Amador v. Unemployment Insurance Appeals Board ( 1984 )

GRODIN, J.

While I agree with the views expressed in the majority opinion, I write separately because I believe the dissenting opinion merits response.

The premise of the dissent, if I understand it correctly, is that no distinction exists between the question whether an employer may lawfully terminate an employee for refusing to obey a particular order and the question whether an employee who is so terminated may nevertheless be entitled to unemployment compensation under certain circumstances. Only that premise can account for the dissent’s reliance upon the finding of the civil service commission that plaintiff was insubordinate, and for its suggestion that the majority somehow believes in rewarding misconduct and insubordination.

In my view that premise is fundamentally wrong, and cannot coexist with the Court of Appeal’s opinion in Rabago v. Unemployment Ins. Appeals Bd. (1978) 84 Cal.App.3d 200 [148 Cal.Rptr. 499], upon which the majority correctly relies. That opinion holds that an employee’s “reasonable, good faith and honest fear of harm to one’s health or safety from the work environment and conditions of employment falls within the ambit of good cause” for quitting employment. (Id., at pp. 210-211.) While Rabago involved an employee’s concern with potential lead poisoning from the work environment, the same reasoning would logically apply if an employee refused to comply with a particular order which he believed, reasonably and in good faith, to pose a threat to his health or safety, and either quit or was fired on that account. The employee would remain qualified for unemployment insurance and the fact that the employer might have acted lawfully in firing him would not alter that result. The real question in this case is not whether Chope lawfully fired Ms. Amador, but whether Rabago extends to protect an employee whose concern is with the health and safety of others. The majority’s affirmative answer to that question is, in my view, correct.

The applicable analysis might well be different if Ms. Amador had known, when she accepted employment at Chope, that her job duties would entail grosscutting on tissue removed from live patients, for there might then be an element of unfairness in permitting her to leave on that account and still collect unemployment benefits. But it is quite clear from the record that this was not the case. Ms. Amador’s prior training and work experience at Stanford and Oxford University Hospitals was entirely consistent with her uncontroverted testimony that when she took the job she had no idea, or reason to believe, that she would be called upon to perform such work. Nothing in the actual job description indicated that she would be required to do so,¹ and the trial court’s finding that the instructions given her were “within her job description” is not to the contrary. In context, that finding simply represents the trial court’s conclusion that the employer was entitled to insist that she perform the work, and to fire her for not doing so. That conclusion, for the reasons discussed above, does not determine the issue here.

If Ms. Amador had been aware that she would be called upon to do gross-cutting on tissues removed from live patients at Chope, and had refused employment on that account, it seems clear that her refusal would not have resulted in her disqualification from receiving unemployment benefits. As this court declared in Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 63 [141 Cal.Rptr. 146, 569 P.2d 740], “an applicant for benefits need not accept work which presents a risk to his ‘health, safety, and morals,’ or which fails to correspond to his ‘physical fitness and prior training.’” Where, as here, the employee at the time she accepts employment is reasonably unaware of the employer’s practice which she considers to be unsafe, and contrary to her prior training, I see no compelling argument for a different result.

1 The job description given in the county announcement of a job opening for “Tissue Technician” in March 1976, the only description in the record, specified:

“Under supervision, prepares surgical and autopsy tissue specimens by paraffin method, including imbedding, cutting, and staining sections; prepares frozen tissue sections; may photograph gross and microscopic preparations for use in teaching and for other purposes; prepares and stains cytology smears and millipore preparations; prepares and stains bone marrow smears; uses microtome, autotechnicon, and related equipment; maintains files of microscope slides and tissue blocks; assists in filing and coding tissue records; maintains laboratory tools, equipment and stocks of supplies; performs related duties as required.”

A fair reading of this job description does not warn that the employee will do gross cuttings; it states rather that he/she will prepare specimens which may include cutting “the specimen.” Even were that read to mean doing gross cutting, the job description states this will be done under supervision, which a technician would assume means under the supervision of a pathologist.