Gantt v. Sentry Ins.

• Decision Date: 11 January 1990
• Docket Number: No. 3,3
• Citation: 227 Cal.App.3d 939,265 Cal.Rptr. 814
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 227 Cal.App.3d 939, 234 Cal.App.3d 612 227 Cal.App.3d 939, 234 Cal.App.3d 612, 116 Lab.Cas. P 56,341 Vincent A. GANTT, Plaintiff and Respondent, v. SENTRY INSURANCE et al., Defendants and Appellants. Civ. C001163.

Page 814

265 Cal.Rptr. 814

Previously published at 227 Cal.App.3d 939, 234 Cal.App.3d 612

227 Cal.App.3d 939, 234 Cal.App.3d 612, 116 Lab.Cas. P 56,341

Vincent A. GANTT, Plaintiff and Respondent, v. SENTRY INSURANCE et al., Defendants and Appellants.

No. 3 Civ. C001163.

Court of Appeal, Third District, California.

Jan. 11, 1990.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing Feb. 9, 1990.

Review Granted April 4, 1990.

Hanson, Bridgett, Marcus, Vlahos & Rudy, Douglas H. Barton and Bonnie Kathleen Gibson, San Francisco, for defendants and appellants.

Matheny, Poidmore & Sears, Anthony J. Poidmore and Michael A. Bishop, Sacramento, for plaintiff and respondent.

SPARKS, Acting Presiding Justice.

Defendants Sentry Insurance, its district sales manager, Frank Singer, and its house counsel, Caroline Fribance, appeal from the judgment entered against them collectively and individually following a jury verdict of $1.34 million in favor of plaintiff Vincent Gantt. Plaintiff, a former employee of Sentry, prevailed on his tort causes of action (1) for being discharged in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330), (2) for being discharged in violation of the covenant of good faith and fair dealing (Koehrer v. Superior Court (1986) 181 Cal.App.3d 1155, 1167-1172, 226 Cal.Rptr. 820; Cleary v. American Airlines, Inc. (1980) 111 Cal.App.3d 443, 455-456, 168 Cal.Rptr. 722), (3) for intentional infliction of emotional distress, and (4) for defamation. Plaintiff sought recovery against Sentry Insurance on all four causes of action and against defendants Singer and Fribance only on the last two. Defendants maintain that each of the four causes of action under which the plaintiff proceeded either is barred as a matter of law, is fatally flawed by instructional error, or is lacking in substantial evidence to support it.

We consider the causes of action for breach of the good faith covenant and for intentional infliction of emotional distress in the unpublished portion of this opinion. There we conclude that the cause of action for tortious breach of the covenant of good faith and fair dealing must fall under the authority of Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 and Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 258 Cal.Rptr. 592, 772 P.2d 1059. We further conclude that the intentional infliction of emotional distress cause of action is barred by the exclusivity provisions of the Workers' Compensation Act as construed by the high court in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743. We reject, however, the defendants' argument that Cole prempts the remaining two causes of action.

We address the remaining two causes of action in the published portion of the opinion. We first conclude that the cause of action for defamation cannot stand in light of the privileged nature of defendant Fribance's defamatory statements and the lack of evidence to support any other alleged utterances. Since this eliminates the two causes of action against the individual defendants, we must reverse the judgment against defendants Singer and Fribance.

That leaves the Tameny cause of action against Sentry for tortious discharge in violation of public policy. This cause of action was predicated upon two distinct theories. The first was one of "vicarious discrimination" and was based upon the unlawful employment practice of Sentry in constructively discharging plaintiff because he opposed Sentry's acts of sexual harassment against a co-employee. The second was based upon a claim that Sentry made efforts to induce the plaintiff to give false information or to withhold information from the public agency investigating the sexual harassment charges. Sentry contends this Tameny cause of action is barred as a matter of law by plaintiff's failure to exhaust his administrative remedies under the provisions of the California Fair Employment and Housing Act. Sentry further argues that the finding of constructive discharge necessary for liability was based upon prejudicially erroneous instructions and in any event was not supported by substantial evidence. As for the rest of Sentry's arguments, we conclude that the first theory of recovery was indeed barred by plaintiff's failure to exhaust his administrative remedies, but the second was not. Since we conclude that substantial evidence supports the second theory of

recovery on which the jury returned a special verdict, and because we find no other prejudicial error, we shall uphold the verdict on the cause of action for tortious discharge in violation of public policy and thus affirm the judgment against Sentry.

FACTUAL AND PROCEDURAL HISTORY OF THE CASE

Plaintiff Vincent Gantt began work as sales manager of the Sacramento office in the Pacific Division of defendant Sentry Insurance in September 1979. He was hired to build up the Sacramento office sales force. How successful plaintiff was at this task during the remainder of his relatively short tenure with Sentry is naturally the source of heated debate between the parties. However, we need not set out all the evidence under the divergent criteria by which each side would judge his performance. Because the jury specifically found the plaintiff's support for another employee's sexual harassment claim and his refusal to lie or suppress evidence with respect to that claim led Sentry to retaliate against him with actions that had no basis in legally valid business reasons, we must assume his work was satisfactory. Instead, we focus on the circumstances leading to his fall from grace and (as the jury found) coercing him into resigning from Sentry, which requires us to weave together in a straightforward chronology both the plaintiff's interaction with his superiors and the interactions of his co-employee.

The apple of discord disrupting the harmonious relationships between the plaintiff and defendants was Joyce Bruno, hired in January 1980 by Gary Desser, the manager of the Walnut Creek office, to be a liaison between trade associations and the Sacramento and Walnut Creek offices. As such, she reported to both the plaintiff and Mr. Desser, as well as to Brian Cullen, a technical supervisor at regional headquarters in Scottsdale, Arizona.

Beginning in early February 1980, Ms. Bruno experienced sexual harassment at the hands of Mr. Desser. As the harassment continued, she complained to the plaintiff in March 1980. He recommended she report it to Mr. Cullen in Scottsdale. Ultimately, the plaintiff himself contacted both Bonnie Caroline (the designated recipient at Scottsdale for sexual harassment complaints) as well as his immediate supervisor, Mr. Berg, the regional sales manager, about the problem. Plaintiff attempted to see if he could get Ms. Bruno transferred to the Sacramento office. The harassment continued through early 1981. By this time, Mr. Desser had been demoted from sales manager to sales representative for failure to meet goals. He was replaced by Robert Warren, brought in from Scottsdale. Despite this change, Dresser continued to harass Ms. Bruno. In March 1981, Mr. Warren transferred Ms. Bruno to a sales representative position. A month later, she was fired. According to the plaintiff, who had been present at the meeting at which the decision to terminate Ms. Bruno had been made, Mr. Berg directed Mr. Warren to fire her and ridiculed the plaintiff for supporting her.

Mr. Berg resigned from Sentry in May 1981. His resignation followed an investigation by Sentry of claims that he himself had engaged in sexual harassment at its Illinois and Arizona offices. Although Sentry concluded that the accusations were well-founded, Mr. Berg was allowed to resign with all references to the matter deleted from his files. He was replaced by defendant Frank Singer, who took the title "Director of Sales" and in October 1981 recruited John Tailby from another division to assume Mr. Berg's old position of directly supervising the various Pacific region sales offices. In September 1981, defendant Singer had his first significant meeting with the plaintiff regarding sales. In a follow-up memorandum, he advised the plaintiff there was a need to focus on recruitment of sales representatives and on developing success plans with them. ¹ Mr Switching to the Joyce Bruno strand of facts, Ms. Bruno filed a complaint with the Department of Fair Employment and Housing (DFEH) in April 1982. She alleged harassment by Mr. Desser and failure by higher management to act on her complaints. Caroline Fribance was notified when the complaint was received. Ms. Fribance was house counsel in charge of labor-related matters for Sentry. In the course of her investigations, Jack King (a Sentry attorney working out of Scottsdale) told her that Judy Kuplic--who was a training specialist in the Sentry sales department at Scottsdale and a friend of Ms. Bruno--had told him that Ms. Bruno had also complained about sexual harassment by the plaintiff.

Tailby started work shortly afterward. According to one of the plaintiff's witnesses, Mr. Tailby said defendant Singer told him getting rid of the plaintiff was to be one of Mr. Tailby's first tasks. In December 1981, defendant Singer sent a list of his concerns about the plaintiff to Mr. Tailby. Mr. Tailby replied in a January 1982 memorandum that he did not think it was the right time to confront the plaintiff with the concerns. By way of chronology, we note here that the plaintiff made a report to Scottsdale in January 1982 that Ms. Bruno had told him she was planning on suing the company. In this conversation with Ms. Bruno, she had asked him if he recalled Mr. Berg saying she should be fired for reporting sexual harassment; the plaintiff told Ms. Bruno, however, that he did not remember Mr. Berg ever saying that. In February 1982, Mr....