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Hogan v. City and County of San Francisco10/19/2005
out of and in the course of the employment.' . . . he basis for the exclusivity rule in workers' compensation law is the `presumed "compensation bargain," pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.' [Citation.]" (Fermino v. Fedco (1994) 7 Cal.4th 701, 708, fn. omitted (Fermino).)
However, there are certain types of injurious employer misconduct which remain outside the compensation bargain. "There are some instances in which although the injury arose in the course of employment, the employer engaging in that conduct `"`stepped out of proper role '"' or engaged in conduct of `"`questionable relationship to the employment.'"'" (Fermino, supra, 7 Cal.4th at p. 708.) In such cases, the employer's conduct falls outside the scope of the workers' compensation system and the employee is not limited to the remedies of the Act.
In California, in contrast to many other jurisdictions, intentional torts committed by an employer against an employee in the course of employment are not categorically excluded from the workers compensation system. (Fermino, supra, 7 Cal.4th at p. 709.) Our jurisprudence distinguishes "ordinary employer conduct" that intentionally, knowingly or recklessly harms an employee, which falls within the scope of the compensation bargain, from certain other "types of intentional employer conduct which bring the employer beyond the boundaries of the compensation bargain, for which a civil action may be brought." (Id. at p. 714.)
Thus, in order to determine whether Hogan's cause of action for intentional infliction of emotional distress is barred by the exclusivity rule, we ask whether the conduct giving rise to this claim was ordinary employer conduct normally occurring in the work place or whether the Department stepped outside the boundaries of the compensation bargain and engaged in conduct which cannot be considered a normal part of the employment relationship. (See Fermino, supra, 7 Cal.4th at p. 713, Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 (Cole); Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn 6; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756.)
According to Hogan's complaint, the Department intentionally inflicted emotional distress on him by refusing to (1) transfer him to a field assignment; (2) assign him to a limited-duty position when his doctor released him for limited-duty work in June 2000; and (3) allow him to draw his vacation pay in July 2000. Hogan also alleged that the Department "caused to have his medical insurance cancelled." We find that all of these allegedly wrongful actions constituted ordinary employer conduct normally occurring in the work place. Therefore, Hogan's claim is barred by the exclusivity rule.
In his appellate briefs, Hogan contends that the City denied him his employment and the benefits of his employment and that the "malicious, despicable, reprehensible conduct of the City can hardly be classified as `the normal risks of employment.'" However, characterizing the City's conduct as outrageous cannot salvage Hogan's claim.
" hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and f
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