Dabbs v. Cardiopulmonary Management Services

SONENSHINE, J.

I respectfully dissent. I concur with the majority’s general conclusion. An employee alleging retaliatory discharge, based on violation of public policy, need not claim and prove termination resulted from asserting rights embodied in statutes or regulations rather than in a more general public policy. However, I cannot find that general proposition is applicable here for reasons discussed, post.

The plaintiff alleged she was dismissed “when [she] advised [her supervisor] that she could not work in the respiratory care department as the only experienced therapist when customarily there were three experienced therapists to service the patients on the subject ‘P.M.’ shift. In fact [she] protested her assignment to work under these conditions because the health, safety and physical well-being of the patients would thereby have been placed in jeopardy. [She] accordingly alleges that her termination was retaliatory in nature for her refusal to continue working in conditions that would have endangered patient safety and health and accordingly violate fundamental public policy of the State of California.” (Italics added.)

In Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290 [188 Cal.Rptr. 159], the appellate court held the plaintiff’s complaint was sufficient to state a cause of action for wrongful termination. Hentzel alleged, as a result of his efforts to obtain a smoke-free environment, he had been harassed and eventually fired.

The court recognized the question was “not whether [the employer] acted unlawfully by failing to accede to [the employee’s] protests, but whether it ‘violated an express statutory objective or undermined a firmly established principle of public policy’ by discharging [the employee] for making them.” (Id., at pp. 295-296, fn. omitted.) The court had no difficulty in finding authority upon which the plaintiff could rely. The court pointed to Labor *1446Code sections 923 and 6400 et seq. The major issue in Hentzel, however, was whether the plaintiff’s common law cause of action for retaliatory discharge survived the statutory remedies now provided in Labor Code section 6300 et seq. The court noted it did.

The Hentzel plaintiff could as well have proceeded under the Labor Code. The court noted Labor Code section 6310 forbids retaliatory discharge for lodging a complaint with a division of California’s Occupational Safety and Health Act (OSHA) or the employer concerning employee safety. The section specifically applies to “any oral or written complaint... with reference to employee safety or health.” Thus, “an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he [or she] reasonably believes to be unsafe, whether or not there exists at the time of the complaint [a] standard or order which is being violated.” (Id., at pp. 299-300, fn. omitted, italics added.)

But our facts are distinguishable. Our plaintiff did more than lodge a complaint; she walked off the job. OSHA specifically addresses, in Labor Code section 6311, the separate and distinct activity of discharge for refusal to work or discharge for refusal to perform certain assignments. Section 6311 “protects the more drastic conduct of refusing to work only where some ‘occupational safety or health standard or any safety order of the division or standards board will be violated . . . .’” (Id., at p. 299.)

By analogy, if Dabbs had been fired, while working, because of her subjective concerns for the patients, she could state a cause of action for wrongful termination. She need not allege violation of a specific statute, standard or regulation to avoid dismissal at the pleading stage. However, she initiated her absence from the job by refusing to work. Therefore, she must allege a particular violation, and this she has not done.

I would conclude this result is in accord with the statutory references discussed ante, supported by sound public policy. When a concerned employee, under these circumstances appropriately complains to the employer, notice has been given and changes can be made. But when an employee simply removes herself, she has left the employer in an untenable position. There are no rules for the employer to follow: the employer is forced to accede to the personal demands of the employee or face a wrongful termination suit.1 Therefore, an employee who refuses to work must be able to point to a specific regulation or similar enactment. It is one thing to emphasize an employee’s subjective motives when the employee has been uncere*1447moniously removed from a position, and the right to remuneration severed, by the employer. It is quite another to allow subjective criteria as the basis for damages for wrongful termination when it is the employee’s decision to interrupt the work flow and refuse to continue on the shift. Here, the unemployment is voluntary.

I would therefore find the trial court’s ruling is correct, albeit for the wrong reason. To the extent the lower court’s ruling may be interpreted to bar any action for wrongful termination based on public policy undefined by a specific statute, the holding is incorrect. The complaint must be examined in accord with a two-fold approach. Thus, a cause of action is stated if there is any allegation suggesting the plaintiff was terminated, while still attending to her duties, for voicing her concerns over the qualifications of therapists assigned to work with her. This would be true even though there are (or were) no specific regulations to which she could refer.

However, the plaintiff desired to protest subjectively objectionable conditions by voluntarily ceasing to continue her assigned duties. She must therefore rely on specific enactments in her action for damages for termination. As discussed ante, my conclusion comports with comparable methods for protection of the employee’s employment position if voicing complaints concerning his or her own health, welfare and safety. (Lab. Code, § 6300 et seq.) Concern for patient health, safety and welfare is deserving of at least equal protection. It is not, however, entitled to considerably more protection.

The complaint, reinforced by the plaintiffs deposition, does not allege involuntary removal from her appointed shift. She left voluntarily. Therefore, her reliance upon “general” public policy concerns for patient care can only relate to termination after she refused to continue on the shift. In this instance, as noted above, it is not the absence of a good faith belief on her part that precludes her cause of action. It is the absence of a specific enactment violated by the employer.

A petition for a rehearing was denied February 24, 1987, and respondents’ petition for review by the Supreme Court was denied April 24, 1987.

The folly of this dilemma can be demonstrated by our facts. What did the plaintiff, when she complained to her supervisor, expect him to do? Fire, on the spot, her allegedly unqualified coworker? That action would result in even less patient care.