In Diego v. Pilgrim United Church of Christ, ___ Cal.App.4th ___ (November 21, 2014), the California Court of Appeal (Fourth Appellate District, Division One) reversed the order of the San Diego County Superior Court (Judge Trapp) granting defendant’s motion for summary judgment on plaintiff’s claim for wrongful termination in violation of public policy.
Plaintiff was a “mentor teacher” and assistant director of a preschool operated by defendant employer. In August 2011, another of defendant’s employees told plaintiff that she had called the Community Care Licensing Division of the California Department of Social Services (“Licensing”) to complain about conditions at the preschool. Consequently, representatives from Licensing made an unannounced inspection at the preschool shortly thereafter, but neither found a violation nor issued a citation. Afterward, the preschool’s director called Plaintiff to discuss the report and visit from Licensing and expressed anger based on her mistaken belief that Plaintiff had made the report. Three days later, the director informed Plaintiff that her employment was terminated for insubordination. Plaintiff filed a lawsuit for wrongful termination in violation of public policy on the ground that defendant had terminated her based on its mistaken belief that she had filed the report and, thus violated the public policy found in Labor Code Section 1102.5, which protects whistleblowers. Defendant then moved for summary judgment, arguing that whistleblower protections do not apply to employees merely believed to have engaged in protected activity. The trial court agreed and granted summary judgment.
The appellate court disagreed. First, the cited existing case law holding that “when the termination of employment is based on the employer’s mistaken belief that the employee might disclose or has disclosed a violation of state regulations to a governmental agency, the result has a tendency to be injurious to the public or against the public good.” The fact that the underlying statute on which the public policy claim is based – Labor Code Section 1102.5 – does not expressly protect perceived whistleblowers does not change this. The court must focus not on the specific language of the underlying statute, but rather the policy delineated within it. The policy found in 1102.5 “applies to preclude retaliation by an employer not only against employees who actually notify the agency of the suspected violations but also against employees whom the employer suspects of such notifications.”