*1 Third Dist. Jan. C0 13344. 1994.] [No. ANGELL, Plaintiff and
LELAND Appellant, TRACTOR, INC., Defendant and
PETERSON Respondent.
Counsel
John Minoletti for Plaintiff and Appellant. Eric for Defendant and Miller & and P. Hoyt, Angstadt Angstadt Respondent.
Opinion for an NICHOLSON, the exclusive Is workers’compensation J. arising on a physical handicap terminated based employee discriminatorily discrimination based from a work-related it is because We conclude injury? included explicitly on a work-related a risk physical handicap 132a; Code, (Lab. see also Gantt the compensation bargain. § Insurance 1 Cal.4th Sentry Cal.Rptr.2d 680], therein.) P.2d and cases cited
Summary Facts and Procedure Tractor, Peterson Leland was Angell Appellant employed respondent Inc., 1982, 1984, heart he suffered attacks 1978. beginning January as On received workers’ benefits a result. Tractor him. Peterson terminated letter from
After with and to sue filing complaint receiving right Department of Fair sued Employment Housing Angell (Department), in tort Fair Peterson Tractor for violation of the Housing Employment (FEHA) Act and for fundamental termination violation of wrongful public He due to on termination was discrimination based his policy. alleged work-related heart condition.1
Peterson Tractor moved The trial court found for summary judgment. Angelí’s evidence established discrimination based on his heart sufficiently However, citing condition. Pickrel v. General Co. Telephone 878], causes the court held tort Angell’s action were the exclusive of the workers’ preempted by remedy provisions *5 favor, law. The court entered in Peterson Tractor’s judgment and We affirm. Angell appeals.
Discussion I Review Standard of standard in Peterson Tractor us to an abuse of discretion urges apply However, an standard abuse of discretion reviewing summary judgment. 1 alleged Angell’s complaint also of action for breach contract and covenant of causes of action), (first action), (third good dealing cause of declaratory faith and fair cause of relief (fifth action), negligent intentional intentional and infliction of emotional distress cause of action), (sixth and relationship and with of civil negligent employment interference cause (seventh action). the United States During cause of a brief removal of this case to conspiracy California, granted on the summary judgment the Eastern was District Court for District of and good and the of faith fair alleging first cause of action breach of contract covenant court, remaining judgment granted as to all summary remand to the was dealing. Upon state action, action) (second and termination in including the FEHA cause of causes of violation of action). (fourth judgment, appeal cause of public policy violation of fundamental On causes of action. Angell as to the second and fourth only summary judgment takes issue with
986 (Davis the correct standard is review. v. inappropriate; independent Gaschler (1992) 679]; Saldana 11 1396 Cal.App.4th Cal.Rptr.2d [14 v. Globe-Weis Systems Co. 1511-1515 385].) The to review standard only exception independent when we review a trial applies court’s exercise of discretion as allowed by 437c, (e). Code of Civil Procedure section all subdivision Under other circumstances, it is incorrect an of legally procedurally abuse apply (Schrader Scott discretion standard. v. Cal.App.4th Thus, 433].) we must determine whether Peterson Cal.Rptr.2d independently (Davis Tractor established could not as a matter of law. Angell prevail Gaschler, Cal.App.4th II Foundation Causes Action Legal Angelí’s A. The FEHA Cause Action
The FEHA declares it is the of this state to individ- public policy protect uals from discrimination in matters on the basis of employment physical Code, (Gov. 12920.)2 The makes it other statute handicap, among things. § an unlawful to terminate a based on physical employment practice person under circumstances not to this case.3 handicap except specified applicable Code, (Gov. 12940.)4 § ”
“ defined the FEHA at the time of as ‘Physical handicap,’ termination, or or sight, hearing, speech, “includes Angell’s impairment stated, Government Code section Angell’s 2At the time of termination part: hereby necessary protect public policy “It is declared as the of this state that it is obtain, seek, safeguard right opportunity persons of all and hold race, creed, color, religious on account of national abridgement without discrimination or status, sex, condition, age. origin, ancestry, physical handicap, medical marital discriminating *6 recognized denying employment opportunity “It is that the of practice unrest, deprives and the the for reasons foments domestic strife terms of such advance, substantially capacities development state of the fullest utilization of its for general.” public and the in adversely employees, employers, affects the interest of discrimination, any, justified under the statute. claim the if was 3Peterson Tractor makes no stated, termination, part: in Angell’s Code section 12940 4At the time of Government occupational fide upon based a bona employment practice, “It be an unlawful unless shall or, by the security regulations established upon applicable where qualification, except based the of California: United States or State race, creed, color, origin, ancestry, “(a) religious national of the employer, For an because condition, status, hire or any person, to refuse to marital or sex of handicap, medical physical leading training to person program for a person or to refuse to select employ training employment or from discharge person or to or to bar employment, compensation or in against person in leading employment, or to discriminate program to terms, privileges employment.” or conditions
987 or or loss of function because of amputation impairment ability physical coordination, educa which health requires special other any impairment However, Code, 12926, this list (h).) (Gov. tion or related subd. services.” § condi is any physical is not restrictive. handicap” More broadly, “physical “ tion, unusu ‘that makes achievement disabling, whether or not presently ’ ” Fair & (American Employment Housing difficult. National Ins. Co. v. ally 345, 1151].) 603, P.2d Cal.Rptr. Com. 32 Cal.3d 609 [186 after the last heart attack to return to work had a full release Although Angell duties, heart condition his and was able his employment fully perform (See the FEHA. id. at pp. as used in handicap” falls within “physical 609-610.) FEHA, with the file a complaint an aggrieved person may
Under Code, not to (Gov. 12960.) If the decides prose- Department Department. § of the filing within 150 after days cute the case or does not take action letter which to sue right it must give aggrieved person complaint, Code, (Gov. the claim. file a civil suit based on authorizes the person dis- violated the FEHA (b).) Peterson Tractor Claiming subd. § condition, fol- Angell heart him because of his criminatorily terminating Peterson against filed this suit this statutory ultimately lowed procedure Tractor. Termination in Violation The Action Wrongful
B. Cause Policy Fundamental Public in termination wrongful a cause of action for also stated
Angell is grounded cause of action fundamental This policy. violation of public (1980) Cal.3d 167 (See Atlantic Co. Tameny common law. v. Richfield 314].) In Tameny, P.2d A.L.R.4th Cal.Rptr. which violates termination in tort lies for any Court held an action Supreme refined Court later 177.) The (Id. at Supreme fundamental public policy. which termination include a of “fundamental public policy” the definition to the benefit which inures and affects a duty policy “is against public . . . or employee. rather than to a at large particular public (Foley . . . .” must be alleged aof basic public policy [Disparagement (1988) 47 Cal.3d 669 [254 Data Corp. Interactive grounded also must be 373], original.) public policy italics P.2d Insurance, v. Sentry or constitutional provision. some statutory {Gantt based in statute of action is FEHA cause Although 1 Cal.4th *7 law, both rely they the common action is based on cause of Tameny and Code, 12920.) (Gov. § in the FEHA. on the stated public policy III Workers’ Remedies Applicability Compensation termination also rise a claim workers’ under the Angelí’s gives law because his heart condition was work related. Labor Code compensation section 132a declares it is of this state that there should not be “policy in discrimination workers who are the course against injured scope 1986, At the time in Labor Code their termination employment.” Angell’s 132a, (1), or subdivision stated: who “Any employer discharges, section threatens to or in manner discriminates discharge, any against any employee her intention to file an because he or she has filed or made known his or board, the employee with or because adjudication appeals application award, settlement, received a of a misdemeanor has rating, guilty one-half, but in no event shall be increased by employee’s compensation ($10,000), more than ten thousand dollars with costs together expenses ($250). shall not in excess of two hundred dollars such fifty Any employee work and reimbursement for lost wages also be entitled to reinstatement benefits caused the acts of the employer.” 132a, face, against only remedy
Labor Code section on its provides a worker’s use of the workers’ who retaliate for employers However, lan Court has the broad interpreted policy system. Supreme the increased workers’ compensation of section 132a to provide guage based an remedies of section 132a for discrimination any against employee Bd. (Judson Corp. Comp.Appeals on a work-related Steel Workers’ injury. 564].) 586 P.2d (Judson) (1978) 22 Cal.Rptr. Cal.3d [150 Thus, terminated evidence he was unlawfully as true taking Angelí’s condition, was in violation heart the termination because of his work-related are available. and the remedies section 132a provided of section 132a to the be subject from an termination may resulting employee’s Injuries (See law. Lab. workers’ exclusive remedy provisions Fund Code, 3602; Ins. Compensation v. State B & E Convalescent Center § 894]; Convalescent) (1992) Cal.Rptr.2d (B E 8 Cal.App.4th & Products, (1982) 131 Cal.App.3d Price Inc. v. G. T. Portillo Portillo, retaliated 291].) against she filed her because terminating 132a by of Labor Code section violation 286.) The court held (131 claim. action because cause of not maintain a Tameny worker could aggrieved therefore, and, exclusive. remedies were available workers’ compensation (Id. at p.
The Court of held the workers’ Appeal, a work- resulting based on a for discrimination physical handicap *8 Co., (Pickrel v. Telephone related is exclusive. General injury here, Pickrel, was termi In 1063-1064.) at as employee Cal.App.3d pp. She sued nated because of work-related physical handicap. (Id. 1060.) at Acknowledging holding
for violation of the FEHA. p. because of a work-related that all discrimination an against Judson noting exclusivity is forbidden Labor Code section 132a injury remedies for violation of section 132a as stated the workers’ compensation Portillo, the Court affirmed the trial court’s dismissal of the of Appeal at (205 on workers’ based compensation exclusivity.5 complaint law 1064.) Pickrel is the workers’ holding precedent case; however, the exclusive in this intervening develop provides it ments in the law workers’ make concerning exclusivity analysis. to continue our necessary
IV in the Law Pickrel Developments After 1990, stated, In the California Court “[Disabling injuries, Supreme mental, are whether or from termination of arising physical to the within the of workers’ coverage subject generally exclusive unless the comes within an remedy provisions, discharge express or the results from risks implied statutory exception discharge (Shoemaker Myers deemed not to be within the compensation bargain.” 1, 303, II), (Shoemaker 52 Cal.3d 801 P.2d Cal.Rptr. 1054] II, added.) italics a state terminated an employee Shoemaker agency (Id. violation of the whistleblower statute. at The court concluded was not the exclusive although remedy, compensation, potential (Id. 20-23.) at remedy. pp. cases, held II and other the Court of has Appeal on Shoemaker
Relying Tameny on the FEHA and terminations rise to causes action based giving and, therefore, are not subject are outside the similarly bargain actions These cases involve employers’ to the exclusive remedy provisions. in stat policies grounded which violate substantial and fundamental public 91-92; Convalescent, (See B E Shoemaker pp. ute. & supra, Cal.App.4th 1407, (Shoemaker (1992) 2 1417 Cal.Rptr.2d v. Myers Cal.App.4th 203] III).) Bolinger & Hartman v. Mathis attempted argue to cite and parties inappropriately 5Both Court Hartman with Pickrel. Supreme The
Furniture Co. disagreed (Cal.App.) F013070. review as dismissed granted review of Hartman on August April and on Appeal opinion. granted. publication did not order of the Court improvidently court Court, Thus, during 29.4(c).) has been Hartman is not (Cal. and never published, rule Rules of 977; Morgan Court, rule (Cal. may rely this We not on Rules of pendency appeal. it. 1].) Hill Dist. v. Amoroso 1085 [252 School 204 Cal.App.3d Unified *9 990 II, whether the this court considered employ
On remand from Shoemaker of cause of action was by exclusivity provisions ee’s Tameny preempted law, not decided by Supreme a question the workers’ compensation III, (Shoemaker 2 1417- supra, Cal.App.4th pp. II. Court in Shoemaker claim con 1419.) Tameny a viable requires employer We stated: “Because interest, a claim lies outside the such a substantial public duct implicating Protection v. Fair Oaks Fire As explained bargain. [Cole compensation 743)], (233 compen P.2d (1987) Cal.3d 148 729 Dist. 43 and tradeoff between the employer employee involves a sation bargain a wider of range damages potentially gives up whereby employee certain swift and relatively payment in tort in exchange available where an fault. But employer’s without the necessity proving benefits interests be of substantial public policy, considerations conduct implicates are involved. These interests are and those of the employer yond and therefore must be accom law workers’ by compensation not protected conclude Tameny We thus bargain. modated outside compensation of the workers’ the exclusive remedy provisions is not by claim preempted 1418-1419.) (Id. at law.” pp. is not of action Later, cause Tameny Court also held the Supreme Insurance, (Gantt Sentry v. exclusivity. workers’ preempted the invitation decline declared: The court “[W]e 1 Cal.4th at supra, in violation of discharged employees view that long-held from our to retreat their employers an action against bring fundamental policy may public (Ibid.) in tort.” sounding action, II, causes of held certain several cases
Even before Shoemaker discrimination, on the FEHA based race gender those including alleging (See, Men- e.g., exclusivity. from workers’ compensation are also exempted [gender Cal.Rptr. 319] 79 Cal.App.3d Inc. Raley’s, inga Dist. discrimination]; Community College Angeles v. Los Jones decided discrimination].) In a case Cal.Rptr. 37] [race II and decided II, Shoemaker applied the Court Appeal after Shoemaker and race based on age, gender, of the FEHA for violations of action causes E (B & law. the workers’ not are preempted discrimination stated: 91-92.) The court Convalescent, at pp. supra, Cal.App.4th fall race discrimination] age, gender, action [alleging causes of “[T]he violate held to have been which of actions those categories within squarely state in important delineated and substantial public policies fundamental coverage the exclusive from statutes, excepted which are consequently (Ibid.) workers’ compensation.” provisions law is not Thus, workers’ have held the the cases com- which, in addition potential for actions exclusive remedy FEHA under the of action claims, to causes rise also give pensation common, Tameny. for these underlying exceptions rationale to workers’ “ lies in the determination are compensation exclusivity not ‘a they risk ’ ” (Gantt, within encompassed compensation bargain. 1101.) Gantt, 1 Cal.4th at Court borrowed Supreme language its to illustrate this opinion Foley “Just as the principle: individual *10 employment agreement not include terms which violate may fundamental [citation], so the more public policy cannot general ‘compensation bargain’ conduct, discrimination, such as sexual racial encompass or ‘obnoxious to ” the interests the state to and sound contrary public policy morality.’ (Ibid.)
V “Compensation by Bargain Intent Determining Legislative Defined
The term to “compensation was first used describe the bargain” compromise liability between the rights employer employee by the Supreme Court in Cole v. Fair Fire Dist. Oaks Protection Cal.3d 729 P.2d court did not define The 743]. However, II, term in the Cole. in Shoemaker the court described the “com as a to which the pensation bargain” legal theory “pursuant assumes for industrial or without liability personal injury death to regard fault for limitations on amount exchange the of that The em liability. is afforded swift ployee relatively and certain of benefits to cure payment but, relieve the effects of industrial without fault prove to injury having wider exchange, gives available up range damages in tort.” potentially (52 16.) Cal.3d at p.
Thus, the which is a creation includes compensation bargain legislative for conduct which remedies are the workers’ com- provided exclusively by law. is bargain What included in the is a pensation compensation matter of will, only did not intend to include legislative by finding Legislature set of circumstances within the can the specific bargain compensation courts tort grant standard remedies because function the exclu- “[t]he sive to the theoretical remedy provisions give efficacy ‘compensation ” II, (Shoemaker 16.) bargain.’ at supra, Cal.3d p. The Shoemaker II court found the intended to Legislature specifically tort law for remedies in addition to the workers’ viola- grant compensation (52 22.) tion of the Cal.3d at court stated whistleblower statute. under the caused termination are workers’ injuries by generally compensable law occur in the normal course of they employment. because However, the did not necessarily preclude exclusive remedy provisions under the whistleblower statue if the conduct
recovery was not employer’s or, words, included within the in other if bargain intended to additional remedies. at Legislature provide {Id. intended to remedies in addition to determining grant law, accorded II those workers’ Shoemaker court First, used two tools of the court used the canon statutory interpretation. which courts to effect give more statute over the requires specific statute when two statutes are in It found the general conflict. law because it applied only generally applied injuries termination, while the whistleblower statute arising any applied specif because it ically to a limited class of provided employees II, (Shoemaker caused abuse of official damages Cal.3d power. Second, 21-22.) court used canon which the courts to pp. requires *11 the which than effect to a statute rather adopt gives rendering interpretation it The court concluded the whistleblower statute would be superfluous. if not to afford a in addition to those meaningless interpreted remedy (Id. 22.) afforded the workers’ law. compensation p. II court’s use of two tools for discerning Shoemaker interpretive intent is instructive. The court found it to determine
legislative necessary whether the intended the reme to remedies addition to Legislature grant available under make dies the workers’ law or intended to the compensation workers’ the law exclusive Our task is the compensation remedy. the same. We must determine whether the intended Legislature law to the exclusive for termi remedy discriminatory compensation provide nation based on a work-related or intended to or allow additional grant injury remedies. intent, however, ex the we must
Before determining Legislature’s the amine a view Court concerning scope further Supreme Cole, in which the In the court identified instances compensation bargain. law do not exclusive of the workers’ remedy provisions compensation apply to those included even when there is no statute remedies in addition granting that have recovery in the workers’ law: “The cases permitted an a in tort . . . have involved conduct of having ‘questionable’ employer an which did not occur while the to the injury relationship employment, which incidental was service performing where the of the or conduct would not be viewed as a risk employment, Prod (Johns-Manville insurer out of their roles. stepped proper 465, [(1980)] 27 477-478 Cal.Rptr. ucts v. Court Cal.3d Corp. Superior [165 948, 858, 758]; v. Truck Insurance Exchange 612 P.2d A.L.R.4th Unruh 9 1063]; v. (1972) 7 630 P.2d Magliulo Cal.3d 498 Cal.Rptr. [102 621]; Court Superior Ramey Cal.App.3d Corp. Petroleum P.2d General Dist., 787].)” (Cole 161.) v. Fair Fire Oaks Protection 43 Cal.3d at supra, Each cited in Cole found did not case this from passage Legislature intend to include the situation within the exclusive provi- specific sions.6 in the II cited cases included Shoemaker this from Cole and the passage “ defined cases ‘as not stem- the conduct in those
passage collectively bar- from risk within the ming reasonably encompassed ” Hence, (52 from risk Cal.3d at this “not gain.’ phrase, stemming within the risks bargain,” refers encompassed did not intend include bargain. Gantt, 1 Cal.4th at Court used page again part Supreme and the from II. It Cole added definition Shoemaker passage concluded conduct action rise to cause of giving wrongful termination violation of fundamental was “most public policy assuredly not a ‘normal’ risk of the employment subject to the exclusive relationship (Ibid.) of the Labor II remedy provisions though Code.” Even Shoemaker not Gantt did frame the issue—whether the exclusive remedy provisions to the injuries caused conduct—in apply terms of determin- particular *12 intent, their cited to and ing legislative discussions used from cases language Therefore, which were based on intent. the of the clearly legislative scope creation, is a and a “compensation bargain” legislative determination of whether a results from within “discharge risks deemed not to be II, (Shoemaker 7) the Cal.3d at is an compensation bargain” supra, 52 exercise in legislative intent. ascertaining 465, Corp. (1980) 6In Superior Johns-Manville Products v. Court 27 Cal.3d 478 [165 858, 948), Cal.Rptr. 612 the compensation P.2d court found workers’ was exclusive not the injuries remedy by employer’s for an notify caused failure to the health of known so, doing Legislature In the enacting risks. court said it could “believe that in not the the compensation flagrant worker’s law liability.” intended to insulate such conduct from tort 616, (Ibid.) (1972) Exchange Cal.Rptr. v. Truck Unruh Insurance 7 Cal.3d 630 [102 1063], the compensation beyond 498 P.2d court a concluded workers’ insurer’s conduct went contemplated by that compensation Allowing the workers’ law. a tort cause of action to one, proceed, investigation, the court stated: “A deceitful in place of an honest frustrates Likewise, objectives (Ibid.) laudable of the compensation law.” the court in workers’] Superior 621],
Magliulo Cal.Rptr. Cal.App.3d v. Court 47 based its [121 holding Legislature’s objectives exclusivity intent concerning scope on provisions: Legislature provisions did not in 4553 to intend the now found section be “[T]he Finally, a substitute for relief which could be for an intentional assault.” afforded 787], Corp. (1959) Ramey Cal.App.2d 402-403 P.2d v. Petroleum [343 General by remedy injuries for compensation court held workers’ was not the exclusive caused “Surely, fraud employer’s never that an employer’s fraud. It stated: intended (Ibid.) employment.” was a risk VI Injuries Intent Remedies Caused Legislative Concerning for Physical Handicap Discrimination Based on a Work-related Pickrel, which held the workers’ law Neither pro for based on a vides exclusive termination work-related remedy physical nor cases that have relied on Pickrel have decided whether the handicap, “ discrimination based on a could be considered ‘a risk physical handicap ” (Gantt, within the compensation bargain.’ reasonably encompassed 1 Cal.4th at The Pickrel court based its conclusion on the solely fact Labor Code section 132a for discrimina specifically provides remedy tion based on a work-related on the physical handicap. Relying holding Stores, Pickrel, v. Safeway Fortner Inc. 547-548 409], the same to hold workers’ reasoning compen applied for an discrimination based sation is the exclusive remedy employer’s Studios, (1992) 10 Denney City a work-related Inc. injury. on Universal 170], followed Pickrel. likewise Cal.App.4th Cal.Rptr.2d Pickrel, Fortner, Denney compensa made no attempt apply exclusivity. tion to the of workers’ compensation bargain theory problem Instead, because it was found workers’ exclusive simply they available. law cases noted the workers’ correctly provides
These discrimination based on a caused an employer’s remedy injuries II, Nonetheless, as stated Shoemaker work-related physical handicap. whether the exclusive does not . . . resolve the issue determination “[t]his bar to all law act as a of the workers’ provisions have explained, from a As we arising discharge. causes of action ‘com- the fundamental are intended to effectuate and implement provisions scheme. the workers’ compensation said to underlie bargain’ pensation *13 conduct, of discharge whether in the form Where the is a result of injury otherwise, a bargain within the coming compensation not seen as reasonably 20.) we must (52 at Accordingly, civil action lie.” Cal.3d may p. separate Code section 132a to the intended Labor determine whether Legislature on a work-related for discrimination based the exclusive remedy provide injury. 132a, a remedy Labor Code section provided
The by adopting Legislature, (Judson a work-related injury. based on caused discrimination for injuries Bd., 667.) at The 22 Cal.3d p. Comp. Appeals supra, v. Workers’ Corp. Steel a worker against discriminates court declared: who Judson “[A]n the to of is subject payment in the course scope injured in increased section so compensation By provided interpreting [as 132a]. workers, 132a we section will not for only encourage compensation injured (Id. but also secure with the at workers’ laws.” compliance 668.) II, in law rem-
As stated Shoemaker the workers’ compensation provides for a edies sustained as result of termination under the injuries general remedies provisions granting injuries arising out of the normal course (52 However, 7.) at employment. Cal.3d termination based discriminatory on a work-related is injury in Labor Code section specifically proscribed a 132a and in II is afforded. Unlike the situation Shoemaker specific remedy where the court the the found statute controlled over whistleblower specific statute, workers’ a com- general we are faced with workers’ statute which on a discrimination based pensation proscribes specifically work-related for such discrimination. The injury provides FEHA, hand, on the general other is more because it all employ- proscribes ment discrimination based on a whether work-related or physical handicap, not.
Thus, the manifested its intent deal with form to this particular of discrimination in workers’ scheme. 132a, as reflected Labor
bargain, Code section to requires is, fault, discrimination, that prove employer’s unlike other aspects However, return, compensation system. employee’s compensation one-half, $10,000. increased by Given the to up Legislature’s intent include this form of in the discrimination we compensation system, conclude section over 132a controls the more FEHA and general Tameny remedies. addition, the Legislature’s treatment of discrimination based on specific
a work-related injury demonstrates determination form Legislature’s this discrimination is risk included compensation bargain. 132a, itself, Labor Code section shows the Legislature intended all actions under that section to be arising subject to the exclusive It remedy provisions. “The states: is vested with Compensation Appeals [Workers’ Board] full jurisdiction power, authority, try finally and determine all matters (Italics in this section review . . . specified subject only judicial .” added.) This That gives jurisdiction. board exclusive provision appeals the word “exclusive” does not in the is not appear provision significant gives because board provision appeals jurisdiction.7 full final Products, Inc., (Portillo v. G. T. Price 287- pp. *14 above, We stated recognize, as causes of action for other terminations of the the violation FEHA fundamental not barred by are public policy of argument 7Much the in the dissent relies on does not contain its the section 132a premise (See exclusivity provision. post, own opn., dis. is flawed premise at because Nonetheless, the Legislature specifically exclusive remedy provisions. termination within the of the this of discriminatory scope placed type “Workers’ law enforces an employer’s compensation bargain. in the workers for sustained injury disability to liability compensate of the fault of any party. course their employment, irrespective [Citation.] of discrimination, in the case except to combat It is not designed of . . . .” industrially injured employees who discriminate against employers added.) Inc., italics Raley’s, supra, v. (Meninga Cal.App.3d FEHA, con- Furthermore, Nothing “. . . in the Legislature provided: Civil of the deemed to tained in this shall be repeal any provisions part because state to discrimination Law or law this any relating Rights added.) (Gov. (a), italics . . . .” Code subd. disability . . . physical § Thus, relates to discrimi- affect the as it compensation bargain, an intent to is disclaimed. disability, nation based on physical to overcome is not sufficient a violation Establishing public policy law if the of the workers’ compensation the exclusive remedy provisions that elementary to is intended the provisions apply. Legislature “[I]t restrictions, expressly has absent constitutional Legislature power, (Valdes Cory law and statutes.” existing amend or both the common repeal 212].) 139 Cal.App.3d Products, Inc., at page T. Price In Portillo v. G. a need for and a reason there was public policy argued plaintiff termination. The court action for discriminatory a tort cause of support the answer to that has decided that Legislature answered: appears “[I]t Plaintiff argues Labor Code section 132a. enacting need by particular not her give enough insufficient because it does that the statute is effect should be addressed That argument not enough. it does punish on the very has spoken not to the court. The to the Legislature, i.e., be redressed.” shall of which wrong plaintiff complains how subject, (Ibid.) based discrimination whistleblowers and retaliation against
Unlike a work-related race, injury based on discrimination on gender, age, bargain. includes in the compensation the Legislature specifically conduct con Therefore, especially provision remedy provisions, the exclusive 132a, other remedy against bar any Code section tained in Labor employer. because of action causes Tameny both the FEHA result
This applies is not bargain within the compensation the conduct falls conclusion itself, all matters 132a, jurisdiction over full and final gives appeals board section injury. work-related employee’s on an discrimination based involving employer’s an *15 on the nature of the in tort cause of action or asserted the dependent right The of the proceeding. by is determined ascer- scope compensation bargain the conduct for which the intended to remedies taining Legislature provide within the the workers’ law. cannot exclusively We usurp of the power Legislature conduct as a risk not by labeling Gantt, (see 1101) in the bargain included Cal.4th supra, at if the Legislature expressly includes that conduct in the compensation bargain.
The compensation bargain is meant to and benefit both protect employee When conduct falls within employer. the both compensation bargain, employee are employer entitled the the protection benefit. Under case, circumstances of this the benefit of a employee reaps collecting possible increase in if compensation by violates percent employer Labor Code section 132a. The em- employer enjoys bar .against ployee’s claims in other forums by the effect of the exclusive provisions.8 conclusion, Angell’s causes action in for termination violation of the
FEHA and fundamental public are barred policy by the exclusive remedy provisions law. The board has full and appeals final remedies for jurisdiction grant which injuries may have been sus- tained due to the termination based on a physical handicap arising (Lab. Code, 132a.) work-related injury.9 §
Disposition The is affirmed. judgment J.,P.
Sparks, Acting concurred. RAYE, dissent. The “because I respectfully affirms discrimi- majority J. nation based on a work-related is a risk included physical handicap explicitly ante, in the at opn., compensation bargain.” (Maj. pp. 984-985.) are mistaken. They bargain 8The dissent section which concludes 132a is one-sided favor of 998.) Yet, (Dis. bargain opn., post, making
does not fit the compensation paradigm. judgment, recognize damage this fails to proven dissent under section 132a are increased one-half, $10,000. up large may compare While with some of the this increase not cases, damages Legislature’s awards in represents tortious discrimination it determination pro quo. appropriate quid prove on a must discrimination based handicap, work-related the employer pay damages. must increased conclusion, 9Given this we need not consider Peterson Tractor’s other contentions support judgment. *16 of workers’ bargain” a case about the mythical “compensation This is not claim, so, as a matter of would Were it equity, lore. plaintiff’s compensation view reflects bargain” Legislature’s unassailable. The “compensation be that underlies between and employers employees the basic understanding of (1990) in v. Myers court Shoemaker the workers compensation system. (Shoemaker II) P.2d explains 52 Cal.3d Cal.Rptr. 1054] [276 in conduct for a of liability greater range thus: the assumes bargain swift gains limitations on dollar exposure; employee for exchange in but fault having of without prove certain payment II, (Shoemaker supra, limits on amounts recoverable. must exchange accept 52 Cal.3d at p. within this do not fit Labor Code section 132a
The remedies provided by
132a,
must
Code section
the employee
Under Labor
metaphorical paradigm.
with a
that
dismissed employee
fault—it cannot be assumed
every
still prove
as a conse-
fired for that reason—and
was
handicap
work-related physical
must
And
still
yet
neither swift nor certain.
is
quence payment
isolation,
difficult
in
it is
recoverable. Viewed
limits on the amounts
accept
Even when considered as part
a more one-sided “bargain.”
to imagine
the Workers’ Compen-
established by
full
of rights
obligations
panoply
Act,
section 132a would be suspect.
which
sation
“bargain”
incorporates
of the Workers’
the exclusivity provisions
Nor does this case implicate
II, the basic “compensation
Act. As
in Shoemaker
explained
Compensation
which im
workers’
exclusivity provisions
and the
bargain,”
limited to
for
a term
relate to
“injury,”
the bargain,
plement
fundamental basis of
emotional
disabling
injury.
injury
“[T]he
physical
out of the course
sustained in and arising
is an injury
workers’ compensation
or death.’ . . .
injury
injury
‘personal physical
when the
of such industrial
only
cases
remedy provisions apply
exclusive
[T]he
italics in
(Shoemaker
at p.
52 Cal.3d
or death.”
injury
personal
omitted;
Community College
see also
v. Los Angeles
citations
Jones
original,
37].) In Livitsanos v.
806-7
Dist.
828 P.2d
1195]
The critical issue in this is case not whether the remedies extraordinary Labor provided by Code section 132a fall within the “compensation bargain” and the exclusivity provisions workers’ compensation laws—they do not. claim that clearly Any were provisions section 132a intended itself, to be exclusive must rest on a finding section independent exclusivity laws, provisions of was intended exclusive provide remedies for the conduct therein. proscribed There are reasons to the Legislature believe intended the remedies pro vided section 132a to be by exclusive. The observes that majority correctly Labor Code section 132a is a statute which a specific addresses narrow range of discriminatory conduct—discrimination based on work-related injuries. it should over the Arguably, prevail FEHA which all proscribes discrimination based on physical whether handicap, work-related not. One ask, Portillo, might did as the court in “If does not [section 132a] here, apply Products, have the statute why (Portillo at all?” v. G. T. Price (1982) 285, Inc. 131 291].) Cal.App.3d 289-290 There are Cal.Rptr. [182 also compelling policy reasons confine all employee-employer disputes a forum single and a single body of law. It statutory is also true that “. . . where a law, new one not right, existing common is created statute and a for statutory remedy is infringement thereof such provided, remedy is exclusive all others. (Orloff v. (1947) Los Angeles Club [Citations.]” Turf 110, Cal.2d 913].) 30 112 P.2d 171 A.L.R. [180 factors, however, Other a result. As noted compel contrary by major- Labor Code ity, section 132a does not embrace the here at expressly conduct issue; on its face the section for only provides wrongful discharge anof who seeks relief under the workers’ compensation system. The Court’s determination Supreme that section 132a created remedies for discrimination based on work-related on a declaration of injury premised (Judson contained policy 1972 amendments to section 132a. Corp. Steel 1000 (1978)
Workers’ Bd. 22 Cal.3d 667 Comp. Appeals Cal.Rptr. [150 564].) enacted, the FEHA had 586 P.2d 1972 not been and neither the Labor Code nor other statute the conduct for which any prohibited plaintiff now seeks redress. Court had an action By Supreme recognized 1972 for (Petermann tortious in violation of v. International discharge public policy 25], Brotherhood Teamsters P.2d v. Atlantic Tameny Co. 27 Cal.3d concept expanded Richfield 314]), A.L.R.4th no had P.2d case although Thus, to a for work-related in 1972 applied principle firing injury. section default the exclusive remedies termi- wrongful 132a for provided such nation on work related is whether premised injury. question remedies remain exclusive in of the later enactment of light protections face of now embodied in the FEHA and in the physically handicapped *18 further evolution of the tort of wrongful discharge. affirmative, that a would in the effectively holding majority respond in a
statute drawn to address a form of discrimination narrowly specific must of workers for work related particular setting, discharge injuries, remain the exclusive even as the statutes legislature passes who broader Workers greater formerly scope providing arguably protections. far than the are thus denied general enjoyed greater protection populace that the benefits available to It is no answer public generally. suggest have amended could Labor Code section 132a legislature easily provide FEHA; the remedies there is no indication in the provided by language be the FEHA that its were not to available to workers whose protections sug- were and no section 132a physical handicaps job-related, language are A that its remedies were to be exclusive. The outcomes anomalous. gests from suffered resulting injuries worker who is fired for a physical handicap FEHA, under the while a worker while on a vacation seek relief skiing may is fired because of suffered in the service of the worker’s employer injuries section restricted to remedies 132a. provided by Code the remedies Labor provided by Under majority’s reasoning, later enacted statutes expressly will remain exclusive unless section 132a new in enacting otherwise. This a burden on provide places which, remedies laws and ferret out statutory remedies to survey existing exclusive, construed as such. made could be judicially not though expressly reversal, divine “judicial with the Legislature attempting This curious role intent,” is inappropriate. discharge a cause of action for tortious
Plaintiff’s effort to craft of his failure to identify because violation of public policy problematic 132a, both FEHA and Labor Code section of that source policy beyond of which (Cf. remedies for the violation. v. A. L. provide policy Strauss Randall 520].) Co. Nonethe- less, he states viable claim under the FEHA for and other backpay damages economic from resulting defendant’s acts. Section discriminatory 132a does not foreclose to FEHA resort remedies. While only plaintiff’s resort for or emotional his physical disabling injuries wrong- resulting ful termination was under the workers’ he has a compensation system, choice with to economic respect he reme- damages: may the limited pursue cumbersome, dies offered section 132a the more but more expansive, remedies available under the FEHA.
Appellant’s review the petition Court Supreme was denied May J., Mosk, Kennard, J., Arabian, 1994. J., were of the that the opinion petition should be granted.