DUERKSEN v. TRANSAMERICA TITLE INSURANCE COMPANY (1987)

Plaintiff Paul Duerksen filed this action seeking damages for events surrounding his alleged “forced retirement” from employment.   The trial court granted summary judgment in favor of defendants Transamerica Title Insurance Company (Transamerica), Kevin Bippen, and Dennis Bilden.   We affirm.

I.

FACTS.

In support of the motion for summary judgment defendants filed several declarations as well as excerpts and exhibits from plaintiff's deposition and a “statement of undisputed facts” pursuant to Code of Civil Procedure section 437c, subdivision (b).   Plaintiff filed a counteraffidavit and a complete copy of the deposition transcript.¹

Virtually all of the facts justifying summary judgment are found in the allegations of plaintiff's complaint, the averments of his declaration, and his deposition testimony.   These established that plaintiff was first employed by Transamerica's predecessor in 1952.   Transamerica took over the business in 1963.   At that time Transamerica assured new employees that it intended to provide job security.   Plaintiff was told, “as long as you don't screw up, you have a job here as long as you want” and “as long as you don't steal, you'll have a job here for life.”

At some point plaintiff received an employee handbook which referred to “the Transamerica Family”;  stated an intention to provide “job satisfaction” and to further “the achievement, satisfaction, and dignity of each employee”;  noted the value of Transamerica's stock and retirement plans in arranging for “future security”;  claimed “the very highest standard of corporate ethics” and referred to its employees' obligation to maintain that standard;  identified 15 types of conduct which “would make continued employment impossible”;  and recognized employees as an “important resource” of the company and as “important individuals.”   Plaintiff understood these statements as indications that he would be treated fairly, that he could work at Transamerica “as long as [he] did a reasonably good job,” and that he could keep his job “unless [he] breached some of the ethical standards” specified in the handbook.   However, there was no allegation, contention, or evidence that these statements operated as an express contractual undertaking.

Plaintiff worked for Transamerica for some twenty years.   In 1977 he was promoted to the position of Major Accounts Manager.   He also received various raises and bonuses.   The record does not reveal any criticism of his job performance before October 1983.

On October 26, 1983, plaintiff was “abruptly notified of a new and provocative executive decision” requiring him to double his productivity.   He was called into the office of defendant Bilden and told by defendant Bippen that defendants would “fire your ass” if he failed to fulfill the new requirements and that his 30 years with the company was “past history.”   He was told that if he remained in his present position defendants would “put you at a fucking desk on the main floor,” apparently implying that he needed to be kept under surveillance.   He was given the alternative of entering a new position which would have required him to perform the duties of two or three experienced claims workers.   Plaintiff has consistently maintained either job as contemplated by defendants would have placed “unrealistic” and “impossible” demands on the occupant.

Plaintiff was initially told to decide by the following morning whether to accept one of the new positions.   However this “ultimatum” was tacitly rescinded and the parties spent much of the next three weeks in oral and written discussions of the terms and obligations of plaintiff's continued employment.   Indeed at one point plaintiff issued his own “ultimatum,” demanding that defendants formulate a more suitable proposal within 24 hours.   He was offered an opportunity to draft his own version of a job description, but did not do so.

Plaintiff elected to retire on November 15, 1983.   On November 16, 1984, he filed a complaint with the Department of Fair Employment and Housing alleging age discrimination in violation of the Fair Employment and Housing Act, Government Code sections 12940 et seq.   Apparently similar charges were filed with the federal authorities.   The record does not reveal the disposition, if any, of the charges.

Plaintiff filed this action on October 25, 1984.   Defendants demurred to all causes of action of the original complaint, and the demurrer was sustained as to all but the claim for breach of the covenant of good faith and fair dealing.   Plaintiff amended the complaint to state four theories of recovery, entitled “wrongful discharge:  breach of implied-in-fact agreement,” “breach of oral contract,” “breach of the covenant of good faith and fair dealing,” and “intentional infliction of emotional distress.” ²  Defendants answered this complaint and filed the motion on which the trial court entered the judgment from which this appeal is taken.

II.

THE “WRONGFUL DISCHARGE” CLAIMS ARE BARRED BY PLAINTIFF'S VOLUNTARY RESIGNATION.

The complaint presents three distinct theories sounding in “wrongful discharge,” namely breach of an express contract not to discharge without good cause, breach of an implied-in-fact contract to the same effect, and breach of the covenant of good faith and fair dealing (or “bad faith discharge”).  (See Koehrer v. Superior Court (1986) 181 Cal.App.3d 1155, 1163, 226 Cal.Rptr. 820 [noting that wrongful discharge cases display “some ambivalence, if not confusion, as to the legal basis for recovery”].)   In addition plaintiff has pleaded a claim for the independent tort of intentional infliction of emotional distress.

The first problem with plaintiff's claims for “wrongful discharge” is that there was no discharge;  plaintiff voluntarily retired.   He contends that the facts permit a finding of “forced retirement” or “constructive discharge” and that he therefore stands in the position of one who has been fired.   However we are aware of no authority permitting an employee to maintain an action for “wrongful discharge” where the employee has not in fact been discharged.   Even if a technical dismissal is not always required for maintenance of a tort action, the facts as presented by plaintiff cannot be held to raise a triable issue with respect to constructive discharge.

In support of his theory plaintiff cites federal cases arising under statutes prohibiting employment discrimination.  (E.g. E.E.O.C. v. Hay Associates (E.D.Pa.1982) 545 F.Supp. 1064.)   However those cases presuppose conduct abhorrent to public policy and violative of explicit statutory proscriptions.   Furthermore even there the employer's performance of condemned acts does not by itself permit an employee to quit and treat it as a discharge.   Rather there must be “aggravating circumstances,” usually if not always consisting of a “continuous pattern of discriminatory treatment” or a clear indication that the plaintiff had become “locked into a position from which she could apparently obtain no relief.”  (Id. at pp. 1085, 1086–1087, quoting Clark v. Marsh (D.C.Cir.1981) 665 F.2d 1168, 1173, 1174.)   Here plaintiff elected to retire after three weeks of unsuccessful attempts to negotiate a suitable new job description.   It does not appear to us that these facts would permit a finding of constructive discharge even under the federal discrimination cases.

Nor is plaintiff assisted by California cases treating the coerced resignation of certain public employees as “tantamount to a discharge.”  (Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 89 Cal.Rptr. 809, see Moreno v. Cairns (1942) 20 Cal.2d 531, 127 P.2d 914;  City of Los Angeles v. Superior Court (1966) 246 Cal.App.2d 73, 54 Cal.Rptr. 442, disapproved on another point in City of Los Angeles v. Superior Court (1973) 8 Cal.3d 723, 732, 106 Cal.Rptr. 15, 505 P.2d 207.)   All of those cases concerned workers who resigned under pressure and then sought reinstatement to their positions.   As is evident from Justice Molinari's careful analysis in Keithley v. Civil Service Bd., supra, those cases are wholly inapplicable here.   In that case the plaintiff claimed he should not be bound by his resignation because it resulted from undue influence exerted by a superior.   The court analyzed the issues in terms of the officer's right to rescind the resignation.   Such a right might arise, the court held, if the resignation resulted from mistake, menace, fraud, duress, or undue influence.  (Id. 11 Cal.App.3d at p. 450, 89 Cal.Rptr. 809.)

 Here there has been no attempt by plaintiff to rescind his retirement or to show that grounds exist to do so.   On the contrary, he stands on his supposed right to terminate his employment and then utilize his own act as the predicate for recovering damages.   We emphatically reject the idea that whenever an employee is faced with “impossible” job demands he or she may retire or resign and then challenge the employer's policies and practices through the singularly inappropriate medium of a tort suit.   Such a rule would invite a flood of litigation and threats of litigation, creating a major new obstacle to efficient management.   It would also threaten to overwhelm labor law as we know it.   Collective bargaining agreements would at best become superfluous.   In a bizarre twist, they could become an actual disadvantage to unionized employees.   Such workers might well find themselves limited to the remedies afforded by federal labor law while their nonunion counterparts, provided they are prepared to quit their jobs, can bring any grievance they have before a jury with vast discretion to find the employer's demands “impossible” or “unrealistic” and to award large sums of money on that basis.

 Plaintiff suggests that even if he was not discharged he may maintain a claim for breach of the implied-in-law covenant of good faith and fair dealing.   Assuming for present purposes that an employer may breach the covenant by actions other than firing the employee (see Garcia v. Rockwell International Corp. (1986) 187 Cal.App.3d 1556, 232 Cal.Rptr. 490 [breach of covenant found in wrongful discipline] ), defendants' supposed conduct here—threatening to put plaintiff into a job which would be “impossible” to perform—does not by itself violate the covenant.   To constitute a breach an act must substantially injure the right of the other party to receive the benefits of the agreement.  (See Commercial Union Assurance Companies v. Safeway Stores, Inc. (1980) 26 Cal.3d 912, 918, 164 Cal.Rptr. 709, 610 P.2d 1038;  Koehrer v. Superior Court, supra, 181 Cal.App.3d 1155, 1170, 226 Cal.Rptr. 820.)   Here defendants did nothing to cause such injury but merely made demands which plaintiff deemed impossible to fulfill.   He might have refused these demands, or might have attempted to comply with them.   In either case he would have continued to receive the benefits of the agreement unless or until defendants discharged him.   Instead he terminated the employment agreement, thus depriving himself of its benefits.   He identified no other conduct by defendants which might constitute a breach of the covenant.   Accordingly the trial court did not err in finding this claim without merit as a matter of law.

III.

DEFENDANTS' CONDUCT WILL NOT SUPPORT A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The final question presented is whether the record raises a triable issue of fact with respect to plaintiff's claim for intentional infliction of emotional distress.   A prima facie case for such a claim requires:  “ ‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.’ ”  (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58, quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296, 131 Cal.Rptr. 547, disapproved on another point in Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 741, 180 Cal.Rptr. 496, 640 P.2d 115.)

 To support a cause of action the defendant's conduct must be “outrageous, i.e., beyond all bounds of decency;  ordinary rude or insulting behavior is not enough to justify an award of damages.”  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 234, p. 2515.)   The conduct must “exceed all bounds of that usually tolerated in a civilized community” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894, quoting Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975, such as to be regarded as “atrocious and utterly intolerable” (Rulon-Miller v. International Business Machines Corp. (1984) 162 Cal.App.3d 241, 254, 208 Cal.Rptr. 524).   It is for the court to determine in the first instance whether the challenged conduct “may reasonably be regarded as so extreme and outrageous as to permit recovery.”  (Rest.2d Torts, § 46, com. h at p. 77;  cited with approval in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, 86 Cal.Rptr. 88, 468 P.2d 216;  see Rulon-Miller, supra, 162 Cal.App.3d at p. 254, 208 Cal.Rptr. 524.)

 Viewed most favorably to plaintiff, defendants' conduct here consisted of (1) abruptly presenting plaintiff with an “ultimatum” concerning his continued employment;  (2) stating or implying that he was not working hard enough and needed to be watched;  (3) making light of his importance to the firm and his longevity on the job;  (4) using offensive (but not directly insulting) language;  and (5) making “impossible” demands.   We hold this conduct insufficient to support a cause of action under the tests set forth above.

It is impossible to catalog all of the varieties of conduct which may support a cause of action for intentional infliction of emotional distress.   In a number of cases arising from employment relationships, however, recovery on that theory has been denied because the conduct in question was not “outrageous” for purposes of the tort.  (See Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 536–537, 151 Cal.Rptr. 828 [numerous acts of harassment including denial of promotion, temporary termination of employment, etc.];  Cornblith v. First Maintenance Supply Co. (1968) 268 Cal.App.2d 564, 565, 74 Cal.Rptr. 216 [instructions to co-workers not to assist plaintiff, intended to cause plaintiff to terminate his employment];  Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808–809, 42 Cal.Rptr. 314 [statements concerning plaintiff's unsuitability for position];  Perati v. Atkinson (1963) 213 Cal.App.2d 472, 474, 28 Cal.Rptr. 898 [allegedly false entries in log concerning plaintiff's noncompliance with order];  Crain v. Burroughs Corp. (C.D.Cal.1983) 560 F.Supp. 849, 853 [probation and discharge allegedly causing humiliation, etc.].)

At the other end of the spectrum, several cases have allowed recovery where the employee-plaintiff was subjected to ethnic epithets or insults of a type widely viewed in modern society as shocking.  (E.g. Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 [“nigger”];  Agarwal v. Johnson, supra, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58 [same];  Contreras v. Crown Zellerbach Corp. (1977) 88 Wash.2d 735, 565 P.2d 1173 [jokes and slurs directed at Mexican-American worker].)   Of course the case before us presents nothing comparable to this conduct.   Notably absent here is any allegation or evidence of peculiar susceptibility on plaintiff's part to emotional distress from conduct of the type in question.   (Compare Alcorn, supra, 2 Cal.3d at pp. 498–499 fns. 3, 4, 86 Cal.Rptr. 88, 468 P.2d 216.)

Also distinguishable are two California cases in which a worker was held to possess a cause of action for intentional infliction of emotional distress based on non-bigoted mistreatment by an employer.   A review of those cases confirms our view that conduct, to be actionable, must be considerably more extreme than that alleged here.   In Wallis v. Superior Court (1984) 160 Cal.App.3d 1109, 207 Cal.Rptr. 123, the complaint charged that the plaintiff's employer, after securing the plaintiff's agreement to voluntarily resign, repudiated its obligation under the agreement to make monthly payments to plaintiff until he reached retirement age.   The plaintiff further alleged that he was financially vulnerable, that the employer knew of his vulnerability, and that the employer had no good reason for its actions and lied about its motives.   The court held these allegations sufficient because they indicated “that the defendant intentionally abused its position of financial control over the plaintiff.”  (Id., p. 1120, 207 Cal.Rptr. 123.)   There is no suggestion of such control here, and no evidence of economic distress.

In Lagies v. Copley (1980) 110 Cal.App.3d 958, 168 Cal.Rptr. 368, the complaint alleged that certain corporate agents and co-workers conspired to inflict emotional distress on the plaintiff, a journalist.   Pursuant to this conspiracy the defendants “blackballed” plaintiff, demoted him, denied him advancement, defamed him, published the identities of his confidential sources, refused to print his stories, denied him television exposure, rendered him a “de facto pariah” in the workplace, and destroyed his credibility as an investigative reporter.  (Id. at p. 964, 168 Cal.Rptr. 368.)   We note that Lagies arose on demurrer and the ultimate issue was whether plaintiff should be allowed to proceed through discovery (and perhaps trial) on these allegations.   Because of the posture of the case the court was faced with conclusive allegations of a conspiracy to not only procure plaintiff's departure from his current job, but to preclude his continued employment anywhere in his chosen profession.   We believe Lagies at most marks the borderline between conduct which may be found “outrageous” and conduct which may not.   The facts before us fall well short of the line thus established.

The trial court did not err in granting summary judgment against plaintiff on the cause of action for intentional infliction of emotional distress.

 In view of our determination of the foregoing issues it is unnecessary to address the other matters raised by the parties.³

The judgment is affirmed.

FOOTNOTES

1.   Plaintiff objected to some of defendants' averments on various grounds.   The trial court apparently did not rule on these objections.   It appears that some of the objections had substance in that certain passages of defendants' declarations appear to be opinion.   However those passages are not material to our analysis, and we need not therefore decide their admissibility.

2.   Doris Duerksen was named as a plaintiff in the original complaint, seeking damages for loss of consortium.   She was not named in the amended complaint and is not a party to this appeal.

3.   Defendants devote considerable energy to an argument that plaintiff's common-law claims are “preempted” by his pursuit of an age discrimination claim.   We do not believe every cause of action which might arise from the termination of employment is automatically barred by the filing of an administrative discrimination claim, the kind of vague pleading of such a claim found in plaintiff's original (unverified) complaint, or the expression of belief by a plaintiff in deposition that defendants were motivated by discriminatory intent.   The precise holding of Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 520, 194 Cal.Rptr. 520, on which defendants rely, is that if a plaintiff sues on the sole ground that the discharge was motivated by discriminatory intent, the plaintiff's remedies are limited to those afforded by the age discrimination statutes.   The case does not hold that the merest whisper of “discrimination” forever and completely bars pursuit of other claims.

CHANNELL, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.