GREEN v. RALEE ENGINEERING COMPANY

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Court of Appeal, Second District, Division 7, California.

Richard GREEN, Plaintiff and Appellant, v. RALEE ENGINEERING COMPANY, Defendant and Respondent.

No. B091398.

Decided: February 27, 1997

Oshman, Brownfield & Smith and George E. Brownfield, N. Hollywood, for Plaintiff and Appellant. Nemecek & Cole, Jonathan B. Cole, Scott C. Pape, and Craig G. Staub, Sherman Oaks, for Defendant and Respondent.

In this case, the trial court granted summary judgment against a veteran aircraft inspector who claimed he was discharged for repeatedly complaining his employer, a manufacturer of components for passenger aircraft, was shipping defective parts and altering inspection records.   Contrary to the trial court, we conclude the public interest in safe air travel and properly manufactured passenger aircraft finds a firm basis in statutory and regulatory provisions.   Thus, the employee's actions furthered public policy and there is a triable issue whether he was wrongfully terminated despite his status as an at will employee.   Accordingly, we reverse.

FACTS AND PROCEEDINGS BELOW

Since this appeal arises out of a summary judgment, we state the facts and draw the inferences most favorable to the party against whom the trial court granted judgment.  (Heredia v. Farmers Ins. Exchange (1991) 228 Cal.App.3d 1345, 1353-1354, 279 Cal.Rptr. 511;  Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721, Eisenberg, Horvitz & Wiener, Cal.Practice Guide, Civil Appeals and Writs, § 8:115, pp. 8-46-8-47 [review on appeal from summary judgment presumes truth of allegations or evidence favorable to appellant].)   We emphasize the evidence if and when weighed at trial may tell a very different story, one exonerating the employer completely of the conduct the employee alleges and which remains a triable issue at this stage of the proceedings.   But the employer essentially chose to base its summary judgment motion on a single ground-assuming it had done everything the employee claimed it had, this conduct did not violate any public policy embodied in a statutory provision.1  Consequently, the employer argues, the employee's discharge could not qualify as a wrongful termination justifying a damage claim.   The trial court, in turn, based its order granting summary judgment on this single ground.   Accordingly, we recite the facts as we must assume they exist for purposes of this appeal.

Respondent Ralee Engineering Company (Ralee) manufactures fuselage and wing components for military and civilian aircraft.   It supplied parts for major airline assembly companies such as Boeing and for major warplane assembly companies such as Northrop.   Ralee first hired appellant Richard Green (Green) as a quality control inspector at Ralee in 1968.   By the early 1990's, he was in his mid-fifties and working the night shift as part of a four-member team inspecting all parts before they were shipped to Boeing, Northrop, and others in the aviation industry.

Starting in 1990, Green noticed Ralee was beginning to ship parts even though they failed the inspections his team was performing.   On a number of occasions over the next two years, he objected about this practice to supervisory and management personnel, including repeated protests to the general manager and even the company president.   He also began using colored markers to highlight the deficiencies he had found during these inspections.   Green further objected to the use of pencils rather than pens to complete inspection reports on parts shipped to Northrop, a military aircraft manufacturer, a practice inconsistent with Northrop's contractual requirements.

Evidently Ralee eventually corrected its practice of using pencil rather than pen, at least on inspection documents for parts shipped to Northrop.   According to Ralee's president the firm did so after a complaint from a Northrop official.   Nonetheless, despite Green's many complaints, it continued the practice of shipping parts to Boeing which had failed inspection.   Finally, in order to protect himself and other members of the inspection team from charges they personally approved those defective parts, he began photocopying the inspection reports.

In March 1991, Ralee shut down its night shift, citing a downturn in orders for the parts it produced.   Using this as an excuse, Ralee discharged Green despite his 23 years of experience as an inspector at the firm.   At the same time, Ralee retained several other employees from the night shift including other inspectors on that shift, some with only three or four years on the job.   Green claims the real reason for his termination was retaliation for his on-going complaints about Ralee's shipping of defective parts, especially those destined for inclusion in airliners assembled by Boeing.

While working at his next job, Green saw a Boeing representative and mentioned Ralee's practice of shipping parts which had not passed inspection and related irregularities.   Boeing officials asked him to meet with them.   He showed them the photocopies of those deficient inspection reports.   A short time later, in February 1992, Boeing officials paid an unannounced visit to Ralee and audited its inspection operation.   Boeing confirmed Green's charges, documenting numerous violations of record-making and record-keeping requirements including alterations to conceal discovered defects and improper disposition of discrepant parts.   On that basis, Boeing canceled it contract with Ralee and removed the company from its list of approved suppliers.   Over two years later, in July 1994, at the time of the deposition of Ralee's CEO, Boeing still refused to deal with Ralee.

On February 24, 1994, Green filed a wrongful termination cause of action against Ralee.   He alleged Ralee discharged him in retaliation for his constant and loud complaints about their practice of shipping defective parts to aircraft assembly companies.   He further claimed the conduct for which he was fired, in turn, served the public policy in favor of aviation safety and thus entitled Green to damages even as an “at will” employee.

On October 25, 1994, Ralee filed a summary judgment motion.   It based this motion on two alternate grounds:  (1) It was entitled to discharge Green, even assuming it did so because he objected to its shipping of defective parts which failed inspections, because the practice about which he complained did not violate a public policy embodied in statutory or constitutional provisions, or (2) it was entitled to discharge him for an independent after-acquired reason, Green's earlier unauthorized photocopying of inspection reports about which Ralee did not learn until discovery but which would have led to this employee's immediate and justifiable dismissal.2

In December 1994, the trial court heard the summary judgment motion.   During the hearing, the court expressed its view Green was merely an at will employee who continually griped about how his employer was carrying on its business.   As such, the employer had a clear right to fire him.   It ordered Ralee to prepare an order granting summary judgment which respondent did.   The trial court signed the judgment and it was entered January 10, 1995.

Green filed a timely notice of appeal.

DISCUSSION

I. STANDARD OF REVIEW OF SUMMARY JUDGMENT.

A motion for summary judgment is appropriately granted when all the papers submitted show there is “no triable issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.”  (Code Civ.Proc., § 437c, subd. (c).)  A defendant may meet his burden of showing a cause of action has no merit by showing one or more elements of the cause of action cannot be established or, in the alternative, by establishing a complete defense to the action.  (Code Civ.Proc., § 437c, subd. (o)(2).)

“Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court.  (Code Civ.Proc., § 437c;  LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224;  Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 432, 186 Cal.Rptr. 357.)   First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.  (Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 148-149, 60 Cal.Rptr. 377, 429 P.2d 889;  Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 50, 46 Cal.Rptr. 552;  Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384.)

“Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.  (Gardenswartz v. Equitable etc. Soc. (1937) 23 Cal.App.2d Supp. 745, 751, 753-754, 68 P.2d 322;  Kimber v. Jones (1954) 122 Cal.App.2d 914, 919, 265 P.2d 922;  Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97, 443 P.2d 561, and cases cited.) ․

“When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue․”  (AARTS Productions, Inc. v. Crocker Nat. Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

An appellate court also conducts “an independent review of the trial court's determination of questions of law.   We are not bound by the trial court's stated reasons, if any, supporting its ruling;  we review the ruling, not its rationale.  (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.)”  (Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)

Where, as in this case, there is no dispute over the facts regarding the sole basis for the employer's motion for summary judgment-whether the employee could state a cause of action for wrongful termination in violation of public policy-the only dispute is over the legal effect and significance of the undisputed facts, which is a pure question of law subject to this court's independent review.  (Schrader v. Scott (1992) 8 Cal.App.4th 1679, 1684, 11 Cal.Rptr.2d 433 [statute of limitations defense presented pure question of law subject to appellate court's independent review];  Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513, 285 Cal.Rptr. 385 [review of a trial court's determination involves pure matters of law, requiring a reassessment of the legal significance of the documents].)

II. THE RELATIONSHIP BETWEEN THE PUBLIC POLICY FAVORING AIRLINE SAFETY AND WRONGFUL TERMINATION ACTIONS BY AIRCRAFT PRODUCTION EMPLOYEES ALLEGEDLY DISCHARGED FOR SERVING THAT INTEREST AT THE EXPENSE OF THEIR EMPLOYERS.

In the hierarchy of public policies, safety from physical harm and death ranks at or near the top.   And, in the hierarchy of public safety concerns, safe air travel ranks at or near the top, in large measure because of the vulnerability of air travelers and the almost certain death that awaits them if there is a crash.   Furthermore, air travel is only as safe as the planes carrying those passengers.   Thus, it should come as no surprise the public has demanded government step in to ensure the proper design and manufacture of passenger aircraft.

The federal government's powerful role in support of aviation safety goes back at least six decades.   By some reports it dates to a stormy night 62 years ago when a twin-engine airliner, carrying a United States senator among its passengers, crashed while attempting to land at Kansas City's poorly lit commercial airport. This crash supplied the impetus for creation of the Civil Aeronautics Board (CAB) and eventually the Federal Aviation Administration (FAA).3

Since the 1930's the government has assumed an ever increasing role in ensuring the safety of the nation's airline passengers.   In recent decades, Congress and the FAA have recognized the critical importance of aircraft design and manufacture, not just the maintenance and operation of those planes.   Consequently, the manufacture of aircraft, unlike the manufacture of most products, is the subject of extensive government regulation from the design stage through production and beyond.   Among other things, the FAA has issued regulations requiring those involved in the manufacturing process of aircraft to conduct inspections of aircraft components and certify they comply with the designer's specifications.  (See Opn. at pp. 359-360, infra.)   All of these provisions, of course, assume aircraft assembly companies and component manufacturers conduct honest inspections and issue honest reports.   Otherwise the requirements would be irrelevant.

 Meantime, on a different front, state Legislatures and the courts have been developing the legal concept of “wrongful termination,” providing compensation to discharged employees in certain situations.   For the most part, this remedy is limited to employees who can point to the existence of a contract, express or implied, guaranteeing they can only be fired for “cause.”   But an important exception has evolved.   Even “at will” employees are entitled to damages if their employer discharges them in retaliation for performing acts which advance important public policies.  (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330.)   In most of these cases, the fired employees were criticizing, refusing to follow, or reporting their employers anti-social conduct.   Once again, the rationale is clear.   If employers can fire workers who take a stand in support of important public policies, those employees will be discouraged from doing so.   Fearful of losing their jobs, they will shrink from seeking to end their employer's anti-social conduct.   Not just the employees but society as a whole will suffer.

In recent years, the California Supreme Court has simultaneously reaffirmed and imposed limitations on this “public policy” exception to the usual rule denying compensation for discharged “at will” employees.   Prior to 1992, the courts were free to determine whether the cause of an employee's dismissal implicated something truly in the public interest, and not merely someone's private interest.   But in that year, our high court narrowed the exception to apply only when the public interest the fired employee sought to protect is “based in” or “tethered to” statutory or constitutional provisions.  (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680.)

 This case lies at the intersection of the supreme public interest in the production of safe passenger aircraft and the Supreme Court's recent narrowing of the public policy protection for “at will” employees.   Here we have a triable issue whether an aircraft inspector was fired for constantly complaining his employer, a supplier of vital parts to the nation's largest passenger aircraft assembly company, as well as to military aircraft manufacturers, was shipping parts that failed inspections and altering inspection reports disclosing those discrepancies.   Under existing precedent the inspector's conduct in complaining to his employer about its practices is sufficient to support a wrongful termination claim.  (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123-1124, 279 Cal.Rptr. 453 [to provide protection from wrongful termination only for employees who report problems to public agencies and not their own employers “would leave the employee with only one truly safe course:  do nothing at all”];  Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 298, 188 Cal.Rptr. 159.)

That this employer's practices threatened the public interest in safe airliners finds powerful support in the undisputed fact the aircraft assembly company, the Boeing Corporation, immediately canceled its contract with this parts manufacturer when its own investigation confirmed the employee's charges.   Over two years later, at the time Ralee's CEO was deposed, Boeing still was refusing to do business with the firm.

The only remaining issue is whether under controlling authority the offending aircraft parts manufacturer is insulated from liability for its retaliatory firing of this inspector-despite his clear contribution to this vital public interest-because no “statute or constitutional provision” specifically prohibits airline parts manufacturers from supplying defective parts or falsifying inspection reports.   Ralee argues for this narrow reading of certain language in recent Supreme Court opinions and accordingly asks us to affirm the summary judgment against this aircraft inspector.   We differ for two independent reasons.4

First, as described below there exist administrative regulations the FAA has promulgated to implement statutory laws which do specifically prohibit the conduct the employee was complaining about.   In our view, those administrative regulations represent a sufficient embodiment of the public interest to satisfy the Supreme Court's concerns.

 Second, even if those administrative regulations are not an adequate substitute for legislative acts, the public interest in airline safety is so profound and the statutory expressions of that concern so clear, no aircraft parts manufacturer could possibly believe it was free to do what this one is alleged to have done, or expect to discharge without liability an employee for objecting to these ongoing practices so dangerous to the public safety.

III. THE PUBLIC INTEREST IN THE PROPER MANUFACTURE AND INSPECTION OF AIRCRAFT COMPONENTS IS SO IMPORTANT AND SO EVIDENT IN FEDERAL STATUTORY AND REGULATORY LAW THAT IT SATISFIES THE PUBLIC INTEREST EXCEPTION PROTECTING AT WILL EMPLOYEES FROM RETALIATORY DISCHARGE.

 We begin with the question of the required nexus between an asserted “public policy” and “statutory or constitutional provisions.”   Ralee urges an interpretation of recent California Supreme Court authority which would require the very conduct in which the employer is engaging to violate a specific statute or constitutional provision.   Thus, in the context of this case, the only way Green could avoid summary judgment would be to identify a specific statutory provision which in so many words prohibited aircraft component manufacturers from supplying defective parts or ignoring failed inspections.   In our view, this is not a proper reading of those Supreme Court opinions which not only stated the rule but provided a rationale-neither of which support this restrictive interpretation.

In Foley v. Interactive Data Corp.(1988) 47 Cal.3d 654, 669-670, 254 Cal.Rptr. 211, 765 P.2d 373, the Supreme Court underscored the term “public” in the public policy exception by emphasizing the employee's actions must be in furtherance of policies which affect the public at large and not the personal or propriety interests of either the employer or employee.   Furthermore, our high court held the policy must be “fundamental,” “substantial,” and “well established” by the time the employee was fired.

The public policy in favor of proper manufacture and inspection of components destined for use in passenger aircraft easily passes all of these Foley tests.   It is not merely the personal or proprietary interests of the component manufacturer or the aircraft assembly company which are at stake.   Rather it is the lives of the scores of millions of passengers who fly in those aircraft every year.   Indeed it is difficult to imagine a policy which so directly affects the public at large or which has been so fundamental, substantial and well-established for the past several decades.

It was in Gantt v. Sentry Ins., supra, 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680 the California Supreme Court added a further requirement, that the policy have a “basis” in statutory or constitutional law rather than merely judge-made law.

The Supreme Court set forth the rule and its rationale in the following passage.  “These wise caveats against judicial policymaking are unnecessary if one recognizes that courts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions.   A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public.   The public 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 the 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.”  (Gantt, supra, 1 Cal.4th at p. 1095, 4 Cal.Rptr.2d 874, 824 P.2d 680, original emphasis deleted, italics added.)

Once again the public policy in favor of proper manufacture and inspection of components destined for use in airline aircraft passes the Gantt tests just as it did the Foley tests.   This policy has a “basis in ․ statutory provisions” and is “tethered to fundamental policies that are delineated in ․ statutory provisions.”   Those statutory provisions are the federal laws creating the FAA and charging it with the responsibility of supervising the safety of aircraft and aircraft traffic in the United States.   They state a “fundamental” goal and responsibility of the federal government to, among other things, secure the safe manufacture of aircraft.   Whether specifically mentioned in the language of these statutes, the public policy that aircraft component manufacturers are to produce products which satisfy their designers specifications and to conduct honest inspections insuring same is a policy clearly with a “basis in” and “tethered to fundamental policies that are delineated in” these federal statutory provisions.

Congress delineated the fundamental government concern with the safety of commercial aircraft, including their manufacture, in 49 United States Code section 44701:  “The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing-[¶] ․ minimum standards required in the interest of safety for ․ the design, material, construction, quality of work, and performance of aircraft, ․”  In other provisions, Congress authorized the FAA to closely supervise the design and production of aircraft.   Among other things, these code sections establish a system of “certificates” manufacturers must obtain from the FAA in order to produce aircraft or components of aircraft.   One of these is a “type certificate” which is issued only “when the Administrator finds that the aircraft, aircraft engine, propeller, or appliance is properly designed and manufactured, performs properly, and meets [other regulations and standards prescribed elsewhere].”  (49 U.S.C., § 44704, subd. (a).)  Once a type certificate has been issued the FAA may issue a “production certificate” for the production of duplicates of the approved aircraft or component upon finding the proposed duplicates conform to the original certificate.   The code specifically authorizes the FAA to “include in a production certificate terms required in the interest of safety.”  (49 U.S.C. § 44704, subd. (b).)

The FAA, in turn, has used the broad grant of authority from Congress to establish an intricate regulatory scheme to ensure the design of aircraft meets safety standards, and further in their manufacture these aircraft conform to the approved design.   Illustrative are regulations requiring prime manufacturers (such as Boeing) to establish “quality control” inspection systems for components they produce and also ensure their sub-contractors do the same.  “(a) Each [prime manufacturer] must submit, for approval, data describing the inspection and test procedures necessary to ensure that each article produced conforms to the type design and is in a condition for safe operation, including as applicable [¶] ․ (2) A description of inspection procedures for ․ parts and assemblies produced by manufacturers' suppliers [such as Ralee] including methods used to ensure acceptable quality of parts and assemblies that cannot be completely inspected for conformity and quality when delivered to the prime manufacturer's plant;  [¶] [¶] [¶] (b) Each prime manufacturer shall make available to the Administrator information regarding all delegation of authority to suppliers [such as Ralee] to make major inspections of parts or assemblies for which the prime manufacturer is responsible.”  (14 C.F.R., § 21.143, (1980), italics added.)

Accordingly, it is more than apparent the inspections Green and his colleagues were conducting on the parts intended for use in Boeing airliners were ones required by the FAA pursuant to congressional authorization and in furtherance of the announced public policy of ensuring safety in the air.   Those inspections were required “to ensure that each article produced conforms to the type design and is in a condition for safe operation.”  (14 C.F.R., § 21.143, subd. (a) (1980).)   The fact they were performed by Ralee as a “manufacturer's supplier” rather than by Boeing as a “prime” manufacturer does not mean they were any less important to the public policy favoring safe manufacture of passenger aircraft.   Nor does it mean the honest performance of those inspections was not “tethered to” the statutes establishing that policy and authorizing the FAA to promulgate regulations furthering that policy.   No reasonable component manufacturer could read those regulations and believe it was free to supply parts which failed inspection or could perform inspections that failed to meet the standards established by “prime manufacturers,” e.g., aircraft assembly companies such as Boeing.5

In an analogous context, the Hawaii Supreme Court applied a test similar to Gantt when considering whether a discharged airline maintenance worker had a viable retaliatory discharge action against his employer when fired for reporting discrepancies in the firm's maintenance activities.  (Norris v. Hawaiian Airlines (1992) 74 Haw. 235, 842 P.2d 634 affd. on other issue in Hawaiian Airlines, Inc. v. Norris (1994) 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203.)   The court upheld the wrongful discharge claim despite the fact the subsequent FAA investigation failed to confirm the employee's complaint.   The employee was protected from retaliatory discharge because, “there is no question that the relevant public policy of the Federal Aviation Act and the FAR is to protect the public from shoddy repair and maintenance practices in the aviation industry which may endanger the flying public.”   (842 P.2d at p. 646.)   It is equally apparent the “relevant public policy of the Federal Aviation Act and the FAR is to protect the public from” shoddy manufacturing and inspection practices in the aircraft manufacturing industry which just as easily “may endanger the flying public.”

Turning to the rationale for requiring a statutory basis for the public policy exception-“strik[ing] the proper balance among the interests of employers, employees and the public”-can it possibly be said “the proper balance” would be struck by allowing the manufacturers of aircraft components to fire their inspectors with impunity when those employees complain the firm is shipping parts that failed inspection and is altering inspection reports that otherwise would reveal those discrepancies?   Can it truly be said such a manufacturer would not know it was violating the “fundamental public policies of the state and nation as expressed in their constitutions and statutes” if it shipped deficient components to an aircraft assembly company it knew was going to incorporate those parts in airliners destined to carry millions of passengers over the next few years?   And, could it be fairly said “employees are protected against employer actions that contravene fundamental state policy” if an aircraft component manufacturer were permitted to fire one of its inspectors for complaining about the shipping of parts which failed these inspections?

And what of society's interest-the millions of airline passengers, counting on the sound manufacture of the planes carrying them 650 miles an hour at 35,000 feet in the air?   How many of them would choose a “more stable job market” if that meant the employees who inspected the parts from which those planes are assembled could be fired without recourse for complaining about faulty inspections or defective parts?   And how many of those passengers would agree this balance ensures society's “most important policies are safeguarded?”

In our view, neither the rationale nor the language of the California Supreme Court opinion in Gantt requires the state or federal legislature to have enacted some statute prohibiting the precise conduct the employer is alleged to have offended.6  Rather, by its terms and its rationale, this opinion only requires the Legislature to have passed statutory provisions evidencing it, and not merely the judiciary, considers there is a strong public policy which the employer's actions threaten to impair.   That is, in the language of Gantt, the employer's actions must offend against a public policy “based in” or “tethered to” statutory (or constitutional) law.   But to do so, the employer's conduct need not be actionable under a specific narrowly drawn law.

Nor need the employer's conduct violate a specific statutory provision in order to satisfy the Gantt rationale-the rationale premised on a balance which (1) gives the employer proper warning it is violating “fundamental public policies;” the Legislature considers important, (2) ensures employees they are “protected against employer actions that contravene fundamental state policy;” and, (3) guarantees the public the interests of employers will not be protected at the expense of society's “most important policies.”   All of those purposes can be served by a requirement the Legislature has enacted legislation demonstrating it considers the policy at issue to be important to the public interest and without requiring it have defined the employer's precise conduct as against the public interest.

Ralee points to a later California Supreme Court opinion, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022 as supporting its position the employer's conduct must violate a specific statute, not merely defeat a fundamental public policy embodied in statutory law.   That case, however, is clearly distinguishable.   There the employee alleged he had been fired for complaining about a beer company's violations of its own internal practices and a collective bargaining agreement.   This, of course, meant the Turner employee failed to satisfy even the Foley requirement the employer's offending conduct affect the public at large and not merely private interests.   The Supreme Court then highlighted the employee's vague references to statutory violations “puts [the employer] and the court in the position of having to guess at the nature of the public policies involved, if any.”  (7 Cal.4th at p. 1257, 32 Cal.Rptr.2d 223, 876 P.2d 1022.)   That an employer or a court would have to “guess at the public policies involved” in the firing of a beer maker's employee does not mean an airline component manufacturer or this court has to “guess at the public policies involved” in the firing of an inspector for complaining about defective aircraft parts and dishonest inspections of those parts.   No one, least of all the millions who fly this country's airliners each day, would have to guess they have an interest, a very public interest, in whether those who inspect the components on which the lives of all airline passengers depend enjoy protection from firing should they find problems with those parts.

To rule otherwise would send a dangerous message to at will employees charged with ensuring the safety of our citizens-you call attention to your employer's unsafe practices and products at your peril.   Unless some provision specifically prohibits the conduct you are reporting, you can-and probably will-be fired.   And when that happens, you will be without recourse.   Not only is that message a sad one to send employees in these positions, it is a dangerous one for society at large.   If such employees remain quiet today because of fear of losing their jobs, then tomorrow or next month or next year other people will die or suffer serious injuries because of dangerous conduct those employees failed to report.

Ralee launches a further objection, however.   It argues none of these administrative regulations makes any difference.   Employers are immune from wrongful termination actions unless the employer's conduct violated the precise language a legislature has enacted in a statute or the people have placed into a constitution.   Employees who complain about transgressions against public policy only delineated in regulations rather than statutes do so at their own risk.

 We disagree with this restrictive interpretation of the sources of law which can legitimate a public policy for purposes of wrongful termination cases.   Examining the California Supreme Court opinions from which Ralee draws its argument, it is inconceivable our high court means to limit the permitted expressions of “public policy” to statutes and constitutional provisions and to completely ignore regulatory law.   By definition, administrative regulations unlike judicial decisions must be “based in” and “tethered to” statutory provisions and thus meet the tests announced in recent Supreme Court authority.  (See Opn. at pp. 357-360, ante, for discussion of these cases.)   If an administrative agency attempts to go beyond its statutory “tether,” those regulations will be invalid.   Administrative agencies and their regulations simply do not present the same problems of judicial lawmaking the Supreme Court apparently feared in its recent decisions.   Furthermore, those administrative regulations supply the same kind of written public policy guidance to employers as statutes and constitutional provisions do.   Accordingly, employees should be able to base public policy claims on administrative regulations-just as they can statutes and constitutional provisions.

We also observe the state's “whistleblower” statute specifically mentions violations of administrative regulations among the categories of employer conduct which an employee can report to public authority and expect protection from retaliatory discharge or other punishment.  (Lab.Code, § 1102.5, subd. (b).)7  This evidences a legislative finding the public policies embodied in regulations are important enough to justify encouraging employees to challenge their employer's disregard of those policies.

Furthermore, for reasons explained in Collier v. Superior Court, supra, 228 Cal.App.3d 1117, 1123-1124, 279 Cal.Rptr. 453, it is counter-productive to leave employees with the single option of reporting violations of public policy (including presumably policies expressed in regulations) to public authorities in order to gain protection from retaliation.   Only if they also can expect protection from retaliatory discharge if they choose to first lodge their complaints with their own employers will those employers have the opportunity to learn of the firm's possible misconduct and have an opportunity to correct it.   Thus, unless we include public policy expressed in administrative regulations among the public policies supporting wrongful termination actions, as to those policies we will compel employees to go directly to public agencies rather than trying to work things out with their employer first.   It would be the only way they could protect themselves from the risk of retaliatory discharge should the employer fail to appreciate the criticism and instead support the practices which harm the public interest.

It is especially important to recognize the legitimacy of public policy expressed primarily through administrative regulations when employers are charged with violating federal policy.   Far more frequently than our state Legislature, the national Congress legislates broad goals and standards and then delegates to some administrative agency the development of regulations which will implement those goals and standards.   Thus, in vast areas of federal responsibility the nation's public policy is expressed primarily through administrative regulations rather than statutory provisions.   To exclude these regulations as a permissible source of “public policy” for purposes of wrongful termination actions is to eviscerate this protection for employees working in industries affected by federal law.   This we are convinced the California Supreme Court did not intend to do when it contrasted judge-made policy with policies based on statutory or constitutional law.

The present case is a prime example of the phenomenon.   This employer operates in an area where Congress has spoken loudly but briefly.   It established an administrative agency, gave it a broad mandate to ensure the safety of air travel, and asked it to fill in the details of public policy required to achieve that goal.   Earlier in this opinion we discussed the broad congressional mandate to ensure the manufacture of safe aircraft and its express delegation of authority to the FAA to promulgate regulations furthering that mandate.  (See Opn. at pp. 360-361, ante.)   If California were to tell employers in this field they are free to fire “at will” employees who object to their violations of public policies simply because those policies are expressed primarily in FAA regulations and not statutory provisions, we would defeat Congress' statutory mandate not merely the FAA's administrative regulations.   We also would muzzle those who are in the best position to guarantee airliners and other aircraft are safely made and operated in this state.

For these reasons, we find it necessary to reverse the summary judgment the trial court entered in favor of respondent Ralee Engineering.

DISPOSITION

The summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion.   Costs on appeal are awarded to Green.

I write separately to concur in the judgment.   The focus of my separate concurring opinion is to highlight my “procedural” concerns with the shifting nature of appellant's action.  (Post, fn. 1.)   Respondent's motion was based on the claim that appellant could not raise a triable issue of material fact as to a public policy violation because appellant had not made a showing that any policy embodied in a statute had been violated.   In granting the motion, the court impliedly determined there was no showing by appellant of a relevant “public policy.”   I agree with the majority's analysis that the Federal Aviation Administration statute and the regulations promulgated thereunder sufficiently embody a public policy favoring the proper manufacture and inspection of component parts destined for use in aircraft.

I would re-emphasize, however, that the summary judgment procedure involves a legal determination of whether there is a “policy” and not the factual question of whether the policy had been violated.   Appellant alleged he was terminated for complaining about respondent's practice of shipping defective parts.8  In appellant's complaint and in his briefing in this court, he has been evasive about how the parts were defective.   Appellant must do more than merely cry “passenger safety and defective parts,” no matter how laudatory such an expressed philosophy might be.   At some point, appellant will have to state how the parts were defective and how those defects violated a statute or regulation in order to establish his claim that he was terminated in violation of public policy.   Such a claim must be based on more than his opinion the parts were defective.

FOOTNOTES

1.   The employer's summary judgment motion also asserted an alternative ground based on “after-acquired evidence.”   It alleged the company would have possessed independent and justifiable grounds to fire the employee had it known he earlier and without permission photocopied a number of inspection reports containing the discrepancies to which he had objected.   The trial court did not reach this alternative ground and the employer does not argue it provides an independent ground for affirming the summary judgment.   Perhaps this is because the case on which the employer principally relied below to support this alternative ground was reversed by the United States Supreme Court in McKennon v. Nashville Banner Pub. Co. (1995) 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852.   In that opinion, our nation's highest court ruled employers cannot justify an improper termination on the basis of evidence of the employee's alleged misbehavior it discovered only after the discharge.   The after-acquired evidence can only be used as a factor influencing the amount of damages not the legitimacy of the employee's cause of action.

2.   See footnote 1, ante, for a discussion of this second ground for the summary judgment motion and why it is not an issue in this appeal.

3.   “There had been disenchantment in some congressional quarters with the Department of Commerce's supervision of air safety.   The disenchantment stemmed from the death of the highly respected Senator Bronson M. Cutting of New Mexico in a 1935 airline crash.   Soon after Senator Cutting's death, the Senate directed its Committee on Commerce to investigate that crash and other accidents in air transportation and to appraise the efficiency and adequacy of the Department of Commerce's air safety activities.   The Committee on Commerce ․ took their duties seriously.   The committee held extensive hearings and issued several reports.   The first report, issued in 1936, dealt principally with the crash that had caused Senator Cutting's death, laying the blame for the crash squarely on the Department of Commerce.   It recommended a number of departmental changes to remedy an allegedly poor administration of air safety.   In 1937 the committee issued another report commenting at length on the ills within the Department of Commerce affecting aviation.   A bill offering a new program for air safety by placing responsibility in a separate agency that could coordinate all governmental aviation programs would have particular appeal to the sentiments fostered by the Commerce committee's reports.”  (Westwood and Bennett, A Footnote to the Legislative History of the Civil Aeronautics Act of 1938 and Afterward (1967) 42 Notre Dame Lawyer 309, 332-333.  [Westwood was primary outside counsel for the Air Transport Association from 1936-1944, and played a prominent role in the creation of the Civil Aeronautics Act of 1938 and subsequent developments in the regulation of commercial aviation].)

4.   Ralee also asserts another ground for its position-Green's alleged failure to produce the appropriate statutes or regulations embodying this public policy at the summary judgment stage.   For two reasons, we are not persuaded.First, Green in fact produced several of the relevant FAA regulations as part of his opposition to the motion for summary judgment and indeed included copies of the full text of those regulations as an appendix to that opposition.   In his opposition, he further argued those regulations, along with the statutes creating the FAA, established a sufficient connection between the public policy favoring safe manufacture of passenger aircraft and federal law to satisfy the recent Supreme Court tests.   We agree as explained in some detail at pages 359-361 of the opinion, infra.Second, it is well to remember what we are discussing here is the discovery and presentation of “law” not “fact.”   While it may be too late to introduce new facts at the appellate stage, it is not too late to introduce new law-statutory, regulatory, or decisional.   Almost daily this court, along with other courts, decide cases on the basis of cases, statutes, or regulations neither party cited to the trial court.   Quite often this means reversing a trial court on the basis of law it had no opportunity to consider.   Furthermore, both parties-as plaintiff and defendant below, appellant and respondent in this court-have an ethical duty to cite to the court at both levels any statute, regulation or judicial decision which bears on the issues before that court.   This includes the duty to call the court's attention to any such law even though it is unfavorable to that party's position.  (See, e.g., Southern Pacific Transportation Co. v. Public Utilities Commission (9th Cir.1983) 716 F.2d 1285, 1291 [court considered counsel's failure to cite contrary but controlling authority a dereliction of duty to the court];  Rules Prof. Conduct, rule 5-200(B) [counsel shall not mislead the court regarding the facts or law];  ABA Model Code Prof. Responsibility, DR7-106(B)(1) [lawyer shall disclose to the court legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel];  ABA Model Rules Prof. Conduct, rule 3.3 [lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel].)Ralee cannot complain if Green failed to cite all the relevant statutes or regulations embodying the public policy at issue in this case since Ralee had an equal duty to bring that law to the attention of the trial court, even though it would have been unfavorable to its position.   Ralee simply lacks standing to object to Green's failure to timely provide the court with law it had an equal duty to produce.   Nor can Ralee legitimately complain this court on its own discovered additional statutes and regulations embodying this policy, since it is appropriate for an appellate court to consider law not brought to the trial court's attention and to consider law neither party cited in their briefs.   Furthermore, after oral argument we sent a letter to the parties citing some of the additional FAA regulations the court's research had uncovered and inviting further opportunity to bring appropriate statutes and regulations to this court's attention and made both parties fully aware the court was conducting its own inquiry into the law governing the manufacture of aircraft and aircraft components.

5.   That the federal government considers faulty inspections and the shipping of component parts that failed inspection to be serious misconduct is evidenced by its criminal prosecution of a manufacturer of cockpits for fighter aircraft.  (United States v. Steiner Plastics Mfg. Co. (2d Cir.1956) 231 F.2d 149.)   The government proceeded under 18 United States Code section 1001, which punishes false statements in any document produced in a field within the jurisdiction of any federal agency.   The firm delivered a number of cockpits to the aircraft assembly company with false approval certificates attached, thereby implying they had passed inspection.   The court held this constituted a violation of 18 United States Code section 1001 even without proof the cockpits were in any way defective.   In that instance, the manufacture of the aircraft involved fell under the jurisdiction of the Department of Defense since they were military planes while the complaint here is primarily about component parts for commercial airliners and thus fall under the jurisdiction of the FAA.   But this makes no apparent difference because United States Code section 1001 does not limit its coverage to certain federal departments and agencies but embraces the full jurisdiction of all.

6.   Interestingly, the year after Ralee discharged Green, the FAA issued a new regulation which provides an explicit penalty, loss of certification, for any manufacturer or other person who “make[s] or causes to be made ․ [¶] [¶] [a]ny fraudulent or intentionally false entry in any record or report that is required to be kept, made, or used to show compliance with any requirement for the issuance or the exercise of the privileges of any certificate or approval ․” (14 C.F.R. 21.2, subd. (a)(2) (1992), italics added.)   We regard the addition of this regulation as further evidence of the strong public policy in favor of proper manufacture and honest inspection of aircraft and aircraft parts.   We do not conclude the absence of this provision at the time Ralee discharged Green in any way suggests Ralee was free at that time to ship component parts which had failed inspection or to alter inspection records under then existing FAA regulations and the policies they announced.

7.   Labor Code section 1102.5, subdivision (b) reads as follows:“(b) No employer shall retaliate against an employee for disclosing information to a governmental or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation.”

8.   For instance, on appeal, appellant states that he also complained about respondent's practice of keeping quality control records in pencil, instead of ink, thereby precluding later alteration of the records.   Appellant also complains on appeal about the actual alteration of some of the records.   Moreover, appellant implied his action was also based on respondent's fraud in impliedly representing to manufacturers that parts met the specifications submitted by them.   However, in the trial court, both in his pleadings and in his opposition to the summary judgment motion, appellant's only claim was that he was terminated for complaining about shipping defective parts.   On remand, I would emphasize that “ ‘[p]ossible theories that were not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.’ ”  (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962, 9 Cal.Rptr.2d 306.)

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.

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