Sullivan v. Delta Air Lines, Inc.

• Decision Date: 27 October 1997
• Docket Number: No. A066778,A066778
• Citation: 68 Cal.Rptr.2d 584,58 Cal.App.4th 938
• Parties: , 13 IER Cases 735, 97 Cal. Daily Op. Serv. 8261, 97 Daily Journal D.A.R. 13,307 Alene M. SULLIVAN, as Special Administrator, etc., Plaintiff and Respondent, v. DELTA AIR LINES, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 584

68 Cal.Rptr.2d 584

58 Cal.App.4th 938, 13 IER Cases 735,

97 Cal. Daily Op. Serv. 8261,

97 Daily Journal D.A.R. 13,307

Alene M. SULLIVAN, as Special Administrator, etc., Plaintiff and Respondent, v. DELTA AIR LINES, INC., Defendant and Appellant.

No. A066778.

Court of Appeal, First District, Division 5, California.

Oct. 27, 1997.

Certified for Partial Publication. ^*

Ralph C. Petersen, Lemoore, Dianna Lyons, Kazan, McCalin, Edises, Simon & Abrams, Oakland, for plaintiff and respondent.

Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Leonard Sacks, Granada Hills, Bruce Broillet, Santa Monica, Thomas Stolpman, Long Beach, Robert B. Steinberg, Los Angeles, Roland Wrinkle, Woodland Hills, Gary Paul, Santa Monica, Steven Kleifield, Los Angeles, Harvey Levine, Fremont, Mary E. Alexander, San Francisco, Wayne Mcclean, Woodland Hills, William Turley, San Diego, David Casey, Tony Tanke, Redwood City, Daniel U. Smith, Kentfield, Harry F. Wartnick, Wartnick, Chaber, Harowitz, Smith & Tigerman, San Francisco, David A. Rosen, Rose, Klein & Marias, Los Angeles, for amici curiae on behalf of plaintiff and respondent.

Gilmore F. Diekmann, Jr., Patricia H. Cullison, Jose H. Garcia, Bronson, Bronson & McKinnon, J. Michael Garner, San Francisco, for defendant and appellant.

Roy G. Weatherup, William J. Sayers, Caroline E. Chan, Haight, Brown & Bonesteel, Santa Monica, for amici curiae on behalf of defendant and appellant.

JONES, Associate Justice.

Delta Air Lines, Inc., (Delta) appeals from a judgment entered on a jury verdict awarding damages to Joseph A. Sullivan ¹ (Sullivan) for wrongful termination in violation of the public policy found in Labor Code section 1025 of the Alcohol and Drug Rehabilitation Act (ADRA) (Lab.Code, §§ 1025 et seq.), ² for violation of section 1025, and for tortious intrusion into privacy. In the published portion of the opinion, we hold that a violation of section 1025 cannot support a cause of action for tortious wrongful termination.

In the unpublished portion, we hold that Sullivan did not exhaust his administrative remedies as required before making a direct [58 Cal.App.4th 941] claim under section 1025, and that the claim for intrusion into privacy was filed after the one-year statute of limitations had run. Consequently, the judgment must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Sullivan was employed by Delta until his discharge in 1991. In the two years before his discharge, Sullivan struggled with alcohol and drug abuse and was diagnosed as HIV positive. With Delta's financial support, Sullivan participated in two successive, progressively more intensive alcohol rehabilitation programs. The second was followed by Sullivan's participation in a residential rehabilitation program after he returned to work at Delta. In late September 1991, Sullivan's violation of house rules led to his discharge from the residential treatment program. He then checked himself into a hospital for inpatient psychological treatment, and, after being released by his doctor to return to work, refused to return to work when ordered by Delta. Delta suspended his employment on October 9, terminated him on October 17, and this suit followed.

Sullivan sued Delta on multiple legal theories arising from the termination of his employment. His second amended complaint contained 14 causes of action. Seven survived pre-trial motions, and the jury found Delta liable on three: the second cause of action for tortious intrusion into privacy, the fourth cause of action for tortious discharge in violation of the public policy of section 1025, and the fifth cause of action for violation of section 1025 itself. The jury awarded Sullivan $275,000 for emotional distress. It was unable to reach a decision on the sixth cause of action for employment discrimination based on physical handicap related to HIV infection in violation of the Fair Employment and Housing Act (FEHA). The jury also deadlocked on whether punitive damages were appropriate for the fifth cause of action, Delta's violation of section 1025.

The trial court granted judgment notwithstanding the verdict on the issue of whether the evidence supported a punitive damages finding for the section 1025 violation, but otherwise denied Delta's motion for judgment notwithstanding the verdict and/or a New Trial. It also granted Sullivan's motion for a retrial on the sixth cause of action.

Sullivan died on February 19, 1995, during the initial briefing on appeal. His mother was substituted as plaintiff and respondent. This court initially reversed the trial court's judgment on the grounds that emotional distress damages could not be awarded if plaintiff died before the appeal concluded. The California Supreme Court reversed in Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 63 Cal.Rptr.2d 74, 935 P.2d 781.

The Supreme Court also resolved an issue regarding the finality of the trial court's judgment and accepted respondent's waiver of the right to a retrial on the sixth cause of action. As a result, the Supreme Court directed us to "amend the judgment of the trial court to reflect the rendition of judgment for defendant on counts 1, 3, 7, 8, 9, 10, 11, 12, 13, and 14, and the dismissal of count 6 with prejudice, all nunc pro tunc as of May 10, 1994; and ... address the merits of the appeal, allowing the parties the opportunity to file supplemental briefs if they so request." (Sullivan, supra, 15 Cal.4th at p. 309, 63 Cal.Rptr.2d 74, 935 P.2d 781.) Having received no requests to file supplemental briefs, we hereby amend the trial court judgment as directed and now decide the merits of Delta's appeal based on the parties' original briefs.

DISCUSSION

I. Wrongful Termination in Violation of Public Policy Based on Section 1025

A. The "Substantial and Fundamental" Public Policy Requirement

Our Supreme Court recently reexamined and restated the elements of a cause of action for tortious wrongful discharge in violation of fundamental public policy in Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887-890, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (Stevenson). A tortious discharge claim requires In Gantt v. Sentry Insurance 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680 (Gantt), the Supreme Court explained why a policy supporting a recovery for tortious discharge must be substantial and fundamental. "[D]espite its broad acceptance, the principle underlying the public policy exception is more easily stated than applied. The difficulty, of course, lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely ordinary disputes between employer and employee. This determination depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy. In Foley v. Interactive Data Corp. [ (1988) ] 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373], we endeavored to provide some guidelines by noting that the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer; in addition, the policy must be 'fundamental,' 'substantial' and 'well established' at the time of the discharge. (Id. at pp. 669-670 [254 Cal.Rptr. 211, 765 P.2d 373].)" (Gantt, supra, 1 Cal.4th at p. 1090, 4 Cal.Rptr.2d 874, 824 P.2d 680.) An employer may only be fairly burdened with tort liability when it violates a public policy that is substantial and fundamental. "The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society's interests are served through a more stable job market, in which its most important policies are safeguarded." (Id. at p. 1095, 4 Cal.Rptr.2d 874, 824 P.2d 680.)

                that the employee be discharged in violation of a policy that is:  "(1) delineated in either constitutional or statutory provisions;  (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual;  (3) well established at the time of discharge;  and (4) substantial and fundamental."  (Id. at p. 894, 66 Cal.Rptr.2d 888, 941 P.2d 1157.)   Appellant questions whether the policies underlying section 1025 meet the second and third requirements, i.e., that the policy be public and well established.  We do not reach these issues, however, because we conclude that the policies expressed by section 1025 are not substantial and fundamental
                

Thus, the primary rationale for requiring that a public policy be substantial and fundamental is "to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge." (Stevenson, supra, 16 Cal.4th at p. 889, 66 Cal.Rptr.2d 888, 941 P.2d 1157; see Jennings v. Marralle (1994) 8 Cal.4th 121, 135-136, 32 Cal.Rptr.2d 275, 876 P.2d 1074 (Jennings).) A corollary of the substantial and fundamental requirement, then, is that a " 'constitutional or statutory provision must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law.' " (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, 32 Cal.Rptr.2d 223, 876 P.2d 1022, fn. 9 (Turner), quoting Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480, 16 Cal.Rptr.2d 888 (Sequoia); see Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147, 37 Cal.Rptr.2d 718 (Gould ) [fundamental policy must be " 'sufficiently clear' to the employer at the time of the discharge...."].)

The emphasis on sufficient notice to employers is reflected in the Supreme Court's...