                                                                         FILED
                            NOT FOR PUBLICATION                           JUN 07 2013

                                                                     MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAHSAAN FREEMAN, an individual,                 No. 12-35187

              Plaintiff - Appellant,            D.C. No. 2:10-cv-01544-RSM

  v.
                                                MEMORANDUM *
U.S. BANK NATIONAL
ASSOCIATION, d/b/a U.S. Bank,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                        Argued and Submitted May 8, 2013
                               Seattle, Washington

Before: HAWKINS, THOMAS, and NGUYEN, Circuit Judges.

       Plaintiff Rahsaan Freeman (“Freeman”) appeals the summary judgment grant

to defendant U.S. Bank National Association (“U.S. Bank” or “the bank”). A loan

officer who had been terminated by U.S. Bank ten years earlier for various code of

conduct/ethics violations, Freeman contends that when U.S. Bank extended a new


         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
offer of employment to him, he relied on U.S. Bank’s representation that it had

conducted due diligence and that his prior termination would not present a problem

going forward.1 Freeman also brings a claim for negligent misrepresentation for the

same statement.      We affirm in part, reverse in part, and remand for further

proceedings.

       Viewing the evidence in the light most favorable to the nonmoving party, as

we must, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007),

Freeman has raised a material issue of fact about the existence of a specific and

narrow promise by U.S. Bank that the bank had done its due diligence and that his

prior termination would not affect his new employment. See Corey v. Pierce Cnty,

225 P.3d 367, 376-77 (Wash. Ct. App. 2010).

      The reasonableness of Freeman’s reliance on this representation is not

necessarily defeated because he received a written offer letter from U.S. Bank


      1
          In Washington, the elements of promissory estoppel are:

      (1) a promise which (2) the promisor should reasonably expect to cause
      the promisee to change his position and (3) which does cause the
      promisee to change his position (4) justifiably relying on the promise, in
      such a manner that (5) injustice can be avoided only by enforcement of
      the promise.

Havens v. C&D Plastics, Inc., 876 P.2d 435, 442 (Wash. 1994) (internal brackets
omitted) (quoting Klinke v. Famous Recipe Fried Chicken, Inc., 616 P.2d 644 (Wash.
1980)).

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informing him that his employment would be at-will. See Flower v. T.R.A. Indus.,

Inc., 111 P.3d 1192, 1197, 1201 (Wash. Ct. App. 2005). Moreover, Freeman does not

claim he was offered indefinite employment with U.S. Bank, or even that he could

only be fired “for cause,” but that his past conduct would not present a problem going

forward. Under the circumstances of this case, a reasonable person could view the

“at-will” agreement as applying to all forward-looking conduct involving Freeman’s

new employment with U.S. Bank, and not necessarily inconsistent with the express

promise that Freeman’s past conduct would not again serve as a basis for his

termination.

      Viewing the evidence in favor of Freeman, he has also established a material

question of fact for the jury as to whether he changed his position in reliance on the

bank’s promise by informing several banks with whom he had been discussing open

positions that he had accepted another offer and notifying clients of his change to U.S.

Bank. See Weitman v. Grange Ins. Ass’n., 370 P.2d 587, 589-90 (Wash. 1962)

(failure to seek other insurance sufficient reliance on promise to send notice of

policy’s expiration); cf. Havens, 876 P.2d at 447 (justifiable reliance ordinarily a




                                           3
question of fact).2 There is also a material question whether justice requires the

enforcement of the bank’s promise: Was Freeman forthcoming and truthful

throughout the interview process to the best of his recollection, as he contends, or did

he purposefully omit information about his prior termination to increase his odds of

being rehired? These are fact questions that are inappropriate for resolution on

summary judgment. We therefore reverse the district court’s grant of summary

judgment in favor of U.S. Bank on the promissory estoppel claim and remand for

further proceedings.

      However, we affirm the district court’s grant of summary judgment on

Freeman’s    negligent    misrepresentation    claim.   Freeman     claims    the   bank

misrepresented having conducted “due diligence” regarding his prior termination, but

does not offer any evidence that this statement is objectively false, as it is undisputed

that the bank did undertake some investigation into the termination but many records

had been destroyed due to the lapse in time. That the bank could have possibly done

more investigation does not necessarily mean it did not do enough, especially where

even Freeman himself did not remember the involvement of the one person who still



      2
       The Washington cases relied on by U.S. Bank in its brief regarding foregoing
job opportunities are inapposite because they deal with cases in which no express
promise had been made. See, e.g., Roberts v. Atl. Richfield Co., 568 P.2d 764, 769
(Wash. 1977).

                                           4
maintained any record of the event. Further, as used in this context, the term “due

diligence” cannot be proven objectively false, as it necessarily involves an expression

of opinion that the bank believed it had sufficiently researched the prior termination.

See Elliott Bay Seafoods, Inc. v. Port of Seattle, 98 P.3d 491, 495-96 (Wash. Ct. App.

2004) (claim for negligent misrepresentation defective because cannot prove falsity

of statements when made).

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Each party to bear its own costs on appeal.




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