                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 01 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICK GRESS,                                      No. 11-35835

              Plaintiff - Appellant,             D.C. No. 2:10-cv-03056-RMP

  v.
                                                 MEMORANDUM*
CONOVER INSURANCE, INC., a
Washington corporation,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
               Rosanna M. Peterson, Chief District Judge, Presiding

                       Argued and Submitted August 8, 2012
                               Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

       Appellant Rick Gress (Gress) appeals the district court’s entry of summary

judgment in favor of defendant Conover Insurance, Inc. (Conover).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Under Washington law, a claim for wrongful discharge in violation of a

public policy is a “narrow exception to the employment at-will doctrine.” Cudney

v. ALSCO, Inc., 259 P.3d 244, 246 (Wash. 2011) (en banc). Because Gress failed

to establish that Conover’s conduct was linked to a violation of the Washington

Family Leave Act (WFLA) or the Family Medical Leave Act of 1993 (FMLA), he

failed to raise a genuine issue of material fact that he was terminated in violation of

public policy. See Sanders v. City of Newport, 657 F.3d 772, 777-78 (9th Cir.

2011); see also Sicilia v. Boeing Co., 775 F. Supp. 2d 1243, 1256 (W.D. Wash.

2011) (order) (explaining that the FMLA and the WFLA do not entitle employees

to rights or benefits that “they would not have been entitled to had they not taken

leave”) (citations omitted). Because Gress never requested family leave, he did not

establish a prima facie case of retaliation under either law. See Little v.

Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002), as amended

(considering state and federal claims together); see also Sullivan v. Dollar Tree

Stores, Inc., 623 F.3d 770, 779 (9th Cir. 2010) (noting that general assertions are

not adequate to defeat summary judgment).



2.    The Americans with Disabilities Act of 1990 (ADA) and Washington Law

Against Discrimination (WLAD) are public policy mandates prohibiting


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discrimination or retaliation against individuals with disabilities. See Pardi v.

Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004); see also Becker v.

Cashman, 114 P.3d 1210, 1215 (Wash. Ct. App. 2005). It was undisputed that

Conover accommodated Gress’ injury. Because Gress did not raise a material

issue of fact regarding whether his termination was due to his asserted disability or

his exercise of rights under the ADA or WLAD, the district court properly granted

summary judgment in favor of the employer. See Coons v. Sec’y of U.S. Dep’t of

Treasury, 383 F.3d 879, 887-88 (9th Cir. 2004); see also Becker, 114 P.3d at 1213.



3.     When there is a bona fide dispute regarding wages, no intentional and

willful violation of the public policy requiring prompt payment of wages exists.

See Snoqualmie Police Ass'n v. City of Snoqualmie, 273 P.3d 983, 990 (Wash. Ct.

App. 2012). Gress did not disagree that there was a bona fide dispute regarding the

wages due to him. In view of the conceded existence of a bona fide dispute, entry

of summary judgment in favor of the employer was warranted. See id.; see also

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948, 952 (9th Cir. 2012)

(explaining that summary judgment is appropriate when no genuine issue of

material fact exists).




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      Gress engaged in a protected activity when he challenged Conover’s failure

to pay his commission earnings. See EEOC v. Luce, Forward, Hamilton &

Scripps, 303 F.3d 994, 1004-05 (9th Cir. 2002) (noting that protected activity

includes protesting an unlawful employment practice). However, as discussed

above, Gress failed to establish a causal link between the wage dispute and his

termination. Therefore, summary judgment in favor of the employer was

appropriate. See Coons, 383 F.3d at 887-88.



4.    Washington state law applies the general concept that consideration exists

for an employment contract when an “[e]mployee enters into a noncompete

agreement when he or she is first hired.” Labriola v. Pollard Group, Inc., 100 P.3d

791, 794 (Wash. 2004) (en banc) (citations omitted). Because Gress signed an

employment agreement at the time of his initial hiring that included a

noncompetition clause, the district court correctly determined that the

noncompetition clause was enforceable and binding. See id.



5.    “A contract is illusory when its provisions make performance optional or

discretionary. . . .” Cascade Auto Glass, Inc. v. Progressive Cas. Ins. Co., 145

P.3d 1253, 1258 (Wash. Ct. App. 2006) (citation omitted). The fact that Conover


                                          4
retained the right to unilaterally modify the contract did not render the agreement

illusory, because the performance obligations remained fixed. See id. at 1257; see

also Duncan v. Alaska USA Fed. Credit Union, Inc., 199 P.3d 991, 1002 (Wash.

Ct. App. 2008) (noting that “[i]t is beyond dispute that Washington law provides

that a terminable-at-will contract may be unilaterally modified”) (footnote

reference and internal quotation marks omitted). That circumstance did not render

the contract illusory. See Cascade, 145 P.3d at 1257.

      AFFIRMED.




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