Fuller v.
of Los Angeles
Filed 1/22/13
Fuller v. County of Los Angeles CA2/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DOUGLAS
FULLER,
Plaintiff and Appellant,
v.
COUNTY OF LOS
ANGELES et al.,
Defendants and Respondents.
B228815
(Los Angeles County
Super. Ct. No.
BC370032)
APPEAL
from a judgment of the Superior Court of
County, Michael C. Solner, Judge. Affirmed.
Haney,
Roderick, Torbett & Arnold and Steven H. Haney for Plaintiff and Appellant.
McCune
& Harber, Christy L. O’Donnell and Heather M. Bean for Defendants and
Respondents.
__________________
Douglas Fuller, a former firefighter
trainee with the Los Angeles County Fire Department, appeals the judgment
entered after the trial court granted summary
judgment in favor of the County of Los Angeles and County employees Dave Saran and Pitt Gilmore (collectively the
County defendants) on Fuller’s claims of employment discrimination, harassment,
retaliation and related torts. Fuller
contends the trial court erred in concluding the claim he filed with the
Department of Fair Employment and Housing (DFEH) failed to identify any
protected status or activity and thus did not satisfy the exhaustion
requirements of the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). He also contends the court erred in
concluding his non-FEHA tort claims against the County defendants are
time-barred. Because Fuller did not
properly exhaust his administrative remedies with respect to his FEHA claims
and his tort claims, while timely, are without merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Fuller’s
Employment with the County
In 2005,
when Fuller was 37 years old, he was accepted as a trainee with the County Fire Department and assigned to the 118th Fire Academy. According to the allegations in the operative
first amended complaint, on August 5, 2005, Jason Armenta, a
35-year-old fellow firefighter trainee, poured water in Fuller’s firefighter
boot as a prank. Although Fuller
immediately emptied the boot, it remained damp.
During the course of a training session later that day involving a fire,
the water remaining in Fuller’s boot boiled, causing burns and blisters on his
foot.
On
August 8, 2005 Fuller reported his
prank, a violation of internal County Fire Department rules, to his supervisor, Captain Leckliter, who imposed
disciplinary consequences on both Fuller and Armenta. (Armenta had claimed he performed the prank
after Fuller had made fun of him for slowing down the class.) According to Fuller, after he reported the
incident, his instructors, including Gilmore, began to harass him and find
fault with his training exercises. One
instructor told him “[o]ld guys have no motivation.†During Fuller’s termination interview,
Gilmore told him he did not like veterans.
2. Fuller’s
Termination from the County
On
August 16,
2005, during a hose lay exercise, points
were deducted from Fuller’s score for various mistakes. Fuller insists he either did not make the
mistakes or other trainees did not receive point deductions for similar errors. On August 18, 2005 the County terminated Fuller’s employment for failing to accumulate
enough points in the training program.
On August
30, 2005 Fuller appealed the termination
decision to the County’s employee relations department, which investigated and
upheld the decision on December 16, 2005. Fuller did not file any other internal
grievance or any administrative complaint relating to the August 2005
incidents.
3. Fuller’s
Employment with the Riverside County
In
February 2006 Fuller began work as a deputy sheriff trainee with the Riverside
County Sheriff’s Department at its 168th Training Academy. However, in April 2006 Fuller received an
invitation from the County Fire Department to attend a background orientation regarding possible employment as
a firefighter trainee. Still eager to be
a firefighter, on May 5, 2006 Fuller called in
sick to the Riverside County Sheriff’s Department and attended the
orientation. On his application for
employment with the County Fire Department, Fuller wrote, “Do Not Contact†my employer. Captain David Saran, the Fire Department’s
background investigator, assured Fuller it was the policy of the County Fire Department not to contact a prospective trainee’s employer unless the trainee
was going to be accepted into the academy.
In a subsequent telephone conversation with Saran, Fuller reiterated he
did not want his employer contacted unless he was going to be accepted into the
training program.
4. Fuller’s
Termination from the Riverside County
On
June 5, 2006 Fuller’s temporary employment with the Riverside County Sheriff’s
Department was terminated without explanation.
In August 2006 Fuller discovered Saran had called the Riverside County
Sheriff’s Department in May 2006 and revealed Fuller’s attendance at the
background orientation meeting on the same day he had told his supervisors at
the Sheriff’s Department he was too sick to report for work.
5. Fuller’s
DFEH Complaint
On August 4, 2006 Fuller filed a DFEH complaint alleging he had been harassed by County Fire Department personnel on August 5, 2005 and
terminated on August 18,
2005 because of his “reference, background
check, and personal dislike by some trainees.â€
On the form where the complaining party was directed to identify the
form of discrimination he or she had suffered (race, sex, age, religion,
national origin), Fuller marked “other†and wrote “poor reference.†Fuller did not mention his age as a factor in
the harassment, identify the personnel who had allegedly harassed him or
include any other information on the administrative charge.
On
August 24,
2006 the DFEH issued its “right-to-sueâ€
letter, advising Fuller of its decision to close the case and his right to
pursue a civil action under FEHA within one year.
6. Fuller’s
Notice of Ineligibility for the
On
October 5, 2006 Fuller received a letter from the County Fire Department
informing him it had investigated his background as part of the application
process and determined he was not eligible for employment as a firefighter
trainee. Citing County Fire Department
background guidelines and Civil Service rule 6.04, section F, the County
explained his disqualification was based on the fact he had been terminated by
the County Fire Department as well as by “another fire agency.â€
7. Fuller’s
Pursuit of Internal Grievance Procedures Challenging the October 5, 2006
Eligibility Decision
On
October 13, 2006 Fuller appealed the decision through the County’s internal grievance
department, asserting he should not have been deemed ineligible for employment
with the County Fire Department. Fuller
insisted his prior termination was improper and in retaliation for reporting a
rules violation. He also wanted to
clarify he had been terminated by the Riverside County Sheriff’s Department,
not another fire agency.
On
November 16, 2006, the department denied the appeal on its merits, concluding
Fuller had been terminated from its training program due to poor performance in
the hose lay exercises and not due to any retaliatory conduct. It also determined he had been terminated by
the Riverside County Sheriff’s Department for not being honest and truthful
during his employment with them. Under
County Civil Service Rules, either termination was sufficient by itself to
disqualify Fuller from employment with the County Fire Department.
8. Fuller’s
Government Claim with the County Board of Supervisors
On
February 7, 2007 Fuller filed a claim with the County Board of Supervisors pursuant
to Government Code section 911.2, subdivision (a). In a detailed, 10-page claim letter Fuller
highlighted the alleged misconduct of the County Fire Department and its
instructors following his report of Armenta’s actions in August 2005. Fuller advised the County he was pursuing
claims against it for retaliation, negligent and intentional infliction of
emotional distress, negligent and intentional interference with his employment
with the Riverside County Sheriff’s Department and harassment.
On
March 17, 2007 the Board of Supervisors denied the claims on the merits,
informing Fuller its investigation of the matter “fail[ed] to indicate any
liability on the part of the County of Los Angeles.â€
9. Fuller’s
Lawsuit
On April
25, 2007 Fuller filed a lawsuit in the Los Angeles County Superior Court
asserting claims for (1) violation of his federal civil rights (42 U.S.C.
§ 1983) (against County only); (2) interference with prospective economic
advantage (against County and Saran); (3) retaliatory conduct in violation of
Los Angeles County Code section 5.02.060 and Labor Code section 1102.5 (against
County, Saran and Gilmore); and intentional infliction of emotional distress
(against County, Saran and Gilmore).
On
May 30, 2007 the defendants removed the complaint to federal district
court. Fuller then amended his complaint
to add an additional federal civil rights claim and claims for age
discrimination, harassment and retaliation under FEHA.
On
January 29, 2009 the federal court dismissed Fuller’s two federal civil rights
claims and remanded the remaining causes of action to the Los Angeles County
Superior Court.
10. The
County Defendants’ Motion for Summary Judgment/Summary Adjudication
On
January 8, 2010
name="_ftnref4" title="">[4] the County defendants moved
for summary judgment, or, in the alternative, summary adjudication. They argued the non-FEHA causes of action
were barred because Fuller had failed to file an administrative claim as to any
of them within six months of the date the causes of action accrued. As to the FEHA claims, the County defendants
argued they exceeded the scope of the DFEH complaint and thus were barred under
FEHA’s exhaustion doctrine. Pitt and
Gilmore also argued, as employees and agents of the County acting in the course
and scope of their employment, they could not be held liable for any of the
alleged misconduct as a matter of law.
The County defendants also argued there was no evidence to support any
of the claims.
11. Fuller’s
Opposition to the County Defendants’ Summary Judgment/Summary Adjudication
Motion
In his
papers in opposition to the motion, Fuller did not address the County
defendants’ argument directed to the deficiencies in his DFEH complaint. Rather, he argued his FEHA claim for age
discrimination and harassment was valid even though he was under 40 years old
because he had been perceived by his supervisors as being over 40 years
old. As for his non-FEHA claims, Fuller
argued they were timely because the filing requirements of the government
claims statute were tolled while he pursued his internal administrative
remedies. He also argued there were
triable issues of material fact as to each claim that could not be decided on
summary judgment.
12. The
Trial Court’s Order Granting the Motion
The
trial court granted summary judgment for the County defendants. The court concluded the non-FEHA causes of
action were time-barred under Government Code section 911.2. The court also ruled the claims in the FEHA
cause of action exceeded the scope of the DFEH complaint and were barred under
the exhaustion doctrine.
name="_ftnref5" title="">[5]
DISCUSSION
1. Standard
of Review
A motion
for summary judgment is properly granted only when “all the papers submitted
show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.†(Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo
and decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. (Intel
Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We view the evidence in the light most
favorable to the opposing party, liberally construing the opposing party’s
evidence and strictly scrutinizing the moving party’s. (O'Riordan
v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2. Fuller’s
FEHA Claims Were Properly Dismissed for Failure To Exhaust Administrative
Remedies
FEHA
prohibits an employer from, among other things, using age to discriminate
against an employee in connection with hiring, firing or promotions. (Gov. Code, § 12940, subd. (a).) Although “age†within the meaning of FEHA
refers to the “chronological age of any individual who has reached his or her
40th birthday†(Gov. Code, § 12926, subd. (b)), FEHA also makes actionable
discrimination or harassment based on an employee’s age if the employer
believes the employee is 40 years old or older, even if the employee is
actually younger than 40 years of age.
(See Gov. Code, § 12926, subd. (n) [FEHA’s protections encompass
those who are perceived as having any characteristics protected under the
statute].)
title="">[6] FEHA also prohibits
harassment based on age and other classifications expressly protected by FEHA
(Gov. Code, § 12940, subd. (a)) as well as retaliation for engaging
in FEHA-protected activities. (Gov.
Code, § 12940, subds. (a), (h).)
Exhaustion
of FEHA administrative remedies is a prerequisite to judicial relief. (Rojo
v. Kliger (1990) 52 Cal.3d 65, 83 (Rojo);
Okoli v. Lockheed Technical Operations
Co. (1995) 36 Cal.App.4th 1607, 1612 (Okoli)
[“‘[u]nder California law “an employee must exhaust the . . . administrative
remedy†provided by the [FEHA] by filing an administrative complaint with the
DFEH’â€]; see Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1086 [while an employee need not
pursue both internal remedies and administrative remedies, proper filing of
[DFEH] complaint is prerequisite to recovery under FEHA].)
The
purpose of the exhaustion requirement is to provide the DFEH with the opportunity
to resolve the dispute and eliminate “unlawful employment practices by
conciliation.†(Rojo, supra, 52 Cal.3d at p. 83; accord, Wills v. Superior Court (2011) 195 Cal.App.4th 143, 156.) Thus, the administrative complaint must set
forth sufficient information to identify the person or employer alleged to have
committed the unlawful practice as well as “the particulars†of the unlawful
practice. (Gov. Code, § 12960,
subd. (b); Wills, at pp.
157-158.) If not, the exhaustion
requirement has not been satisfied. (See
Wills, at pp. 157-158 [DFEH
charge defines scope of lawsuit and must include facts alleging some basis for
FEHA claim; otherwise FEHA claim has not been properly exhausted].)
Fuller’s
August 4, 2006 DFEH charge, in which he alleged he had been harassed,
retaliated against and terminated because of “reference, background check and
personal dislike by some trainers,†falls far short of meeting the exhaustion
requirement for any of his FEHA claims, even applying the most liberal construction
to that charge. (See generally
178 Cal.App.4th 243, 267 [“‘Administrative charges are to be construed
liberally because they are often drafted by claimants without the assistance of
counsel. Accordingly, “[i]t is sufficient
that the EEOC be apprised, in general terms, of the alleged discriminatory
parties and the alleged discriminatory actsâ€â€™â€].) Fuller expressly indicated his complaint was
based on “poor reference†rather than age-based discrimination or harassment;
in fact, Fuller’s age is never mentioned in the DFEH charge, nor can it be said
to be reasonably related to the facts actually alleged. As a result of this deficiency, Fuller has
failed to exhaust his administrative remedies on those claims. (See Wills
v. Superior Court, supra, 195 Cal.App.4th at pp. 157-158 [merely
checking box on DFEH form without mentioning unlawful acts in DFEH complaint is
insufficient to exhaust administrative remedies]; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th
1718, 1725 [plaintiff foreclosed
under exhaustion doctrine from pursuing claims for
retaliation when the only claim she filed with DFEH was for age
discrimination]; Yurick v. Superior Court
(1989) 209 Cal.App.3d 1116, 1123 [plaintiff could not pursue FEHA claim for
age harassment because DFEH complaint only included allegations of gender
discrimination].)
Similarly,
although Fuller alleged in his DFEH complaint that he was the victim of
retaliation, he did not identify any conduct that was actually protected by
FEHA as the basis for the alleged retaliation.
(See Gov. Code, §§ 12940, 12960, subd. (b).) Harassment or termination based on “personal
dislike†by instructors is not a proper ground for a FEHA cause of action.
Fuller’s
reliance on Martin v. Fisher (1992)
11 Cal.App.4th 118 and Saavedra v. Orange
County Consolidated Transportation (1992) 11 Cal.App.4th 824 is
misplaced. In both cases the courts held
a party identified in the body of the DFEH charge may be sued even if omitted
from the DFEH complaint’s caption because the body of the complaint was
sufficient to put the appropriate party on notice of an alleged FEHA
violation. (See Martin, at pp. 121-122; Saavedra,
at p. 824.) The deficiencies in
Fuller’s DFEH charge are significantly greater than a failure to include
appropriate identifying information in the caption of the DFEH charge. Here, no FEHA-protected status or activity
was alleged in any part of the administrative charge.
To
satisfy the exhaustion requirement and salvage his FEHA claims, Fuller urges us
to consider the letter of complaint he filed with the County’s Office of
Affirmative Action (OAA) the same day he filed his DFEH charge.
DFEH; and the OAA filing cannot substitute for a proper DFEH complaint or make
up for its deficiencies. (See generally
Dist. (1996) 47 Cal.App.4th 1505, 1515 [rejecting plaintiff’s argument a
letter he wrote to DFEH identifying the persons who engaged in unlawful acts
under FEHA was sufficient to substitute for a deficient DFEH charge; FEHA “does
not authorize any alternative to the requirement of the filing of a ‘verified
complaint in writing’†with DFEH]; Wills
v. Superior Court, supra, 195 Cal.App.4th at p. 158 [oral notice of to DFEH
is insufficient to substitute for deficient DFEH charge]; but see
written to DFEH detailing factual bases for claims in the DFEH charge in
concluding those claims had been properly exhausted].) Moreover, even if properly considered, the
letter of complaint filed with the OAA fails to identify any protected FEHA
status or conduct. Although the OAA
filing identifies in exceptional detail the incidents of harassment Fuller
alleges he endured after reporting Armenta’s rules violation, it is entirely
devoid of any allegation the harassment was based on Fuller’s age or perceived
age or that he was retaliated against for engaging in any FEHA-protected
activity.
2. Fuller’s
Tort Causes of Action, Although Timely, Are Without Merit
a. Because
the County did not deny Fuller’s administrative claims on timeliness grounds,
it has forfeited that defense
The
Government Claims Act (Gov. Code, § 900 et seq.) requires, with limited
exceptions not relevant here, “all claims for money or damages against local
public entities†to first be presented to the local public entity before a
lawsuit against the entity may be maintained.
(See Gov. Code, § 946.4 [no suit may be brought against public agency
“unless and until a claim is presented to the agencyâ€]; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738
[“‘failure to timely present a claim for money or damages to a public entity
bars a plaintiff from filing a lawsuit against that entity’â€];
[same].) The purpose of the claims
statute “‘is to provide the public entity sufficient information to enable it
to adequately investigate claims and to settle them, if appropriate, without
the expense of litigation.†(
49 Cal.3d 699, 705.) When the claim relates to a cause of action
for personal injury, it must be presented to the public entity “‘not later than
six months after the accrual of the cause of action.’†(Gov. Code, § 911.2, subd. (a).) If the injured party fails to submit a claim
within the requisite time period, a written application may be made to the
public entity for leave to present a late claim. (Gov. Code, § 911.4, subd. (a).) If the application is denied, the aggrieved
party may petition the superior court for relief from the claim
requirements. (Gov. Code, § 945.6,
subds. (a)(1)-(3), (b).)
If
a claim is filed after the six months have expired, and without the application
for late filing required by Government Code section 911.4, the public entity
may, within 45 days after the claim is presented, give written notice to
the person presenting the claim that it was not timely filed and is being
returned without further action. (Gov.
Code, § 911.3, subd. (a).) The
notice shall advise the party that his or her only recourse is “to apply
without delay†to the public entity “for leave to present a late claim.†(Ibid.) If the public entity fails to give the party
presenting the claim the requisite notice that the claim was untimely and alert
the party of his or her options under Government Code section 911.4, the entity
forfeits any timeliness defense under the Government Claims Act. (Gov. Code, § 911.3, subd. (b) [“[a]ny
defense as to the time limit for presenting a claim described in subdivision
(a) [of Gov. Code, § 911.3] is waived by failure to give the notice set
forth in subdivision (a) within 45 days after the claim is presentedâ€]; see
Cal.3d at p. 706 [“[t]his possibility of waiver encourages public entities
to investigate claims promptly, and to make and notify claimants of their
determinations, thus enabling the claimants to perfect their claimsâ€];
Cal.App.3d 907, 911 [“The purpose of the section 911.3 notice is to assure that
the claimant distinguishes between a claim rejected on its merits and one
returned as untimely. Thus the claimant
is informed as to which procedure to pursue.â€].)
The
County argued in its summary judgment motion, and the trial court agreed, that
each of Fuller’s claims was barred by Government Code section 945.6,
subdivision (a)(1), because it was not presented to the County Board of
Supervisors within the six-month limitation period and no application was made
for a late filing. We need not determine
when each cause of action accrued and whether it was timely filed under the
Government Claims Act. Because the
County Board of Supervisors did not deny the claims on timeless grounds or
provide the notice set forth in Government Code section 911.3, subdivision (a),
it has waived any right to assert the timeliness provisions in Government Code
section 945.6 as a defense. (Gov. Code,
§ 911.3, subd. (b).)
Nonetheless, as we explain in the sections below, summary judgment was
proper because each of the claims lacks merit.
b. Fuller’s
cause of action for intentional interference with prospective economic
advantage fails because he cannot demonstrate any wrongful conduct occurred
To
establish the tort of interference with prospective economic advantage, a
plaintiff must show, among other things, the defendant engaged in an
independently wrongful act beyond the act of the interference itself. (Korea
Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (
Asylum, Inc. (2012) 210 Cal.App.4th 579, 596.)
wrongful if it is unlawful, that is, if it is proscribed by some
constitutional, statutory, regulatory, common law, or other determinable legal
standard.†(Korea Supply, at p. 1159; accord, Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
376, 393.)
Fuller
premises his cause of action for intentional interference with prospective
economic advantage on Saran’s discussions with Sergeant Tim Elwell at the
Riverside County Sheriff’s Department.
Citing evidence that Saran had discussions with Fuller’s former
supervisor at the County Fire Department and knew Fuller would be declared
ineligible for hire before he called Sergeant Elwell, Fuller argues there is at
least a triable issue of material fact whether Saran called Elwell as part of a
legitimate preemployment background check or as part of a malicious effort to
disrupt his employment with the Riverside County Sheriff’s Department.
Regardless
of the motivation for the contact, Fuller is unable to demonstrate the conduct
was wrongful, that is, proscribed by some constitutional, statutory, regulatory
or common law standard. (
p. 1159.) Although Fuller insists
County Fire Department policy during the relevant period prohibited calling an
applicant’s current employer without the applicant’s consent unless the
applicant had been hired pending a completed background check,
policy, without more, does not provide the constitutional, statutory,
regulatory or common law wrong sufficient to state a claim. (Ibid.)
even if the violation of an internal policy were otherwise sufficient and
accepting Fuller’s disputed characterization of the policy as accurate, Fuller
consented to the contact: He signed an
authorization permitting the County to contact his employer as part of a
preemployment background check,
opposition papers and again in his appellate briefs. Absent evidence Saran made any misrepresentations
to Elwell or otherwise exceeded the scope of Fuller’s authorization, there
simply is no wrongful conduct to support the interference claim.
c.
retaliation under Labor Code section 1102.5 and Los Angeles County Code section
5.02.060 fail because they are not premised on disclosure of a violation of
state or federal law or regulation
Labor Code section 1102.5,
subdivision (b), prohibits an employer from retaliating “against an employee
for disclosing information to a government or law enforcement agency, where the
employee has reasonable cause to believe that the information disclosed a
violation of state or federal statute, or a violation or noncompliance with a
state or federal rule or regulation.â€
The statute’s purpose is to “encourag[e] workplace whistle-blowers to
report unlawful acts without fearing retaliation.†(Green
v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)
Fuller
contends the County Fire Department retaliated against him for reporting Armenta’s
violation of its safety rules. However,
the disclosure of an internal policy violation, standing alone, is an
inadequate basis for a claim for whistleblower retaliation under Labor Code
section 1102.5. (See
148 Cal.App.4th 922, 933 [to come within provisions of Lab. Code,
§ 1102.5, the activity disclosed by employee must violate a
regulation]; Mueller v. County of Los
Angeles (2009) 176 Cal.App.4th 809, 822 (Mueller) [same].)
violated Labor Code section 1102.5 by retaliating against him after he filed a
formal grievance challenging the department’s transfer of two of his
colleagues, which the firefighter claimed violated internal departmental
policy. The Mueller court affirmed an order granting summary judgment in favor
of the County, explaining that, by its terms, Labor Code section 1102.5
requires disclosure of a violation of state or federal law or regulation. Reporting violations of County Fire
Department internal policies that do not amount to a violation of state or
federal law or regulation cannot serve as the basis for a whistleblower
retaliation claim under Labor Code section 1102.5. (Mueller,
at p. 822.)
Fuller’s
related contention that the County’s conduct runs afoul of Los Angeles County
Code section 5.02.060, which prohibits the County from retaliating against its
employees for reporting, among other things, “a work-related violation by a
[C]ounty officer or employee of any law or regulation,â€
flaw: There is no violation of any
this local code provision, which contains its own remedies for violations. (Mueller,
supra, 176 Cal.4th at p. 820; see also Los Angeles County Code, § 5.02.060,
subd. C.)
Fuller
alternatively argues he was the victim of retaliation—terminated and later
disqualified from employment—because he reported age discrimination and
harassment, a violation of FEHA and federal civil rights laws. However, the evidence is undisputed that
Fuller reported a safety violation to his superiors, not age discrimination or
age-based harassment.
d. Fuller’s
cause of action for intentional infliction of emotional distress fails because
the conduct alleged, to the extent it is not subject to workers’ compensation
exclusivity, is not “extreme or outrageous†as a matter of law
Fuller’s
cause of action for intentional infliction of emotional distress requires,
among other things, extreme and outrageous conduct by the County with the
intention of causing, or reckless disregard for the probability of causing,
Fuller’s severe emotional distress. (
32 Cal.3d 197, 209; Christensen v.
Superior Court (1991) 54 Cal.3d 868, 903.)
A defendant’s conduct is “ ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized community.’â€â€™â€ (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
“‘“[M]ere insults, indignities, threats, annoyances, petty oppressions, or
other trivialitiesâ€â€™â€ are insufficient to state a claim. (Id. at
p. 1051.) Emotional distress is severe
when it is “‘“‘of such substantial quality or enduring quality that no
reasonably person in civilized society should be expected to endure it.’â€â€™â€ (Ibid. [Supreme
Court has set a “high bar†to establish the severity of the emotional distress
suffered]; see Kelley v. The Conco
Companies (2011) 196 Cal.App.4th 191, 215 [same].)
In
their summary judgment motion the County defendants argued this cause of action
was preempted by the exclusivity provisions of the Workers’ Compensation Act
(Lab. Code, § 3200 et seq.). To the
extent Fuller’s emotional distress claim is based on his allegations of “unfair
discipline,†the County defendants are correct:
Those actions fall within the normal part of the employment
relationship, even when they are intentional and maliciously harmful. (See Cole
v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [“[w]hen
the misconduct attributed to the employer is actions which are a normal part of
the employment relationship, such as demotions, promotion, criticism of work
practices and frictions in negotiations as to grievances, an employee suffering
from emotional distress causing disability may not avoid the exclusive remedy
provisions of the Labor Code by characterizing the employer’s decisions as
manifestly unfair, outrageous, harassment or intended to cause emotional
disturbances resulting in disabilityâ€]; Shoemaker
v. Myers (1990) 52 Cal.3d 1, 15 [discipline and criticism are a normal part
of the employment relationship; “[e]ven if such conduct may be characterized as
intentional, unfair, or outrageous, it is nevertheless covered by the workers’
compensation exclusivity provisionsâ€].)
However,
workers’ compensation exclusivity rules do not apply to age-based harassment
claims, which, like sexual harassment, fall outside the ordinary course of
employment. (See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158,
1164 [“harassment consists of conduct outside the scope of necessary job
performanceâ€]; Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1100 [same], overruled on another ground in
Cal.4th at p. 80, fn. 6.) Such
harassment may be considered sufficiently “extreme and outrageous†to state a
cause of action for intentional infliction of emotional distress. (Cf. Hughes
v. Pair, supra, 46 Cal.4th at pp. 1050-1051 [if properly alleged, a
claim for sexual harassment can establish “‘the outrageous behavior element of
a cause of action for intentional infliction of emotional distress’â€];
at p. 216 [same]; Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618 [same].).
Nonetheless,
Fuller’s allegations and supporting evidence fall far short of describing
extreme and outrageous conduct sufficient to go to a jury. Fuller identifies two or three isolated
remarks he attributes to his perceived age.
considered separately or together, is so extreme or outrageous as to be outside
the bounds of human decency, much less create a hostile work environment
permeated by age-based harassment. (See
1049 [defendant trustee’s remark to decedent’s wife, “I’ll get you on your
knees eventually†and “fuck you one way or another,†a vulgar reference to
financial destruction, amounted neither to quid pro quo sexual harassment nor
hostile work environment under Civ. Code, § 51.9 because conduct, in
context, was not sufficiently severe or pervasive; single remark was also
insufficient to support cause of action for intentional infliction of emotional
distress]; Haberman v. Cengage Learning,
Inc. (2009) 180 Cal.App.4th 365, 369 [allegations of sexual harassment that
fell “far short†of establishing hostile work environment also failed to
establish extreme or outrageous conduct to support claim of intentional
infliction of emotional distress]; see generally Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 [tort of
intentional infliction of emotional distress does not “extend to ‘mere insults,
indignities, threats, annoyances,
petty oppressions, or other trivialities.
The rough edges of our society are still in need of a good deal of
filing down, and in the meantime plaintiffs must necessarily be expected and
required to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate or unkind.’â€].)
Fuller
also argues the termination of his employment, as well as the subsequent
refusal to rehire him, caused him to suffer severe emotional distress. He asserts both decisions were based on his
“poor performance,†which he insists was pretext for age discrimination. Such personnel decisions, however, even if
improperly motivated, cannot form the basis for an intentional infliction of
emotional distress claim. “Managing
personnel is not outrageous conduct beyond the bounds of human decency, but
rather conduct essential to the welfare and prosperity of society.†(Janken
v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Thus, personnel actions by an employer such
as hiring and firing are insufficient to support a claim of intentional
infliction of emotional distress even when those decisions are motivated by
discriminatory conduct. (
In such cases, where the conduct is outside the scope of workers’
compensation exclusivity, the proper remedy is a suit for discrimination. (Ibid.
[“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 discriminationâ€]; see also Trerice
v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883-884.)
The judgment is affirmed. The
County, Pitt and Gilmore are to recover their costs on appeal.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
hearing. He was informed by the
Riverside County Sheriff’s Department that, as a probationary employee, he
could be terminated with or without cause and thus had no right to a review
hearing. Fuller does not challenge the
Riverside County Sheriff’s Department’s decision to terminate him.
