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Kovanen v. Fedex Ground Package System, Inc.

United States District Court, E.D. Washington

June 21, 2018

DAN KOVANEN AND MEGAN KOVANEN, a marital community, Plaintiffs,




         Plaintiff Dan Kovanen[1] was fired by his employer, FedEx Ground Package System, Inc. (FedEx), for operating equipment without proper certification. In his amended complaint, Kovanen alleges his termination violated FedEx's Performance Improvement Policy, and he asserts claims of breach of contract, and promissory estoppel. FedEx moves to dismiss, arguing that Kovanen fails to plead facts showing that FedEx was contractually obligated or otherwise made an enforceable promise to follow any specific process before terminating Kovanen for a safety violation. Because the Performance Improvement Policy does not set any process for terminating or disciplining an employee who violates FedEx safety or equipment certification policy, it cannot be the basis of an enforceable promise not to immediately terminate an employee who violates such a policy. Accordingly, FedEx's motion to dismiss is granted.


         A. Factual Background

         FedEx hired Kovanen as a package handler in Kent, Washington in 1991. While working at the Kent facility, Kovanen, came in to work early to learn from other FedEx employees how to perform “switcher” duties. A switcher is an employee who moves trailers on FedEx property. Kovanen estimates he spent approximately 50 hours of unpaid time receiving switcher training in 1991. In fall 1991, Kovanen obtained an internal certification to serve as a switcher, and started performing duties as a switcher on a stand-in or as-needed basis.

         In early 1992, FedEx promoted Kovanen to a part-time manager position. In August 1992, FedEx transferred him to a Spokane, Washington facility so that he could attend Eastern Washington University. He continued to work as a switcher as needed during his time at the Spokane facility.

         After graduating from Eastern Washington University in June 1994, Kovanen accepted a full-time position with FedEx as an Operations Coordinator in Eugene, Oregon. In early 1996, Kovanen transferred to a facility in Kent, Washington, where he worked as a Pick Up and Delivery Coordinator. In November 2006, Kovanen was promoted to a position as Pick Up and Delivery Manager at FedEx's Burlington, Washington facility. In each of these positions, Kovanen filled in as needed as a switcher and trained other employees how to perform switcher duties.

         In October 2011, Kovanen was promoted to a position as Senior Manager of a FedEx facility in East Wenatchee. Around this time, his switcher certification lapsed. As a senior manager, Kovanen ran the Wenatchee facility and a sub-station located in Omak, Washington. When Kovanen started in Wenatchee, there was no dedicated “switch” tractor or employee dedicated to performing switcher duties. In 2015, after a larger facility was constructed in Wenatchee, FedEx provided a switch tractor for the facility. There was initially no need to use the switch tractor at the facility.

         Before the holiday season in 2016, Kovanen spoke with FedEx's District Safety Manager, Ken Derrick, about the need to begin using the switch tractor and the fact that none of the employees in Wenatchee had current certifications to operate the switch tractor. Based on this conversation, Kovanen understood that he and one other employee were authorized to operate the switch tractor and perform the observation portion of the switcher certification process for each other because Derrick would not be able to come to Wenatchee to complete the certification process until after the holiday season. Consistent with this understanding, Kovanen operated the switch tractor in Wenatchee in late 2006.

         On January 10, 2017, Kovanen was informed that his employment was terminated for the sole reason that he operated the switch tractor at the Wenatchee facility without a current certification. Kovanen was never the subject of any discipline or corrective action prior to his termination.

         B. Procedural Background

         Kovanen first filed this case in Chelan County Superior Court. In the initial complaint, Kovanen alleged he was terminated by FedEx in violation of certain FedEx policies and promises, and he asserted claims of breach of contract, specific performance, and promissory estoppel. ECF No. 1-2. FedEx removed the case to this Court, ECF No. 1, and moved to dismiss pursuant to Rule 12(b)(6), ECF No. 4. The Court concluded that Kovanen failed to allege facts plausibly establishing breach of contract or promissory estoppel and that specific performance is not an independent legal basis for a cause of action. ECF No. 8. The Court granted FedEx's motion to dismiss but also granted Kovanen leave to amend his complaint. ECF No. 8.

         Kovanen filed an amended complaint on February 14, 2018, adding considerable detail to his allegations. He alleges that his at-will employment status was altered by statements made in a FedEx employee manual, on which he justifiably relied. Specifically, Kovanen cites FedEx's Performance Improvement Policy, which was issued in March 2014. As relevant here, the policy provides:

FedEx Ground establishes performance objectives and competency expectations for each salaried position, and expects all employees to attain the highest possible level of performance by meeting or exceeding their performance expectations. If an employee fails to meet the established performance and/or competency expectations, management will re-communicate performance and/or competency expectations, identify performance ...

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