Vincent A. GANTT, Plaintiff and Respondent, v. SENTRY INSURANCE et al., Defendants and Appellants.
Defendants Sentry Insurance, its district sales manager, Frank Singer, and its house counsel, Caroline Fribance, appeal from the judgment entered against them collectively and individually following a jury verdict of $1.34 million in favor of plaintiff Vincent Gantt. Plaintiff, a former employee of Sentry, prevailed on his tort causes of action (1) for being discharged in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330), (2) for being discharged in violation of the covenant of good faith and fair dealing (Koehrer v. Superior Court (1986) 181 Cal.App.3d 1155, 1167–1172, 226 Cal.Rptr. 820; Cleary v. American Airlines, Inc. (1980) 111 Cal.App.3d 443, 455–456, 168 Cal.Rptr. 722), (3) for intentional infliction of emotional distress, and (4) for defamation. Plaintiff sought recovery against Sentry Insurance on all four causes of action and against defendants Singer and Fribance only on the last two. Defendants maintain that each of the four causes of action under which the plaintiff proceeded either is barred as a matter of law, is fatally flawed by instructional error, or is lacking in substantial evidence to support it.
We consider the causes of action for breach of the good faith covenant and for intentional infliction of emotional distress in the unpublished portion of this opinion. There we conclude that the cause of action for tortious breach of the covenant of good faith and fair dealing must fall under the authority of Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 and Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 258 Cal.Rptr. 592, 772 P.2d 1059. We further conclude that the intentional infliction of emotional distress cause of action is barred by the exclusivity provisions of the Workers' Compensation Act as construed by the high court in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743. We reject, however, the defendants' argument that Cole preëmpts the remaining two causes of action.
We address the remaining two causes of action in the published portion of the opinion. We first conclude that the cause of action for defamation cannot stand in light of the privileged nature of defendant Fribance's defamatory statements and the lack of evidence to support any other alleged utterances. Since this eliminates the two causes of action against the individual defendants, we must reverse the judgment against defendants Singer and Fribance.
That leaves the Tameny cause of action against Sentry for tortious discharge in violation of public policy. This cause of action was predicated upon two distinct theories. The first was one of “vicarious discrimination” and was based upon the unlawful employment practice of Sentry in constructively discharging plaintiff because he opposed Sentry's acts of sexual harassment against a co-employee. The second was based upon a claim that Sentry made efforts to induce the plaintiff to give false information or to withhold information from the public agency investigating the sexual harassment charges. Sentry contends this Tameny cause of action is barred as a matter of law by plaintiff's failure to exhaust his administrative remedies under the provisions of the California Fair Employment and Housing Act. Sentry further argues that the finding of constructive discharge necessary for liability was based upon prejudicially erroneous instructions and in any event was not supported by substantial evidence. As for the rest of Sentry's arguments, we conclude that the first theory of recovery was indeed barred by plaintiff's failure to exhaust his administrative remedies, but the second was not. Since we conclude that substantial evidence supports the second theory of recovery on which the jury returned a special verdict, and because we find no other prejudicial error, we shall uphold the verdict on the cause of action for tortious discharge in violation of public policy and thus affirm the judgment against Sentry.
FACTUAL AND PROCEDURAL HISTORY OF THE CASE
Plaintiff Vincent Gantt began work as sales manager of the Sacramento office in the Pacific Division of defendant Sentry Insurance in September 1979. He was hired to build up the Sacramento office sales force. How successful plaintiff was at this task during the remainder of his relatively short tenure with Sentry is naturally the source of heated debate between the parties. However, we need not set out all the evidence under the divergent criteria by which each side would judge his performance. Because the jury specifically found the plaintiff's support for another employee's sexual harassment claim and his refusal to lie or suppress evidence with respect to that claim led Sentry to retaliate against him with actions that had no basis in legally valid business reasons, we must assume his work was satisfactory. Instead, we focus on the circumstances leading to his fall from grace and (as the jury found) coercing him into resigning from Sentry, which requires us to weave together in a straightforward chronology both the plaintiff's interaction with his superiors and the interactions of his co-employee.
The apple of discord disrupting the harmonious relationships between the plaintiff and defendants was Joyce Bruno, hired in January 1980 by Gary Desser, the manager of the Walnut Creek office, to be a liaison between trade associations and the Sacramento and Walnut Creek offices. As such, she reported to both the plaintiff and Mr. Desser, as well as to Brian Cullen, a technical supervisor at regional headquarters in Scottsdale, Arizona.
Beginning in early February 1980, Ms. Bruno experienced sexual harassment at the hands of Mr. Desser. As the harassment continued, she complained to the plaintiff in March 1980. He recommended she report it to Mr. Cullen in Scottsdale. Ultimately, the plaintiff himself contacted both Bonnie Caroline (the designated recipient at Scottsdale for sexual harassment complaints) as well as his immediate supervisor, Mr. Berg, the regional sales manager, about the problem. Plaintiff attempted to see if he could get Ms. Bruno transferred to the Sacramento office. The harassment continued through early 1981. By this time, Mr. Desser had been demoted from sales manager to sales representative for failure to meet goals. He was replaced by Robert Warren, brought in from Scottsdale. Despite this change, Dresser continued to harass Ms. Bruno. In March 1981, Mr. Warren transferred Ms. Bruno to a sales representative position. A month later, she was fired. According to the plaintiff, who had been present at the meeting at which the decision to terminate Ms. Bruno had been made, Mr. Berg directed Mr. Warren to fire her and ridiculed the plaintiff for supporting her.
Mr. Berg resigned from Sentry in May 1981. His resignation followed an investigation by Sentry of claims that he himself had engaged in sexual harassment at its Illinois and Arizona offices. Although Sentry concluded that the accusations were well-founded, Mr. Berg was allowed to resign with all references to the matter deleted from his files. He was replaced by defendant Frank Singer, who took the title “Director of Sales” and in October 1981 recruited John Tailby from another division to assume Mr. Berg's old position of directly supervising the various Pacific region sales offices. In September 1981, defendant Singer had his first significant meeting with the plaintiff regarding sales. In a follow-up memorandum, he advised the plaintiff there was a need to focus on recruitment of sales representatives and on developing success plans with them.1 Mr. Tailby started work shortly afterward. According to one of the plaintiff's witnesses, Mr. Tailby said defendant Singer told him getting rid of the plaintiff was to be one of Mr. Tailby's first tasks. In December 1981, defendant Singer sent a list of his concerns about the plaintiff to Mr. Tailby. Mr. Tailby replied in a January 1982 memorandum that he did not think it was the right time to confront the plaintiff with the concerns. By way of chronology, we note here that the plaintiff made a report to Scottsdale in January 1982 that Ms. Bruno had told him she was planning on suing the company. In this conversation with Ms. Bruno, she had asked him if he recalled Mr. Berg saying she should be fired for reporting sexual harassment; the plaintiff told Ms. Bruno, however, that he did not remember Mr. Berg ever saying that. In February 1982, Mr. Tailby spoke with the plaintiff about the areas raised by defendant Singer's memorandum. As might be expected, the plaintiff was upset by this discussion of his perceived shortcomings. Mr. Tailby informed defendant Singer about this, who replied with a memorandum detailing additional derogatory reports about the plaintiff's performance.
Switching to the Joyce Bruno strand of facts, Ms. Bruno filed a complaint with the Department of Fair Employment and Housing (DFEH) in April 1982. She alleged harassment by Mr. Desser and failure by higher management to act on her complaints. Caroline Fribance was notified when the complaint was received. Ms. Fribance was house counsel in charge of labor-related matters for Sentry. In the course of her investigations, Jack King (a Sentry attorney working out of Scottsdale) told her that Judy Kuplic—who was a training specialist in the Sentry sales department at Scottsdale and a friend of Ms. Bruno—had told him that Ms. Bruno had also complained about sexual harassment by the plaintiff.
Defendant Fribance recognized the two issues in the complaint were whether Ms. Bruno had been sexually harassed and whether the company had failed to respond to Ms. Bruno's complaints, a separate offense. In May and June of 1982, defendant Fribance went to the Walnut Creek office to interview employees (including the plaintiff) who might have information about the Bruno complaint.
At some point before Ms. Fribance arrived, the plaintiff received a phone call from Paul Gustke, the Sentry vice-president in charge of his division, warning him that sexual harassment was not the policy of Sentry and anyone guilty of it would be disciplined accordingly. This greatly upset the plaintiff, because he felt he was being considered guilty. He raised this fear at the start of his interview with Ms. Fribance. She assured him no conclusions had been drawn; she was there to investigate the allegations. If true, he would be subject to discipline; if she believed they were false, the company would stand behind him. She then went through the allegations of Ms. Bruno's complaint, obtaining information. He told her he had passed on Ms. Bruno's complaints to him to personnel at Scottsdale. The plaintiff also explained to Ms. Fribance his version of the alleged Bruno accusations against him which had been relayed via Ms. Kuplic. He testified at trial he felt he was being pressured by Ms. Fribance to retract his statement that he had informed Scottsdale of the complaints. At the conclusion of the interview, defendant Fribance told the plaintiff she believed him and would relay her opinion to Mr. Gustke.
Following the interviews, Ms. Fribance prepared written summaries and sent them to the interviewees for their signatures. As she explained to the interviewees, the purpose of the statement was to preserve their recollections in the event of litigation. In her cover letter to the plaintiff, she also noted she had spoken with Mr. Gustke, who had said the plaintiff should not be worried. The plaintiff felt the written summary reflected words she had put in his mouth. Nevertheless, he mailed her back a signed copy. Defendant Fribance sent a position statement to the DFEH in June 1982 stating the Bruno allegations had no merit.
Following the meeting with defendant Fribance, the plaintiff told Mr. Tailby all he had told defendant Fribance. Mr. Tailby told him this looked as if the plaintiff were coming out against the company. Mr. Tailby also cautioned him that defendant Singer and others did not care for the plaintiff, so he should watch what he said to management personnel. Shortly afterward, the plaintiff received his first quarter evaluation. After discussing a number of areas needing improvement, the memorandum recording this meeting concluded by telling the plaintiff he had been working very hard and making progress, with both his sales representatives and the people who worked with him speaking positively about him. The Tailby memorandum also cautioned him, “it sometimes appears that you are involved in some kind of ‘intrigue’ and ‘undercover’ operation. I know you don[']t see it that way but others do—Try to avoid things that would appear that way.” (Mr. Tailby denied at trial this remark had any connection with the Bruno investigation; instead, it simply referred to certain behavior patterns of the plaintiff.) The tag line of the memorandum told the plaintiff he had experienced an overall good first quarter and advised him to relax and enjoy his work. Mr. Tailby, in fact, believed the first quarter had been the plaintiff's best.
In September 1982, the plaintiff received his seven-month appraisal from Mr. Tailby. Although an attempt was made to be positive in the evaluation, Mr. Tailby was concerned about a drop-off in sales. The end of the memorandum noted the Sacramento office was second in sales of life insurance but had slipped to seventh (out of the eight offices) in the division in totalsales. Plaintiff was reminded “we are all judged by bottom line results,” and the memo concluded by saying, “You are better than that—Now prove it!”
In October 1982, Ms. Bruno called the plaintiff and asked him to have dinner with her. The plaintiff in turn called defendant Fribance to ask what he should do. Ms. Fribance said it would be permissible to have dinner with Ms. Bruno, so long as he simply listened to Ms. Bruno and kept his mouth shut otherwise. Ms. Fribance also told the plaintiff he was the only member of management backing up Ms. Bruno's allegation that she had reported her claims of harassment.
On December 9, 1982, the plaintiff received an evaluation of his work performance for the full year. Although Mr. Tailby found the plaintiff's total sales unacceptable, he recognized there were mitigating circumstances. Believing the plaintiff redeemable, and despite continual efforts by defendant Singer to get him to replace the plaintiff, Mr. Tailby gave the plaintiff an “acceptable” overall rating. This rating was changed on December 20 to “borderline acceptable/unacceptable” by defendant Singer when he reviewed the evaluation. The plaintiff was not directly informed of the change.
On December 22, 1982, Ms. Fribance received her first response from the DFEH. A DFEH investigator, John Thompson, requested access to personnel files and on-site interviews with certain employees, including the plaintiff. Ms. Fribance arranged a day for Mr. Thompson to meet with the employees and scheduled the day before for preparatory meetings with the employees involved. The plaintiff called Ms. Fribance once in December 1982 to discuss his concerns, but she said she would speak with him at length in January.
Growing nervous about providing information to Mr. Thompson which Ms. Fribance had given the impression she did not want revealed, the plaintiff went to speak secretly with Mr. Thompson several days before the scheduled interview date. Mr. Thompson assured him he would be protected under the law from any retaliation for his statements. They then discussed the facts of which the plaintiff was aware and how to handle the interview when Ms. Fribance would be present.
The day before the scheduled DFEH interview, the plaintiff had his preparatory interview with defendant Fribance. She repeatedly reminded him he was the only management employee supporting Ms. Bruno's claim that she had notified upper management about the harassment. The plaintiff could tell she was clearly unhappy with him. She stressed that he was not to volunteer any information, and was to answer questions with a simple yes or no whenever possible. Although she never specifically asked him to lie, he felt her intent in repeating her instructions to him over and over was to get him to deny he had reported the complaints to upper management. She also told him another employee found guilty of sexual harassment had been kept on with the company because he was a loyal employee; he felt this was also veiled pressure to change his story. During this interview, he discovered the change in his December 1982 evaluation for the first time when he glanced at his personnel folder (which Ms. Fribance had brought along). This made him feel the company was retaliating against him.
The DFEH interviews took place the next day. The plaintiff was the last of them, and the interview was quite brief because Mr. Thompson did not feel he needed much additional information from him. Out of respect for the plaintiff's fears of retaliation, Mr. Thompson did not reveal he had previously spoken with the plaintiff. Defendant Fribance had no immediate reaction while the plaintiff was being interviewed. However, Mr. Thompson said that once he was alone with her after the plaintiff had left the room, she then began asking why the plaintiff had not been charged with sexual harassment of Ms. Bruno, either saying he was guilty of it or saying Ms. Bruno had accused him of it to others. She said the plaintiff was giving information in Ms. Bruno's favor because he wanted to get the harassment monkey off his own back. Mr. Thompson was astonished, because in his 10 years as an investigator he had never encountered a company lawyer asking that charges be brought against one of her own employees.2
After the interview, the plaintiff met with Mr. Thompson over dinner to talk about both his fear of retaliation and the change in his evaluation as evidence of the company's attitude toward him. He gave Mr. Thompson a sworn statement recounting almost verbatim his earlier private meeting with him. Mr. Thompson informed him of defendant Fribance's accusations and suggested the plaintiff file a complaint on his own behalf with the DFEH; the defendant, however, did not do so.
Mr. Thompson telephoned defendant Fribance several times after the interviews, requesting she submit a closing position statement. She finally sent him one on March 3, 1983. Attached to the position statement was a version of the written statement she had given to the plaintiff to sign in July 1982. She had performed a “cut-and-paste” job on it, deleting certain paragraphs and then photocopying the pieces so that they appeared to be part of one document. She could not remember at trial why she had deleted the particular portions, other than to say she did not think they were pertinent and she did not think deleting them would alter the meaning. Ultimately, the substance of these deletions is of no import, so we shall not recount the two versions of the statement. The plaintiff was sent a letter on March 11 informing him of these alterations after the fact. The letter also included the information, received by Ms. Fribance after she had dispatched the position statement, that Ms. Bruno had withdrawn her complaint in order to pursue court action. The plaintiff testified he never saw this letter.
Also on March 3, 1983, the plaintiff attended an awards ceremony in Scottsdale to accept a life insurance sales award on behalf of his office. The next morning, a Friday, defendant Singer and Mr. Tailby informed him he was being demoted to sales representative. They offered him the following terms of employment: he was to retain his sales manager's salary for six months, after which it would decline in staggered increments (which was similar to the arrangement for the highest paid of his sales representatives); he was given $2,000 in compensation for the loss (as of April 1) of a perquisite, a company car; and as a salesman, he would be entitled to earn commissions on new business in addition to his salary. Since he was not licensed to sell insurance in California, he was given time off to study for the licensing examination. He told a co-employee at the time that he felt he was treated fairly and was relieved not to have been fired. Nevertheless, he testified at trial that he privately felt the company had not been ethical with him and he feared imminent termination.
On March 7, the following Monday, the plaintiff met with his new manager (and former subordinate) Neil Whitman, who had been offered the position in late January/early February. Mr. Whitman told the plaintiff he had a free hand in dealing with him; he did not think the plaintiff was going to undermine him (otherwise the plaintiff would not have been retained), but if the plaintiff did act to undermine him, he would be fired. Mr. Whitman also told the plaintiff he was not going to be given a “book” of existing accounts with which to start. Although he acknowledged at trial that servicing existing accounts takes time away from sales and no commission is earned on renewals of existing accounts, the plaintiff testified one needed some existing accounts in order to survive.3
After March 7, the plaintiff was in the office only intermittently to pick up his mail and speak with people. He called Mr. Thompson to report hisdemotion, who again told him to file a complaint with the DFEH. The plaintiff still did not do so. As of mid-March, he took vacation time, and then took sick leave in April in order to have nasal surgery performed. In mid-April he passed his licensing examination. He had contacted another insurance company during the week of March 7 about a job; he was offered a position in mid-April, which he accepted, and began a training program on May 2. Two weeks later, Mr. Whitman discovered he had a new job and removed him from Sentry's payroll. He had been receiving salary from Sentry up until then. Plaintiff filed this lawsuit in July 1983, some two months after leaving Sentry, alleging that “as a result of the pressure applied by the defendants ․ [he] was forced to resign.”
We turn now to the cause of action for defamation. Plaintiff conceded below this cause of action “is not the major cause of action. That's thrown in there because as a technicality, that did occur. As to Tailby and Singer, I guess it depends upon whether or not they really did say something like that. It was included mainly because of [Vince Gantt's] outrage.” Despite this caveat, we presume plaintiff would prefer we uphold the verdict on it if we could. However, that is not possible.
The cause of action for defamation was based on three sets of statements on which the jury was instructed. These are (1) defendant Fribance's remarks to the DFEH investigator that the plaintiff either had harassed Ms. Bruno or that Ms. Bruno had accused the plaintiff of harassment; (2) defendant Singer's alleged remarks the plaintiff was not performing his job capably and was incapable of doing so; and (3) Mr. Tailby's alleged remarks to the same effect.
We begin with Ms. Fribance's conduct. The defendants argue it was error for the trial court to deny their motion for nonsuit, in which they had asserted the remarks were absolutely privileged under Civil Code section 47, subdivision 2. The trial court, feeling itself bound by our decision in Earp v. Nobmann (1981) 122 Cal.App.3d 270, 175 Cal.Rptr. 767, denied the motion. Later, in instructing the jury on absolute privilege, the trial court modified the defendants' instruction to reflect what it believed to be the holding in Earp. Thus, the court instructed the jury that it must find Ms. Fribance's remarks to Mr. Thompson during the course of the DFEH investigation “to be absolutely privileged and not defamatory—even if Ms. Fribance was motivated by malice—so long as Ms. Fribance's remarks were made in the furtherance of that proceeding and to promote the interests of justice.” (Emphasis added.) The defendants renew their arguments here, maintaining it was error to deny the nonsuit and to instruct on absolute privilege in this language. We agree for two reasons.
First, the question of privilege was an issue of law to be determined by the court and not the jury. Where, as here, the facts and circumstances under which the words were spoken were undisputed, “the question whether they were privileged was a question of law for the court to determine.” (Carpenter v. Ashley (1906) 148 Cal. 422, 423, 83 P. 444; accord Loomis v. Superior Court (1987) 195 Cal.App.3d 1026, 1029–1030, 241 Cal.Rptr. 236; Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678, 204 Cal.Rptr. 1.) The trial court had determined, and so instructed the jury, that the statements of Ms. Fribance to Mr. Thompson that plaintiff sexually harassed Joyce Bruno and that Joyce Bruno accused plaintiff of being a sexual harasser were “libelous and slanderous if untrue, and unprivileged.” Thus, there was no dispute about whether the statements were made or the circumstances of their utterance. The only remaining issues were whether they were false and whether they were privileged. Because their falsity would not defeat the privilege, the question of privilege should have been resolved by the court.
Second, in the circumstances of this case the instruction was erroneous in any event. Civil Code section 47, subdivision 2 provides in pertinent part: “A privileged publication or broadcast is one made—․ [¶] 2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by mandamus]; ․” This statute defines publications to which an absolute privilege attaches such that there is no liability for tort actions premised upon a publication made in one of the enumerated proceedings, even if the publication is made with actual malice toward the plaintiff, except for a cause of action for malicious prosecution. (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 182 Cal.Rptr. 438; 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 498–499, p. 585.)
In the context of judicial proceedings, we have said that the purpose of this privilege is to accord litigants the utmost freedom of access to courts without fear of defamation actions, and to promote the unfettered administration of justice; the price to be paid for these benefits is the occasional immunity for a “malignant slanderer” taking advantage of this opportunity. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 419, 231 Cal.Rptr. 113.)
In determining whether it applies, it has been held that the “absolute privilege in judicial proceedings is afforded only if the following conditions have been met: the publication (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law.” (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718.) We shall refer to these conditions as the four traditional criteria for the invocation of the privilege.
The “connection ․ to the action” criterion need not meet technical standards. “The publication need not be pertinent, relevant or material in a technical sense to any issue if it has some connection or relation to the proceedings.” (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.) Thus, the privilege “is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits. If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 381, 295 P.2d 405.) And the “authorized participants” need not be formal parties to the proceedings. The privilege extends to witnesses and interested members of the public as well. (Pettitt, supra, 28 Cal.App.3d at p. 488, 104 Cal.Rptr. 650.)
These four criteria for application of the absolute privilege in judicial proceedings, it has been held, “attach with equal force to other official proceedings authorized by law․” (Long v. Pinto (1981) 126 Cal.App.3d 946, 950–951, 179 Cal.Rptr. 182.) An “official proceeding,” as embraced in the purview of the statute, “is that which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings, ․” (McMann v. Wadler (1961) 189 Cal.App.2d 124, 129, 11 Cal.Rptr. 37.) In determining whether a given hearing is “official,” the courts have inquired as to “(1) whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts, (2) whether it is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and, more importantly (3) whether its power affects the personal or property rights of private persons․” (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 866, 100 Cal.Rptr. 656.) In commenting upon the Ascherman decision and the absolute privilege for a communication in an official proceeding, the California Supreme Court noted that “in nearly all the pertinent cases the body conducting the hearing was a government agency.” (Hackethal v. Weissbein (1979) 24 Cal.3d 55, 59, 154 Cal.Rptr. 423, 592 P.2d 1175.) The privilege attaches not only to communications made during the hearing conducted by the governmental agency but also applies to communications to or from officials in contemplation of those proceedings. “The ‘official proceeding’ privilege has been interpreted broadly to protect communications to or from governmental officials which may precede the initiation of formal proceedings.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, 185 Cal.Rptr. 244, 649 P.2d 886, emphasis in original.) Translating the traditional criteria for absolute privilege to the context of communications in official proceedings, this means that the defamatory statements must have been made to governmental officers before the formal proceedings or during the course of the official proceeding, have some relationship to the proceedings, and have been published to achieve the object of the proceeding by a proper participant. (Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 324, 116 Cal.Rptr. 781.)
It is in the application of these criteria that a conflict has developed in the case law requiring us to engage in a précis of the pertinent cases. The dispute had its genesis in Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 106 Cal.Rptr. 718. Bradley is best understood in light of a case which preceded it, Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650. In Pettitt, the court held absolutely privileged an allegedly forged land-use permit submitted by interested citizens to a city council considering a zoning variance. The court found the proceedings before the city planning commission and city council to come within the protection of subdivision 2 of Civil Code section 47. It further found the forgery—having brought about denial of the variance request—to be logically related and aimed at achieving its object of denial, and the “interested citizen” defendants to be participants authorized by law in a zoning variance hearing. (Id. at pp. 488–489, 104 Cal.Rptr. 650.) The court also rejected any notion that the alleged criminal act of forgery somehow destroyed the otherwise applicable privilege, holding that since perjury is absolutely protected, its written equivalent must be as well. (Id. at p. 489, 104 Cal.Rptr. 650.)
It was in light of this case that Bradley was decided. In Bradley, supra, the defamation defendants allegedly induced a prisoner to make defamatory statements about the plaintiffs (who were three of the attorneys of record in a personal injury suit and one of the parties) regarding their conduct of the personal injury litigation. The defamation defendants apparently also filed documents to that effect in the personal injury action, even though they were not properly part of the record, and thenrepublished the contents of the documents to the media. The defamation defendants were neither parties nor witnesses nor attorneys of record in the personal injury action. (30 Cal.App.3d at pp. 821–822, 106 Cal.Rptr. 718.) The Bradley court refused to apply the absolute privilege. In looking at the public policy behind the absolute privilege, the court noted freedom of access to the courts and unfettered administration of justice were to be protected even though immunity might be provided to the evil-disposed and malignant slanderer. (Id. at p. 823, 106 Cal.Rptr. 718.) But the court believed the absolute privilege should not be extended to new situations unless these public policies were served. (Id. at p. 824, 106 Cal.Rptr. 718.) Looking at the allegations of the complaint, the court found the statements were made outside of court by persons not having a type of connection with the personal injury litigation which the law had ever previously protected. (Id. at p. 826, 106 Cal.Rptr. 718.) As for the republication of the documents filed in the personal injury action, the court conceded filing the documents in the action might suffice to give the publications a “connection” with the litigation. However, there was nothing to show these documents were in furtherance of the litigation. The court found instead they were filed merely for the purpose of republication to the media. The court stated it could not condone such an extension of the “achievement of the object of the proceeding” criterion for the privilege. Then followed the language causing so much difficulty. “The above consideration all the more compels the conclusion that in determining whether or not the defamatory publication should be accorded an absolute privilege, special emphasis must be laid on the requirement that it be made in furtherance of the litigation and to promote the interest of justice. Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term ‘judicial proceeding’ and the persons who should be regarded as litigants or other participants.” (Ibid., emphasis deleted.) The Bradley court found itself in accord with Pettitt, stating the “extension” of the privilege in that case was justified because it was in the interest of justice to permit an expansion of the authorized-participants criterion to include interested members of the public submitting opposition to a variance request. (Id. at p. 827, 106 Cal.Rptr. 718.) It also found itself in accord with another case upholding the absolute privilege, Smith v. Hatch (1969) 271 Cal.App.2d 39, 76 Cal.Rptr. 350, stating, “[t]he requirement that the publication must be made in the furtherance of the action in order to be absolutely privileged is one of the main distinguishing factors between the case at bench and Smith, ․” (Bradley, supra, 30 Cal.App.3d at p. 827, 106 Cal.Rptr. 718.) 9 The Bradley court concluded, “respondents' extrajudicial statements which are the sole object of the present appeal were not absolutely privileged under existing law. Nor does the public policy, which tolerates rather than hails the occasional impunity of a slanderer, mandate the invocation of privilege, either.” (Id. at p. 828, 106 Cal.Rptr. 718.)
Having dispersed the seeds of an “interest-of-justice” condition upon the landscape of absolute privilege, the Bradley decision has provoked a mixed appellate response. Thus, in O'Neil v. Cunningham (1981) 118 Cal.App.3d 466, 173 Cal.Rptr. 422, a case involving a lawyer defaming one of his clients in a settlement letter in order to benefit another (authorized participants furthering the litigation), a different division of the Bradley court rejected the appellant's contention that Bradley imposed a further requirement on the absolute privilege. “We must confess that we are uncertain as to what the Bradley court meant when it said that the defamatory publication must ‘promote the interest of justice’ to be accorded the absolute privilege. But, whatever it means, we are satisfied that it does not mean what appellant takes it to mean.” (Id. at p. 475, 173 Cal.Rptr. 422.) The O'Neil court was unable to reconcile the fact that forgery and perjury have been protected as privileged publications with any requirement of advancing the interests of justice. “[W]e cannot conceive that forgery and perjury advance ‘the interest of justice.’ ” (Id. at p. 476, 173 Cal.Rptr. 422.)
This court then considered the question in Earp v. Nobmann, supra, 122 Cal.App.3d 270, 175 Cal.Rptr. 767. The case involved the invocation of the absolute privilege in the context of communications disparaging title. There the defendant improperly filed a lis pendens which was later expunged when he refused to post the required bond. Defendant then wrote to both the potential lender and the real estate agent for a rival purchaser of the subject property in order to tell them he had an interest in the property, a communication which thwarted sale of the property to the rival. (Id. at pp. 280–281, 175 Cal.Rptr. 767.) Relying upon Albertson, supra, 46 Cal.2d 375, 295 P.2d 405, we held the lis pendens to be absolutely privileged. (Earp, supra, 122 Cal.App.3d at pp. 281–282, 175 Cal.Rptr. 767.) We next considered whether the absolute privilege should also be extended to the letter, the “nonstatutory self-help remedy he chose.” (Id. at p. 283, 175 Cal.Rptr. 767.) After quoting at length from Bradley, including the requirement that the interests of justice be promoted in order to construe liberally the criteria for the privilege, we looked to Albertson, the case originally holding a lis pendens was absolutely privileged. (Id. at p. 284, 175 Cal.Rptr. 767.) Albertson, we noted, had determined a lis pendens could be considered to be made “in” a judicial proceeding because it was required or permitted by law. (Ibid., citing Albertson 46 Cal.2d at pp. 380–381, 295 P.2d 405.) But the defendant's letter in Earp was neither required nor permitted by law; to the contrary, it was intended to frustrate the statutory scheme. Consequently, it could not be considered to be in the interest of justice to extend the absolute privilege to that communication (id. 122 Cal.App.3d at pp. 284–285, 175 Cal.Rptr. 767), i.e., by stretching the in-a-proceeding criterion. For that reason, we held the absolute privilege did not apply to the letter. (Id. at p. 285, 175 Cal.Rptr. 767.)
To quickly round out this cavalcade of privilege cases, Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 213 Cal.Rptr. 168, decided by the Bradley court, added to the division by declaring Bradley and Earp had taken a more restrictive construction of the privilege than Pettitt by engrafting a new interest of justice criterion to the traditional test; it then aligned itself with “the more narrow construction which we espoused in Bradley and which was reaffirmed in Earp․” (Id. at p. 334, 213 Cal.Rptr. 168.) Consistent with that restricted view, the court held that the bad faith of a party making misrepresentations which were made in furtherance of bankruptcy proceedings precluded application of the privilege. (Id. at pp. 332–335, 213 Cal.Rptr. 168.) In contrast, yet another division of the Bradley court decided that the California Supreme Court had approved Pettitt and thus declared its allegiance to that case rather than Barbary Coast by finding a forged will to be privileged. (Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642–643 & fn. 3, 226 Cal.Rptr. 694.) The Steiner court noted that “Barbary Coast was filed 37 days after the California Supreme Court filed its opinion in Ribas [v. Clark (1985) 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637]. Given the language of Ribas, its specific mention of Pettitt and its endorsement of the rationale that heinous conduct must be condoned lest greater mischiefs occur, we are bound under the doctrine of stare decisis to follow Ribas.” 10 (Id. at p. 642, fn. 3, 226 Cal.Rptr. 694.) Finally, McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 967–971, 234 Cal.Rptr. 702, found no basis for grafting the additional requirement of “interests of justice” onto the criteria for the privilege. In its view, “[w]hile the Bradley court attempted to effectuate the policy of free access, it ignored legislative history, limited the application of the privilege and hindered the consistent application of policy necessary to a uniform interpretation of the statute.” (Id. at p. 971, 234 Cal.Rptr. 702.) Consequently, the court “continue[d] to adhere to the views expressed in Pettitt without inquiring whether the publication promotes the interests of justice as required in Bradley ․ and Barbary Coast․” (Ibid.)
Although there are additional cases we could cite, this sampling is sufficient to demonstrate the two schools of judicial thought on the question. The critical question is whether the “interest of justice” component is a proper factor at all and, if so, whether it is a separate element or just an analytical tool to be used to determine whether the challenged publication was “made to achieve the objects” of the litigation or official proceeding in question. In our view, even if it can be said to be a proper analytic factor in appropriate cases, it cannot be reckoned as a separate fifth requirement in addition to the four traditional criteria.11 After all, Civil Code section 47, subdivision 2 confers an absolute privilege for any publication made in the specified proceedings. (Slaughter, supra, 32 Cal.3d at p. 155, 185 Cal.Rptr. 244, 649 P.2d 886; Albertson, supra, 46 Cal.2d at p. 379, 295 P.2d 405.) A defendant does not forfeit the privilege simply because of the “tortious nature and purpose” of the publication. (Ribas, supra, 38 Cal.3d at p. 364, 212 Cal.Rptr. 143.) Thus, this absolute privilege has been held to protect a wide range of tortious, malicious, and even criminal acts, including perjurious statements (Taylor v. Bidwell (1884) 65 Cal. 489, 4 P. 491), bribing a witness (Pico v. Cohn (1891) 91 Cal. 129, 25 P. 970, 27 P. 537), filing a false and malicious lis pendens (Albertson, supra, 46 Cal.2d 375, 295 P.2d 405), using evidence of illegal eavesdropping at trial (Ribas, supra, 38 Cal.3d at p. 355, 212 Cal.Rptr. 143, 696 P.2d 637), submitting a fraudulent building permit to a city planning commission (Pettitt, supra, 28 Cal.App.3d at p. 484, 104 Cal.Rptr. 650), attempting to probate a forged will (Steiner, supra, 181 Cal.App.3d at p. 639, 226 Cal.Rptr. 694), and introducing a false accounting into evidence (Carden v. Getzoff (1987) 190 Cal.App.3d 907, 235 Cal.Rptr. 698). These malific acts can hardly be said to have promoted the interests of justice.
Even if the “interest of justice” standard is an appropriate analytic tool for determining whether publications in marginal, peripheral, or novel situations fall within the absolute privilege, as we held it was in Earp and Fuhrman,12 it plays no role when the publication is directly made in the proceedings by a participant and directly relates to those proceedings and their objects. In other words, the furtherance of the interests of justice is to be considered only in deciding whether the four traditional criteria fit situations once removed from the actual “judicial proceeding” or “other official proceeding” (Civ.Code, § 47, subd. 2; see, e.g., Fuhrman, supra, 179 Cal.App.3d at p. 421, 231 Cal.Rptr. 113), while if the publication is made in the proceedings themselves or under circumstances traditionally deemed within the purview of those proceedings, then we are no longer concerned with any consideration of interest of justice. If the publication has some connection or logical relation to the proceeding and was made to achieve the objects of those proceedings by a proper participant, then the publication is absolutely privileged even if, as might be the case, it does not advance the interests of justice. In short, once it is decided the four traditional criteria are satisfied, there is no occasion to consider further whether the action on which liability was based was done in furtherance of the interests of justice. To do so would result in the creation of a conditional privilege, one which would be defeated by the bad faith or evil purpose of the publisher. As the O'Neil and McClatchy Newspapers, Inc. cases correctly noted, this transformation of the absolute privilege is unwarranted.
The trial court's ruling and its misapplication of the absolute privilege, while an understandable consequence of this muddled area of the law, were nevertheless error. The slander recounting allegations of sexual harassment against the plaintiff is well within the current boundaries of absolute privilege as being made preliminary interviews with a fact-gathering attorney working for an administrative board. (Ascherman, supra, 23 Cal.App.3d at pp. 864–865, 100 Cal.Rptr. 656.) Consequently, the “furtherance of the interests of justice” criterion had absolutely no place in defining the application of absolute privilege to defendant Fribance's ill-considered conduct. Since there were no factual disputes with regard to these actions by defendant Fribance as being made in connection with an official proceeding for the purpose of furthering the proceeding (albeit by questionable means) by a proper participant in the proceeding, the motion for nonsuit should have been granted. Improperly submitting the issue to the jury on erroneous instructions was mere icing on the reversible-error cake. Given the undisputed facts of this case, Ms. Fribance's statements were absolutely privileged and the trial court should have so ruled. Since these statements were privileged as a matter of law, the judgment cannot stand on this aspect of the defamation cause of action against defendants Fribance and Sentry, which eliminates any individual liability in the verdict for defendant Fribance.
With respect to the defamations assertedly made by defendant Singer and Mr. Tailby regarding the plaintiff's job performance, the dereliction of the plaintiff is responsible for reversal. In closing argument below, counsel for the defendants could not recall any evidence being admitted demonstrating these statements had been made, but assumed they had. Now, no doubt with the benefit of a leisurely review of the 7,000–plus–page reporter's transcript, the defendants argue there is no substantial evidence to show these statement were ever made. The plaintiff, rather than pointing us to the place in the record where evidence of publication of these statements is to be found, simply argues there was substantial evidence of malice in the making of these statements, which misses the point entirely. It is not our role in a civil case to pore through such a voluminous record to find the evidence, if it exists, to make the plaintiff's case for him. Consequently, we consider this failure on the part of the plaintiff to be a concession that there is no substantial evidence of publication of the statements regarding the plaintiff's work performance, particularly in light of his closing argument, noted above, where counsel said, “I guess it depends upon whether or not they really did say something like that.” Lacking any substantial evidence to support those claims, the defamation cause of action against defendants Singer and Sentry must fail, eliminating any individual liability for defendant Singer and all liability for Sentry on this cause of action.
WRONGFUL DISCHARGE AND EXHAUSTION OF ADMINISTRATIVE REMEDIES
This leaves plaintiff's Tameny cause of action. Defendants contend that plaintiff's wrongful discharge claim under Tameny is barred as a matter of law because he failed to proceed under the provisions of the California Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) 13 As we have noted, plaintiff's cause of action for wrongful termination under Tameny was predicated upon two distinct theories of violation of public policy. These theories were synthesized in the trial court's instruction on the point: “The fundamental public policies involved in this case are as follows: [¶] First, it is [an] unlawful employment practice for any employer to discharge any person because that person opposed acts of sexual harassment, or brought allegations of such acts to the attention of higher management or public authorities, or because the person has testified or assisted in any sexual harassment proceeding. [¶] Second, asking, requesting, pressuring, or attempting to persuade or induce an employee to testify untruthfully or to withhold testimony is contrary to the public policy of this State. An employer may not retaliate against an employee for not complying with his or her employer's pressures, requests, or persuasions, to do so.” Plaintiff in this case admittedly neither invoked nor exhausted the administrative mechanism of the FEHA before bringing this action. Consequently, the failure to exhaust his administrative remedies, if that doctrine applies here, would bar his Tameny cause of action. However, for the reasons which follow, we hold that the doctrine does not apply to plaintiff's theory of recovery based upon the employer's retaliation for his failure to give false statements to, or to withhold information from, the public agency investigating the harassment charges.
It is the general rule in California that where a new right is created by statute and a statutory remedy is provided for its infringement, the statutory remedy is exclusive. (Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 112, 180 P.2d 321; Palo Alto–Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 131, 135 Cal.Rptr. 192.) Where, however, “a right was established at common law or by statute before the new statutory remedy was created, the statutory remedy is usually regarded as merely cumulative, and the older remedy may be pursued at the plaintiff's election.” 14 (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 8, p. 39.)
Thus, in the context of a Tameny action, a number of appellate courts have held that if the statutory source of the public policy on which it is based created a new cause of action (rather than declaring a preexisting common law right) and this statutory scheme created an administrative mechanism for enforcement of this statutory action, the statutory remedy is exclusive and no independent Tameny action may be based on it; a plaintiff must first exhaust administrative remedies and then sue directly under the FEHA. Hence, “where a new right is created by statute the aggrieved partymust resort to the statutory remedy if one is provided.” (Ficalora, supra, 193 Cal.App.3d at p. 491, 238 Cal.Rptr. 360; accord Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 519–521, 194 Cal.Rptr. 520; cf. Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 182 Cal.Rptr. 291; see Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 303 & fn. 9, 188 Cal.Rptr. 159; Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311, 323, fn. 13, 171 Cal.Rptr. 917.)
As we recently recounted, “FEHA creates a Department of Fair Employment and Housing (Department) whose function is to receive, investigate and conciliate complaints of unlawful employment discrimination. A person claiming to be aggrieved by an alleged unlawful practice may file a written charge with the Department within one year from the date of the alleged unlawful practice, which must ‘state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of․’ If conciliation fails, Department may issue an accusation to be heard by the Fair Employment and Housing Commission (Commission) [¶] If the Commission finds a violation, it issues a cease and desist order and may grant other appropriate relief. If no accusation is issued by the Department, it must give the aggrieved person notice and a right-to-sue letter. The aggrieved person may bring a civil action against the ‘person, employer, labor organization or employment agency’ named in the charge within one year after receiving notice. In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890 [220 Cal.Rptr. 684]; Myers v. Mobil Oil Corp. (1985) 172 Cal.App.3d 1059, 1063 [218 Cal.Rptr. 630]; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 866 [193 Cal.Rptr. 760].)” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1120–1121, 257 Cal.Rptr. 665; statutory and parallel citations omitted.) Under this statutory scheme, after the passage of 150 days, the DFEH must either initiate an administrative complaint or issue the aggrieved party a “right-to-sue” letter. It is not until the party has received this letter that he may initiate a court action based on a violation of the FEHA in which he may recover any of the customary civil suit damages, including punitive damages. (Commodore Home Systems, Inc., supra, 32 Cal.3d at pp. 213–214, 221, 185 Cal.Rptr. 270, 649 P.2d 912.)
The plaintiff in this case did not comply with the administrative mechanism of the FEHA before bringing this action. In order to ascertain whether this bars his cause of action under Tameny, we must determine (1) whether the two public policy bases for his action are cognizable under the FEHA, and (2) whether the FEHA created a new statutory cause of action for these public policy bases or merely restated a preexisting common law cause of action.
Under the FEHA it is an unlawful employment practice for an employer, “because of the ․ sex of any person, to ․ bar or to discharge the person from employment ․, or to discriminate against the person in compensation or in terms, conditions or privileges of employment” (Gov.Code, § 12940, subd. (a)), “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part” (Gov.Code, § 12940, subd. (f)), “because of ․ sex ․ to harass an employee ․” (Gov.Code, § 12940, subd. (h)), and “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov.Code, § 12940, subd. (i).) We think it readily apparent from the above statutes that a claim of retaliation for supporting the sex discrimination complaint of a co-employee is cognizable under the FEHA. Thus, the job-related retaliation against the plaintiff for opposing the sexual harassment of Ms. Bruno constitutes a forbidden employment practice under the FEHA.
As for the second part of our analysis, we do not find any preexisting common law cause of action for redress against retaliation for support of a co-worker's discrimination suit. There has been a split developing among the courts as to the extent the FEHA created a new cause of action for employment discrimination. Some courts have stated, perhaps too broadly, that no remedy for any form of employment discrimination predated the FEHA or the FEPA. (Ficalora, supra, 193 Cal.App.3d at pp. 491–492, 238 Cal.Rptr. 360 [sexual discrimination]; Strauss, supra, 144 Cal.App.3d at pp. 519, 521, 194 Cal.Rptr. 520 [age]; cf. Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949, 231 Cal.Rptr. 234 [race, sex, handicap discrimination].) On the other hand, the cogent opinion of a federal district court persuasively points out that remedies predating the FEPA existed at least for sexual discrimination (see Matter of Maguire (1881) 57 Cal. 604, 605–607) and public employee retaliatory discharge; thus a Tameny cause of action could be brought on those grounds without first resorting to the FEHA. (Froyd v. Cook (E.D.Cal.1988) 681 F.Supp. 669, 675–677.) But this is not of any succor to the plaintiff. Whether or not common law remedies for employment discrimination predated the FEHA, no remedies existed for a person such as the plaintiff who commendably sought to fight sexual discrimination but was not himself discriminated against on the basis of gender. Consequently, since the FEHA was his exclusive remedy as to this theory of recovery, plaintiff's failure to exhaust that remedy bars recovery on that theory.
We next examine the second theory undergirding plaintiff's Tameny cause of action. As we have already noted, “where a statutory remedy is provided for the enforcement of a preexisting common-law right, the newer statutory remedy will be considered only cumulative.” (Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 747, 13 Cal.Rptr. 201, 361 P.2d 921, italics in original.) Here plaintiff did not purport to bring his second theory of wrongful termination under the FEHA. Instead, he stated a common law cause of action arising out of defendant's efforts to suppress the truthful reporting of sexual discrimination in employment to governmental officials. Plaintiff alleged that after reporting the instances of sexual harassment of Ms. Bruno to his superiors, the defendants “asked, encouraged, and threatened plaintiff VINCENT GANTT not to make such reports, to falsify what was told to him by JOYCE BRUNO and to give false and perjured testimony and declarations and to give false reports to the federal and state agencies investigating the claim of JOYCE BRUNO.” These acts, the complaint further alleged, “were in direct violation and contravention of the law and public policy of the State of California.” These allegations were found true by the jury. In its special verdict, the jury expressly found that plaintiff was constructively discharged “in retaliation for his refusal to testify untruthfully or to withhold testimony.”
As early as 1959, the Court of Appeal ruled that an employee had stated a cause of action for his lost wages after being fired for reasons violating public policy analagous to the case at bar. (Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 344 P.2d 25.) There the plaintiff, a union business agent, alleged he had been discharged for refusing to testify falsely to a state legislative committee. The Petermann court declared: “It would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute.” (Id. at pp. 188–189, 344 P.2d 25.) This case was later followed in Tameny when the high court held that a tort action for wrongful discharge would lie if the employer “condition[s] employment upon required participation in unlawful conduct by the employee.” (Tameny, supra, 27 Cal.3d at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)
In Foley, supra, the court left open the question “whether a tort action alleging a breach of public policy under Tameny may be based only on policies derived from a statute or constitutional provision or whether nonlegislative sources may provide the basis for such a claim.” (47 Cal.3d at p. 669, 254 Cal.Rptr. 211, 765 P.2d 373.) But in all events, the discharge must “affect[ ] a duty which inures to the benefit of the public at large rather than to a particular employer or employee.” (Ibid.) In short, “disparagement of a basic public policy must be alleged, ․” (Ibid., emphasis in original.) The Foley court acknowledged, however, that “[p]ast decisions recognizing a tort action for discharge in violation of public policy seek to protect the public, by protecting the employee who refuses to commit a crime, who reports criminal activity to proper authorities, or who discloses other illegal, unethical, or unsafe practices.” (Id. at p. 670, 254 Cal.Rptr. 211, 765 P.2d 373, citations omitted.)
We think an equivalent public interest bars the discharge of the plaintiff in this case. It is against the public policy of this state for an employer to attempt to induce or coerce an employee to lie during a governmental investigation. (Petermann, supra, 174 Cal.App.2d at pp. 188–189, 344 P.2d 25.) After all, both perjury and subornation of perjury are felonies in California.15 (Pen.Code, §§ 118, 126, 127.) It is also a crime to willfully obstruct a public officer in the discharge of any duty of his office or employment.16 (Pen.Code, § 148.) As the high court held in Tameny, “an employer's authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order. An employer engaging in such conduct violates a basic duty imposed by law upon all employers, and thus an employee who has suffered damages as a result of such discharge may maintain a tort action for wrongful discharge against the employer.” (Tameny, supra, 27 Cal.3d at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.) We therefore conclude that plaintiff's wrongful discharge claim on the theory of retaliation for refusal to provide false information was based on a common law cause of action which was independent of, and predated, the FEHA. As a recent text on the subject noted, “[e]xhaustion of the DFEH process is a jurisdictional prerequisite to filing a civil action based on the FEHA. However, a wrongfully terminated employee may pursue his or her common law causes of action, such as those based on ․ the violation of public policy, as long as they exist independent of the violation of the FEHA.” (Wrongful Employment Termination Practice (Cont.Ed.Bar 1987) § 4.44, p. 135; citations omitted.) Thus, the failure to exhaust his remedies under the FEHA did not bar plaintiff from pursuing his common law cause of action for wrongful discharge in violation of public policy on his second theory.
The public policy tort under Tameny is necessarily premised upon plaintiff's “wrongful discharge.” Since the plaintiff in this case was not fired by the defendants but instead left the employ of the defendant company, it was incumbent upon him to demonstrate a “constructive” firing in order to satisfy that basic element of the Tameny tort for wrongful discharge. The instruction given to the jury on this issue simply stated: “A constructive discharge occurs when an employer makes an employee's working conditions intolerable. Working conditions are intolerable if a reasonable person in the employee's position would have felt compelled to resign.” The defendants argue this instruction misstates the requisite scienter for a constructive firing.17 We agree.
The concept of constructive firing had its genesis in cases decided under the National Labor Relations Act (NLRA). (29 U.S.C. § 151 et seq.) These cases found a violation of the NLRA's antidiscrimination provisions where an employer forced an employee to quit for reason prohibited by the statute. (Comments, Constructive Discharge (1986) 53 U.Chi.L.Rev. 561, 566–567.) “[S]ome NLRA cases required not only that the employer have intended the intolerable conditions, but also that it have intended those conditions to result in resignation.” (Id. at p. 567.) In cases involving the federal employment discrimination statutes, the courts have divided on the scienter requirement for constructive firing. The majority of courts require no scienter of the employer other than an intent to do the acts which a reasonable person would consider intolerable. A minority requires direct or indirect evidence of the intent of the employer to bring about the resignation of the employee. (Id. at pp. 563–569; Bristow v. Daily Press Inc. (4th Cir.1985) 770 F.2d 1251, 1255.)
The first California case to consider the issue in the context of our common law causes of action for wrongful firings was Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, 242 Cal.Rptr. 324. There the jury was instructed that a constructive discharge could occur only if the employer acted “with the intent to cause the employee to resign.” (Id. at p. 1304, 242 Cal.Rptr. 324.) The court found this instruction to be prejudicially erroneous. (Id. at p. 1305, 242 Cal.Rptr. 324.) It noted that all the authorities on constructive discharge “agree that a tortious constructive discharge requires proof of a violation of public policy, such as unlawful discrimination, plus circumstances so aggravated or intolerable that a reasonable employee would feel compelled to resign. However, the federal and state cases and administrative law have taken divergent views as to whether a third element concerning the mental state of the employer must be proved by an employee to establish constructive discharge. The majority does not require a third element, while the minority has required proof of intent, knowledge, or foreseeability on the employer's part that the employee would resign because of those circumstances.” (Ibid., fns. & citations omitted.)
In the view of the Brady court, “[w]hile the majority correctly take the position that requiring intent or actual knowledge is too stringent, not requiring a third element of any kind relating to the employer's knowledge does not adequately insure that a peaceful, on-the-job resolution has been attempted or was futile.” (Id. at p. 1306, 242 Cal.Rptr. 324, citation omitted.) Consequently, the court held that in order to establish a tortious constructive discharge the employee must establish from the facts and circumstances of the case a third element showing knowledge on the part of the employer. Thus, the requisite mental state of the third element is “that the employer had actual or constructive knowledge of the intolerable actions and conditions and of their impact on the employee and could have remedied the situation.” 18 (Ibid.) The fatal defect in the constructive discharge instruction given to the jury, the Brady court concluded, was that it “requires intent by the employer to cause the employee's resignation, rather than the employer's constructive knowledge of the facts and circumstances surrounding the resignation.” (Id. at p. 1307, 242 Cal.Rptr. 324.) Since the instruction actually given in Brady required both proof of an intent to cause the employee's resignation and a proof of actual notice of the intolerability of conditions on the part of the employer, a too strict and erroneous standard, the court found it to be prejudicial error and reversed the judgment for the defendant. (Id. at pp. 1306–1309, 242 Cal.Rptr. 324.)
We align ourselves with Brady. None of the federal courts have articulated reasons for selecting one test over the other (see Constructive Discharge, supra, 53 U.Chi.L.Rev. at p. 572), other than the statement by the Ninth Circuit that “a stringent requirement that an employer's intent be shown ‘is inconsistent ․ with the realities of modern employment.’ [Bourque v. Powell Electrical Mfg. Co. (5th Cir.1980) ] 617 F.2d [61,] 65. Such a rule would require an analysis of an employer's subjective state of mind, as opposed to the objective analysis of alleged intolerable working conditions that compelled the employee to resign which we feel is the more appropriate focus in a constructive discharge action.” (Nolan v. Cleland (9th Cir.1982) 686 F.2d 806, 814, fn. 17.) But the Brady standard does not require proof of the employer's intent. It merely demands that the evidence show that the employer had actual or constructive knowledge of the intolerable actions and conditions and could have, but did not, remedy the situation. Whatever may be the concerns of the Ninth or Fifth Circuits on the question of intent, we see nothing inconsistent with any “reality” of modern employment in requiring a showing of knowledge on the part of the employer. After all, we are considering an intentional tort. Without some culpable mental state on the part of the employer the tort would be converted in essence to a form of strict liability for the creation of intolerable conditions. We conclude, as did the Brady court, that the mental state of knowledge must be shown before the employer is subject to liability for the tortious constructive discharge of an employee.19
Since the jury in this case was not instructed that it must find that the employer “had actual or constructive knowledge of the intolerable actions and conditions and of their impact on the employee and could have remedied the situation” (Brady, supra, 196 Cal.App.3d at p. 1306, 242 Cal.Rptr. 324), the trial court committed instructional error.
This leaves the question of whether the instructional error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) The California Supreme Court has identified a number of factors for making this determination. In essence, we must determine: (1) whether evidence on the critical issue can be read as a matter of law such that the instructional error is irrelevant; if not, (2) whether the remaining instructions cured the shortcoming or necessarily resolved the shortcoming adversely to the appellant; if not, we also consider (3) whether the respondent's argument to the jury highlighted the instruction, (4) whether the record demonstrates jury focus upon the instruction or its related evidence, and (5) the closeness of the jury's verdict. (Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 771, 206 Cal.Rptr. 354, 686 P.2d 1158.)
In our view, other instructions on constructive discharge and on punitive damages, together with the jury's express findings and its award of those damages, necessarily resolved the shortcoming adversely to the defendants. On the question of termination, the jury was instructed: “Termination of employment that is contrary to the fundamental public policy of this State is a wrongful termination under the law. An employer can be held liable for damages when it is established that an employee has been terminated, constructively, or otherwise, from [his] employment when that termination violates public policy. [¶] The fundamental public policies involved in this case are as follows: [¶] First, it is unlawful employment practice for any employer to discharge any person because that person opposed acts of sexual harassment, or brought allegations of such acts to the attention of higher management or public authorities, or because the person has testified or assisted in any sexual harassment proceeding. [¶] Second, asking, requesting, pressuring, or attempting to persuade or induce an employee to testify untruthfully or to withhold testimony is contrary to the public policy of this State. An employer may not retaliate against an employee for not complying with his or her employer's pressures, requests, or persuasions, to do so.” On the question of punitive damages, the jury was instructed that it could award such damages “if, but only if, you find ․ that said defendant was guilty of oppression, fraud, or malice in the conduct on which you base your finding of liability.” Those terms were then defined for the jury: “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or carried on by the defendant with a conscious disregard of the rights of others. A person acts with conscious disregard of the rights of others when he is aware of the probable dangerous consequences of his conduct and willfully and deliberately fails to avoid those consequences. [¶] ‘Oppression’ means subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of legal rights or otherwise causing injury.” (Emphasis supplied.)
In its special findings in its verdict, the jury found that defendant Sentry constructively discharged plaintiff and in doing so did not harbor a good faith belief that his termination was warranted for legally validbusiness reasons. It further found, as we have previously noted, that plaintiff was constructively discharged “in retaliation for his refusal to testify untruthfully or to withhold testimony” and “in retaliation for his actions [o]r statements with respect to Joyce Bruno's sexual harassment allegations.” The jury further expressly found that defendants Sentry, Fribance and Singer “acted with malice, oppression or fraud toward Plaintiff Gantt.”
Given these instructions and explicit findings, the jury necessarily determined that defendants' employer, at the very least, “had actual or constructive knowledge of the intolerable actions and conditions and of their impact on the employee and could have remedied the situation.” (Brady, supra, 196 Cal.App.3d at p. 1306, 242 Cal.Rptr. 324.) Indeed, by its findings, the jury found that the employer acted intentionally. Consequently, it is not reasonably probable a more favorable result could have inured to the defendants in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) The instructional error must therefore be deemed harmless.
Nor does the fact that only one of two theories undergirding the Tameny cause of action was valid or the fact three other causes of action are barred as a matter of law change this conclusion. It has long been the rule that where “several counts or issues are tried, a general verdict will not be disturbed by an appellate court if a single one of such counts or issues is supported by substantial evidence and is unaffected by error, ․” (Posz v. Burchell (1962) 209 Cal.App.2d 324, 335–336, 25 Cal.Rptr. 896; see also Gillespie v. Rawlings (1957) 49 Cal.2d 359, 368–369, 317 P.2d 601; Khanna v. Microdata Corp. (1985) 170 Cal.App.3d 250, 258, 215 Cal.Rptr. 860.) But this general verdict rule does not apply when the verdict is infected by instructional error which “was likely to mislead the jury and thus become a factor in its verdict, ․” (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 527 P.2d 353.) In such a case, “it is prejudicial and ground for reversal.” (Ibid.) However, in this case, perhaps heeding our admonition in McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 936–937, 97 Cal.Rptr. 910, the parties submitted, and the trial court gave, a special verdict to the jury. (Code Civ.Proc., § 625.) As we have just recounted, in that special verdict the jury expressly found that plaintiff was “constructively discharged ․ in retaliation for his refusal to testify untruthfully or to withhold testimony.” To the extent there wasevidence connected with the other causes of action which was not relevant to this theory, we do not find it reasonably probable a different result would have inured to the defendant in the absence of such evidence. Thus, the jury's verdict was based upon at least one legally correct theory which, we find, was based upon substantial evidence. The purpose of a special verdict is “primarily and principally for the purpose of determining whether the general verdict is or is not against the law.” (Plyer v. Pacific etc. Cement Co. (1907) 152 Cal. 125, 135, 92 P. 56; see also Masonite Corp. v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 11, 135 Cal.Rptr. 170.) That purpose was served here and the general verdict, not being against the law, is entitled to be upheld.
Finally, the defendants argue there was insufficient evidence to support the jury's conclusion that Mr. Gantt had been constructively discharged. They contend that the “evidence does not support a finding that either Gantt's demotion to sales representative or the manner Sentry treated him following his demotion rendered his working conditions so intolerable that a reasonable person in his position would have [felt] compelled to resign.” They argue demotions from sales manager to sales representative were common at Sentry (from which they would presumably argue a reasonable person would therefore feel no onus), his conditions of employment were favorable, and any illegal retaliation he might have suffered at Sentry's hands for his support of Ms. Bruno could have been checked by a complaint to the DFEH invoking the antiretaliation provisions of the state employment discrimination laws. The contention fails.
The plaintiff argued below that a reasonable person would find it intolerable to work someplace where it has been demonstrated they would experience unlawful retaliation for the exercise of their legal rights; by way of illustration, he invoked the somewhat hyperbolic image of Elliott Richardson and Archibald Cox resigning rather than doing what was wrong. He further argued that the fact his terms of employment might otherwise be good does not make the situation any less intolerable. We agree.
Thus, the defendants' first assertion—that many others were regularly demoted—is beside the point, because it is the improper reason for the plaintiff's demotion which rendered it intolerable. Beside the point also is the defendants' second assertion. The plaintiff's salary and other working conditions cannot be viewed in the abstract but in the context of (1) the plaintiff's knowledge of his shaky standing with the company because of his refusal to toe the company line and (2) his knowledge he might suffer similar adverse effects from any future exercise of his legal rights in general or his continued participation in Ms. Bruno's court action (a possibility at the time of his resignation) in particular. Moreover, a reasonable person could have found the plaintiff's working conditions were not all that rosy, in light of the evidence recounted above that his supervisor was poised to pounce on him for any perceived misstep and that his potential for success as a sales representative was diminished by Sentry's refusal to assign him any current accounts. Nor is the defendants' final point, the absence of any dilemma for the plaintiff because he could complain to the DFEH, well taken. We presume Sentry was well aware from the first it was illegal to retaliate against the plaintiff for his opposition to sexual harassment or his refusal to stonewall on behalf of the company, which would have subjected it to a DFEH action after the fact. How filing a complaint with the DFEH would make the plaintiff feel safe from future retaliation from a company which had already manifested its willingness to act illegally is not explained, and we therefore do not agree the availability of the DFEH rendered his employment tolerable. Consequently, we find substantial evidence of constructive discharge in this record to support that finding by the jury.
The judgment is reversed as to defendants Singer and Fribance. In all other respects, the judgment is affirmed. Plaintiff shall recover his costs on appeal.
1. Although we are not concerned with the extent to which the substance of these various contacts between the plaintiff and his superiors establishes valid business reasons for firing him, we must include them for purposes of the defamation and infliction of emotional distress causes of action.
2. He subsequently conceded she may have been arguing to him the credibility of Ms. Bruno by simply saying Ms. Bruno had accused the plaintiff of sexual harassment and yet now was offering the plaintiff as a friendly witness. Ultimately, the uncertainty of Mr. Thompson as to the nature of the statements made to him is of no import, so we shall assume the worst on the part of defendant Fribance.
3. The plaintiff also claims on appeal that he was required to sign a noncompetition contract with Sentry; however, he has not provided an adequate transcript reference for proof of this fact and did not ever argue its existence in closing argument below. In any event, since the validity of this claim would not alter our resolution of the matter, we have no occasion to resolve the question.
FOOTNOTE. See footnote *, ante.
9. The Bradley court noted the defamations in Smith were part of settlement efforts and efforts to obtain a continuance. (Ibid.)
10. In Ribas, supra, 38 Cal.3d at pages 364–365, 212 Cal.Rptr. 143, 696 P.2d 637, the court found absolutely privileged the defendant's testimony in an arbitration hearing—the act from which the plaintiff alleged his damages flowed—even though the substance of the testimony was obtained by the defendant's criminal actions.
11. The issue of whether the privilege under Civil Code section 47, subdivision 2 is dependent upon a proper purpose or motive is pending before the Supreme Court in Silberg v. Anderson (1988) 203 Cal.App.3d 29, 249 Cal.Rptr. 697, review granted Oct. 27, 1988 (S007056).)
12. In Fuhrman, this court's most recent invocation of the “interest of justice” limitation on the extension of the privilege to new situations, we endorsed applying the limitation of a good faith contemplation of litigation to communications made before any judicial proceeding has even commenced. Hence, we held it would not be in the furtherance of the interest of justice to expand the criterion of “judicial proceeding” to unrealized litigation unless such a proceeding were “contemplated in good faith and under serious consideration” when the threat of suit was made. (Fuhrman, supra, 179 Cal.App.3d at pp. 421–422, 231 Cal.Rptr. 113.)
13. The FEHA incorporates through recodification the California Fair Employment Practices Act (FEPA) enacted in 1959 (former Lab.Code, § 1410 et seq. [Stats.1959, ch. 121, § 1, p. 1999 et seq.] ). (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213, 185 Cal.Rptr. 270, 649 P.2d 912.)
14. An exception to this cumulative remedy doctrine would occur if the Legislature intends the new remedy to preempt the field. Some courts, relying upon the language of Government Code section 12993, subdivision (c), have held that “the Legislature has made clear its intent to ‘occupy the field of regulation of discrimination in employment’ by virtue of the FEHA.” (Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 492, 238 Cal.Rptr. 360; see also Robinson v. Hewlett–Packard Corp. (1986) 183 Cal.App.3d 1108, 1124–1125, 228 Cal.Rptr. 591.) That subdivision reads: “While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.” But these courts have failed to recognize the language of that subdivision limiting the preemption to laws “by any city, city and county, county, or other political subdivision of the state.” That limiting language makes clear that the Legislature intended to preempt only local ordinances. We therefore are not concerned with this variation on the analysis.
15. We recognize no sworn testimony was involved in this case; we rely on these statutes instead as evidence of a public policy in general against mendacity in investigative processes. However, we also note the jury was entitled to believe the attitude of Sentry was designed to keep the plaintiff from ever testifying truthfully, had proceedings reached that point.
16. It is, of course, also a crime for any person to willfully “resist, prevent, impede or interfere” with any member of the DFEH “or any of its agents or employees in the performance of duties pursuant to the provisions of this part relating to employment discrimination․” (Gov.Code, § 12975.) While this statute is part of the FEHA and thus does not constitute an independent ground for a common law cause of action, the remaining statutes we have cited sufficiently evince an independent preexisting basis for this public policy.
17. The plaintiff's proposed instruction read: “A constructive termination or discharge from employment occurs when a person[']s working conditions are made so difficult or [the] employer's acts or conduct [are] such that a reasonable person in the employee's position would feel compel [led] to resign. It need not be proven that the employer intended to get rid of the employee by [its] acts, but it is sufficient if the resignation of the employee is the reasonable and foreseeable impact of the employer's conduct.” The court indicated it believed this instruction was covered by the defendants' instructions as modified by the court.The employer's proposed instructions read in pertinent part (with the modification by deletion underscored) as follows: “A constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable. [¶] Working conditions are intolerable if a reasonable person in the employee's position would have felt compelled to resign.”
18. The full test under the Brady formulation was fashioned this way: “Accordingly, we hold that to establish a tortious constructive discharge, an employee must show: (1) the actions and conditions that caused the employee to resign were violative of public policy; (2) these actions and conditions were so intolerable or aggravated at the time of the employee's resignation that a reasonable person in the employee's position would have resigned; and (3) facts and circumstances showing that the employer had actual or constructive knowledge of the intolerable actions and conditions and of their impact on the employee and could have remedied the situation.” (Brady, supra, 196 Cal.App.3d at p. 1306, 242 Cal.Rptr. 324, paragraphing deleted.)
19. The Committee on Standard Jury Instructions of the Superior Court of Los Angeles adopted this analysis in promulgating its definition of constructive discharge in BAJI 10.02 (1989 rev.). This instruction provides in relevant part: “Constructive termination occurs when an employee resigns under such circumstances, not compatible with the employment for which [he] [she] was hired, that a reasonable person in the employee's position would have felt compelled to resign, and the employer knew or reasonably should have known of the intolerable conditions and of their impact on the employee, and could have remedied the situation. [¶] In determining whether the employee's resignation was a constructive termination of employment, you should consider all of the circumstances, including but not limited to, whether: [¶] [The employer obtained the employee's resignation through [coercion] [fraud] [threats] [undue influence].] [¶] [The employer without good cause told the employee to resign or be fired.] [¶] [The employer demoted the employee without good cause.] [¶] [The employer forced the employee to work under such difficult or unpleasant circumstances as would cause a reasonable person to resign.] [¶] [The employer without good cause substantially reduced the employee's [salary] [wages] or [benefits].] [¶] [The employer discriminated against the employee because of [race] [religion] [sex] [nationality] [age] [handicap] [other reasons].] [¶] There is no difference between an actual or constructive termination. Either one is a termination of employment under these instructions. [¶] However, if you find that the plaintiff voluntarily resigned from [his] [her] employment, then defendant did not terminate plaintiff's employment, either actually or constructively.”
SPARKS, Acting Presiding Justice.
SIMS and DAVIS, JJ., concur.