Boisvert v. Martinez Unified School District

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GERLOMA G. BOISVERT, Plaintiff and Respondent, v. MARTINEZ UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

A096669.

Court of Appeals of California, First Appellate District, Division Three.

Filed July 16, 2003.

Contra Costa County Super. Ct. No. C00 01476.

Judgment Vacated.

McGuiness, P.J.

Martinez Unified School District (the District) appeals from a judgment entered on a jury verdict in favor of Robert Boisvert (Boisvert), now deceased, on the latter's cause of action for intentional infliction of emotional distress and the trial court's order denying the District's motion for judgment notwithstanding the verdict on that cause of action. The District argues that Boisvert improperly filed suit on his alleged cause of action for intentional infliction of emotional distress without first presenting it to the District in accordance with the Tort Claims Act (Gov. Code, § 810 et seq.); and that there was insufficient evidence to support the jury's verdict in Boisvert's favor. Respondent Gerloma G. Boisvert, successor in interest to Robert Boisvert,¹ contends that the trial court properly denied the motion for judgment notwithstanding the verdict because under the factual and procedural circumstances of this case Boisvert was not required to file any tort claim with the District; and there was substantial evidence to support the verdict in Boisvert's favor on the cause of action for intentional infliction of emotional distress.

We conclude that the trial court did not err in determining that Boisvert's claim of intentional infliction of emotional distress was exempt from the procedural requirements of the Tort Claims Act because it was incidental to the underlying age discrimination claim made under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). However, because there was insufficient evidence to support the jury's verdict on the cause of action for alleged intentional infliction of emotional distress, the trial court erred in failing to grant the District's motion for judgment notwithstanding the verdict. We therefore reverse and remand with instructions to enter judgment for the District.

FACTUAL AND PROCEDURAL BACKGROUND

Boisvert was 70 years old at the time of filing the complaint in this action in April 2000. In June of 1988, he applied for a job with the District. As part of his application, he had to successfully pass a test, and was fingerprinted at the Martinez Police Department as part of a background check. Boisvert was hired and began work as a part-time substitute custodian. In 1989, after an oral interview, he obtained a permanent position, and ultimately gained full-time employment. During his employment Boisvert's performance evaluations consistently showed that he met or exceeded District expectations. At the time of his first employment with the District, Boisvert was 57 years old.

In August 1996, Boisvert voluntarily retired and moved to Washington state with his wife. Two years later, they moved back to Martinez, and in August 1998, Boisvert applied for re-employment with the District. As part of his application, he was again required to have his fingerprints taken. The District immediately rehired Boisvert as a substitute custodian. In late September 1998, Boisvert's immediate supervisor, Bobby Boyd, told him to go see Richard McLaughlin, the director of personnel. When Boisvert met with McLaughlin, the latter told him that a check of Boisvert's fingerprints had revealed he had suffered two felony convictions approximately 40 years earlier. McLaughlin said Boisvert could no longer work for the District as a result of "a new law."

The first felony, involuntary manslaughter, was incurred in 1957 when Boisvert accidentally killed a pedestrian while backing up his automobile in a parking lot. Boisvert incurred the other felony, attempted burglary, after being arrested with his brother-in-law "on top of" a local building, intoxicated. Contrary to what McLaughlin told Boisvert, neither of these felonies was the kind of violent or serious felony which by statute would bar an individual from employment by a school district. (Gov. Code, § 45122.1; Pen. Code, §§ 667.5, subd. (c), 1192.7, subd. (c).) In March 1999, with the assistance of the Public Defender's Office and the Probation Department, Boisvert was able to have both felonies reduced to misdemeanors. Boisvert showed the paperwork evidencing the reduction in his prior convictions to District school superintendent Scott Brown. Saying "everything looks good," Brown told Boisvert to "take it in to Rich [McLaughlin] and tell him to put you back in the work force." When Boisvert did so, he thought McLaughlin was "kind of cold," and "didn't seem too happy that I went past him" to superintendent Brown.

Boisvert was thereafter reinstated as a substitute custodian. Beginning in March 1999, he began to receive calls to serve as a substitute custodian from Phyllis Fierner, the District employee in charge of contacting individuals from the list of substitute custodians. However, Boisvert told Fierner that he did not want any substitute custodial work at the high school, because he and the head custodian there "just could not get along."

In the summer of 1999, Boisvert learned that the District had openings for several permanent custodial positions. In August, along with 14 other applicants, Boisvert took the written test and, as one of the 12 who passed the test, was interviewed for one of the custodial positions. The interview lasted approximately 15 minutes. The four members of the interview panel were District employees selected by Boyd, who also attended the interview. Although Boyd introduced each of the applicants to the panel, he did not participate in the actual scoring. Boisvert did not finish among the top four applicants, who were given the four full-time positions. Four days after the interview, Boyd telephoned Boisvert and told him he had not scored high enough on the interviewers' evaluation forms, and was not going to be hired for any of the four positions. One individual (A.H.) who scored below Boisvert was hired as a part-time food service driver; another (C.T.) who scored substantially below Boisvert was subsequently given a temporary "floater-type" custodial position on a one-year contract.

Despite his failure to secure one of the permanent full-time custodial positions, Boisvert continued working as a substitute custodian. In September 1999, he asked Fierner to remove his name from the list of substitute custodians because he had worked the maximum number of hours permitted under his Social Security benefit plan. Boisvert then asked to be placed back on the list of available substitute custodians in late November 1999, just before Thanksgiving. Fierner told him: "that's great; we're glad to have you back."

In November 1999, Boisvert noticed that another permanent full-time custodial position had opened at John Muir elementary school in the District. On November 12, 1999, Boisvert wrote a letter to custodial supervisor Boyd, with a copy to McLaughlin, expressing interest in the position and stating his belief that he was "the most qualified, most dependable and most responsible person available for the position." Having heard a rumor that Boyd had made comments to the effect that Boisvert was too old for such work, Boisvert went on to write: "I don't want to believe that my age would keep me from getting a full time position with the school district." One week later, Boyd telephoned Boisvert, and told him that he had talked with McLaughlin, and "they had no qualms" about Boisvert working for the District.

The interviews on the new position were held in January 2000. The four-person interview panel was selected by the school principal. None of the individuals selected for the interview panel on this occasion had been on the panel that had interviewed Boisvert in August 1999. As before, Boyd introduced each of the applicants to the panel, but did not participate in the scoring. Boisvert did not receive this position, which was instead awarded to an individual who scored higher than Boisvert on the interviewers' evaluation forms.

Subsequently, Boisvert learned from several District custodial employees that Boyd had made comments to the effect that Boisvert was too old to be hired for a permanent custodial position. However, none of Boyd's alleged age-related comments was made in connection with or around the time of Boisvert's actual applications for employment. Boyd himself denied making any such comments. In March 2000, Boisvert complained to Fierner that he had never been called for substitute custodial work since late November 1999. Fierner testified that she had actually called Boisvert several times during this period, but there was no answer. In accordance with her usual practice, she did not leave any messages.

On March 29, 2000, Boisvert filed a claim of age discrimination with the California Department of Fair Employment and Housing under FEHA. After receiving a right-to-sue letter, he filed a complaint against the District on April 12, 2000, without having previously filed a tort claim directly with the District itself. Boisvert's complaint alleged four causes of action: (1) age discrimination; (2) failure to take all reasonable steps to prevent age discrimination from occurring; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.

Trial commenced on July 9, 2001. At the close of Boisvert's case-in-chief, the District moved for nonsuit on all causes of action. The trial court granted the motion as to the fourth cause of action for negligent infliction of emotional distress, but denied it without prejudice as to the remaining three causes of action. At the close of its case, the District moved for a directed verdict on the third cause of action for intentional infliction of emotional distress, citing Boisvert's...