Grant-Burton v. Covenant Care, Inc.

122 Cal.Rptr.2d 204

99 Cal.App.4th 1361

Sharron D. GRANT-BURTON, Plaintiff and Appellant, v. COVENANT CARE, INC., Defendant and Respondent.

No. B151342.

Court of Appeal, Second District, Division 1.

July 10, 2002.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing July 30, 2002.

Anita Grace Edwards, for Plaintiff and Appellant.

Keith A. Fink & Associates, Keith A. Fink, Los Angeles, and Roksana Ghodsian, for Defendant and Respondent.

MALLANO, J.

In this wrongful termination case, the employer discharged an employee, in part because she had participated in a group discussion with other employees about the fairness of the employer's bonus system. The trial court granted the employer's motion for summary judgment.

We conclude that the employee had a fundamental right rooted in public policy to join in a discussion with other employees about whether they were being equitably compensated. Labor Code section 232 prohibits the discharge of employees for discussing the amount of their wages. We therefore reverse as to the wrongful termination claim.

I BACKGROUND

Defendant Covenant Care, Inc., owns 42 skilled nursing and assisted-living facilities, each of which is supervised by an executive director, sometimes called an administrator. Each facility also has a marketing director. At some facilities, the employees are unionized.

On June 8, 1998, plaintiff Sharron Grant-Burton commenced employment with Covenant Care, working as the marketing director at the Candlewood Care Center. In that capacity, she went to various medical facilities and promoted the use of Candlewood for patients who needed skilled nursing services. When a new patient arrived at Candlewood, Grant-Burton handled the admissions paperwork. D'Anna Westbrook, the executive director at Candlewood, was Grant-Burton's immediate supervisor. Grant-Burton was not a union member. She was an at-will employee. 16 member.

In late 1998, Westbrook asked Grant-Burton to be the program manager of the Alzheimer's unit. Grant-Burton agreed. She attended classes on the subject, at Covenant Care's expense. After Grant-Burton assumed her duties in the Alzheimer's unit, she remained the marketing director but no longer handled the paperwork for new admissions.

On February 4, 1999, Grant-Burton attended a corporate meeting of Covenant Care's marketing directors for Southern California. One of the seven directors brought up the subject of bonuses, asking, "Hey, you guys, how is your bonus structure? How is it set up?" Three or four of the directors said they received bonuses based on an increase in the number of patients or an increase in growth at their facility. One director offered to show the structure of her bonus, saying, "The bonus structure at [my facility] involves a quality mix in that each area has a dollar sign by it: HMO contracts, the overall census of the facility, and your quality mix." The remaining directors, who did not receive bonuses, were surprised to learn that the others did.

During the meeting, Grant-Burton said she did not receive a bonus because Westbrook "did not believe in [them]." Grant-Burton also said she did not care whether she received a bonus because Covenant Care was paying for her continuing education, namely, the classes that prepared her to be the program director of the Alzheimer's unit.

As Covenant Care's director of human resources would later testify about the meeting, "[T]he issues were shared amongst the other marketing and admissions directors, that some had bonuses, some did not have bonuses. And generally, the conversation was `Well, is that fair; is that not fair? Shouldn't we all have one?' And it's just generally discontent around bonuses."

The day after the meeting, one of Covenant Care's executive directors, Ted Stultz, sent an e-mail to the other executive directors, stating he was "upset" that "discussions of pay and bonus went on." Stultz said that the marketing directors were "not there to be talking about money...." The e-mail mentioned that Stultz's marketing director was offended by the discussion.

Another executive director, John Mastrocola, testified in deposition that he, too, thought the discussion about bonuses was inappropriate. As he put it, "[I]f I'm going to be in with administrators, I don't want to hear administrators talking about what they're making and if they're making a bonus, you know, ... that's personal." Mastrocola also stated: "It happened once before. We had a maintenance supervisor meeting, and it got back to me.... I said, `Look, you're going to offend some people when you talk about salary.' Nobody can hold a gun to your head and say you can't do it, but it's just, you know, some people are offended, so don't do it."

On February 10, 1999—six days after the marketing directors' meeting—Westbrook went to Grant-Burton's office and fired her. Westbrook said that the discharge was based on what Grant-Burton had said at the February 4 meeting. When asked, Westbrook declined to say what that was. Westbrook also said Grant-Burton was being terminated because she did not have Candlewood's best interests at heart and was unhappy there, which Grant-Burton denied. The termination papers indicated that the discharge was based on a violation of company rules. Grant-Burton asked what rule had been violated. Westbrook did not say. Toward the end of the meeting, Westbrook said, "This is an at-will company, and I don't need a reason to fire you."

Grant-Burton appealed her discharge within the company. Jacqueline Harlow, the director of human resources, investigated the matter. In a letter addressed to Grant-Burton on March 9, 1999, Harlow mentioned a number of reasons for the discharge. In part, she wrote, "When Ms. Westbrook discovered that you had participated in a discussion surrounding whether or not all Marketing Directors in the Southern California area received a bonus for their efforts and made derogative statements in a public forum about your Executive Director once again, it was the final straw."

During the investigation, Harlow learned that both Westbrook and Mastrocola were "disturbed" that the marketing directors had discussed bonuses. At her deposition, Harlow was asked if the discussion of bonuses was one of Westbrook's reasons for discharging Grant-Burton. Harlow replied, "That was one." Mastrocola testified that, before the February 4, 1999 meeting, the marketing directors routinely met on a monthly basis. After February 4, management decided that the meetings would be held on a quarterly basis, due in part to the discussion about bonuses.

Eventually, Grant-Burton went to work at another skilled nursing facility. She continued to work in marketing and, apparently, was successful at it. During a meeting of department heads at Candlewood, Westbrook said, "[Grant-Burton] is out there stealing our patients." Westbrook's statement was repeated to others—to some of the employees at Candlewood and the case manager at Pacific Hospital who placed patients in skilled nursing facilities.

On February 10, 2000, Grant-Burton filed this action against Covenant Care, alleging claims for wrongful termination in violation of public policy, defamation, breach of contract, breach of the covenant of good faith and fair dealing, and a violation of Labor Code section 232.

Covenant Care filed a motion for summary judgment or, in the alternative, summary adjudication of issues. Grant-Burton filed opposition. The trial court granted the motion and entered judgment in favor of Covenant Care. Grant-Burton filed a timely appeal.

II DISCUSSION

Based on the principles governing summary judgment and the substantive law applicable to Grant-Burton's claims, we conclude that the cause of action for wrongful termination in violation of public policy should not have been summarily adjudicated.

A. Summary Judgment

A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

"`A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... [T]he moving party's affidavits are strictly construed while those of the opposing party are liberally construed.' ... We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence .... In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178-179, 70 Cal. Rptr.2d 96, citations omitted.)

"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon.... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, citation and fn. omitted.)

"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of...