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October 1997 
Vol. 3 No. 10 ISSN 1087-6219
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The California Supreme Court has ruled that a discharged employee may base a tortious wrongful discharge claim on age discrimination. The decision limits liability to businesses that satisfy the Fair Employment and Housing Act's definition of employer, by employing five or more employees.
California tort law imposes a duty on employers not to discharge employees in violation of public policy. To support such a claim, the public policy must (1) appear in a statutory or constitutional provision, (2) benefit society at large, (3) be substantial and fundamental, and (4) be well established at the time of the discharge.
Huntington Memorial Hospital discharged Joan Stevenson when she was 60 years old. She did not file a claim for age discrimination with the Fair Employment and Housing Commission, but did file a lawsuit alleging wrongful discharge in violation of public policy. In Jennings v. Marralle, 8 Cal. 4th 121 (1994), the Supreme Court ruled that FEHA's ban on age discrimination would not support a tortious discharge claim against an employer not covered by FEHA. It would be anomalous to hold an employer liable in tort for age discrimination, even though FEHA's prohibitions did not apply to it. However, when FEHA does apply, there is no such unfairness.
The Court went on to find that the state policy against age discrimination was substantial and fundamental. Age, like race and gender, is a product of nature, not individual choice. Age discrimination results from stereotyping a group, just like race and gender discrimination. The ban on age discrimination has been the law for 35 years. The policy finds expression in over 30 California code provisions.
Huntington Hospital argued that FEHA preempted Stevenson's tortious discharge claim. The Court rejected to argument based on Rojo v. Kliger, 52 Cal. 3d 65 (1990), which held that FEHA did not preempt a tortious discharge claim based on gender discrimination. It did not matter in this case that the policy against gender discrimination pre-dated FEHA, while FEHA established the policy against age discrimination. FEHA supplements, and does not supplant, common law remedies.
Stevenson v. Superior Court, 66 Cal. Rptr. 2d 888 (1997).
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The First District Court of Appeal in San Francisco has ruled that supervisors face liability for discrimination under the Fair Employment and Housing Act. The decision conflicts with the Second District Court of Appeal's ruling in Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55 (1996), which was reported on in the July 1996 issue of Appellate Decisions Noted.
Marijo Baird was a principal of the company that employed Kimberly Reno as a nurse. Reno had developed cancer before Baird' company hired her, and underwent surgery for it while employed there. After the company removed Reno from a nursing assignment, she refused to accept any further assignments. Reno claimed that the company removed her because of her medical condition. The company, now defunct, said that it removed her because of the way she interacted with the patient and his family. Reno sued Baird and other defendants.
The Janken court distinguished FEHA's treatment of harassment claims from its treatment of discrimination claims. That court viewed harassment as outside the scope of employment, and, therefore, as something that supervisors should be liable for. However, the type of personnel decisions that give rise to discrimination claims are an unavoidable part of a supervisor's job.
The court in the present case rejected the distinction, and focused on the relevant language of the statute. Government Code section 12940(a) imposes liability for discrimination on an “employer.” Section 12926(d) defines employer to include “any person acting as an agent of an employer, directly or indirectly.” A supervisor is an agent of the employer, and, therefore, is liable for discrimination. This interpretation is consistent with the Fair Employment and Housing Commission's construction of the statute, which is entitled to “great weight.”
Reno v. Baird, 1997 WL 587264 (Cal. Ct. App. Sep. 24, 1997).
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The First District Court of Appeal in San Francisco has ruled that the Bay Area Rapid Transit District (BART) owed no tort duty to an inebriated passenger that one of its operators ordered out of the train onto a platform at the end of the line. BART's special duty as a common carrier ended when it discharged the passenger to a relatively safe place.
James McGettigan fell asleep on a BART train bound for Richmond. He had intended to connect to a train that would take him to Walnut Creek. When the train reached the end of the line, its operator ordered McGettigan off the train, and told him that he could catch his train on the other side of the tracks. Although McGettigan was “obviously inebriated,” he was left standing on the platform. Later, a station agent found him face down on the platform, with his legs hanging over the edge. McGettigan was bleeding from the face and right leg; his ankle was “almost severed.”
A common carrier like BART owes its passengers the highest duty of care, until they have safely departed the carrier's vehicle. The duty extends to ensuring that the passenger has departed into a reasonably safe place. A bus passenger discharged onto the shoulder of a road is in a reasonably safe place. Riggins v. Pacific Greyhound Lines, 203 Cal. App. 2d 125 (1962). However, a cable car passenger forced to alight in the middle of the street in the path of other cable cars had been discharged into an unsafe area. Brandelius v. City and County of San Francisco, 47 Cal. 2d 729 (1957). BART's train platform was more like the shoulder of a road than the middle of a street. It is removed from any “mobile or animated” hazards. McGettigan was not within the “sphere” of any activity that posed a danger to passengers.
In dissent, Justice Poché wondered:
“Does it strain the imagination to hold that the Richmond BART station, with its incoming and departing trains, its electrified third rail, and its pits in which the trains are located, was an area within the sphere of an activity of BART which might reasonably constitute a mobile or animated hazard to a passenger so drunk that he was pouring the contents of his vodka bottle on his trousers? Is there any doubt that BART, which had full knowledge of the passenger's condition, had the duty of utmost care to that passenger?”
McGettigan v. Bay Area Rapid Transit Dist., 1997 WL 578267 (Cal. Ct. App. Aug. 22, 1997).
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The First Amendment protects public employees from adverse employment action in certain circumstances. Speech about a matter of public concern is protected; speech about private interests related to the job is not. When a public employee suffers an adverse consequence as a result of speaking about a matter of public concern, the court must weigh the employee's free speech interest against the interests of the government as an employer in efficiency and avoiding disruption of the workplace. Pickering v. Board of Education, 391 U.S. 563 (1968).
Two recent cases apply these principles. In Campbell, the Chief Structural Engineer in the Office of the State Architect wrote a letter to the Building Standards Commission (BSC), another state agency, questioning, in sharp language, the actions of one of its com-missioners. Several commissioners questioned the propriety of the letter. Eventually, Campbell was removed from his high-level position, and put into another position at reduced pay. The Third District Court of Appeal in Sacramento affirmed the Superior Court's refusal to grant a writ of administrative mandamus that would have overturned his dismissal.
The Court of Appeal assumed that Campbell's letter related to a matter of public concern. However, the agency's interest in preventing disruption of its relationship with the BSC outweighed Campbell's free speech interest. Campbell had not been expressing his political views to the public, or alerting the public to wrongdoing. He wrote as a state official about matters within the scope of his employment. Therefore, he had only a limited free speech interest. The agency did not need to show actual disruption of its working relationship. It was enough that Campbell's letter “was likely to have a disruptive effect.” In any event, the numerous complaints from BSC commissioners allowed the Office of the State Architect to reasonably conclude that its relationship had actually been harmed.
In Kirchmann, a school district secretary anonymously notified bidders on a construction management contract of a possible conflict of interest in the bidding process. (A consultant to one of the bidders participating in interviewing the bidders, and in recommending one of the bidders - the firm to which she was a consultant - to the school district.) The district suspended her for 30 days without pay for insubordination, dishonesty and misuse of district property. The San Bernardino division of the Fourth District Court of Appeal reversed the Superior Court's decision not to issue a writ of mandate setting aside the suspension.
Speech about possible wrongdoing is protected as a matter of public concern, so long as it is not recklessly false. The district did not prove that Kirchman lacked a good faith belief in the truth of what she said. Indeed, the critical points were true. That Kirchman only directed her speech to a limited group did not vitiate her communication's status as a statement about a matter of public concern. Nor did it matter that she may have been motivated in part by revenge against one of the district's administrator's. The public has a strong interest in conflict of interest issues. Since Kirchmann was not a “policy-level” employee, the district had to show actual disruption of its operations to overcome her interest. There was no proof of sufficient actual disruption to justify discipline.
Public employee free speech rights were also at issue in Weisbuch v. County of Los Angeles, which was discussed in the August 1997 issue of Appellate Decisions Noted.
Campbell v. California State Personnel Bd., 66 Cal. Rptr. 2d 722 (Ct. App. 1997); Kirchmann v. Lake Elsinore Unified Sch. Dist., 67 Cal. Rptr. 2d 268 (Ct. App. 1997).
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Subsequent treatment of decisions reported on in earlier issues:
B.L.M. v. Sabo & Deitsch (July 1997 issue), review denied (Sep. 17, 1997).
Coalition for Economic Equity v. Wilson (May 1997 issue), application for stay denied (U.S. Sup. Ct. Sep. 4, 1997).
Compassion in Dying v. State of Washington (April 1996 issue), remanded to District Court (9th Cir. Aug. 25, 2997).
Deteresa v. American Broadcasting Cos. (September 1997 issue), now reported at 121 F.3d 460 (9th Cir. 460).
Garcia v. McCutchen (September 1997 issue), now reported at 66 Cal. Rptr. 2d 319 (1997).
Gutowsky v. County of Placer (April 1997 issue), petition for certiorari filed (Jul. 16, 1997).
Guz v. Bechtel National, Inc. (June 1997 issue), review granted (Aug. 27, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Hall v. LaRonde (September 1997 issue), now reported at 56 Cal. App. 4th 1342. Petition for review filed (Sep. 17, 1997).
Loder v. City of Glendale (February 1997 issue), petition for certiorari filed (Apr. 7, 1997).
Lowe v. California League of Professional Baseball (August 1997 issue), review denied (Sep. 17, 1997).
Marks v. Loral Corp. (August 1997 issue), petition for review filed (Sep. 4, 1997).
Papike v. Tambrands Inc. (March 1997 issue), petition for certiorari filed (Jul. 15, 1997).
Parsons v. Crown Disposal Co. (June 1997 issue), rehearing denied (Jul. 9, 1997).
Phraner v. Cote Mark, Inc. (June 1997 issue), review denied (Aug. 27, 1997).
Ram v. Rubin (August 1997 issue), now reported at 118 F.3d 1306 (9th Cir. 1997).
Sharon P. v. Arman, Ltd. (July 1997 issue), now reported at 56 Cal. App. 4th 266. Petition for review filed (Aug. 15, 1997).
Somers v. Thurman (April 1997 issue), petition for certiorari filed (Jun. 23, 1997).
Stevenson v. Superior Court (April 1996 issue), superseded by 66 Cal. Rptr. 2d 888 (1997).
Thompson v. Holy Family Hospital (September 1997 issue), now reported at 121 F.3d 537 (9th Cir. 1997).
Vons Companies, Inc. v. Seabest Food, Inc. (January 1997 issue), petition for certiorari filed (May 5, 1997).
Weisbuch v. County of Los Angeles (August 1997 issue), now reported at 119 F.3d 778 (9th Cir. 1997).
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