Cifuentes v. Costco
Filed 7/10/12 Cifuentes v. Costco CA2/3
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
CARLOS
CIFUENTES,
Plaintiff and Appellant,
v.
COSTCO
WHOLESALE CORPORATION et al.,
Defendants and Respondents.
2d Civil No. B231684
(Super. Ct. No. 1338554)
(Santa Barbara County)
Carlos Cifuentes sipped
three ounces of a beverage sold by Costco, his employer. A fellow employee observed the act and
immediately reported it to Costco management.
Cifuentes was terminated for violating the employer's "grazing
policy." He sued his employer, the
fellow employee, and two managers alleging contract
and tort claims. All the claims are
based on the contention that his termination was in retaliation for an earlier
report Cifuentes had made to Costco that the fellow employee had violated company
policy by hugging another employee. The
trial court granted summary adjudication
to all defendants on the tort claims and denied summary adjudication on the
contract claims. A jury awarded him
$301,378 for breach of contract.
Cifuentes
appeals from that portion of the final judgment granting defendants summary
adjudication on the tort claims. He
asserts he has provided evidence which would support a reasonable inference
that his termination was retaliatory. We
affirm.
Appellant Carlos
Cifuentes was a part-time employee who worked in the food court at respondent
Costco Wholesale Corporation's store in Goleta. When he was hired in 2004, Cifuentes was given
an employee agreement (Agreement) to read and sign. The Agreement stated that he would be
terminated only for good cause. It
contained a section entitled "Causes for Termination." One cause for termination was "Proof or
confession of dishonesty including, but not limited to: [¶]
a. Grazing." A footnote defines "grazing" to
include "Food Court and fresh
food products and any ingredients used in their preparation."
Cifuentes also was given
a separate document to read and sign entitled "Grazing." It states, "Any employee observed eating
merchandise belonging to Costco Wholesale without paying for it beforehand is
subject to disciplinary action per page 67 (item # 15a) of the March 2004
Employee Agreement. To help clarify,
please note: [repetition of footnote 32
in Agreement]." The document also
states: "Thank you in advance for your attention to this important
policy." The document concludes
with a section entitled, "To Be Completed By Employee." It states:
"I have read the above policy concerning grazing and understand its
intent and meaning. I understand that
any violation of this policy can result in my immediate termination per page
67, item 15a of the March 2004 Employee Agreement." Both the Agreement and grazing policy were
signed by Cifuentes.
name="_ftnref1" title="">[1]
In September 2008,
Cifuentes reported to one of his supervisors, Jose Arredondo, that he had seen
front end manager, respondent Tom Current, hugging a female employee outside
the store.
Cifuentes's direct supervisor, Food Court Manager Julie Ledbetter. Ledbetter reported the incident to Assistant
Warehouse Manager John Swangler.
Swangler and Administrative Manager Roman Aguilar met with
Cifuentes. Cifuentes told them what he
observed. Swangler and Aguilar thanked
Cifuentes and told him he would not get in trouble for making the report.
Swangler spoke to
Current. Current admitted he hugged a
female employee. Swangler advised
Current that he had a duty to act appropriately toward employees. Swangler did not make a written report of the
incident. He did not tell Current that
Cifuentes had reported the incident. In
his deposition, Cifuentes stated that he had no knowledge whether any employee
had told Current that Cifuentes made a report concerning him. Except for Cifuentes's deposition testimony
that Current would not speak to him,
followed him around, and gave him weird looks, there is no other
evidence that Current knew that Cifuentes had reported the incident.
Approximately six months
later, on April 7,
2009, Current was checking the food court area for cleanliness, a
regular part of his job duties. Current
saw Cifuentes fill a three-ounce water cup with ice and Coke from the food
court soda machine. Current said he saw
Cifuentes walk around the corner from the soda machine, pass two trash bins,
drink some of the soda, and place the cup on a ledge next to a large trash
cart.
Current,
who had not observed a grazing incident previously, reported his observations
to respondent, Assistant Warehouse Manager Ronald DeBrum, the highest ranking
manager on duty at the time. The
conversation took place between 6:00-7:00 p.m. at the front of the store near
the check stands. DeBrum determined that
he wanted to speak to Cifuentes to hear his side of the story and instructed
Current to bring Cifuentes to his office for a meeting. Current was present when Cifuentes met with
DeBrum.
Cifuentes admitted that
he poured ice and Coke into a three-ounce water cup. He stated he did so only after a customer complained
that the Coke was flat. He believed that
the procedure he followed in testing the soda was in compliance with store
policy. According to Cifuentes, Current
and DeBrum told him that they did not believe he was being honest and thought
he was "stealing soda." At the
end of the meeting, Cifuentes was told that the incident would be reported to
respondent, Warehouse Manager Jim Blount.
In separate written
statements to Blount, Current and DeBrum reported that Cifuentes could not
identify or describe the customer who had made the complaint. They further reported that Cifuentes could
not explain why he had not followed the correct procedure of putting a small
amount of soda in a cup, tasting it, and pouring out the rest; why he put ice
in the soda; why he went around the corner to drink the soda; or why he placed
the cup on a ledge by the trash cart rather than throwing it away.
Blount met with
Cifuentes on April 10. With DeBrum present, Blount asked Cifuentes for his
version of the incident. Blount
cautioned Cifuentes to be completely honest and accurate. Although Cifuentes had told DeBrum and
Current that he was testing the soda in response to a customer complaint,
Cifuentes told Blount that another food court employee told him the soda machine
was not working. Cifuentes could not
identify the employee. Blount responded
that he would talk to all of the employees who were working the night of the
incident, but he did not expect that any of them would say they had received a
customer complaint about the soda.
Cifuentes then admitted that he drank the soda and said, "I am
guilty;" "I'm sorry, you're right;" "I tried to save my
job;" and "[t]hat's the reason why I'm lying."
After meeting with
Cifuentes, DeBrum prepared a counseling notice suspending Cifuentes for three
days pending investigation of the incident.
The counseling notice stated that the reason for Cifuentes's suspension
was "Page 69 11.3 # B [referring to Employee Agreement] Falsification of
company records and/or timecards, including omitting facts or willfully giving
wrong or misleading information. This
includes, but is not limited to: B
internal investigation. Page 69 #15
Proof or confession of dishonesty including, but not limited to: a. Grazing."
Blount informed Los Angeles
Region Vice President of Operations, Frank Farcone, of Current's report and
Cifuentes's version of the incident.
Blount reported to Farcone rather than to Sean Parks, the vice president
of the region which included Goleta, because Parks was on vacation at the
time. Blount did not make any
recommendation to Farcone concerning termination. After Farcone discussed the matter with
Blount, he made the decision to terminate Cifuentes's employment on April
13. On that day, Cifuentes called Mario
Padillo, Costco personnel specialist, and complained about unfair
treatment.
Cifuentes filed a
complaint alleging wrongful termination,
negligence, breach of contract and breach of the covenant of good faith and
fair dealing against Costco; and defamation, intentional infliction of
emotional distress and negligence against Costco, Blount, DeBrum, and
Current. He sought compensatory and
punitive damages.
Respondents filed a
motion for summary judgment/summary adjudication. After extensive briefing, the trial court
granted summary adjudication to respondents on the tort causes of action and
denied summary adjudication on the contract causes of action. A dismissal was entered in favor of Blount,
DeBrum, and Current at the pretrial conference, as all causes of action against
them individually had been summarily adjudicated in their favor. Cifuentes proceeded to trial on his contract
claims against Costco and obtained a jury verdict in the amount of
$301,378.
On appeal, Cifuentes
asserts the trial court erred in granting summary adjudication on the tort
claims because material issues of fact exist as to whether Cifuentes's
termination was in retaliation for his report of the Current incident. Respondents assert that the trial court
correctly granted summary adjudication on the tort claims because, as a matter
of law, Cifuentes failed to establish required elements of the torts alleged.
"The
grant and denial of summary judgment or summary adjudication motions are
subject to de novo review." (
Cal.App.4th 825, 832.) "[I]n moving
for summary judgment, a 'defendant [meets]' his 'burden of showing that a cause
of action has no merit if' he 'has shown that one or more elements of the cause
of action . . . cannot be established, or that there is a complete defense to
that cause of action. Once the defendant
[meets] that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to that cause of action
or a defense thereto. The plaintiff . .
. may not rely upon the mere allegations or denials' of his 'pleadings to show
that a triable issue of material fact exists but, instead,' must 'set forth the
specific facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.'"
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 849.) "We
must presume the judgment is correct, and the appellant bears the burden of
demonstrating error." (
Rehabilitation (2007) 152 Cal.App.4th 1367, 1376.)
"When a plaintiff
alleges retaliatory employment termination [such] as a claim . . . for wrongful
employment termination in violation of public policy, and the defendant seeks
summary judgment, California follows the burden shifting analysis of
411 U.S. 792, to determine whether there are triable issues of fact for
resolution by a jury. . . . 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.]" (Loggins
v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109.)
If the employee
successfully establishes these elements, "the burden shifts to the
employer to provide evidence that there was a legitimate, nonretaliatory reason
for the adverse employment action. [Citation.]" (Loggins
v. Kaiser Permanente Internat., supra, 151 Cal.App.4th at p. 1109.) If such a legitimate reason is shown,
"the burden shifts back to the employee to provide 'substantial responsive
evidence' that the employer's proffered reasons were untrue or pretextual. [Citation.]" (Ibid.)
established the first two elements. He
reported he saw Current hug a female employee, arguably a violation of Costco's
sexual harassment policy (see fn. 3, infra),
and he was terminated six months later.
Reporting incidents of sexual harassment is activity protected by the
Federal Employment and Housing Act, Government Code section 12940, subd. (h).)
sexual harassment and requiring employees to report such incidents.
CAUSATION
A plaintiff cannot
merely show that he engaged in protected activity that was followed at some
point by his termination. He must also
"demonstrate the required nexus between his reporting of alleged statutory
violations and his allegedly adverse treatment." (Turner
v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1258.)
To establish a triable
issue as to causation, Cifuentes relies on the following: (1) He reported an act of sexual harassment
by Current; (2) after Cifuentes reported Current's conduct, Current would not
talk to him, followed him around, and gave him "weird" looks; (3) six
months later, Current reported that Cifuentes was stealing soda; (4) Blount and DeBrum knew that Cifuentes
previously had made a report concerning Current; (5) Current himself had tested soda in the
same manner as Cifuentes; and (6) Cifuentes made a formal complaint to Mario
Padilla, Costco Personnel Specialist, that Current would not talk to him and
gave him "weird" looks.
Cifuentes asserts that these facts give rise to an inference that his
termination was in retaliation for his report of Current's conduct.
A claim may be supported
by an inference. However, an "'. .
. inference must be a reasonable conclusion from the evidence and cannot be
based upon suspicion, imagination, speculation, surmise, conjecture or
guesswork. [Citation.] Thus, an inference cannot stand if it is
unreasonable when viewed in light of the whole record. [Citation.] . . .'" (McRae
v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377,
389-390; see also Horn v. Cushman &
Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 [evidence must be
substantial, not speculative, to demonstrate a triable dispute of fact];
Cal.App.4th 1108, 1119-1120 [unsupported conclusions must be disregarded].)
On appeal, Cifuentes
relies on Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95, to support his claim that he has presented
sufficient evidence of causation to avoid summary judgment. In Reeves,
the court used the so-called "cat's paw" principle to conclude
that an employer was not entitled to summary judgment because the employee had
provided sufficient evidence of retaliatory animus. This principle applies where a supervisor
acts based on animus, but someone else makes the ultimate decision adverse to
the employee. (Id. at p. 114.)
"Imputation of retaliatory animus will be justified by any set of
facts that would permit a jury to find that an
intermediary,
for whatever reasons, simply carried out the will of the actuator, rather than
breaking the chain of causation by taking a truly independent action." (Id. at
pp. 114-115, fn. 14.) Under the cat's
paw principle the discriminatory animus of a supervisory employee may be
imputed to the ultimate decision maker and thus to the employer if the decision
maker is merely the tool by which the supervisor carries out his or her
discriminatory purpose. (
decision maker is the mere rubber stamp or unwitting conduit through which the
supervisor carries out his or her discriminatory purpose. (Id.
pp. 113-115.)
The evidence Cifuentes
relies on is insufficient to raise a triable issue of material fact as to
causation under the cats paw theory or any other legal principle. Cifuentes contends that Current reported the
soda incident to retaliate against Cifuentes for his earlier report of
Current's misconduct. The only evidence
he offers to establish a nexus between the two incidents is that Current did
not talk to him, followed him around and gave him "weird" looks. We do not share Cifuentes's view that the
asserted ambiguous conduct, even if it occurred, shows Current harbored
retaliatory animus against Cifuentes.
Even
were we to assume that the evidence establishes such intent, we would reject
Cifuentes's cat's paw argument because Current was not Cifuentes's
supervisor. In reporting the soda
incident, Current was merely a co-employee reporting conduct he believed to
constitute grazing, as he was required to do by store policy. (See Morgan
v. Regents of University of California (2000) 88 Cal.App.4th 52, 70
[statements by individuals not integrally involved in decisions culminating in
termination of plaintiff's employment not attributable to employer].)
Cifuentes's
assertion that Farcone's decision to terminate him was somehow influenced by
Current also is based on speculation.
Cifuentes admitted he did not know if Farcone was aware that he had
reported Current for misconduct. Farcone
testified he had not spoken to Current and had no knowledge that Cifuentes had
reported Current for sexual harassment prior to making the decision to
terminate Cifuentes. There is no
evidence from which a reasonable inference can be drawn that Current influenced
the decision to terminate Cifuentes.
(See Horn v. Cushman &
Wakefield Western, Inc., supra,
72 Cal.App.4th at p. 817 [plaintiff "'"must do more than establish a
prima facie case and deny the credibility of the [defendant's]
witnesses"'"]; see also Lindahl
v. Air France (9th Cir. 1991) 930 F.2d 1434, 1437-1438 ["plaintiff
cannot carry this burden simply by restating the prima facie case and
expressing an intent to challenge the credibility of the employer's witnesses
on cross-examination. She must produce
specific facts either directly evidencing a discriminatory motive or showing
that the employer's explanation is not credible"].)
Costco carried its
burden of showing that it had a legitimate, nondiscriminatory reason for
terminating Cifuentes. The Agreement and
separate grazing policy Cifuentes signed demonstrates that Costco views grazing
as serious misconduct. Both Farcone and
Parks testified at their depositions that grazing was cause for immediate
termination and that each of them had summarily terminated numerous employees
for grazing without considering the employee's performance record or other
factors.
Where, as
here, the employer provides a legitimate, nondiscriminatory reason for
discharge, the burden is on the employee to demonstrate that the justification
was merely a pretext to cover up the employer's unlawful discriminatory
intent. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467,
476.) To avoid summary judgment where an
employer has provided a legitimate, nondiscriminatory reason for an employment
decision, "[i]t is not enough for the employee simply to raise triable
issues of fact concerning whether the employer's reasons for taking the adverse
action were sound." (
(1997) 57 Cal.App.4th 997, 1005.)
In addition to the
evidence proffered in support of his causation argument, Cifuentes asserts he
has shown a triable issue of fact as to pretext because (1) Costco's grazing
policy does not expressly include drinking soda; (2) the Agreement does not
state
that
grazing would result in mandatory termination; (3) Current knew that food court
employees are permitted to taste soda in response to a customer complaint; (4)
Blount failed to independently investigate whether Cifuentes's conduct
constituted grazing; (5) no employee in the Costco Goleta store had ever been terminated
for soda grazing; (6) other employees were not terminated for allegedly more
egregious conduct, such as coming up short in their cash drawers; (7)
Cifuentes's performance reviews were "outstanding;" and (8) the jury
trial of his contract claims resulted in a special verdict finding that Costco
did not have good and sufficient cause to terminate Cifuentes. This litany is insufficient to raise a
triable issue as to pretext.
Cifuentes's
assertion that he was not informed that he could be terminated for grazing is
belied by express provisions in the Agreement.
It contains a section entitled "Standards of Conduct and
Discipline," stating:
"11.1 STANDARDS OF
CONDUCT AND DISCIPLINE
"The following
basic Company guidelines are not intended to encompass all Company policies and
procedures. If you have questions,
please ask your Supervisor for clarification.
We may, from time to time, modify these guidelines at our discretion.
"11.2 CAUSES FOR
TERMINATION
"The following is a
list of actions that can result in
immediate termination of employment.
No previous Counseling Notices are necessary. If termination does not occur, an Employee
Counseling Notice will be issued and is permanently retained in the employee's
personnel file.
"1. Falsification
of Company records and/or timecards, including omitting facts or willfully
giving wrong or misleading information.
This includes, but is not limited to:
". . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
"b. internal
investigations
". . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
"15.
Proof or confession of dishonesty including, but not limited to:
"a.
grazing." (Italics added.)
The separate grazing
policy that Cifuentes signed also contains language that any reasonable
employee would interpret to mean that termination for violating the policy was
likely: "I have read the above
policy concerning grazing and understand its intent and meaning. I understand that any violation of this
policy can result in my immediate
termination per page 67, item 15a of the March 2004 Employee
Agreement." (Italics added.)
Cifuentes's assertion
that investigation of the soda incident was conducted in an unfair manner is
unsupported by the record. Current
reported the soda incident to the highest ranking manager on duty at the
time. DeBrum and Current then met with
Cifuentes to hear his side of the story.
At the end of the meeting, Cifuentes was told that the incident would be
reported to Warehouse Manager Blount.
Current and DeBrum made
written statements to Blount stating that Cifuentes denied that his conduct
constituted grazing. Contrary to
Cifuentes's assertion that Blount did not conduct an independent investigation,
he and DeBrum met with Cifuentes on April 10.
At that meeting, Cifuentes first denied that he was grazing but, upon
further questioning, admitted that he was guilty. After the meeting, DeBrum prepared a
counseling notice suspending Cifuentes for three days without pay pending
investigation of the incident. The
counseling notice informed Cifuentes that he was charged with violating those
sections of the Agreement prohibiting grazing, giving wrong or misleading
information during an investigation and lying during the investigation. Only after Cifuentes had two opportunities
to explain his actions did Blount speak to Farcone, who then made the decision
to terminate Cifuentes. These procedures
gave Cifuentes an ample opportunity to explain his conduct.
Moreover, assertions of
unfair investigation practices are insufficient to show retaliatory animus,
where, as here, no substantial evidence of retaliatory animus is contained in
the record. (See, e.g.,
Comp. Ins. Fund (2001) 24 Cal.4th 800, 821 [reasonable attempts to
investigate employee theft, including interrogations, are considered normal
part of the employment relationship and do not give rise to a tort action
against the employer].)
The assertions that no
employee at the Goleta Costco store had ever been terminated for grazing and
that his good performance record should have prevented his termination are of
little significance because undisputed evidence in the record shows that the
grazing policy is strictly enforced and is grounds for immediate, mandatory
termination. Both Farcone and Parks had
terminated numerous employees at other Costco stores for grazing without regard
to an employee's performance evaluations.
Cifuentes's contention that other employees who engaged in misconduct
other than grazing were not terminated fails for the reasons stated
above--violation of the grazing policy was considered by Costco to be a cause
for immediate termination.
The findings of the jury
which decided the contract causes of action are not a proper consideration in
our review of summary adjudication of tort claims. (Jacobs
v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966.)
Cifuentes's
opposition papers fail to satisfy his burden of presenting substantial
responsive evidence that his employer's reason for termination was untrue or
pretextual.
Cifuentes alleges that
statements made by Current, DeBrum and Blount during the course of the
investigation, specifically that he was "stealing soda" and
"[lying] about it," were defamatory.
We disagree.
"The tort of
defamation 'involves (a) a publication that is (b) false, (c) defamatory, and
(d) unprivileged, and that (e) has a natural tendency to injure or that causes
special damage.'" (
720.)
Summary judgment is
favored in defamation cases due to the chilling effect of protracted litigation
on rights protected by the First Amendment.
Courts impose more stringent burdens on a plaintiff who opposes the
motion and require a showing of high probability that the plaintiff will
ultimately prevail in the case. In the
absence of such showing, courts are inclined to grant the motion, and do not
permit the case to proceed beyond the summary judgment stage. (Alszeh
v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460.)
The trial court granted
summary adjudication in part because it found the qualified privilege of Civil
Code section 47, subdivision (c), applied.
That section provides that a privileged communication is one made
"without malice, to a person interested therein, (1) by one who is also
interested, or (2) by one who stands in such a relation to the person
interested as to afford a reasonable ground for supposing the motive for the
communication to be innocent, or (3) who is requested by the person interested
to give the information."
The Civil Code section
47, subdivision (c) privilege applies when "the communicator and the
recipient have a common interest and the communication is of a kind reasonably
calculated to protect or further that interest." (Deaile
v. General Telephone Co. of
California (1974) 40 Cal.App.3d 841, 846.)
An employer's economic interest in clarifying and preventing abuses of
its policies and promoting employee morale justifies limited publication of the
reasons for an employee's termination to other employees. (Id.,
at p. 849.) An employer is not liable
for defamation if one employee advises another employee of a suspicion that a
coworker has engaged in wrongdoing, so long as the communication is not
motivated by malice. (
relating to the conduct of an employee fall within the common interest
privilege. (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986)
180 Cal.App.3d 985, 995; see also King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440 ["because
an employer and its employees have a common interest in protecting the
workplace from abuse, an employer's statements to employees regarding the
reasons for termination of another employee generally are
privileged"].)
The statements made by
Current, DeBrum and Blount fall within the privilege because they concerned the
reasons for Cifuentes's termination and were made to others working at
Costco. Consequently, Cifuentes bore the
burden of proving that the statements were made with malice. (Lundquist
v. Reusser (1994) 7 Cal.4th 1193,
1202-1203.) Malice is "'"a
state of mind arising from hatred or ill will, evidencing a willingness to vex,
annoy or injure another person."'
[Citations.]" (
To defeat summary
judgment, Cifuentes was required to produce clear and convincing evidence of
actual malice. In Sanborn v.
Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413, our Supreme Court
explained: "'The malice necessary
to defeat a qualified privilege is "actual malice" which is
established by a showing that the publication was motivated by hatred or ill
will towards the plaintiff or by a
showing that the defendant lacked reasonable grounds for belief in the truth of
the publication and therefore acted in reckless disregard of the plaintiff's
rights [citations].'"
"[M]alice is not inferred from the communication." (Civ. Code, § 48; see
745, 752-753 ["'[I]f the publication is made for the purpose of protecting
the interest in question, the fact that the publication is inspired in part by
resentment or indignation at the supposed misconduct of the person defamed does
not constitute an abuse of the privilege'"]; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 932 [bare assertion
that the statements made are false does not make them so, much less establish
that they were made maliciously].)
Cifuentes
argues he has raised a triable issue of material fact as to malice because
Current and DeBrum talked about the grazing incident near a check stand where
others could possibly have heard the conversation. There is no evidence that store customers
overheard the conversation between DeBrum and Current. Both of them stated that when they spoke, no
customers were in the vicinity. The alleged
defamatory statements were privileged.
Cifuentes has failed to meet his burden to show actual malice.
Cifuentes
alleges the individual respondents engaged in "outrageous" conduct
that was intended to, and did, cause plaintiff "severe emotional
distress," giving rise to common law causes of action for intentional
infliction of emotional distress.
The trial court did not
err in granting summary adjudication of this claim because workers'
compensation is the exclusive remedy for injuries arising out of termination of
employment. As stated by our Supreme Court in Miklosy v. Regents of University
of California (2008) 44 Cal.4th 876, 902: "Shoemaker v.
Myers is of particular relevance here because it involved
termination of a whistleblower employee. We said: 'To the extent plaintiff purports to allege
any distinct cause of action, not dependent upon the violation of an express
statute or violation of fundamental public
policy, but rather directed at the intentional, malicious aspects of
defendants' conduct . . . , then plaintiff has alleged no more than the
plaintiff in Cole v. Fair Oaks Fire Protection Dist. . . . The kinds of
conduct at issue (e.g., discipline or criticism) are a normal part of the
employment relationship. Even if such conduct
may be characterized as intentional, unfair or outrageous, it is nevertheless
covered by the workers' compensation exclusivity provisions.' (Shoemaker v. Myers [1990] 52 Cal.3d [1,]
25.) We reaffirmed this holding in Livitsanos
v. Superior Court, which also involved a terminated employee: 'So long as
the basic conditions of compensation are otherwise satisfied (Lab. Code, §
3600), and the employer's conduct neither contravenes fundamental public policy
[citation] nor exceeds the risks inherent in the employment relationship (Cole
[v. Fair Oaks Fire Protection Dist. (1987)] 43 Cal.3d 148), an employee's emotional distress
injuries are subsumed under the exclusive remedy provisions of workers'
compensation.' (Livitsanos v.
Superior Court [1992] 2
Cal.4th [744,] 754.)"
In some exceptional
circumstances a separate civil action may lie where the employee's injury
results from employer conduct that is outside the normal risk of
employment. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24
Cal.4th at p. 812.) As a guiding
principle, the court must consider only the acts themselves and not the motives
behind the acts. The critical issue is
whether the alleged acts themselves, bereft of claimed motives, "'can ever
be viewed as a normal aspect of the employer relationship' . . . ." (Id.
at p. 822.) Termination of employment,
including reasonable attempts to investigate employee theft and interrogations,
are considered to be a normal part of the employment relationship and hence do
not give rise to a tort action against the employer. (Id.
at p. 821; Cole v. Fair Oaks Fire
Protection Dist., supra, 43 Cal.3d at pp. 159-160.)
Our colleagues in the
Second Appellate District have held that the tort of intentional infliction of
emotional distress is not actionable in wrongful termination cases. This is because the conduct at issue must
itself be outrageous—not the motivation behind the conduct. As explained in Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80: "Managing personnel is not outrageous
conduct beyond the bounds of human decency, but rather conduct essential to the
welfare and prosperity of society. A
simple pleading of personnel management activity is insufficient to support a claim
of intentional infliction of emotional distress, even if improper motivation is
alleged. If personnel management
decisions are improperly motivated, the remedy is a suit against the employer
for discrimination." Other
districts concur. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1379 (Sixth Dist.)
["infliction of emotional distress claims are merely alternative legal
theories for holding defendants liable for the same conduct" that
underlies a related intentional tort.
Thus, such claims are "redundant" and must stand or fall with
the related claim]; and see Sheppard v.
Freeman (1998) 67 Cal.App.4th 339, 343 (Fourth Dist.) [actions for inducing
the employer's breach are barred "whether or not the employees are
determined to have been acting within the scope of their employment and
regardless of their personal motives"].)
The claim fails because
Cifuentes has not provided evidence raising a triable issue of material fact
that the alleged wrongful conduct fell outside the scope of the normal
employment relationship. (See, e.g.,
Cir. 1984) 736 F.2d 1348, 1352 [plaintiff was allegedly fired on a pretext,
without cause and in a "callous and insensitive manner"].)
negligence claim, too, is barred by the exclusive remedy provisions of the workers'
compensation law. (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1266;
see also Elsner v. Uveges (2004) 34
Cal.4th 915, 931 [issue of negligence does not arise in workers' compensation
scheme].) In Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995,
1002, our Supreme Court explained:
" To prevent employees from circumventing the exclusivity rule by
bringing lawsuits for work-related injuries against coemployees, who in turn
would seek indemnity from their employers, the Legislature in 1959 provided
immunity to coemployees.
[Citation.] In other words, the
purpose of the exclusivity rule would be defeated if employees could bring
actions against fellow employees acting in the scope of employment such that
the fellow employees' negligence could be imputed to their employers. [Citation.]
Therefore, workers' compensation was also made the exclusive remedy
against fellow employees acting within the scope of employment. (Ibid.) . . . [¶] . . . [A] coemployee
is immune from suit to the extent necessary to prevent an end-run against the
employer under the exclusivity rule.
[Citation.] 'It is self-evident
that Labor Code section 3601 did not establish or create a new right or cause
of action in the employee but severely limited a preexisting right to freely
sue a fellow employee for damages.'"
Moreover, where, as
here, a plaintiff claims no injury until he is discharged, there is no tort
remedy for negligence. "As long as
the alleged injury would not have occurred but for the employment termination,
employee is generally limited to a contractual remedy." (Hine
v. Dittrich (1991) 228 Cal.App.3d 59, 65.)
There is no evidence that Cifuentes suffered injury prior to his
termination. At his deposition, he
stated that all his physical and financial problems occurred after his
termination.
PUNITIVE
DAMAGES
Because we conclude
Cifuentes failed to establish a triable issue of material fact on any of his tort
claims, we need not address his punitive damage claim. Cifuentes cannot recover any damages,
compensatory or punitive, in the absence of a theory of recovery that supports
the damage award.
The judgment is
affirmed. Respondents shall recover
costs on appeal.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
KLEIN, P.J.
CROSKEY, J.
>
Thomas P. Anderle, Judge
Superior Court County of
Santa Barbara
______________________________
Edward Lowenschuss for
Plaintiff and Appellant.
Sheppard, Mullin,
Richter & Hampton, Tara Wilcox, Jeffrey A. Dinkin and Aaron W. Heisler for
Defendants and Respondents.
signed a revised Agreement in 2007. No
revisions were made to provisions in the Agreement that are relevant to this
appeal.
initially reported that he had seen Current "hugging and kissing" the
female employee. However, he admitted in
his deposition testimony that he did not actually observe Current kissing her.
