                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 28 2012

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



                            FOR THE NINTH CIRCUIT


RUSSELL CHILDS,                                  No. 12-35045

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01916-RAJ

  v.
                                                 MEMORANDUM*
MICROSOFT CORPORATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                     Argued and Submitted December 5, 2012
                              Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**

       Russell Childs appeals the district court’s Rule 12(b)(6) dismissal of claims

against Microsoft Corporation for breach of contract and promissory estoppel. He

also appeals the district court’s grant of summary judgment for Microsoft on his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
state law tort claim of wrongful discharge in violation of public policy. We affirm

the district court’s rulings and decline to consider two arguments Childs raises for

the first time on appeal: that Microsoft violated 42 U.S.C. § 1981, and that the

crime-fraud exception applies to a Microsoft e-mail the district court deemed

privileged.

      1.      Childs failed to state a claim for breach of the February 2009

employment contract because he did not cite a provision of that contract that

Microsoft violated. To the extent that Childs is attempting to assert that Microsoft

Canada may have breached an earlier agreement it made with Childs in 2008, such

a claim is not properly before this court. Childs did not plead breach of the 2008

contract in his complaint, nor did he seek at any point to amend his complaint to

include such a claim. Childs also failed to state a claim for promissory estoppel

because he did not plead facts plausibly showing that he detrimentally changed his

position in reliance on Microsoft’s promises. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 554-55 (2007). Moreover, the doctrine of promissory estoppel is inapplicable

here because a bargained-for contract governs the basis of Childs’ claims. See

Klinke v. Famous Fried Chicken, Inc., 616 P.2d 644, 648 n.4 (Wash. 1980).

      2.      To sustain a wrongful discharge claim, Childs was required to identify

a “clear mandate of public policy” that was contravened by his termination.


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Bennett v. Hardy, 784 P.2d 1258, 1263-64 (Wash. 1990). Childs initially argued

that he was terminated in contravention of public policy because he opposed

“unfair wage and benefit practices.” But the statute Childs identified, RCW

49.60.210 of the Washington Law Against Discrimination (WLAD), covers only

retaliation against employees who complain about discrimination, not about wage

and benefits practices. See RCW 49.60. Childs then argued that WLAD provided

a public policy on which to base his claim because he was terminated after

opposing discriminatory labor practices based on his national origin. The district

court correctly granted summary judgment for Microsoft on this theory, as Childs

provided no evidence that Microsoft was engaged in national origin discrimination

or that he ever complained about such discrimination.

      The district court did not abuse its discretion in denying Childs’ motion for

reconsideration, which argued wrongful discharge predicated on RCW 44.49.140

and RCW 49.46.100. Even if we were to consider the merits of his claim for

wrongful discharge based on those policies, Childs has not shown a genuine issue

of material fact on the four necessary elements of the tort. See Korslund v.

DynCorp Tri-Cities Servs., Inc., 125 P.3d 119, 124-25 (Wash. 2005). Finally, for

the first time on appeal, Childs argues that a federal immigration regulation, 20

C.F.R. § 655.801, provides the basis for his wrongful discharge claim. This


                                          3
argument is untimely and we decline to address it.

      AFFIRMED.




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