OpenJurist

917 F2d 1307 Shah v. International Business Machines Corporation

917 F.2d 1307

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Pravin C. SHAH, Plaintiff-Appellant,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
Corporation, Defendant-Appellee.

No. 89-55997.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990.*
Decided Nov. 8, 1990.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Pravin Shah, a former employee of International Business Machines (IBM), appeals the district court's grant of summary judgment in favor of IBM in his action for wrongful discharge. The district court, assuming that Shah was not terminable "at will" and that he enjoyed an implied covenant that he could be terminated only for good cause, determined that he raised no triable issues of fact as to either of his asserted claims, for breach of implied contract or breach of the covenant of good faith and fair dealing. We agree, and affirm.

3

* The uncontroverted facts show that IBM transferred Shah, a twenty-two year employee, to Riverside, California from Arizona pursuant to Shah's request. Under it's "Moving and Living Expense Program" IBM was to reimburse Shah for hotel costs for a specified period of time. Once that passed, Shah orally arranged a special rate with the hotel until the arrival of his family, at which time he was to pay the normal corporate rate for two rooms for two weeks. Upon checking out, after he had paid the hotel's regular, computerized bill, Shah pointed out to the clerk that he had been undercharged for one of the rooms and requested a bill "for his records." He was provided a typewritten bill reflecting the accurate charge, which he submitted to IBM with a reimbursement request form.

4

IBM's policy, with which Shah was familiar, provided that employees must "record and report all information accurately and honestly.... Employees are entitled to reimbursement for reasonable expenses--but only if those expenses are actually incurred. To submit an expense account for meals not eaten, miles not driven, airline tickets not used, or for any other expense not incurred is dishonest reporting."

5

When presented with a typewritten bill by a hotel it knew provided a computerized bill, IBM investigated. Its investigation produced evidence that the hotel intended to "eat" its mistake and did not intend to bill Shah for the difference, and that Shah's explanations--first, that he was in too much of a rush to pay the difference at the time, and later that he thought IBM's auditors would be confused--did not indicate that he had not submitted expenses for reimbursement which he had not actually paid or incurred. After the incident arose Shah paid the balance of the hotel bill.

6

Based on its employment policies, and after investigation, IBM terminated Shah.

II

7

It is undisputed that Shah submitted a claim for expenses he had not paid. He now argues that there is a difference between submitting a claim for expenses "paid" and "incurred," however he has presented no evidence raising a triable issue that the difference between the amount he "paid" and for which he requested reimbursement was "incurred," or, put another way, that he was under any obligation to pay it. The fact that he did pay the difference, after submitting his claim for reimbursement and after the dispute arose, is not probative or material.

8

IBM applied its employment policies. There is no competent evidence that its policies were not evenly administered, or that there was any pretext in Shah's particular case.

9

These uncontroverted facts distinguish this case from Wilkerson v. Wells Fargo Bank, N.A., 212 Cal.App.3d 1217, 261 Cal.Rptr. 185 (1989) (both the occurrence and willfulness under employer's policy put at issue by defendant's denial), upon which Shah relies. When no triable issue is raised, summary judgment on whether good cause has been shown is appropriate. See Kohler v. Ericsson, 847 F.2d 499, 500-01 (9th Cir.1988). The district court properly concluded on the record adduced that Shah had not raised a triable issue about whether his reimbursement claim was false or whether his termination fell within IBM's employment policies about which he had knowledge.

10

By the same token, assuming that Shah has preserved the issue on appeal,1 there was no evidence that IBM failed to act in good faith. See Burton v. Security Pacific National Bank, 197 Cal.App. 972, 243 Cal.Rptr. 277 (1988). Summary judgment on this claim was properly entered as well. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986).

11

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Shah's opening brief argues only the good cause claim, suggesting that he was abandoning the good faith claim on appeal