                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KAREN CUNNINGHAM,                               No. 16-55365

                Plaintiff-Appellant,            D.C. No. 5:14-cv-02249-DTB

 v.
                                                MEMORANDUM*
FEDEX EXPRESS, Erroneously Sued As
Federal Express Corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                  David T. Bristow, Magistrate Judge, Presiding**

                            Submitted June 26, 2017***

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Karen Cunningham appeals pro se from the district court’s summary

judgment in her diversity action alleging wrongful termination in violation of an



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
implied contract and intentional infliction of emotional distress. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Yartzoff v. Thomas, 809

F.2d 1371, 1373 (9th Cir. 1987), and we affirm.

      The district court properly granted summary judgment on Cunningham’s

wrongful termination claim because Cunningham was an at-will employee, and

Cunningham failed to raise a genuine dispute of material fact as to whether an

implied-in-fact employment contract was created. See Tomlinson v. Qualcomm,

Inc., 118 Cal. Rptr. 2d 822, 829-31 (Ct. App. 2002) (explaining that California

“courts will not imply an agreement if doing so necessarily varies the terms of an

express at-will employment agreement signed by the employee”).

      The district court properly dismissed Cunningham’s intentional infliction of

emotional distress claim because it is preempted by California’s workers’

compensation scheme. See Cole v. Fair Oaks Fire Prot. Dist., 729 P.2d 743, 750

(Cal. 1987) (intentional infliction of emotional distress claims predicated on

alleged misconduct that occurs within the normal scope of an employment

relationship are preempted by the Workers’ Compensation Act).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal, including Cunningham’s contentions that FedEx Express or its counsel

falsified drug results or that Cunningham received ineffective assistance of


                                          2                                       16-55365
counsel. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Because we do not rely on the portions of record that FedEx challenges in its

motion to strike (Docket Entry No. 15), the motion is DENIED as unnecessary.

      AFFIRMED.




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