PETITION for writ of mandate. Susan Bryant-Deason and Coleman A. Swart, Judges. (Los Angeles County Super. Ct. No. BC445776)
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PUBLICATION
California's Military and Veterans Code section 394*fn1 prohibits employers from discriminating against members of the armed forces. In this case of first impression, we are asked to decide whether plaintiffs may hold supervisors personally liable for discrimination under section 394. We conclude that, like the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.), another employment discrimination statute which contains similar language and embodies similar goals, section 394 allows servicemen and servicewomen plaintiffs to hold their employers, but not individual employees, liable for discrimination. Accordingly, we grant the writ petition and issue a peremptory writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of review, we assume the truth of the following allegations extracted from the complaint (Wells Fargo Bank, N.A. v. Superior Court (2008) 159 Cal.App.4th 381, 385): While employed by defendant, Safeway Services, LLC,*fn2 plaintiff Lieutenant Mario Pantuso was called to active duty with the Navy. When Pantuso returned from his six-month deployment in Iraq and asked for his job back, his immediate supervisor at Safeway, Mike Haligowski, and the regional manager, Greg Chomenko, informed Pantuso that he was terminated from employment.
Pantuso sued Safeway, Haligowski, and Chomenko for damages for discrimination and retaliation in violation of section 394, subdivisions (a) and (d). He also sought damages from Safeway only for wrongful retaliation and termination in violation of public policy. Pantuso's complaint alleges, because of his membership in the Navy, that Safeway and the individual defendants discriminated against him by giving him negative performance evaluations after he informed his employers that he would be deployed, and then terminating him from employment because of his military service, refusing to re-employ him upon return from service in Iraq, and refusing to pay him an earned bonus.
Haligowski and Chomenko (the individual defendants) demurred to the complaint on the ground that supervisors cannot be held individually liable for employment-related decisions under the Military and Veterans Code. The trial court overruled the demurrer ruling that "based on the plain language of California Military and Veterans' Code [section] 394, the individual defendants are subject to liability" because "person means person." The individual defendants then petitioned for writ of mandate to direct the trial court to vacate its order overruling the demurrer and to enter a new order sustaining the demurrer without leave to amend.
Section 394, subdivision (a) reads: "No person shall discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership. No member of the military forces shall be prejudiced or injured by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member's employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of this state or of the United States." (Italics added.)
Section 394, subdivision (d) reads in part: "No employer or officer or agent of any corporation, company, or firm, or other person, shall discharge any person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state . . . ." (Italics added.)
This case points a laser focus on the phrase "person, employer, or officer or agent of any corporation, company, or firm" in subdivisions (a) and (d) of section 394. The Legislature explained its intent with respect to section 394 thusly: "It is the intent of the Legislature that persons who are members of the military services not be harmed by virtue of that membership, with respect to their employment." (Stats. 1991, ch. 36, § 2.) This declaration does not clarify whether, by the use of the words "person," "officer," and "agent," the Legislature intended to make supervisors personally liable for discriminating against a member of the armed forces while performing regular management functions, and so we must make that determination.
When construing a statute, our task is to " 'ascertain the intent of the drafters so as to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of legislative intent, we first examine the words themselves, giving them their usual and ordinary meaning and construing them in context.' [Citation.]" (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) "[W]e presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.]' [Citation.]" (An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1432.) We accord "significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) If the language of a statute is unambiguous, the plain meaning governs and it is unnecessary to resort to extrinsic sources to determine the legislative ...