Muller v. Automobile Club of So. California

Page 573

71 Cal.Rptr.2d 573

61 Cal.App.4th 431, 63 Cal. Comp. Cases 165, 7 A.D. Cases 1364,

12 NDLR P 17, 98 Cal. Daily Op. Serv. 1023,

98 Daily Journal D.A.R. 1369

Anne MULLER, Plaintiff and Appellant, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent.

No. D024497.

Court of Appeal, Fourth District, Division 1, California.

Feb. 9, 1998.

Review Denied May 27, 1998.

[61 Cal.App.4th 435] Jon Y. Vanderpool, San Diego, for Plaintiff and Appellant.

Gray, Cary, Ware & Freidenrich and Cindy M. Cipriani, San Diego, for Defendant and Respondent.

O'Melveny & Myers, Stephen P. Pepe and Steven M. Cooper, Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

HADEN, Associate Justice. ^*

In this wrongful termination action plaintiff Anne Muller sued her former employer, Automobile Club of Southern California (Auto Club), for harassment based on a mental disability and medical condition in violation of the Fair Employment and Housing Act (FEHA) (GOV.CODE, § 12900¹ et seq.), breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination in violation of public policy. The court granted Auto Club's motion for summary judgment on the ground California's workers' compensation scheme provides the sole remedy for all of Muller's claims because they arose out of a work-related injury. We affirm on various other grounds.

FACTUAL AND PROCEDURAL BACKGROUND

Muller was employed by Auto Club from October 1977 through February 1994. On April 26, 1993, while working as a claims adjuster at Auto Club's Escondido district office, Muller informed an Auto Club insured that he would have to make two deductible payments on a claim for damage to his vehicle caused by more than one accident. The insured's son, Mr. Williams, Jr. (Williams), became incensed by Muller's interpretation of his father's policy and made a series of angry and threatening calls to Muller in which he repeatedly berated and shouted obscenities at her. At some point during this series of calls, coworkers informed Muller that Williams was on his car telephone in the parking lot waiting for her to leave work. Consequently, a police officer escorted Muller to her car at the end of the workday. Fearing for her safety, Muller contacted the Auto Club employee assistance hotline that evening and requested the first available time for a counseling session.

After Williams threatened Muller, certain Auto Club employees made what Muller felt were insensitive, teasing remarks about the incident. Her supervisor Jack Lape asked her, "Anne, did you wear your target today?"

On May 3, 1993, Muller left work early in tears over a disagreement with her assistant supervisor, Evelyn Blake. On May 5, Lape, Blake, and Auto Club regional manager Frank Mieczkowski met with Muller and informed her that her altercation with Blake constituted insubordination. Muller told them she was experiencing fear and anxiety for her safety in the wake of the threats by Williams and requested that certain measures be taken to accommodate her fear.

On the afternoon of May 5, Muller saw Williams sitting at the employee's lunch table adjacent to Auto Club's parking lot. When Muller confronted Lape and Mieczkowski about Williams's presence on company property, they laughed and Lape told her he had informed Williams where she lived and what kind of car she drove.

On May 12, an Auto Club supervisor of travel services said to Muller, "I'm glad to see you're still alive."

On May 10 and 11, Muller saw Dr. Rosben Gutierrez for psychological counseling. Dr. Gutierrez diagnosed Muller as suffering from post-traumatic stress disorder ² and prescribed various medications, including Klonopin and Paxil. Muller continued counseling sessions with Dr. Gutierrez and Dr. Martin Cary through May and June. The prescription medications she took during that period impaired her ability to perform her job duties. After several successive absences from work, Muller was told Auto Club's personnel policy required her to take a leave of absence. Muller began her leave of absence on June 15 and never returned to work.

In July Muller was referred to Dr. J. Brand Brickman for a psychiatric evaluation. Dr. Brickman diagnosed Muller as suffering from "Adjustment Disorder with Anxiety" and concluded she had a "Temporary Total Psychiatric Disability." From July through September, Dr. Brickman and two of his colleagues, Dr. Robert Zink and social worker Lucinda Nerhood, counseled Muller. Dr. Brickman took Muller off all the medications previously prescribed except the antidepressant Paxil. Muller's anxiety decreased and she became progressively more functional under the care of Dr. Brickman and his colleagues.

Through Nerhood, Muller communicated to Auto Club specific safety / security measures she wanted Auto Club to implement to accommodate her fear for her safety in the workplace. Nerhood also communicated Muller's request that Auto Club remove from her personnel file the May 5 counseling interview in which she was accused of insubordination.

On August 23, Muller telephoned district office manager Carolyn Tsuida and Auto Club personnel representative Kimberly Klink to determine what progress Auto Club had made in addressing her safety concerns. Tsuida did not call Muller back. According to Muller's declaration, Klink told her efforts were underway to update Auto Club's safety policies and procedures. Muller testified that she believed Auto Club would be providing her with an updated written safety program. However, Klink testified that she understood Muller sought only a copy of the existing safety manual and written confirmation that the insubordination matter had been removed from her file, and wanted Auto Club to conduct safety meetings with its employees.

Auto Club complied with most of Muller's requests. Klink informed Muller that Rod Middleswart was being reassigned to the Escondido district office as claims supervisor to further accommodate her safety concerns. Middleswart was chosen because of his prior involvement in a shooting incident in Auto Club's East San Diego office in which a female employee was killed. Middleswart sent Muller a letter notifying her that the May 5 counseling interview had been removed from her file. In October Muller received a copy of Auto Club's written safety policies and procedures. Muller noted that the policies and procedures had been updated on May 18, 1993, but the specific security procedures regarding threatening telephone calls had not been changed since February 1992.

Muller felt that Auto Club was not adequately addressing her safety concerns. In an agreed upon reevaluation of Muller's psychiatric condition dated September 15, 1993, Dr. Brickman noted a breakdown in negotiations between Muller and Auto Club. Dr. Brickman concluded that as a result of Muller's experiences with Auto Club following Williams's threats, it would be impossible for Muller to return to work for Auto Club, although she was fully able to work elsewhere. Accordingly, Dr. Brickman deemed Muller to be a "Qualified Injured Worker."

Dr. Brickman's final report resulted in an agreement between Klink, workers' compensation claims adjuster Diane Klatt, and Muller's workers' compensation attorney Randy Mason that Auto Club would provide Muller vocational rehabilitation services. Muller expressed a desire to "get out of the claims industry altogether." In November 1993 Klink told Muller she would be terminated after she completed her vocational rehabilitation. Muller completed her retraining in February 1994 and began working for Tool Time Construction as a bookkeeper on March 1.

During a visit to Auto Club's Escondido office on March 4, Muller was given a final paycheck and told she had been "resigned" from her position with Auto Club.

In June 1994 Muller filed a claim for harassment based on mental disability and medical condition with the California Department of Fair Employment and Housing (DFEH). She also filed a federal disability discrimination claim with the Equal Employment Opportunity Commission (EEOC). The EEOC investigator assigned to her claim informed Muller she was not a qualified individual with a disability under the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.).

After obtaining right-to-sue letters from EEOC and DFEH, Muller filed an action in federal court on July 25, 1994, for discrimination based on disability, harassment of a disabled individual, breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination in violation of public policy. On February 27, 1995, Muller filed the instant action in superior court, alleging the same causes of action.

In April 1995 Auto Club moved for summary judgment in the federal action as to all of Muller's claims. The federal court granted summary judgment as to Muller's ADA cause of action on the ground she was not disabled under the ADA. The federal court declined to exercise its discretionary jurisdiction over Muller's state law causes of action and, accordingly, dismissed them without prejudice.

On May 2, 1995, Muller filed a first amended complaint dropping the ADA cause of action adjudicated by the federal district court. Auto Club then successfully moved for summary judgment.

DISCUSSION

On appeal from a ruling on a motion for summary judgment, the appellate court conducts its own independent review of the moving and opposition papers and applies the same standard as the trial court in determining whether the motion was properly granted. The appellate court is not bound by the trial court's stated reasons for its ruling on the motion, as the appellate court reviews only the ruling and not its rationale. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731, 284 Cal.Rptr. 687.)

I Claim for Disability Harassment Under FEHA

The FEHA provides in pertinent part: "It shall be an unlawful...