October 1998 Vol. 4 No. 10 ISSN 1087-6219
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In This Issue

• Tameny claim may rest on public policy derived from administrative regulations
• Proposition 213 restrictions apply to uninsured motorist injured while exiting his parked car
• Single incident does not prove hostile work environment claim
• Failure to seek review of adverse administrative ruling bars public employee's FEHA claim
• Ninth Circuit extends intent to commit harm element of substantive due process to shooting cases
• Discrimination based on tribal affiliation violates Title VII
• UPDATES

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Tameny claim may rest on public policy derived from administrative regulations

The California Supreme Court has ruled that an employee may sue his employer in tort for wrongful termination in violation of a fundamental public policy rooted in federal regulations. The ruling came in a lawsuit alleging retaliatory discharge for plaintiff's allegedly having reported defective airplane parts to his employer.

Richard Green was an inspector for Ralee Engineering, which supplied airplane parts to Boeing, Northrop and other aviation companies. Green claimed to have discovered that Ralee was shipping parts that had failed inspection. He reported this to his supervisors, but was not satisfied with the response. To support his claims, he began copying the inspection reports. Ralee discharged him. He never reported his complaints to any government agency.

In Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980), the Supreme Court recognized a tort claim for wrongful termination in violation of fundamental public policy. In Gantt v. Sentry Ins., 1 Cal. 4th 1083 (1992), the Court stated that the policy must be “tethered” to a specific constitutional or statutory provision.

In this case, the Federal Aviation Act authorized the Administrator of the Federal Aviation Administration to prescribe safety standards for aircraft design and manufacture. Those standards require prime manufacturers to ensure adequate inspections of parts that they purchase from suppliers. That was sufficient to establish a fundamental public policy in favor of safe airplane parts, which was tethered to the Federal Aviation Act.

Justices Baxter and Brown dissented. They opined that the majority had propounded a standardless rule that unfairly burdens employers and allows judges to enforce their own predilections for public policy whenever they can find some regulatory expression on the subject.

Green v. Ralee Eng'g Co., 65 Cal. Rptr. 2d 345 (1998)

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Proposition 213 restrictions apply to uninsured motorist injured while exiting his parked car

The Second District Court of Appeal in Los Angeles has held that the Personal Responsibility Act of 1996 (Proposition 213) ban on recovery of noneconomic damages by uninsured motorists extends to accidents involving parked cars.

Jesus Cabral, an uninsured motorist, parked his car legally on Olympic Boulevard in Los Angeles. He noticed a Metropolitan Transportation Authority bus approaching from behind, but nonetheless began to open his door to exit the car. The bus collided with the car door, pulling Cabral's arm and body forward. The trial court ruled that Cabral could not recover noneconomic damages, and the Court of Appeal agreed.

California Civil Code section 3333.4 (enacted as part of Proposition 213) provides that uninsured motorists may not recover noneconomic damages “in any action to recover damages arising out of the operation or use of a motor vehicle.” Operation and use are not limited to driving. “Operation” includes stopping, parking and other acts fairly regarded as a necessary incident to driving. “Use” includes any activity utilizing the vehicle. Cabral's actions at the time of the accident constituted both operation and use.

Cabral v. Los Angeles County Metropolitan Transportation Authority, 1998 WL 633748 (Cal. Ct. App. Sep. 16, 1998).

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Single incident does not prove hostile work environment claim

The Ninth Circuit has ruled that one instance of racially offensive conduct cannot establish a hostile environment claim under Title VII. Further, the fact that most of the male plaintiff's supervisors were female did not establish a hostile environment.

Eric Gregory was an African-American civilian technician in the Alaska Air National Guard. He had been discharged in 1992, but was reinstated after a successful Title VII lawsuit. He was dissatisfied with his working conditions following reinstatement, and brought another lawsuit. He alleged a hostile work environment based on racial, sexual and retaliatory animus.

To prove a hostile work environment, Gregory had to show (1) that he was subjected to verbal or physical conduct of a racial or sexual nature, (2) that the conduct was unwelcome, and (3) that the conduct was so severe or pervasive that it altered the conditions of his employment. The more outrageous the conduct, the less of it that is needed to prove a claim.

Gregory's only evidence of hostile environment was (1) a drawing of a monkey on an inter-office memo, and (2) the fact that most of his supervisors were female. The drawing was accompanied by a verbal explanation that it was intended to remind officers not to get the monkey off their backs by passing their responsibilities on to others. Gregory's evidence was not sufficient to defeat the Air Force's summary judgment motion.

Gregory v. Widnall, 1998 WL 556524 (9th Cir. Sep. 3, 1998).

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Failure to seek review of adverse administrative ruling bars public employee's FEHA claim

The San Bernardino division of the Fourth District Court of Appeal has ruled that a city personnel board finding of no discrimination bars a city employee's claim under the Fair Employment and Housing Act. His Title VII claim was not barred.

Barry Johnson was the assistant city manager for the City of Loma Linda. In 1992, he suspended Loma Linda's community development director for sexual discrimination over the opposition of a member of the City Council. The city manager, who had supported Johnson's action, later resigned under threat of termination. The new city manager laid Johnson off, at least in part because of Johnson's association with the prior city manager.

In response to Johnson's grievance, Loma Linda's personnel board found that the City had eliminated his position in the interest of economy and that the City had not violated any anti-discrimination laws. Johnson did not immediately seek judicial review of the personnel board determination. However, he did exhaust his administrative remedies under FEHA and Title VII. Then, he filed a lawsuit containing claims for retaliation under FEHA and Title VII, and a mandamus petition directed at the personnel board decision.

The Superior Court denied the mandamus petition based on laches, and dismissed the retaliation claims. The Court of Appeal affirmed the dismissal of the FEHA retaliation claim based on the collateral estoppel effect of the personnel board decision. It disagreed with a Fourth District Court of Appeal decision that had permitted plaintiff to pursue a FEHA claim in such circumstances. See Swartzendruber v. City of San Diego, 3 Cal. App. 4th 896 (1992).

However, the Superior Court should not have dismissed the Title VII claim. The United States Supreme Court has ruled that unreviewed state agency findings may not bar Title VII claims. University of Tennessee v. Elliott, 478 U.S. 788 (1986). Although Johnson asked the Superior Court to review the personnel board decision, it never reached the merits. Therefore, there was no effective review.

Johnson v. City of Loma Linda, 1998 WL 634785 (Cal. Ct. App. Sep. 15, 1998).

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Ninth Circuit extends intent to commit harm element of substantive due process to shooting cases

The Ninth Circuit has applied the Supreme Court's recent high speed police chase decision to a police shooting case. Since plaintiffs could not prove that the officer who fired the fatal shot intended to harm their decedent, they could not pursue a substantive due process claim.

When two Las Vegas police officers responded to a report of a fight at a bar, they discovered a gunfight under way in the parking lot. They ordered one shooter to stop firing, but he did not. The officers fired at the shooter, who fell and crawled away. Later, the officers discovered Damon Douglas lying wounded near the area where the shooter had fallen. Douglas later died from his wounds.

Douglas's heirs and relatives brought an action under 42 U.S.C. section 1983. They alleged that the officers unlawfully shot Douglas by mistake, and then lied about their actions at a coroner's inquest. Plaintiffs had no standing to assert any claims that belonged to Douglas, because Nevada law only authorized the decedent's legal representative to bring survival claims. They could pursue claims for deprivation of their own liberty interests arising out of their relationship with Douglas.

In County of Sacramento v. Lewis, 118 S.Ct. 1708 (1998), the Supreme Court ruled that plaintiffs could not recover for a death that resulted from a high speed police chase without proof that defendants had a purpose to cause harm unrelated to any legitimate law enforcement objective. The same standard applied in this case. Like the defendants in County of Sacramento, the Las Vegas police officers had to act decisively without the luxury of the necessary time to consider fully the potential consequences of their conduct.

Moreland v. Las Vegas Metropolitan Police Dep't, 1998 WL 652135 (9th Cir. Sep. 24, 1998).

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Discrimination based on tribal affiliation violates Title VII

The Ninth Circuit has ruled that a private employer's preference for one Indian tribe over another constitutes unlawful discrimination based on national origin. The preference was not saved by Title VII's Indian preference exemption.

The Salt River generating station is less than three miles from the Navajo Reservation in Arizona. Harold Dawavendewa could not get a job there, allegedly because he was a Hopi, and not a Navajo. Since the Hopi tribe was at least at one time recognized as a distinct nation, that constituted national origin discrimination.

Title VII provides an exemption for businesses near Indian reservations that give preferential treatment to any individual because he is an Indian living on or near a reservation. That exemption does not extend to a practice that prefers one tribe over another. The ruling conforms with a 1988 Policy Statement by the EEOC on the subject.

Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist., 1998 WL 605282 (9th Cir. Sep. 14, 1998).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Condon v. McHenry (In re Estate of Condon) (September 1998 issue), petition for review filed (Sep. 8, 1998).

Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery (August 1998 issue), now reported at 150 F.3d 1042 (9th Cir. 1998).

Nunez v. City of Los Angeles (July 1998 issue), now reported at 147 F.3d 867 (9th Cir. 1998).

Ortega v. Pajaro Valley Unified Sch. Dist. (July 1998 issue), review denied (Sep. 2, 1998).

People v. Johnson (May 1998 issue), petition for certiorari filed (Aug. 17, 1998).

Quelimane v. Stewart Title Guar. Co. (September 1998 issue), modified (Sep. 23, 1998), now reported at 19 Cal. 4th 26 (1998).

Reno v. Baird (August 1998 issue), now reported at 18 Cal. 4th 640 (1998).

Shulman v. Group W Prods., Inc. (July 1998 issue), rehearing denied (Jul. 29, 1998).

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