As a “last ditch” effort to reduce their liability, Defendants seek to dismiss Plaintiff’s ninth and tenth causes of action for intentional and negligent infliction of emotional distress (hereinafter referred to as “IIED” and “NIED” respectively), asserting that such claims are barred by the exclusive remedy provisions of workers’ compensations statutes. Their last-ditch effort to rid themselves of Plaintiff's valid causes of action must fail because workers’ compensation laws do not preempt Plaintiff’s claims for their misconduct.

            It is well-settled law that where an employer’s misconduct exceeds the normal risks of the employment relationship, workers’ compensation does not pre-empt IIED and NIED claims. Because an employer’s unlawful discrimination is not a normal incident of employment, the Workers’ Compensation Act does not preempt emotional distress claims, whether intentional or negligent. Accardi v. Superior Court (1993) 17 Cal.App.4th 341 (discrimination in employment not normal incident of employment, and a claim for damages under FEHA is not preempted by Workers’ Compensation Act.)

            In Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, the Court reversed a summary judgment for the defendant, holding that Plaintiff’s emotional distress claims were not barred by worker’s compensation where the emotional distress arose out of the employer’s disability discrimination. Id. at 1492. In doing so, the Court addressed two cases mistakenly relied upon by the present Defendants: Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 and Livitsanos v. Superior Court (1992) 2 Cal.4th 744. The Fretland Court noted that neither Cole nor Livitsanos prohibit emotional distress claims, as UPS contends. Instead, both cases clearly provide for emotional distress claims where the defendants’ conduct falls outside of the normal risks of the employment relationship. The Fretland Court provided, in pertinent part, as follows:

Cole does not prohibit all emotional distress causes of action against an employer, but only those based on conduct that is a normal risk of the employment relationship. Indeed, our Supreme Court made this point clear in Livitsanos v. Superior Court (1992) 2 Cal.4th 744 . . . another case upon which the County mistakenly relies. The Livitsanos court expressly found that a plaintiff’s emotional distress claims against his employer would not be preempted if the “defendants’ misconduct exceeded the normal risks of the employment relationship.” [Citation]. ¶ As discussed above, work-related injury discrimination is not a normal risk of the compensation bargain. [Citation.] Thus, Fretland’s emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work-related injury discrimination. Summary judgment on [the IIED and NIED claims] should not have been granted. Fretland, supra, at 1492.

            It is equally clear that when an employer’s conduct violates fundamental public policy, such as here, claims for IIED and NIED are not subject to the defense of workers’ compensation exclusivity. See, e.g., Maynard v. City of San Jose (9th Cir.1994) 37 F.3d 1396, 1405 (neither employee’s claims for IIED nor NIED preempted because defendant’s conduct implicated fundamental public policy, i.e., prohibiting retaliation against employees who oppose or participate in investigation of discriminatory practices under Govt. Code §12940(f).); Kovatch v.

California Cas. Mgmt. Co. (1998) 65 Cal.App.4th 1256, 1277 (“A claim for wrongful termination in violation of public policy is one type of claim that is not barred by the exclusive remedy provisions of the Workers’ Compensation Act.”); Gantt v. Sentry Ins. supra, at 1101 (a tortious termination claim does not result from a “risk reasonably encompassed within the compensation bargain.”) The language the Supreme Court used throughout Gantt on this point makes it clear that the Court was referring not just to the specific termination in Gantt, but to all tortious termination claims.

            Similarly, in Cabesuela v. Browning-Ferris Industries of California (1998) 68 Cal.App.4th 101, the Court held that where a plaintiff has a viable claim for wrongful termination in violation of public policy, an IIED claim is not barred by workers’ compensation. Specifically, the Court stated: “[W]here, as here, a plaintiff’s emotional distress claim is premised upon his employer’s violation of a fundamental public policy of this state, such misconduct lies outside of the exclusive remedy provisions of the Labor Code.” Id. at 112-113. (See also Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, holding that a plaintiff can recover for IIED if he has a cause of action for wrongful termination in violation of public policy or in violation of an express statute.)

            Defendants’ citation to Shoemaker v. Myer (1990) 52 Cal.3d 1 is misleading. That decision is consistent with the line of decisions cited above, holding in no uncertain terms that violation of whistle blower laws is conduct which “lies well outside the compensation bargain.” Id. at 22-23. The case further affirmed that the Cole exclusivity rule only bars IIED claims where such claims are “not dependent upon the violation of an express statute or violation of fundamental public policy.”

            In this case, Plaintiff’s IIED and NIED causes of action incorporate by reference his public policy, discrimination, and harassment claims. Plaintiff’s emotional distress claims are based upon UPS’s wrongful termination of Plaintiff in violation of public policy, Defendants’ unlawful assaults and batteries against Plaintiff, UPS’s unlawful discrimination, and Defendants’ unlawful harassment; conduct that clearly falls beyond the boundaries of the normal part of Plaintiff’s employment. Therefore, Defendants’ Demurrer to these causes of action must be overruled.

Dated: April 5, 2002                                                   KEEGAN & ASSOCIATES

Attorneys at Law



                                                                           By:     __________________________

                                                                                    Dru Anne Keegan

Attorney for ROBERT ALLMAN