Shoemaker v. Myers

Opinion

This appeal is before us for the second time, this time on remand from the Supreme Court. (Cal. Rules of Court, rule 29.4.) The matter originally came to us on appeal from a judgment of dismissal following the

Pursuant to the Supreme Court’s remand, we shall deal in this opinion with those matters not addressed in Shoemaker I and Shoemaker II. We shall conclude defendants are not entitled to immunity with respect to plaintiff’s claim for violation of the whistle-blower statute. We shall also conclude a theory of recovery for wrongful termination in violation of public policy (Tameny) is not preempted by workers’ compensation law. Although we shall conclude plaintiff has stated a Tameny claim based on allegations of wrongful discharge in retaliation for activity protected by the whistle-blower statute and exercise of rights afforded by the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.; hereafter the Officers Rights Act), we shall further conclude that as to plaintiff’s Tameny claim, defendants are entitled to immunity under Government Code sections 815.2 and 821.6. Finally, we shall determine that plaintiff complied with the Tort Claims Act. (Gov. Code, § 810 et seq.) Accordingly, we shall reverse in part and affirm in part.

The facts as disclosed by plaintiff’s pleadings are taken primarily from the opinion of the Supreme Court in Shoemaker II: “Plaintiff Jack Shoemaker (plaintiff) had been an investigator for the Department of Health Services (Department) for nine years, and had an exemplary record in civil service for twenty-two years up to the time of his termination.

“In May 1981, a magazine article about the health centers appeared, criticizing the health centers’ use of lay health workers and calling into question Beverlee Myers’s role in continuing funding for the health centers. After the article appeared, Shuttleworth interrogated plaintiff and other investigators, and threatened to fire any investigator who had ‘leaked’ information to the press unless he or she ‘confessed.’

“The events immediately precipitating plaintiff’s termination began in November 1981, when a psychiatrist complained to the Department that Department investigators, in the course of another investigation unrelated to the health centers matter, had harassed two of the psychiatrist’s patients. Although plaintiff was not in fact involved in that investigation, the psychiatrist mistakenly identified plaintiff as one of the investigators. Plaintiff’s supervisors thereafter orally interrogated him at least two times, on or about December 4 and December 16, 1981, about the misconduct charges. Shuttleworth then demanded that plaintiff provide written answers and explanations to the same questions he had already answered orally. Plaintiff, by a letter memorandum dated December 21, 1981, stated he would not answer further questions on the matter without legal representation in accordance

“Plaintiff filed an administrative appeal to the State Personnel Board. On January 26, 1982, the State Personnel Board ordered plaintiff reinstated. After plaintiff won reinstatement, Shuttleworth and other senior officers made statements to the effect that, even though they knew the termination was not proper, they wanted to cause plaintiff as much trouble as possible, or to the effect that, if it had been anyone other than plaintiff, he would not have been fired.” (Shoemaker II, supra, 52 Cal.3d at pp. 7-9.)

Plaintiff filed this action against defendants Beverlee A. Myers, director of the Department, Barry Dorfman, assistant director of the Department, Richard H. Koppes, an attorney for the Department, Ted Scott, of the Office of the Executive Secretary of the Department, Philip G. Weiler, chief deputy director of Preventive Health Services in the Department, Jack Reagan, deputy director of the Audits and Investigations Division of the Department, Charles Shuttleworth, chief of the Audits and Investigations Division of the Department, the Department, and the State of California (hereafter collectively defendants) alleging his termination had been in retaliation for the health centers investigation and report. Plaintiff also alleged the pretextual reason given by the Department for his termination, “insubordination” for invoking his right to representation under the Officers Rights Act, was itself improper. (Shoemaker II, supra, 52 Cal.3d at p. 9.)

Plaintiff’s first amended complaint set forth 11 counts: (1) “wrongful termination,” (2) violation of Government Code section 19683, (3) wrongful termination in violation of public policy, (4) breach of contract and the implied covenant of good faith and fair dealing, (5) wrongful interference with a business relationship and wrongful inducement of breach of contract, (6) intentional infliction of emotional distress, (7) fraud and deceit, (8) violation of civil rights ( 42 U.S.C. § 1983 ), (9) injunctive relief, and a claim for attorney fees (10) for plaintiff and (11) on behalf of the Peace Officers Research Association of California (PORAC) legal defense fund. The first amended complaint alleged physical injury and disability resulting from defendants’ acts. (Shoemaker II, supra, 52 Cal.3d at p. 9.)

Defendants demurred and the trial court sustained demurrers to the first, second, third and sixth counts of the first amended complaint based on workers’ compensation exclusivity. Demurrers to the seventh count were

The second amended complaint contained the same 11 counts, but essentially omitted reference to physical injury, except as to the claim for violation of civil rights. The trial court again sustained demurrers with leave to amend based on workers’ compensation exclusivity. However, demurrers as to the civil rights, injunction, and attorney fees claims were sustained without leave to amend. (Shoemaker II, supra, 52 Cal.3d at p. 10.)

Plaintiff’s third amended complaint realleged claims for (1) “wrongful termination,” (2) violation of Government Code section 19683, (3) wrongful discharge in violation of public policy, (4) breach of contract and the implied covenant of good faith and fair dealing, (5) interference with business relationship and inducement of breach of contract, and (6) intentional infliction of emotional distress. Defendants again demurred. This time the trial court sustained the demurrers without leave to amend, concluding plaintiff failed to explain the omission in the second and third amended complaints of physical injury allegations which had appeared in the verified first amended complaint and therefore the claims were barred by the exclusivity provisions of the workers’ compensation law. Judgment of dismissal was entered. (Shoemaker II, supra, 52 Cal.3d at pp. 10-11.)

On appeal to this court, we agreed all counts of the third amended complaint were preempted by the workers’ compensation law. However, we concluded the eighth count of the second amended complaint stated a federal civil rights claim against the individual defendants. We therefore directed the trial court to overrule the demurrers to the second amended complaint as to the civil rights claim and the ancillary claim for attorney fees. (Shoemaker I.)

As previously indicated, the Supreme Court reversed in part, holding the Government Code section 19683 claim is not preempted by the workers’ compensation law. The Supreme Court remanded the case to this court “for further proceedings consistent with [its] opinion, including consideration of those issues not previously determined.” (Shoemaker II, supra, 52 Cal.3d at p. 27.)

“A determination whether a cause of action is barred by the exclusive remedy provisions of the workers’ compensation law must take into

In Shoemaker II, the court discussed at length the applicability of workers’ compensation to intentional employer conduct (i.e., termination). Relying on its earlier decision in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [ 233 Cal.Rptr. 308 , 729 P.2d 743 ] (hereafter Cole), the court noted: “the legal theory supporting [the] exclusive remedy provisions is a presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort. [Citations.] The function of the exclusive remedy provisions is to give efficacy to the theoretical ‘compensation bargain.’ ” (Shoemaker II, supra, 52 Cal.3d at p. 16.)

In Cole, the court recognized three general categories of circumstances in which an employer’s intentional conduct falls outside the compensation bargain: “conduct of an employer having a ‘questionable’ relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment, or conduct where the employer or insurer stepped out of their proper roles. [Citations.]” (Cole, supra, 43 Cal.3d at p. 161.) In Shoemaker II, the court concluded a cause of action based on violation of the whistle-blower statute falls outside the compensation bargain because of the greater specificity of the whistle-blower statute and because to hold otherwise would render that statute superfluous. (Shoemaker II, supra, 52 Cal.3d at p. 22.) As stated by the court: “the Legislature’s enactment of specific statutory protection for whistle blowing activity, including a civil action for damages incurred from official retaliatory acts, defines the protected activity as a specific statutory exception to the provisions of the workers’ compensation law; such conduct lies well outside the compensation bargain.” (Shoemaker II at p. 23, italics deleted.)

The tort of wrongful discharge in violation of public policy, first recognized in Tameny, was further refined by the court in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [ 254 Cal.Rptr. 211 , 765 P.2d 373 ] (hereafter Foley) and Rojo v. Kliger (1990) 52 Cal.3d 65 [ 276 Cal.Rptr. 130 , 801 P.2d 373 ]. In Foley, the court rejected a claim based on termination of an

We next consider whether plaintiff has stated a viable Tameny claim. Plaintiff contends his claim implicates three separate public policies: (1) freedom from termination without just cause, (2) the policy underlying the whistle-blower statute (Gov. Code, § 19683), and (3) the policy underlying the Officers Rights Act (Gov. Code, § 3300 et seq.). (Further statutory references to sections of an undesignated code are to the Government Code.) However, it is readily apparent the first of these alleged public policies is in fact private in nature, implicating rights existing between plaintiff and his employer alone. The same cannot be said of the other two.

The third (Tameny) count of the third amended complaint incorporates the allegations of count two, the whistle-blower claim. It further alleges plaintiff has been subjected to “direct threats, intimidation and harassment” because of his investigation and reporting of the health centers, has been prevented from “carrying out his obligations as a peace officer,” and was terminated in retaliation for this investigating and reporting activity.

At the time of plaintiff’s termination, section 19683 provided: “No state officer or employee nor any person whatsoever shall directly or indirectly use or threaten to use any official authority or influence in any manner whatsoever which tends to discourage, restrain, interfere with, coerce or discriminate against any other state officer or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Attorney General, or the Joint Legislative Audit Committee pursuant to Article 3 (commencing with Section 10540) of Chapter 4 of Part 2 of Division 2, or any other appropriate authority any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related thereto. Any person guilty of such an act may be liable in an action for civil damages brought against him by the offended party. Notwithstanding the provisions of Section 19682, a violation of this section shall not be a misdemeanor.” (Stats. 1979, ch. 584, § 2, pp. 1830-1831)

“The purpose of an action under the whistle-blower protection statute .. . is to provide redress to [state employees] for damages suffered as a consequence of the specific use of official power to deter a particular protected activity—the proper reporting of on-the-job or job-related unlawful government actions.” (Shoemaker II, supra, 52 Cal.3d at pp. 21-22.) By insulating them from retaliation, section 19683 is designed to encourage

In Collier v. Superior Court (1991) 228 Cal.App.3d 1117 [ 279 Cal.Rptr. 453 ], the Court of Appeal concluded a private sector employee terminated for reporting to his employer suspected illegal conduct by fellow employees can state a cause of action under Tameny. According to the court, this situation is distinguishable from Foley because the criminal conduct is ongoing. Thus, “[p]etitioner’s report served not only the interests of his employer, but also the public interest in deterring crime and . . . the interests of innocent persons who stood to suffer specific harm from the suspected illegal conduct. ...” (At pp. 1122-1123.)

In explaining the public policy implicated by the employer’s conduct, the court stated: “Labor Code section 1102.5, subdivision (b), which prohibits employer retaliation against an employee who reports a reasonably suspected violation of the law to a government or law enforcement agency, reflects the broad public policy interest in encouraging workplace ‘whistle-blowers,’ [sic] who may without fear of retaliation report concerns regarding an employer’s illegal conduct. This public policy is the modem day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker. [Citation.] Even though the statute addresses employee reports to public agencies rather than to the employer and thus does not provide direct protection to petitioner in this case, it does evince a strong public interest in encouraging employee reports of illegal activity in the workplace. [Citation.]” (Collier v. Superior Court, supra, 228 Cal.App.3d at p. 1123.)

The public interest protected by section 19683 is self-evident. The statute does not deal with wrongdoing in employment generally but relates specifically to wrongdoing either in state employment or directly related thereto. It is difficult to imagine an activity more suffused with the public interest than the investigation and exposure of wrongdoing in public employment, whether that wrongdoing occurred in the past or is currently ongoing. Plaintiff’s third amended complaint states a claim under Tameny for wrongful termination in violation of the public policy underlying the whistle-blower statute.

Similarly, defendants’ alleged violation of the Officers Rights Act supports a Tameny claim. The third amended complaint alleges plaintiff was wrongfully terminated not only in retaliation for his whistle-blowing efforts

Accepting defendants’ characterization of plaintiff’s whistle-blower and Tameny claims as falling under the general rubric of malicious prosecution, we must decide whether section 821.6 immunity applies. Plaintiff contends section 19683 must be considered an exception to section 821.6 because the whistle-blower statute was enacted later, is the more specific of the two and to hold otherwise would lead to absurd results. Plaintiff’s whistle-blower and Tameny claims are both grounded, the latter in part, on an alleged violation of section 19683. Plaintiff therefore concludes section 821.6 immunity applies to neither claim. Defendants contend all tort claims are expressly covered by the immunity statutes and policy considerations permit no exception for section 19683. While we find plaintiff’s premises the more persuasive, we do not accept his conclusion in its entirety, finding instead the Tameny, but not the whistle-blower claim subject to immunity.

Section 821.6 applies to claims against a public employee arising from the initiation or prosecution of judicial or administrative proceedings. Section 19683 applies when any “state officer or employee [or] any person whatsoever . . . directly or indirectly use[s] or threaten[s] to use any official authority or influence in any manner whatsoever which tends to discourage, restrain, interfere with, coerce or discriminate against any other state officer or employee” because the latter has reported information relating to an actual or suspected violation of law. The coverage of sections 821.6 and 19683 overlaps where, as here, public employees are accused of using official authority to “discourage, restrain, interfere with, coerce and discriminate against” another public employee by means of a judicial or administrative proceeding.

Generally, where two statutes deal with the same subject matter, the more specific controls. (Rose v. State of California (1942) 19 Cal.2d 713 ,

Section 821.6 covers the initiation or prosecution of judicial or administrative proceedings where the target may or may not be a state employee. The policy behind section 821.6 is to encourage fearless performance of official duties. (Hardy v. Vial, supra, 48 Cal.2d at pp. 582-583; White v. Towers (1951) 37 Cal.2d 727 , 729-730 [ 235 P.2d 209 , 28 A.L.R.2d 636 ].) State officers and employees are encouraged to investigate and prosecute matters within their purview without fear of reprisal from the person or entity harmed thereby. Protection is provided even when official action is taken maliciously and without probable cause.

As previously mentioned, the purpose underlying the whistle-blower statute is to provide redress to a limited class, state employees, for harm suffered by the use of official power to deter reporting of unlawful government activity. The statute is designed to encourage such reporting and thereby facilitate the detection and prosecution of official wrongdoing.

Because the scope and purposes of section 19683 are more narrow than those of section 821.6, the former prevails where the two are in conflict. To hold otherwise would reduce the protection otherwise afforded by section 19683 to situations where a public employee uses official authority to harm another public employee by means other than formal disciplinary proceedings, or where a nonpublic employee uses official authority to harm a public employee in any way. Because it is far more likely the party violating section 19683 will be a public employee, the result urged by defendants would immunize the most egregious conduct undertaken to discourage whistle-blowing. The right of the injured party to civil damages for such conduct, as expressly guaranteed by section 19683, would be rendered illusory.

In interpreting legislative enactments, “we indulge in a presumption that constitutional and legislative provisions were not intended to produce unreasonable results. [Citation.]” (Barber v. Blue (1966) 65 Cal.2d 185 , 188 [ 52 Cal.Rptr. 865 , 417 P.2d 401 ].) “Where a statute is susceptible of two constructions, one leading to mischief or absurdity, and the other consistent with justice and common sense, the latter must be adopted. [Citations.]” (Lampley v. Alvares (1975) 50 Cal.App.3d 124 , 128-129 [ 123 Cal.Rptr. 181 ];

Nevertheless, we believe plaintiff’s Tameny claim is barred by section 821.6 immunity. As a claim for wrongful discharge, it falls squarely within section 821.6 as interpreted by Hardy, supra, 48 Cal.2d 577 , and Kemmerer, supra, 200 Cal.App.3d 1426 . The graveman of a Tameny claim is wrongful discharge against public policy. The sources of such policy, if not infinite, are unquantified and probably unquantifiable. Nothing in the whistle-blower statute suggests the Legislature intended that a Tameny claim against otherwise immune public employees would survive simply because, from among all those which theoretically might be implicated, the particular public policy in issue arose from that statute. A fortiori, a Tameny claim based on violation of the public policy underlying the Officers Rights Act also does not escape the effect of section 821.6 immunity.

In section 19683 the Legislature provided that “any person guilty of [violating its terms] may be liable in an action for civil damages brought against him by the offended party.” Since section 19683 is directed chiefly, if not exclusively, against state employees otherwise protected by section 821.6 immunity, and since its terms may clearly be violated by taking formal disciplinary proceedings against the “offended party” (who in all cases would be a state employee), it is clear to us that the application of section 821.6 immunity to the offending party is totally inconsistent with the design of section 19683. Beyond that, however, we find no inconsistency between section 19683 which itself creates “an action for civil damages” against the offending party and the availability to that offending party of section 821.6 immunity in respect to any other action where it otherwise would apply.

The trial court sustained demurrers to the third amended complaint on the grounds the claim filed with the state agency did not encompass the causes of action included in the complaint and was untimely as to causes of action accruing before January 15, 1982.

The Government Tort Claims Act (§ 810 et seq.), which abrogates common law immunity of state and local governmental entities, requires an

Addressing first the question of scope, plaintiff submitted to the Department a claim alleging he was terminated “for attempting to obtain proof that he had been previously misidentified in a complaint filed by a citizen” and “for refusing to submit a fourth written response to questions from his superiors without consultation with his attorney.” The claim also alleged the termination was “a violation of traditional principles of reasonableness and fair play” and this interfered with plaintiff’s “contractual rights to his position.” Finally, the claim alleged “the dismissal was an interference with [plaintiff’s] responsibility and duty to carry out the law.”

Clearly, the claim submitted to the Department presaged allegations in the third (Tameny) count of violation of the Officers Rights Act. It also alerted defendants of allegations in the second and third counts of retaliation for plaintiff’s whistle-blowing activities. Plaintiff’s job as an investigator for the Department was to investigate and report on compliance with the law as it related to the Department’s functions. When this investigation led to suspicion of wrongdoing by plaintiff’s superiors at the Department, or other government employees, any interference with plaintiff’s reporting duties implicated the whistle-blower statute.

A claim served on a governmental entity must fairly describe what that entity is alleged to have done. A theory of recovery not included in the claim may not thereafter be maintained. (See Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 , 434 [ 253 Cal.Rptr. 587 ]; Donohue v. State of California (1986) 178 Cal.App.3d 795 , 802 [ 224 Cal.Rptr. 57 ].) However, while the circumstances described in a claim must substantially correspond with the causes of action pled, the claim need not conform to pleading standards. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071 , 1082-1083 [ 195 Cal.Rptr. 576 ].) “The primary function of the [Government Tort Claims Act] is to apprise the governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate, avoid litigation by settling meritorious claims. [Citations.]” (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70 , 74 [ 135 Cal.Rptr. 621 ].)

Although lacking in detail, the claim submitted by plaintiff was adequate to enable defendants to investigate whether there had been a

The judgment is reversed insofar as it orders dismissal of the second count of the third amended complaint and the eighth count of the second amended complaint, and the matter is remanded with directions to overrule the demurrers to those counts. In all other respects the judgment is affirmed. Plaintiff is to recover his costs on appeal.

Scotland, J., and Raye, J., concurred.

A petition for a rehearing was denied February 21, 1992, and appellant’s petition for review by the Supreme Court was denied April 16, 1992.