Opinion
NO. CIV. S-10-3130 LKK/GGH.
April 27, 2011
ORDER
Plaintiff, a former gasoline truck driver for BP America, brings a claim of wrongful termination in violation of public policy and breach of the terms of his employment contract. Pending before the court is defendant's motion for judgment on the pleadings as to all of the causes of action. For the reasons that follow, defendant's motion is granted. Plaintiff is granted leave to amend his complaint.
I. Background
A. Allegations
Plaintiff Andrew Vargas was employed as a gasoline truck driver from 1988 until the date of his termination, June 1, 2009. In 2000, his employer, Atlantic Richfield Company, was acquired by defendant BP America Inc. ("BP"). During his employment, an employee handbook described the rules and policies that governed the workplace, including provisions for the protection of the health and safety of employees, the public, and the environment. Plaintiff alleges that defendant instructed him on numerous occasions to violate the terms of the employee handbook by, among other things, concealing the spilling of more than five gallons of gasoline that occurred while transferring gasoline from delivery tankers to the gas stations. Plaintiff alleges that some of the rules in the employee handbook were intended to protect the public and the environment. Plaintiff also claims that defendant coerced plaintiff and other drivers to violate various other safety rules, including operating trucks that were improperly balanced and posed danger of tipping over, delivering gasoline to storage tanks in poor safety condition, transporting "split loads" under hazardous conditions, and bypassing the "skully device." Plaintiff also alleges that BP instituted a program that required drivers to take their meal break while waiting to unload their trucks, which occurs near the loading rack. Plaintiff alleges that this condition violates CalOSHA.Plaintiff alleges that at one point he was threatened with loss of hours if he did not do as instructed. He also alleges that he complained from time to time about safety hazards, and that he gave testimony at a labor board hearing over unfair labor practices. He claims that defendant retaliated against him in numerous ways including requiring him to do tasks that would exacerbate his back injury, and requiring him to work in high temperatures while taking medication that made him sensitive to heat. Plaintiff alleges that defendants terminated him on June 1, 2009, as part of a retaliatory course of conduct, and without just cause.
He does not allege whether this occurred before or after his termination.
He does not allege who made him do these tasks, or whether anyone at BP knew of his medical conditions.
B. Procedural Background
Plaintiff filed a complaint in the California Superior Court alleging wrongful termination in violation of public policy, breach of employment contract, breach of implied covenant not to terminate except with good cause, breach of implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. The complaint named as defendants BP America, Inc., Jeff Ferris, Jill Georgikas, Steve Honig, Tom Horn, Deb Portello, Wayne Malik, and Does 1 through 50. Plaintiff alleged that named defendants were "shareholders, supervisors, managers and/or officers" of BP. Complaint 2, ECF No. 1 ("Compl.").
On November 19, 2010, defendants removed the case to this court. On March 4, 2011, the court issued an order dismissing the individual named plaintiffs, leaving only BP as defendant. Order, ECF No. 12.
On March 25, 2011 defendants filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Motion, ECF No. 15 ("Mot."). Plaintiff opposes the motion, but has voluntarily withdrawn his fifth cause of action for intentional infliction of emotional distress. Opposition, 22, ECF No. 16.
II. Standard for Judgment on the Pleadings
A motion for judgment on the pleadings may be brought "[a]fter the pleadings are closed but within such time as to not delay the trial." Fed.R.Civ.P. 12(c). All allegations of fact by the party opposing a motion for judgment on the pleadings are accepted as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). A "dismissal on the pleadings for failure to state a claim is proper only if 'the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Id. (quoting 5 C. Wright A. Miller, Federal Practice and Procedure: Civil § 1368, at 690 (1969)); see also McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988).
When a Rule 12(c) motion is used to raise the defense of failure to state a claim, however, the motion is subject to the same test as a motion under Rule 12(b)(6). McGlinchy, 845 F.2d at 810; Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1989). Thus, the motion will be granted only if the movant establishes that "no relief could be granted under any set of facts that could be proven consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir. 1987). The court must accept all material allegations of the complaint as true and all doubts must be resolved in the light most favorable to the plaintiff. N.L. Indus. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
"Courts have discretion to grant leave to amend in conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment." Moran v. Peralta Community College Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993). See also Canam Steel Corp. v. Mayo, 2009 U.S. Dist. LEXIS 77136 (E.D. Cal. 2009).
III. Analysis
A. First Cause of Action: 1) Termination in Violation of Public Policy
Plaintiff alleges as his first cause of action that his termination violates the state's public policy. Compl. 13. In California, a claim of wrongful termination in contravention of public policy requires some basis in policy that is delineated in a constitutional or statutory provision. Gantt v. Sentry Ins., 824 P.2d 680, 684 (Cal. 1992). The public policy, however, may also be enunciated in an administrative regulation. Green v. Ralee Eng'g Co., 960 P.2d 1046, 1051 (Cal. 1998). The policy violated must be fundamental and affect a public interest rather than only personal or proprietary interests. Id.; Gantt, 824 P.2d at 684. The language of the law or constitutional provision need not prohibit the exact conduct alleged, but must express a "clearly mandated public policy" that is contravened by the alleged conduct. Id. at 1061. "[T]he policy must be public in that it affects society at large rather than the individual, must have been articulated at the time of discharge, and must be fundamental and substantial." Id. at 1051 (internal quotations omitted); See also Carter v. Escondido Union High School District, 56 Cal. Rptr. 3d 262, 266 (Cal. Ct. App. 2007). Mere violation of an employer's own policies, is not protected by the public policy doctrine. "The tort of wrongful discharge is not a vehicle for enforcement of an employer's internal policies or the provisions of its agreements with others." Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1033 (Cal. 1994).
Of course if the employer's policy reflects a public policy as defined above, the employer's policy may be relevant to demonstrate intentional conduct for purposes of measuring damages.
In his complaint, plaintiff asserts that BP is subject to "laws and regulations" that are "intended to protect the general public from safety hazards." Compl., 4. Defendant argues that plaintiff has failed to state a claim for wrongful termination because plaintiff has not pled the specific statutory, constitutional, or regulatory basis for the tort.
It is indeed correct that under state law defendant would likely prevail on this point. A plaintiff's "failure to identify a statutory or constitutional policy that would be thwarted by his alleged discharge dooms his cause of action." Turner, 876 P.2d at 1033. However, federal law governs pleading requirements in federal court, Tribble v. Raytheon Co., 2011 U.S. App. Lexis 2895 (9th Cir. 2011), and thus notice pleading applies. Fed.R.Civ.Proc. 8(a). Under federal law no citation to specific authority is ordinarily required to be pled. Alvarez v. Hill, 518 F.3d 1152, 1155 (9th Cir. 2008) ("Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories.") The court concludes that plaintiff's complaint complies with the notice pleading standards in Fed.R.Civ.P. 8(a). By alleging that defendant "was subject to numerous and various laws . . . intended to protect the general public from safety hazards inherent in the storage, transport, delivery, pumping, disposal, and other handling of large quantities of highly toxic, flammable and volatile gasoline fumes," and "were intended to protect the environment from damage," and "were promulgated and/or enforced by various governmental agencies including but not limited to the United States Congress, Environmental Protection Agency, [and] the State of California . . ." plaintiff has provided sufficient notice to defendant as to the public policy basis for his wrongful termination claim. Such notice is all that is required under the Federal Rules of Civil Procedure.
Ordinarily, BP would file an interrogatory requiring plaintiff to enumerate the various bases of the claimed violation of public policy. In the name of efficiency plaintiff may desire to plead them in an amended complaint, however, for the reasons noted above he need not do so.
2) Requirement to Plead a Nexus
Defendant asserts that plaintiff's first cause of action fails to demonstrate a nexus between the protected activity and the termination. Mot. 9. A claim for wrongful discharge typically arises when "an employer retaliates against an employee for (1) refusing to violate a statute, (2) performing a statutory obligation, (3) exercising a statutory right or privilege, (4) reporting an alleged violation of a statute of public importance." Turner, 876 P.2d at 1033 (internal citations omitted). Nonetheless, in making a claim of termination in violation of public policy, plaintiff must demonstrate a nexus between the alleged policy violation and the termination. Turner, 876 P.2d at 1031.
Defendant points out that there was a twenty-eight month gap between Vargas' internal complaint about management's unsafe activity and his termination. Def.'s Mot. 11. Plaintiff counters that the employer engaged in a "course of conduct" in response to his internal complaint, which culminated in his termination on June 1, 2009. Opp'n 19. Plaintiff alleges that prior to his discharge, defendants retaliated against him by requiring him to (a) pick up debris on one occasion despite the fact that he had been medically limited from bending and stooping; (b) pull up weeds on another occasion despite a back injury; (c) scrape pigeon excrement off the sidewalk even though he complained about his back injury and airborne germs; (d) work in high temperatures including 100 degrees on one occasion despite heat sensitivity due to medication; and by instructing him (e) not to talk to other drivers on another occasion. Compl. 9, 10.
It appears to the court that under the traditional standards relative to pleading plaintiff's complaint would suffice. Under the newly adopted standards for pleading, however, plaintiff's complaint is insufficient. Plaintiff has failed to demonstrate that the retaliation theory is plausible. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Plaintiff did not allege approximate dates for any of the incidents alleged to constitute a course of conduct, nor that there was any connection between his conduct and the alleged retaliation. At minimum, in order to adequately plead this theory, plaintiff must at least indicate that the retaliatory conduct began after the alleged protected activity. Without approximate dates attached to the alleged retaliatory incidents, the court is not able to draw an inference that the termination is linked to his protected activity.
Defendant's motion for judgement on the pleadings is GRANTED with respect to the claim for termination in violation of public policy. The First Claim for relief is DISMISSED without prejudice. Plaintiff is granted leave to amend the complaint.
B Second Cause of Action: Breach of Employment Contract
As his second cause of action, plaintiff alleges that he was employed pursuant to an "oral and/or implied agreement that Defendants would continue Plaintiff's employment for an indefinite period of time into the future so long as plaintiff fulfilled his duties and obligations under the employment agreement, and that plaintiff's employment would not be terminated except for good cause." Compl, 15. He claims that on June 1, 2009, he was terminated without cause, in violation of his employment contract. Id. Defendant contends that plaintiff has failed to show the existence of an implied contract. Mot. 12.
In California, employment is presumed to be at-will. California Labor Code § 2922. The presumption of an at-will contract may be overcome where the parties' conduct demonstrates an implied promise not to terminate without good cause. Guz v. Bechtel National, 8 P.3d 1089, 1100 (Cal. 2000). The existence of an implied agreement is determined by looking at the totality of circumstances. Id. Defendant is correct in observing that plaintiff has failed to specify "any person or persons who entered into an alleged agreement with him," or that such person had the authority to do so. Mot. 13. Neither has plaintiff specified any policies, practices, or other conduct which might plausibly give rise to an implied promise not to terminate without cause.
Contrary to defendant's insistence, plaintiff need not prove the existence of the implied agreement at the pleading stage. However, plaintiff's bare assertion that an implied agreement existed is conclusory and insufficient. See Iqbal, 129 S. Ct. at 1949-50. Basic facts such as the names or titles of relevant parties and the type of statements or conduct which is alleged to give rise to the mutual agreement should be set forth in order to give defendant fair notice of the grounds of the claim, and to make the existence of a mutual agreement plausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Because plaintiff has failed to allege such, defendant's motion is GRANTED with respect to the second cause of action. Plaintiff is granted leave to amend the complaint.
C. Third Cause of Action: Breach of Implied Covenant not to Terminate
Plaintiff's third cause of action alleges that plaintiff was "reasonably assured by" defendant's statements and conduct that he would not be terminated without cause, and that "there existed an implied covenant" to that effect. Compl. 16. This claim suffers from the same deficiencies as the second cause of action described above. As defendants point out, the third cause of action is duplicative of the second cause of action. Mot. 14. The plaintiff does not set forth any facts that would distinguish the alleged covenant not to terminate without cause, from a contract not to terminate without cause. In his opposition to the present motion, plaintiff acknowledged that this cause of action is duplicative of another, and expressed a desire to consolidate the complaint. Opp'n, 2. The defendant's motion is therefore GRANTED as to the third cause of action.
D. Fourth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiff's fourth cause of action seeks recovery for breach of the covenant of good faith and fair dealing. Compl. 17. Defendant asserts that the claim is impermissibly duplicative of the second cause of action. Mot. 14.
A plaintiff cannot state a claim for breach of the implied covenants due to a termination where there is no promise not to terminate without cause. "With regard to an at-will employment relationship, breach of the implied covenant cannot logically be based on a claim that a discharge was made without good cause. If such an interpretation applied, then at-will contracts would be transmuted into contracts requiring good cause for termination." Foley v. Interactive Data Corp., 765 P.2d 373, 400 n. 39. (Cal. 1988). As discussed above, plaintiff has not sufficiently plead that he had an employment agreement that bound defendant to terminate him only for cause.
If plaintiff is able to plead sufficient facts in his second cause of action, plaintiff may make out a claim for violation of the implied covenants on the facts alleged. Although every contract imposes a good faith duty on its parties, a claim for breach of the implied covenants is distinguishable from a breach of contract claim in that the implied covenants provide a "safety valve to which judges may turn to fill gaps and qualify or limit rights and duties otherwise arising under rules of law and specific contract language." Foley, 765 P.2d at 389. (internal quotations omitted). The implied covenants prevent a party from acting in bad faith to frustrate the purpose of the mutual agreement. Guz, 8 P.3d at 1112 n. 18. A breach of implied covenants claim may not, however, enforce obligations beyond the terms of the agreement. Id. at 1112.
Here plaintiff asserts that the employer's stated grounds for his termination were inadequate and pretextual. Compl. 18. He claims that the real reason for his termination was retaliation for his complaints and refusal to participate in "wrongful illegal action." Id. Plaintiff alleges that the employer engaged in discriminatory conduct intended to frustrate plaintiff's ability to receive the benefits of his asserted employment contract. Compl. 9, 10.
Because plaintiff has not sufficiently pled the existence of an employment agreement-a prerequisite for plaintiff's fourth cause of action-defendant's motion is GRANTED with respect to the fourth cause of action.
E. Plaintiff's Fifth Cause of Action
In his opposition, plaintiff voluntarily dismissed his fifth cause of action for intentional infliction of emotional distress. Opp'n, 22. Accordingly, the fifth cause of action is DISMISSED with prejudice.
IV. Conclusion
For the foregoing reasons, the court ORDERS as follows:
[1] Plaintiff's first, second, and fourth causes of action are dismissed with leave to amend, which plaintiff shall exercise within twenty one days.
[2] Plaintiff's third and fifth causes of action are dismissed with prejudice.
IT IS SO ORDERED.
DATED: April 26, 2011.