Hentzel v. Singer Co.

• Decision Date: 20 December 1982
• Parties: , 115 L.R.R.M. (BNA) 4036, 35 A.L.R.4th 1015, 1983 O.S.H.D. (CCH) P 26,354 Paul HENTZEL, Plaintiff and Appellant, v. The SINGER COMPANY et al., Defendants and Respondents. Civ. 52501.
• Court: California Court of Appeals Court of Appeals

Page 159

188 Cal.Rptr. 159

138 Cal.App.3d 290, 115 L.R.R.M. (BNA) 4036, 35 A.L.R.4th 1015,

1983 O.S.H.D. (CCH) P 26,354

Paul HENTZEL, Plaintiff and Appellant, v. The SINGER COMPANY et al., Defendants and Respondents.

Civ. 52501.

Court of Appeal, First District, Division 2, California.

Dec. 20, 1982.

John W. Clark, Trepel, Clark & Manley, San Jose, for appellant.

Peggy L. Braden, William O'Dea, Sunnyvale, for respondent.

John Rea, Chief Counsel, Dept. of Industrial Relations, San Francisco, for amicus curiae.

GRODIN, Presiding Justice.

Appellant Paul Hentzel brought this action against his former employer, The Singer Company (Singer), claiming, on the basis of various theories, that his termination from employment was wrongful and in addition that his employer was guilty of the tort of intentional infliction of emotional distress. The gist of his complaint is that his employer discriminated against him, and eventually terminated him, in retaliation for his protesting what he considered to be hazardous working conditions caused by other employees smoking in the workplace. He appeals from a judgment dismissing his complaint, after rulings sustaining Singer's demurrer to each of his causes of action without leave to amend.

In his original complaint, Hentzel alleged four causes of action: the first, in tort, for wrongful dismissal in retaliation "for his attempts to obtain a reasonably smoke-free environment in which to work"; the second, in contract, for breach of an implied promise that he would not be terminated so long as the services he performed were satisfactory; the third, on a theory of estoppel based upon the alleged promise; and the fourth, for intentional infliction of emotional distress. The trial court sustained general demurrers to the first and fourth causes of action without leave to amend. Hentzel then filed a first amended complaint containing five causes of action, as to each of which the trial court sustained Singer's demurrer.

We first summarize the allegations of the complaint which, for purposes of this appeal, we must accept as true. In his first cause of action, for "tortious wrongful discharge," Hentzel alleges that he was hired by Singer as a senior patent attorney at its APO-Link Division in Sunnyvale in 1974; that he was terminated in the latter part of 1979; that he performed all of his duties in an exemplary fashion; and that the proximate cause of his termination was his "attempt to obtain a reasonably smoke-free environment." The complaint goes on to allege that although Singer was aware of Hentzel's desire for a reasonably smoke-free environment, it refused to provide him with such, instead placing him in a working area with a heavier concentration of smoke than his original work area, failed to segregate conference rooms into smoking and non-smoking areas, and failed to prevent other employees from "directly antagonizing" him in various ways, which included sitting next to him and smoking, and excluding him from meetings to which he would normally have been invited because he reasonably requested division of the room into smoking and non-smoking areas. The complaint further alleges that the presence of cigarette smoke in closed environments creates a significant health hazard to those who are present in the environment.

In his second cause of action, for "breach of contract," Hentzel reincorporates all of the allegations of his first cause of action, and asserts that by the conduct alleged Singer "breached the implied covenant of good faith and fair dealing which existed in the employment contract relationship between Plaintiff and Defendants."

Hentzel's third cause of action, based upon the same allegations as the second but entitled "tortious wrongful discharge," asserts that Singer's conduct was "willful, malicious, oppressive and reckless in regard to Plaintiff's rights," and asks that punitive damages be assessed.

His fourth cause of action, for "breach of contract," again incorporates the allegations contained in his first cause of action, and alleges further that during the course of his employment, "Defendants implied that Plaintiff would not be terminated so long as the services he performed were satisfactory"; that he continued in employment with defendants because he reasonably believed this implication was true; that his job performance "was satisfactory and each year he received a superior rating for his job performance from his supervisor"; and that despite all this, he was terminated, to his monetary detriment. Hentzel's fifth cause of action is basically the same as the fourth, except that it seeks to assert an "estoppel," alleging that defendants were "aware that through their conduct they had led plaintiff to believe that he would only be terminated if his services were not satisfactory"; that plaintiff did so believe, and that he relied to his detriment on defendant's conduct by not seeking other employment. His cause of action for emotional distress in the original complaint alleged the facts now contained in his first cause of action, relating to aggravating conduct by Singer, ¹ and asserted that defendant's conduct caused him "severe emotional suffering ... which resulted in high blood pressure ... and the continued deterioration in health ...."

Discussion

I.

By the allegations contained in his first cause of action, Hentzel seeks to bring his case within the rule of Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330. In Tameny the Supreme Court acknowledged that under "the traditional common law rule, codified in Labor Code section 2922,6 an employment contract of indefinite duration is in general terminable at 'the will' of either party," but observed: "Over the past several decades ... judicial authorities in California and throughout the United States have established the rule that under both common law and the statute an employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee.

"6. Section 2922 provides in relevant part: 'An employment, having no specified term, may be terminated at the will of either party on notice to the other ....' "

In a series of cases arising out of a variety of factual settings in which a discharge clearly violated an express statutory objective or undermined a firmly established principle of public policy, courts have recognized that an employer's traditional broad authority to discharge an at-will employee 'may be limited by statute ... or by considerations of public policy.' [Citations.]" (Id., at p. 172, 164 Cal.Rptr. 839, 610 P.2d 1330.) Applying that rule, the court held that an employee allegedly terminated for refusing to perform a criminal act (in that case, participation in an illegal price-fixing scheme) could maintain a tort action for wrongful discharge against the employer. (Id., at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)

Were it not for the provisions of the California Occupational Safety and Health Act of 1973, Labor Code section 6300 et seq. (hereafter OSHA), we would have little difficulty concluding that the complaint states a cognizable claim under the Tameny principle. Contrary to Singer's contention, the question is not whether Singer acted unlawfully by failing to accede to Hentzel's protests, ² but whether it "violated an express statutory objective or undermined a firmly established principle of public policy" by discharging Hentzel for making them.

California has long maintained a policy of protecting the right of employees to voice their dissatisfaction with working conditions. Labor Code section 923, ³ adopted in 1937, declares generally the right of employees to designate representatives and engage in concerted activities "for the purpose of collective bargaining or other mutual aid or protection," and while "attempts to bargain on behalf of a single employee ... seem ... to be the antithesis of the strength in numbers philosophy which the statute seeks to encourage and to protect," it has nevertheless been held that section 923 (in the absence of any union) gives rise by implication to certain rights on the part of individual employees, among them "the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment [so] that his discharge for so doing constitutes a violation of Labor Code section 923." (Montalvo v. Zamora (1970) 7 Cal.App.3d 69, 75, 86 Cal.Rptr. 401.) ⁴

Nearly 40 years ago, the Supreme Court in Greene v. Hawaiian Dredging Co. (1945) 26 Cal.2d 245, 157 P.2d 367, held that protest of working conditions by an individual employee could not justify termination under a contract permitting termination "[i]f for cause the services of the Employee are not satisfactory to the Employer ...." (Id., at p. 246, 157 P.2d 367.) The court declared: "The days when a servant was practically the slave of his master have long since passed. In order that the dignity of the employer-employee relation be maintained and that present-day fundamental social concepts be preserved, the employee has the right without breaching his implied obligations to his employer to protest regarding working conditions and rules of his employer and request that they be altered.... Broadly viewed, such conduct is beneficial rather than detrimental to the employer's interests. It tends to improve the morale of the employee, ultimately resulting in the exhibition of greater diligence and fidelity on his part. The wisdom and importance of the right to petition is not new. The right of the governed to petition those exercising the powers of government is secured by the Constitutions of the United States and this state. (U.S. Const., First Amend.; Cal. Const., art. I, § 10.) The obligations of the employee in the instant case are those implied in law because considered wise policy. That policy must be applied in the light of the policy insuring the right to...