Opinion
B163640
7-31-2003
RHONDA BELCHER, Plaintiff and Appellant, v. TRIBUNE COMPANY et al., Defendants and Respondents.
Law Offices of Stanley R. Raskin and Stanley R. Raskin for Plaintiff and Appellant. Seyfarth Shaw, David A. Kadue and Ann Haley Fromholz for Defendants and Respondents.
INTRODUCTION
Plaintiff Rhonda Belcher appeals from a summary judgment entered in favor of defendants Tribune Company and Los Angeles Times Communications LLC on plaintiffs allegations of wrongful discharge from employment in violation of public policy, breach of an implied contract not to discharge except for good cause and disability discrimination. Plaintiff challenges the judgment on the grounds that the doctrine of laches barred her discharge, she could not be discharged for conduct occurring away from the employers premises during off-duty hours and there are triable issues of material fact as to whether she was discharged from her employment in violation of public policy, in breach of an implied contract that she be discharged solely for good cause and as a pretext to cover disability discrimination. Inasmuch as we discern no merit in plaintiffs challenges, we affirm the judgment.
FACT
Tribune Company is an indirect parent of Los Angeles Times Communications LLC, the entity that published The Times. Tribune Company purchased The Times in March 2000.
The Times hired plaintiff as a clerk in July 1986. She became a sales intern in March 1988 and an intermediate account executive at the Orange County office of The Times in June 1989. Six months later, she advanced to the position of retail advertising account executive. In March 1998, plaintiffs title changed to outside regional retail sales representative. In that position, she sold newspaper advertising for The Times. She retained that title until her employment terminated in September 2000.
When plaintiff first applied for a position with The Times, she signed an employment application. Immediately above her signature is a paragraph which states, "In consideration of my employment, I agree to conform to the rules, regulations and policies of the Company. I understand and agree that if I am hired, my employment and compensation can be terminated, with or without cause, and with or without notice, at any time at the option of either the Company or myself. I understand that no supervisor or representative of the Company other than the president or vice president of the Company, has any authority to enter into any arrangement for employment for any specified period of time, or to make any agreement contrary to the foregoing."
Plaintiff also was subject to the terms of The Times Employee Handbook throughout the period of her employment. The second paragraph on page 22 of the 1999 handbook is entitled "Employment-at-Will." The paragraph states, "The employment relationship between you and The Times is at-will. While it is hoped that your employment relationship with The Times will be mutually rewarding and long term, either you or The Times may terminate this relationship at any time, with or without cause or notice. Only an officer of The Times has the authority to enter into any agreement for employment for any specified period of time or to make any promises or commitments contrary to the foregoing. Any such agreement must be in writing and signed by an officer of The Times to be enforceable." Earlier versions of the handbook, published in 1986 and 1990, contain closely similar language.
In the Performance Management section, the 1999 handbook provides guidance for career development, explains what follows when performance or conduct fails to meet company standards and provides a non-exhaustive list of conduct that can lead to termination without a warning. Immediately following this information is a paragraph that states, "The employment relationship is based on the mutual consent of the employee and The Times. Accordingly, either the employee or The Times can terminate the employment relationship at will, for any reason or no reason, with or without cause or advance notice. Nothing in this Performance Management section changes the at-will nature of the employment relationship."
In the late night hours of Friday, June 6, 1997, plaintiff became involved in an altercation at Panama Joes, a bar in Long Beach, after becoming intoxicated. She assaulted the bartender and patrons. Long Beach Police Officer Galen Carroll arrived at Panama Joes in response to a telephone call. He arrested plaintiff for public drunkenness. Before departing for the police station with plaintiff in the back of his patrol car, Officer Carroll logged his time and location with the police dispatcher. During the trip, plaintiff began talking to Officer Carroll. He activated his pocket tape recorder to preserve her statements.
Plaintiff told Officer Carroll, among other things, that she was "an L.A. Times executive." She said he had "made a big, bad move," and she was "going to write a story about him." She mentioned someone else who "works for the L.A. Times," and said she was "going to tell him you raped me on the way here. Guess what? Were really going to have fun baby." When Officer Carroll said, "What, make up stuff and lie," plaintiff responded, "Oh, yes, I will."
Plaintiff later told coworkers and members of the Human Resources Department that Officer Carroll had beaten and raped her. She spread this tale "far and wide." She did not tell her employer about the threats she had made to Officer Carroll, however.
In March 1998, plaintiff sued Officer Carroll for battery, alleging that he had beaten and raped her. He counter-sued for defamation. Officer Carroll deposed plaintiffs supervisor, Gerald ODonnell (ODonnell) in June 1999. During his deposition, ODonnell heard the tape recording Officer Carroll had made following plaintiffs arrest. At the time, ODonnell was under the impression that a police officer had beaten plaintiff. After his deposition, plaintiff told ODonnell that the recording had been altered so that it was not an accurate reflection of what had transpired. She said it was only one side of the story. Giving plaintiff the benefit of the doubt while litigation was pending, ODonnell took no action at that time.
The trial of plaintiffs complaint and Officer Carrolls cross-complaint commenced on August 2, 2000 and ended on August 16, 2000. The jury returned a 12-0 verdict in favor of Officer Carroll and against plaintiff, and awarded Officer Carroll $ 100,000 in general damages and $ 250,000 in punitive damages. After plaintiff lost her lawsuit in August 2000, ODonnell thought it appropriate that The Times discharge plaintiff from her employment. He spoke to his superiors immediately after the jury delivered its verdict.
On August 16, 2000, before the jury returned its verdict, Ron Fineman (Fineman) reported on the trial in his online column, "On The Record." Fineman reported some of the tape-recorded statements plaintiff had made to Officer Carroll, such as that she was "an LA Times executive," that she was "going to write a story about you. I want your [expletive] name, you [expletive] skinhead," and that someone else "works for the LA Times, and Im going to tell him you raped me on the way here." Fineman also reported the following statements: "When I get through with this [expletive], hes going to be so [expletive] fired. He wont even know his name. He wont know up and down Broadway. . . . He tried to stick his dick in my mouth all the way here . . . ." Fineman additionally reported plaintiffs admission at trial, under oath, that she would lie when it suited her purpose.
On August 16, 2000, Cindy Chrispell (Chrispell), the senior human resources consultant at The Times in Orange County, learned of the Fineman column. To investigate the threats reported in Finemans column, Chrispell interviewed plaintiff, who admitted she had told Officer Carroll that she was an executive with The Times, she was going to write a story about him in The Times and she was going to say that Officer Carroll had raped her. Plaintiff told Chrispell that Officer Carroll had beaten and raped her. She said she had made the threats in an attempt to protect herself from rape. Chrispell told plaintiff that threatening editorial coverage in The Times was very serious and warranted discipline, up to and including termination of employment.
After the press reported the verdicts against plaintiff a few days later, Chrispell again interviewed her. Plaintiff once more admitted telling Officer Carroll that she was going to write a story in The Times that he had raped her. She continued to insist that she had done so in self defense, to protect herself from bodily harm. Chrispell consulted with Beverly Dreher (Dreher), the vice president of employee relations and development. Inasmuch as plaintiff said she made the threats in self defense, to ward off a rape, Chrispell and Dreher saw this as a potentially mitigating factor. They consequently decided to give plaintiff a final written warning rather than terminate her employment.
On August 24, 2000, Chrispell and Gregg Bertness (Bertness), who directed plaintiffs department, gave plaintiff the final written warning. They informed her that threats to influence the content of the newspaper ordinarily would result in discharge but because plaintiff claimed to have made the threats in self defense, thus suggesting extenuating circumstances, they would not terminate her employment unless she made a similar threat in the future.
On September 5, 2000, a local television station, KNBC, ran a feature story on plaintiffs lawsuit during the local news program. The story provided a detailed account of plaintiffs arrest. It also included portions of the tape recording Officer Carroll had made following plaintiffs arrest. The excerpts included plaintiffs statement that she was "an LA Times executive," and she was "going to write a story about you," someone else "works for the LA Times . . . and Im going to tell him you raped me on the way here." The excerpts also included plaintiffs statements that she worked for "The Los Angeles Times. Youre going to be on the front page of the paper as soon as Im finished with this," and "I run the place."
The recording played during the KNBC broadcast makes clear that Officer Carroll was driving when plaintiff made these threats rather than beating or raping her. KNBC also reported plaintiffs tape recorded statement to a police officer on the morning after her arrest that she had not made an allegation of rape but rather had "said it looked like I had been raped or something. I said, but I wasnt. So dont make a big deal about it."
KNBC further reported that plaintiff never filed rape charges and an internal police department investigation had cleared Officer Carroll of any wrongdoing. KNBC delineated Officer Carrolls successful defamation claim against plaintiff and her unsuccessful claim against him for battery. KNBC also quoted plaintiffs trial testimony that she would lie whenever it suited her purpose.
The KNBC report came to the attention of three senior managers of The Times, John McKeon (McKeon), the senior vice president of advertising; Luis Lewin (Lewin), the acting senior vice president of human resources; and Melissa Siebert (Siebert), the acting vice president of human resources. After reviewing plaintiffs statements during the earlier internal investigation, the various media reports about the incident and other facts of the case, McKeon and Siebert concluded that plaintiff fabricated her accounts of Officer Carroll beating and raping her. They further concluded that there were no circumstances sufficient to mitigate plaintiffs threat to use The Times to accuse Officer Carroll of rape. Siebert and McKeon also were concerned that plaintiff no longer could represent The Times effectively to its advertisers in light of the heavy publicity given the matter. They decided that plaintiff must be discharged from her employment for threatening to use the editorial power of The Times to advance a personal agenda.
The Times instructed Dreher to terminate plaintiffs employment. On September 12, 2000, Dreher, Bertness and ODonnell met with plaintiff at the Orange County office of The Times. Dreher explained that after further review of the facts, The Times determined that there were no mitigating circumstances attending plaintiffs utterance of her threats to Officer Carroll. The Times consequently was terminating plaintiffs employment immediately.
CONTENTIONS
Plaintiff contends the trial court erred in granting summary judgment, in that the doctrine of laches bars The Times from using plaintiffs misconduct as a reason to discharge her. The doctrine of laches has no application to the actions of The Times.
Plaintiff further contends that inasmuch as the conduct for which she was discharged occurred away from the workplace, she cannot be discharged for it. Plaintiff has waived this contention.
Plaintiff asserts there are triable issues of material fact as to whether The Times discharged her in violation of public policy. There are no triable issues of fact with respect to this claim.
Plaintiff additionally asserts there is a triable issue of material fact as to whether she had an implied contract with The Times that she would be discharged only for cause. Plaintiff indisputably is an at-will employee.
Plaintiff further asserts The Times lacked good cause to discharge her. Inasmuch as plaintiff was an at-will employee, we need not decide whether The Times had good cause to terminate her employment.
Finally, plaintiff contends there is a triable issue of material fact as to whether The Times discriminated against her due to her disability, alcoholism, when it discharged her. The Times did not discharge plaintiff because of her drunkenness but because of her abuse of her association with it.
DISCUSSION
Standard of Review
We review the moving and opposing papers de novo to determine whether the moving party negated an essential element of plaintiffs case, demonstrated that there was no possible triable issue of material fact, or showed that plaintiff failed to present evidence crucial to her cause. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In conducting our review, we construe the moving partys papers strictly and those of the opposing party liberally. (Id. at p. 768.)
Laches
Laches is an equitable doctrine that may be invoked only in a suit in equity. (Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 462, 326 P.2d 484.) This limitation explains why the defense was available to a public employee who petitioned for a writ of administrative mandate (see, e.g., Brown v. State Personnel Board (1985) 166 Cal. App. 3d 1151, 1159, 213 Cal. Rptr. 53), but is not available to plaintiff in this action at law.
In any event, there was no delay, let alone unreasonable delay, in discharging plaintiff, thus rendering the defense of laches unavailable to plaintiff. (Brown v. State Personnel Board, supra, 166 Cal. App. 3d at p. 1159.) Those charged with making personnel decisions first learned of plaintiffs threats to use The Timess editorial power for her personal benefit in August 2000. The Times discharged plaintiff from her employment on September 10, 2000. There is no reasonable conclusion available on these facts other than that The Times acted very swiftly.
Moreover, that there was no unreasonable delay in addressing plaintiffs abuse of her position remains the only rational conclusion even if we date the first revelation of plaintiffs threats to June 1999, when her supervisor, ODonnell, heard the recording Officer Carroll had made. ODonnell heard the recording when he had his deposition taken during the litigation between plaintiff and Officer Carroll. At the time, ODonnell was under the impression that a police officer had beaten plaintiff. After his deposition, plaintiff told ODonnell that the recording had been altered so that it was not an accurate reflection of her statements. She said it was only one side of the story. Giving plaintiff the benefit of the doubt while litigation was pending, ODonnell took no action at that time. After plaintiff lost her lawsuit in August 2000, ODonnell thought it appropriate that The Times discharge plaintiff from her employment. He spoke to his superiors immediately after the jury delivered its verdict. All of this was eminently reasonable conduct.
Discharge for Conduct Occurring Away from the Workplace
Plaintiff cites Blake v. State Personnel Board (1972) 25 Cal. App. 3d 541, 102 Cal. Rptr. 50 for the propositions that "mere failure to observe common amenities at a social gathering is not the type of discourtesy contemplated," and "disciplinary action against a public employee must be evaluated in terms of the effects on the service of what in particular [she] has done." (At pp. 550, 551.) However apt these propositions may be in cases of public employment, plaintiff cites no authority that they apply in cases of private employment, nor have we discovered any. Plaintiffs failure to cite pertinent authority waives the claim on appeal. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Discharge in Violation of Public Policy Generally
A plaintiff alleging tortious termination of employment must show that her discharge violated a fundamental public policy expressed in a constitutional, statutory or administrative source. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72, 89-90, 960 P.2d 1046.) Cases of public policy violation "generally fall into four categories: (1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations]." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091, 824 P.2d 680, fn. omitted; accord, Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889, 941 P.2d 1157.)
In other words, there are four requirements that must be fulfilled for a plaintiff to maintain a tort action for termination of employment. "First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be fundamental and substantial." (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 889-890, fn. omitted.)
Article I, Section 13 of the California ConstitutionPlaintiff argues that her discharge violated the public policy expressed in this constitutional provision. Section 13 of Article I of the California Constitution prohibits "unreasonable searches and seizures." It is analogous to the Fourth Amendment to the United States Constitution.
We shall assume for the sake of argument the highly dubious proposition that if Officer Carroll unlawfully recorded plaintiffs statements to him while he was transporting her to the police station, then the termination of plaintiffs employment in reliance on the tape recording would violate public policy. Officer Carroll did not unlawfully record plaintiffs statements, however. Once he arrested her, plaintiff had no reasonable expectation of privacy in any conversation occurring while she was in the patrol car. (People v. Crowson (1983) 33 Cal.3d 623, 629, 190 Cal. Rptr. 165, 660 P.2d 389; see also People v. Loyd (2002) 27 Cal.4th 997, 1009, fn. 14.) Inasmuch as plaintiff had no reasonable expectation that her statements would remain private, it was lawful for Officer Carroll to record them. (Pen. Code, § 633.) Discharging plaintiff in reliance on those statements consequently could not have violated the policy expressed in Article I, section 13.
Labor Code section 96, subdivision (k)
Subdivision (k) of Labor Code section 96 authorizes the Labor Commissioner to pursue claims for the loss of wages "as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employers premises." Plaintiff maintains that her statements to Officer Carroll, although consisting of threats to use The Timess editorial power to accuse him falsely of rape, constitute lawful conduct. For a threat against a peace officer to be unlawful under Penal Code section 69 , it must be a threat of unlawful violence, made against the officer in the performance of his duty, and intended to deter or prevent the officer from performing his lawful duty. (In re Manuel G. (1997) 16 Cal.4th 805, 814-815, 941 P.2d 880.) While plaintiff made the threats to deter or prevent Officer Carroll from carrying out his lawful duty, she made no threats of unlawful violence.
Assuming that plaintiffs conduct was lawful does not necessarily establish that subdivision (k) expresses a "fundamental and substantial" public policy that The Times violated. (Stevenson v. Superior Court, supra, 16 Cal.4th at p. 890.) Labor Code section 96 does nothing more than delineate the types of claims over which the Labor Commissioner can exercise jurisdiction. Subdivision (k) does not make unlawful all discharges from employment for engaging in lawful activity away from the employers premises during off-duty hours. It merely permits the Labor Commissioner to consider claims of wrongful discharge on this ground.
The purpose of subdivision (k) is far more limited than plaintiff would suggest. It was enacted "to further the state interest in protecting the civil rights [guaranteed by Article 1 of the California Constitution] of individual employees who would not otherwise be able to protect themselves." (Stats. 1999, ch. 692, § 1.)
As an expression of public policy, therefore, subdivision (k) of Labor Code section 96 is limited to those instances when an employee exercises her civil rights through lawful activity conducted away from the employers premises during off-duty hours. Plaintiff was not exercising such rights when she threatened Officer Carroll with using the editorial power of The Times to publish false accusations of rape. Such conduct is not the equivalent of protected speech, for it is a threat to defame another. (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-246, 152 L. Ed. 2d 403, 122 S. Ct. 1389.)
The courts have held that there are instances when an employee engaging in lawful conduct may be discharged from employment. For example, an employee who sues the employers client, unquestionably a lawful act undertaken away from the employers premises during off-duty hours, nonetheless may be discharged from employment. (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 824-827.) Other jurisdictions have found other exceptions to the protection afforded by similar statutes. (See, e.g, McCavitt v. Swiss Reinsurance America Corp. (2d Cir. 2001) 237 F.3d 166, 168 [romantic involvement with a fellow employee is not protected conduct]; Marsh v. Delta Air Lines, Inc. (D.Colo. 1997) 952 F. Supp. 1458, 1462 [writing a letter that reflects poorly on employer is not protected conduct].)
Plaintiffs abuse of her association with The Times falls in the same category as the acts described above. There is no public policy that would prevent The Times from requiring an employee to contract formally that she would refrain from using her association with it to seek a personal advantage when dealing with third parties. This ability demonstrates that there is no distinctly public interest at issue when an employee is discharged from employment for using her association with her employer in exactly that fashion. (See, e.g., Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 670, fn.12, 254 Cal. Rptr. 211, 765 P.2d 373 [employer and employee lawfully could agree that employee would not inform employer of coworkers background, thus confirming that there was no distinctly public interest in prohibiting an employer from firing an employee for failing to report]; Jersey v. John Muir Medical Center, supra, 97 Cal.App.4th at pp. 827-828 [employer and employee lawfully could agree that employee waived right to sue a client for personal injury, thus confirming that there was no distinctly public interest in prohibiting employer from firing employee for filing such a suit].)
Inasmuch as The Times lawfully could require plaintiff to agree that she would not abuse her association with it, the interest at issue is purely personal rather than public. Labor Code section 96, subdivision (k), consequently does not establish a "fundamental and substantial" public policy in the circumstances of this case, the violation of which in discharging plaintiff from employment is tortious. (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 889-890.)
Labor Code Section 230Labor Code section 230 prohibits retaliation against an employee for participating in a judicial proceeding. It is undisputed that The Times knew of the trial of plaintiffs and Officer Carrolls counter-suits. It is equally undisputed that The Times provided plaintiff with time off from work to attend the trial. It is also abundantly clear that The Times did not discharge plaintiff for participating in the trial but for the statements she made to Officer Carroll in 1997, which statements established plaintiffs abuse of her relationship with The Times. Those statements simply came to the attention of The Times-and anyone else who was paying attention-during the trial. The termination of plaintiffs employment consequently did not violate any policy expressed in section 230.
Implied Contract to Discharge Only for Good Cause
There is a rebuttable presumption that a contract specifying no term of employment is terminable at-will (Lab. Code, § 2922). Even a contract subject to the presumption embodied in Labor Code section 2922 nonetheless may contain, by virtue of the employers conduct, an implied-in-fact promise that the employer will not act arbitrarily in dealing with the employee. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 677.) The question of whether there is an implied-in-fact contract not to discharge an employee except for cause ordinarily is a question of fact. The issue may be resolved as a matter of law under the given facts of a particular case, however. (Kovatch v. California Casualty Management Co. (1998) 65 Cal.App.4th 1256, 1274; Miller v. Pepsi-Cola Bottling Co. (1989) 210 Cal. App. 3d 1554, 1558, 259 Cal. Rptr. 56; Hoy v. Sears, Roebuck & Co. (N.D. Cal. 1994) 861 F. Supp. 881, 885.)
The possible existence of the necessary implied promise will be considered only where an agreement is silent as to the term of employment and the grounds for discharge. (Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal. App. 3d 467, 482, 199 Cal. Rptr. 613.) "There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results." (Ibid.; accord,Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374, 826 P.2d 710; Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38; Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1388.) As long as the language clearly and unambiguously expresses an intent that the employee may be discharged at-will, therefore, it cannot be supplemented by evidence of implied promises.
A written application for employment that does not contain all essential terms of an employment contract is not an employment contract, but merely the solicitation of an offer of employment. (Harden v. Maybelline Sales Corp . (1991) 230 Cal. App. 3d 1550, 1555, 282 Cal. Rptr. 96; Wagner v. Glendale Adventist Medical Center (1989) 216 Cal. App. 3d 1379, 1386-1387, 265 Cal. Rptr. 412.) As stated in Hoy v. Sears, Roebuck & Co., supra, 861 F. Supp. at page 885, however, "an executed employment application purporting to be the final agreement of the parties as to an employees at-will status is itself a contract or becomes integrated into any contract that is eventually executed between the parties." (Accord, Starzynski v. Capital Public Radio, supra, 88 Cal.App.4th at p. 38; Kovatch v. California Casualty Management Co., supra, 65 Cal.App.4th at pp. 1276-1277;Camp v . Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 629-630; Comeaux v. Brown & Williamson Tobacco Co. (9th Cir. 1990) 915 F.2d 1264, 1271, fn. 7;Gianaculas v. Trans World Airlines, Inc. (9th Cir. 1985) 761 F.2d 1391, 1394.)
Plaintiff signed an employment application. Immediately above her signature is a paragraph which states, "In consideration of my employment, I agree to conform to the rules, regulations and policies of the Company. I understand and agree that if I am hired, my employment and compensation can be terminated, with or without cause, and with or without notice, at any time at the option of either the Company or myself. I understand that no supervisor or representative of the Company other than the president or vice president of the Company, has any authority to enter into any arrangement for employment for any specified period of time, or to make any agreement contrary to the foregoing."
With respect to the "at will" nature of plaintiffs employment, the provision quoted above is itself a binding contract. (Civ. Code, § 1624, subd. 2(D).) That plaintiff did not read the provision does not excuse its enforcement. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710, 131 Cal. Rptr. 882, 552 P.2d 1178; Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659, 1666.) The signed agreement that plaintiffs employment is at-will cannot be overcome by evidence of an implied agreement to the contrary. (Starzynski v. Capital Public Radio, supra, 88 Cal.App.4th at p. 38; Halvorsen v. Aramark Uniform Services, Inc., supra, 65 Cal.App.4th at p. 1388; see also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 340, fn. 10 and the cases cited therein.)
The language The Times utilizes in its employee handbook emphasizes the at-will nature of plaintiffs employment. The second paragraph on page 22 of the 1999 handbook is entitled "Employment-at-Will." The paragraph states, "The employment relationship between you and The Times is at-will. While it is hoped that your employment relationship with The Times will be mutually rewarding and long term, either you or The Times may terminate this relationship at any time, with or without cause or notice. Only an officer of The Times has the authority to enter into any agreement for employment for any specified period of time or to make any promises or commitments contrary to the foregoing. Any such agreement must be in writing and signed by an officer of The Times to be enforceable." Earlier versions of the handbook contain closely similar language.
In the Performance Management section, the 1999 handbook provides guidance for career development, explains what follows when performance or conduct fails to meet company standards and provides a non-exhaustive list of conduct that can lead to termination without a warning. Immediately following this information is a paragraph that states, "The employment relationship is based on the mutual consent of the employee and The Times. Accordingly, either the employee or The Times can terminate the employment relationship at will, for any reason or no reason, with or without cause or advance notice. Nothing in this Performance Management section changes the at-will nature of the employment relationship."
When the contract contains an express at-will term, the existence of a counseling or progressive disciplinary procedure is not enough to rebut the presumption of at-will employment. As noted in Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, if the existence of such a procedure were considered adequate to rebut the presumption, an employer wishing to retain the advantage of the presumption would be forced to terminate employees for even the most minor infraction. The law does not require such caprice. (At p. 367; but see Kelecheva v. Multivision Cable T.V. Corp. (1993) 18 Cal.App.4th 521, 532-533 .) Moreover, documenting counseling or progressive discipline serves a purpose other than establishing cause. It can dispel any inference that the employer has acted for a wrongful purpose such as discrimination. (Davis, supra, at pp. 367-368.)
As discussed above, given that plaintiff is bound by an express agreement that her employment with The Times was at-will, none of the conduct upon which she relies can create an implied agreement to the contrary. (Starzynski v. Capital Public Radio, supra, 88 Cal.App.4th at p. 38; Halvorsen v. Aramark Uniform Services, Inc., supra, 65 Cal.App.4th at p. 1388; see also Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 340, fn. 10 and the cases cited therein.) Inasmuch as her employment indisputably was at-will, we need not discuss whether The Times had good cause to discharge her.
Disability Discrimination
It is "an unlawful employment practice, unless based upon a bona fide occupational qualification, . . . [P] . . . for an employer, because of the . . . physical disability, mental disability, [or] medical condition . . . of any person . . . to discharge the person from employment . . . ." (Gov. Code, § 12940, subd. (a).) A person claiming wrongful discharge due to disability discrimination must establish that the person suffers from a disability, is qualified to perform the duties of the position the person held and the employer discharged the person because of the disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.)
We shall assume for the sake of argument that plaintiff presented evidence sufficient to state a prima facie case. The burden thus shifted to The Times to demonstrate that it discharged plaintiff for a legitimate, nondiscriminatory reason. (Guz v. Bechtel National, Inc ., supra, 24 Cal.4th at pp. 355-356.)
The Times met this burden, demonstrating that plaintiffs abuse of her position by threatening to use its editorial power to defame Officer Carroll with false accusations of rape violated a fundamental tenet of objective journalism that one must not use editorial power for personal ends. It is undisputed that this tenet exists and is well known. It is also undisputed that violation of this tenet is an offense warranting termination of employment. That ODonnell is unaware of anyone else who has been discharged from employment for violating the tenet during his 25-year tenure with The Times does not place the existence of the tenet and the gravity of its violation in dispute.
Chrispell and Bertness initially gave plaintiff a final written warning, informing her that threats to influence the content of the newspaper ordinarily would result in discharge but because plaintiff claimed to have made the threats in self defense, thus suggesting extenuating circumstances, they would not terminate her employment unless she made a similar threat in the future. Subsequent events convinced three senior managers that there were no extenuating circumstances and that plaintiffs ability to represent The Times to advertisers had been compromised because of the publicity surrounding her lawsuit. They consequently concluded that plaintiff should be discharged on the ground that she had threatened to use the editorial power of the newspaper to advance a personal agenda.
Plaintiff argues that this is akin to discharging her because of her disability. She is mistaken. Alcoholism might have induced plaintiff to become drunk. It did not force her to engage in assaultive behavior, leading to her arrest, or thereafter to abuse her relationship with The Times, however. (See, e.g., Newland v. Dalton (9th Cir. 1996) 81 F.3d 904, 905-906 [alcoholic employee responsible for off-duty assault on bar patrons with a rifle]; Despears v. Milwaukee County (7th Cir. 1995) 63 F.3d 635, 637 [alcoholic employee responsible for off-duty drunk driving because alcoholism did not compel driving the car].) While plaintiffs conduct was not criminal or as dangerous as that involved in the cases cited above, it was equally egregious. It undermined the journalistic integrity of The Times in the public eye. A major newspaper such as The Times lives or dies on public confidence in its journalistic integrity.
Moreover, plaintiff was not unaware of what she had done. She always admitted making the threats but maintained that she did so in self defense, to prevent rape and assault. The Times was willing to treat her claim of self defense as an extenuating circumstance, justifying a warning rather than discharge from employment, until it became clear to The Times that plaintiff had not been acting in self defense when she threatened to misuse its editorial power. Put simply, plaintiff was caught in a lie.
Once The Times established that it had a legitimate, nondiscriminatory reason for terminating plaintiffs employment, the burden shifted again to plaintiff to demonstrate that the stated reason was a mere pretext for discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356.) Plaintiff has failed to meet this burden.
She argues that it was the publicity given her threats, rather than the threats themselves, which induced The Times to terminate her employment. She is correct in the most technical sense. Had plaintiff not filed suit against Officer Carroll, seeking damages for an assault that never occurred, he would not have counter-sued for defamation and plaintiffs threats would not have become a matter of public record. Had the threats not become a matter of public record, The Times would not have learned of them and had cause to consider terminating plaintiffs employment for abusing her relationship with The Times. None of this establishes that The Timess stated reason for plaintiffs discharge is a pretext for disability discrimination, however.
The judgment is affirmed.
We concur: ORTEGA, J., MALLANO, J. --------------- Notes: More facts may appear as they are necessary to resolve the issues presented.