Froyd v. Cook

Decision Date15 March 1988
Docket NumberCiv. No. S-86-1169 LKK.
CourtU.S. District Court — Eastern District of California
PartiesJonquil FROYD, Plaintiff, v. Richard COOK, et al., Defendants.

David C. Anton, Oakland, Cal., for plaintiff.

Laurence I. Angelo, Bolling, Walter & Gawthrop, Sacramento, Cal., for defendants.


KARLTON, Chief Judge.

Plaintiff, a former dispatcher for the City of Rio Vista Police Department, brought this action alleging sexual harassment and a retaliatory constructive discharge. She predicated the jurisdiction of this court upon 28 U.S.C. § 1343, and appends to her 42 U.S.C. §§ 1983, 1985 and 1986 claims a variety of state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Among those claims, she alleges that she was constructively discharged in retaliation for reporting to the appropriate city officials that she was sexually harassed by a sergeant in the department. Defendants have brought a motion for summary judgment attacking each of plaintiff's causes of action. This published decision will be limited1 to a consideration of the defendants' attack upon plaintiff's state "wrongful discharge" cause of action, asserting that it is preempted2 by California's Fair Employment Housing Act ("FEHA"), California Government Code sections 12920, et seq.3

The narrow question that is tendered is whether plaintiff's cause of action sounding in tort, and described under the rubric "wrongful discharge," has been displaced by FEHA.4 Two questions are thus tendered: (1) does plaintiff allege a cause of action within the "wrongful discharge" doctrine, and (2) is it displaced by FEHA?5


By California statute, employment contracts, absent an express term, are terminable at will. California Labor Code section 2922.6 The California courts, however, have developed three distinct legal theories falling within the rubric of "wrongful discharge," which constitute exceptions to the statute's provisions. A person who has been discharged despite one of the three exceptions has an action lying in tort, contract, or both. The three branches of California's doctrine are briefly described below.

First, persons who have been retaliatorily terminated for reasons which violate the state's public policy may maintain a tort cause of action in wrongful discharge against their employers. See Tameny v. Atlantic Richfield Company, 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980) (plaintiff states a cause of action in wrongful discharge where he alleges that he was terminated because of his refusal to participate in an illegal scheme to fix retail gasoline prices); Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (discharge of an employee who refused to commit perjury at the insistence of his employer found to be contrary to public policy); Hentzel v. Singer Company, 138 Cal.App.3d 290, 188 Cal. Rptr. 159 (1982) (employee discharged for protesting hazardous working conditions states a claim within the rule of Tameny and Petermann).

A second branch of the "wrongful discharge" doctrine arises where an employee is terminated in violation of the implied in law covenant of good faith and fair dealing. A defendant breaches the implied covenant of good faith and fair dealing found in all contracts where an employee is discharged without just cause, but instead for "extra contractual reasons," and considerations of the plaintiff's job longevity, the "`common law of the job'" (as, for instance, expressed by the employer's written employment policies), or the existence of separate consideration limit the employer's right to fire to instances "`for cause or with economic consideration.'" Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 455, 168 Cal.Rptr. 722 (1980) (citation omitted); see also Crossen v. Foremost-McKesson, Inc., 537 F.Supp. 1076, 1078 (N.D.Cal.1982). While the California Supreme Court has failed to specifically pass on this formulation of the tort of wrongful discharge, it has indicated that it views the appellate cases so holding with favor. See Tameny, 27 Cal.3d at 179 n. 12, 164 Cal.Rptr. 839, 610 P.2d 1330; see also Seamans Direct Buying Service, Inc. v. Standard Oil Co., 36 Cal.3d 752, 769 n. 6 (1984).

Finally, the term "wrongful discharge" may indicate that an employee has been terminated in violation of implied contractual rights. While as noted above, California employment contracts are generally terminable at will in the absence of any express provision indicating their duration, the employer's conduct may nevertheless give rise to an implied promise that it will not terminate an employee absent good cause. Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 329, 171 Cal.Rptr. 917 (1981).7

Even at this late date in the life of this case, and the motion for summary judgment, it is not entirely clear under which branch of the doctrine plaintiff claims — it may be that she claims under all three.8 Thus, plaintiff claims that by virtue of California's Prohibition against employment discrimination and retaliatory discharge, her discharge was in violation of California public policy. Alternatively, she appears to be claiming that by virtue of that same policy her termination was without "good cause," despite the policies of her employer guaranteeing an only "good cause" discharge. Finally, she may be claiming that by virtue of her four years of employment, the employment policies of the City and the totality of the circumstances, there was an implied contract of employment, and discharge under the circumstances alleged violated that contract.

The first question is whether a discharge motivated either by gender discrimination or in retaliation for complaining about sexual harassment violates California's public policy and thus gives rise to a claim for wrongful discharge. Although the answer may seem self-evident, one California Court of Appeals has "declined to extend the tort concept of breach of implied covenant of good faith and fair dealing into the field of racial discrimination in employment," Robinson v. Hewlett-Packard Corporation, 183 Cal.App.3d 1108, 1125, 228 Cal.Rptr. 591 (1986), while another has held that a retaliatory discharge also does not state common law claims. Ficalora v. Lockheed Corp., 193 Cal.App.3d 489, 238 Cal.Rptr. 360 (1987). Both cases are premised on the notion that plaintiff's claims are displaced by FEHA. See Robinson, 183 Cal.App.3d at 1125, 228 Cal.Rptr. 591, and Ficalora, 193 Cal.App.3d at 492-93, 238 Cal.Rptr. 360. I must first consider the effect of those cases upon my power to independently consider the question of whether the instant claim is displaced by FEHA. To do so, I address below the effect of the decisions of California appellate courts on federal district courts considering California causes of action pendant to federal claims.

It is, of course, clear that the pronouncements of the California Supreme Court as to California law are binding on this court. Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273, 60 S.Ct. 523, 525, 84 L.Ed. 744 (1940). "When the California Supreme Court has not spoken, California Courts of Appeal decisions are data for determining how the highest California court would rule." Scandinavian Airlines System v. United Aircraft Corporation, 601 F.2d 425, 427 (9th Cir.1979). Despite the fact that California Courts of Appeal decisions are not binding, see Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), in the absence of other evidence, state court of appeals decisions cannot simply be ignored. West v. AT & T Company, 311 U.S. 223, 236-37, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). As I explain below, relevant California precedent concerning the construction of remedial statutes convinces me that the Robinson and Ficalora courts are in error. Accordingly, I decline to follow them.9 Put another way, the relevant California precedent constitutes "other evidence" of such persuasive character that I am unable to follow the state courts of appeal' decision. Before assessing the affect of FEHA on such claims, however, it is necessary to first establish that such claims would, but for FEHA, constitute claims for wrongful discharge.10

In Tameny, the Supreme Court of California held that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." 27 Cal.3d at 170, 164 Cal.Rptr. 839, 610 P.2d 1330. The Court further held that the public policy may be established either by the common law or in statutory form. Id. at 172-74, 164 Cal.Rptr. 839, 610 P.2d 1330.

In the instant case, plaintiff alleges that she was constructively discharged either because she was the victim of sexual harassment, or in retaliation for her reporting her victimization, or both. California's fundamental law prohibits employment discrimination because of sex. California Constitution, art. I, section 8; Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971).11 Moreover, the right of public employees to complain about the conditions of their employment without fear of retaliation is well established under California's decisions. See Bagley v. Washington T. Hospital District, 65 Cal. 2d 499, 55 Cal.Rptr. 401, 421 P.2d 409 (1966) (ongoing threat to discharge based on political activity adverse to public employer); Belshaw v. Berkeley, 246 Cal.App. 2d 493, 54 Cal.Rptr. 727 (1966) (suspension for letter to editor criticizing superiors). See also Adcock v. Board of Education, 10 Cal.3d 60 (1973). Thus, except insofar as the claim may be displaced by FEHA, it appears certain that if plaintiff was discharged for being the victim of sexual harassment or complaining about that fact, she states a claim under the Tameny doctrine.


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