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Diego v. Pilgrim United Church of Christ

California Court of Appeals, Fourth District, First Division

November 21, 2014

CECILIA DIEGO, Plaintiff and Appellant,
PILGRIM UNITED CHURCH OF CHRIST, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2011-00099381-CU-OE-CTL Randa Trapp, Judge.

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Law Office of Joshua D. Gruenberg, Joshua D. Gruenberg, Susan M. Swan; Boudreau Williams and Jon R. Williams for Plaintiff and Appellant.

Daley & Heft, Lee H. Roistacher and Robert W. Brockman, Jr., for Defendant and Respondent.



Cecilia Diego sued her former employer Pilgrim United Church of Christ (Pilgrim United) for wrongful termination in violation of public policy. Diego alleged she was terminated from her employment as assistant director of Pilgrim United's preschool as a result of the director's mistaken belief that she had lodged a complaint with the Community Care Licensing Division of the California Department of Social Services[1] (Licensing) which resulted in an unannounced inspection of the preschool.

The trial court granted summary judgment in favor of Pilgrim United on the basis that, because Diego in fact had not made a complaint to Licensing (or otherwise engaged in activity associated with protected disclosure of alleged wrongdoing), her termination of employment did not violate public policy as a matter of law.[2] We disagree and reverse that part of the judgment directed to Diego's claim for wrongful termination in violation of public policy and remand with instructions that the court enter an order denying Pilgrim United's motion.

At the onset, we stress the limited issue that is presented and decided in part II.A., post: Does California public policy preclude Pilgrim United from

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retaliating against Diego based on Pilgrim United's mistaken belief that Diego had disclosed information to Licensing regarding Pilgrim United's alleged violation of, or noncompliance with, state regulations applicable to preschools?



Pilgrim United hired Diego as an at will employee in or around 2002. Ultimately she became a "mentor teacher, " and her supervisor, Anne Lewis, who was the director of the preschool, considered her the assistant director.

At some point shortly before August 19, 2011, [4] another of Pilgrim United's employees, Cynthia Saldana, told Diego that she (Saldana) had called Licensing anonymously to complain about (1) a foul odor in one of the classrooms, and (2) inadequate sand beneath the playground equipment.[5] On August 19, representatives from Licensing made an unannounced inspection at the preschool in response to the anonymous report. Licensing neither found a violation nor issued a citation.

According to Diego, during a telephone conversation on August 23, Lewis discussed the anonymous report to and visit from Licensing. Among other comments, Lewis asked Diego why she was " 'doing this' " and whether Diego wanted Lewis " 'gone, ' " explaining that people had been telling her " 'things.' " Lewis stated that " 'at this point, the State is going to take over [the preschool].' " In response to Diego's inquiry whether Lewis was referring to Licensing, Lewis explained that " 'they want to know why [L]icensing has received more violations in the last 24 months more than in the history of Pilgrim [United's preschool, ]' or words to that effect." Based on this conversation, Diego understood that Lewis was angry with her for having anonymously communicated the report to Licensing that prompted the unannounced inspection four days earlier.

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Later that same day, Lewis again telephoned Diego, asking her to attend a meeting the next day (August 24) with her and the pastor of Pilgrim United, Madison Shockley. Because Diego had plans to be out of town on August 24, she asked that the meeting instead take place on Friday, August 26; on August 25, she called and left a voicemail message rescheduling the meeting to the following Monday, August 29, because August 26 was a vacation day.

The meeting never took place. On August 26, Lewis called and left a message for Diego; when Diego returned the call, Lewis told her she was fired. Diego testified that she believed Pilgrim United terminated her employment because of the anonymous report to Licensing.

Pilgrim United disputes much of the foregoing evidence, in particular the substance of the August 23 telephone conversation. Pilgrim United contends it discharged Diego due to insubordination, never having thought that Diego made the anonymous report to Licensing.

In October, Diego filed the underlying complaint against Pilgrim United. As relevant to this appeal, Diego alleged that Pilgrim United's termination of her employment was retaliatory in violation of California public policy. Pilgrim United answered the complaint; the parties conducted discovery; and Pilgrim United filed a motion for summary judgment or, in the alternative, for summary adjudication.

In its motion, Pilgrim United argued that it was entitled to judgment as a matter of law on the basis that Diego could not establish an essential element of her claim for wrongful termination in violation of public policy, namely, that the termination of her employment violated a policy articulated by constitutional or statutory authority. More specifically, Pilgrim United posited that no constitutional or statutory authority extended whistleblower protections to employees merely believed to have engaged in protected activity.

In opposition to the motion, Diego argued that Pilgrim United's termination of her employment violated the public policy that protected an employee for "perceived whistleblower" activity — in this case, reporting violations of regulations necessary to carry out the California Child Day Care Act (see fn. 5, ante).

In reply to the opposition, Pilgrim United argued that Diego's discharge could not have violated such a public policy, because Diego did not engage in any conduct in furtherance of protecting children's safety or education and there is no statutory protection for mistakenly perceived whistleblowers.

The trial court granted Pilgrim United's motion, ruling in relevant part that Diego did not meet her burden of establishing ...

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