Angell v. Peterson Tractor, Inc., C013344

• Decision Date: 12 January 1994
• Docket Number: No. C013344,C013344
• Citation: 26 Cal.Rptr.2d 541,21 Cal.App.4th 981
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 Empl. Prac. Dec. P 42,835, 2 A.D. Cases 1786, 4 NDLR P 401 Leland ANGELL, Plaintiff and Appellant, v. PETERSON TRACTOR, INC., Defendant and Respondent.

Page 541

26 Cal.Rptr.2d 541

21 Cal.App.4th 981, 63 Empl. Prac. Dec. P 42,835,

2 A.D. Cases 1786, 4 NDLR P 401

Leland ANGELL, Plaintiff and Appellant, v. PETERSON TRACTOR, INC., Defendant and Respondent.

No. C013344.

Court of Appeal, Third District, California.

Jan. 12, 1994.

Review Denied May 4, 1994.

[21 Cal.App.4th 984] John Minoletti, Redding, for plaintiff and appellant.

Eric P. Angstadt and Hoyt, Miller & Angstadt, Walnut Creek, for defendant and respondent.

NICHOLSON, Associate Justice.

Is workers' compensation the exclusive remedy for an employee discriminatorily terminated based on a physical handicap arising from a work-related injury? We conclude it is because discrimination based on a work-related physical handicap is a risk explicitly included by the Legislature in the compensation bargain. (Lab.Code, § 132a; see also Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100, 4 Cal.Rptr.2d 874, 824 P.2d 680, and cases cited therein.)

SUMMARY OF FACTS AND PROCEDURE

Appellant Leland Angell was employed by respondent Peterson Tractor, Inc., beginning in 1978. In 1982, 1984, and 1985, he suffered heart attacks and received workers' compensation benefits as a result. On January 1, 1986, Peterson Tractor terminated him.

After filing a complaint with and receiving a right to sue letter from the Department of Fair Employment and Housing (Department), Angell sued Peterson Tractor in tort for violation of the Fair Employment and Housing Act (FEHA) and for wrongful termination in violation of fundamental public policy. He alleged the termination was due to discrimination based on his work-related heart condition. ¹

Peterson Tractor moved for summary judgment. The trial court found Angell's evidence sufficiently established discrimination based on his heart condition. However, citing Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 252 Cal.Rptr. 878, the court held Angell's tort causes of action were preempted by the exclusive remedy provisions of the workers' compensation law. The court entered judgment in Peterson Tractor's favor, and Angell appeals. We affirm.

DISCUSSION

I Standard of Review

Peterson Tractor urges us to apply an abuse of discretion standard in reviewing the summary judgment. However, an abuse of discretion standard is inappropriate; the correct standard is independent review. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1396, 14 Cal.Rptr.2d 679; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515, 285 Cal.Rptr. 385.) The only exception to the independent review standard applies when we review a trial court's exercise of discretion as allowed by Code of Civil Procedure section 437c, subdivision (e). Under all other circumstances, it is legally and procedurally incorrect to apply an abuse of discretion standard. (Schrader v. Scott (1992) 8 Cal.App.4th 1679, 1683, 11 Cal.Rptr.2d 433.) Thus, we must independently determine whether Peterson Tractor established Angell could not prevail as a matter of law. (Davis v. Gaschler, supra, 11 Cal.App.4th at p. 1396, 14 Cal.Rptr.2d 679.)

II The Legal Foundation of Angell's Causes of Action

A. The FEHA Cause of Action

The FEHA declares it is the public policy of this state to protect individuals from discrimination in employment matters on the basis of physical handicap, among other " 'Physical handicap,' " as defined by the FEHA at the time of Angell's termination, "includes impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services." (Gov.Code, § 12926, subd. (h).) However, this list is not restrictive. More broadly, "physical handicap" is any physical condition, whether or not presently disabling, " 'that makes achievement unusually difficult.' " (American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 609, 186 Cal.Rptr. 345, 651 P.2d 1151.) Although Angell had a full release to return to work after the last heart attack and was fully able to perform his employment duties, his heart condition falls within "physical handicap" as used in the FEHA. (See id. at pp. 609-610, 186 Cal.Rptr. 345, 651 P.2d 1151.)

                things.  (Gov.Code, § 12920.) 2  The statute makes it an unlawful employment practice to terminate a person based on physical handicap except under specified circumstances not applicable to this case. 3  (Gov.Code, § 12940.) 4
                

Under the FEHA, an aggrieved person may file a complaint with the Department. (Gov.Code, § 12960.) If the Department decides not to prosecute the case or does not take action within 150 days after the filing of the complaint, it must give the aggrieved person a right to sue letter which authorizes the person to file a civil suit based on the claim. (Gov.Code, § 12965, subd. (b).) Claiming Peterson Tractor violated the FEHA by discriminatorily terminating him because of his heart condition, Angell followed this statutory procedure and ultimately filed this suit against Peterson Tractor.

B. The Cause of Action for Wrongful Termination in Violation of Fundamental Public Policy

Angell also stated a cause of action for wrongful termination in violation of fundamental public policy. This cause of action is grounded in the common law. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330.) In Tameny, the Supreme Court held an action in tort lies for any termination which violates fundamental public policy. (Id. at p. 177, 164 Cal.Rptr. 839, 610 P.2d 1330.) The Supreme Court later refined the definition of "fundamental public policy" to include a termination which "is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.... [D]isparagement of a basic public policy must be alleged...." (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669, 254 Cal.Rptr. 211, 765 P.2d 373, italics in original.) The public policy also must be grounded in some statutory or constitutional provision. (Gantt v. Sentry Insurance, supra,

                1 Cal.4th at p. 1095, 4 Cal.Rptr.2d 874, 824 P.2d 680.)   Although the FEHA cause of action is based in statute and the Tameny cause of action is based on the common law, they both rely on the public policy stated in the FEHA.  (Gov.Code, § 12920.)
                

III Applicability of Workers' Compensation Remedies

Angell's termination also gives rise to a claim under the workers' compensation law because his heart condition was work-related. Labor Code section 132a declares it is the "policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment." At the time of Angell's termination in 1986, Labor Code section 132a, subdivision (1), stated: "Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file an application for adjudication with the appeals board, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer."

Labor Code section 132a, on its face, only provides a remedy against employers who retaliate for a worker's use of the workers' compensation system. However, the Supreme Court has interpreted the broad policy language of section 132a to provide the increased workers' compensation remedies of section 132a for any discrimination against an employee based on a work-related injury. (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (Judson ) (1978) 22 Cal.3d 658, 667, 150 Cal.Rptr. 250, 586 P.2d 564.) Thus, taking as true Angell's evidence he was unlawfully terminated because of his work-related heart condition, the termination was in violation of section 132a and the remedies provided in section 132a are available.

Injuries resulting from an employee's termination may be subject to the exclusive remedy provisions of the workers' compensation law. (See Lab.Code, § 3602; B & E Convalescent Center v. State Compensation Ins. Fund (B & E Convalescent ) (1992) 8 Cal.App.4th 78, 89, 9 Cal.Rptr.2d 894; Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 287, 182 Cal.Rptr. 291.) In Portillo, the employer retaliated against the employee in violation of Labor Code section 132a by terminating her because she filed a workers' compensation claim. (Id. at p. 286, 182 Cal.Rptr. 291.) The court held the aggrieved worker could not maintain a Tameny cause of action because workers' compensation remedies were available and, therefore, exclusive. (Id. at p. 290, 182 Cal.Rptr. 291.)

The Court of Appeal, in 1988, held the workers' compensation remedy for discrimination based on a physical handicap resulting from a work-related injury is exclusive. (Pickrel v. General Telephone Co., supra, 205 Cal.App.3d at pp. 1063-1064, 252 Cal.Rptr. 878.) In Pickrel, as here, the employee was terminated because of a work-related physical handicap. She sued the employer for violation of the FEHA. (Id. at p. 1060, 252 Cal.Rptr. 878.) Acknowledging the holding in Judson that all discrimination against an employee because of a work-related injury is forbidden by Labor Code section 132a and noting the exclusivity of the workers' compensation remedies for violation of section 132a as stated in Portillo, the Court of Appeal affirmed the trial court's dismissal of the complaint based on workers' compensation exclusivity. ⁵ (Id. 205 Cal.App.3d at p. 1064, 252 Cal.Rptr. 878.) Pickrel is precedent for

holding the workers'...