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Jeremy Gilmore and Dana Gilmore v. Union Pacific Railroad Company

March 8, 2012



I. Background

Plaintiff Jeremy Gilmore alleges, among other things, that he was terminated from his job at Union Pacific Railroad (UP) following a workplace injury. He alleges the termination was based on a general policy of retaliation against injured workers who UP believes will pursue a claim for damages for their injuries. He further alleges the termination also resulted from UP managers receiving bonuses in part based on their safety records. Plaintiff Dana Gilmore alleges, among other things, that she was terminated from UP because she did not provide information about the extent of Jeremy's injuries. Both plaintiffs allege that these discharges violated public policy.

The parties dispute the standard for evaluating these claims, as well as the admissibility of several categories of evidence. UP argues the correct standard is articulated in Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). Plaintiffs argue the right standard derives from Cotran v. Rollins Hudig Hall Intl., Inc., 17 Cal.4th 93 (1998). For the reasons set forth below, the court adopts the Tameny standard.

In addition, UP argues this court must determine that Dana has sufficiently demonstrated the offensiveness of the invasion of the right to marital privacy before her claim can go to the jury. As discussed below, the court finds Dana's privacy claim may go to the jury; the court declines to make a threshold determination of offensiveness.

Resolution of these issues resolves several pending motions in limine.

II. Tameny or Cotran

In the course of resolving the parties' cross-motions for summary judgment,

this court examined but did not ultimately determine the proper standard for evaluating the discharge claims.

In Tameny, the California Supreme Court explored the nature of the remedy when an employer has fired an at will employee and the employee claims the discharge followed his refusal to participate in a price fixing scheme. In that case, the employee alleged he was fired after such a refusal. Tameny, 27 Cal.3d at 169. The court concluded that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170.

In subsequent decisions, the California Supreme Court has explored the contours of the Tameny doctrine. In Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1090 (1992), overruled on other grounds by Green v. Ralee Eng. Co., 19 Cal.4th 66, 80 n.6 (1998), the Court said that "the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer." In Stevenson v. Superior Court, 16 Cal.4th 880, 894 (1997), the court developed a four part test for determining whether a particular policy will support a discharge claim: the policy must be "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental." And in Green, 19 Cal.4th at 87-88, the Court recognized that the policy underlying a discharge claim may be based in federal statutory or administrative law.

Plaintiffs urge that the proper standard is not Tameny, but rather that developed in Cotran. In that case the California Supreme Court held that when an employee hired under an implied agreement not to be discharged except for good cause is fired for misconduct, a jury considering a suit stemming from the discharge must determine whether "the factual basis on which the employer concluded a dischargeable act had been committed was reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual." Cotran, 17 Cal.4th at 107. At least one California Court of Appeal has applied the Cotran standard to evaluate a plaintiff's claim that his discharge violated public policy because it was racially motivated. Nazir v. United Airlines, 178 Cal.App.4th 243, 271 (2009).

In plaintiffs' view, because Cotran is the proper standard, they may explore the adequacy of UP's investigation preceding their discharge as well as any and all irregularities in the disciplinary hearings that preceded their terminations. In defendants' view, Tameny is the proper standard and does not require an examination of the investigation and hearing leading to the discharges.

Other cases beside Nazir have used the Cotran standard or Cotran "good cause" language when evaluating the discharge of an at-will employee. See, e.g., London v. Sears, Roebuck and Co., 619 F.Supp.2d 854, 862 (N.D. Cal. 2009), aff'd, 2011 WL 5562734 (9th Cir. Nov. 16, 2011) (unpublished); Grant-Burton v. Covenant Care, Inc., 99 Cal.App.4th 1361 (2002) (in a Tameny case, court also discussed good cause for the termination). Even so, this court declines to import the Cotran analytical framework into a Tameny discharge. The California Supreme Court was clear that its analysis in Cotran stemmed from the implied agreement that the employee would not be fired absent good cause. Cotran, 17 Cal.4th at 95; see also Halvorsen v. Aramark Uniform Services, 65 Cal.App.4th 1383, 1391 (1998) ("Cotran, however applies only to cases in which an employee is under 'an implied agreement not to be dismissed except for good cause.'" (emphasis in original)). The California Supreme Court also was clear that a jury considering such a claim should not determine whether the employee in fact committed the misconduct that led to his termination, but rather whether the employer had a reasonable basis for its decision. Cotran, 17 Cal.4th at 96. The Court said that in evaluating whether the employer acted reasonably, a jury should consider whether the employer made the decision to terminate only after an appropriate investigation and not for arbitrary or pretextual reasons. Id. at 107.

A Tameny claim, in contrast, is an exception to the general rule that an employer may discharge an "at will" employee for any reason or for no reason. In Tameny, the California Supreme Court found that an at-will employee could bring a tort action for a discharge that violated public policy. Tameny, 27 Cal.3d at 170. This court declines to import standards developed for evaluating the breach of an implied in fact employment contract into a tort action for discharge in violation of public policy, and adopts the Tameny standard as ...

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