Navigating — continued from Page 64
case could not prove a causal connection between the discriminatory animus and his discharge.” (Id. at 108-109, emphasis added.) Noting that the situation is simi- lar to a simpler employment structure in which a supervisor fires the employee in retaliation for protected conduct, the court admonished that the “supervisor’s utilization of a complex management structure to achieve the same result can- not have the effect of insulating the employer from a liability that would oth- erwise be imposed.” (Id. at 109.) Citing to Judge Posner’s famous deci-
sion in Shager v. Upjohn Co. (1990) 913 F.2d 398 (which used the phrase “cat’s paw” to describe this phenomenon), the Reeves court discussed how a supervisor bent on retaliation could artificially engi- neer the disciplining (or firing) of an employee he wanted to injure by portray- ing that employee’s performance “‘in the worst possible light’” to a decision-maker who did not have any retaliatory animus. (121 Cal.App.4th at 113.) In Reeves, the manipulator did precisely that, stressing the alleged “possible workplace violence” aspects of the claim. (Id. at 117.) As a result, the court found the evidence of the necessary “causal link” to support a
FEHA claim even though the actual deci- sion-maker was innocent of bad intent.
Intentional infliction of emotional distress and punitive damages are not available in wrongful termination cases
The California Supreme Court has
consistently reaffirmed that an employee wrongfully terminated in violation of pub- lic policy may subject his employer “to lia- bility for compensatory and punitive dam- ages under normal tort principles.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839], disap- proved on another point [no tort dam- ages for breach of the covenant of good faith and fair dealing in an employment contract] in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 687 [254 Cal.Rptr. 211].) “What is vindicated through the [Tameny] cause of action is not the terms or promises arising out of the particular employment relationship involved, but rather the public interest in not permit- ting employers to impose as a condition of employment a requirement that an employee act in a manner contrary to fun- damental public policy.” (Phillips v. Gemini
Moving Specialists (1998) 63 Cal.App.4th 563, 569-570 [74 Cal.Rptr.2d 29, 33].) Nonetheless, in an effort to under-
mine this principle. defense counsel rely on a variety of weak arguments. For exam- ple, they often cite Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1048 [243 Cal.Rptr. 306, 311-312]) for the proposition that being “dismissed from a job is not an uncommon occurrence. . . .” What the defense does not mention is that the appellate court immediately explained that Pitman’s intentional inflic- tion of emotional distress (“IIED”) claim was not foredoomed because it involved a wrongful discharge. Rather, it failed because the discharge and the resultant shame “was the product of [Pitman’s] own unlawful conduct.” Pitman was discharged from his work as a police dispatcher, not on a pretext, but rather for cause when it was discovered that he had been arrested. (Id. at 1040.) Defense counsel likewise cite Horn v.
Bradco Intern., Ltd. (1991) 232 Cal.App.3d 653, 662-663 [283 Cal.Rptr. 721, 726-727] for the proposition that wrongful termina- tion does not support IIED or punitive
See Navigating, Page 68
• Specializing in pre-litigation P.I. cases • Negotiates for more money in your pocket • Less overhead for your company • Independent contractor with her own business license
66— The Advocate Magazine APRIL 2011
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