Teel v. Ghilotti Construction

Filed 5/10/07 Teel v. Ghilotti Construction CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Richard Teel sued his former employer and supervisor for age discrimination, harassment, and other claims arising from his termination from employment in 2003. He appeals from a summary judgment in favor of the defendants, contending that there are triable issues of fact as to whether the defendants proffered reasons for discharging him were merely a pretext for discriminatory motives. We find no triable issues, and affirm the judgment.

I. BACKGROUND

Ghilotti Construction Company, Inc. (Ghilotti) is a heavy construction contractor specializing in major earthwork, pipelines, asphalt, and bridgework. Ghilotti hired Teel in May 1999 to perform the takeoff function in its estimating department. The takeoff function involves using construction blueprints, project specifications, and other information to determine the quantity of materials to add to or remove from a project to be bid. Takeoff is one of the first steps in formulating a bid for a construction project. Teel was 65 years old when Ghilotti terminated his employment on July 16, 2003.

A. The Pleadings

In July 2004, Teel sued Ghilotti and Christer Berglund, the Ghilotti manager who had fired him, alleging causes of action for age discrimination in violation of the Fair Employment and Housing Act (FEHA)[1] (against Ghilotti), harassment (against Berglund), unfair competition[2] (against both defendants), breach of contract (against Ghilotti), and maintenance of a hostile work environment (against both defendants). A first and second amended complaint re-alleging the same causes of action were filed, respectively, in November and December 2004.[3]

Ghilotti and Berglund filed answers to the second amended complaint in January 2005, denying its material allegations, and asserting various affirmative defenses.

B. Defendants Summary Judgment Motion

In August 2005, the defendants moved for summary judgment or, in the alternative, for summary adjudication of Teels breach of contract claim and request for punitive damages. Defendants motion alleged that the following facts, among others, were undisputed:

Teel was 62 years old when Ghilotti hired him in May 1999. He had left his previous employment because he did not like the pay. When Teel began his employment with Ghilotti, he executed an acknowledgment and receipt form stating that he understood his employment with Ghilotti was an employment-at-will relationship under the law and that Ghilotti could terminate his employment for any reason whatsoever, with or without cause, and at any time. By his signature on the form, Teel also acknowledged that he received the employee handbook, which specified the same terms of employment.

In January 2001, Berglund took over as supervisor of the estimating department, replacing Dean Garzot. When Berglund took over, the approximate ages of the estimators in the department were 43 (Berglund), 44 (Ron Barber), 52 (Mark Elliott), 57 (Steve Zurilgen), and 61 years old (Garzot). Teel believed Berglund was inexperienced and was not doing a good job as head of the estimating department.

In a meeting during 2001, Berglund informed Teel that two people in the department had noticed a change for the worse in his attitude. Berglund told Teel that he was not a team player. Teel became resentful toward Berglund because he was not invited to attend a management and senior estimator trip to Cabo San Lucas and because he was labeled as  not a team player.  In Teels performance review of July 2001, Berglund rated him as  satisfactory  overall, but in the categories of  quantity of work produced  and  Courtesy and Communication,  Berglund gave Teel ratings that were less than satisfactory. Berglund also stated in the evaluation that Teel needed to increase his output and work under deadlines similar to the estimators. At that time, Ghilottis estimating department was often sending takeoff projects to an outside vendor, Earthcalc, Inc., to meet bid response deadlines.

Teel felt that Berglunds ratings were unfair and that Berglund could not properly evaluate him because he did not know what he was doing in his own job. In November 2001, Berglund discussed with Teel his concerns that Teel was taking too long on his jobs and that others in the department had complained about Teel and his slow work. They also discussed Teels salary. At another meeting in 2002, Berglund told Teel that he was not getting his work out on time and that other people in the office had complained about his attitude. Before the 2002 meeting, Teel had complained to Berglund that he was being underpaid in relation to the amount of work he was doing and the number of estimators he was working for.

In the early part of 2003, Berglund prepared a performance evaluation of Teel on a form that contained spaces for separate comments by the employer and employee. Under a section entitled Factors Affecting Job Performance, Teel wrote: It is hard to be [motivated] when you have not had a raise in two years . . . [] . . . [] [o]r your salary has not keep up [sic] with the rest of the ind. In the section entitled Strengths and Areas for Improvement, Berglund wrote: Work performance comes before salary increases. Berglund observed Teel sitting around on more than one occasion, apparently doing nothing for long periods of time. At times, Berglund felt it would be better for the department if Teel was terminated due to his slow production and bad attitude.

In June 2003, Ghilotti purchased and installed two new workstations for takeoff personnel that were intended for use by two takeoff employees, thereby increasing the amount of takeoff that could be completed in-house. The workstations cost approximately $36,345. One of Ghilottis financial goals in 2003 and earlier was to reduce the amount of outside takeoff work. In the spring of 2003, Berglund asked an intern, Dustin Moore, to work part-time alongside Teel doing takeoff work with him, using the second workstation. Berglund believed that, with Teels assistance, Ghilotti could increase its in-house takeoff production. Teel believed Berglund wanted Teel to train Moore so that Moore could eventually replace him.

On July 16, 2003, Berglund invited Teel to meet over lunch. Berglund asked Teel for his opinion of Moore and Teel told him that Moore did not know how to read blueprints or do takeoffs. Berglund asked Teel to help Moore if he was not doing a job correctly. Teel advised Berglund that he believed part of the deal he had with him about his salary was that Berglund was supposed to hire someone experienced in doing takeoffs. Teel stated that had he known he would have to train someone, he would have asked for a higher salary. Teel informed Berglund in the lunch meeting that it would be impossible to train Moore and that he was not being paid enough to train him. According to Teel, Berglund asked him on the way back to the office whether he would be willing to hold off until August on his position that he would not train Moore, and Teel told him he would.

Teel was terminated from his employment with Ghilotti on the afternoon of July 16, 2003. He was advised that he was being terminated for:  Insubordination, failure to follow directionSupervisor requested you assist in training takeoff intern. You have refused this request. 

C. Teels Summary Judgment Opposition

In his opposition declaration and separate statement, Teel stated the following additional disputed facts, among others, for which there was admissible evidence in the record:

Teels employment with Ghilotti was uneventful until Garzot was demoted and Berglund was hired as Teels supervisor. A few months after Berglund started, he asked Teel when he was going to retire. Berglund was friendly with some employees, but his behavior toward Teel and Elliott (who was also over 50 years of age) was not friendly. Elliott was terminated in November 2002.

Teel was forced to endure abuse from Berglund. Berglund called him stupid and crazy, and frequently yelled at him. He was not given a key to the office. Berglund lied about Teel refusing to train Moore. Teel was the only person in the department who was not allowed to go on the annual Cabo San Lucas trip.

In April 2002, Berglund wrote notes about his assessment and plans for the estimating department. The handwritten notes were titled, Estimating Dept. Overview. The first subheading was Strength, weakness, opportunity, threats. Under that category, Berglund listed the following four points: (1) strengthestimators solid, Admin strong; (2) weaknesstake-off, retirement looming; (3) opportunitynew hires; and (4) threatsestimators leave. A second subheading was labeled retirement. Under that subheading, Berglund had listed the names of Garzot, Zurilgen, and Teel, followed by entries stating (1) a predicted number of years before each employees retirement followed by a question mark, (2) how much advanced notice the company needed for each employees retirement, and (3) what offers the company should make to each. For Garzot, Berglund made the following entries under these categories, respectively: 2 years? 6 months1 year notice[,] securityYou have the job till retirement. For Zurilgen, Berglund wrote: 5 years? 6 months1 year notice[,] security[you have the job till retirement]. For Teel, the entries were different: 1 year? out ASAP[,] retirement package. Berglunds notes contained two further subheadingsNew hire and Goals for Department with entries under each, respectively, as follows: (1) New graduate? [] 510 years experience? and (2) resolve take-off issue [] Develop hiring plan. According to Teel, the notes showed Berglunds intention to force Teel and Garzot, who was also over 50 years old, to retire within one years time.

When Berglund took Teel to lunch on July 16, 2003, Teel believed they were having a two-way discussion. Teel told Berglund that he had promised to get Teel an experienced person to work with. Regarding training Moore, Teel mentioned that he was unclear about what Berglund wanted from him in training Moore because Berglund was always riding him about being slow and it would be hard to stick to a consistent training program. He also mentioned that because he did not have a key to the office like other employees he could not arrive early or stay late to work with Moore. Teel was not trying to be insubordinate and was not refusing to train Moore. Teel had in fact been helping Moore out on a consistent basis.

After being terminated, Teel was replaced by a younger worker, Moore.

D. Judgment and Appeal

The trial court ruled that Teel failed to set forth facts sufficient to raise a triable issue of fact that the actions of . . . Ghilotti or Berglund were based on [his] age and thus failed to establish a prima facie case of age discrimination or harassment. The court found that Teel failed to establish that he was replaced by Moore or any other circumstance suggesting a discriminatory motive on defendants part. Alternatively, the court held that even if Teels evidence was sufficient to establish a prima facie case of discrimination, Ghilotti and Berglund had established a legitimate nondiscriminatory basis for terminating himrefusal to comply with a reasonable request to assist in training a new employee and Teel had failed to come forward with evidence that defendants stated reason was untrue or pretextual.

Based on the evidence, the trial court further found that Teel had no evidence that defendants harassed him or subjected him to a hostile work environment because of his age. Since Teel failed to establish any triable issues with regard to his age discrimination, harassment, and hostile work environment claims, the trial court held that his derivative cause of action for unfair competition also failed.

The court also found no triable issue of material fact with respect to Teels breach of contract claim, citing the at will language found in the acknowledgement and receipt form he signed at the inception of his employment.

Teel timely appealed from the ensuing judgment in favor of Ghilotti and Berglund.

II. DISCUSSION

Teel contends that the trial court erred in finding no triable issues of material fact with respect to his causes of action for age discrimination, harassment, and hostile work environment. He offers no intelligible argument concerning his breach of contract or unfair competition claims, and has therefore abandoned those issues.[4] (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [appellate court is not required to examine undeveloped claims]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [conclusory discussion of an issue without citation to authority amounts to an abandonment of the issue].)

A. Standard of Review

On appeal after a trial court has granted summary judgment, we review the record de novo to determine whether the evidence submitted for and against the motion discloses material factual issues warranting a trial. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334335 & fn. 7 (Guz).)

Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. (Code Civ. Proc.,  437c, subds. (a), (o)(2).) The defendant is not required to conclusively negate an element of the plaintiffs cause of action to meet that burden, but must present evidence showing that the plaintiff does not possess and cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854855; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767768.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc.,  437c, subd. (p)(2).) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)

In cases alleging adverse employment actions in violation of FEHA, the trial courts apply the same three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802804.) The plaintiff bears the initial burden to establish a prima facie case of discrimination. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) That burden is not onerous. It is designed to eliminate only the most patently meritless claims. Generally the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination . . . , and (4) some other circumstance suggests discriminatory motive. [Citations.] (Guz, supra, 24 Cal.4th at pp. 354355.) The specific elements of a prima facie case may vary depending on the particular facts. (Id. at p. 355.)

If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to produce admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. (Guz,supra, 24 Cal.4th at pp. 355356.) If the employer meets this burden, the presumption of discrimination is dispelled and it becomes the plaintiffs burden to prove that the employers proffered reasons were pretexts for discrimination or to offer any other evidence of discriminatory motive. (Id. at p. 356.)

The fact finder may consider the evidence establishing the prima facie case and inferences properly drawn from that evidence on the issue of whether the employers justification is a pretext. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 143.) But the plaintiff must do more than establish a prima facie case and deny the credibility of the employers witnesses. The plaintiff must produce specific, substantial evidence of pretext, and a triable issue of fact can be created only by a conflict of evidence, not by speculation or conjecture. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)

To show pretext, the plaintiff cannot simply show that the employers decision was wrong, mistaken, or unwise. The evidence must expose such weaknesses, implausibilities, inconsistencies, or contradictions in the employers explanation for its actions that a reasonable fact finder could rationally find those explanations unworthy of credence, and thus infer that the employer acted for other reasons it chose not to reveal. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

In Guz,the Supreme Court applied and elaborated on these principles in the specific context of an employers motion for summary judgment. The court explained that when the employer has set forth competent, creditable, admissible evidence of nondiscriminatory reasons for its termination of the plaintiff, the burden shifts to the plaintiff to show the existence of a triable issue that the termination was actually made on the prohibited basis. (Guz,supra, 24 Cal.4th at p. 360.) But an inference of intentional discrimination cannot be drawn solely from evidence that the employer lied about its reasons. Proof that the employers proffered reasons are unworthy of belief may help to build a circumstantial case of discrimination because such proof suggests that the employer had cause to conceal its true reasons. Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employers actions. [Citation.] (Id. at p. 361.)

B. Analysis

Teels age discrimination claim was properly dismissed because Teel failed to make out a prima facie case of age discrimination. In particular, he failed to come forward with evidence showing that he was performing competently in his position in the period leading up to his termination. Teel relies on two items of evidence: a positive performance evaluation that he received from Garzot before Berglund replaced him as Teels supervisor, and an alleged agreement by Berglund shortly before Teel was fired that Teel would be receiving a series of pay raises. In our view, neither piece of evidence succeeds in creating a triable issue of fact as to whether Teel performed competently during the relevant time period.

The evidence presented by Ghilotti and Berglund showed that Teel was not performing his job to Berglunds satisfaction, that Berglund believed Teel worked too slowly, sometimes sitting around doing nothing for long periods of the work day, exhibited a bad attitude, did not act like a team player, frequently expressed dissatisfaction with his salary, and drew complaints from other employees about his slow work and poor attitude. There is undisputed evidence showing that Berglund counseled and confronted Teel frequently about these issues beginning in 2001, and that he viewed Teels performance as a factor adversely affecting the entire department.

Teel came forward with a positive evaluation he had received in June 2000 from his previous supervisor, Garzot. Garzot rated Teel as above satisfactory in all categories, including his productivity, work habits, and courteousness toward others. However, Teel conceded that things changed when Berglund took over from Garzot. Teel resented and had little respect for Berglund. He does not dispute that there was a basis for at least some of Berglunds specific complaints. According to Teels opposition separate statement, it was undisputed that there were times when Berlund felt . . . it would be better for the department if [Teel] was terminated due to his slow production and bad attitude. Teel had written in his own self-evaluation that it was hard to be [motivated] when you have not had a raise in two years. These admissions, and other undisputed facts on the record, suggest that Teels evaluation in June 2000 is not probative of his attitude, motivation, and job performance in the relevant time period leading up to his termination in July 2003.

In further support of the claim that he was performing competently, Teel cited the alleged fact that Berglund terminated him shortly after selecting him for a series of pay increases based on merit. However, the document Teel proffered in support of this assertion tells a different story. It is an unsigned proposed letter agreement, dated June 10, 2003, with signature spaces for Teel and Berglund. The letter states: Per our meeting there are performance issues and expectations that have to be met in order for [Teel] and [Ghilotti] to continue their employment relationship. These issues and expectations include the following; [] 1) The average outside take off billings . . . [must be] reduced [by 50 percent or more;] 2) Employee must make improvements in both quantity of work performed and timeliness of completion of that work[; and] [] 3) Employee must improve attendance record. Subject to the satisfaction of those conditions, the proposed agreement would have granted Teel quarterly salary increases starting in 2003. There is nothing in the record to indicate that Teel ever signed the document or received any salary increase pursuant to it. In fact, a handwritten notation on one copy of the document states that Teel refused to sign it and never returned it to his supervisor.

The document does not create a triable issue of fact as to whether Teel was performing competently when he was terminated. If anything, it merely confirms that Ghilotti had serious and substantial job performance concerns about Teel. It shows that Ghilotti and Berglund were trying to give Teel the maximum possible motivation for improving his job performance by conditioning his future employment on improvements in his productivity and work habits, and offering him an added financial reward if he showed progress in making those improvements. Far from constituting evidence that Teel was performing his job competently, the unexecuted and unperformed agreement tends to negate that element of Teels prima facie case. In our view, the trial court did not err in finding that Teel failed to make a prima facie showing in support of his claim of age discrimination.

Even assuming for the sake of analysis that Teel did come forward with a prima facie showing of age discrimination, Ghilotti produced admissible evidence of nondiscriminatory reasons for the termination, and Teel failed to carry his burden of demonstrating triable issues of material fact with respect to whether Ghilottis stated reasons were a mere pretext for intentional age discrimination. (Guz,supra, 24 Cal.4th at pp. 355356.)

Teels evidence on this point consisted of the following: (1) the fact that Berglund asked him at one point when he was planning to retire; (2) the contents of the estimating department overview notes prepared by Berglund; (3) Berglunds alleged pattern of conduct toward older employees in the department, including Teel; (4) Teels denial that he expressed his unwillingness to train Moore; and (5) Teels asserted replacement by Moore, who was considerably younger.

Teel testified at his deposition that during an office conversation he had with Berglund and an unidentified coworker about another employees retirement party, Berglund asked him off-the-cuff about his own retirement plans: I think it was just off-the-cuff speaking, and he said . . . that he had mentioned that he thought [Garzot] was going to retire, and I think it was just off-the-cuff of, maybe, How long are you going to be here, or some type of remark like that. And I said until I was 70. Except as a single instance in some larger pattern of discriminatory conduct, Berglunds casual question at an office gathering cannot be viewed as evidence of a discriminatory animus. Berglund might well have been interested for entirely nondiscriminatory reasons in whether other employees planned on retiring in the near future. As shown in his department overview notes, Berglund evidently believed that retirements were a threat to the smooth functioning of the estimating department.

Although Teel construes the estimating department overview notes as proof of Berglunds discriminatory animus, we are not persuaded. In our view, the notes show that Berglund was anxious to retain the two veteran estimators in his departmentGarzot and Zurilgenwho were both approaching retirement age. He viewed their future departure as a threat to the department. According to the notes, he was contemplating offering Garzot and Zurilgen full job security until retirement and was hoping to have six months or a years notice before they retired. At the same time, it is evident from Berglunds notes that he viewed Teel as a detriment to the department. He hoped Teel would retire ASAP and was contemplating offering him a retirement package in order to bring that about. Far from demonstrating a discriminatory animus on Berglunds part, the notes show that he was focused on his employees perceived job performance, rather than their age, and that he was evaluating Garzot, Zurilgen, and Teel solely by that yardstick.

Teel claims that Berglund mistreated him and Elliott, and that he terminated three older employeesTeel, Elliott, and Garzot. First, Teel came forward with no evidence showing that Ghilotti terminated Garzots employment. The only evidence on this point in the record was the deposition testimony of the president of Ghilotti, Richard Ghilotti, that Garzot resigned from his position at Ghilotti. Second, Teel produced no evidence regarding the reasons for Elliotts terminationeither as given by Berglund or otherwise. It should be noted that Elliott was 52 years old at the time of his discharge, whereas Garzot and Zurilgen, who were not terminated, were 61 and 57 years old, respectively. Finally, Teels assertions in his declaration that Berglund adopted a less friendly and more demanding tone with him and Eliott are too vague to constitute substantial evidence of age discrimination. Berglund might well have treated Elliott and Teel differently because he felt they were not performing their jobs well, or because he believed others responded better to a friendlier managerial style. In that regard, Teel is silent about Berglunds comparative treatment of the other senior estimators in the department. In short, Teels amorphous and highly selective observations about Berglunds conduct toward him and Elliott are too weak to support any inference of age discrimination.

Teel attempts to create a triable issue of fact by disputing that he refused to train Moore. However, he admitted telling Berglund during their July 16, 2003 luncheon conversation that: (1) it would be impossible to train Moore; (2) that he would not be able to get his own work done if he had to train Moore; and (3) he should get a higher salary if he had to train Moore. He also admitted that Berglund asked him on the way back from lunch to hold off on his decision that he would not train Moore, indicating that he knew Berglund had in fact construed his comments during the lunch as a refusal to train Moore. At a minimum, based on Teels own statements to Berglund on July 16 and the history of their past conflicts, Berglund had good reason to conclude that Teel would not assist in training Moore unless he either threatened him with termination or bribed him with an undeserved salary increase. Under those circumstances, and in view of Berglunds long-standing dissatisfaction with Teels performance and attitude generally, his decision to discharge Teel for insubordination cannot be construed as a pretext for some unexpressed animus toward Teel, such as age discrimination. The dismissal may well have been precipitated by factors going back farther than Teels immediate response to the training request, but there is no evidence that age discrimination played any role in it whatsoever.

Although Teel asserted that he was replaced by Moore, the record does not bear this out. Moore had started in February 2003 as a part-time intern and he continued to work part-time as an intern until April 2004. Much of the takeoff work was done by Earthcalc during this period. Moore testified that he did not begin to feel comfortable doing takeoff work until five months after Teel was terminated. Thus, although Berglund may have hoped that Moore could eventually replace Teel, Moore was not hired as his replacement and he was not in a position to perform Teels job functions until some time after Teel left. The fact that Moore was younger than Teel is consistent with Teels age discrimination theory, but it is not substantial evidence, standing alone, that Teel was discharged due to his age.

Teel asserted in his declaration that Berglund frequently yelled at him, called him stupid and crazy, and deliberately excluded him from company outings. The declaration does not discuss the particulars of any incidents in which Berglund yelled at Teel or called him names. It does not show that Teel has personal knowledge of which company employees were or were not invited to the company-sponsored social events in question. Most importantly, nowhere in the declaration or elsewhere in the record does Teel reference any comments by Berglund that suggest a discriminatory animus against him because of his age.

The controlling issue in this case is not whether Berglund liked Teel or treated him as well as he treated other employees. The issue is whether he discriminated against Teel or subjected him to harassment because of his age. On that dispositive question, we are unable to find any evidence in the record sufficient to raise a triable issue of material fact. Accordingly, we hold that Teels FEHA-based claims were properly dismissed.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Swager, J.

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[1] Government Code section 12941.

[2] Business and Professions Code section 17200 et seq.

[3] The first amended complaint deleted an allegation that Berglund offered Teel a retirement package, which Teel declined, added allegations that Ghilotti micro-managed his work and refused for discriminatory reasons to give him pay raises, and removed Berglund as a defendant in Teels unfair competition cause of action. The second amended complaint deleted Teels claim for damages under his unfair competition cause of action.

[4] In the statement of facts in his opening brief, Teel asserts that Ghilotti did not explain its at will employment policy to him, he did not understand it, and it does not trump the companys progressive discipline policy, which assertedly created a duty to terminate only for cause. However, he cites no legal authority on these issues and the brief contains no argument headings or further argument text referring to them. In any event, Teels comments on this subject, even if taken at face value, would not raise a triable issue of material fact concerning his breach of contract claim. The express terms of the written contract control over Teels unexpressed doubts about its meaning and over any implied-in-fact agreement to terminate only for cause. (See, e.g., Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327 [uncommunicated subjective reservation not relevant to the meaning of a written contract]; Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630 [alleged implied-in-fact agreement to terminate only for cause does not overcome a written express at-will agreement].)