Janes v. Wal-Mart Stores Inc., No. 00-55611.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: D. Nelson
• Citation: 279 F.3d 883
• Decision Date: 04 February 2002
• Docket Number: No. 00-55611.
• Parties: Jeffrey M. JANES, Plaintiff-Appellee, v. WAL-MART STORES INC., dba Sam's Club, Defendant-Appellant, and Gary Dawes, Defendant.

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279 F.3d 883 Jeffrey M. JANES, Plaintiff-Appellee,
v.
WAL-MART STORES INC., dba Sam's Club, Defendant-Appellant, and
Gary Dawes, Defendant. No. 00-55611. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 15, 2001. Filed February 4, 2002.

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Jon A. Shoenberger, Schlecht, Shevlin & Shoenberger, Palm Springs, CA, for the plaintiff-appellee.

Linda Miller Savitt, Christine T. Hoeffner, Dawn Cushman, Ballard, Rosenberg, Golper & Savitt, Universal City, CA, for the defendant-appellant.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. CV-99-08777-GAF.

Before: B. FLETCHER, D.W. NELSON, and McKEOWN, Circuit Judges.

D.W. NELSON, Circuit Judge.

Wal-Mart appeals the district court judgment following a jury verdict in favor of its ex-employee, Jeffrey Janes, in a wrongful termination suit. Alleging the existence of an implied-in-fact contract with Wal-Mart not to terminate him except for good cause, Janes claims that Wal-Mart breached this contract by firing him after he cooked and ate expired meat taken from Wal-Mart's waste barrel. Specifically, Wal-Mart appeals the district court's denial of its motions for judgment as a matter of law and for a new trial.

Wal-Mart claims that the district court erred by (1) excluding, as unduly prejudicial, evidence that Janes was fired from a previous retail job for stealing; (2) failing to hold that Janes's signed employment application providing for at-will employment could not, as a matter of law, be modified by an implied-in-fact agreement to terminate only for cause; and (3) failing to hold that Wal-Mart had good cause to terminate Janes because of his theft of expired meat. We affirm.

I. Factual and Procedural Background

On September 12, 1990, Janes completed an application to work as a meat cutter at PACE Membership Warehouse. That application contained an at-will employment provision stating: "I understand that if employed, I have been hired at will [sic] of PACE and that my employment may be

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separated at will, at any time; and with or without cause...." Janes's employment as a meat cutter with PACE began a month and a half later and continued until January 1994, when Wal-Mart bought PACE and began operating the store as a Sam's Club. During his employment with PACE, Janes was promoted from a meat cutter to an assistant meat manager.

When Wal-Mart took over the store in January 1994, Janes was given the title of "team leader" and continued to work under the manager of the meat department. In October 1994, Janes was given a raise and promoted from team leader to assistant warehouse manager in charge of the meat department.

Shortly after this promotion, Janes completed an employment application¹ with Wal-Mart. It states:

I understand that this application is not a contract, offer or promise of employment and that, if hired, I will be able to resign at any time for any reason. Likewise, the company can terminate my employment at any time with or without cause. I further understand that no one other than the President of Wal-Mart Stores, Inc., or Vice President of its People Division has the authority to enter into an employment contract or agreement with me, and that my at-will employment can be changed only by a written agreement signed by the President of Wal-Mart Stores, Inc. I have read, understand, and agree to this statement.

Janes initialed this statement and signed the employment application.

The following events led to Janes's firing (or, the meat of the matter). On about four or five occasions during the summer of 1995, Janes took expired meat from Wal Mart's "bone barrel," a receptacle in which expired meat is regularly deposited for pick-up by a salvage company.² On these occasions, Janes and several other employees cooked the meat into carne asada on a Wal-Mart grill and ate it for lunch at the store. After learning of the carne asada lunches, Wal-Mart interviewed Janes about the meat. Wal Mart fired Janes on the day of the interview, citing "violation of company policy" on the termination slip. Though Wal-Mart has no policy against taking expired meat per se, it does have a strict written policy against dishonesty that prohibits taking "anything, large or small." By way of example, the policy states that "eating candy from a broken bag is dishonest."

After his termination, Janes brought this action against Wal-Mart for unlawful discrimination based on a medical condition; wrongful discharge; intentional infliction of emotional distress; negligent infliction of emotional distress; breach of contract; and breach of the implied covenant of good faith and fair dealing.³ All but the breach of contract and breach of the covenant of good faith and fair dealing claims were dismissed before trial.

The case was tried to a jury over four days in February 2000. Janes argued that Wal-Mart was bound by an implied contract not to terminate him except for good cause, and that Wal-Mart did not have good cause to fire him. He testified that he did not know he was doing anything

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wrong by taking and eating the expired meat.

Janes did not, and does not, assert that his contract was modified by a subsequent written agreement. He also admits that no one ever told him that he would not be demoted, discharged, or disciplined except for good cause. He contends, however, that Wal-Mart's personnel policies and other conduct gave rise to an implied contract not to terminate him except for good cause. He points, in particular, to his promotions and to Wal Mart's policies for disciplining employees, arguing that these evidenced an understanding that Wal-Mart would not fire Janes except with good reason.

The case was submitted to the jury and the jury returned a general verdict for Janes, awarding him $167,000 in damages. Wal-Mart brought motions for judgment as a matter of law and for a new trial. The trial court denied these motions and entered judgment for Janes. Wal-Mart timely appeals, and we have jurisdiction under 28 U.S.C. § 1291.

II. Standard of Review

We review evidentiary rulings for an abuse of discretion, and an exclusion of evidence should not be reversed absent some prejudice. Defenders of Wildlife v. Bernal, 204 F.3d 920, 927-28 (9th Cir. 2000). We review a district court's denial of a motion for judgment as a matter of law de novo, and we review for abuse of discretion a district court's ruling on a motion for a new trial. See Desrosiers v. Flight Int'l of Fla., Inc., 156 F.3d 952, 957 (9th Cir.1998).

III. The district court's...