Swartzendruber v. City of San Diego

• Citation: 3 Cal.App.4th 896,5 Cal.Rptr.2d 64
• Decision Date: 20 February 1992
• Docket Number: No. D013461,D013461
• Parties: , 60 Fair Empl.Prac.Cas. (BNA) 1292 Nancy L. SWARTZENDRUBER, Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents.
• Court: California Court of Appeals

Page 64

5 Cal.Rptr.2d 64

3 Cal.App.4th 896, 60 Fair Empl.Prac.Cas. (BNA) 1292

Nancy L. SWARTZENDRUBER, Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

No. D013461.

Court of Appeal, Fourth District, Division 1, California.

Feb. 20, 1992.

Shifflet, Walters, Kane & Konoske, and Alan L. Geraci, San Diego, for plaintiff and appellant.

John W. Witt, City Atty., Eugene P. Gordon, Sr. Chief Deputy Atty., and Carol S. Leimbach, Deputy City Atty., for defendants and respondents.

TODD, Associate Justice.

Nancy Swartzendruber appeals a judgment dismissing the lawsuit she filed against the City of San Diego (City) and certain individual police officials after she was fired from her civilian job in City's Police Department for refusing to wear a uniform as ordered. Swartzendruber contends the trial court erred in first sustaining a demurrer to certain causes of action and later granting summary judgment on the remaining causes of action.

FACTS

Swartzendruber was hired by City in November 1980 as a police department dispatcher. She received either satisfactory or highly satisfactory job evaluations in this position through January 1984 when she was hired by Sergeant Stanley Elmore as a field representative in the licensing division of the police department. Swartzendruber's position as field representative involved enforcement of the City's alarm ordinance; she was required to perform field work, various clerical and administrative functions and provide testimony in administrative and court hearings. She received highly satisfactory evaluations for her job performance throughout the period she worked for Elmore.

In 1986, Swartzendruber and other field representatives in the licensing division sought a job reclassification. In July 1986, the position of field representative was reclassified to the position of code compliance officer, which resulted in a 15 percent salary increase for Swartzendruber and the others. Swartzendruber maintains that Elmore opposed the job reclassification, was upset and angry when it was approved and was heard to say he would make the code compliance officers wear uniforms. Swartzendruber also maintains Elmore ignored her concerns about the need for safety training for code compliance officers.

In early 1987, the police department conducted an inspection of the licensing division. One recommendation was that code compliance officers wear uniforms to better identify themselves to the public, create a more professional look and make it safer for them to perform their duties. The original recommendation called for khaki uniforms, but Swartzendruber and others complained such uniforms would too closely resemble uniforms worn by police officers and pose a safety problem. Thereafter, it was decided the uniform color for the code compliance officers would be blue. On August 10, 1987, Swartzendruber and other code compliance officers received a memo informing them that starting September 1, 1987, they would be required to wear uniforms on the job. The uniform requirement affected only the women in the licensing division; neither Elmore nor two male detectives were required to wear uniforms.

Prior to the imposition of the uniform requirement, City provided the code compliance officers with an eight-hour training course that included a two-hour session on safety procedures. Swartzendruber did not consider this adequate safety training.

On September 1, 1987, Swartzendruber reported to work dressed in civilian clothing and was sent home. She was advised she could return to work if she wore the uniform. On September 16, 1987, Swartzendruber was given notice of the police department's proposal to terminate her. On November 13, 1987, Swartzendruber was terminated from her employment for insubordination--failure to obey a lawful order to report to duty in uniform.

Swartzendruber challenged her termination through internal department appeals procedures. The department upheld the termination. Swartzendruber appealed her termination to the City's Civil Service Commission (Commission).

Swartzendruber's position before the Commission was that her termination was unfair, arbitrary and discriminatory. She maintained (1) the uniform requirement was implemented in retaliation for securing the job reclassification, (2) the males in the licensing division (Elmore and two detectives) did not have to wear uniforms, (3) the department did not provide adequate safety instruction to compensate for the added potential hazards of wearing a uniform, and (4) the discipline of termination for one act of insubordination was excessive.

On April 20, 1988, the Commission upheld the termination, finding Swartzendruber's refusal to wear the uniform was a violation of a direct and lawful order, in violation of police department rules and regulations. The Commission also ordered Swartzendruber, if she applied, was to be reinstated on eligibility lists for which she is qualified. Swartzendruber did not file a petition for a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5.

On June 14, 1988, Swartzendruber filed a charge of sex discrimination and retaliation with the State Department of Fair Employment and Housing and the Federal Equal Employment Opportunity Commission. Subsequently, she received right-to-sue letters from both agencies. In October 1988, she filed a written claim against the City.

According to Swartzendruber's deposition testimony, Elmore was always making comments to her about her weight and told her she was "going to look real good in those uniforms because of my big butt." She said such comments about her weight were the only sexually harassing remarks Elmore made to her, though he made other derogatory remarks about women, including comments about women's breasts. He also referred to the women on his staff as In April 1987, during the course of an investigation into a complaint of racial and sexual harassment against Elmore by a different code compliance officer, Swartzendruber told the police department's equal employment officer that she was never treated differently by Elmore because she was a woman. Swartzendruber also told the officer that Elmore joked about women being inferior, but she was never offended by any of his comments.

his harem. However, Swartzendruber said, except for the remarks about her weight, she considered Elmore's comments about women as jokes.

On May 4, 1989, Swartzendruber filed her lawsuit. Swartzendruber's first amended complaint states six causes of action: (1) breach of statutory duty; (2) intentional infliction of emotional distress; (3) fraud and deceit; (4) sex discrimination; (5) violation of Title 42 U.S.C. sections 1983 and 1985; and (6) violation of public policy. The first amended complaint also states that a writ of mandamus challenging the Commission's decision upholding the termination would be futile since no abuse of discretion was involved in the Commission's decision.

On December 7, 1989, the trial court sustained City's demurrer to all causes of action except the fourth and fifth causes of action on the grounds Swartzendruber failed to pursue her remedies by not filing a petition for a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5. On October 11, 1990, the trial court granted City's motion for summary judgment on the grounds that Swartzendruber's claims for sex discrimination and violation of civil rights were barred by the doctrine of res judicata.

DISCUSSION

I

Swartzendruber contends the trial court erred in sustaining City's demurrer to her causes of action for intentional infliction of emotional distress and violation of public policy. ¹ The contention is without merit.

According to Swartzendruber's first amended complaint, City, Elmore and others "engaged in an extreme and outrageous course of conduct that was intended to cause severe emotional distress, or was done in conscious disregard of the probability of causing such distress. In particular, Defendant ELMORE abused his authority and position by intentionally, maliciously and dishonestly creating a justification for terminating plaintiff in the following ways: ...."

According to Swartzendruber's first amended complaint, City violated public policy by firing her in retaliation for exercising her right to protest unsafe working conditions and rules.

It is well settled that a general demurrer admits the truth of all material factual allegations in the complaint. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) Our review with respect to the demurrer therefore does not involve the plaintiff's ability to prove the allegations. (Ibid.)

Swartzendruber failed to have the decision of the commission judicially reviewed by bringing a petition for a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5. ² It is well established that mandamus proceedings are the proper avenue for contesting decisions regarding public employee discipline. As our Supreme Court said in Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637, 234 P.2d 981:

"Since the enactment of section 1094.5 of the Code of Civil Procedure, it is no longer open to question that in this state the writ of mandamus is appropriate 'for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer....' "

Subsequently, in Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, the Supreme Court held a mandamus proceeding is a prerequisite to a tort action. In Westlake, plaintiff's hospital privileges were revoked, and she exhausted all of her internal remedies. Then,...