Ficalora v. Lockheed Corp.
| Decision Date | 09 July 1987 |
| Citation | 238 Cal.Rptr. 360,193 Cal.App.3d 489 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 48 Fair Empl.Prac.Cas. (BNA) 817, 111 Lab.Cas. P 56,029, 4 IER Cases 478 Rosemary A. FICALORA, Plaintiff and Appellant, v. LOCKHEED CORPORATION, Defendant and Respondent. Civ. B019201. |
Rosemary A. Ficalora, in pro. per.
Quinn & Emanuel, John B. Quinn and David W. Quinto, Los Angeles, for defendant and respondent.
Appellant Rosemary Ficalora sued her former employer, respondent Lockheed Corporation. The trial court granted Lockheed's motion for summary judgment and denied appellant's motions for reconsideration and new trial. Appellant challenges the trial court's decisions on appeal. We find that the summary judgment was properly granted and affirm the judgment.
Appellant was hired by Lockheed in 1980. On October 1, 1981, she filed a complaint with the United States Department of Labor against Lockheed alleging sex discrimination in its promotion and salary practices. On November 11, 1981, appellant was laid off "due to lack of work." On May 13, 1982, she filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Lockheed had actually laid her off in retaliation for having complained to the Department of Labor. EEOC filed a copy of appellant's complaint with the Department of Fair Employment and Housing (DFEH) to protect her rights under California law. DFEH notified appellant on August 12, 1982, that her case was being closed and that any civil suit she wished to bring under California law had to be brought within one year.
On November 19, 1982, appellant sued Lockheed in federal district court for, inter alia, retaliatory layoff in violation of the Fair Employment and Housing Act (FEHA or the Act), Government Code section 12940, 1 and wrongful discharge. On January 27, 1983, appellant filed an amended complaint, changing her suit from an individual suit to a class action against Lockheed. The state law causes of action relating to the layoff under the Government Code and the common law did not appear in the amended complaint.
Appellant filed this lawsuit on June 4, 1984. As to Lockheed, the complaint alleges common law causes of action for wrongful discharge and breach of implied covenant of good faith and fair dealing. 2 In the sixth and seventh causes of action appellant alleges that in retaliation for having challenged Lockheed's discriminatory practices Lockheed discharged her and, by informing prospective employers of her actions, sought to prevent her from gaining other employment.
The trial court granted Lockheed a summary judgment based on our opinion in Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 194 Cal.Rptr. 520. In Strauss we stated that where a new right is created by statute the aggrieved party must resort to the statutory remedy if one is provided. (Id. at p. 518, 194 Cal.Rptr. 520.) The implication of the trial court's ruling is that appellant's failure to comply with the statutory scheme of the FEHA is fatal to her suit because she has no common law remedy. The trial court's ruling is correct.
The FEHA prohibitions on employment discrimination are not a codification of preexisting common law doctrine; the act includes "areas and subject matters of legislative innovation, creating new limitations on an employer's right to hire, promote or discharge its employees." (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490, 156 Cal.Rptr. 14, 595 P.2d 592; Strauss v. A.L. Randall Co., supra, 144 Cal.App.3d at p. 518, and see p. 517, fn. 1, 194 Cal.Rptr. 520; Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949, 231 Cal.Rptr. 234.) One of the limitations created by the FEHA is the prohibition against retaliation by an employer. Where an employee files a complaint with DFEH regarding gender discrimination and the employer retaliates with unlawful employment practices, the employee may take action against the employer. (§ 12940, subd. (f).) But that action is defined by statute: the employee may file a complaint with DFEH within one year of the alleged discrimination (§ 12960); if the DEFH takes no action within 150 days, it must notify the complaining employee in writing of the employee's right to bring a civil action against the employer within one year of the date of the notice (§ 12965).
Appellant cites no previously existing common law cause of action in California which would permit her to sue without complying with the statutory scheme. Even if a common law cause of action existed before retaliation was identified in the Act as an unlawful employment practice, the Legislature has made clear its intent to "occupy the field of regulation of discrimination in employment" by virtue of the FEHA. (§ 12993, subd. (c).) We therefore find that appellant's sole cause of action for retaliation is the statutory cause of action.
Appellant cites to the line of cases which have recognized a cause of action based on wrongful discrimination where the discharge was in violation of public policy, beginning with Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330. She argues that because her retaliatory layoff violates public policy as expressed in Labor Code section 1102.5, subdivision (b), 3 she should be permitted to sue under the common law wrongful discharge doctrine. That doctrine is inapplicable, however. It applies where an employee takes action encouraged by public policy for which the employee is fired, and the firing itself is not prohibited by any particular statute. Under those circumstances the employee is permitted to rely on the court-created remedy of a wrongful discharge suit. In this case the public policy is expressed in the statute which specifically prohibits the firing and provides the employee with a remedy. Thus, the Tameny cases are not controlling.
Furthermore, Labor Code section 1102.5 was enacted in 1983, well after the retaliatory discharge for opposing gender discrimination was prohibited by statute in this state. (See former Lab.Code, § 1420 and historical note there following.) Therefore, no argument can be successfully made in reliance upon Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 188 Cal.Rptr. 159, which found that the statutory cause of action based on the provisions of the California Occupational Safety and Health Act was merely cumulative because of a pre-existing right of action.
In her motion for reconsideration and again on appeal, ap...
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