Lead Opinion
Opinion
We granted review in this case to consider whether an employee who was terminated in retaliation for supporting a coworker’s claim of sexual harassment may state a cause of action for tortious discharge against public policy and, if so, whether the exclusive remedy provisions of the Workers’ Compensation Act bar the action. We hold that the claim is actionable under Tameny v. Atlantic Richfield Co. (1980)
Defendants, Sentry Insurance (Sentry), Frank Singer (Singer) and Caroline Fribance (Fribance) appealed from a judgment entered on a jury verdict of $1.34 million in favor of plaintiff, Vincent A. Gantt (hereafter plaintiff or Gantt) in his action for tortious discharge in violation of the covenant of good faith and fair dealing and in contravention of public policy (Tameny, supra,
The Court of Appeal reversed the judgment as to the individual defendants but affirmed in all other respects. As to the Tameny cause of action, the Court of Appeal noted that the allegation was predicated upon two distinct theories: the first, that plaintiff was constructively discharged in retaliation for supporting a coworker’s claim of sexual harassment; and second, that Sentry attempted to induce plaintiff to give false information or to withhold information from the public agency investigating the sexual harassment charges. Although the Court of Appeal concluded that Gantt’s first theory of recovery was preempted by the California Fair Employment and Housing Act (FEHA), it held that the FEHA did not preempt a Tameny claim premised on die second theory; that substantial evidence supported the jury’s special verdict; and that the action was not barred by the exclusive remedy provisions of the Workers’ Compensation Act.
Sentry petitioned this court for review, asserting that neither the facts nor the law supported a Tameny claim premised on plaintiff’s second theory, and that the action was barred in any event by the workers’ compensation law. After granting review, we requested additional briefing on the question whether a Tameny claim must be grounded in a violation of statute or constitutional provision.
For the reasons set forth below, we conclude that a termination in retaliation for testifying truthfully concerning a coworker’s sexual harassment
II. Facts
Viewing the record most strongly in favor of the judgment, as we must (Agarwal v. Johnson (1979)
The specific circumstances which led to Gantt’s estrangement from Sentry centered on Joyce Bruno, who was hired in January 1980 to be the liaison between trade associations and Sentry’s Sacramento and Walnut Creek offices. In that capacity, Ms. Bruno reported to both Gantt and Gary Desser, the manager of the Walnut Creek office, as well as Brian Cullen, a technical supervisor at regional headquarters in Scottsdale, Arizona.
Shortly after she was hired, Ms. Bruno experienced sexual harassment at the hands of Desser. As the harassment continued, she complained to Gantt. He recommended she report it to Cullen in Scottsdale. Ultimately, Gantt himself contacted both Bonnie Caroline, who was responsible for receiving complaints of sexual discrimination, and Dave Berg, his immediate supervisor, about the problem. Despite these reports, the harassment continued. Accordingly, Gantt took it upon himself to speak a second time with both Berg and Ms. Caroline. Finely, in early 1981, Desser was demoted from sales manager to sales representative and replaced by Robert Warren. In March, Ms. Bruno was transferred to a sales representative position. A month later, however, she was fired.
Gantt stated that he was present at the April meeting in which Berg directed Warren to fire Bruno and ridiculed Gantt for supporting her. The following month, Berg himself resigned from Sentry following an investigation into claims that he had engaged in sexual harassment. Berg’s replacement, Frank Singer, assumed the title “Director of Sales” and recruited John
Bruno, meanwhile, filed a complaint with the Department of Fair Employment and Housing (DFEH). She alleged harassment by Desser and failure by Sentry’s higher management to act on her complaints. Caroline Fribance, Sentry’s house counsel in charge of labor-related matters, undertook to investigate the matter. Gantt informed Fribance that he had reported Bruno’s complaints to personnel in Scottsdale. However, Gantt gained the impression that he was being pressured by Fribance to retract his claim that he had informed Scottsdale of the complaints. Later, following the interview with Fribance, Tailby cautioned Gantt that Singer and others in the company did not care for Gantt. In a follow-up memorandum, Tailby cautioned Gantt that “it sometimes appears that you are involved in some kind of ‘intrigue’ and ‘undercover’ operation.” In December 1982, Tailby rated Gantt’s overall work performance for the year as “acceptable.” Without directly informing Gantt, Singer changed the rating to “borderline acceptable/unacceptable.”
Shortly thereafter, John Thompson, a DFEH investigator, contacted Fribance to arrange interviews with certain employees, including Gantt. Because of his growing unease about Fribance, Gantt arranged to meet secretly with Thompson before the scheduled interview. Gantt told him the facts of which he was aware, including his reporting of Bruno’s complaints to Scottsdale, and Thompson assured him that he would be protected under the law from any retaliation for his statements. Thompson gained the impression that Gantt felt he was being pressured and was extremely fearful of retaliation because of his unfavorable testimony.
Gantt met with Fribance the day before his formal DFEH interview. She repeatedly reminded him that he was the only management employee supporting Ms. Bruno’s claim that she had notified management about the harassment. Plaintiff felt that Fribance was unhappy with his testimony and that her unstated intent was to induce him to change his story. She also told him about another employee who had been found guilty of sexual harassment but retained by the company because he was a loyal employee. It was also during this meeting that Gantt discovered the change in his December 1982 evaluation. These events confirmed his fears that the company was pressuring him to withhold testimony or face retaliation.
The official DFEH interviews took place the next day. Fribance was present during Thompson’s interview with Gantt. Following the interview,
Less than two months later, on March 3, 1983, Gantt attended an awards ceremony in Scottsdale to accept a life insurance sales award on behalf of his office. The following morning, Singer and Tailby informed him that he was being demoted to sales representative. Shortly thereafter, Gantt’s new supervisor, Neil Whitman, warned him that he would be fired if he attempted to undermine Whitman’s authority. Gantt was also informed that he would not be given a “book” of existing accounts to start his new job; according to Gantt, such a book was necessary to survive.
During the following month, Gantt was in the office only intermittently. He experienced a variety of illnesses and took vacation time and sick leave. In mid-April he was offered and accepted a position with another company. He left Sentry’s payroll in early May. Two months later, he filed the instant lawsuit alleging that “as a result of the pressure applied by the defendants ... he was forced to resign.”
As noted earlier, the jury returned a special verdict in favor of Gantt, finding, inter alia, that Gantt had been constructively discharged; that Sentry lacked an “honest good faith belief the termination was warranted for legally valid business reasons”; that Gantt was discharged “in retaliation for his refusal to testify untruthfully or to withhold testimony”; that Gantt was further discharged in retaliation for his “actions or statements with respect to Joyce Bruno’s sexual harassment allegations”; and that in committing these acts Sentry acted with malice, oppression or fraud.
III. Discussion
A. Sources of the Public Policy Exception
This court first recognized a public policy exception to the at-will employment doctrine in Tameny, supra,
Yet despite its broad acceptance, the principle underlying the public policy exception is more easily stated than applied. The difficulty, of course, lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely ordinary disputes between employer and employee. This determination depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy. In Foley v. Interactive Data Corp., supra,
We declined in Foley to determine whether the violation of a statute or constitutional provision is invariably a prerequisite to the conclusion that a discharge violates public policy. A review of the pertinent case law in California and elsewhere, however, reveals that few courts have recognized a public policy claim absent a statute or constitutional provision evidencing the policy in question. Indeed, as courts and commentators alike have noted, the cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute (see, e.g., Tameny, supra,
To be sure, those courts which have addressed the issue appear to be divided over the question whether nonlegislative sources may ever provide the basis of a public policy claim. Pierce v. Ortho Pharmaceutical Corp. (1980)
Other courts have applied a stricter definition to public policy claims. The leading case is Brockmeyer v. Dun & Bradstreet (1983)
Turning from other jurisdictions to California law, one finds the courts similarly divided. As we recently observed in Foley v. Interactive Data
Although we have not taken a position on this precise issue, it is true, as plaintiff notes, that this court has not previously confined itself to legislative enactments when determining the public policy of the state. We have, for example, long declined to enforce contracts inimical to law or the public interest (see Kreamer v. Earl (1891)
The analogy to illegal contracts has particular force. For at root, the public policy exception rests on the recognition that in a civilized society the rights
Unfortunately, as we have also previously acknowledged, “[t]he term ‘public policy’ is inherently not subject to precise definition. . . . ‘By “public policy” is intended 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. . . .’” (Safeway Stores v. Retail Clerks etc. Assn., supra,
Surveying the extensive and conflicting decisional law summarized above, several general observations are possible. First, notwithstanding the lively theoretical debate over the sources of public policy which may support a wrongful discharge claim, with few exceptions courts have, in practice, relied to some extent on statutory or constitutional expressions of public policy as a basis of the employee’s claim. (See, e.g., Dabbs v. Cardiopulmonary Management Services (1987)
Second, it is generally agreed that “public policy” as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, “lest they mistake their own predilections for public policy which deserves recognition at law.” (Hentzel v. Singer Co., supra,
These wise caveats against judicial policymaking are unnecessary if one recognizes that courts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions. A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public. 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 presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society’s interests are served through a more stable job market, in which its most important policies are safeguarded.
B. Application of the Public Policy Exception
Here, we are not being asked to declare public policy. The issue as framed by the pleadings and the parties is whether there exists a clear constitutional or legislative declaration of fundamental public policy forbidding plaintiff’s discharge under the facts and circumstances presented.
Initially, the parties dispute whether the discharge of an employee in retaliation for reporting a coworker’s claim of sexual harassment to higher management may rise to the level of a Tameny violation. Sentry argues that such reporting inures only to the benefit of the employee in question rather than to the public at large, and questions the constitutional or statutory basis
Although Sentry did not discriminate against Gantt on account of his sex within the meaning of the constitutional provision, there is nevertheless direct statutory support for the jury’s express finding that Sentry violated a fundamental public policy when it constructively discharged plaintiff “in retaliation for his refiisal to testify untruthfully or to withhold testimony” in the course of the DFEH investigation. Indeed, Petermann v. International Brotherhood of Teamsters, supra,
We endorsed the principles of Petermann in Tameny, holding that an employee who alleged that he was discharged because he refused to participate in an illegal price fixing scheme may subject his employer “to liability for compensatory and punitive damages under normal tort principles.” (
The instant case fits squarely within the rubric of Petermann and Tameny. The FEHA specifically enjoins any obstruction of a DFEH investigation.
Thus, any attempt to induce or coerce an employee to lie to a DFEH investigator plainly contravenes the public policy of this state. Accordingly, we hold that plaintiff established a valid Tameny claim based on the theory of retaliation for refusal to withhold information or to provide false information to the DFEH.
C. The Workers’ Compensation Act Does Not Preempt the Tameny Claim
In Shoemaker v. Myers, supra,
Sentry, together with amicus curiae Merchants & Manufacturers Association, once again ask this court to revoke or sharply restrict the tort remedy we so recently recognized in Tameny, supra,
The determination that Tameny claims are not preempted by the exclusive remedy provisions of the Workers’ Compensation Act follows ineluctably from our unwavering commitment to the principle, stated most recently in Foley v. Interactive Data Corp., supra,
We recognize, of course, the force of the maxim that a case is not authority for a point that was not actually decided therein. (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979)
As we explained recently in Shoemaker v. Myers, supra,
The seemingly straightforward trade-off of this so-called compensation bargain is deceiving, however. Indeed, as we observed in Shoemaker v. Myers, supra, “this court and the Courts of Appeal have struggled with the problem of defining the scope of these exclusive remedy provisions.” (
When an employer’s decision to discharge an employee results from an animus that violates the fundamental policy of this state proscribing any interference in the official investigation of sexual harassment (Gov. Code, § 12975), such misconduct cannot under any reasonable viewpoint be considered a “normal part of the employment relationship” (Cole v. Fair Oaks Fire Protection Dist., supra,
Sentry suggests, nevertheless, that there is something “anomalous” in restricting the recovery of an employee who incurs a standard “industrial” injury, while extending a tort remedy, including emotional distress damages, to one who suffers similar injuries from sexual or racial discrimination. The answer is that the two employees are not similarly situated. We emphasized the difference in Tameny, when we recognized that “ ‘public policy and sound morality’ ” set the latter apart: “ ‘It would be obnoxious to the interests of the state and contrary to public policy and sound morality to
The same core values that underlay our holding in Tameny explain why such misconduct cannot be deemed “a risk reasonably encompassed within the compensation bargain.” As we explained in Foley v. Interactive Data Corp., supra: “What is vindicated through the [Tameny] cause of action is not the terms or promises arising out of the particular employment relationship involved, but rather the public interest in not permitting employers to impose as a condition of employment a requirement that an employee act in a manner contrary to fundamental public policy.” (
In sum, we hold that the Workers’ Compensation Act does not preempt plaintiff’s Tameny action for tortious discharge in contravention of fundamental public policy. The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Panelli, J., Baxter, J., and George, J., concurred.
Notes
With respect to Gantt’s other causes of action, the Court of Appeal held that the tort claim for breach of the covenant of good faith and fair dealing was invalid under this court’s decisions in Foley v. Interactive Data Corp. (1988)
We also requested additional briefing on the question whether, in light of our intervening decision in Rojo v. Kliger (1990)
Although Fribance disputed Thompson’s characterization of her statements, the jury specifically found that Fribance told Thompson that Gantt had sexually harassed Ms. Bruno; that the statement was false; and that Fribance had acted with malice, oppression or fraud.
Although the court in Mallard v. Boring (1960)
Although the decision of the Maryland Court of Appeals in Adler v. American Standard Corp. (1981)
As the Court of Appeal has stated: “It is primarily the prerogative of the legislature to declare what contracts and acts shall be unlawful; but courts, following the spirit and genius of the law, written and unwritten, of a state, may declare void as against public policy contracts which, though not in terms specifically forbidden by legislation, are clearly injurious to the interests of society.” (Maryland C. Co. v. Fidelity etc. Co. (1925)
In a supplemental brief, Sentry argues that Government Code section 12975 was intended to apply only to “physical” interference with DFEH investigators. Nothing in the legislative history or application of the statute reflects such a narrow scope of operation. Webster defines “impede” as, inter alia, “to interfere with or get in the way of the progress of." (Webster’s New Internat. Dict. (3d ed. 1961) p. 1132.) “Interfere” is defined, in part, as “to enter into or take a part in the concerns of others.” (Id. at p. 1178.) Thus, by its plain terms, the statute is not confined to mere “physical” interference with DFEH investigators.
Although Shoemaker held that “injuries resulting from the termination of employment may be included within the scope of workers’ compensation” (
Amicus curiae makes the additional argument that, even if the Workers’ Compensation Act does not bar plaintiff’s civil action for wrongful termination, the trial court still has no power to award damages for industrial injuries. Because no party took this position in a lower court, we do not address the issue.
We noted in Cole that actions for intentional infliction of emotional distress against an employer were upheld in Agarwal v. Johnson, supra,
Concurrence Opinion
I join in affirming the judgment. As the majority correctly concludes, plaintiff Vincent A. Gantt’s employer violated public policy, as embodied in Government Code section 12975 (see also, Lab. Code, § 1102.5), when it constructively discharged him for refusing to testify untruthfully or to withhold testimony in the course of an agency investigation. Plaintiff is therefore entitled to his damages for wrongful discharge in violation of public policy. (Foley v. Interactive Data Corp. (1988)
I write separately for two reasons. First, I wish to emphasize that, as the majority opinion states (maj. opn., ante, p. 1086 & fn. 2), this court has not addressed plaintiff’s alternate theory of recovery, namely, that his employer
My second reason for writing separately is to respond to the majority’s statement that a cause of action for wrongful termination in violation of public policy may be based only on public policies expressed in constitutional or statutory provisions. Plaintiff never attempted to articulate a public policy not grounded in a statute or a constitutional provision. Nevertheless, this court insisted that the parties brief the issue, and now purports to decide it. This purported decision is doubly misguided. The issue is not raised by the facts of the case or the contentions of the parties, so the majority’s comments are purest dicta. And, “[a]s so often happens when a court reaches beyond the confines of the case before it to render a gratuitous advisory opinion, the majority decides the issue incorrectly.” (City of Sacramento v. State of California (1990)
Courts should confine their decisions to issues actually raised on the facts of a case. The United States Supreme Court has explained its reluctance to issue “advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faceted situation embracing conflicting and demanding interests . . . .” (United States v. Fruehauf (1961)
The question whether an action for wrongful discharge may ever be based on a public policy not originating from statutory or constitutional provisions should await a case in which the public policy at issue has some nonstatutory and nonconstitutional basis. We should not decide this issue in a complete factual vacuum. Because the majority has chosen to address this issue and analyzed it in a faulty fashion, I feel compelled to respond.
After quoting from many cases that present various views on the application of public policy in general and in the wrongful discharge context, the majority concludes, with only perfunctory analysis, that its rule that a wrongful discharge cause of action may be based only on public policies expressed in constitutional or statutory provisions “strikes the proper balance” because “[t]he employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes . . . .” (Maj. opn., ante, p. 1095.) This creates the impression that only statutes or constitutional provisions provide employers with adequate notice of what is forbidden by public policy, and that it is somehow unfair for employers to be bound by other legitimate sources of public policy. This is wrong. Other legitimate sources of public policy, such as judicial decisions or codes of professional ethics, for instance, are readily available to employers or their counsel and thus provide no less “notice” than do statutes or constitutional provisions.
Implicit in the majority’s objection to requiring employers to adhere to fundamental public policy set forth in published sources other than statutes or constitutional provisions is the notion that other sources express policies that are not “fundamental” or “substantial” enough. It may be somewhat easier to characterize as “fundamental” a public policy that is plainly based on the terms of a statute or constitutional provision than to so characterize one that is not so based. But it is a mistake to assume that only those policies based on statutes or constitutional provisions are firmly established and important.
An example is helpful. In Verduzco v. General Dynamics, Convair Div. (S.D.Cal. 1990)
Under the majority’s approach, a plaintiff in Verduzco’s position could be discharged without fear of consequences, because he could point to no statute or constitutional provision that was violated by his discharge. But the absence of a statute or constitutional provision should not prevent the recognition of a fundamental public policy in preserving national security that would be violated by the dismissal of an employee who complained that national security was compromised by lax procedures. Indeed, because the policy “inures to the benefit of the public at large rather than to a particular employer or employee,” our cases demand its recognition. (Foley v. Interactive Data Corp., supra,
Other examples are no doubt available. But the point is plain. Courts should not be foreclosed from adjudicating wrongful discharge cases based on violations of public policy springing from nonstatutory and nonconstitutional sources. The majority’s attempt to constrain the development of the law in a one-size-fits-all judicial straight]acket ignores the essential wisdom of the common law: law is best developed case by case, with attention to the facts of particular cases and the patterns of cases as they develop over time.
Mosk, J., concurred.