activity. That case addressed an employer which did not employ any gay men or lesbians. The opinion is silent, as is the statute, about whether or not discussion of sexual preference by a lesbian at private firm functions (as compared to activities outside of work) is a political activity.
If, for example, plaintiff were prevented from discussing gay rights with other employees at firm gatherings, this might well be construed as an effort to prevent her from associating and communicating with or organizing other individuals in order to work for equal rights. Similarly, if plaintiff had been instructed to curtail her gay-oriented political activities outside the office, this would constitute a violation of § 1101. However, it is by no means certain that discussions of lesbianism with clients of her firm at firm social events are political activities as contemplated by the California Supreme Court in Gay Law Students.
In furtherance of her motion for summary judgment under § 1101, plaintiff states that she was terminated from her employment with defendants shortly after an article on the BALFBA appeared in the San Francisco Daily Journal. The article identified plaintiff as an associate attorney at defendant firm and as co-chair of the BALFBA. The court is asked to infer the existence of a direct causal linkage between the appearance of the article and the termination by plaintiff's employer -- that, in effect, defendants were ultimately motivated to fire her because of her participation in this particular political activity or association. Plaintiff offers no affidavits or other evidence in support of her allegation, nor does she provide incontrovertible facts or testimony. The connection between the article and her termination remains an unresolved issue of material fact that must be decided by a jury.
Essential issues of triable fact remain. The most significant among them is whether defendants, in violation of § 1101, made, adopted or enforced any rule, regulation or policy forbidding or preventing plaintiff from engaging or participating in politics or otherwise controlling, directing or coercing via pressure or threats of termination, plaintiff's political activities or affiliations.
Given the absence of clear and convincing evidence offered by plaintiff, the court, as matter of law, rules that several triable issues of fact exist as to plaintiff third cause of action alleging defendants' violation of § 1101. Plaintiff will have the opportunity to present a case before the trier of fact.
II. Defendants' Motion to Dismiss Plaintiff's Emotional Distress Claims
On October 21, 1992, defendants filed a motion to compel plaintiff to undergo an independent psychiatric examination for purposes of investigating plaintiff's emotional distress claims. In opposition to defendants' motion, plaintiff stated that she intended to dismiss her claims for negligent and intentional infliction of emotional distress, and that she was not claiming any emotional distress damages beyond that which is normally experienced by plaintiffs under such circumstances. Due to the vagueness of this response, the court issued an order directing plaintiff to file a status conference statement clarifying her position on emotional distress damages. Plaintiff filed the necessary statement on December 28, 1992. On January 12, 1993, defendants filed the instant motion seeking dismissal of all of plaintiff's claims which contain an emotional distress element. In the alternative, defendants seek an order compelling plaintiff to submit to the previously requested psychological examination.
Since defendants filed this motion, the parties have stated agreement on several of plaintiff's causes of action. Plaintiff agrees that the following causes of action should be dismissed: Sixth (sex discrimination in violation of Ca. Const. art I, § 8); Eighth (assault and battery); Ninth (intentional infliction of emotional distress); Tenth (negligent infliction of emotional distress); Eleventh (breach of covenant of good faith and fair dealing); and Thirteenth (violation of Walnut Creek Ordinance 440-2).
By this motion, defendants seek dismissal of the following causes of action: Fifth (violation of California Labor Code § 6310) and Seventh (wrongful termination in violation of public policy).
1. Plaintiff's Fifth Cause of Action
Plaintiff's fifth cause of action attempts to state claims under California Labor Code § 6310. Section 6310 prohibits an employer from retaliating against an employee for complaining to the California Department of Occupational Safety and Health. ("OSHA"). Defendants maintain that § 6310 does not create a private right of action. Plaintiff maintains that § 6310 creates a public policy claim.
Though not cited by defendants, § 6312 provides:
that any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to section 98.7.
Section 6310 claims must be filed with the Division of Labor Standards Enforcement. Plaintiff cites to no authority which supports her argument that § 6310 creates a public policy cause of action. Accordingly, plaintiff's fifth cause of action under section 6310 must be DISMISSED.
2. Plaintiff's Seventh Cause of Action
Plaintiff's seventh cause of action alleges that her employment was terminated in violation of public policy of California, specifically: (a) the state's fundamental interest in compliance with reduction of work place hazards; (b) the public policy of freedom of association, as established in Article I, §§ 1, 2 and 3 of the California Constitution as well as Cal. Labor Code § 6399.7; (c) the state's substantial interest in health and safety of California workers; (d) the state's fundamental policy against retaliation for exercising any of the rights under the labor code, including whistle-blowing. 2 Cal OSHA, Labor Code §§ 98.6, 1102.5, 2856, 6310-12; (e) the policy in regard to the City of Walnut Creek regulation of smoking environments at the work place; (f) the policy against sex discrimination; (g) the policy against retaliation for engaging in political activity.
Defendants seek dismissal of this claim on three grounds: (1) with the exception of the Walnut Creek ordinance claim, all of the claims which encompass this cause of action are specifically pleaded elsewhere in plaintiff's complaint; (2) Walnut Creek Ordinance 440-2 does not create a private right of action; and (3) the injury complained of with respect to the Walnut Creek ordinance (failure to provide a smoke-free environment), is preempted by workers compensation law.
Because the court viewed plaintiff's opposition as inadequately addressing defendants' arguments seeking dismissal of this claim, the court invited plaintiff to file a supplemental opposition explaining her claim. In her supplemental filing, plaintiff made clear that her seventh cause of action is essentially one stating a claim of retaliatory termination resulting from her complaints regarding defendants' failure to provide a smoke-free environment in compliance with Walnut Creek's anti-smoking ordinance. As defendants' motion did not address plaintiff's seventh cause of action as articulated in plaintiff's supplemental filing, defendants' motion to dismiss this claim is DENIED without prejudice to defendants' renewing their motion on this claim at a later time.
C. Defendants' Motion to Compel Plaintiff to Undergo an Independent Psychological Examination
In the alternative, defendant renews its motion to compel plaintiff to submit to a psychological examination. Plaintiff maintains that she will not be presenting any expert testimony at trial. Nor does she intend to seek damages for medical expenses incurred relating to psychological injury. However, she does intend to present evidence of "normal" emotional distress. Defendants argue that the examination is needed to refute such evidence. The court agrees. Accordingly, defendants' motion to compel plaintiff to submit to an independent psychological examination is GRANTED.
For the foregoing reasons, the court orders as follows:
1. Plaintiff's motion for summary judgment is DENIED.
2. Plaintiff's fourth, fifth, eighth, ninth, tenth, eleventh and thirteenth causes of action are hereby DISMISSED WITH PREJUDICE.
3. Plaintiff's California Labor Code § 1102 claim (third cause of action) is DISMISSED WITH PREJUDICE.
4. Plaintiff's claim under Article I, § 2 of the California Constitution (freedom of association; sixth cause of action) is hereby DISMISSED WITH PREJUDICE.
5. Defendant's motion to compel plaintiff to submit to an independent psychological examination is GRANTED.
IT IS SO ORDERED.
Dated: May 18, 1993
Barbara A. Caulfield
United States District Judge