Joseph T. RADEN, Plaintiff and Appellant, v. CITY OF AZUSA, a municipal corporation, Azusa Police Department, Carl Elkins, Chief, Azusa Police Department, as an Individual and in his official capacity, Defendants and Respondents.
This is an appeal from an order of dismissal following the sustaining of respondent's demurrer without leave to amend to appellant's fourth amended complaint. The action was one for breach of employment contract, violation of Labor Code section 132a,1 and intentional infliction of emotional distress, and included a prayer for punitive as well as general and special damages. We partially reverse the ruling of the trial court on the basis that the fourth amended complaint stated a claim upon which relief could be granted for breach of contract and violation of section 132a.
“A demurrer admits all material and issuable facts properly pleaded.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 737, 433 P.2d 732, 745.) Further, the function of a demurrer is to test the sufficiency of the complaint as a matter of law (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 611, 116 Cal.Rptr. 919), regardless of possible difficulties of proof. (Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 399, 113 Cal.Rptr. 585, 521 P.2d 841.) In this case, our focus is directed to the effect of the remedies afforded workers under the Workers' Compensation scheme upon appellant's attempt to bring a civil suit for damages against his employer. The order of dismissal was based on the theory that Workers' Compensation was appellant's exclusive remedy for the wrongs of which he complained.
Appellant Joseph T. Raden was employed as a part-time Reserve Police Officer by Respondents City of Azusa and the Azusa Police Department. Respondent Carl Elkins was the Chief of Police. Raden was employed for approximately two years pursuant to an oral contract prior to the occurrences which give rise to the instant suit. In December 1973, Raden became ill, complaining of headaches, bodyaches and drowsiness while on duty. He continued to suffer from these symptoms until January 4, 1974, at which time he advised his superiors that he could not continue working until his health improved. Raden sought the care of a physician for treatment of his illness who indicated in a report that in his opinion the illness was 100% work related. Upon the advice of the physician, Raden filed a claim for Workers' Compensation benefits on January 17, 1974.
Prior to filing the above claim, Raden spoke with Captain Lara of the Azusa Police Department, who voiced skepticism as to the job relatedness of appellant's illness. Subsequent to the filing of the claim, appellant was contacted by Lieutenant Molloy of the department, who made threatening remarks regarding appellant's filing the claim. Approximately two months later, appellant was contacted by Sergeant Glancy of the department who told appellant to turn in his badge and identification card by order of Lt. Molloy. Appellant contacted Molloy who confirmed appellant's belief that he was being fired because he had filed the Workers' Compensation claim. A few days later, appellant submitted a note from his physician to the department indicating that appellant had recovered from his illness and was able to return to work. Appellant was told by Elkins, however, that he did not like appellant's attitude in retaining an attorney and filing a Workers' Compensation claim. Elkins then asked appellant to resign, and said that if he did resign he would receive a good recommendation. However, appellant declined to resign and was fired.
Section 132a of the Labor Code declares in its opening sentence that “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.” The statute then goes on to provide in pertinent part that “(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the latter has filed or made known his intention to file an application with the appeals board, or because the employee has received a rating, award or settlement, or because the employee testified or made known his intentions to testify in any matter relating to the appeals board is guilty of a misdemeanor and subject to the provisions of Section 4553.” 2
Under section 4553, an employee who is discharged in retaliation for filing a Workers' Compensation claim would be entitled to an increased award equal to one-half of the compensation award or settlement, but in no event to exceed $10,000.00. The question squarely presented by this case is whether the remedies provided under section 132a are the exclusive remedies available to a person who is discharged from his or her job in retaliation for filing a Workers' Compensation claim or engaging in the other protected activities enumerated in that section. We believe the answer to this question to be “No.”
Respondents argued successfully below, and renew that argument here, that one of the basic tenets of the Workers' Compensation Act is the exclusivity of the remedy for the employee. The cornerstone of that contention is section 3601, which states in pertinent part: “Where the conditions of compensation exist, the right to recover ․ ․ ․ compensation ․ ․ ․ is ․ ․ ․ the exclusive remedy for injury or death of any employee against the employer or against any other employee of the employer acting within the scope of his employment ․ ․ ․ .” Although there are three exceptions to the above, they do not apply to the instant case, as they have to do with acts of physical aggression, intoxication or recklessness by a fellow employee. Nonetheless, for the following reasons, we hold that the exclusivity of the remedy in section 3601 does not apply to situations where the employee is seeking redress for retaliatory discharge.
We begin our analysis by noting that the language in section 3601 does not encompass the situation intended to be covered by section 132a. Section 3601 specifically covers “injury or death.” Section 3208 defines “injury” to include “․ ․ ․ any injury or disease arising out of the employment, including injuries to artificial members, dentures, hearing aids, eyeglasses and medical braces of all types ․ ․ ․ .” Rules of statutory construction require that express wording in legislative enactments be construed in accordance with the ordinary meaning of the language used. Clearly, the legislature envisioned physical harm when it used the word “injury.” (Prunty v. Bank of America (1974) 37 Cal.App.3d 430, 436, 112 Cal.Rptr. 370.) “The terms ‘injury,’ and ‘personal injury,’ as used in the workmen's compensation acts, are ordinarily construed as meaning any lesion or change in the structure of the body, causing harm thereto and a lessened facility of its natural and normal use. In some of the acts the term is expressly defined as meaning damage or harm to the physical structure of the body.” (81 Am.Jur.2d, Workmen's Compensation, § 225.) Therefore, we hold that the harm occasioned an employee who is discharged in retaliation for filing a worker's compensation claim is not an “injury” within the meaning of section 3601 and that the remedy granted under section 132a is not subject to the exclusivity provision of section 3601. Nonetheless, we must next determine whether public policy factors weigh for or against the maintenance of a civil suit by such an employee.
Whether an employee who has been discharged by his employer in retaliation for filing a workers' compensation claim may maintain a civil suit for damages has not previously been determined in California and has been considered in only a few other jurisdictions. While all of the cases to consider the question have recognized, at least impliedly, the general principle that an employee at will may be discharged by his employer without cause, several jurisdictions have held, nonetheless, that a cause of action existed against the employer for the retaliatory discharge.3 Other jurisdictions, however, have held to the contrary, primarily on the basis that the legislature, in providing for criminal sanctions for retaliatory discharge, did not intend to create a new civil claim for the discharged employee.4
A leading case in this area is Frampton v. Central Indiana Gas Co., supra, 297 N.E.2d 425. In that case, the Indiana Supreme Court held that the discharge of an employee in retaliation for filing a workmen's compensation claim would constitute “an intentional, wrongful act on the part of the employer for which the injured employee is entitled to be fully compensated in damages.” (Id., 297 N.E.2d at pg. 428.) The court first noted that liberal construction of the Act in favor of the employee so as to further the Act's humane purposes was a well established principle. Further, the court acknowledged that “․ ․ ․ in order for the goals of the Act to be realized and for public policy to be effectuated, the employee must be able to exercise his right in an unfettered fashion without being subject to reprisal.” (Id. 297 N.E.2d at pg. 427.) However, unable to cite other cases in their own or any other jurisdiction holding retaliatory discharge to be actionable, the court relied upon what is termed the “parallel development” in landlord and tenant law which has held that retaliatory eviction by the landlord of the tenant for the latter's report of health or safety code violations may be raised as an affirmative defense in an action by the landlord for possession of the premises. The court also noted that in California such retaliation by a landlord is also the basis for an affirmative cause of action for damages. (Id. 297 N.E.2d at pg. 428, citing Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 97 Cal.Rptr. 650.) The court then declared that “(r)etaliatory discharge and retaliatory eviction are clearly analogous. Housing codes are promulgated to improve the quality of housing. The fear of retaliation for reporting violations inhibits reporting and, like the fear of retaliation for filing a claim, ultimately undermines a critically important public policy.” (Id. 297 N.E.2d at pg. 428.)
Likewise, in Kelsay v. Motorola, Inc. (supra), 23 Ill.Dec. 559, 384 N.E.2d 353, the Illinois Supreme Court held that a cause of action exists for retaliatory discharge. (See footnote 4, supra.) The decision in that case cited Frampton approvingly, particularly noting that regardless of any differences in the statutory language of the Workmen's Compensation Act as enacted in Indiana, Illinois agreed in the basic public policy basis for the Frampton opinion and found retaliatory discharge equally repugnant. However, the court in Kelsay had an additional argument by the employer to confront. Motorola argued that the legislature in Illinois had clearly intended that the criminal penalties provided for in the Act should be the exclusive remedy for injuries incurred by employees as a result of retaliatory discharge. The court rejected the argument, saying that it could not accept a construction of the Act “which would allow employers to put employees in a position of choosing between their jobs and seeking their remedies under the Act.” (Id. 23 Ill.Dec. at pg. 564, 384 N.E.2d at pg. 358.)
The foregoing cases would be ample authority for allowing appellant to maintain a civil suit for damages except for one factor. While we wholeheartedly agree with the policy to be furthered by allowing a victim of retaliatory discharge a civil remedy, in California the legislature has gone one step further than the legislatures in either Indiana or Illinois. In California, a civil-type of remedy is provided within the Workers' Compensation Act itself, unlike the acts in the other two states. That remedy is the increased compensation available to an employee under section 4553.5 Therefore, we must look further to see if this remedy adequately protected appellant, who was faced with the unenviable choice of loosing his job or foregoing his remedy for job-related injuries under the Act. The facts of this case clearly demonstrate that it did not.
The additional compensation award provided under section 4553, which is one-half of the actual compensation award, but not to exceed $10,000, may be obtained by petitioning the appeals board. Appellant filed such a petition on September 23, 1974. However, due to a failure by appellant to prosecute the claim, it was dismissed. Although we can only speculate as to appellant's reasons for allowing the claim to lapse, it is clear that a successful petition for an award of additional compensation under section 4553 would not have adequately compensated him for his discharge. Appellant was awarded $650.00 by virtue of a settlement and compromise for his industrial injury. The injury he suffered as a result of being discharged, however, could hardly be said to be adequately compensated by an additional $325.00. Likewise, it could not be said that the employer would be deterred from discharging employees in retaliation for filing Worker's Compensation claims in such situations. When the injury or illness is slight to moderate and the award, therefore, is anticipated to be comparatively small, the employee would be disinclined to risk discharge by filing a claim for compensation. Similarly, the employer would not be dissuaded from threatening or actually discharging such an employee, since the additional compensation for which he would be liable would be diminimus and the misdemeanor criminal penalty slight.6
In Kelsay, the court was faced with a situation similar to the instant case. In reviewing an award of $25,000 in punitive damages that had been awarded the discharged employee, the court said: “In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen's compensation claim. For example in this case, the plaintiff was entitled to only $749 compensatory damages. We noted above the very real possibility that some employers would risk the threat of criminal sanction in order to escape their responsibilities under the Act. ․ ․ ․ The imposition on the employer of the small additional obligation to pay a wrongfully discharged employee compensation would do little to discourage the practice of retaliatory discharge, which mocks the public policy of this State as announced in the Workmen's Compensation Act. In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen's compensation claims.” (Kelsay v. Motorola, Inc., supra, 23 Ill.Dec. at pg. 565, 384 N.E.2d at pg. 359.)
However, despite the foregoing, the court in Kelsay determined that the award of punitive damages in that case should be reversed. This holding was based on the principle that punitive damages are meant to punish and serve as an example. Since the employer in Kelsay could not have possibly known that the conduct proscribed by the Workmen's Compensation Act could also give rise to an award of punitive damages, the court reversed the award of punitive damages but affirmed the trial court's award of compensatory damages based upon lost wages.7
The courts in other jurisdictions that have allowed a cause of action to be maintained for retaliatory discharge have done so for public policy reasons. The analogy in Frampton to the landlord-tenant retaliatory eviction cases is particularly apt, especially in light of the fact that those decisions were premised largely upon public policy as well. For example, the allowance in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 97 Cal.Rptr. 650 of an affirmative cause of action based upon a landlord's retaliatory eviction evinces recognition by California courts of the importance of housing and sanitary codes upon the quality of life of apartment dwellers and that the effectiveness of such remedial legislation will be substantially inhibited if tenants must weigh the possibility of retaliatory eviction against reporting dangerous or unsanitary conditions.
The California Supreme Court in Schweiger v. Superior Court (1970) 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97, broke the initial ground for the appellate court in Aweeka. In Schweiger, the court found itself in the position of balancing the interests of landlords and tenants as contained in two separate code sections. Section 1161 of the Code of Civil Procedure, as stated by the court, “․ ․ ․ implies the unrestricted power of a landlord under a month-to-month tenancy to raise the rent for his property to any level, however exhorbitant, and to evict tenants unable or unwilling to pay.” (Id. at pg. 511, 90 Cal.Rptr. at pg. 731, 476 P.2d at pg. 99.) Section 1942 of the Civil Code, on the other hand, “grants a tenant the right to demand that his landlord repair dilapidations in his apartment unit and, if the landlord neglects to do so, the tenant may make the repairs himself, where the costs does not exceed one month's rent.” (Id. at pg. 511, 90 Cal.Rptr. at pg. 731, 476 P.2d at pg. 99.) The court then conceded that the two sections were incompatible when a landlord instituted an unlawful detainer based upon increased rent in retaliation for the tenant's exercise of his rights under section 1942.
In resolving the conflict, the court cited Edwards v. Habib (1968) 130 U.S.App.D.C. 126, 397 F.2d 687, cert. den. (1969) 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560, which had held that “(t)he housing and sanitary codes ․ ․ ․ indicate a strong and persuasive congressional concern to secure for the city's slum dwellers decent, or at least safe and sanitary, places to live. Effective implementation and enforcement of the codes obviously depend in part on private initiative in the reporting of violations. ․ ․ ․ To permit retaliatory evictions ․ ․ ․ would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington.” (Edwards v. Habib, supra, 130 U.S.App.D.C. at pg. 139–140, 397 F.2d at pg. 700–701; quoted in Schweiger v. Superior Court, supra, 3 Cal.3d at pg. 512, 90 Cal.Rptr. 729, 476 P.2d 97.) Therefore, the court held that “(i)f we deny tenants a defense against retaliatory eviction in unlawful detainer actions, we lend the exercise of the judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights.” (Id. at pg. 513, 90 Cal.Rptr. at pg. 732, 476 P.2d at pg. 100.)
In this case there is no question of ‘lending the exercise of judicial process' to aid employers in punishing those employees with the audacity to exercise their statutory rights. However, the result in either the retaliatory eviction or retaliatory discharge situation would be the same. While it is true that section 2922 of the Labor Code grants to the employer the power to terminate at will any employee who is employed for no specified term, the rights granted to injured or ill workers under the Workers' Compensation Act would be meaningless if there is not an adequate method for redressing the wrong of employer retaliation for the exercise of the rights granted thereunder. In both the landlord-tenant and the employer-employee situations an important right has been granted by the legislature which fear of retaliation can substantially reduce.
Balancing the rights of employers under section 2922 (as the court in Schweiger did for landlords under section 1161 of the Code of Civ.Proc.) against the rights of employees under section 132a (§ 1942, Civ.Code for tenants), we must reach a similar conclusion to that of the California Supreme Court in Schweiger.8 Adding to that the additional rational of Aweeka, in order to effectuate the policy “that there should not be discrimination against workers who are injured in the course and scope of their employment,” we hold that employees who are subjected to discriminatory actions by their employers are entitled to pursue either their remedy under the Workers' Compensation Act or to bring a civil suit for damages. Therefore, appellant is entitled to a trial on his fourth amended complaint on the issues of breach of contract and violation of section 132a.9
Appellant's cause of action for intentional infliction of emotional distress is barred by the exclusive remedy provisions of the Workers' Compensation Act. Contrary to appellant's contentions, the issue was recently decided against him in Ankeny v. Lockheed Missiles and Space Company (1979) 88 Cal.App.3d 531, 151 Cal.Rptr. 828.
In Ankeny, as in this case, intentional infliction of emotional distress was alleged. However, in Ankeny the court was clear that since “plaintiff has alleged physical injury and disability” his civil action was barred by the exclusive remedy provisions of the Worker's Compensation Act. (88 Cal.3d at pgs. 535–536, 151 Cal.Rptr. at pg. 831.) Further, the court held that the exception spelled out in Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 147 Cal.Rptr. 447 was not applicable, as in Renteria the court had allowed a civil suit for intentional infliction of emotional distress solely because the plaintiff therein had not alleged physical injury or disability. Therefore, the court concluded, the conditions of compensation did not exist and the suit was not barred. (82 Cal.App.3d at 841–842, 147 Cal.Rptr. 447.)
Ankeny is authority here, therefore, because appellant alleged that he suffered physical injury as a result of the conduct of the department and Elkins. Hence, his two causes of action against them for intentional infliction of emotional distress are barred by the exclusive remedy provision of section 3601.
Finally, we note that respondents have correctly pointed out that only in the first, second and third amended complaints did appellant allege causes of action based upon violation of and conspiracy to violate his civil rights under 42 U.S.C. § 1983. However, these causes of action do not appear in the fourth amended complaint, and, therefore, they are not part of the Order of Dismissal from which appellant appeals. Therefore, we must consider these causes of action abandoned for the purpose of this appeal.
However, since we have held that appellant has stated causes of action for breach of contract and violation of section 132a upon which relief can be granted, it does not seem unreasonable that appellant should be allowed to amend his fourth amended complaint to reinstate these civil rights causes of action. The recent United States Supreme Court decision in Monell v. New York City Dept. of Soc. Serv. (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 overruled the aspect of Monroe v. Pape (1961) 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, that had held that municipal corporations were not “persons” within the meaning of 42 U.S.C. § 1983 and therefore not amendable to suit. This decision, which came down several months subsequent to the order of dismissal, clearly affords appellant at least the opportunity to state a cause of action against defendants. Obviously, his fourth amended complaint had dropped the civil rights causes of actions based upon counsel's opinion, correct at that time, that they were barred by Monroe. Appellant must keep in mind, however, that the Monell case does not grant him carte blanche in this area. His complaint must allege that his discharge was pursuant to an official policy or custom of the department. As the court in Monell pointed out: ․ ․ ․ when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury ․ ․ ․ the government was an entity is responsible under § 1983.” (Id. 436 U.S. at p. 694, 98 S.Ct. at p. 2038.) Conversely, the court clearly limited its holding by stating “․ ․ ․ we do uphold Monroe v. Pape insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees.” (Id. at pgs. 663–664, fn. 7, 98 S.Ct. at pg. 2022.) Further explaining this limitation in the text of the opinion, the court said: “․ ․ ․ the language of § 1983 ․ ․ ․ compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” (Id. at p. 691, 98 S.Ct. at p. 2036.) Therefore, appellant should be cognizant of the requirement that he must allege, in order to state a cause of action under section 1983, that the local official sued in his official capacity must have implemented or executed a policy statement, ordinance, regulation or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy.
The judgment is reversed insofar as it dismissed the first and second causes of action in the fourth amended complaint and remanded for proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
I respectfully dissent.
The out-of-state cases relied upon by the majority in creating a new civil cause of action are not in point. In those cases the employees had no other remedy. That is not true in California. Prior to 1972 an employer who discharged an employee in retaliation for filing of a workers' compensation claim was guilty of a misdemeanor. In the 1972 legislative session, the Legislature amended section 132a making such an employer subject to the provisions of section 4553, which provided for an increased award equal to one-half of the compensation or settlement award with a maximum of $10,000. In 1978 the Legislature again amended section 132a to provide for reinstatement of employees discharged in retaliation for filing a workers' compensation claim and for reimbursement for lost wages and benefits. It is apparent that the Legislature intended to provide a complete remedy for wrongfully discharged employees. The legislative history of section 132a clearly demonstrates that intent. If the existence of a civil remedy such as that fashioned by the majority had been within the contemplation of the Legislature, there would have been no need for them to amend section 132a.
Furthermore, the Legislature intended that the appeals board have the exclusive jurisdiction over remedies for employees. I agree with the majority's analysis of section 3601. However, section 5301 provides: “The appeals board is vested with full power, authority and jurisdiction to try and determine finally all the matters specified in Section 5300 subject only to the review by the courts as specified in this division.” (Emphasis added. See Lab.Code, § 132a, subd. (4).) Section 5300, subdivision (a), provides that all proceedings “[f]or the recovery of compensation, or concerning any right or liability arising out of or incidental thereto ․ ․ ․ shall be instituted before the appeals board and not elsewhere ․ ․ ․ .” Obviously the creation of a civil cause of action creates a jurisdictional and procedural conflict between the Workers' Compensation Appeals Board and the courts.
1. All references to code sections are to the Labor Code unless otherwise specified.
2. Section 132a was amended in 1978. The section now provides for reinstatement and reimbursement of lost wages and work benefits as additional remedies. As amended, the section reads:“It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.“(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the latter has filed or made known his intention to file an application with the appeals board, or because the employee has received a rating, award or settlement, is guilty of a misdemeanor and subject to the provisions of Section 4553. Any such employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer.“(2) Any insurance carrier who advises, directs, or threatens an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge an employee because the latter has filed or made known his intention to file an application with the appeals board, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and subject to the provisions of Section 4553.“(3) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee testified or made known his intentions to testify in another employee's case before the appeals board is guilty of a misdemeanor, and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer.“(4) Any insurance carrier who advises, directs or threatens an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge or in any manner discriminate against an employee because the employee testified or made known his intentions to testify in another employee's case before the appeals board is guilty of a misdemeanor.Proceedings under this section for increased compensation as provided in Section 4553, or for reinstatement and reimbursement for lost wages and work benefits, are to be instituted by filing an appropriate petition with the appeals board, but such proceedings may not be commenced more than one year from the discriminatory act or date of termination of the employee. The appeals board is vested with full power, authority, and jurisdiction to try and determine finally all the matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge. The appeals board may refer and any worker may complain of suspected violations of the criminal misdemeanor provisions of this section to the Division of Labor Standards Enforcement, or directly to the office of the public prosecutor.”
3. Cases which have recognized a cause of action: Frampton v. Central Indiana Gas. Company (1973) 260 Ind. 249, 297 N.E.2d 425; Kelsay v. Motorola, Inc. (1978) 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (see further discussion in fn. 3 below); Sventko v. Kroger Co., (1978) 69 Mich.App. 644, 245 N.W.2d 151; Texas Steel Co. v. Douglas (1978 Tex.Civ.App.) 533 S.W.2d 111. Also see annotation at 63 ALR 3d 979.
4. Cases which have denied a cause of action:Christy v. Petrus (1956) 365 Mo. 1187, 295 S.W. 122; Narens v. Campbell Sixty-Six Express, Inc. (1961 Mo.) 347 S.W.2d 204; Raley v. Darling Shop of Greenville, Inc. (1950) 216 S.C. 536, 59 S.E.2d 148. However, Loucks v. Star City Glass Co. (7th Cir. 1977) 551 F.2d 745, which held that no civil cause of action existed for an employee discharged in retaliation for filing a workmen's compensation claim, was subsequently disapproved by the Illinois Supreme Court in Kelsay v. Motorola, Inc., supra, 23 Ill.Dec. 559, 384 N.E.2d 353. The court said that the denial of a cause of action to such an employee would contravene the public policy of the state. 23 Ill.Dec. at page 563, 384 N.E.2d at page 357 the court stated: “We are not convinced that an employer's otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen's Compensation Act. As we have noted, the legislature enacted the workmen's compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory. This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy as expressed in the Workmen's Compensation Act.”
5. As previously mentioned, in 1978 the legislature amended section 132a to include in the remedies provided an employee who is a victim of retaliatory discharge the right to “reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer.” The legislature further provided that “Proceedings under this section for increased compensation as provided in Section 4553, or for reinstatement and reimbursement for lost wages and work benefits, are to be instituted by filing an appropriate petition with the appeals board, but such proceedings may not be commenced more than one year from the discriminatory act or date of termination of the employee.” While these additional remedies may have adequately protected appellant's rights, the amendment came far too late to benefit him. At the time that appellant decided to seek civil damages rather than pursuing a claim for increased compensation under section 4553, the most he could have hoped to receive in such a proceeding was $325.00. (See text, infra.) The appeals board was not yet empowered to award reimbursement for lost wages and benefits or to order reinstatement.
6. We recognize that the additional remedies of reinstatement and reimbursement for lost wages and benefits will, in many cases, provide both an acceptable level of deterrence for the employer and adequate compensation for the employee. However, despite these additional remedies, situations may still arise in which restricting an employee to his remedies under the Worker's Compensation Act may not adequately promote the expressed public policy of the Act “․ ․ ․ that there should not be discrimination against workers who are injured in the course and scope of their employment.” If the animosity between employer and employee is great enough, the employee may not want to return to work for that employer. Also, an industrious or highly-skilled worker may find other employment quickly, making his actual damages slight. In either event, the maintenance of a civil suit for damages, with the attendant possibility of punitive damages in appropriate cases, may provide the only effective deterrent against retaliatory discharge by employers.
7. Respondents point out that section 818 of the Government Code prevents an award of punitive damages against a public entity, and contends, therefore, that appellant's prayer for such is barred. However, in his fourth amended complaint, appellant has asked for an award of punitive damages only on his fourth cause of action, intentional infliction of emotional distress by respondent Elkins. Since we hold below that appellant is barred by the exclusive remedy provisions of Worker's Compensation Act from maintaining a civil suit for damages on an intentional infliction of emotional distress theory, the punitive damages prayed for on this cause of action are likewise barred.
8. The court in Schweiger also noted 3 Cal.3d at pg. 515, 90 Cal.Rptr. at pg. 734, 476 P.2d at pg. 102 that “(i)n related areas of jurisprudence, our courts have not hesitated to prohibit retaliatory exercises of broad private powers when they interfere with public policy. In Glenn v. Clearman's Golden Cock Inn (1961) 192 Cal.App.2d 793, 13 Cal.Rptr. 769, an employer discharged his employees because they had applied for union membership. The employees sued for damages. The Court of Appeal held that, although the contracts of employment were at will and generally could be terminated by either party, the rule was ‘modified by an exception that prevents a contract of employment at will from being terminated where the reason for termination is one which violates established public policy.’ (Id. at p. 796, 13 Cal.Rptr. 769.) Thus, the court concluded that the broad power of the employer to terminate employment contracts at will under Labor Code section 2922 was limited by the public policy expressed in Labor Code sections 922 and 923, which gave employees an unfettered right to organize. ‘It would be a hollow protection indeed that would allow employees to organize and would then permit employers to discharge them for that very reason, unless such protection would afford to the employees the right to recover for this wrongful, act.’ (Id. at p. 798 [13 Cal.Rptr. 769, at p. 772.])”See also Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 344 P.2d 25, which allowed a damage action on behalf of an employee discharged for refusing to testify falsely before an Assembly committee. Also cited in Schweiger, the Petermann court pointed out that “(i)t 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 ․ ․ ․ on the ground that the employee declined to commit perjury, an act specifically enjoined by statute. ․ ․ ․” (174 Cal.App.2d at 188, 344 P.2d at 27.) (See Schweiger v. Superior Court, supra, 3 Cal.3d at p. 515, 90 Cal.Rptr. 729, 476 P.2d 97.)
9. Respondents also contend that the fourth amended complaint fails to state a cause of action for breach of contract in that it doesn't specify the consideration for the employment contract. This contention is without merit. While it is true that in order to withstand a demurrer it is necessary to specify whether a contract is written or oral (Code of Civ.Proc., § 430.10 subd. (h)), if the contract is oral, it is pleaded according to its legal effect. (3 Witkin, Cal.Proc. 2nd Ed., 1971, Pleading, § 396.) The fourth amended complaint adequately meets this requirement.
STEPHENS, Acting Presiding Justice.
HASTINGS, J., concurs.