CECILIA DIEGO, Plaintiff and Appellant, v. PILGRIM UNITED CHURCH OF CHRIST, Defendant and Respondent.
No. D063734
Fourth Dist., Div. One.
Nov. 21, 2014
231 Cal. App. 4th 913
Law Office of Joshua D. Gruenberg, Joshua D. Gruenberg, Susan M. Swan; Boudreau Williams and Jon R. Williams for Plaintiff and Appellant.
Daley & Heft, Lee H. Roistacher and Robert W. Brockman, Jr., for Defendant and Respondent.
OPINION
IRION, J.—Cecilia Diego sued her former employer Pilgrim United Church of Christ (Pilgrim United) for wrongful termination in violation of public policy. Diego alleged she was terminated from her employment as assistant director of Pilgrim United‘s preschool as a result of the director‘s mistaken belief that she had lodged a complaint with the Community Care Licensing Division of the State Department of Social Services1 (Licensing), which resulted in an unannounced inspection of the preschool.
The trial court granted summary judgment in favor of Pilgrim United on the basis that, because Diego in fact had not madе a complaint to Licensing (or otherwise engaged in activity associated with protected disclosure of alleged wrongdoing), her termination of employment did not violate public policy as a matter of law. We disagree and reverse that part of the judgment directed to Diego‘s claim for wrongful termination in violation of public policy and remand with instructions that the court enter an order denying Pilgrim United‘s motion.2
At the onset, we stress the limited issue that is presented and decided in part II.A., post: Does California public policy preclude Pilgrim United from
I.
FACTUAL AND PROCEDURAL BACKGROUND3
Pilgrim United hired Diego as an at-will employee in or around 2002. Ultimately she became a “mentor teacher,” and her supervisor, Anne Lewis, who was the director of the preschool, considered her the assistant director.
At some point shortly before August 19, 2011,4 another of Pilgrim United‘s employees, Cynthia Saldana, told Diego that she (Saldana) had called Licensing anonymously to complain about (1) a foul odor in one of the classrooms, and (2) inadequate sand beneath the playground equipment.5 On August 19, representatives from Licensing made an unannounced inspection at the preschool in response to the anonymous report. Licensing neither found a violation nor issued a citation.
According to Diego, during a telephone conversation on August 23, Lewis discussed the anonymous report to and visit from Licensing. Among other comments, Lеwis asked Diego why she was “‘doing this‘” and whether Diego wanted Lewis “‘gone,‘” explaining that people had been telling her “‘things.‘” Lewis stated that “‘at this point, the State is going to take over [the preschool].‘” In response to Diego‘s inquiry whether Lewis was referring to Licensing, Lewis explained that “‘they want to know why [L]icensing has received more violations in the last 24 months more than in the history of Pilgrim [United‘s preschool,]’ or words to that effect.” Based on this conversation, Diego understood that Lewis was angry with her for having anonymously communicated the report to Licensing that prompted the unannounced inspection four days earlier.
The meeting never took place. On August 26, Lewis called and left a message for Diego; when Diego returned the call, Lewis told her she was fired. Diego testified that she believed Pilgrim United terminated her employment because of the anonymous report to Licensing.
Pilgrim United disputes much of the foregoing evidence, in particular the substance of the August 23 telephone conversation. Pilgrim United contends it discharged Diego due to insubordination, never having thought that Diego made the anonymous report to Licensing.
In October, Diego filed the underlying complaint against Pilgrim United. As relevant to this appeal, Diego alleged that Pilgrim United‘s termination of her employment was retaliatory in violation of California public policy. Pilgrim United answered the complaint; the parties conducted discovery; and Pilgrim United filed a motion for summary judgment or, in the alternative, for summary adjudication.
In its motion, Pilgrim United argued that it was entitled to judgment as a matter of law on the basis that Diego could not establish an essential element of her claim for wrongful termination in violation of public policy, namely, that the termination of her employment violated a policy articulated by constitutional or statutory authority. More specifically, Pilgrim United posited that no constitutional or statutory authority extended whistleblower protections to employees merely believed to have engaged in protected activity.
In opposition to the motiоn, Diego argued that Pilgrim United‘s termination of her employment violated the public policy that protected an employee for “perceived whistleblower” activity—in this case, reporting violations of regulations necessary to carry out the
In reply to the opposition, Pilgrim United argued that Diego‘s discharge could not have violated such a public policy, because Diego did not engage in any conduct in furtherance of protecting children‘s safety or education and there is no statutory protection for persons mistakenly perceived to be whistleblowers.
The trial court granted Pilgrim United‘s motion, ruling in relevant part that Diego did not meet her burden of establishing a significantly important public
The court entered an amended judgment from which Diego timely appealed. (
II.
DISCUSSION
A. Wrongful Termination in Violation of Public Policy
Diego contends she adequately presented a cause of action for wrongful termination in violation of public policy against Pilgrim United. We agree.
In California the Legislature has determined that employment without a specified term “may be terminated at the will of either party.” (
As applicable here, Diego‘s claim for wrongful discharge in violation of public policy requires proof that (1) she was employed by Pilgrim United, (2) Pilgrim United discharged her, (3) a violation of public policy substantially motivated the discharge, and (4) the discharge caused harm to her. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; Judicial Council of Cal., Civ. Jury Instns. (2014) CACI No. 2430.) The legal issue in this appeal involves the third element, namely, whether California has a public policy that was violated when Pilgrim United terminated Diego‘s employment.
To this end, Diego “must show that the important public interests [she] seek[s] to protect are ‘tethered to fundamental policies‘” in the statute(s) on
“Whether the policy upon which a wrongful termination claim is based is sufficiently fundamental, well-established and tethered to a statutory or constitutional provision to support liability is a legal question that we review de novo.”6 (Carter, supra, 148 Cal.App.4th at p. 929.) Because “the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state,” we proceed “‘with great care and due deference to the judgment of the legislative branch’ in ordеr to avoid judicial policymaking.” (Green, supra, 19 Cal.4th at pp. 71, 76; see Carter, at p. 931, fn. 9; Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104 (Silo).)
The statutory provisions on which Diego relies include the pre-2014 version of
1. Public policy is delineated in former section 1102.5(b)
By tethering public policy to a specific statutory provision, we “avoid judicial interference with the legislative domain.” (Stevenson, supra, 16 Cal.4th at p. 889; see Carter, supra, 148 Cal.App.4th at p. 929.)
Although “‘“[t]he term ‘public policy’ is inherently not subject to precise definition,“‘” our Supreme Court has given us guidance in the context of a wrongful termination of employment in violation of public policy: Public policy is “‘“‘that principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.‘“‘” (Green, supra, 19 Cal.4th at p. 76, quoting Safeway Stores v. Retail Clerks etc. Assn. (1953) 41 Cal.2d 567, 575 (Safeway Stores).)10
Former section 1102.5(b) precludes an employer from retaliating against an employee for disclosing a violation of state regulations to a governmental agency. The 2003 amendments to Labor Code former section
Given that the public policy behind former section 1102.5(b) is to encourage employees to report suspected violations of law, as applicable here we must determine whether that policy applies to a terminated employee who was merely perceived by the employer to be a whistleblower. We believe it does.
Although we are not aware of authority under former section 1102.5(b), we find guidance in Lujan v. Minagar (2004) 124 Cal.App.4th 1040 (Lujan), which recognized a decade ago that terminating a perceived whistleblower will discourage employees from reporting. In Lujan, the court ruled that section 6310 protects employees against preemptive retaliation by an employer that believes an employee might file a workplace safety complaint. (Lujan, at p. 1046; see fn. 8, ante.) Similar to the public policy delineated in former section 1102.5(b), the legislative intent associated with section 6310‘s proscription against retaliation includes “encourag[ing] such [workplace safety] complaints.” (Lujan, at p. 1045.) The Lujan court reasoned that “firing workers who are suspected of planning to file workplace safety complaints can effectively discourage the filing of those complaints.” (Ibid., italics added.) The result should be no different for employees suspected of actually filing a complaint. Applying Lujan‘s reasoning here, therefore, if an employee “can effectively [be] discourage[d]” (ibid.) from reporting a violation by the employer‘s mere belief a report might be made or has been made, then the public policy delineated in former section 1102.5(b) will be violated. Stated differently, when the termination of employment is based on the employer‘s mistaken belief that the employee might disclose or has disclosed a violation of state regulations to a governmental
Accordingly, Pilgrim United‘s alleged actions in discharging Diego are sufficiently tethered to the policy delineated in former section 1102.5(b).12
Pilgrim United argues that Lujan is inаpplicable because it ignores rules of statutory construction in analyzing the public policy associated with section 6310. Indeed, rather than focusing on public policy, Pilgrim United misdirects much of its presentation to statutory construction. More specifically, Pilgrim United relies on the plain and unambiguous language of former section 1102.5(b), cautioning against judicially extending the statutory protections of former section 1102.5(b). However, Diego is not asserting a statutory claim under former section 1102.5(b). We have looked to the statute to determine the public policy of the state in our effort to resolve whether, as a matter of law, Diego‘s claim is carefully tethered to the fundamental policies delineated in former section 1102.5(b) (Green, supra, 19 Cal.4th at p. 71; Gantt, supra, 1 Cal.4th at p. 1095)—not to determine whether she has alleged the elements of a statutory claim under former section 1102.5(b).13
In a related contention, Pilgrim United quotes from Stevenson, supra, 16 Cal.4th at page 904, and argues that a common law claim for wrongful termination in violation of public policy “‘is subject to statutory limitations affecting the nature and scope of the statutory prohibition.‘” However, the fact that former section 1102.5(b) does not expressly protect perceived whistleblowers is not the type of statutory limitation the Stevenson court considered. There, our Supreme Court was referring to and distinguishing its earlier opinion in Jennings, supra, 8 Cal.4th 121. (Stevenson, at p. 904.) In Jennings, the court declined to allow a common law tort action for age discrimination against an employer with fewer than five employees because the public policy against such discrimination delineated in the
documents. Accordingly, these documents are also irrelevant, and we deny the motion as to them on that basis. (
The policy allegedly violated by the termination of employment must be one that “inures to the benefit of the public at large rather than to a particular employer or employee.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669 (Foley); see Stevenson, supra, 16 Cal.4th at pp. 894, 901-902.) That is because the tort remedy exists “not only to compensate the individual plaintiff for the loss of employment but as an indirect means of vindicating the underlying fundamental public policy itself.” (General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1181.)
Policies are not “public” (and thus do not give rise to a common law tort claim) when thеy are derived from statutes that “simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.” (Foley, supra, 47 Cal.3d at p. 669.) In Foley, for example, because the employee‘s report to the employer that the FBI was investigating a coworker for embezzlement only served the private interest of the employer, the employee‘s claim for tortuous discharge in violation of public policy was not actionable. (Id. at pp. 669-671.)
“‘[T]ermination of an employee most clearly violates public policy when it contravenes the provision of a statute forbidding termination for a specified reason . . . .‘” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1372.) Here, of course, former section 1102.5(b) forbids termination of employment where the employee discloses information to a government agency when she has reasonable cause to believe the information evidences a violation or noncompliance with a state regulation. Consistent with “the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation” (Green, supra, 19 Cal.4th at p. 77; see pt. II.A.1., ante), this policy benefits society at large, not any specific employer or employee.
3. The policy was well established at the time of the discharge
The public policy violated by an alleged wrongful discharge must be “one about which reasonable persons can have little disagreement, and which was ‘firmly established’ at the time of discharge.” (Foley, supra, 47 Cal.3d at p. 668; see Stevenson, supra, 16 Cal.4th at p. 889 [policy must be “‘well established’ at the time of the discharge“].)
Here, the conduct prohibited by the policy is an employer‘s retaliation based on an employee‘s report of violations of state regulations in the workplace. Pilgrim United does not directly contend either that such a policy
Instead, as mentioned above, Pilgrim United‘s focus is misdirected to the language of former section 1102.5(b), rather than to the policy delineated in the statute. We reject any suggestion that because former seсtion 1102.5(b) neither mentions nor prohibits termination of employment based on a perceived whistleblower, Pilgrim United was unaware it could not retaliate against Diego. Pilgrim United‘s precise act need not be specifically prohibited for the public policy to apply; all that is required is that former section 1102.5(b) “must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law.” (Sequoia Ins., supra, 13 Cal.App.4th at p. 1480; see Turner, supra, 7 Cal.4th at p. 1256, fn. 9.)
Since the statute‘s original enactment in 1984, employers like Pilgrim United have been on notice that California public policy is to encourage workplace whistleblowers to report unlawful acts without fearing retaliation. (Green, supra, 19 Cal.4th at p. 77; Collier, supra, 228 Cal.App.3d at p. 1123.) This policy was reaffirmed in the 2003 amendment that resulted in the version of the statute appliсable here, namely, former section 1102.5(b). (Stats. 2003, ch. 484, § 1, p. 3517 [“The Legislature finds and declares that it is the public policy of the State of California to encourage employees to notify an appropriate government or law enforcement agency when they have reason to believe their employer is violating laws enacted for the protection of corporate shareholders, investors, employees, and the general public.“].) By the time of Diego‘s discharge in 2011, reasonable people could have had little disagreement about this firmly established policy.
Finally, the policy expressed in the statute and allegedly violated by the termination of employment must be “substantial and fundamental.” (Stevenson, supra, 16 Cal.4th at pp. 894-898.) “Fundamental” and “substantial” are treated as a single concеpt (see id. at p. 890, fn. 4), and at times it is considered together with the previously discussed concept of whether the policy is “well established” (see Gantt, supra, 1 Cal.4th at p. 1090; Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 943 [a “corollary of the substantial and fundamental requirement” is that the public policy be well established]).
Under either requirement, the purpose is “to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge.” (Stevenson, supra, 16 Cal.4th at p. 889.) Understandably, “an employer cannot be held liable for violating a public policy that was not manifest at the time it committed the alleged tortious action.” (Silo, supra, 27 Cal.4th at p. 1110.)
As established in part II.A.3., ante, for at least 27 years prior to the termination of Diego‘s employment, the public policy of the State of California delineated in former section 1102.5(b)—beginning in 1984 with the predecessor to
5. Conclusion
In deciding the public policy delineated in former section 1102.5(b), namely, to encourage employees to notify an appropriate government agency when they have reason to believe their employer is violating regulations adopted pursuant to laws enacted for the protection of corporate shareholders, investors, employees, and the general public (Stats. 2003, ch. 484, § 1, p. 3517; Green, supra, 19 Cal.4th at p. 77)—we do so “‘with great care and due deference to the judgment of the legislative branch.‘” (Green, at p. 76.) This policy аpplies to preclude retaliation by an employer not only against employees who actually notify the agency of the suspected violations, but also against employees whom the employer suspects of such notifications. (See Lujan, supra, 124 Cal.App.4th at p. 1045 [terminating perceived whistleblowers “can effectively discourage the filing of those complaints“].) Otherwise, the policy to encourage the reporting of alleged violations will be frustrated.18
“The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception [to the at-will employment doctrine] presents no impediment to employers that operate within the bounds of law.” (Gantt, supra, 1 Cal.4th at p. 1095; see Stevenson, supra, 16 Cal.4th at p. 889.)
Thus, we conclude that the рolicy delineated in former section 1102.5(b) precluded Pilgrim United from discharging Diego on its mistaken belief that she had reported to Licensing suspected violations of regulations statutorily authorized by the
Because the trial court ruled as a matter of law that Diego had not established a sufficient policy on which to base her claim for wrongful discharge in violation of public policy, the court did not rule on Pilgrim United‘s alternative argument that Pilgrim United discharged Diego for insubordination and she could present no evidence of any alleged protected activity. The parties have briefed this issue in the appeal. Accordingly, we reach the alternative argument, since summary judgment has been granted in favor of Pilgrim United, and “we are not bound by the trial court‘s stated reasons for its ruling on the [summary judgment] motion; we review only the trial court‘s ruling and not its rationale.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.)
In this appeal from an order granting Pilgrim United‘s motion for summary judgment, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener, supra, 32 Cal.4th at p. 1142.) In so doing, we “‘employ[] the same process as the trial court in determining whether, as a matter of law, summary judgment was appropriate.‘” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) We will liberally construe the evidence in support of Diego‘s opposition to the motion and then assess whether the evidence, if credited, would permit the trier of fact to find in her favor under applicable legal standards. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 850 (Aguilar).)
“When a plaintiff alleges retaliatory employment termination . . . as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, Cаlifornia follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable issues of fact for resolution by a jury. [Citation.] In the first stage, the plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer‘s action. [Citation.] If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces evidence showing a legitimate reason for the adverse employment аction, ‘the presumption of retaliation “drops out of the picture,“’ [citation], and the burden shifts back to the employee to provide ‘substantial responsive evidence’ that the employer‘s proffered reasons were untrue or pretextual.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 (Loggins).)
The “legitimate reason” proffered by Pilgrim United for terminating Diego is that it discharged her based on “insubordination” and “an insubordinate and hostile attitude,” as evidenced by her refusal to follow instructions to attend meetings. The only specific example was Diego‘s August 25 refusal to attend one meeting on August 26; yet she was on vacation at that time and stated she would meet the next business day.20 In addition, Shockley testified generically that Diego had refused to attend “several meetings,” but he did not have personal knowledge, since those meetings were not with him, and he did not mention the dates, times or places of the meetings.
In response, the evidence of retaliation offered by Diego, discussed below, included (1) her many years of employment, including promotions, and a December 2010 year-end favorable review; (2) the timing of the firing of a 10-year employee only seven days after Licensing‘s unannounced inspection; and (3) the substance of the August 26 telephone conversation during which Lewis fired her.
As to the first evidentiary argument, Diego had been employed by Pilgrim United almost 10 years. Over the years, she rose from teacher to mentor teacher, and the director of the preschool (Lewis, Diego‘s supervisor) considered her the assistant director. In December 2010, Diego received a letter from Pilgrim United, written by Lewis, in which some of Diego‘s skills were praised, yet certain of her unidentified “misdeeds” were described as a “disappointment.” Later in December, when Diego met with Shockley and Lewis, Shockley asked Lewis to explain what she meant by the written review, but Lewis could provide no examples of behavior to support the
As to the second evidentiary argument, representatives from Licensing made the unannounced inspection at the preschool on August 19. Just one week later, on August 26, Pilgrim United fired Diego, an almost 10-year employee.
As to the final evidentiary argument, during an August 23 telephone conversation between Lewis and Diego, Lewis discussed bоth the anonymous report to and visit from Licensing. Lewis asked Diego why she was “‘doing this‘” and whether she wanted Lewis “‘gone.‘” Lewis explained that people had been telling her “‘things,‘” stating that “‘at this point, the State is going to take over [the preschool].‘” When Diego asked whether Lewis was referring to the Licensing complaint, she responded that “‘they want to know why [L]icensing has received more violations in the last 24 months more than in the history of Pilgrim [United‘s preschool,]’ or words to that effect.”
Diego‘s evidence, individually and collectively, supports Diego‘s theory that her discharge was motivated by discrimination rather than insubordination. Although “temporal proximity alone is not sufficient to raise a triable issue as to pretext,” “temporal proximity, together with the other evidence, may be sufficient to establish pretext.” (Arteaga v. Brink‘s, Inc. (2004) 163 Cal.App.4th 327, 353, 354.) Here, Pilgrim United discharged a 10-year employee within a week of Licensing‘s unannounced inspection and within three days of a telephone conversation in which Lewis expressed displeasure with Diego, specifically mentioning Licensing and regulatory violations. Moreover, Pilgrim United had promoted Diego over the 10 years of her employment, where her only arguably negative performance review was unsupported by facts and ultimately deleted. Considering all of the evidence and viewing the evidence in the light most favorable to Diego, including all inferences therefrom, as we must (Aguilar, supra, 25 Cal.4th at p. 843)—Diego has met her summary judgment burden of establishing triable issues of fact as to whether Pilgrim United was more likely motivated by a discriminatory reason (retaliation) than by its proffered explanation (insubordination).21
DISPOSITION
The judgment is reversed as to the first cause of action for alleged discrimination in violation of public policy and is otherwise affirmed. The
Huffman, Acting P. J., and McDonald, J., concurred.
Notes
Pilgrim United also asks us to take judicial notice of the legislative history associated with Senate Bill No. 496 (2013-2014 Reg. Sess.), which included what ultimately became the current version of