                                                                              FILED
                            NOT FOR PUBLICATION                               AUG 24 2012

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



                             FOR THE NINTH CIRCUIT


ISMAIL MAHMOUD SHAHATA,                          No. 10-17438

               Plaintiff - Appellant,            D.C. No. 1:09-cv-00231-ACK-
                                                 KSC
  v.

W STEAK WAIKIKI, LLC,                            MEMORANDUM*

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Alan C. Kay, Senior District Judge, Presiding

                              Submitted June 29, 2012**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Ismail Shahata appeals pro se from the district court’s judgment in his action

arising from the termination of his employment by W Steak Waikiki, Inc. (“W

Steak”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Shahata brought claims for breach of contract, promissory estoppel,

infliction of emotional distress, invasion of privacy, and wrongful discharge. The

district court granted summary judgment in favor of W Steak on all but the breach

of contract and promissory estoppel claims. After a lengthy bench trial, the district

court found W Steak entitled to judgment on the remaining claims.

      I.      Bench Trial

      We review the district court’s findings of fact for clear error and its

conclusions of law de novo. Husain v. Olympic Airways, 316 F.3d 829, 835 (9th

Cir. 2002).

      Shahata’s breach of contract claim rested on the contention that W Steak

promised him employment for one year. The district court found that Shahata’s

employment agreement with W Steak was an at-will agreement which either party

could terminate with or without cause. The district court also found that Shahata

failed to prove he performed his duties adequately under the employment contract.

Neither finding is clearly erroneous, and each is fatal to Shahata’s breach of

contract claim. See Shoppe v. Gucci America, Inc., 14 P.3d 1049, 1064 (Haw.

2000) (at will employment is, by definition, terminable at the will of either party

for any reason or for no reason); Low v. Honolulu Rapid Transit Co., 445 P.2d 372,




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376 (Haw. 1968) (plaintiff must show he performed as required by contract to

prevail on claim for breach).

      Shahata also sought to enforce W Steak’s alleged promise of employment

for one year through the doctrine of promissory estoppel, an equitable mechanism

for enforcing a promise that cannot be enforced legally when necessary to avoid

injustice. Gonsalves v. Nissan Motor Corp., 58 P.3d 1196, 1211-12 (Haw. 2002)

The district court found it was not necessary to enforce the promise to avoid

injustice because Shahata failed to perform his part of the contract. In addition,

Shahata had an adequate legal remedy because he could, and in fact did, seek

contract damages in a claim for breach of contract. See Porter v. Hu, 169 P.3d

994, 1007 (Haw. 2007) (absence of an adequate legal remedy is prerequisite to a

claim for equitable remedy).

      The district court’s findings of fact from the bench trial are not clearly

erroneous and we find no legal error.

      II.    Summary Judgment

      We review a grant of summary judgment de novo. White v City of Sparks,

500 F.3d 953, 955 (9th Cir. 2007). Review is governed by the same standard used

by the district court under Fed. R. Civ. P. 56(c). Suzuki Motor Corp. v. Consumers

Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). We must determine, viewing the


                                         -3-
evidence in the light most favorable to Shahata, whether there are genuine issues of

material fact and whether the district court applied the proper substantive law.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004).

      Shahata alleged that W Steak engaged in acts that either negligently or

intentionally inflicted emotional distress upon him. His claim for negligent

infliction of emotional distress arising from his employment is barred by the

Hawaii Workers’ Compensation Statute, H.R.S. § 386-5. Except in cases of sexual

harassment or abuse, the statute bars civil claims by an employee against his

employer for negligent infliction of emotional distress arising from employment.

Kamaka v. Goodsill Anderson Quinn & Stifel, 176 P.3d 91, 108 (Haw. 2008). To

the extent Shahata alleges negligent infliction of emotional distress not arising

from employment, his claim fails because he did not present evidence of a physical

injury to property or to himself or another person. Kaho’ohanohano v. Dep’t of

Human Serv., 178 P.3d 538, 584 (Haw. 2008) (plaintiff must establish physical

injury to property or to the plaintiff or to another person in order to recover for

negligent infliction of emotional distress).

      A claim for intentional infliction of emotional distress requires the plaintiff

to show that the defendant intentionally or recklessly engaged in a harmful act that


                                          -4-
was outrageous and caused extreme emotional distress. Young v. Allstate Ins. Co.,

198 P.3d 666, 692 (Haw. 2008). Outrageous conduct is “conduct exceeding all

bounds usually tolerated by decent society and which is of a nature especially

calculated to cause . . . mental distress of a very serious kind.” Hac v. Univ. of

Haw., 73 P.3d 46, 60-61 (Haw. 2003). Viewing the evidence in the light most

favorable to Shahata, W Steak did not engage in outrageous conduct.

      Shahata alleged invasion of privacy on the theory that W Steak placed him

in a false light by terminating him for shortcomings that were not his fault. Such a

claim requires evidence that the defendant gave publicity to a matter that places the

plaintiff in a false light that would be highly offensive to a reasonable person.

Chung v. McCabe Hamilton & Renny Co., Ltd., 128 P.3d 833, 847 n.18 (Haw.

2006). Shahata conceded in testimony that he was not aware of any one who had

been told that problems at W Steakhouse Waikiki were his fault. Accordingly, the

district court correctly found that Shahata failed to establish the publication

element of his claim.

      Shahata alleged wrongful discharge in violation of public policy, but he

failed to allege or present evidence of a clear public policy that would be

vindicated by his claim. See Parnar v. Americana Hotels, Inc., 652 P.2d 625, 630

(Haw. 1982) (plaintiff terminated for giving information about employer’s possible


                                          -5-
antitrust violation) citing Peterman v. Int’l Bhd. of Teamsters, 344 P.2d 25, 27

(Cal.App.1959) (termination for refusal of employer’s instructions to commit

perjury). The argument that his termination violated a public policy in favor of

promissory estoppel does not state a claim.

      Viewing the evidence in the light most favorable to Shahata, he failed to

allege or present evidence to support necessary elements of his claims for infliction

of emotional distress, invasion of privacy, and wrongful discharge in violation of

public policy. The district court properly granted summary judgment in favor of

W Steak on those claims.

      III.   Attorneys’ Fees

      Shahata challenges the district court’s award of attorneys’ fees for the first

time on appeal. He did not oppose the motion in the district court and did not file a

notice of appeal after the order was filed. “A timely notice of appeal from the

judgment or order complained of is mandatory and jurisdictional.” Cruz v. Int’l

Collection Corp., 673 F.3d 991, 1001 (9th Cir. 2012) quoting Whitaker v. Garcetti,

486 F.3d 572, 585 (9th Cir. 2007). Shahata’s failure to file a timely notice of

appeal deprives this court of jurisdiction to hear Shahata’s challenge to the district

court’s order of January 6, 2011 regarding attorneys’ fees.




                                          -6-
      IV.   Shahata’s remaining contentions

      We have considered Shahata’s remaining contentions and find that they have

no merit. Accordingly, the judgment of the district court is AFFIRMED.




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