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NOT FOR PUBLICATION DEC 28 2012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
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argument is untimely and we decline to address it.
AFFIRMED.
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