Usher v. American Airlines, Inc.

• Decision Date: 14 December 1993
• Docket Number: No. A057226,A057226
• Court: California Court of Appeals Court of Appeals
• Parties: , 2 A.D. Cases 1601, 4 NDLR P 313 Beverly USHER, Plaintiff and Appellant, v. AMERICAN AIRLINES, INC., Defendant and Respondent.

Page 335

25 Cal.Rptr.2d 335

20 Cal.App.4th 1520, 2 A.D. Cases 1601, 4 NDLR P 313

Beverly USHER, Plaintiff and Appellant, v. AMERICAN AIRLINES, INC., Defendant and Respondent.

No. A057226.

Court of Appeal, First District, Division 3, California.

Dec. 14, 1993.

Review Denied March 31, 1994.

[20 Cal.App.4th 1521] Eugene R. Oreck, Oreck and Oreck, Oakland, for plaintiff and appellant.

Haight, Brown & Bonesteel, George Christensen, Roy G. Weatherup, Neil G. McNiece, Caroline E. Chan, Santa Monica, for defendant and respondent.

DOSSEE, Associate Justice.

Beverly Usher appeals from a judgment entered on a motion for summary adjudication in favor of American Airlines, Inc. (American). We conclude that appellant's causes of action for breach of contract and handicap discrimination were subject to the exclusive remedy provisions of the California Workers' Compensation law and were properly dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 1984, appellant became temporarily disabled as a result of an industrial injury to her back and knee. At that time, she was working for American as an airport operations agent. She was able to continue working in that position until September 4, 1984, when the job was eliminated. Appellant was transferred to the job of ticket agent, but her July injury prevented her from performing the lifting activities required by the job. Appellant attempted to find another job with American, but was unsuccessful.

On November 24, 1986, appellant filed a petition pursuant to Labor Code section 132a with the Workers' Compensation Appeals Board. In that petition, she alleged that she was unable to do her old job because of the work injury to her back and knee, that she attempted to obtain an alternate position with American but was unable to do so because American failed to notify her of open positions and failed to hire her for positions which she was capable of performing. She requested lost wages, reinstatement, and a penalty. ¹

On August 26, 1987, appellant filed a complaint in superior court comprised of two unlabeled causes of action. The first cause of action alleged the existence of an express and implied policy that the employer would make a good faith attempt to reinstate her if she became disabled due to a work injury. This cause of action requested damages for breach of this implied and express promise consisting of lost earnings and work benefits, damages for mental distress, and punitive damages. ²

The second cause of action alleged that the acts of the employer constituted an arbitrary termination and breach of an implied duty to deal fairly with appellant. American filed an answer, denying the allegations of the complaint and setting out the exclusive remedy provisions as a defense. On June 7, 1989, the Workers' Compensation Appeals Board approved a compromise and release of appellant's workers' compensation claim. ³

On December 13, 1991, American filed a motion for summary adjudication of issues. ⁴

                American supported its motion with appellant's 132a petition, the order approving the compromise and release, and answers to interrogatories which stated that the allegations of failure to reinstate her were based on handicap discrimination and breach of the contract to reinstate her to a job she was able to perform.  Appellant responded with her own separate statement of undisputed facts stating that she became physically handicapped as a result of a work-related injury, that she was not reinstated due to handicap discrimination and "breach of contract separate and apart from defendant's discrimination based upon physical handicap arising out of her industrial injury."   Appellant also stated that her claim that she was arbitrarily terminated was based on theories of breach of contract and handicap discrimination. 5  Appellant sought leave to amend the complaint to add an explicit cause of action for handicap discrimination
                

At the hearing on American's motion, counsel for appellant told the court that he had intended for the first cause of action to state a breach of contract claim and the second cause of action to state a claim for constructive termination as a result of handicap discrimination and breach of contract. Counsel told the court that the facts in the complaint also supported a cause of action for violation of the Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) Although the court did not allow amendment to add the handicap discrimination cause of action, the court's order granting American's motion cited Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 252 Cal.Rptr. 878, which involved physical handicap discrimination.

The court granted American's motion, which disposed of all causes of action, and dismissed the complaint. Judgment was entered for American. Appellant appeals from that judgment, which disposed of all causes of action in the complaint.

DISCUSSION

The parties have treated the complaint as though it alleges a cause of action for handicap discrimination under the FEHA and a cause of action for breach of contract. We will do the same. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385, 282 Cal.Rptr. 508 [where parties assume a particular cause of action was stated, neither can change theories on appeal].) We exercise independent judgment when reviewing a summary judgment because only issues of law are raised. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

Handicap Discrimination and Exclusive Remedy

Section 3602 provides that "[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, ... the sole and exclusive remedy of the employee or his or her dependents against the employer...." ⁶ In Shoemaker v. Myers (1990) 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054, the Supreme Court discussed a number of situations in which the exclusive remedy provisions do not apply. Thus, when a case does not involve an industrial personal injury or death, the workers' compensation statutes do not bar a civil action. (Id., at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054.) Other exceptions include conduct outside the proper role of an employer, and where the employee's injury is not viewed as a risk of the employment, such as injuries to one's reputation. (Ibid.)

In the wrongful termination context, the Shoemaker court concluded that disabling injuries resulting from termination of employment are subject to the exclusive remedy provisions unless there is "an express or implied statutory exception or the discharge results from risks reasonably deemed not to be within the compensation bargain." (Id., at p. 7, 276 Cal.Rptr. 303, 801 P.2d 1054.) The injury claimed by the employee in Shoemaker was primarily emotional distress, caused by harassment and termination following the employee's reporting of illegal practices of his superiors.

Regarding the employee's claim for termination in violation of Government Code section 19683, the "whistleblower" statute, the Shoemaker court analyzed the relationship between the exclusive remedy provisions and the statute. The court found that when coverage by both statutes is possible, examination of the narrow goals of the "whistleblower" law indicated that it was the more specific law, which, under the " 'general statute, specific statute' " rule of construction, would prevail over the more general goals of the Workers' Compensation Act. The court found that the narrow purpose of the "whistleblower" act suggested that the Legislature intended an additional remedy or the statute would be rendered meaningless. (Id., at pp. 21-22, 276 Cal.Rptr. 303, 801 P.2d 1054.) Thus, the "whistleblower" remedy would apply even if violation resulted in damages for personal injury that would normally be covered by the workers' compensation system. (Id., at p. 22, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Arguing by analogy to Shoemaker, appellant claims that both the handicap discrimination provisions of FEHA and the anti-discrimination provisions of section 132a are applicable to her injury and that an analysis of the purposes of both indicates that by enacting FEHA the Legislature intended to provide additional remedies for injured workers. ⁷ The analysis employed in Shoemaker does not support appellant's claim.

The FEHA was enacted to protect the right to "seek, obtain, and hold employment without discrimination" on specified grounds. ⁸ (Gov.Code, § 12920.) The statute expressly states that it is not an exclusive remedy and is not to be "deemed to repeal any of the provisions of the Civil Rights Law or any other law of this state relating to discrimination...." (Gov.Code, § 12993, subd. (a).) The Legislature was presumably aware of the exclusivity provisions of the Workers' Compensation Act when it passed the FEHA, yet disclaimed any intent to repeal this preexisting exclusive remedy for a particular type of discrimination. Section 132a only applies to discrimination against workers who are injured in the course and scope of their employment. This is a more narrow purpose than that of the FEHA, which provides redress for all types of job discrimination, regardless of the existence of physical injury or an employer-employee relationship. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1976) 59 Cal.App.3d 647, 654, 130 Cal.Rptr. 831 [workers' compensation act predicated on employer-employee relationship].) We find that in circumstances such as the instant case, where the employment injury causes the disability on which the discrimination claim is based, the exclusive remedy provisions of the Workers' Compensation Act apply.

Other courts have come to the same conclusion. For example, in County of Santa Barbara v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 211, 215, 167 Cal.Rptr. 65, the court agreed with the following finding of a workers' compensation judge: " '[A]...