Day v. LSI Corp. (174 F. Supp. 3d 1130, 2016)

ORDER

Cindy K. Jorgenson, United States District Judge

Pending before the Court are the parties’ Motions for Summary Judgment (Docs. 179 and 184) filed by Plaintiff Kenneth Day (“Day”) and Defendant LSI Corporation (“LSI”).Responses and replies have been filed. Although the parties have requested oral argument, the parties have thoroughly presented the facts and briefed the issues. Therefore, the Court declines to set this matter for oral argument. See LRCiv 7.2(f); 27A Fed.Proc., L. Ed. § 62:367 (March 2016) (‘A district court generally is not required to hold a hearing or oral argument before ruling on a motion.’); 27A Fed. Proc., L. Ed. § 62:673 (March 2016) (a hearing on a summary judgment is not required by due process considerations).

I. Factual and Procedural Background

In a December 3, 2011, Amended Complaint (Doc. 74), Day, a 57-year old Hispanic male, alleges claims of breach of contract, breach of corporate handbook policies, breach of implied covenant of good faith and fair dealings fraud, deceit, and misrepresentation (fraudulent inducement), interference with a contractual advantage, constructive discharge, intentional and/or negligent infliction of emotional distress, discrimination, and retaliation against LSI.

During his deposition, Day summarized a May 2008 conversation he had with Philip Bullinger (“Bullinger”), LSI Executive Vice President:

Q. What specifically did Mr. Bullinger say to you in May of 2008 about an offer of employment?

A. He said something along the lines that, Ken, we are very interested in you but because of LSI politics, I’m going to be unable to make you an offer as an LSI fellow. I think I can do that, but it will take me at least six months to get that done. Would you consider an offer — or an LSI distinguished engineer— given that I will work my hardest and I am very confident that-1 will be able to get you there in a year.

Q. All right. So you knew as of May 2008 that LSI was not going to offer you a fellow position; is that correct?

A. That’s correct.

Q. And you also knew that as of May 2008 that LSI was not going to offer you a vice president position; is that correct?

A. That’s correct.

(Day Depo. (Doc. 203-2) 59:16-60:22). Day testified during his deposition that Bulling-er .promised him that he would be promoted to a Vice President a few months after hire. (Day Depo. 128:22-129:5), However, Day admits that he does not have anything in writing from LSI promising him that he will be made a Vice President a few months after employment. (Day Depo. 128:22-129:5). In May of 2008, Bullinger offered Day employment at LSI as a Distinguished Engineer. (Day Depo. 59:16-61:1; Bullinger Depo. (Doc. 177, Ex. H) 16:21-17:12). Day accepted this position on approximately May 18, 2008. (Day Depo. 67:23-68:24). Day’s application, which was completed online and included the typed initials “KD”, included a statement that Day understood that his employment would be at will and that such status could not be changed except in writing. (Day Depo. 83:3-86:14).

LSI has adopted a plan, known as the “LSI Corporation 2003 Equity Incentive Plan” (the “Plan”), under which LSI has made all discretionary grants of stock options and restricted stock units since May 2008. (Gilbert Dec. (Doc. 177, Ex. G) ¶ 2). The Plan permits the grant of (1) stock options, and (2) restricted stock units (“RSUs”), subject to the terms of the Plan. (Gilbert Dec. ¶ 3;' Plan Section 1.1). A “stock option” can be either an Incentive Stock Option or a Nonqualified Stock Option. (Gilbert Dec. ¶ 4; Plan Section 2,26). A “Nonqualified Stock Option” is an option to purchase “Shares” (defined as common stock) of LSI. (Gilbert Dec. ¶ 5; Plan Section 2.24, 2.43). A “Restricted Stock Unit” represents'the right to receive one Share on a future specified date. (Gilbert Dec. ¶ 6; Plan Section 7.2). LSI uses the term “stock grant” when it grants employees the option to purchase nonqualified stock shares. (Skelton Dec. (Doc. 177, Ex. J) If 6; Bullinger Dec. (Doc. 177, Ex. H) ¶ 9; White Dec. (Doc. 177, Ex. K) ¶ 7).

The Plan is administered by the Compensation Committee of LSI’s Board of Directors, and all awards/grants under the Plan must be approved by the Compensation Committee, the Board of Directors, and/or an authorized delegate of the Compensation Committee. (Gilbert Dec. ¶ 7; Plan Sections 3.1-3.4). Grants of stock options and. RSUs must also be evidenced by an award agreement that specifies all terms and conditions of the award. (Gilbert Dec. ¶ 8; Plan Sections 5.2, 7.3). LSI uses different award agreements for stock options and RSUs. (Gilbert Dec. ¶ 9; Plan Sections 6.2, 7.3). The Plan provides that all determinations and decisions made by the Compensation Committee, the Board, and any delegate of the Compensation Committee “shall be final, conclusive, and binding on all persons, and shall be given the maximum deference permitted by law.” (Gilbert Dec. ¶ 10; Plan Section 3.4).

In the May 16, 2008, offer letter to Day, LSI stated that it would recommend that its Board of Directors approve the grant to Day of a 40,000 Share stock option, as well as a grant of 10,000 RSUs, in each case pursuant to the terms of the Plan. (Gilbert Dec. (Doc. 177, Ex. G) 11 11, Ex. 2). Day began working for LSI on or around June 23, 2008 as a Distinguished Engineer in the Strategic Planning & Architecture Department of LSI’s Engenio Storage Group (“ESG”) located in Wichita, Kansas. (Day Depo. 70:9-22, Ex. 1). The parties did not enter into a written employment contract. (Day Depo. 91:3-6).

The Compensation Committee of the Board of Directors granted Day a 40,000 Share stock option on August 19, 2008 and 10,000 RSUs on August 20, 2008, in each case pursuant to the terms of the Plan. (Gilbert Dec. ¶ 12). Day executed a “Notice of Grant of Stock Option Award under the LSI Corporation 2003 Equity Incentive Plan” with regard to the 40,000 Share stock option. (Gilbert Dec. ¶ 13, Ex. 3). Day executed a “Notice of Grant of Restricted Stock Unit Award under the LSI Corporation 2003 Equity Incentive Plan” with regard to the 10,000 RSUs. (Gilbert Dec. ¶ 14, Ex. 4). The Vice President— Law. for LSI, Jonathan Gilbert, stated that, because the stock option grant was different than the RSU grant, Day was required to execute the two separate notices. (Gilbert Dec. ¶ 15).

On or about January 26, 2009, Day was promoted to the position of Senior Director, reporting to Bullinger. (Day Depo. 113:12-114:17; Bullinger Depo. 24:7-16). Stan Skelton (“Skelton”), Day’s supervisor when he was a Distinguished Engineer, was not involved in Day’s promotion. (Bul-linger Depo. 95:2-10).

Bullinger asserts that, on or about January 26, 2009, he informed Day that he would be granted a 30,000 Share stock option in connection with his promotion to Senior Director. (Bullinger Dec. ¶ 4; Bul-linger Depo. 106:14-112:25; Huck Dec. ¶ 2). Because Skelton was Day’s supervisor during the previous seven months and was responsible for Day’s performance appraisal, Skelton also communicated the salary and stock option award Bullinger had decided on in connection with Day’s promotion to Senior Director. (Bullinger Depo. 95:11-96:16; 105:6-106:13; 106:14-112:25). A Human Resource document indicates “30,000 shares [were] granted for [Day’s] promotion.” (Day MSJ Statement of Facts (Doc. 185) (“SOF”), Ex. A). A January 26, 2009, Salary Change Notice references a promotion for Day, with a Stock Award of 30,000 Shares. (Day Mtn. for Sanctions Statement of Facts (“SOF”) (Doc. 187-8) p. 4).

Day asserts that his Exhibit A also shows that Bullinger sent a request to LSI Director Peggy Huck (“Huck”) and others identifying a need for a 30,000 stock grant for Day. (Day MSJ SOF 1409-1411, Ex. A). Exhibit A documents refer to Day’s promotion and 30,000 Shares. (Id.) An email from Greg Heubel, Jr. (“Heubel”) under the subject of “Day_Justification_Recom-mendation_Worksheet.xls” states:

Per Phil’s request, attached is the promo justification worksheet for Ken Day. Please review the comp recommendation/analysis.

Phil, please complete and return the justification tab. Shooting for an effective date of 1/26 for all approvals. Also notice I’m recommending a 30k stock grant.

Need Cindy’s guidance, assuming everyone is ok with that, whether we should enter that in the system or take out the current grant and do the whole promo action outside the system.

Phil, given the reorg and Viking, are there any other “exception-based” promos with obvious scope increases that you are thinking of? We can’t open the flood gates, but we need to properly compensate people for their new roles.

(Day MSJ SOF, Ex. C). Compensation Analyst Principal Cindy Rice (“Rice”) responded to the email, asking if an HRD was done for Day’s promotion and asking if the HRD went to specified persons. (Id.). Huebel responded that the completed justification worksheet had been completed by Bullinger and that he believed Huck was going to send the HRD for processing. (Id.). On February 3, 2009, Rice further responded, stating that “the 30k stock grant was already included in the recent SF system and on the stock report Judy prepared for the upcoming CC/BoD meeting.” (Id.). In response to Rice’s email, Vice President of Human Resources Jon Gibson stated that he “was aware of this and approved it.” (Id.). Day asserts that this email trail establishes a January 2009 HRD document existed that established a separate January 2009 30,000 promotion stock grant that is separate from the March 2009 performance related stock option.

LSI Human Resources Director Ian White (“'White”) testified that, depending on the content of an HRD, shares for a promotion could be separate from shares for a performance review. (White Depo. (Doc. 203-5) 32:2-10).

A February 3, 2009, HRD document states: “30,000 shares granted for promotion,” with the explanation for the reason for the change form being “Promotion/Stock Grant.” (Day MSJ SOF, Ex. D) The document also states: “HRIC: *** Please note a spreadsheet was submitted on 2/2/2009 moving Ken into his new organization and the above information reflects that change.” (Id.) A February 5, 2009, “Salary Change Notice” details Day’s promotion and states, the type of action as a. “Stock Grant” as “30,000 shares[.]” (Day MSJ SOF, Ex. E). Similarly, a February 17, 2009, Preliminary Personal Compensation Statement referenced a Stock Award of 30,000 Options, with an Options Grant Date of March 1, 2009. (Day Mtn. for Sanctions SOF, ECF 187-8, pp. 2-3).

On March 1, 2009, the Compensation Committee of the Board of Directors granted Day the 30,000 Share stock option. (Gilbert Dec. ¶ 16; Bullinger Depo. 106:14-112:25). On March 4, 2009, Skelton emailed Day a personal compensation statement that confirmed the grant of the 30,-000 stock options and provided information regarding the current stock price. (Skelton Dec. ¶ 4, Ex. 1). On April 26, 2009, Day executed a “Notice of Grant of Stock Option Award under the LSI Corporation 2003 Equity Incentive Plan” for the 30,000 Share stock option. (Gilbert Dec. ¶ 17). LSI asserts this notice confirms that LSI granted Day a 30,000 Share stock option and not any RSUs. (Gilbert Dec. ¶ 18). Included with the notice of grant delivered to Day were a Nonqualified Stock Option Agreement and the Plan, which contained additional' information regarding the 30,-000 Share stock option. (Gilbert Dec. ¶ 19). According to Gilbert, Day was not provided with a Notice of Grant of Restricted Stock Unit Award under the Plan in 2009 because Day was not granted any RSUs in 2009. (Gilbert Dec. ¶ 20).

In March of 2009, Day reported to White that a sexually offensive video had been shown to Bullinger and Miland Kar-nik (“Karnik”) in January of 2009. (Day Depo. 261:17-263:8). According to Day, Day did not ask White to do anything with the information because "White was not interested. (Day Depo. 263:9-13).

In late 2009, the department in which Day worked went through a restructuring, and Bullinger launched a search to fill the newly-created position of Senior Vice President of Engineering to lead the department. (Day Depo. 142:5-144:1 & Ex. 14). Although Day was considered for the position, Bullinger informed Day that he did not deem Day to possess the qualifications that he was-looking for in the position. (Day Depo. 144:2-153:8 & Exs. 15, 16, 17; Bullinger Depo. 113:13-115:6), On or about January 4, 2010, LSI hired Karnik for the position, (Day Depo. 159:4-16 & Ex. 18; Karnik Depo, (Doc. 203-3) 10:19-23), after which Day reported to Karnik. (Day Depo. 159:4-160:6 & Ex. 18).

In December of 2009, Day began speaking with Dot Hill about possible employment; they spoke about possible employment for approximately ten months. • (Day Depo. 282:7-24).

In February of 2010, Day informed Bul-linger and "White that he believed he should have received 30,000 RSUs in addition to the stock option award of 30,000 Shares that he had received in 2009. (Bul-linger Dec. ¶ 5; White Dec. ¶ 2). An email from White to Huck stated:

I think you were involved in Ken’s promotion last year. He says he received 30,000 options as part of his perf review and 30,000 RSUs for his promotion (he remembers specific discussions where these were different). I’m only showing the option grant in SAP. Do you have any notes or backup that would shed more light? The HRD indicates shares for the promotion.

(Day MSJ SOF, Ex. F). White also inquired of Rice and Heubel whether they recalled any relevant discussions:

Ken Day was reviewing his stock history in eTrade recently and found what he thinks is a missing RSU grant related to his promotion to Sr.. Director of External Engineering early last year. As my note to Peggy says below, he understood he was receiving 30,000 options for the 2008 performance and 30,000 RSUs for the promotion. I think you were both involved to some extent in the decision to promote and wanted to see if you recall the discussion or have any back up that might help. Peggy didn’t have any additional detail.

(Id.). A February 23, 2010, email from White to Huck, Karnik, and Bullinger stated:

I wanted to let you all know that I just followed up with Ken regarding his questions around his stock grant(s) last spring during the compensation cycle and at his promotion. In order to demonstrate to him that we weren’t guilty of changing our story, I sent him the attached email on some HR dialog regarding the stock (it references a single grant in two places). He still feels that Phil presented his promotion stock (RSUs) as separate and distinct from the option grant during the compensation cycle. He said he would be following up with Phil and I encouraged, him to do so. I know we won’t likely make a change but maybe talking it through will help bring some resolution for him.

Just so you have them, I’ve also attached the two documents referencing stock grants that Ken received last spring. These forms, along with comments from Phil that Ken recalls during the promotion discussion, have contributed to Ken’s feeling that he was getting two grants. Note that the regular comp notice form identifies “option’s” and the promotion for references' “stock.” I did share with Ken that he have used the terms stock and options interchangeably but identify RSU grants as such when made.

(Day Mtn. for Sanctions SOF, E.CF, 187-8, p. 1). LSI investigated Day’s assertion, reviewed its records, and concluded that Day had only been granted a stock option covering 30,000 Shares in 2.009. (Bullinger Dec. ¶ 5; White Dec. ¶ 2; Huck Dec. ¶ 3; Bullinger Depo. 103:10-105:5).

White explained to Day that LSI uses the terms “stock” and “option”! interchangeably, but specifically identifies “RSU grants” if RSUs are being awarded. (White Dec. ¶ 3; see also Bullinger Depo. 103:17-104:17). In March 2010, to ameliorate Day’s concern regarding his misunderstanding of the 2009 stock option grant and to foster continuing good employer/employee relations, LSI asserts it voluntarily elected to award Day 2,000 RSUs. (Bullinger Dec. ¶ 6; White Dec. ¶ 4). The purpose of this award was to address Day’s concern and demonstrate to him that LSI valued him as an employee. (Bul-linger Dec. ¶ 7; White Dec. ¶ 5). Day-expressed gratitude when LSI -informed him that it would award him 2,000 RSUs. (Bullinger Dec. ¶ 8). The Compensation Committee of the Board of Directors granted Day the 2,000 RSUs in April 2010. (Gilbert Dec. ¶ 21).

Kamik reorganized the Engineering Department. (Day Depo. 199:14-17; Bullinger Depo. 116:23-119:15). On March 4, 2010, Karnik informed Day that he would be moved to Director of Special Projects and was hot being promoted to Vice President. (Day Depo. 168:19-169:7; 199:14-201:5). Day testified as follows:

Q. At some point in time did Mr. Karnik inform you that he would be restructuring the engineering department?

A. On [Mjarch 4th he did that.

Q. Okay. What did he tell you specifically?

A. That he was removing me from my position, that he was going to make me director or manager of special projects and that he wanted my staff to report directly to him.

(Day Depo. 199:19-22). The next day Day informed Bullinger he was disappointed that LSI was never going to make him a Vice President. (Day Depo. 170:16-172:7). Day also e-mailed Kamik and informed Kamik he would do his best to make Kar-nik and LSI successful. (Day Depo. 206:11-207:5 & Ex. 31).

On March 9, 2010, Day received an “exceeds expectations” performance evaluation for 2009, which was higher than his previous evaluation. (Day Depo. 164:1-20 & Ex. 19). When Day received his 2009 performance evaluation, he also received a raise, stock options and restricted stock units. (Day Depo. 164:1-166:22 & Day Depo. Ex. 19, 20). Day complained about his performance evaluation to Kamik and Bullinger because he thought he should have been rated “outstanding.” (Day Depo. 167:19-168:14; 169:15-171:25).

As Director of Special Projects, Day managed a team of engineers who focused on turning key technologies into core development. (Day Depo. 200:21-201:16). Day felt the whole organization knew he was no longer a leader, and that he was embarrassed and humiliated because everybody knew he was no longer in charge. (Day Depo. 202:1-8). Day’s compensation and benefits remained the same when he moved into the Director of Special Projects role, and he remained a Senior Director. (Day Depo. 205:5-10; Karnik Depo. 72:4-12). LSI Senior Director of Software Development Robin Huber (“Huber”) testified Day’s reassignment to Huber could have possibly been perceived by others as a demotion. (Huber Depo. (Doc. 203-4) 19:23-21:3). Day felt that, since he was “a storage visionary and technologist, it just seemed [he] was a good candidate for this job.” (Day Depo. 201:3-5). Further, when asked if he acknowledged to Karnik that there was a need for the Director of Special Projects role, Day testified that he “had to find some way to roll new technologies out. The advanced development department that [LSI] had was not effective at doing that and [LSI] needed to figure out how to do that.” (Day Depo. 201:12-15).

Day testified during his deposition about a March 23, 2010, meeting he had with Bullinger:

Q. Is this an e-mail you sent to Mr. Bullinger on March 23, 2010?

A. It is.

Q. Okay. And it looks like you’re summarizing or following up on a meeting that you just had with him.

THE WITNESS: I think so, yes.

Q. ... Okay. What do you recall about that meeting?

A. I actually don’t recall the meeting. The only thing I recall is what’s written here. So I assume Mr. Bullinger tried very hard to bring closure to me that I was going to report to Mr. Milind as the special projects, that it was a good thing for me and that he considered — you know, he was going to do what he could for me with the stock but there was not going to be any 30,000 shares and it was a very — again, it wasn’t a difficult discussion; it was a pleasant discussion.

(Day Depo. 209:21-210:16).

In July 2010, there was a further restructuring within the Engineering Department due to declining business conditions. (Day Depo. 222:25-223:6). Karnik informed Day that LSI could no longer fund special projects. (Day Depo. 223:24-224:2; Karnik Depo. 85:23-89:23). LSI offered Day the option of taking a separation package and leaving LSI or remaining with LSI in an undefined position and reporting to Robin Huber, Director of Controller Firmware. (Day Depo. 224:3-225:4). Day never saw the separation package, nor did he ask to see it. (Day Depo. 226:23-227:10; Karnik Depo. 14:7-13). Day accepted the undefined position. (Day Depo. 225:5-12). Day’s pay and benefits remained the same in this new position. (Day Depo. 232:15-19; Karnik Depo. 74:7-16; 76:2-6). Day informed Huber that he “will have no trouble working on [Huber’s] team” and that he thought Huber was “a good leader.” (Day Depo. 228:15-229:5 & Ex. 39) However, Day had issues with Huber because Huber . repeatedly asked Day if he understood his job and responsibilities. (Day Depo. 234:13-235:14).

On October 13, 2010, Day and Huber, as well as others, had a meeting with IBM to present various technology concepts and projects. (Day Depo. 235:19-237:25). Dáy became offended during this presentation because he felt Huber spent a lot of time discussing the other people on his staff and did not spend enough time discussing Day’s role. (Day Depo. 238:1-21). Following the presentation, Day and Huber had an unwitnessed discussion. (Day Depo. 238:22-239:14-18). Day summarizes the conversation as follows:

Q. Okay. Please tell me about the conversation with Mr. Huber.

A. Robin began with — the first sentence out of his mouth was, “Ken, your skin looks darker. In fact I think it looks darker than I remember.” You know, “Maybe you’ve been not working so hard and getting a lot of sun.”

And I said, “Robin, you know, I’m Hispanic and I don’t like this kind of talk.” And Robin repeated a half a dozen times, “Ken, I’m serious. Your skin does look darker.”

And I kept saying, “Robin, I find this radially offensive. I really would prefer you stop.”

And he said, “No, maybe you’ve been getting a' lot of sun. Mexicans have been known to be lazy. Maybe you’re not working as hard as you' used to work.” And I said, “Robin, I really need you to stop this conversation. I find it very offensive.”

“Ken, you’re just misunderstanding me. I’m just telling you what I observe.” And I said, “Robin, please move on.” And like I say, after asking him many times, he finally moved on.

(Day Depo. 239:19-240:16). Huber testified during his deposition that he had a discussion with Day about his tan. (Huber Depo. 129:2-138:22).

Day testified during his deposition as follows:

Q. Did Mr. Huber ever take an adverse job action against you?

MR. MORRIS: Objection. It’s a legal phrase. It requires a legal conclusion.

THE WITNESS: I don’t know what you mean.

Q. BY MR. CAMERON: Did he ever write you up?

'A. No.

Q. Did he ever discipline you?

A. What would that mean?

Q. Did he ever take any disciplinary action against you?

A. Is disciplinary action saying I don’t like the way you did this job? Is that a disciplinary action?

Q. I don’t know. Did it affect your record — did it affect your employment record?

A. I don’t believe I hope not. If it did, I don’t know about it.

Q. Okay. Did he ever cut your pay?

A. No.

Q. Did. he ever change your benefits?

A. No.

Q. Did you complain to anyone at LSI .about Mr. Huber’s alleged treatment of you at any time during your employment with LSI?

A, The first time I complained — so the answer to the question is yes, as you asked it.

Q. Who did you complain to during your employment with LSI about Robin Huber’s treatment of you?

A. Mr¿ Karnik.

Q. When did that occur?

A, I’m going to refer to my notes.

October 15th is when I think it is. .

Q. Did you complain to anybody other than Mr. Karnik about Mr. Huber’s treatment of you during your employment with LSI?

A. Yes.

Q. Who?

A. Ian White.

Q. When did you complain to Ian White

about Mr. Huber’s treatment of you?

A. During my exit interview.

(Day Depo. 246:6-247:23).

On Friday, October 15, 2010, Day informed Bullinger that he felt he was being forced out of LSI, Bullinger did not know the full story, and his only recourse was to resign. (Day Depo. 252:5-24). Day testified that Bullinger said, “Ken, I don’t care. If you feel like you have no job, resign.” (Day Depo. 252:23-24). At that time Day did not tell Bullinger any of his allegations regarding his conversation with. Huber at the IBM meeting. (Bullinger Depo. 125:10-12). On that same day,- following Day’s conversation with Bullinger, Karnik called Day to inquire whether he had resigned. (Day Depo. 28:20-25; 249:8-250:25 & Ex. 57). Day informed Karnik he was “seriously considering” resigning, and Karnik explained the process of submitting a resignation letter. (Day Depo. 249:8-250:25 & Ex. 57; Karnik Depo. 77:21-78:13). Day testified during his deposition that, during this conversation-, he informed Karnik about his incident with Huber. (Day Depo. 248:8-251:6). Day e-mailed Karnik and informed Karnik that he appreciated that Karnik had reached out to him and that the call demonstrated Karnik’s “sensitivity and professionalism.” (Day Depo. 255:20-256:1 & Ex. 42). Karnik never made any comments to Day about his race, color, national origin, or age. (Day Depo. 281:21-282:6).

Karnik indicated twice in his deposition that he did not advise Huber of Day’s allegations of discrimination by Huber regarding Day’s skin color (Karnik Depo. 18:18-19:11; 21:11), but also stated he did discuss these issues with Huber. (Karnik Depo. 24:4-6). Moreover, Karnik testified that he discussed with Huber what happened during the meeting with IBM and raised the issue with Ian White in Human Resources. (Karnik Depo. 18:6-21:16; 24:4-14). White testified that he investigated Day’s claims. (White Depo. 62:8-10). White and Huber disagree whether this investigation included a discussion between White and Huber. (White Depo. 62:11-21; Huber Depo. 146:12-150:9). Huck acknowledged any investigation was not documented, although the normal practice is to document an investigation. (Huck Depo. (Doc. 203-6) 111:1-3). Further, White testified that he did not document his investigation in any way (White Depo. 62:22-24; 68:23-25), and never followed up with Day (White Depo. 68:19-22).

Karnik testified that, on October. 15, 2010, he discussed with Day that Day’s access to the LSI network would be shut off. (Karnik Depo. 80:5-24). He further testified that the intent was to shut off the access, but he did not recall whether access was actually shut off. (Id.).

Also on October 15, 2010, Dot Hill sent Day an offer of employment; Day accepted the offer. (Day Depo. 284:3-17 & Ex. 47). The salary Day received from Dot Hill was higher than the salary he had with LSI. (Day Depo. 284:18-285:3 & Ex. 47).

On Monday, October 18, 2010, Day submitted his resignation letter to LSI. (Day Depo. 256:7-258:21 & Ex. 43). Day testified during his deposition that he resigned because he believed LSI no longer wanted him to be an employee and because Huber “pushed [him] over the edge with the racial slurs.” (Day Depo. 257:13-258:6). However, Day also testified that nobody at LSI informed him that he' would not have a job after October 18, 2010. (Day Depo. 258:7-9). Day’s resignation letter contains no allegations of harassment, discrimination; or retaliation. (Day Depo. 256:7-258:21 & Ex. 43).

As a result of his resignation, Day’s employment with LSI terminated effective October 19, 2010. (Day Depo. 256:7-9; 259:18-260:2). On October 19, 2010, Day had an exit interview with White. (Day Depo. 258:22-264:9; White Depo., 5:19-20). During this exit interview, Day stated that he-felt Huber’s comment about his skin looking dark was racist and that Huber was implying he must be spending time outside. (White Depo. 66:4-67:7). White investigated Day’s allegations and determined that Huber’s comment about Day’s skin tone was not of a racist nature. (White Depo. 62:8-63:14; 66:16-67:22; Huck Depo. 105:5-106:8; 106:25-107:22). At this time, Day again informed White of a video he saw in March 2009 which.he found offensive; the video depicted “white men slapping women.” (Day Depo. 261:17-263:20).

As to LSI CEO Abhijit Talwalkar (“Tal-walkar”), Day testified that Talwalkar never made comments about his race, color, age or national origin; this appears to be in the context of conversations with Day. (Day Depo. 278:21-279:21). Day testified he did not feel Bullinger or Karnik ever referenced Day’s race, age, or national origin in a negative way. (Day Depo. 279:22-282:6). Day testified that, in addition to the foregoing, he believes Huber, Karnik, Bul-linger, and Talwalkar discriminated against him by putting him in embarrassing and awkward situations,with regard to his employment and job titles. (Day Depo. 274:13-276:8).

Additionally, Day testified that he suffered -both emotionally and physically as a result of LSI’s conduct (Day Depo. 290:10-294:13)

During his deposition, Day testified he was not provided with an employee handbook, but he was given links to LSI’s internal network where he could access such information. (Day Depo. 91:9-14). However, Day did receive an Invention Confidential Agreement which he viewed as part of the LSI handbook. (Day Depo. 297:2-6). Day also testified as follows:

Q. In your complaint one of your claims is that LSI breached corporate handbook policies. What corporate handbook policies are you referring to?

A. Okay. So you’re asking me specifically about the phrase breach of corporate handbook policies?

Q. Correct. What corporate handbook policies do. you allege LSI to have breached?

A. Well, I don’t mean to be — I certainly feel like LSI treated me in a disrespectful way and these — I don’t mean — these are my lawyer’s words, not mine, but I certainly feel like the LSI ethics imply that they are going to treat people without discrimination and in a respectful way and have respect for an individual, and I certainly don’t feel like that was the case for me.

Q. What ethics policy are you referring to? ;

A. I don’t have a specific line in that handbook that I could point you to.

Q. You testified earlier you don’t have a handbook. I’m just trying to get an idea for what policy or policies you claim LSI breached. '

Mr. Morris: Note my objection. Mischar-acterization of his testimony?

A. I’m claiming that LSI told me — I told LSI employees that we would treat you in a fair and respectful way. I think that’s said in maybe different words on the LSI employee website. That’s what I’m claiming was breached.

Q. Okay. You can’t identify a specific policy today?

A. I cannot identify a specific policy today.

(Day Depo. 287:1-288:21).

On April 7, 2011, Day submitted an EEOC Charge of Discrimination alleging discrimination based oh color, age, and national origin. (Day Depo. 272:13-274:12, Ex. 45).

II. Summary Judgment Legal Standard

Summary judgment may be granted if the movant shows “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), Federal Rules of Civil Procedure. The moving party has the initial responsibility of informing the court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 817, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party has met the initial burden, the opposing party must “go beyond the pleadings” and “set forth specific facts showing that there is a genuine [material] issue for trial.” Id., 477 U.S. at 248, 106 S.Ct. 2505 (internal quotes omitted); see also Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1081 (7th Cir.1992) (cannot rely on the allegations of the pleadings, or upon conclusory allegations in affidavits). The nonmoving party must demonstrate a dispute “over facts that might affect the outcome of the suit under the governing law” to preclude entry of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, the disputed facts must be material. Celotex Corp., 477 U.S. at 822-23, 106 S.Ct. 2548. Further, “a party cannot manufacture a genuine issue of material fact merely by making assertions in its legal memoranda.” S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir.1982).

The dispute over material facts must be genuine. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A party opposing a properly supported summary judgment motion must set forth specific facts demonstrating a genuine issue for trial. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52. F.3d 264, 266 (9th Cir.1995) (per curiam); “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. However, the evidence of the nonmoving party is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255, 106 S.Ct. 2505. Further, in seeking to establish the existence of a factual dispute, the non-moving party need not establish a material issue of fact conclusively in his favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d 626, 631 (9th Cir.1987).

III. Consideration of Admissible Evidence

Additionally, the Court is only to consider admissible evidence. Moran v. Selig, 447 F.3d 748, 759-60 (9th Cir.2006) (pleading and opposition must be verified to constitute opposing affidavits); FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir.1991) (declarations and other evidence that would not be admissible may be stricken). Moreover, “at the summary judgment stage, courts do not focus on the admissibility of the evidence’s form. [Courts] instead focus on the admissibility of its contents.” Marceau v. International Broth. of Elec. Workers, 618 F.Supp.2d 1127, 1141-42 (D.Ariz.2009).

A “genuine” issue of “material” fact cannot be created by a party simply making assertions in its légal memoranda. Varig Airlines, 690 F.2d at 1238. Declarations and other evidence that would not be admissible may be stricken. FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir.1991). Indeed, a “conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 n. 2 (9th Cir.2007), citation omitted. Moreover, statements must allege personal knowledge. See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir.1990) (‘Like affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment.*); see also Block v. Los Angeles, 253 F.3d 410, 419 n. 2 (9th Cir.2001); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir.1975), quoting Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir.1969) (“[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact”). Additionally, the court is to review the record as a whole, but must disregard evidence favorable to the moving party that the jury is not required to believe and must give credence to the uncontradicted and unimpeached evidence of the moving party, at least “’to the extent that that evidence comes from disinterested witnesses.’” Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000), citation omitted.

The controverting statements and objections place the statements in context and clarify them. Although the Court will not address each dispute, the Court notes that Day objects to the Gilbert Declaration and LSI objects to an unauthenticated email. It appears that the content of this evidence would be admissible and, therefore, the Court will consider this evidence. Specifically, as to the Gilbert declaration, Day is not disputing the content of the declaration and does not dispute, the content of the documents cited to by Gilbert or assert that the documents have not been disclosed. Moreover, Gilbert has personal knowledge of the documents cited to and the contents therein. Any procedural barriers to testimony from Gilbert at trial would be subject to argument, but this does not alter the fact that the content would be admissible. Similarly, LSI does not object to the contents cited to by Day in his MSJ SOF, ¶ 1, but the inferences made therefrom regarding an email from Bullinger. The specifically cited documents, however, appear to be admissible. The Court will consider these items of evidence, but-not the characterization by counsel of ¶ 1 of the SOF.

Additionally, the Court will only consider the admissible evidence that is supported by specific facts that may show a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

IV. Count I: Fraud, Deceit, Misrepresentation and Fraudulent Inducement

Under Arizona law, the elements of Fraud, Deceit, and Misrepresentation, and the basis for Fraudulent Inducement, may be either actual or constructive. Brazee v. Morris, 68 Ariz. 224, 227-28, 204 P.2d 475, 476-77 (1949). Actual fraud requires (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury. Moore v. Meyers, 31 Ariz. 347, 253 P. 626, 628 (Ariz.1927); see also Meritage Homes Corp. v. Hancock, 522 F.Supp.2d 1203, 1218 (D.Ariz.2007).

LSI: points out that Day’s Amended Complaint states a claim for actual fraud. In his response, however, Day argues that there is a genuine factual dispute as to whether constructive fraud has been established. When new allegations áre asserted in opposition to a motion for summary judgment, a court may, in some circumstances, treat the inclusion as a motion to amend the complaint pursuant to Fed.R.Civ.P. 15(a); William Inglis, Etc. v. ITT Continental Baking Co., 668 F.2d 1014, 1053, n. 68 (9th Cir.1981), (citing Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.1972)). Rule 15(a) provides that leave to amend shall be freely given when justice so requires, and several factors are relevant to determine whether leave to amend should be granted, including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposition party by virtue of the allowance of the amendment, [and] futility of amend-merit.” Schlacter-Jones v. General Telephone, 936 F.2d 435 (9th Cir.1991). However, neither party addresses these issues in their briefs. The Court, therefore, declines to treat Day’s new allegations as a motion to amend. See e.g. Mortkowitz v. Texaco, Inc., 842 F.Supp. 1232 (N.D.Cal.1994). Moreover, not only has Day already filed an Amended Complaint, but he raises these new claims approximately three years after initiating the litigation. In other words, Day has unduly delayed in raising the new theories. Day’s new theories, asserted for the first time in Day’s Re^ sponse to LSI’s Motion for Summary Judgment, that LSI promised Day shares of stock in exchange for accepting employment at LSI, LSI promised Day shares of stock for his promotion, and constructive fraud, therefore, fail.

Day’s Amended Complaint alleges LSI fraudulently induced him to leave a secure position with IBM, with no intention of providing him with the promised inducements. Specifically, Day asserts he was assured by Bullinger his role would be that of a Distinguished Engineer, but that he would be promoted to a fellow, or vice president, position within a year. Day alleges he relied upon those representations in turning down a retention offer from IBM and accepting employment from LSI. However, the evidence before the Court does not show that a genuine issue of material fact exists as to whether Bullinger knew the representations were false. Further, as no position had been offered by LSI prior to Day’s rejection of the retention offer by IBM, there is no factual dispute that Day relied upon the representations in rejecting the offer. As to whether Day relied on the representations in accepting LSI’s offer, “[f]raud can be based upon unfulfilled promises or expressions concerning future events only if statements regarding those events “ ’were made with the present intent not to perform.’ ” McAlister v. Citibank (Arizona), 171 Ariz. 207, 214, 829 P.2d 1253, 1260 (App. 1992) (quoting Spudnuts, Inc. v. Lane, 131 Ariz. 424, 426, 641 P.2d 912, 914 (Ariz.Ct.App.1982)). Here, there is no evidence of Bullinger’s knowledge of the-falsity. Indeed, Day’s deposition testimony indicates that he believes Bullinger was acting in good faith. Further, this case does not involve a representation as to “past or present rents, profits, or income[,]” Carrel v. Lux, 101 Ariz. 430, 434, 420 P.2d 564, 569 (1966), which may provide a sufficient basis for a fraud claim. Rather, this ease involves proposed future compensation. The Court will grant summary judgment in favor of LSI as to this claim.

V. Count II: Breach of Contract

For a valid contract to exist, there must have been an offer, acceptance of the offer, consideration, sufficient specification of terms so that the obligations involved can be ascertained, K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1983), and the parties must have intended to be bound by the agreement, Schade v. Diethrich, 158 Ariz. 1, 9, 760 P.2d 1050, 1058 (1988) (“the requirement of certainty is not so much a contractual validator as a factor relevant to, determining the ultimate element of contract formation — the question whether the parties manifested assent or intent to be bound”). Arizona “permits the consideration of extrinsic evidence.. .on the issue of contract interpretation.” 1 Ariz. Prac., Law of Evidence § 104:8 (4th ed. 2013) (citations omitted). Further, parol evidence is appropriate for consideration in resolving a motion for summary judgment. See e.g., Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 854 P.2d 1134 (1993).

The Supreme Court of Arizona has stated:

We cited with approval the Second Restatement of Contracts’ [§ 24] definition of an offer as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” [Tallent v. National General Insurance Co., 185 Ariz. 266, 268, 915 P.2d 665, 667 (1996).] Thus, whether an offer has been made does not depend on the offeree’s understanding of the terms of the offer, but instead on whether a reasonable person would understand that an offer has been made and that, upon acceptance, the offeror would be bound. [Citation omitted.]

Ballesteros v. American Standard Ins. Co., 226 Ariz. 345, 348, 248 P.3d 193, 196 (2011). An acceptance is a manifestation of assent to the terms of an offer in the manner invited or required by the offer. Contempo Const. Co. v. Mountain States Tel. & Tel. Co., 153 Ariz. 279, 281, 736 P.2d 13, 15 (App. 1987). “Consideration is defined as bargained for exchange whereby the promisors.. .receive some benefit or the promisee... suffers a detriment.” Coup v. Scottsdale Plaza Resort, LLC, 823 F.Supp.2d 931, 943 (D.Ariz.2011).

Further, the Supreme Court of Arizona has stated:

The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance. Restatement § 33(3).

.. .But the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain.

Id. comment a (emphasis added).

Schade, 158 Ariz. at 9, 760 P.2d 1050, 760 F.3d at 1058. “The requirement of certainty is not so much a contractual validator as a factor relevant to determining., .whether the parties manifested assent or intent to be bound.” Schade, 158 Ariz. at 9, 760 P.2d 1050. “Any requirement of ‘reasonable certainty’ is satisfied if the agreement that was made simply provides ‘a basis for determining the existence of a breach and for giving an appropriate remedy.’” Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab, Inc., 234 Ariz. 18, 21, 316 P.3d 607, 610 (App. 2014) (citations omitted). Further, “[m]utual assent is ascertained from objective evidence, not from the hidden intent of the parties. Objective evidence includes written and spoken words as well as acts.” Johnson v. Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 384, 132 P.3d 825, 828 (2006).

Additionally, “[i]t is well established that, in an action based on breach of contract, a plaintiff has the burden of proving the existence of a contract, breach of the contract, and resulting damages.” Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P.3d 1103, 1111 (App. 2004).

A. Employment Agreement

LSI argues that Day admitted he never had an employment contract with LSI:

Q. Okay. Were you ever provided with an employment contract by LSI?

A. I was not. You’re asking was I ever given anything in writing? The answer is, no.

(Day Depo. 91:3-6). Further, Day’s application, which was completed online and included the typed initials “KD”, included a statement that Day understood that his employment would be at will and that such status could not.be changed except in writing. (Day Depo. 83:3-86:14). Day also acknowledged the Employee Invention and Confidential Information Agreement, which he signed, included a provision that he understood and agreed he “was not being employed by the Company for any specified period of time and either [he] or the Company [could] terminate [his] employment with the Company at any time for any reason, with or without cause.” (Day Depo. 94:15-95:3). Although terms had been discussed and an offer letter had been sent by LSI, there is no basis to conclude that the fact of the. employment (as opposed to the terms) was governed by anything other than the agreement for at-will employment. The Court finds LSI is entitled to summary judgment on the issue of breach of an employment agreement.

B. Promotion to Vice President or Fellow

To the extent Day’s breach of contract claim is based on LSI’s alleged offer to make Day a Vice President or Fellow, LSI argues this claim fails because LSI never offered Day a Vice President or Fellow position. The testimony regarding this issue is such that the Court finds' a genuine issue of material fact exists as to whether LSI promised Day such a promotion.

However, the Court agrees with LSI that Day has not timely filed this claim. Indeed, Day has not responded to LSI’s argument that this claim was not filed timely. Day testified that he knew as of May 2008 when he accepted the LSI position that LSI was not going to offer him a vice president position. (Day Depo. 59:16-60:22). Further, Day testified that he knew as of March 5, 2010, that LSI was never going to make him a Vice President. (Day Depo. 170:16-172:7). In Arizona, a claim for a breach of an oral or written employment contract must be commenced within one year after the cause of action accrues. A.R.S. § 12-541. ADD ROS CASE-P 24 Day did not file this action until March 31, 2011, including the claim for the breach of the employment terms, which was not within one year of his learning that he would not become a Vice President at LSI. The Court finds summary judgment in favor of LSI as to this claim is appropriate.

C. 30,000 RSUs

The Court will address this claim in conjunction with Day’s request for summary judgment as to this claim.

VI. Count III: Breach of Implied Covenant of Good Faith and Fair Dealing

“Arizona law implies a covenant of good faith and fair dealing in every contract.” Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 46 P.3d 431, 434 (App. 2002) (quoting Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565, 569 (Ariz.1986)). “Such implied terms are as much a part of a contract as are the express terms.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 38 P.3d 12, 28 (Ariz.2002). The purpose of this covenant is so “neither party will act to impair, the right of the other to receive the benefits which flow from their agreement or contractual relationship.” Bike Fashion, 46 P.3d at 434 (internal quotation .marks omitted) (quoting Rawlings, 726 P.2d at 569-70). This covenant “guarantees the protection of the parties’ reasonable expectations,” and is breached either “by exercising express discretion in a way inconsistent with a party’s reasonable expectations and by acting in ways not expressly-excluded by the contract’s terms but which nevertheless bear adversely on the party’s reasonably expected benefits of the bargain.” Id. at 434-35. However, “an implied covenant of good faith and fair dealing cannot directly contradict an express contract terra.” Id. at 434-35.

Additionally employment contracts “contain!] an implied-in-law covenant of good faith and fair dealing that requires ‘neither party do anything that will injure the right of the other to receive the benefits of their agreement.’” Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 888 P.2d 1375, 1384 (App.1994) (quoting Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 383, 710 P.2d 1025, 1038 (1985) (superseded in part by A.R.S. § 23-1501)). But, the covenant of good faith and fair dealing “‘does not create a duty for the employer to terminate the employee only for good cause,’” nor does it “‘protect the employee from a “no-cause” termination.’” Consumers Int’l, Inc. v. Sysco, Corp., 191 Ariz. 32, 37, 951 P.2d 897, 902 (App. 1997) (quoting Wagenseller, 710 P.2d at 1038). A claim for breach of the implied covenant may be viable if a plaintiff is alleging that conduct other than the termination itself breached the covenant. See, e.g., Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1272 (9th Cir.1990).

Because Day seeks punitive and exemplary damages,-LSI argues that Day is bringing his breach of implied covenant of good faith and fair dealing claim as a tort claim. LSI argues that such a claim, based on a special relationship, does not exist under Arizona law. Nelson v. Phoenix Resort Corporation, 181 Ariz. 188, 888 P.2d 1375, 1385 (App.1994). This Court agrees and, to any extent Day seeks recovery as a tort, summary judgment in favor of LSI will be granted. However, Day also alleged he “has suffered and continues to suffer substantial losses in earnings, stock grants,, stock options, restricted stock units, retirement benefits, and other employee benefits that he would have received had LSI not breached the agreement.” (Doc. 74, p. 8). This allegation, in conjunction with Day seeking actual, general and compensatory damages indicates Day is also seeking relief based on a contract theory. However, although a two year statute of limitations applies to claims for a breach of an implied covenant of good faith and fair dealing, see e.g. Manterola v. Farmers Ins. Exchange, 200 Ariz. 572, 30 P.3d 639 (2001), because Day’s claim is based on a contract theory, a one year statute of limitations applies. A.R.S. § 12-541; Fallar v. Compuware Corp., 202 F.Supp.2d 1067 (D.Ariz.2002). The Court finds Day did not timely file this litigation. Moreover, to the extent Day’s claim is based on a contract theory, the Court has previously addressed whether there are genuine material issues of fact in dispute as to Day’s contract claims. Summary judgment in favor of LSI on this count is appropriate.

VII. Count TV: Violation of Corporate Handbook Policies

In Arizona, because at-will employment relationships are contractual, “the parties are-free to create a different relationship beyond one at will ’and define the parameters of that relationship, based upon the totality of their statements and actions.’” Demasse v. ITT Corp., 194 Ariz. 500, 505, 984 P.2d 1138, 1143 (1999) (quoting Wagner v. City of Globe, 150 Ariz. 82, 86, 722 P.2d 250, 254 (1986)). An implied-in-fact contract term is one that is inferred from the statements or conduct of the parties and becomes as enforceable as an express term. Wagenseller, 147 Ariz. at 381, 710 P.2d at 1036 (citing 1 Arthur L. Corbin, Corbin on Contracts § 17, at 38 (1960)).

“[I]mplied-in-fact terms may be found in an employer’s policy statements regarding job security or employee disciplinary procedures, such as those contained in personnel manuals or memoran-da.” Roberson v. Wal-Mart Stores, Inc., 202 Ariz. 286, 290, 44 P.3d 164, 169 (App. 2002) (citations omitted). Indeed, “[whether there is a promise of job security or certain disciplinary procedures implied-in-fact by an employer through its personnel manual or otherwise is a question of fact.” Id.

Arizona does recognize, however, that not all handbook terms create contractual promises. “A statement is contractual only if it discloses ‘a promissory intent or [is] one that the employee could reasonably conclude constituted a commitment by the employer. If the statement is merely a description of the employer’s present policies.. .it is neither a promise nor a statement that could reasonably be relied upon as a commitment.’” Demasse, 194 Ariz. at 505, 984 P.2d 1138 (citation omitted). “When an employer chooses to include a handbook statement ’that the employer should reasonably have expected the employee to consider as a commitment from the employer,’ that term becomes an offer to form an implied-in-fact contract and is accepted by the employee’s acceptance of employment. Id. (citation omitted). Indeed, “handbooks can include a variety of non-promissory information for employees.” Id. (citation omitted).

In at least one filing, LSI has asserted that it did not have an employee handbook during Day’s employment. (Doc. 99-1, Ex. F). However, Day has testified that he was provided with web links to LSI’s internal network where he could access such information. (Day Depo. 91:9-14). Moreover, Day was not the only LSI employee that viewed the online information .as a handbook. (Huber Depo. 152:14-16). Day asserts LSI violated its own policies as to document retention and investigation of discriminatory conduct. However, there is no evidence before the Court that the Handbook included any language that indicated a promissory intent or that employees could reasonably conclude constituted a commitment by LSI. Alternatively, there is no evidence before the Court that the Handbook included any language of limitation or a disclaimer that the Handbook does not provide any implied-in-fact contractual requirements. See e.g. Thomas v. Garrett Corp., 744 F.Supp. 199 (D.Ariz. 1989).

In asserting a breach of corporate handbook policy claim, Day is essentially making a breach of contract claim. There must not only be a genuine factual dispute as to whether there was a corporate handbook that was breached, büt there must also be a genuine dispute as to whether resulting damages exist. Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P.3d 1103, 1111 (App. 2004) (citing Thunderbird Metallurgical, Inc. v. Ariz. Testing Lab., 5 Ariz.App. 48, 423 P.2d 124 (1967)).

Here, Day argues LSI breached the Handbook by not following its own document retention policies and by failing to investigate the allegations of discriminatory conduct. The Court notes that Day has not pointed to any'provision in’LSI’s policies that require investigations into employee complaints to be documented. Moreover, Day reported the alleged discriminatory conduct on Friday, October 15, 2010, and tendered his resignation on Monday, October 18, 2010. Any implied-in-fact contractual relationship between LSI and Day ended when the employment relationship was terminated. In . other words, there was no realistic opportunity for LSI to investigate the alleged • discriminatory conduct while any implied-in-fact contractual relationship existed. Similarly, Day alleges LSI did not comply with its own document retention policies after LSI was advised of potential litigation — again, after any implied-in-fact contractual relationship ended. The Court finds summary judgment in favor of LSI is appropriate as to this claim.

VIII. Count V: Intentional and/or Negligent Infliction of Emotional and Physical Distress

As ' to a claim for intentional infliction of emotional distress, a plaintiff must establish (1) the conduct of defendant was “extreme” and “outrageous,” (2) defendant intended to cause emotional distress or recklessly disregarded the near certainty that such conduct would result from his conduct, and (3) severe emotional distress did occur as a result of defendant’s conduct. Citizen Publishing Co. v. Miller, 210 Ariz. 513, 517, 115 P.3d 107, 111 (2005); Wells Fargo Bank v. Arizona Laborers, Teamsters, and Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 38 P.3d 12 (2002) (discussing difference between negligent and intentional torts). The acts must be “’so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’” Mintz v. Bell Atlantic Systems Leasing International, Inc., 183 Ariz. 550, 554, 905 P.3d 559, 563 (App. 1995) (quotation omitted). Further, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct. Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580 (1987).

“[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.” Mintz, 183 Ariz. at 554, 905 P.2d 559 (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir.1988)), cert. denied, 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990). However, in Ford, the Court found that the “failure of an employer to promptly investigate complaints of sexual harassment is significant in making a determination to impose liability on an employer for its supervisors’ acts of sexual harassment.” 153 Ariz. at 43, 734 P.2d 580. In this case, Day testified that he informed Karnik about his incident with Huber. (Day Depo. 248:8-251:6). Karnik indicated twice in his deposition that he did not advise Huber of Day’s allegations of discrimination by Huber regarding Day’s skin color (Karnik Depo. 18:18-19:11; 21:11), but also stated he did discuss these issues with Huber. (Karnik Depo. 24:4-6). Moreover, Karnik testified that he discussed with Huber what happened during the meeting with IBM and raised the issue with White. (Karnik Depo. 18:6 — 21:16; 24:4-14). White tes