NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELIZABETH ANDREWS, No. 20-35207
Plaintiff-Appellant, D.C. No. 1:19-cv-03026-TOR
v. MEMORANDUM* YAKIMA SCHOOL DISTRICT #7,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding
Argued and Submitted July 9, 2021 Seattle, Washington
Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District Judge. Dissent by Judge IKUTA.
Elizabeth Andrews (“Andrews”) appeals the district court’s denial of her
motion for summary judgment and the grant of summary judgment in favor of the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. defendant, Yakima School District #7 (the “District”). We review de novo the
district court's ruling on a motion for summary judgment. Universal Cable Prods.,
LLC v. Atl. Specialty Ins. Co., 929 F.3d 1143, 1151 (9th Cir. 2019).
The parties are familiar with the facts, so we do not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Andrews presents three issues on appeal: whether the district court erred in
denying her breach of contract claim, procedural due process claim, and wrongful
discharge claim. The Court addresses only the issue of breach of contract because
the disposition of this issue dictates the resolution of the due process and wrongful
discharge claims.
As a new hire, Andrews’ employment contract with the District was
contingent on a successful outcome of a criminal history records review. As part of
this process, Andrews was required to have fingerprints taken. When the District
rescinded the employment contract, approximately three business days prior to the
first day of school, Andrews still had not gotten her fingerprints taken. At the time
the District revoked the offer, Andrews’ background check had not been completed.
The “Intent to Hire” agreement signed by the parties was explicit in conditioning the
offer by the District on successful completion of the background check requirement.
Moreover, Andrews acknowledged that she was required to submit to a
urinalysis drug screening within 24 hours of a date and time specified in a document
2 titled, “Acknowledgement and Understanding of Drug Screen and/or Physical
Process.” That document stated that if Andrews failed to report for the screening,
“any offer of employment with [the District] will be voided.” Andrews concedes that
the drug test was never completed. Nor did she make any effort prior to the
revocation of her employment offer to explain to the District any reason for her
failure to report for the test.
“[W]hen the parties to a proposed contract have agreed that the contract is not
to be effective or binding until certain conditions are performed or occur, no binding
contract will arise until the conditions specified have occurred or been performed.”
Int’l. Brotherhood of Teamsters v. NASA Services, Inc., 957 F.3d 1038, 1047 (9th
Cir. 2020) (quoting 13 Williston on Contracts § 38:7 (4th ed.)); see Northern State
Const. Co v. Robbins, 457 P. 2d 187, 192 (Wash. 1969). The conditions precedent
in this case were never satisfied.
AFFIRMED.
3 FILED Andrews v. Yakima School District #7, 20-35207 JUL 30 2021 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
The majority today holds that an employer can unilaterally rescind an
employment contract if it decides that the employee is taking too long to complete
a condition to continued employment. But under Washington law, if a contract
does not set deadlines for completing conditions for continued performance, the
contract is deemed to give the party “a reasonable time for performance” of those
conditions. Byrne v. Ackerlund, 108 Wash. 2d 445, 455 (1987). Because there is a
genuine issue of material fact as to whether the employee here failed to complete a
condition in a reasonable period of time, I dissent from the majority’s decision to
affirm the district court’s grant of summary judgment to the employer.
A
On August 3, 2016, Andrews, a 61-year-old certified English teacher with
over two decades of teaching experience in Washington public schools, signed a
“Certificated Employee Contract” with Yakima School District No. 7 (YSD),
which confirmed that Andrews was “hereby employed” by YSD. The contract
stated that it was subject to certain conditions, including “the acceptable outcome
of the criminal history records review.” The contract did not include a deadline for
meeting these conditions.
Some time later, on August 9, 2016, Andrews signed a form entitled “Acknowledgment and Understanding Of Drug Screen and/or Physical Process”
(referred to as the “Acknowledgment”). This document stated that if Andrews did
not obtain a drug test within 24 hours of August 9, 2016 at 1:50 pm “any offer of
employment” with YSD is void.
The parties agree that in order to satisfy the condition of having an
acceptable criminal history records review, Andrews had to get her fingerprints
taken. On August 26, while on the way to the Washington State Patrol’s office to
complete her fingerprinting, Andrews received a call from YSD informing her that
her contract was rescinded because she had not obtained her fingerprints and had
not completed the drug screening. Andrews nevertheless completed the fingerprint
requirement that day. Andrews also offered to take a drug test, but was told there
was no reason to do so. The district court held that because YSD rescinded the
contract before Andrews obtained her fingerprints, Andrews’s contract never
became effective.
B
The majority errs in affirming the district court’s conclusion. The
Certificated Employee Contract signed by YSD and Andrews is a valid, binding
contract which included a condition precedent to further performance under the
contract—that YSD be satisfied with a criminal history records review. See Ross
2 v. Harding, 64 Wash. 2d 231, 236 (1964) (“‘Conditions precedent’ are those facts
and events, occurring subsequently to the making of a valid contract, that must
exist or occur before there is a right to immediate performance, before there is a
breach of contract duty, before the usual judicial remedies are available.”).
Contrary to the majority, Majority at 3, nothing in the Certificated Employee
Contract suggests that an acceptable records review was a condition precedent to
contract formation rather than contract performance.1 For instance, the contract
does not state that if the records review is not acceptable the contract is “null and
void,” cf. Int’l Brotherhood of Teamsters v. NASA Servs., Inc., 957 F.3d 1038,
1047 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ELIZABETH ANDREWS, No. 20-35207
Plaintiff-Appellant, D.C. No. 1:19-cv-03026-TOR
v. MEMORANDUM* YAKIMA SCHOOL DISTRICT #7,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding
Argued and Submitted July 9, 2021 Seattle, Washington
Before: CLIFTON and IKUTA, Circuit Judges, and CALDWELL,** District Judge. Dissent by Judge IKUTA.
Elizabeth Andrews (“Andrews”) appeals the district court’s denial of her
motion for summary judgment and the grant of summary judgment in favor of the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. defendant, Yakima School District #7 (the “District”). We review de novo the
district court's ruling on a motion for summary judgment. Universal Cable Prods.,
LLC v. Atl. Specialty Ins. Co., 929 F.3d 1143, 1151 (9th Cir. 2019).
The parties are familiar with the facts, so we do not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Andrews presents three issues on appeal: whether the district court erred in
denying her breach of contract claim, procedural due process claim, and wrongful
discharge claim. The Court addresses only the issue of breach of contract because
the disposition of this issue dictates the resolution of the due process and wrongful
discharge claims.
As a new hire, Andrews’ employment contract with the District was
contingent on a successful outcome of a criminal history records review. As part of
this process, Andrews was required to have fingerprints taken. When the District
rescinded the employment contract, approximately three business days prior to the
first day of school, Andrews still had not gotten her fingerprints taken. At the time
the District revoked the offer, Andrews’ background check had not been completed.
The “Intent to Hire” agreement signed by the parties was explicit in conditioning the
offer by the District on successful completion of the background check requirement.
Moreover, Andrews acknowledged that she was required to submit to a
urinalysis drug screening within 24 hours of a date and time specified in a document
2 titled, “Acknowledgement and Understanding of Drug Screen and/or Physical
Process.” That document stated that if Andrews failed to report for the screening,
“any offer of employment with [the District] will be voided.” Andrews concedes that
the drug test was never completed. Nor did she make any effort prior to the
revocation of her employment offer to explain to the District any reason for her
failure to report for the test.
“[W]hen the parties to a proposed contract have agreed that the contract is not
to be effective or binding until certain conditions are performed or occur, no binding
contract will arise until the conditions specified have occurred or been performed.”
Int’l. Brotherhood of Teamsters v. NASA Services, Inc., 957 F.3d 1038, 1047 (9th
Cir. 2020) (quoting 13 Williston on Contracts § 38:7 (4th ed.)); see Northern State
Const. Co v. Robbins, 457 P. 2d 187, 192 (Wash. 1969). The conditions precedent
in this case were never satisfied.
AFFIRMED.
3 FILED Andrews v. Yakima School District #7, 20-35207 JUL 30 2021 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
The majority today holds that an employer can unilaterally rescind an
employment contract if it decides that the employee is taking too long to complete
a condition to continued employment. But under Washington law, if a contract
does not set deadlines for completing conditions for continued performance, the
contract is deemed to give the party “a reasonable time for performance” of those
conditions. Byrne v. Ackerlund, 108 Wash. 2d 445, 455 (1987). Because there is a
genuine issue of material fact as to whether the employee here failed to complete a
condition in a reasonable period of time, I dissent from the majority’s decision to
affirm the district court’s grant of summary judgment to the employer.
A
On August 3, 2016, Andrews, a 61-year-old certified English teacher with
over two decades of teaching experience in Washington public schools, signed a
“Certificated Employee Contract” with Yakima School District No. 7 (YSD),
which confirmed that Andrews was “hereby employed” by YSD. The contract
stated that it was subject to certain conditions, including “the acceptable outcome
of the criminal history records review.” The contract did not include a deadline for
meeting these conditions.
Some time later, on August 9, 2016, Andrews signed a form entitled “Acknowledgment and Understanding Of Drug Screen and/or Physical Process”
(referred to as the “Acknowledgment”). This document stated that if Andrews did
not obtain a drug test within 24 hours of August 9, 2016 at 1:50 pm “any offer of
employment” with YSD is void.
The parties agree that in order to satisfy the condition of having an
acceptable criminal history records review, Andrews had to get her fingerprints
taken. On August 26, while on the way to the Washington State Patrol’s office to
complete her fingerprinting, Andrews received a call from YSD informing her that
her contract was rescinded because she had not obtained her fingerprints and had
not completed the drug screening. Andrews nevertheless completed the fingerprint
requirement that day. Andrews also offered to take a drug test, but was told there
was no reason to do so. The district court held that because YSD rescinded the
contract before Andrews obtained her fingerprints, Andrews’s contract never
became effective.
B
The majority errs in affirming the district court’s conclusion. The
Certificated Employee Contract signed by YSD and Andrews is a valid, binding
contract which included a condition precedent to further performance under the
contract—that YSD be satisfied with a criminal history records review. See Ross
2 v. Harding, 64 Wash. 2d 231, 236 (1964) (“‘Conditions precedent’ are those facts
and events, occurring subsequently to the making of a valid contract, that must
exist or occur before there is a right to immediate performance, before there is a
breach of contract duty, before the usual judicial remedies are available.”).
Contrary to the majority, Majority at 3, nothing in the Certificated Employee
Contract suggests that an acceptable records review was a condition precedent to
contract formation rather than contract performance.1 For instance, the contract
does not state that if the records review is not acceptable the contract is “null and
void,” cf. Int’l Brotherhood of Teamsters v. NASA Servs., Inc., 957 F.3d 1038,
1047 (9th Cir. 2020) (holding, as a matter of California law, a proposed contract is
not binding when the parties to the proposed contract explicitly agree that the
contract “shall become null and void” if certain conditions are not performed or
1 To support its argument that there is no binding contract if conditions precedent are unfulfilled, the majority cites two inapposite cases. Majority at 3 (citing Int’l Brotherhood of Teamsters v. NASA Servs., Inc., 957 F.3d 1038, 1047 (9th Cir. 2020); N. State Const. Co. v. Robbins, 76 Wash. 2d 357, 365 (1969)). NASA Services does not support the majority because it interprets California (rather than Washington) contract law, and relies on language not present in Andrews’s contract. See 957 F.3d at 1047. And the cited section in Robbins holds only that parol evidence is admissible to prove that a condition precedent is satisfied. 76 Wash. 2d at 365–66. Neither case supports the majority’s conclusion that there was no binding contract here. See Ross, 64 Wash. 2d at 236.
3 occur).2 Therefore, YSD was bound by the contract, although it could be relieved
from further performance under the contract if Andrews did not fulfill her
conditions precedent.
To do her part in fulfilling the records review condition precedent, Andrews
was fingerprinted on August 26th. Under Washington law, “a reasonable time for
performance” of a condition is implied into the contract. Byrne, 108 Wash. 2d at
455. The amount of time deemed reasonable “is a question of fact . . . dependent
upon the subject matter of the contract, the situation of the parties, their intention
and the circumstances attending the performance of the contract.” Smith v. Smith,
4 Wash. App. 608, 612 (1971). There is a genuine issue of material fact as to
whether Andrews failed to complete fingerprinting for the background check
within a reasonable period of time and therefore breached the contract. See id.
YSD is not entitled to summary judgment on this issue.
The majority also asserts that YSD could unilaterally rescind the contract
because Andrews did not report for drug screening within the 24-hour period stated
on the Acknowledgement. Majority at 3. This is a red herring, however, because
2 The Certificated Employee Contract did state that the contract would not become effective, and would be void, if three other conditions were not met, including approval by the YSD Board of Directors. It is undisputed that all three conditions were fulfilled.
4 the Certificated Employee Contract makes no mention of a requirement for drug
screening, does not make it a condition precedent for continued employment, and
does not incorporate the Acknowledgment into the contract by reference.
Accordingly, there are genuine issues of material fact as to whether the parties
agreed that the Certificated Employee Contract would be null and void if the drug
screening requirement was not met within the 24 hour period, or whether the
parties entered into a new contract for the drug screening requirement, see
Williams Fruit Co. v. Hanover Ins. Co., 3 Wash. App. 276, 281 (1970).
Taking the facts in the light most favorable to Andrews, YSD is not entitled
to judgment as a matter of law. Therefore, I would reverse the district court and I
dissent.