Skrbina v. Fleming Companies

• Decision Date: 30 May 1996
• Docket Number: No. C021729,C021729
• Citation: 53 Cal.Rptr.2d 481,45 Cal.App.4th 1353
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 NDLR P 122, 96 Cal. Daily Op. Serv. 3881, 96 Daily Journal D.A.R. 6280 Marko SKRBINA, Plaintiff and Appellant, v. FLEMING COMPANIES, INC., et al., Defendants and Respondents.

Page 481

53 Cal.Rptr.2d 481

45 Cal.App.4th 1353, 8 NDLR P 122, 96 Cal. Daily Op. Serv. 3881,

96 Daily Journal D.A.R. 6280

Marko SKRBINA, Plaintiff and Appellant, v. FLEMING COMPANIES, INC., et al., Defendants and Respondents.

No. C021729.

Court of Appeal, Third District, California.

May 30, 1996.

[45 Cal.App.4th 1358] William S. Morris, Turlock, for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Dale E. Fredericks, and Anna E. Goodwin, San Francisco, for Defendants and Respondents.

SIMS, Acting Presiding Justice.

Plaintiff Marko Skrbina appeals from the dismissal of his employment discrimination action following the grant of summary judgment to defendants Fleming Companies, Inc. ("Fleming"), Jim O'Bra, and Leighton Carlson.

We shall conclude plaintiff's action is barred by a written release agreement given by plaintiff to his employer in exchange for more than $8,000 in severance benefits. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's work history.

Plaintiff, an immigrant to the United States of Croatian origin, was born in 1931. In 1979 he began working as a forklift maintenance mechanic at the Milpitas warehouse now owned by Fleming. Fleming acquired the warehouse in 1986 and became plaintiff's employer. Defendant O'Bra was Fleming's human resources manager at the warehouse from September 1988 to October 1992. Defendant Carlson was plaintiff's immediate supervisor.

During his employment with Fleming, plaintiff repeatedly complained of unsafe working conditions and harassment. In 1988 he filed (but did not serve) a lawsuit against Fleming, alleging employment discrimination based on national origin, in Santa Clara County. ¹

On August 28, 1991, plaintiff went on disability. He remained in that status as of August 1, 1992.

Fleming's reduction in force and the Memorandum of Agreement ("MOA").

In June 1992, Fleming lost a significant client and decided to consolidate the Milpitas warehouse with another, a move which would necessitate the layoff of a substantial number of employees. Fleming and the union local which represented employees at the warehouse, including plaintiff, negotiated a Memorandum of Agreement ("MOA") and a Letter of Understanding with respect to the consolidation, which were signed by representatives of the company and the union on August 31, 1992.

The MOA covers "all employees employed as of June 22, 1992, and who are subject to the collective bargaining agreement by and between Fleming Foods West, Inc., Milpitas division and International Brotherhood of Teamsters Local 287, and who are permanently laid off as a result of the decision to consolidate the Milpitas division with the Sacramento division or as a result of the loss of Pak ['N] Save business." The MOA provides for severance benefits to be paid to all covered employees who first signed a release of all claims against Fleming and its affiliates, agents, and employees, except for unemployment compensation and worker's compensation claims. It also specifically provides that employees off work due to disability would be eligible for severance benefits.

The Letter of Understanding spells out the details of the severance package, including Fleming's promise to pay additional sums into the employees' pension fund.

Plaintiff's layoff and subsequent events.

Plaintiff received notice of layoff effective August 1, 1992.

On September 18, 1992, plaintiff filled out and signed a form headed "San Francisco Bay Division Closure Option Form," on which he chose the option providing: "When released by San Francisco Bay Division the rights provided in the Collective Bargaining Agreement and Memorandum of Understanding will apply." ²

On October 5, 1992, plaintiff signed a release in order to obtain his severance benefits. This document, headed "Severance Agreement and Release," states: "In consideration of the additional health and welfare On July 28, 1993, plaintiff filed complaints against defendants (as well as individual Fleming employees not parties to this action) with the state Department of Fair Employment and Housing ("DFEH"). As to defendants, he alleged that from May 1992 through August 1, 1992, he "was denied reasonable accommodation and reinstatement to the position of Journeyman Mechanic and ultimately laid-off from this position by the Respondent effective August 1, 1992" based on his age and disability. ³

                benefits and severance benefits and other consideration provided me by Fleming [45 Cal.App.4th 1360] Companies, Inc. in connection with the consolidation of the Milpitas facility with the Sacramento facility, I hereby completely release and forever discharge Fleming Companies, Inc.  ("Fleming") and any affiliated and parent companies and their officers, directors, agents, and employees from any claims, rights, demands, actions, obligations, character [sic ], known or unknown, which I may now have, have ever had, or may in the future have (exclusive of any workers compensation matter) regarding my employment, benefits, and separation from Fleming including any and all claims under state or federal employment laws and regulations."  (Italics added.)   Plaintiff read the release before signing it, did not ask anyone's advice about whether to sign it, and signed it "willingly" because he wanted money to pay medical bills.  After signing the release he received the severance benefits to which he was entitled, a sum in excess of $8,000
                

On September 5, 1993, DFEH notified plaintiff that it would not file claims on his behalf and issued him "right-to-sue" letters as to all parties named in his complaints.

The lawsuit.

On October 5, 1993, plaintiff filed a complaint against defendants for unlawful discrimination and wrongful discharge. He stated three "causes of action": (1) employment discrimination under California's Fair Employment and Housing Act ("FEHA"), Government Code section 12900 et seq., based on age, disability, mental condition, and national origin; (2) violation of the federal Americans With Disabilities Act (42 U.S.C. § 12101 et seq.); and (3) wrongful termination in violation of public policy based on retaliation for complaints about workplace safety. ⁴

On January 5, 1994, defendants removed the action to federal court. After plaintiff voluntarily dismissed his federal cause of action, the federal district court remanded the matter to state court.

On September 6, 1994, defendants demurred to the complaint, alleging that plaintiff had failed to exhaust his administrative remedies as to his two surviving "causes of action." Although the demurrer purported to be directed at the complaint as a whole, with respect to the first "cause of action" defendants asserted only that plaintiff had failed to allege discrimination based on national origin in his DFEH complaints, of which they requested judicial notice (implicitly conceding that he had exhausted his administrative remedies as to age and disability). They asked that the trial court dismiss the complaint with instructions that plaintiff amend it so as to state only a "cause of action" for FEHA discrimination based on age or disability.

The trial court tentatively overruled the demurrer at a hearing on October 19, 1994. ⁵

On October 27, 1994, the parties entered into a stipulation and order dismissing plaintiff's FEHA claims as to disability and mental condition.

The trial court entered an order overruling defendants' demurrer on February 3, 1995. The order did not direct defendants to answer the complaint.

Also on February 3, 1995, defendant Fleming filed a pleading, in which the individual defendants joined, styled "Demurrer ... Or, In the Alternative, Motion for Summary Adjudication." The new demurrer was based on the theory that plaintiff's entire suit was barred by another pending action, the pro per complaint which plaintiff filed against Fleming in 1988 in Santa Clara County. ⁶ The motion for summary adjudication sought the dismissal of plaintiff's FEHA "cause of action" based on the one-year statute of limitations of Government Code section 12960 and failure to exhaust administrative remedies, and the dismissal of plaintiff's wrongful termination action based on the one-year statute of limitations of Code of Civil Procedure section 340, subdivision (3).

On March 7, 1995, plaintiff attempted to take Fleming's default on the ground that it had not answered the complaint within the statutory period after the overruling of its first demurrer. Subsequently, plaintiff filed opposition to defendant's "demurrer/summary adjudication" motion.

On March 21, 1995, the trial court overruled Fleming's demurrer, but rejected plaintiff's contention that the demurrer was procedurally improper. The court granted summary adjudication as to plaintiff's FEHA cause of action for national-origin discrimination because he had failed to exhaust his administrative remedies as to this theory of discrimination, not having alleged it in his DFEH complaints. The court also granted summary adjudication as to plaintiff's cause of action for wrongful termination because he had waited more than one year after his layoff before filing suit. However, the court denied summary adjudication of plaintiff's FEHA cause of action for age discrimination because plaintiff had raised a triable issue of fact as to whether defendants' alleged violation continued after the date of his layoff. The court entered a formal order to this effect on April 18, 1995.

All defendants answered the complaint on March 31, 1995.

On April 26, 1995, defendants moved for summary judgment on plaintiff's remaining cause of action, alleging two new theories: (1) plaintiff's suit was preempted by section 301 of the federal Labor Management Relations Act (29 U.S.C. § 185(a)) because its subject matter was covered by a collective bargaining agreement which must be construed under that statute; and (2) plaintiff's signed release barred his suit under...