Colores v. Board of Trustees

• Decision Date: 31 January 2003
• Docket Number: No. B151173.,B151173.
• Court: California Court of Appeals Court of Appeals
• Parties: Lillian L. COLORES, Plaintiff and Appellant, v. The BOARD OF TRUSTEES of the California State University, et al., Defendants and Appellants.

130 Cal.Rptr.2d 347

105 Cal.App.4th 1293

Lillian L. COLORES, Plaintiff and Appellant, v. The BOARD OF TRUSTEES of the California State University, et al., Defendants and Appellants.

No. B151173.

Court of Appeal, Second District, Division 3.

January 31, 2003.

As Modified February 18, 2003.

Remer, DiVincenzo & Griffith and Joseph P. DiVincenzo, Corona Del Mar, for Plaintiff and Appellant.

California State University Office of General Counsel, Christine Helwick, General Counsel, LeRoy Anderson, Los Angeles, and Abraham C. Meltzer, Long Beach, for Defendants and Appellants.

CROSKEY, Acting P.J.

Plaintiff Lillian Colores appeals from a summary judgment in her suit for constructive wrongful discharge from employment at a state university. In granting summary judgment, the trial court ruled, as a matter of law, that the facts of this case cannot support plaintiffs allegation of constructive discharge. Defendants are the Board of Trustees of the California State University, James Rosser and Steven Garcia ("the university," "Rosser," "Garcia," and collectively, "defendants"). Rosser is the president of the university's Los Angeles campus. Garcia is the vice president of administration and finance at such campus.

Although plaintiff alleged eight causes of action, our opinion concerns only a cause of action against the university for constructive wrongful termination in violation of public policy. The university's cross-appeal challenges an order that denied its first motion for summary adjudication of issues on that cause of action. The denial was based on the trial court's determination that an employee who takes a disability retirement from employment is not precluded from recovering on a wrongful constructive discharge cause of action.

The thrust of plaintiffs suit is that defendants targeted her for removal from employment because of her involvement in uncovering unlawful activities on the campus.¹ The suit alleges that plaintiff has a physical disability which is exacerbated by stress, that defendants intentionally made her job extremely stressful, and that they did this to accomplish their goal of causing her to leave her employment.

Using our independent judgment to review the rulings on the motions for summary judgment and summary adjudication, we find there are triable issues of material fact concerning whether plaintiff was constructively discharged, and we hold that plaintiffs disability retirement does not preclude her from claiming constructive discharge. Therefore, the university was not entitled to an adjudication on the fourth cause of action, for tortious constructive discharge in violation of public policy. We will therefore reverse the summary judgment and remand the case for further proceedings.²

BACKGROUND OF THE CASE

1. The Operative Complaint

According to plaintiffs complaint, she worked for the university, from February 1977 to November 1998, in its office of administration and finance (the same department of which defendant Garcia is now vice president). In 1986, about halfway through her employment, she was diagnosed as suffering from fibromyalgia, which she describes as "a disabling medical condition marked by chronic and debilitating pain and fatigue" which can be aggravated by stress. In 1993, the university created an "ADA" file for her (Americans with Disabilities Act). During her employment with the university, plaintiffs job performance was consistently rated as commendable to outstanding, she received progressive salary increases, and was a model employee, despite her disability.

Plaintiff began working at the university as a receptionist, and worked her way up to the position of director of procurement, contracts and support services, a position which she obtained in 1983 and remained in until July 1998, when she was forced to take a full-time medical leave of absence because the wrongful actions and omissions of the defendants caused her to become disabled from work. By November 1998, her medical condition had not improved sufficiently to enable her to return to work, and she applied for, and received, medical retirement with the university. Her condition has not improved and she remains unable to return to work. She was 49 years old when she filed this action.

Plaintiff alleges that defendant's wrongful acts against her began in July 1997, and were designed to harass her, defame her employment reputation, and create an abusive and hostile work environment, for the purpose of causing her an inordinate amount of stress, which would in turn exacerbate her medical condition to the extent that she would be forced to leave her job at the university, all of which was accomplished by defendants. Defendants Rosser's and Garcia's motivation was then desire to "protect and maintain self-serving and unlawful acts and practices within the administration of [the university]." These acts and practices consisted of misappropriating state funds, equipment, and services, by and through employees in the university's department of facilities operations. Defendants forced not only plaintiff but also two other women at the university out of their jobs. These women, Jacqueline Avery and Roshni Thomas, participated with plaintiff in the uncovering of such unlawful activities.

Between the time Garcia arrived at the university and plaintiff took medical leave, he directed numerous persons to document her for termination. They refused to do so because no cause existed to terminate plaintiff; however, with each new directive for documentation, plaintiff became more stressed and fearful for her job. Garcia also changed plaintiffs supervisor five times and stripped her of many of her responsibilities, doing so in a manner that demeaned and humiliated her and called into question her competence and honesty. After her doctor directed plaintiff to limit her work day to four hours, one supervisor began giving her work assignments that required far more than four hours per day to complete, and at defendants' instruction, directed her to process leases and other documents that violated university policy and the law, which she refused to do. Eventually, the stress of her work environment caused the chronic pain and fatigue associated with fibromyalgia to become highly exacerbated. Since July 1998, plaintiffs health has been in ruins, she is not likely to recover sufficiently to be able to return to work in a capacity similar to that which she held at the university, and she has been emotionally devastated by defendants' abusive treatment.

2. Defendants' Demurrers and Motions for Summary Judgment

Plaintiff alleged eight causes of action. As noted in footnote 2, three were disposed of by demurrer. Four others were disposed of by defendants' first alternative motion for summary judgment or adjudication, and were not made an issue in this appeal. The sole remaining count is the one we address—plaintiffs fourth cause of action, against the university, for constructive tortious discharge in violation of public policy. The trial court determined that as a matter of law, plaintiff was not constructively discharged.

ISSUES ON APPEAL

Plaintiff contends the question whether she was constructively discharged presents a triable issue of material fact and therefore the university cannot establish a complete defense to her cause of action for constructive tortious discharge in violation of public policy.³

The university raises the issue as to whether there can be a constructive discharge if the plaintiff-employee takes a disability retirement rather than simply resigning from her employment. The university contends that, under the laws governing the Public Employees Retirement System, a disability retirement does not sever the employment relationship. Thus, the argument goes, disability retirement cannot support a claim of constructive discharge.⁴ The university also contends that plaintiffs statutory tort claim was not timely filed with the state.

DISCUSSION OF PLAINTIFF'S APPEAL

1. Standard of Appellate Review

We conduct a de novo review of the order granting the university a summary judgment. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474, 261 Cal. Rptr. 735.) In doing so, we apply the same rules the trial court was required to apply in deciding the university's motion for summary judgment.

As the party moving for summary judgment, the university bore an initial burden of production of a prima facie showing that there is no triable issue of material fact in this case and it is entitled to judgment as a matter of law. Only if the university carried that burden was plaintiff faced with a burden of production of her own— to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) "A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Id. at p. 851, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

"[Generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.... Thus, a plaintiff bears the burden of persuasion that `each element of the `cause of action' in question has been `proved,' and hence that `there is no defense' thereto. (Code Civ. Proc, § 437c, subd. (o)(1).) A defendant bears the burden of persuasion that `one or more elements of the `cause of action' in question `cannot be established,' or that `there is a complete defense' thereto. (Id., § 437c, subd. (o)(2).)" (Aguilar v. Atlantic Richfield Co., supra, 25 CaUth ...