Sheppard v. Freeman , 67 Cal. App. 4th 339 ( 1998 )

Opinion

McINTYRE, J.

After Christopher G. Sheppard was fired from his job with Southwest Airlines (Southwest), he sued both Southwest and coworkers Lou Freeman, Roni Hardiman, Alan Godfrey, Jon Tree, and Rod Jones, individually, for their alleged conduct relating to his termination. The trial court entered judgment in favor of the coworkers, after sustaining demurrers without leave to amend in favor of some and granting summary judgment in favor of others. Sheppard appeals, contending he may sue his coworkers for interference with contract and prospective economic advantage, libel, and infliction of emotional distress, based on their having falsely reported to Southwest that he was incompetent.

We hold that except where a statutory exception applies, an employee or former employee cannot sue other employees based on their conduct relating to personnel actions. We note that the right to sue for libel is governed by statute, and that the Legislature has prescribed the circumstances under which this cause of action and the defenses and privileges pertaining thereto, may lie. (See Civ. Code, §§ 43, 45, 47-48.) Thus, we reverse the judgment as it pertains to Sheppard’s claim for libel. We affirm the judgment as to all other causes of action.¹

Factual and Procedural Background

After four and one-half years as a first officer pilot for Southwest, Sheppard was terminated in June 1994 after he failed Southwest’s mandatory captain upgrade, as provided by the collective bargaining agreement between Southwest and the Southwest Airlines Pilot’s Association.²

Sheppard filed a grievance under the collective bargaining agreement over his termination. He claimed that evaluations of his performance had been falsified in an elaborate conspiracy among his coworkers, which caused him to fail to be upgraded to captain and ultimately caused his termination. Specifically, Sheppard contended that another pilot, Freeman, had had an extramarital affair with Hardiman, a flight attendant with whom Sheppard had had a bitter argument. After the argument, Hardiman harbored ill will toward Sheppard and used her influence over Freeman to secure his assistance in attempting to have Sheppard fired. Freeman then enlisted Tree, Jones and Godfrey (who was one of his subordinates) in the conspiracy, and they purportedly recruited other “check airmen” to fail Sheppard during his performance evaluations, which resulted in his termination. However, after a two-day hearing, an arbitration tribunal rejected Sheppard’s claims and upheld his termination.

Sheppard then filed a verified complaint arising from his termination against Southwest and his coworkers. Southwest removed the case to federal court, where the action against it for wrongful termination was dismissed as preempted by the Railway Labor Act. (45 U.S.C. § 151 et seq.) However, the court held that the act did not preempt Sheppard’s tort claims against individual defendants, and remanded those claims to the superior court.³

In the superior court, Jones and Tree filed demurrers and motions to strike, while Freeman, Hardiman and Godfrey filed answers and sought summary judgment. The trial court sustained the demurrers without leave to amend, granted the summary judgment motions, and denied Sheppard’s motion for leave to amend his complaint to allege that his coworkers were not acting within the course and scope of their employment with Southwest. Judgment was entered accordingly, and this appeal ensued.

Discussion

Disposition of this appeal turns on our resolution of an issue of first impression: whether an employee or former employee can sue other coemployees individually based on their conduct relating to personnel actions, e.g., termination, demotion, discipline, transfers, compensation setting, work assignments, and/or performance appraisals. We conclude that except where mandated by statute, such actions are barred, whether or not the employees are determined to have been acting within their scope of employment and regardless of their personal motives.⁴

The Holding of the Trial Court

The trial court sustained the demurrers brought by Tree and Jones without leave to amend, in part because it deemed that claims against coworkers for conduct related to Sheppard’s termination were barred by Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 663 [254 Cal.Rptr. 211, 765 P.2d 373], Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1178 [26 Cal.Rptr.2d 8, 864 P.2d 88], and Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390, 396, footnote 1, 404 [3 Cal.Rptr.2d 6], disapproved on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223, 876 P.2d 1022], The court also granted Hardiman’s, Freeman’s and Godfrey’s motions for summary judgment, based on Sheppard’s failure to create a triable issue that they were acting outside the course and scope of their employment, or were not protected by the managerial privilege (see Marin v. Jacuzzi (1964) 224 Cal.App.2d 549, 554 [36 Cal.Rptr. 880]).

Coworker Liability

We note that the issue at hand does not fall within the specific purview of Foley. Foley limited tort claims arising out of the termination of an employment relationship, holding that an employee has an actionable claim only where the employer’s conduct violates public policy. (See, e.g., Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 669-670; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 [4 Cal.Rptr.2d 874, 824 P.2d 680].) Indeed, to support a tort action for wrongful discharge, “ ‘. . . the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer,’ ” and must be “ ‘fundamental’ ” and “ ‘substantial,’ ” as well as “ ‘well established’ ” at the time of the discharge. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889 [66 Cal.Rptr.2d 888, 941 P.2d 1157], quoting Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 669-670.) However, these concerns pertain to employer liability to an employee, not to liability of coemployees. (See Jacobs v. Universal Development Corp. (1997) 53 Cal.App.4th 692, 704 [62 Cal.Rptr.2d 446] [only an employer can be liable for tortious discharge].)

Thus, we have found little analysis of coworker liability under the principles of Foley and its progeny.⁵ However, we recognize the deleterious effects on business if disciplined employees may avoid Foley’’ s bar by simply alleging malice and suing coemployees for damages on alternative tort theories, when the identical personnel action cannot give rise to tort damages against the employer. Indeed, Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965 [18 Cal.Rptr.2d 83], observes that, under Foley, the proper remedy against an employer for alleged falsified performance reviews is an action in contract. Hunter v. Up-Right, Inc., supra, 6 Cal.4th at page 1185, expressly embraces the proposition that false statements cannot serve as a predicate for tort damages otherwise unavailable under Foley. Here, all Sheppard’s claims arise from the termination, which he alleges was caused by a conspiracy of false reporting by coemployees. There is no suggestion in the record of any violation of public policy under Foley. To the contrary, the employee evaluation and reporting system which led to Sheppard’s termination from Southwest would appear to advance both corporate and public interests in safety. (49 U.S.C. § 44701(d).) Allowing coworkers to suffer liability would be anomalous under such circumstances.

The doctrine of respondeat superior also illustrates the inappropriateness of imposing liability on coworkers who participate in personnel actions, rather than on the employer. We start with the premise that personnel actions are a sine qua non of any business operation: “In order to properly manage its business, every employer must on occasion review, criticize, demote, transfer and discipline employees . . . [yet e]mployees may consider any such adverse action to be improper and outrageous.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal.Rptr. 308, 729 P.2d 743].) With this in mind, it is axiomatic that respondeat superior allocates risks based on policy, rather than on fault, and arises from “ ‘ “a deeply rooted sentiment” ’ ” that it would be “unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 [285 Cal.Rptr. 99, 814 P.2d 1341].) Indeed, the California Supreme Court has repeatedly emphasized the central justification for respondeat superior liability: “ Tosses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.’” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299 [48 Cal.Rptr.2d 510, 907 P.2d 358], quoting Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)

Based on a similar rationale, the Supreme Court recently held that individual supervisory employees cannot be personally liable under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) or for discharge in violation of public policy for discrimination relating to personnel management decisions. (Reno v. Baird (1998) 18 Cal.4th 640 [76 Cal.Rptr.2d 499, 957 P.2d 1333].)⁶ There, the court stated: “We do not decide merely whether individuals should be held liable for their wrongdoing, but whether all supervisors should be subjected to the ever-present threat of a lawsuit each time they make a personnel decision. Litigation is expensive for the innocent as well as the wrongdoer.” (18 Cal.4th at p. 663.) It concluded that in limiting the threat of lawsuit to the employer, a balance was being struck “between the goals of eliminating discrimination in the workplace and minimizing the debilitating burden of litigation on individuals.” (Ibid.)

Such a balance must also be achieved in the employment arena outside the context of FEHA, and for all employees, whether or not they are supervisors. Personnel actions are made for the benefit of the enterprise—the employer, and it is the employer, not the individual employees, that must bear the risks and responsibilities attendant to these actions. Naturally, personnel actions are made with the input of employees, both as part of their official duties and otherwise. Without such input, the employer would be making decisions and taking action in a vacuum, and indeed, effective management and operation of an enterprise to a significant extent depends upon the free exchange of information, concerns, and ideas of all employees. This can hardly occur when the individual employees face the prospect of being sued for this conduct.

Some of the information exchanged will be incorrect, even maliciously so. Thus, it will behoove the employer to be thorough in its investigation and analysis relating to personnel actions, not only to avoid civil liability (see Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 107 [69 Cal.Rptr.2d 900, 948 P.2d 412] [employer must conduct good faith investigation regarding basis for discharging employee]) and costly grievance procedures, but to retain and reward good employees and to root out those who are dishonest or who act with ulterior motives which undermine the effective operation of the company.

This does not guarantee that some cases will not “fall through the cracks.” Some employees will be discharged or demoted based on incorrect or false information from other employees that is not discovered by the employer through a good faith investigation, or revealed through grievance procedures.⁷ However, this risk is outweighed by the vital need for all employees to have the freedom to act and exchange information relating to personnel actions without fear and risk of being sued. As the Supreme Court reiterated in Reno, quoting Judge Learned Hand: “ 1 “It does indeed go without saying that an official [or here, an employee], who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials [or all employees], the innocent as well as the guilty, to the burden of trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties . . . ” (Reno v. Baird, supra, 18 Cal.4th at p. 652, quoting Gregoire v. Biddle (2d Cir. 1949) 177 F.2d 579, 581.)

The interest in allowing all employees the freedom to act and speak in relation to personnel actions without the threat of debilitating litigation outweighs the risk that a few employees will act maliciously and go undetected by their employers. Accordingly, we hold that an employee or former employee cannot sue individual employees based on their conduct, including acts or words, relating to personnel actions.

“Scope of Employment”

Here, Sheppard alleged in boilerplate language in his verified complaint that all the defendants were agents and employees of each other and acting within the scope of their employment. Later, he sought to amend his complaint to allege that the defendants were acting outside their scope of employment. The court denied this .motion, and granted summary judgment, ruling that Sheppard had failed to create a triable issue as to whether Hardiman, Freeman and Godfrey were acting outside the scope of their employment. Sheppard contends this ruling was error and that the court also erred in denying his motion to amend.

These contentions are moot, however, because our holding does not depend on whether an employee is determined to have been acting within his scope of employment while engaged in conduct relating to a personnel action. Although the “scope of employment” limitation may have facial appeal, this test undermines the purpose and balance struck in insulating employees from personal liability in order to allow, and indeed, encourage, employees to act and speak in relation to personnel actions. Otherwise, whether someone was acting within his or her scope of employment will simply become one of the issues battled over in the lawsuit, and all employees who dare to act or speak in this regard will be subjected to the risks of costly, burdensome litigation, the outcome of which may not be determined for years.

Moreover, all employees, regardless of their job descriptions, responsibilities or “scope” should be permitted to speak or act freely in relation to personnel actions. If any employee learns of wrongdoing, misconduct, or incompetence by another employee, he or she should be able to inform the employer or otherwise act without having to worry if doing so falls within his or her “scope of employment” and whether he or she will be sued.

The difficulty with the scope of employment limitation is illustrated by the circumstances of this case. Godfrey, Freeman and Hardiman do not stand on equal footing in terms of “scope of employment.” Godfrey was a check airman who administered one of Sheppard’s flight tests. Thus, it would appear that he was acting within the scope of his employment in evaluating Sheppard. Freeman was the chief pilot for Southwest’s Chicago base, but was not among Sheppard’s superiors or flying partners. Thus, it is unclear whether, or under what circumstances, Freeman could be found to be acting within the scope of his employment. Hardiman, a flight attendant, had no responsibility for evaluating Sheppard; thus, it would seem that she was not acting within the scope of her employment. However, flight attendants should not be discouraged from acting upon, reporting or otherwise exchanging information regarding a pilot simply because doing so is not within their job description and thus, they risk being sued. The same is true of employees in other industries. The freedom to act and speak in relation to personnel actions should not turn on whether doing so is determined, years later, to be within an employee’s “scope of employment.”

Libel

Sections 43 through 48.5 of the Civil Code provide a scheme governing recovery for and defenses to defamation, and Sheppard’s allegations pertaining to his claim for libel are patterned after the libel and defamation statutes set forth therein. (See Civ. Code, §§ 45, 46.) However, as additional grounds for sustaining the demurrers in favor of Tree and Jones, the court ruled that Sheppard failed to allege that these two defendants published libelous statements as required under Civil Code section 45. Similarly, as additional grounds for granting summary judgment in favor of Hardiman, Freeman and Godfrey, the court ruled that Sheppard had failed to show that anyone except Godfrey had published libelous statements, and had failed to show that any publication was not privileged. (See Civ. Code, §§ 45, 47.)

Sheppard points out that he alleged that all defendants acted in concert and engaged in a conspiracy to defame him, and further argues that there is an issue of fact as to whether the publications were made with malice and thus were not privileged under Civil Code section 47. We note that liability for libel may be imposed on a conspiracy theory. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 827-828 [33 Cal.Rptr.2d 446]; see also Osmond v. EWAP,Inc. (1984) 153 Cal.App.3d 842, 852 [200 Cal.Rptr. 674] [general rule is that “. . . everyone who takes a responsible part in the publication is liable for the defamation” (italics in original)].) Thus, we must reverse the demurrers sustained in favor of Tree and Jones on the cause of action for libel. Likewise, we must reverse the summary judgments entered in favor of the remaining defendants on this cause of action and remand the matter for the court to determine whether an issue of fact exists as to whether any of the defendants acted with malice. (See Civ. Code, § 47, subd. (c).)

Conclusion

Employees must be allowed to act and speak freely in relation to personnel actions without fear and risk of being sued for doing so. It is the employer that ultimately benefits from, and thus, must bear the risks attendant to, the free exchange of information. Accordingly, we hold that employees, regardless of their scope of employment or personal motives, cannot be individually hable for their acts or words relating to personnel actions unless such liability arises from statute. Thus, we uphold the trial court’s granting of summary judgment and sustaining the demurrers without leave to amend as to all tort causes of action against Freeman, Hardiman, Godfrey, Tree and Jones except libel.

Disposition

The judgment is reversed and remanded as it pertains to the cause of action for libel; it is affirmed in all other respects. The parties are to bear their own costs on appeal.

Nares, J., concurred.

1 Sheppard’s causes of action other than libel are not based on any statute, but rather, were created by the common law. Thus, for the reasons set forth herein, it is proper and appropriate for the court to limit them in the employment context.

2 The Railway Labor Act mandates resolution of all disputes concerning the terms of collective bargaining agreements through internal grievance and appeal processes, culminating in binding arbitration before tribunals called boards of adjustment. (45 U.S.C. § 153 First, Second; Consol. Rail Corp. v. Railway Labor Executives (1989) 491 U.S. 299, 302 [109 S.Ct. 2477, 2480, 105 L.Ed.2d 250].)

3 It appears that federal legislation enacted in 1996 would also prevent Sheppard or any other person who applies for a job as a pilot from bringing state tort claims against former coemployees who have entered any information on his job records, including pilot evaluations. (49 U.S.C. § 44936(g).) Here, Sheppard has not brought his tort claims as a job applicant who alleges harm based on the sharing of his records. (See 49 U.S.C. § 44936(f) & (g).) Rather, his claims derive solely from his termination from Southwest and are outside the purview of 49 United States Code section 44936(g).

4 We do not intend by this opinion to limit coemployee liability for torts involving physical injury.

5 We also have found only limited analyses of the issue of coworker liability in other states. Of those which have considered the question, several took approaches which reflected the need to contain burgeoning liability theories in this arena. The Minnesota Supreme Court in dicta rejected suits against coworkers, on grounds the coworkers’ conduct was not a cause of the dismissal as a matter of law. (Nordling v. Northern States Power Co. (Minn. 1991) 478 N.W.2d 498, 507.) Similarly, the Indiana Supreme Court found the employer essentially substituted its will for that of the individual who committed the tortious acts. (Perry v. Stitzer Buick GMC, Inc. (Ind. 1994) 637 N.E.2d 1282, 1287.) One Georgia court of appeal took the position that critical expressions of personal opinion arising from a personality conflict should simply not be litigated in a court of law. (Singleton v. Itson (1989) 192 Ga.App. 78 [383 S.E.2d 598, 599].)

6 The court distinguished harassment under FEHA from discrimination in business or personnel management decisions. (18 Cal.4th at pp. 645-646.) We note that a cause of action for sexual harassment is governed by statute (see Gov. Code, § 12940) and we do not purport to limit it. Indeed, contrary to the dissent’s suggestion, this opinion does not create “a sweeping new immunity”; what it does, is properly limit the “piling on” of boundless nonstatutory tort claims.

7 Of course nothing prevents an employer from taking action against an employee if it subsequently discovers that he or she has lied or otherwise furnished misinformation or acted dishonestly.