Shoemaker v. Myers

Decision Date28 January 1992
Docket NumberNo. C000150,C000150
Citation4 Cal.Rptr.2d 203,2 Cal.App.4th 1407
CourtCalifornia Court of Appeals Court of Appeals
Parties, 126 Lab.Cas. P 57,473, 7 IER Cases 175 Jack SHOEMAKER, Plaintiff and Appellant, v. Beverlee A. MYERS, as Director, etc. et al., Defendants and Respondents.

Christopher D. Burdick, Gary M. Messing, Cathleen A. Williams, Rockne A. Lucia, Carroll, Burdick & McDonough, Sacramento, John True, San Francisco, and the Employment Law Center, for plaintiff and appellant.

Daniel E. Lungren and John K. Van de Kamp, Attys. Gen., Robert Mukai, Chief Asst. Atty. Gen., Charlton B. Holland, III, Sr. Asst. Atty. Gen., Dennis Eckhart and Elisabeth C. Brandt, Supervising Deputy Attys. Gen., Eileen Gray and Joseph O. Egan, Deputy Attys. Gen., for defendants and respondents.

Jonathan H. Sakol, Emily G. Caplan, McCutchen, Doyle, Brown & Enersen, San Francisco, for amicus curiae, California Employment Law Council.

PUGLIA, Presiding Justice.

This appeal is before us for the second time, this time on remand from the Supreme Court. (Cal.Rules of Court, rule 29.4.) The matter originally came to us on appeal from a judgment of dismissal following the sustaining of demurrers to plaintiff's complaint. In our first opinion (Shoemaker v. Myers (1987) Cal.App., 237 Cal.Rptr. 686 [rev. granted 8/26/87] (Shoemaker I )) we concluded all but one of plaintiff's theories of recovery alleged in his complaint for wrongful termination as an investigator for the Department of Health Services were preempted by the exclusivity provisions of the worker's compensation law (Labor Code, § 3601). These included theories based on Government Code section 19683 (the whistle-blower statute) and Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (Tameny ). The only theory to survive was that based on an alleged violation of plaintiff's federal civil rights. The Supreme Court granted plaintiff's petition for review and reversed in part, holding plaintiff's claim for violation of the whistle-blower statute is not preempted by the exclusivity provisions of the workers' compensation law. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054 (Shoemaker II ).) The court left unresolved other issues raised by the appeal including whether a Tameny claim is preempted by workers' compensation law and whether plaintiff's complaint stated such a claim. (Shoemaker II at p. 23, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Pursuant to the Supreme Court's remand, we shall deal in this opinion with those matters not addressed in Shoemaker I and Shoemaker II. We shall conclude defendants are not entitled to immunity with respect to plaintiff's claim for violation of the whistle-blower statute. We shall also conclude a theory of recovery for wrongful termination in violation of public policy (Tameny ) is not preempted by workers' compensation law. Although we shall conclude plaintiff has stated a Tameny claim based on allegations of wrongful discharge in retaliation for activity protected by the whistle-blower statute and exercise of rights afforded by the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, §§ 3300, et seq.; hereafter the Officers Rights Act), we shall further conclude that as to plaintiff's Tameny claim, defendants are entitled to immunity under Government Code sections 815.2 and 821.6. Finally, we shall determine that plaintiff complied with the Tort Claims Act. (Gov.Code, § 810 et seq.) Accordingly, we shall reverse in part and affirm in part.

I

The facts as disclosed by plaintiff's pleadings are taken primarily from the opinion of the Supreme Court in Shoemaker II: "Plaintiff Jack Shoemaker (plaintiff) had been an investigator for the Department of Health Services (Department) for nine years, and had an exemplary record in civil service for twenty-two years up to the time of his termination.

"In 1979, a letter to the Attorney General from the Office of the Lieutenant Governor asserted that certain family planning health care centers (health centers) were operating illegally because lay workers were performing services required to be performed by licensed medical professionals. The health centers were receiving funds from the Office of Family Planning (OFP) division of the Department. In 1980, plaintiff was assigned to investigate the allegations of illegal operations, and plaintiff ultimately filed a report concluding not only that the health centers had indeed utilized unlicensed personnel to perform medical functions, but that Beverlee A. Myers, director of the Department, and other high Department officials improperly approved funding for the health centers with knowledge that the health centers were engaging in such illegal practices. After plaintiff made his report outlining possible illegal practices by Department officials, his supervisors in the Division of Audits and Investigations, particularly Charles Shuttleworth, who was chief of the division, improperly interfered with plaintiff's investigation by forbidding him to make contacts in furtherance of the investigation or to report his findings or share with appropriate law enforcement agencies the information he had uncovered. In December 1980, plaintiff complained of the interference and asked to be relieved of his assignment to the health centers investigation. Because of his complaint plaintiff received a disciplinary counseling. His supervisors further threatened, intimidated and harassed him on account of his complaints between December 1980 and May 1981.

"In May 1981, a magazine article about the health centers appeared, criticizing the health centers' use of lay health workers and calling into question Beverlee Myers's role in continuing funding for the health centers. After the article appeared, Shuttleworth interrogated plaintiff and other investigators, and threatened to fire any investigator who had 'leaked' information to the press unless he or she 'confessed.'

"The events immediately precipitating plaintiff's termination began in November 1981, when a psychiatrist complained to the Department that Department investigators, in the course of another investigation unrelated to the health centers matter, had harassed two of the psychiatrist's patients. Although plaintiff was not in fact involved in that investigation, the psychiatrist mistakenly identified plaintiff as one of the investigators. Plaintiff's supervisors thereafter orally interrogated him at least two times, on or about December 4 and December 16, 1981, about the misconduct charges. Shuttleworth then demanded that plaintiff provide written answers and explanations to the same questions he had already answered orally. Plaintiff, by a letter memorandum dated December 21, 1981, stated he would not answer further questions on the matter without legal representation in accordance with the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq.). Upon plaintiff's assertion of his right to representation, he was fired for insubordination by Shuttleworth and, on an intradepartmental appeal, senior Department officials upheld the termination, which became effective January 11, 1982.

"Plaintiff filed an administrative appeal to the State Personnel Board. On January 26, 1982, the State Personnel Board ordered plaintiff reinstated. After plaintiff won reinstatement, Shuttleworth and other senior officers made statements to the effect that, even though they knew the termination was not proper, they wanted to cause plaintiff as much trouble as possible, or to the effect that, if it had been anyone other than plaintiff, he would not have been fired." (Shoemaker II at pp. 7-9, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Plaintiff filed this action against defendants Beverlee A. Myers, director of the Department, Barry Dorfman, assistant director of the Department, Richard H. Koppes, an attorney for the Department, Ted Scott, of the Office of the Executive Secretary of the Department, Philip G. Weiler, chief deputy director of Preventive Health Services in the Department, Jack Reagan, deputy director of the Audits and Investigations Division of the Department, Charles Shuttleworth, chief of the Audits and Investigations Division of the Department, the Department, and the State of California (hereafter collectively defendants) alleging his termination had been in retaliation for the health centers investigation and report. Plaintiff also alleged the pretextual reason given by the Department for his termination, "insubordination" for invoking his right to representation under the Officers Rights Act, was itself improper. (Shoemaker II at p. 9, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Plaintiff's first amended complaint set forth 11 counts: (1) "wrongful termination," (2) violation of Government Code section 19683, (3) wrongful termination in violation of public policy, (4) breach of contract and the implied covenant of good faith and fair dealing, (5) wrongful interference with a business relationship and wrongful inducement of breach of contract, (6) intentional infliction of emotional distress, (7) fraud and deceit, (8) violation of civil rights (42 U.S.C. § 1983), (9) injunctive relief, and a claim for attorney fees (10) for plaintiff and (11) on behalf of the Peace Officers Research Association of California (PORAC) legal defense fund. The first amended complaint alleged physical injury and disability resulting from defendants' acts. (Shoemaker II, at p. 9, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Defendants demurred and the trial court sustained demurrers to the first, second, third and sixth counts of the first amended complaint based on workers' compensation exclusivity. Demurrers to the seventh count were sustained on the basis of governmental immunity and failure to set forth sufficient facts. Demurrers to the eighth count were sustained for failure to allege deprivation of...

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