were positive and there is no evidence that she was not meeting her hardware sales budget. However, in 1984 one of appellant's customers withdrew its $1.6 million commitment to buy hardware. As a result, appellant's sales for the first three quarters of 1984 were significantly under her yearly hardware budget. After the sale withdrawal, appellant's supervisors began disciplinary action because of her deficient hardware sales.

Appellee's Personnel Policies and Procedures Manual provides a four-step discipline process when an employee is not performing at an acceptable level. In accordance with that procedure, appellant's supervisor counseled her in September of 1984, devised a performance plan and gave her 30 days to attain certain goals; appellant and appellee dispute whether appellant completed these goals. In October of 1984, appellee gave appellant a verbal warning which included new goals; appellant did not attain all these goals.

Appellant's supervisor then placed her on written warning. New goals were established in the written warning and appellant took classes in order to improve her abilities. However, at the end of the written warning period, appellant had still not met her hardware budget. Despite that fact, appellant's supervisor gave appellant a 30-day extension to investigate new business. At the end of the extension period, appellant's supervisors reviewed her performance, determined that she had not met the established goals and terminated her.

Appellant brought suit in state court claiming that appellee fired her in bad faith. After removal by appellee to federal court, the case was sent to arbitration pursuant to Local Rule 500. After arbitration, appellant requested a jury; the district court denied her request as untimely. The court later granted appellee's motion for summary judgment, holding that appellee had good cause to fire appellant and that appellant's emotional distress claims were barred by workers' compensation.

Appellant first argues that this case must be remanded to the state court because of the presence of Doe defendants upon removal. See Bryant v. Ford Motor Co., 832 F.2d 1080 (9th Cir.1987), amended, 844 F.2d 602 (9th Cir.1988). In Bryant, this court ruled that the presence of Doe defendants upon removal of a state action to federal court deprives the federal court of jurisdiction. 844 F.2d at 606. While the Bryant rule applies retroactively, "Bryant does not require remand in cases where 'Doe' defendants were stricken by the district court prior to the November 6, 1987 decision...

To continue reading