Meninga v. Raley's, Inc.

• Decision Date: 29 November 1989
• Docket Number: No. F010715,F010715
• Citation: 264 Cal.Rptr. 319,216 Cal.App.3d 79
• Court: California Court of Appeals Court of Appeals
• Parties: , 51 Fair Empl.Prac.Cas. (BNA) 902 Mary MENINGA, et al., Plaintiffs and Appellants, v. RALEY'S, INC., et al., Defendants and Respondents.

Page 319

264 Cal.Rptr. 319

216 Cal.App.3d 79, 51 Fair Empl.Prac.Cas. (BNA) 902

Mary MENINGA, et al., Plaintiffs and Appellants, v. RALEY'S, INC., et al., Defendants and Respondents.

No. F010715.

Court of Appeal, Fifth District, California.

Nov. 29, 1989.

Certified for Partial Publication ^*

[216 Cal.App.3d 81] Malcolm D. Gross, Modesto, for plaintiffs and appellants.

Barrett, Penney & Byrd and Herbert Fried, Jr., Sacramento, for defendants and respondents.

STATEMENT OF FACTS

PETTITT, Associate Justice, Assigned. ^**

Plaintiffs Mary Meninga and William Meninga appeal from a judgment of involuntary dismissal (Code Civ. Proc., § 581, subd. (f)(1)). The judgment followed the trial court's order sustaining a demurrer to plaintiffs' second amended complaint without leave to amend. Plaintiffs had alleged causes of action for employment discrimination, defamation, intentional infliction of emotional distress and loss of consortium. The court found worker's compensation was the plaintiffs' exclusive remedy. ¹

The following is a summary of the allegations contained in the second amended complaint: ²

First Cause of Action--Employment Discrimination

Plaintiff Mary Meninga was employed at two Raley's stores, owned by defendant Raley's, Inc., in Modesto between February 1976 and November 1985. During this period she experienced harassment at the hands of Raley's employees and managers.

In 1976, an assistant manager instructed an employee to announce over the store's loud speaker " 'All right you stupid bitches, get your asses up front cause [sic ] we['re] closing this place up.' " The announcement was directed at plaintiff and another female employee.

In 1977 a Raley's store manager and the employer's personnel department denied her pregnancy leave.

From late spring 1984 until the time she became disabled, defendant Ralph Boisa, a manager in one of the two stores in question, continually harassed and intimidated plaintiff by referring to her as a " 'bitch.' " He also told her: " '[W]omen should not work in the grocery business and if they do, they should only be allowed to work part time.' "

Defendant Raley's, Inc., chose to do nothing when plaintiff reported these incidents.

Defendant Boisa and another store manager, defendant Wayne Clemens, also condoned and encouraged other employees' mistreatment of plaintiff. In March 1985, a head clerk in one of the stores said in front of plaintiff, " 'Why is it this office only smells like fish when Mary is here.' " The clerk uttered the comment in a sexually degrading and offensive manner to refer to feminine body odor. The following May, an assistant store manager repeatedly asked plaintiff to go to a party with him. When she refused, he became very abrasive toward her. He also sprayed " 'static cling' " on plaintiff's buttocks in a degrading and offensive manner and threatened to assault her.

Plaintiff was repeatedly told defendant Boisa did not like working with women and she "had better" do everything he said. Defendant Boisa had directed others to pass these comments on to plaintiff.

Last, during November 1985, defendant Clemens told plaintiff he would not hire women with children in the future because he had to make special arrangements for them. He also stated he did not hire plaintiff, referring to the fact plaintiff was female and had small children.

As a result of such conduct, plaintiff experienced severe emotional problems. She felt forced to leave her employment in November 1985, at which time she was hospitalized, according to the record. Since then she has been unable to perform her duties at the stores. Plaintiff filed a claim with the Fair Employment and Housing Commission and ultimately received a "right to sue" letter.

[216 Cal.App.3d 83] Second Cause of Action--Defamation

In early 1986, after plaintiff Mary Meninga left Raley's workplace, defendants Clemens and Boisa told store employees " 'Mary Meninga has completely lost her mind, she has gone crazy, but then she always was crazy.' " A bookkeeper for the chain also repeated remarks made by defendant Clemens to the effect "plaintiff was totally insane and [would] be institutionalized for life." These remarks were unsolicited and made to employees who did not have a need to know.

The remarks injured plaintiff's professional reputation by suggesting she was unable to practice her trade in a proficient manner.

Third Cause of Action--Intentional Infliction of Emotional Distress

This cause of action is based on the alleged remarks referred to in the second cause of action.

Fourth Cause of Action--Loss of Consortium

Plaintiff William Meninga suffered the loss of plaintiff Mary Meninga's society as a result of the slanderous remarks made by defendants Clemens and Boisa in 1986.

IS THE WORKERS' COMPENSATION ACT THE EXCLUSIVE REMEDY FOR EMPLOYMENT DISCRIMINATION, DEFAMATION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION? ³

I. Introduction

We answer the stated question in the negative as to each cause of action.

In Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160, 233 Cal.Rptr. 308, 729 P.2d 743, the state Supreme Court held an employee may not pursue a cause of action for intentional infliction of emotional distress against his or her employer and fellow employees when: (a) the alleged misconduct is a normal part of the employment relationship; and (b) the essence of the wrong is a personal physical injury or death thus permitting a remedy under the workers' compensation statutes. Such an action, regardless of its name or technical form, is barred by the exclusive remedy provision under workers' compensation (Lab.Code, § 3601, subd. (a)) if the usual conditions of workers' compensation coverage are satisfied.

Defendants ask this court to conclude Cole is dispositive in the present case. Because plaintiff alleged she was unable to return to work due to the emotional distress she experienced while in defendant Raley's employ, defendants argue, plaintiff suffers from a work-related disability. Thus, by defendants' reading of Cole, plaintiff's causes of action are barred.

As explained below, Cole, by its own terms, does not necessarily bar employment discrimination actions filed outside the workers' compensation statutes. Consequently, we hold, under the alleged facts of this case, defendants' argument that plaintiff's causes of action are barred by the exclusive remedy provision in Labor Code section 3601, subdivision (a) is erroneous.

II. Employment Discrimination

The Cole court did not address statutory causes of action, but rather only common law causes of action. "We do not decide whether the exclusive remedy provisions of the Labor Code bar causes of action created by statute." (Cole, supra, 43 Cal.3d at p. 157, fn. 9, 233 Cal.Rptr. 308, 729 P.2d 743.) As the appellate court in Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 807, 244 Cal.Rptr. 37, ruled, Cole by its own limitation is not dispositive of claims based on statutory causes of actions, such as the employment discrimination cause of action created by the Fair Employment and Housing Act "We have concluded that, when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability. The basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment (former Lab. Code, §§ 3600, 3601), and then the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied. (See Larson, Nonphysical Torts and Workmen's Compensation (1975) 12 Cal. Western L.Rev. 1, 11-13.)

(FEHA or the Act) (GOV.CODE, § 12900⁴ et seq.). Notably, defendants overlook the holding of Jones, to the effect workers' compensation did not bar a FEHA cause of action for employment discrimination based, in that case, on race. However, the Jones court did not go so far as to hold that the principles and distinctions set out in Cole could never apply to alleged employment discrimination causes of action. Likewise, we do not conclude that acts alleged to constitute employment discrimination are thereby inherently insulated from consideration in connection with the exclusive remedies provided under workers' compensation. The Supreme Court in Cole stated:

"If characterization of conduct normally occurring in the workplace as unfair or outrageous were sufficient to avoid the exclusive remedy provisions of the Labor Code, the exception would permit the employee to allege a cause of action in every case where he suffered mental disability merely by alleging an ulterior purpose of causing injury. Such an exception would be contrary to the compensation bargain and unfair to the employer." (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160, 233 Cal.Rptr. 308, 729 P.2d 743.)

We conclude some deference must be given to the Supreme Court's concerns expressed in Cole even though it did footnote it was not deciding "whether the exclusive remedy provisions of the Labor Code bar causes of action created by statute." Some of our concern arises out of the differing fact situations found in Jones and the instant case. The court in Jones stated:

"In the context of the facts of this case, where plaintiff claims that he was forced to suffer racial insults of a coworker and in retaliation for complaining of such treatment was monitored in his work and given more onerous tasks while the White...