Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS01540
HULL, J.Plaintiff, Craig Horangic, appeals from a judgment of dismissal following an order granting summary judgment to defendants Ebara Technologies Incorporated (Ebara) and Raymond Campbell (Campbell). Plaintiff contends defendants are not entitled to summary judgment because material issues of fact exist on his wrongful termination and related claims. We agree and reverse the judgment.
Facts and Proceedings
Because this matter comes to us following a grant of summary judgment to defendants, we construe the evidence in the light most favorable to plaintiff. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
Ebara is a manufacturer of vacuum pumps and advanced technology products used in clean room and semi-conductor manufacturing environments. Plaintiff began working for Ebara on August 31, 1998, as director of human resources. He was later promoted to vice president of human resources. Plaintiff’s initial supervisor was John Aldeborgh, Ebara’s Chief Operating Officer. After Aldeborgh left the company in March 2002, Campbell, Ebara’s Chief Financial Officer, became his supervisor. During his tenure with Ebara, plaintiff received favorable performance reviews.
In 2001, the semiconductor industry was experiencing a downward trend. This trend was beginning to have a significant revenue impact on Ebara and its parent company in Japan. As a result of the low revenues, the Board of Directors decided to initiate aggressive expense controls and to take immediate steps toward improving Ebara’s financial condition.
In January 2002, Aldeborgh and Campbell decided to cancel Ebara’s executive bonus program and to withhold 2001 bonuses that would otherwise have been paid. At the time, Aldeborgh asked plaintiff to investigate whether the cancellation of bonuses was legally defensible. Plaintiff consulted with Ebara’s employment attorney, David Tyra, and concluded “there was some risk related to certain employees filing claims,” but the action was legal. However, plaintiff warned Aldeborgh that cancellation of 2001 bonuses posed some risk of liability to the company.
One employee, Chris Latam, filed a claim with the Department of Labor Standards Enforcement (DLSE) for payment of his 2001 bonus. On February 13, 2003, Ebara received the decision of the DLSE, ordering the company to pay Latam $19,183.15, which included $7,312.50 for his 2001 bonus.
In the wake of the Latam decision, Campbell directed plaintiff to prepare a more complete analysis of the company’s exposure to similar claims. Plaintiff did so and placed the employees who might be eligible for bonuses into several categories based on the level of risk to the company. Plaintiff, Campbell and Tyra discussed paying some bonuses and Campbell “was pushing” that approach. Tyra remained “comfortable” with the original decision to pay no bonuses. Campbell’s discussions appeared to center less on whether the employees in general would be entitled to a bonus and more on whether he, Campbell, would be entitled to a bonus. Plaintiff had determined that Campbell might be entitled to a bonus of $32,000. “Campbell began pressuring [plaintiff] for more information regarding his bonus.” Plaintiff felt conflicted because he was Campbell’s subordinate but was tasked with enforcing Ebara’s decision not to pay bonuses.
In the fall of 2002, Anna Vasquez, a payroll accountant for Ebara, informed her supervisor, Stan Corum, that she was concerned the company was underpaying overtime because of an error in computing base pay. Shortly thereafter, Vasquez prepared an analysis that projected underpayment of overtime for 2002 in the amount of over $20,000. She explained this in a meeting with Corum, Campbell and plaintiff. Later, Vasquez revised her projection and computed underpayment for 2000, 2001 and 2002 in the amounts of $10,389.77, $12,548.75 and $5,813.34 respectively. She provided this information to Campbell.
Plaintiff undertook to review the overtime issue with Tyra and reported to Campbell that Vasquez was correct in her calculation of the company’s overtime obligation. Campbell nevertheless directed Vasquez to correct the calculation only for future overtime obligations.
Shortly after Campbell decided Ebara would not pay retroactive overtime and continuing until plaintiff’s employment was terminated, plaintiff’s relationship with Campbell “became very contentious because of [their] conflicting thoughts on the non-payment of overtime and payment of the 2001 bonuses.”
Because Campbell continued to advocate retroactive payment of bonuses but not overtime, plaintiff “felt [he] had no choice but to raise the issue with counsel for Ebara.” Plaintiff hoped the information would get to the executive officers of Ebara’s parent company and apprise them of the risks to the company. On April 11, 2003, plaintiff contacted Ebara’s counsel, Mike Moyle, “and informed him that [he] wanted to speak with him regarding how Ebara management was handling employee relations and liabilities, with specific regard to the bonus and overtime issues.” They agreed to meet on April 18, 2003.
On April 18, 2003, plaintiff met with Moyle and Michael Kelly, another Ebara attorney, regarding an April 17 memorandum he had prepared. In that memo, plaintiff informed counsel about various issues, including his dispute with Campbell over payment of bonuses and overtime. When Kelly learned Campbell had decided not to pay retroactive overtime, “he became visibly upset, excited, and agitated.” Kelly indicated “Ebara was making an illegal decision, that other companies were being fined regularly for not paying overtime, and that this issue would expose Ebara to a great deal of liability.”
On the same day plaintiff first contacted Ebara’s counsel about his concerns, Kristi Cappelletti-Matthews, a senior human resources generalist for Ebara, contacted Campbell to discuss her concerns regarding plaintiff. After an e-mail exchange, Cappelletti-Matthews spoke on the phone with Campbell and followed up with a written list of concerns regarding plaintiff. Among the “Primary Concerns” identified were: “Now that I am becoming more involved with different meetings and different projects with a variety of managers I am hearing more and more comments and blatant statements regarding the complete lack of trust and disrespect towards [plaintiff].” “Employees do not even like to come into HR because they do not want to deal with [plaintiff].” Among the “Other Issues” identified in the memorandum were: “Main issue which feeds so many of the problems is the lack of memory and the procrastination on so many items with [plaintiff].” “Very little autonomy is given to me and to us in the department.” “When you try to discuss some of these issues with him he then retaliates a day or so later.” “It is my opinion that he does not respect women and since there are 3 women reporting to him I do feel that he plays on this.”
On April 15, Campbell sent Moyle an e-mail regarding the complaints by Cappelletti-Matthews.
Two weeks after plaintiff’s meeting with Ebara’s counsel, Ebara contacted Speer Associates, an employment law and employment relations counseling firm. Ebara retained Rebecca Speer “‘to seek an understanding of the nature and sources of concerns’ regarding matters affecting human resources staff who had voiced concerns about the Human Resources Department.” Speer was also engaged to “provide information that could help Ebara take steps to improve problems affecting the Human Resources Department.”
Speer conducted an investigation and, on June 24, 2003, submitted a 44-page report of her findings. The report described “a significant family-unfriendly approach by [plaintiff].” It also described a differing approach by plaintiff toward male and female subordinates with “family” issues and a bias against women in the workplace. In addition, the report depicted plaintiff, among other things, as unresponsive, forgetful, lacking in leadership, and unprofessional. Speer reported that the problems identified in her report “have broadly affected the HR department, both in terms of its internal functioning, and with respect to its role within the larger organization. Of the eleven employees interviewed, six employees reported strongly negative views of [plaintiff]; three employees reported a largely negative experience with him; two employees reported neutral or positive accounts.” (Italics omitted.)
On July 28, 2003, Campbell informed plaintiff that the position of vice president of human resources was being eliminated and his employment was being terminated. In his termination letter to plaintiff, Campbell mentioned Ebara’s reduction in workforce and financial difficulties. He also mentioned the Speer report and her findings that plaintiff was responsible for creating barriers between the human resources department and the rest of the company and had demonstrated family-unfriendly bias.
Plaintiff initiated this action against Ebara and Campbell alleging six causes of action: (1) retaliation; (2) wrongful termination in violation of public policy; (3) intentional infliction of emotional distress; (4) negligent supervision; (5) negligence; and (6) unfair business practice.
In the first cause of action, plaintiff alleged he engaged in legally protected activity, to wit, “reporting violations of the overtime wage law to management.” Plaintiff further alleged he was terminated in retaliation for “reporting wage and hour violations to management.”
In the second cause of action, plaintiff alleged defendants violated the public policy in favor of “reporting violations of the overtime wage law to management and prohibiting employer retaliation.”
In the third cause of action, plaintiff alleged he was subjected to extreme and outrageous conduct when defendant terminated him and accused him “of having a bias against women or individuals with family issues” and having “‘a perceived lack of responsiveness, disorganization and weak time management.’”
Plaintiff has abandoned his fourth and fifth causes of action and, therefore, they need not concern us.
In the sixth cause of action, plaintiff alleged defendants engaged in an unfair business practice by retaliating against him for voicing his concern that Ebara was violating wage and hour laws regarding the payment of overtime.
Defendants moved for summary judgment or, in the alternative, summary adjudication of issues. The trial court granted the motion for summary judgment. On the first cause of action, the court concluded plaintiff presented a prima facie case of retaliation, defendants presented evidence of non-retaliatory reasons for the termination, i.e., downsizing and the Speer report, but plaintiff failed to present substantial evidence that defendants’ stated reasons were pretextual. The court further concluded the remaining causes of action were dependent on the first cause of action. The court also found there was no evidence of outrageous conduct by defendants sufficient to take plaintiff’s intentional infliction claim outside workers’ compensation exclusivity.
Discussion
I
Introduction
A defendant moving for summary judgment must establish as a matter of law that none of the plaintiff’s asserted causes of action can prevail. (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107.) Under “[t]he historic paradigm for our de novo review of a motion for summary judgment . . . [w]e first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party’s prima facie case.” (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735.)
II
Retaliation
In the first cause of action, plaintiff alleges defendants retaliated against him for engaging in protected activity. The alleged protected activity was reporting to Campbell and Ebara’s counsel a violation of overtime wage law. The alleged retaliation was termination of plaintiff’s employment.
Plaintiff argues on appeal that Campbell also retaliated against him by harassing him after he first objected to the decision not to pay the overtime adjustment retroactively. However, plaintiff did not allege such retaliation in his complaint and did not raise this argument below. As a general matter, a defendant moving for summary judgment need only negate allegations contained in the complaint. (See Tobin v. Stevens (1988) 204 Cal.App.3d 945, 953; Orange County Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113.) Although a party may raise other matters in opposition to a motion for summary judgment and seek leave to amend the complaint accordingly (see Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302), plaintiff failed to do so here. Therefore, the argument is forfeited for purposes of appeal.
The parties agree, and we accept for purposes of this appeal, that the legal framework for analyzing plaintiff’s claim for retaliation is that applicable to a claim under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). In order to establish a prima facie claim of retaliation under the FEHA, the plaintiff must show: (1) he engaged in a protected activity, (2) he was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.)
The trial court concluded plaintiff satisfied the first step in the foregoing process by presenting sufficient evidence to establish a prima facie case of retaliation. On the question whether plaintiff engaged in a protected activity, defendants apparently concede that reporting to management a violation of overtime wage law is a protected activity for purposes of plaintiff’s retaliation claim. In their motion below, defendants did not challenge whether this was a protected activity but instead concentrated on proving that plaintiff had not, in fact, made such a report. They argued plaintiff’s April 17 memorandum to counsel may have mentioned the overtime issue, but his concern was not the violation of overtime laws but Campbell’s different treatment of the overtime and bonus issues. According to defendants, plaintiff “felt Campbell was revisiting the decision not to pay 2001 bonuses because he might benefit personally.” Defendants argued: “To credit Plaintiff with the status of having engaged in the protected activity of ‘reporting violations of the overtime law to management’ simply because he had conversations in the course of his employment regarding strategies for complying with those laws, would strip this element of retaliation claims of any meaning.” Defendants repeat these arguments on appeal.
The trial court disagreed with defendants and concluded the April 17 memorandum may be interpreted “generous[ly]” as protected activity. Among other things, that memorandum stated: “In the late fall of 2002, the [Ebara] payroll accountant became suspicious that she was miscalculating overtime pay. The potential miscalculation stemmed from the fact that the company was failing to include supplemental pay such as on-call pay in the determination of base pay . . . . [¶] Both the payroll accountant and HR investigated the issue and it appeared that [Ebara] had indeed failed to include this supplemental pay in base pay, thereby adversely effecting [sic] overtime pay for some period of time. . . . It was our understanding that this potential liability could be retroactively applied for up to three years and that penalties could potentially be imposed. [Campbell] made the decision to not fully characterize the exact exposure due to the significant effort an analysis would require. . . . Eventually, I explained to [Campbell] that it did not appear that there was any available loophole and that this particular pay calculation issue was exposing a large number of companies to liability. Subsequently, [Campbell] arranged a meeting between himself, the payroll accountant, and I. During this meeting, [Campbell] informed us that he had decided that [Ebara] would correct the practice going forward; however, we would not pay the retrospective overtime. . . .”
It may be true, as defendants assert, that plaintiff’s primary purpose in submitting his memorandum to counsel was to protest Campbell’s differing treatment of the overtime and bonus issues. However, the fact remains the memorandum also alerted counsel to Campbell’s decision not to correct overtime pay retroactively. This was not merely a “conversation[] in the course of [plaintiff’s] employment regarding strategies for complying with [the overtime] laws,” as defendants suggest. Plaintiff explained he went to counsel with this information hoping it would be relayed to executives at the parent company in Japan. According to plaintiff, counsel became “visibly upset, excited, and agitated” upon receipt of this news and indicated Ebara was making an “illegal decision, that other companies were being fined regularly for not paying overtime, and that this issue would expose Ebara to a great deal of liability.”
Regarding the other elements of a prima facie case, there is no dispute that termination of plaintiff’s employment was an adverse employment action. The trial court also found the timing of plaintiff’s termination, which came a little more than three months after his complaint to counsel, was sufficient to establish an issue of fact on causation.
Moving on to the second phase of its analysis, the trial court concluded defendants presented two legitimate, nonretaliatory reasons for plaintiff’s discharge--downsizing and the Speer report. However, while downsizing may have been the reason for eliminating the position of vice president of human resources, it apparently was not the reason why plaintiff was not offered a lower position, such as manager of human resources. In plaintiff’s termination letter, Campbell indicated they had considered offering plaintiff the position of manager of human resources but concluded the Speer report revealed he was not suited for that position. Thus, defendants relied on the Speer report alone to justify plaintiff’s termination.
Plaintiff contends he presented sufficient evidence to establish an issue of fact on whether the Speer report was a pretext for retaliation. He argues the timing of Campbell’s solicitation of a complaint from Cappelletti-Matthews, Campbell’s uncharacteristically swift initiation of an outside investigation of that complaint, and Campbell’s “malevolence and harassment” of plaintiff all point to retaliation as the true reason for his termination.
A plaintiff may establish an employer’s stated reason for an adverse employment action is a pretext “‘“either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) “Pretext may also be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479.)
As we shall explain, we agree with plaintiff that evidence regarding the timing of the adverse employment action and Campbell’s animus toward him support a finding of pretext. We also find pretext is supported by evidence of plaintiff’s prior performance reviews and Campbell’s failure to investigate earlier complaints against him.
On the issue of timing, it is interesting to note that plaintiff does not claim the timing of his termination, which occurred a little more than three months after his report of the overtime issue to counsel, supports a finding of pretext. This suggests plaintiff recognizes the findings in the Speer report, viewed in isolation, may support a decision not to retain him as the manager of human resources. Nevertheless, plaintiff asserts the circumstances surrounding initiation of the Speer investigation suggest it was commenced for retaliatory reasons. In other words, even if the Speer findings supported his termination, the investigation never would have been initiated and, hence, the findings never would have been made if defendants had not sought to retaliate against him.
The timing of the Cappelletti-Matthews complaint is not disputed. It came the same day plaintiff notified counsel that he wanted to discuss employee relations matters. Campbell responded by directing Cappelletti-Matthews to put her concerns in writing, which she did the same day.
The record is uncertain as to when and under what circumstances the Speer investigation was initiated. In his verified complaint, plaintiff alleges Speer was contacted two weeks after plaintiff’s April 18 meeting with counsel. In her June 24 report, Speer indicated her “assessment” was commenced in May. However, in its tentative ruling granting summary judgment, the trial court indicated Speer was first contacted on April 15, before plaintiff’s April 18 report.
The parties cite to no evidence, and we have found none on our own, establishing that Speer was first contacted on April 15. In a June 4, 2003, e-mail message to Speer, Campbell indicated: “More to the matter of what prompted the investigation and the timing surrounding it. This message, dated April 11th--prior to [plaintiff’s] April 18th meeting, was the basis for my April 15th e-mail to Mike Moyle.” Trailing this message were the original e-mail messages between Cappelletti-Matthews and Campbell on April 11. This evidence suggests Campbell may have contacted counsel about the Cappelletti complaint on April 15. However, there is nothing to suggest he also contacted Speer on this date.
On a motion for summary judgment, we consider both the evidence presented and the reasonable inferences that may be drawn from that evidence in the light most favorable to the opposing party. (Code Civ. Proc., § 437c, subd. (c).)
For purposes of defendant’s summary judgment motion, we must accept that Campbell first contacted Speer about two weeks after plaintiff’s April 18 meeting with Ebara’s attorneys. The timing of the investigation is a factor that suggests, but does not compel, a finding of retaliation. Ultimately, it will not be enough for plaintiff to prove merely that defendants initiated an investigation of plaintiff shortly after plaintiff’s notification to counsel of the overtime issue. After all, this was also the same time Cappelletti-Matthews lodged her complaint against plaintiff and there is no evidence on this motion that Campbell solicited that complaint.
In addition, however, on the issue of whether the initiation of the Speer report and defendants’ reliance on the report was a pretext for what was in fact a retaliatory dismissal, plaintiff also presented evidence that, during the months between his first complaint to Campbell about not paying the overtime adjustment retroactively and plaintiff’s termination, Campbell had been treating plaintiff badly. According to plaintiff: “There’s a long chain of e-mails between myself and Mr. Campbell on every conceivable issue. Mr. Campbell would tell me to do this and I would do it, and then he would reprimand me for having done that.” Plaintiff continued: “There were instances of gee, you need to promote this policy, make this happen. And then I would follow those instructions and then be asked why I had done that when I followed the instructions word for word. A lot of harsh language, a lot of accusations, a lot of sarcasm. The e-mail record would bear that out. . . .”
Defendants suggest the court will search the record in vain for any e-mail messages to support plaintiff’s assertions. However, for purposes of defendants’ summary judgment motion, we accept plaintiff’s factual statements absent contrary evidence in the record. The absence of copies of e-mail messages in the record does not prove they do not exist.
Another factor supporting plaintiff’s pretext argument is the content of the Speer report itself. Despite Speer’s statement at the beginning of the report that concerns articulated by both Cappelletti-Matthews and plaintiff “led to a desire by Ebara to conduct an assessment aimed at determining the nature and source of concerns voiced by [plaintiff] and the HR staff, and to provide information that would help Ebara take steps to improve matters affecting the HR department,” Speer’s discussion of her individual interviews with witnesses other than plaintiff suggest her true intent was to determine the nature of problems others were having with plaintiff. In other words, the investigation was not so much about problems in the human resources department as about plaintiff. And while the fact the investigation may have targeted plaintiff does not prove it was for a retaliatory reason, it nevertheless supports such an inference.
Finally, plaintiff presented evidence in opposition to defendants’ motion for summary judgment suggesting that Campbell had received earlier complaints about him but had done very little about them. Campbell testified the first such complaint was from a female administrative assistant of Aldeborgh named Syndel. Syndel complained that plaintiff had been looking at her in an objectionable way. Aldeborgh convened a meeting with plaintiff and Campbell to discuss it. Ebara conducted an internal investigation and prepared a report concluding there was no basis for the complaint.
The next complaint came from Bayless, who informed Campbell of “a number of things that--of behaviors of [plaintiff] that were causing her to be frustrated in her job.” These included “snide remarks” about her family obligations and plaintiff being a bottleneck to getting work done. Campbell testified he did not investigate this complaint. He indicated Bayless asked that he not do anything about it, because she feared retaliation. However, Campbell could not explain why, if Bayless did not want him to do anything, she went to the trouble of reporting the matter at all.
Later, in a meeting attended by Campbell, Bayless, and Shelfer, Bayless again complained about plaintiff. Shelfer complained that plaintiff had become a bottleneck and was not family-friendly. Campbell could not recall if he followed up on this meeting with any investigation. He did not investigate Bayless’s concerns about retaliation by plaintiff.
Later, according to Campbell, he attended a meeting with Bayless, Shelfer and Cappelletti-Matthews. Campbell testified he did not investigate the complaints of these three employees except to have a conversation with plaintiff in which he expressed his opinion that plaintiff was showing a bias against women.
Campbell also recalled a complaint from a receptionist about a comment made by plaintiff. He did not investigate that complaint either.
The foregoing evidence reveals that the only investigation of complaints against plaintiff before the Speer investigation was that initiated by Aldeborgh.
In rejecting plaintiff’s showing of pretext, the trial court explained: “[P]laintiff argues that Campbell had received complaints from several employees about plaintiff’s bias against women as far back as October 2002. Yet Campbell waited until April 2003, after plaintiff had begun to warn about the illegal failure to pay overtime, to initiate an investigation. Defendants do not dispute that Campbell did not hire an investigator until he contacted Speer on April 15, 2003. But Campbell did discuss the complaints with plaintiff after ‘meeting with the three of those folks,’ before initiating a formal investigation. Further, according to Campbell, it was the cumulative effect of the complaints that eventually lead him ‘to the point where it may be been [sic] a legal problem.’”
It may well be true, as the trial court indicated, that Campbell initiated the Speer report because of the cumulative impact of the complaints since October 2002. However, on a motion for summary judgment, it is not the function of the trial court to accept at face value the self-serving assertions of a defendant regarding his motivation for potentially retaliatory conduct. Furthermore, Campbell had testified in deposition that he met with Bayless, Cappelletti-Matthews, and Shelfer on one occasion to discuss their complaints about plaintiff. However, according to plaintiff, Cappelletti-Matthews and Shelfer were not employed by Ebara at the same time and so could not have attended a meeting together.
As presented by the parties, the issue before the trial court, and this court, is whether plaintiff presented substantial evidence from which a reasonable trier of fact could conclude Campbell initiated the Speer investigation in retaliation for plaintiff’s complaints about the overtime issue. In doing so, the court must view the evidence in the light most favorable to the plaintiff, not the defendant.
In our view, plaintiff satisfied that burden. On the evidence presented, a reasonable jury could conclude Campbell initiated the Speer investigation because he learned that plaintiff was escalating his complaints about the overtime issue and Campbell decided to get rid of an irritant. A reasonable jury could also conclude that the purpose of the report was to make a case against plaintiff in order to justify his termination. These may not be the only inferences that may be drawn from the evidence, or even the most likely, but they are permissible ones. Therefore, plaintiff established the existence of an issue of fact on the issue of pretext, and defendants were not entitled to summary adjudication on the retaliation claim.
III
Wrongful Termination
Having determined material issues of fact remain on plaintiff’s claim for retaliation, we necessarily conclude the trial court erred in granting defendants’ motion for summary judgment. However, because defendants also sought summary adjudication of each cause of action in the complaint, we shall address plaintiff’s remaining claims as well, with the exception of the fourth and fifth causes of action, which plaintiff has abandoned.
The second cause of action alleges wrongful termination in violation of public policy. “Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. [Citation.] A policy is ‘fundamental’ when it is ‘carefully tethered’ to a policy ‘delineated in constitutional or statutory provisions’ [citation], involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute [citation], and is ‘“well established”’ and ‘sufficiently clear’ to the employer at the time of the discharge [citation]. Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. . . .” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147.) Prompt payment of wages due an employee is a fundamental public policy for purposes of a wrongful termination claim. (Id. at pp. 1147, 1150.)
For the same reasons we conclude plaintiff has satisfied his burden of establishing a material issue of fact on his retaliation claim, we conclude plaintiff has a right to go forward on his wrongful termination claim. Both claims are based on the same conduct--termination in response to reporting the overtime issue to management.
IV
Intentional Infliction of Emotional Distress
In the third cause of action, plaintiff alleges defendants engaged in “extreme and outrageous conduct” designed to cause him severe emotional distress. The alleged conduct was terminating plaintiff, “accusing him of having a bias against women or individuals with family issues,” and “causing [him] to undergo the public humiliation of being accused of having ‘a perceived lack of responsiveness, disorganization and weak time management.’”
The trial court granted summary adjudication on this claim, concluding the alleged conduct fell within the exclusive remedy of workers’ compensation and, in any event, was not sufficiently outrageous.
Plaintiff contends the trial court erred, because a termination in violation of public policy is not a normal part of the employment bargain and therefore does not fall within the exclusive coverage of workers’ compensation. We agree.
Labor Code “[s]ection 3601 provide[s] that where the ‘conditions of compensation exist,’ the right to recover compensation is ‘the exclusive remedy’ for injury or death of an employee against the employer or coemployee acting within the scope of employment . . . .” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 154.) “Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers’ compensation law.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352.) Injuries arising from termination of employment are also considered a normal part of employment and are subject to workers’ compensation exclusivity. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 19-20.)
However, in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6, the State Supreme Court concluded that, when a termination of employment violates a fundamental policy of the state, that termination cannot be considered a normal part of employment and a claim based on that termination is not barred by Labor Code section 3601. (Gantt, supra, at p. 1100; see also Fermino v. Fedco (1994) 7 Cal.4th 701, 714-715; Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.)
Defendants contend that even if plaintiff’s intentional infliction claim is not barred by workers’ compensation exclusivity, the trial court was correct in concluding defendants’ actions were not sufficiently outrageous to support such a claim. Intentional infliction of emotional distress 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, disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) “To be ‘outrageous,’ conduct ‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)
We agree with defendants that much of the conduct alleged by plaintiff, such as accusing him of being biased against women or accusing him of being unresponsive and disorganized, are not outrageous. For that matter, they are also a normal part of the employment bargain and therefore barred by workers’ compensation exclusivity. But plaintiff does not rely on those claims to support his third cause of action. Rather, his argument on appeal is limited to a claim that being terminated in violation of public policy amounts to intentional infliction of emotional distress. According to plaintiff, a termination in violation of public policy is sufficiently outrageous to support an intentional infliction claim. Defendants do not contend otherwise.
Inasmuch as we have concluded material issues of fact remain for trial on plaintiff’s claim for wrongful termination in violation of public policy, we necessarily conclude defendants were not entitled to summary adjudication on plaintiff’s claim for intentional infliction of emotional distress.
V
Unfair Business Practice
In his sixth cause of action, plaintiff alleges defendants engaged in an unfair business practice when they terminated him for voicing concerns that Ebara was violating state law regarding the payment of overtime.
Business and Professions Code section 17200 defines unfair competition as including “any unlawful, unfair or fraudulent business act or practice.” “Unfair competition encompasses anything that can properly be called a business practice which at the same time is forbidden by law. [Citation.] An employer’s business practices concerning its employees are within the scope of [Business and Professions Code] section 17200.” (Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1052.) “For example, where the employer’s policy or practice is forbidden by or found to violate the Labor Code, it may also be held to constitute an ‘unlawful business practice’ . . . .” (Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 907.)
The parties contend plaintiff’s unfair business practice claim lives or dies with his retaliation and wrongful termination claims. Therefore, inasmuch as we have concluded plaintiff’s first two causes of action remain viable, his sixth cause of action also was not subject to summary adjudication.
VI
Campbell
Plaintiff contends material issues of fact remain regarding Campbell’s personal liability on plaintiff’s various causes of action. Plaintiff acknowledges that personnel actions by supervisors are not normally actionable. Nevertheless, he argues, supervisors may be held personally liable under the FEHA when their actions amount to harassment. Plaintiff argues Campbell engaged in a pattern of harassment that included “constant belittling and hostility toward him,” “solicitation of complaints against [plaintiff] and ultimately the instigation of the Speer investigation,” and use of the Speer report as a pretext for terminating him.
Defendants counter that the FEHA distinguishes between actions for discrimination and actions for harassment. According to defendants, an individual supervisor may be held liable only for the latter, and in this case plaintiff has not alleged a claim for harassment.
In his reply brief, plaintiff changes course and argues that Campbell may be held personally liable because his claims are based on retaliation, not harassment. For reasons of fairness to the opposing party, we do not normally consider arguments raised for the first time in a reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) However, because this argument was also raised below, and therefore it is not new to defendants, we shall consider it here.
Defendants are correct that plaintiff has not alleged a claim for harassment under the FEHA. However, he has alleged a claim for retaliation. In fact, each of plaintiff’s causes of action is based on his claim that defendants terminated him in retaliation for engaging in a protected activity.
Government Code section 12940, subdivision (h), makes it an unlawful employment practice “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden [by the FEHA] . . . .” (Italics added.) Government Code section 12925, subdivision (d), defines “person” within the meaning of this provision as one or more individuals, and Government Code section 12926, subdivision (r), defines “supervisor” as an individual. Based on the foregoing statutory language, California courts have held individual supervisors liable for employment actions that amount to unlawful retaliation. (See, e.g., Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1236-1237; Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240-1242.)
Because each of plaintiff’s causes of action is based on his claim of termination in retaliation for engaging in a protected activity, Campbell may be held personally liable.
Disposition
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its order granting summary judgment to defendants and to enter a new order denying summary judgment but granting summary adjudication on plaintiff’s fourth and fifth causes of action. Plaintiff is awarded his costs on appeal.
We concur: DAVIS, Acting P.J., RAYE, J.