California Civil Jury Instructions (CACI) (2017)

2430. Wrongful Discharge/Demotion in Violation of Public Policy - Essential Factual Elements

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2430.Wrongful Discharge in Violation of Public Policy—Essential
Factual Elements
[Name of plaintiff] claims [he/she] was discharged from employment for
reasons that violate a public policy. It is a violation of public policy
[specify claim in case, e.g., to discharge someone from employment for
refusing to engage in price fixing]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] discharged [name of plaintiff];
3. That [insert alleged violation of public policy, e.g., [name of
plaintiff]’s refusal to engage in price fixing] was a substantial
motivating reason for [name of plaintiff]’s discharge; and
4. That the discharge caused [name of plaintiff] harm.
New September 2003; Revised June 2013, June 2014, December 2014
Directions for Use
The judge should determine whether the purported reason for firing the plaintiff
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged
conduct would constitute a public-policy violation if proved.
Note that this instruction uses the term “substantial motivating reason” to express
causation between the public policy and the discharge (see element 3). “Substantial
motivating reason” has been held to be the appropriate standard for cases alleging
termination in violation of public policy. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.)
This instruction must be supplemented with CACI No. 2433, Wrongful Discharge
in Violation of Public Policy—Damages. If plaintiff alleges he or she was forced or
coerced to resign, then CACI No. 2431, Constructive Discharge in Violation of
Public Policy—Plaintiff Required to Violate Public Policy, or CACI No. 2432,
Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy, should be given instead. See also
CACI No. 2510, “Constructive Discharge” Explained.
This instruction may be modified for adverse employment actions other than
discharge, for example demotion, if done in violation of public policy. (See Garcia
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v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1561 [232 Cal.Rptr. 490],
disapproved on other grounds in Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1093
[4 Cal.Rptr.2d 874, 824 P.2d 680] [public policy forbids retaliatory action taken by
employer against employee who discloses information regarding employer’s
violation of law to government agency].) See also CACI No. 2509, “Adverse
Employment Action” Explained.
Sources and Authority
• “ ‘[W]hile an at-will employee may be terminated for no reason, or for an
arbitrary or irrational reason, there can be no right to terminate for an unlawful
reason or a purpose that contravenes fundamental public policy. Any other
conclusion would sanction lawlessness, which courts by their very nature are
bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc. (2007) 157
Cal.App.4th 1127, 1138–1139 [69 Cal.Rptr.3d 445], internal citations omitted.)
• “[W]hen 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.” (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “The elements of a claim for wrongful discharge in violation of public policy
are (1) an employer-employee relationship, (2) the employer terminated the
plaintiff’s employment, (3) the termination was substantially motivated by a
violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau
v. Allen (2014) 229 Cal.App.4th 144, 154 [176 Cal.Rptr.3d 824].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. 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 (1997) 16 Cal.4th 880, 889–890
[66 Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “Policies are not ‘public’ (and thus do not give rise to a common law tort
claim) when they are derived from statutes that ‘simply regulate conduct
between private individuals, or impose requirements whose fulfillment does not
implicate fundamental public policy concerns.’ ” (Diego v. Pilgrim United
Church of Christ (2014) 231 Cal.App.4th 913, 926 [180 Cal.Rptr.3d 359].)
• “[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt,supra, 1 Cal.4th at
pp. 1090–1091, internal citations and footnote omitted, overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
• “[T]ermination of an employee most clearly violates public policy when it
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contravenes the provision of a statute forbidding termination for a specified
reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
• “[Discharge because of employee’s] [r]efusal to violate a governmental
regulation may also be the basis for a tort cause of action where the
administrative regulation enunciates a fundamental public policy and is
authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th
702, 708–709 [96 Cal.Rptr.3d 159].)
• “In the context of a tort claim for wrongful discharge, tethering public policy to
specific constitutional or statutory provisions serves not only to avoid judicial
interference with the legislative domain, but also to ensure that employers have
adequate notice of the conduct that will subject them to tort liability to the
employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
• “[A]n employee need not prove an actual violation of law; it suffices if the
employer fired him for reporting his ‘reasonably based suspicions’ of illegal
activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
• “[A]n employer’s authority over its employee does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. . . .” (Tameny,
supra, 27 Cal.3d at p. 178.)
• “[T]here is a ‘fundamental public interest in a workplace free from illegal
practices . . . .’ ‘[T]he public interest is in a lawful, not criminal, business
operation. Attainment of this objective requires that an employee be free to call
his or her employer’s attention to illegal practices, so that the employer may
prevent crimes from being committed by misuse of its products by its
employees.’ ” (Yau, supra, 229 Cal.App.4th at p. 157.)
• “An action for wrongful termination in violation of public policy ‘can only be
asserted against an employer. An individual who is not an employer cannot
commit the tort of wrongful discharge in violation of public policy; rather, he or
she can only be the agent by which an employer commits that tort.’ ” (Kim v.
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172
Cal.Rptr.3d 686], original italics.)
• Employees in both the private and public sector may assert this claim. (See
Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [4 Cal.Rptr.2d 203].)
• “Sex discrimination in employment may support a claim of tortious discharge in
violation of public policy.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th
191, 214 [126 Cal.Rptr.3d 651].)
• “In sum, a wrongful termination against public policy common law tort based
on sexual harassment can be brought against an employer of any size.” (Kim,
supra, 226 Cal.App.4th at p. 1351.)
• “To establish a claim for wrongful termination in violation of public policy, an
employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial
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motivating reason’ to express causation].) Claims of whistleblower harassment
and retaliatory termination may not succeed where a plaintiff ‘cannot
demonstrate the required nexus between his reporting of alleged statutory
violations and his allegedly adverse treatment by [the employer].’ ” (Ferrick v.
Santa Clara University (2014) 231 Cal.App.4th 1337, 1357 [181 Cal.Rptr.3d
68].)
• “It would be nonsensical to provide a different standard of causation in FEHA
cases and common law tort cases based on public policies encompassed by
FEHA.” (Mendoza v. Western Medical Center Santa Ana (2014) 222
Cal.App.4th 1334, 1341 [166 Cal.Rptr.3d 720].)
• “If claims for wrongful termination in violation of public policy must track
FEHA, it necessarily follows that jury instructions pertinent to causation and
motivation must be the same for both. Accordingly, we conclude the trial court
did not err in giving the instructions set forth in the CACI model jury
instructions.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302,
1323 [200 Cal.Rptr.3d 315].)
• “FEHA’s policy prohibiting disability discrimination in employment is
sufficiently substantial and fundamental to support a claim for wrongful
termination in violation of public policy.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [163 Cal.Rptr.3d 392].)
• “Although the fourth cause of action references FEHA as one source of the
public policy at issue, this is not a statutory FEHA cause of action. FEHA does
not displace or supplant common law tort claims for wrongful discharge.” (Kim,
supra, 226 Cal.App.4th at p. 1349.)
• “[T]o the extent the trial court concluded Labor Code section 132a is the
exclusive remedy for work-related injury discrimination, it erred. The California
Supreme Court held ‘[Labor Code] section 132a does not provide an exclusive
remedy and does not preclude an employee from pursuing FEHA and common
law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1381 [196 Cal.Rptr.3d 68].)
• “California’s minimum wage law represents a fundamental policy for purposes
of a claim for wrongful termination or constructive discharge in violation of
public policy.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 831–832 [166 Cal.Rptr.3d 242].)
• “ ‘Labor Code section 1102.5, subdivision (b), which prohibits employer
retaliation against an employee who reports a reasonably suspected violation of
the law to a government or law enforcement agency, reflects the broad public
policy interest in encouraging workplace “whistleblowers,” who may without
fear of retaliation report concerns regarding an employer’s illegal conduct. This
public policy is the modern day equivalent of the long-established duty of the
citizenry to bring to public attention the doings of a lawbreaker. [Citation.]
. . .’ ” (Ferrick, supra, 231 Cal.App.4th at p. 1355.)
• “That [defendant]’s decision not to renew her contract for an additional season
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might have been influenced by her complaints about an unsafe working
condition . . . does not change our conclusion in light of the principle that a
decision not to renew a contract set to expire is not actionable in tort.”
(Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th
676, 682 [145 Cal.Rptr.3d 766], original italics.)
• “ ‘ “[P]ublic policy’ as a concept is notoriously resistant to precise definition,
and . . . courts should venture into this area, if at all, with great care . . . .”
[Citation.] Therefore, when the constitutional provision or statute articulating a
public policy also includes certain substantive limitations in scope or remedy,
these limitations also circumscribe the common law wrongful discharge cause of
action. Stated another way, the common law cause of action cannot be broader
than the constitutional provision or statute on which it depends, and therefore it
‘presents no impediment to employers that operate within the bounds of law.”
[Citation.]’ ” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209
Cal.App.4th 750, 756 [146 Cal.Rptr.3d 922], original italics.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§222
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 5:47, 5:50, 5:70,
5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220, 5:235 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, § 5.45
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.52–100.58 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
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