Hartman v. Golden State Drilling

Filed 10/23/07 Hartman v. Golden State Drilling CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

Law Office of Kevin D. Chaffin and Kevin D. Chaffin for Plaintiff, and Appellant.

Rodriguez & Associates, Joel T. Andreesen and Charles R. Chapman, for Defendant and Appellant.

-ooOoo-

Respondent Duane Hartman was employed as a pipe racker by appellant Golden State Drilling Inc. (Golden State). After Hartmans employment ended, he sued Golden State for wrongful termination and intentional infliction of emotional distress. A jury awarded him $44,000 on his intentional infliction of emotional distress (IIED) claim, and
$56,000 on his wrongful termination claim. In a special verdict, the jury expressly found that Golden State had not actually discharged Hartman from employment, but that he had been constructively discharged by being subjected to working conditions so intolerable that a reasonable person in [his] position would have had no reasonable alternative except to resign. The trial court entered judgment accordingly.

Golden State contends on appeal that the jurys verdict is not supported by substantial evidence. Specifically, Golden State contends that no substantial evidence supports the jurys finding that appellant was subjected to working conditions so intolerable that a reasonable person in [Hartmans] position would have no reasonable alternative except to resign. Golden State further contends that the failure of Hartmans wrongful termination claim also negates the IIED verdict because an employee cannot recover in a civil action for emotional distress suffered as a result of a lawful termination of employment. Hartman has cross-appealed and contends that the trial court erred in granting Golden States motion for a nonsuit on Hartmans claim for punitive damages. As we shall explain, we agree with appellant Golden State that the jurys finding of a constructive discharge is not supported by substantial evidence and that the entire judgment must be reversed. Our determination on this issue renders moot Hartmans contention that the court erred in granting Golden States motion for nonsuit on Hartmans claim for punitive damages. Punitive damages cannot be made the basis of recovery independent of a showing which would entitle the plaintiff to an award of actual damages. (Mother Cobbs Chicken T., Inc. v. Fox (1937) 10 Cal.2d 203, 205; in accord see also Fassberg Construction Co. v. Housing Authority of Los Angeles (2007) 152 Cal.App.4th 720, 758.)

FACTS

Hartman was hired by Golden State on April 10, 2003. At that time he was 24 years old. Prior to that, he had worked at his fathers tire shop. He had been laid off by his father in March of 2003 due to a lack of work at the shop. The Golden State job paid better than his previous job at the tire shop. He began as a trainee on drilling rig No. 20. After about two weeks at drilling rig No. 20, he was transferred to drilling rig No. 10 in late April. In early June of 2003 Hartman was laid off in favor of a more senior employee, but Hartman returned to work at Golden State on July 11 or 12.

The events which resulted in this lawsuit began on July 23, 2003. Hartman was working at rig No. 8 with the crew to which he had been assigned upon his return to work in mid-July. When he had returned to Golden State in mid-July, he was a pipe racker, and his green trainees hard hat had been replaced with a regular white hard hat. The on-site organization of a Golden State drilling rig was as follows. The person in charge of the rig was called the toolpusher. The tool pusher would stay at the rig 24 hours per day for a four-day shift. There were two tool pushers per rig so that one could be there at all times. Each rig had four crews of four individuals each. Each crew had a driller who was superior to the other three members of his four-person crew and subordinate to the tool pusher. As a pipe racker, Hartman was thus subordinate to his driller, a man named Kahalle Dean, and to his tool pusher, who on July 23 was Mike Grimley. Golden States drilling rigs operated on properties described as oil leases owned by Golden States clients. Golden State would provide a rig and drilling services for a client who owned oil rights at the site. On July 23 Hartmans crew was working on a lease owned by Chevron. Hartmans father-in-law, Mac Fernandez, was a long-time Chevron employee who in July of 2003 was an operational excellence specialist for Chevron. Fernandez testified that in this capacity he would look at processes to see that theyre being followed and that he was responsible for the safety of everyone who was on Chevrons property. Golden States vice president, Greg Weaver, also testified that Golden State had agreed with Chevron that Chevron employees could come to the drilling rig at any time to inspect it for safety.

On the night of July 23, 2003, Hartman was working at the drilling rig with driller Kahalle Dean and two other crew members named Martin and Matt. At about 9:00 or 10:00 p.m. a Golden State employee named Mark Grimm arrived at the site to relieve Matt. The crews shift would not end until midnight, but Mark Grimm was scheduled to work the midnight to 8:00 a.m. shift with the next crew, and had apparently agreed with Matt to work the last two hours of Matts shift (with Hartman, Martin and Dean) so that Matt could leave early. Hartman had never met Mark Grimm, but Hartman knew who Mark Grimm was because Hartman had previously worked with Mark Grimms brother Eric on another drilling rig. Mark Grimm appeared to Hartman to be intoxicated. Hartman testified that Grimm seemed like he was showing off, and he was just sliding around, and he didnt have control of himself. Hartman further testified that Grimms breath didnt smell right, that Grimms eyes were bloodshot and that Grimm looked like he had been up for quite a few hours.

Hartman testified that he said to crew member Martin Do you see what Im seeing here? and that Martin replied Yeah, he looks kind of like hes lit. The work on the drilling rig involved moving 900-pound pipes with heavy machinery. This process required the crew members to work together to connect large pieces of pipe. Mark Grimm was scheduled to be the driller on the crew that would start its shift at midnight, and thus would be in charge of the next shift. Hartman believed that Kahalle Dean observed Grimms condition as well. Hartman testified that he asked Dean if Dean saw a problem with Mark and that Dean didnt respond to me. As a driller, Kahalle Dean was on the rig most of the time with all the crew. The one person at the site who was superior to the driller was Mike Grimley, the tool pusher. The tool pusher had a 26-foot portable trailer house, located 50 yards from the rig, where he made his phone calls, wrote his reports and other paperwork, and talked with the drillers at the beginning and end of each shift. As we have already mentioned, each tool pusher worked four days on and four off. Grimley thus described the trailer as my home for four days. On the night of July 23, Grimley was in the tool pushers trailer. Hartman testified that he did not go to the trailer and tell Grimley about Mark Grimms condition because if [driller] Kahalle wasnt going to do anything about it, I wasnt going to go pound on [tool pusher Grimleys] door at midnight.

Mark Grimms role on Hartmans shift was as a motor hand. The motor hand was a step above the pipe racker in rank. Although the testimony at trial about a motor hands duties was not entirely clear, Hartman testified that a motor hand would be trying to make connections between the large, heavy sections of pipe. And as the scheduled driller for the next shift, Grimm would have been in charge of that shifts four-person crew. A driller runs the brake handle and runs the engine on the equipment used to lift the 900-pound sections of pipe. No one disputed that an intoxicated employee would be a safety hazard, and in fact Golden State had a zero tolerance policy for alcohol at a jobsite. So did Chevron.

Hartman was concerned that he or someone else on the rig might get hurt. He decided to call his father-in-law, Mac Fernandez. Hartman testified: When I called him and I explained what happened, he said, Go back to work. Ill take care of it. And I said, Okay. And I closed my phone, and I went back to the rig . Fernandez called a contact at Chevron, and Chevrons PM supervisor Gary Bickford drove to the rig site. Someone there took Bickford to Grimm, who was in another on-site trailer called the doghouse where crew members changed clothes at the beginning and end of their shift. Grimm admitted to Bickford he had consumed several drinks before showing up for work. Bickford arranged to have someone else drive Grimm away from the jobsite. Mike Grimley drove Grimm to Golden States Fruitvale office for a drug test. Grimley called Golden States drilling supervisor Joey Rocha, who in turn called Contraband Control Specialists, an entity which conducted drug testing for Golden State. Hartmans suspicions proved to be correct. Grimm was terminated by Golden State Drilling for being intoxicated on the job. The fired employee, Mark Grimm, was Joey Rochas nephew.

The next day, July 24, Hartman reported to work for his regular shift. Chevrons Mac Fernandez (Hartmans father-in-law) was already at the rig when Hartman arrived. Fernandez testified that he was there because he wanted to make sure everything was going to go smooth on that transition, because I knew Duane [Hartman] was going to be showing up to work that day. Hartman arrived and went into the doghouse. There he saw tool pusher Mike Grimley, who told Hartman that Hartman had [fucked] up. Members of Hartmans crew and of the ending shifts crew began expressing their opinions about the previous nights events. They were arguing about it, with at least some of them saying that it should have been handled differently. Hartman testified that [n]o one really mentioned my name, but they were looking at me. He stood up, announced that he had been the one who had called Chevron the night before, and stated that my supervisor should have done it. This did not go over well with his supervisor, Kahalle Dean. Both Dean and Hartman testified that Dean walked right up to Hartman and that the two had an angry exchange of words, and that Dean told Mike Grimley that he (Dean) would not work with Hartman anymore.

According to Hartman, tool pusher Grimley told Hartman: Well, youre fired. Pack up your shit. Grimley testified that he told Hartman: Youre fired from the rig. Go to the office. One of the major points of disagreement at trial was whether Grimley fired Hartman from Hartmans employment with Golden State during this incident at the doghouse on July 24. Hartman contended that Grimley did fire him. Golden State contended otherwise. The jury concluded in its special verdict that Hartman was not actually discharged and that he resigned because of his working conditions. Regardless of what was actually said by anyone at the doghouse on July 24, there was an abundance of evidence to support the jurys conclusion that Hartman was not actually discharged. This included the apparently undisputed testimony of Golden State vice president Greg Weaver that tool pushers cannot fire (or hire) Golden State employees. According to Weaver: He could recommend that they be fired. They can recommend that they would be removed from his rig or recommend that they be removed from the company, but when it comes down to it and they come to the office, we usually have some sort of a meeting with management and decide what were going to do. So under no circumstances can they terminate.

Hartman in fact did report to the Golden State office. He met there with Golden States personnel director Gerardo Vargas. Vargas told him Im not sure what were going to do, but the two had another meeting the next morning, Friday July 15. Vargas told Hartman that Hartman could work on a rig other than rig No. 8, or he could go back to work on rig No. 8 if he wished to. Hartman wanted to speak to someone higher up than the personnel director, so Vargas brought drilling superintendent Joey Rocha into this meeting.

Hartman gave no testimony about what happened in the meeting after Rocha joined Hartman and Vargas at the meeting. Rocha testified Vargas told Hartman that Hartman was not fired. Vargas asked Hartman if Hartman was going to go back to work. Hartman said Well, Ill let you know. Vargas gave Hartman Vargass cell phone number and pager number and said Call me and let me know if youre going to go to work. Rocha further testified that he and Vargas were driving to the rig on the afternoon of Friday, July 25, when Vargas received a phone call from Hartman. Hartman wanted to take the weekend off to think about everything. Rocha testified that [w]e were going to the rig because Duane was supposed to be there at 4 oclock, and we was going to go out there and meet with the crews and talk to them so we didnt have another incident like we did the day before. Vargas told Hartman Thats fine. Just let me know on Monday if youre coming back. Hartman did not dispute any of this testimony. At first Hartman testified that he did not recall making a telephone call to Vargas on the afternoon of July 25. After being shown his cellular phone records showing that a call from his phone to Vargass phone was made at 2:48 p.m. on July 25, he testified that it did not matter to him whether or not he called Vargas on July 25.

Vargas also testified about his meetings with Hartman on July 24 and 25. Vargas testified that on July 24 I told him, If you dont want to go back to rig 8, we can accommodate you on another rig. Hartman told Vargas that Hartman wanted to talk to someone above Vargas, so Vargas arranged for the July 25 meeting with Rocha. Before Rocha arrived, Vargas again gave Hartman the option of either going back to work on rig No. 8 or being placed at a different rig. Hartman told Vargas I dont know what I want to do yet. When Rocha joined the July 25 meeting, Hartman was still kind of upset about, you know, us not doing nothing to Kahalle. Vargas testified that he gave Hartman his (Vargass) phone number and told Hartman he (Vargas) and Rocha would meet Hartman that afternoon at rig No. 8. While Vargas and Rocha were en route to the rig that afternoon, Vargas received a telephone call from Hartman. Hartman told Vargas that he (Hartman) was still pretty upset and was not going to go to work that day. Hartman said I need the weekend to think about it. Vargas gave Hartman the weekend off, even though Hartman was scheduled to work those days and his next scheduled days off were the following Tuesday and Wednesday. Hartman told Vargas Ill call you Monday. Vargas told Hartman that he (Vargas ) would wait to hear from Hartman on Monday, and that If I dont hear from you on Monday, Im going to take that as youre quitting because youre taking the whole weekend off already. Hartman said: Okay. Thats fine. Ill call you Monday.

On Monday, July 28, Hartman did not call Vargas and did not report for work. One of Golden States employment policies is that a no call/no show is deemed as a voluntary quit.

THE TRIAL COURTS DETERMNATION THAT APPELLANT WAS

CONSTRUCTIVELY DISCHARGED IS NOT SUPPORTED BY

SUBSTANTIAL EVIDENCE

When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citation.] (Bowers v. Bernard (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is evidence of ponderable legal significance, reasonable in nature, credible, and of solid value. [Citations.] (Id. at p. 873.) When two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429; in accord, see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)

In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employees resignation that a reasonable employer would realize that a reasonable person in the employees position would be compelled to resign. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 (Turner).) In this case the evidence was undisputed that Golden State offered to place Hartman on a rig other than rig No. 8, and that Hartman refused to accept this offer. Hartman himself so testified:

Q. And when you went in for a meeting with Mr. Vargas on July 25th, Mr. Vargas wanted to talk to you about putting you somewhere else, reassigning you, correct?

A. Yes.

Q. And Mr. Vargas told you he could put you on another rig, correct?

A. That was his biggest concern of getting me back out on another rig.

Q. And he also said that he could put you back on rig No. 8, correct?

A. I believe so.

Q. And you said, then, you wanted to speak to someone higher up?

A. Well, after I stated to him that I didnt want to talk about being put on a rig at this point, I wanted to talk about what happened, he didnt want to talk about that. He just wanted to say, Where do you want to go? Thats all he was concerned about.

Q. And then you wanted to speak to someone else?

A. Yes.

Q. And he went and got Mr. Rocha?

A. Yes.

Every job has its frustrations, challenges, and disappointments; these inhere in the nature of work. (Turner, supra, 7 Cal.4th at p. 1247.) An employee is not guaranteed a working environment free of stress. (Ibid.) Under Turner, the proper focus is on the working conditions themselves, not on the plaintiffs subjective reaction to those conditions. (Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, 1636.) [A]n employee is not permitted to quit and sue simply because he or she does not like a new job assignment. (Id. at p. 1637.) Golden State gave Hartman a choice as to whether he would prefer a new rig assignment or a return to rig No. 8. He chose neither. He was thus not constructively discharged. He simply chose not to work for Golden State anymore.

Because the courts wrongful termination verdict is not supported by substantial evidence, the intentional infliction of emotional distress verdict fails as well. A separate claim of intentional infliction of emotional distress arising from an alleged wrongful termination cannot, simply by such characterization, escape the exclusive remedy provisions of Labor Code section 3602, subdivision (a).. (B & E Convalescent Center v. State Compensation Ins. Fund (1992) 8 Cal.App.4th 78, 85, fn. 5; see also Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813, and Shoemaker v. Myers (1990) 52 Cal.3d 1, 15.)

Hartman argues that because he testified I didnt feel safe he was constructively discharged. There was no actual evidence, however, that he was ever threatened by anyone. Kahalle Dean refused to work with Hartman.^[1] Even if we assume that Deans dissatisfaction with Hartman (for Hartmans having accused Dean, his immediate superior, of not doing his job by not reporting Grimms condition to Grimley or to someone higher up on the night of July 23) could not have been smoothed over, and even if we assume that Hartman might have faced some sort of retaliation from Dean at rig No. 8, the fact remains that Hartman was offered the opportunity to work on a different rig. There was no evidence from any witness that Hartman would have faced any sort of danger, above and beyond those dangers ordinarily faced by any worker on a drilling rig, if he had gone back to work on a different drilling rig. Not a single witness testified about any intolerable or aggravated working condition Hartman might face if he were to return to work on a different rig (or on rig No. 8, for that matter). One of Hartmans witnesses was Kahalle Dean himself, who at the time of trial no longer worked for Golden State. Plaintiff Hartman could have asked Dean if Dean would have retaliated in some manner against Hartman if Hartman had returned to work on rig No. 8 after the Mark Grimm incident. No such question was asked. Although the word snitch appears repeatedly in Harmans brief, he points to no evidence that anyone ever actually even called him a snitch.

The dissent asserts that the majority opinion holds as a matter of law that a constructive discharge based on a hostile work environment, cannot occur within a short period of time, concluding that Hartmans decision to quit was premature. With respect, the majority opinion holds that the evidence in this case does not support a conclusion of a hostile work environment as a matter of law. The majority opinion does not hold that a hostile work environment cannot occur within a short period of time. Clearly, the existence of a hostile work environment depends on the facts.

In this case, Hartman was given the opportunity to work on another rig. He failed to avail himself of that opportunity because of an alleged concern for his safety. At no time did he give his employer the opportunity to address his concerns or discuss the issue with them as to his expectations upon return. The dissent appears to take the position that because Hartman had concerns, the employer need not be given the opportunity to ensure his safety and would be held liable for an alleged hostile work environment based on his alleged safety concerns. In the circumstances of this case, there is absolutely no substantial evidence to support the conclusion that Golden State would not transfer Hartman to another rig and would not have made efforts to ensure his safety.

In essence, we hold on the facts of this case Hartman acted precipitously in failing to return to work. His concern about Golden State might have proven to be true and it might not. We will never know and there is no evidence which supports a substantive conclusion as to what might have occurred. That is the difficulty. Golden State should not be held liable for embracing or endorsing a situation it was never allowed to address. To reach the conclusion advocated by Hartman, one must speculate.

The issue on appeal and between the majority and dissenting opinion is whether substantial evidence supports a conclusion that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employees resignation that a reasonable employer would realize that a reasonable person in the employees position would be compelled to resign. (Turner v Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1251.) Hartmans primary theory of the case (at trial) was that after he reported employee Grimms intoxication on the night of July 23 (a Wednesday), and then showed up for work on the afternoon of July 24 (a Thursday), he was fired by Golden States rig 8 tool pusher Mike Grimley on that Thursday afternoon. However, the jury expressly rejected that contention in its special verdict. What the jury found was a constructive discharge. On Golden States appeal, Hartman argues that there is substantial evidence of a constructive discharge. To support the conclusion of a constructive discharge we would have to find there is substantial evidence as noted by Turner, supra, that Golden State intentionally created or knowingly permitted working conditions that were so intolerable or aggravated. The dissent appears to accept that the working conditions were so intolerable or aggravated and compelled Hartman to resign. The main difficulty is finding what the intolerable or aggravated working conditions are that compelled Hartman to resign. First of all, we have no resignation in the sense of an employee saying I quit or I resign. We have an employee who simply refused to show up for work and this refusal to show up for work was in close proximity to the event and after only working for one day. Hartman himself testified that he understood that if an employee doesnt show up for work and doesnt call in, it is considered a voluntary quit. The dissent contends that the evidence shows that Golden States offer (to move to another rig) appeared to be made begrudgingly. In fact, Hartman himself testified on three different occasions that Golden State Drilling offered to place him on another rig. Not only that, but even after Hartman said, I need the weekend to think about it, human resources manager Gerardo Vargas gave Hartman three days off (Friday, Saturday and Sunday) even though Hartman had been scheduled to work on those days. On Monday, Hartman didnt call, didnt report for work and Vargas tried to get in touch with him but could not.

Each rig had its own crews. By going to another rig (i.e., a rig other than rig No. 8), Hartman would no longer have to work with Kahalle Dean (rig 8 driller), Mike Grimley (rig 8 tool pusher) or anyone else on any of rig 8s four crews. We see no evidence in the record of any request by Hartman for Golden State to do anything in particular to improve his working conditions. Golden State took the initiative to give him the opportunity to work on a different rig. What more could Golden State have done to improve Hartmans working conditions if Hartman really did want to continue working for Golden State? In effect, we are confronted with an employee who failed to return to work and failed to take the opportunity to work on another rig which was offered. We would have to find that without giving the employer any opportunity to address Hartmans concerns and based upon one day at work that the employer created working conditions so intolerable or aggravated that refusing to return to work was justified. Given Hartmans failure to return to work, such a conclusion is nothing more than speculation at best.

The dissent contends: 1) The jury was entitled to conclude that Golden States management culture placed an employee like Hartman at risk because 1) Golden State valued its lease more highly than the safety of its employees, and 2) that Hartman could have faced a higher risk of injury because fellow employees knew he was the snitch and would not watch his back as required in the family atmosphere of working on an oil rig. Worse, the jury could have concluded that Hartman was in physical danger based on the comment made by a Golden State management employee (Dean) in the presence of other Golden State employees indicating that someone (inferentially Hartman) was going to get hurt.

The evidence is that the drunken employee (Grimm) was tested and then was immediately terminated by the drilling supervisor (Joey Rocha), notwithstanding the fact that Rocha was Grimms uncle.

Even if we assume that Mr. Dean was so mad at Hartman that Dean would have deliberately tried to harm Hartman if Dean had been required to work further with Hartman, Golden State offered to eliminate this possibility by placing Hartman on a different rig where Deans crew would not be working. If Hartmans theory was that Hartman was in danger of retaliation on the job, where is the evidence of this? No such evidence was presented by him and there is no event that is supportive of this conclusion. At best, the assertion is speculative. Hartman called Dean as a witness to support his theory that Grimley had fired him (Hartman) from Golden States employment on the afternoon of July 24. Dean was examined extensively about what was said and by whom on the afternoon of July 24 when Hartman reported for work at the rig. Dean was never asked whether he or other Golden State employees would actually attempt to harm Hartman if Hartman had continued working for Golden State.

Even assuming Hartman had a sincere concern of potential harm by some employees based on his one day back at the rig, Golden State must be found to have endorsed or supported that risk of harm if they are to be found liable. Golden State gave Hartman three days off. Those days off, at his request, were on days when he had been scheduled to work. Golden State offered to place Hartman on a rig where he would not have to work with an employee he had an argument with (Dean). The issue of whether Hartman had concerns, does not, of itself translate into hostility by the employer and intolerable working conditions. Hartman himself testified that on the night of July 23 he asked Dean if Dean saw a problem with Mark and that Dean didnt respond to me. Dean, on the other hand, testified that Hartman didnt notify me about Grimms condition. This appears to be the crux of the hostility between Hartman and Dean.

The dissent asserts that Golden State valued its lease more highly than the safety of its employees. There is no evidence of this. While the dissent apparently would impose upon Golden State an affirmative obligation to somehow engage in public expressions endorsing its concern about safety and uses its failure to do that as evidence of its lack of concern, there is no citation to authority that mandates or utilizes such activity or lack or activity as a condition of demonstrating its concern about the alleged hostile working conditions. Even assuming that such a requirement might be persuasive, Hartman did not question the lack of such public endorsement or request such public endorsement. Instead he failed to return to work, depriving his employer of any opportunity to hear his further concerns or to address them. In and of itself, the position of Golden State is one of being held liable for adopting a position, firing, that it did not adopt, and failing to address a hostile workplace allegation without being given the opportunity to carry out those actions it offered to alleviate any potential hostile workplace. At the very least, in these circumstances, before liability is imposed, one should be given the opportunity to address evidence that would reliably demonstrate one merits liability. The evidence does not support that opportunity even though it may be susceptible to speculation but speculation is not evidence.

To the extent that Hartman argues or implies that the jurys intentional infliction of emotional distress verdict may have been based upon a letter written by vice president Greg Weaver in late August of 2003, we are not persuaded. The main focus of Hartmans case clearly was his contention that he had been fired by tool pusher Mike Grimley on July 24th. The jury rejected this aspect of Hartmans case. Hartman argued that this alleged firing, and the events of the next day, constituted intentional infliction of emotional distress as well. Weavers August 29, 2003 letter to a Cathy Thomas appears to have been in response to a complaint Hartman made to a government agency, possibly about not receiving his last paycheck. Weavers letter points out that [w]e have had Mr. Hartmans check ready and waiting for him since August 1, 2003, which was our scheduled payday and states that Weaver attached the check to the August 29, 2003 letter itself. Hartman relies on the first two sentences of the letter, which state: On Wednesday July 23, 2003, the plaintiff, Mr. Duane Hartman left the jobsite before his scheduled shift as over without notifying his co-workers or supervisors. We assumed he had quit, but received no notification from Mr. Hartman himself. The rest of the letter accurately recounts the events of July 24 through July 28, including Golden States offer to reassign Hartman to another rig. The tort of intentional infliction of emotional distress requires conduct so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) The fact that Weaver erroneously asserted Golden State assumed Hartman quit on July 23 rather than on July 28 does not come close to meeting this standard.

Our resolution of these issues obviates any need to address the other issues raised by the parties.

DISPOSITION

The judgment is reversed. Costs to appellant Golden State Drilling, Inc.

_____________________

Ardaiz, P.J.

I CONCUR:

_____________________

Hill, J.

WISEMAN, J., Dissenting.

I begin by observing that we are reviewing a trial courts decisions to 1) deny a motion for new trial following a jury verdict, which is subject to review by the abuse of discretion standard (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 [Legislature has granted trial courts broad discretion to order new trials; appellate courts review with great deference]), and 2) a motion for judgment notwithstanding the verdict, which is reviewed under the substantial evidence standard. (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175 [JNOV is granted only where, viewing evidence in light most favorable to party securing verdict, evidence compels verdict formoving party as matter of law].) Both standards of review severely limit the role of the appellate court when considering the evidence. It is in recognition of this limitation thatI would conclude the trial court did not abuse its discretion in denying Golden States motion for new trial, and that substantial evidence supports the courts denial of the motion for judgment notwithstanding the verdict.

My colleagues and I agree that Hartman was engaged in protected behavior pursuant to Labor Code section 6310, subdivision (b). Labor code section 6310, subdivision (b), prohibits discrimination against employees who complain about unsafe work conditions or practices. Here, Hartman complained to Golden State management about an employee showing up intoxicated for work on an oil rig. The public policy behind [section] 6310 is not merely to aid the reporting of actual safety violations; it is also to prevent retaliation against those who in good faith report working conditions they believe to be unsafe. (Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759.) This evidence clearly forms a proper basis for a wrongful-discharge claim alleged to be in violation of public policy. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 174-175.)

Where my colleagues and I part company is on whether substantial evidence supports the jurys finding that Hartman was constructively discharged. Essentially, my colleagues hold that, as a matter of law, a constructive discharge based on a hostile work environment cannot occur within a short period of time, concluding that Hartmans decision to quit was premature. I disagree and would decide that in this case there is ample evidence to support the jurys finding that Hartman was constructively discharged by Golden State.

The California Supreme Court has explained that constructive discharge occurs only when an employer terminates employment by forcing the employee to resign. (Turner v. Anheuser-Busch, Inc (1994) 7 Cal.4th 1238, 1244.) In doing so, the court observed that [a]ctual discharge carries significant legal consequences for employers, including possible liability for wrongful discharge. In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. (Id. at p. 1244.) And, as my colleagues have observed, constructive discharge occurs only when the employer coerces the employees resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer. (Id. at p. 1245.) Essentially, a constructive discharge is legally the same thing as a firing. (Ibid.) With these principles in mind, I turn to the evidence heard by the jury recognizing that all inferences must be drawn in favor of upholding the verdict. (Clemmer v.Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878.)

The undisputed evidence is that working in the oil fields is dangerous work. Presumably, this is why Golden State (the lease operator) and Chevron (the owner of the lease) have adopted a zero-tolerance policy with respect to the use of alcohol and drugs by employees. Also undisputed is the fact that Mark Grimm, a Golden State employee, came to work on rig eight while intoxicated, and that working alongside an intoxicated person is dangerous. Golden States primary complaint is that Hartman did not report Grimms intoxication to the tool pusher (the senior manager on site), Mike Grimley. Instead, he reported it to his father-in-law, Mac Fernandez, a Chevron employee charged with safety over rig eight.

The majority opinion correctly observes that every job has its frustrations; an employee is not guaranteed a working environment free of stress, and the proper focus is not on an employees subjective reaction to unpleasant working conditions. In addition, it accurately states that the standard for determining constructive discharge is objective, not subjective. At this point, it is important to examine the evidence that supports the jurys decision that Hartman was constructively discharged.

Hartman saw Grimm (an employee senior to him and the nephew of Golden States drilling superintendent, Joey Rocha) arrive at work in an intoxicated state. Grimms intoxication was obvious to Hartman. Upon arriving, Grimm began yelling profanities at coworkers (including Hartman) and had trouble keeping his footing on the drilling rig. Hartman, who was required to work side-by-side with Grimm, could smell alcohol on Grimms breath and observed that his eyes were bloodshot.

Due to the fact that Hartmans coworkers and direct supervisor, Kahalle Dean, were all present on the rig, Hartman believed they also observed Grimms behavior. Hartman looked at his supervisor, Dean, who did nothing. Hartman asked another more experienced coworker, Do you see what Im seeing here? The coworker responded, Yeah, he looks like hes lit. Hartman asked Dean if Dean saw a problem with Grimm, to which Dean gave no response. Dean later testified that he did not report Grimm because Grimm was a friend and was Superintendent Rochas nephew. Dean acknowledged that in the past, numerous employees, including he, himself, had shown up to work hung-over.

My colleagues appear to find fault with Hartman because he did not report Grimm to the senior employee on the rig, Mike Grimley, who was in a work shed located approximately 50 yards away. Instead, he called his father-in-law, Mac Fernandez, a Chevron employee, who was in charge of safety on rig eight. Fernandez contacted another Chevron employee who went to rig eight and confirmed that Grimm was intoxicated. Grimm ultimately was fired.

Hartmans employment with Golden State from this point forward went south. Instead of receiving some reinforcement regarding the importance of employee safety, he encountered nothing but hostility from Golden State management who apparently were more concerned about losing the lease contract than about employee safety. When Hartman reported for work on rig eight the next day, Grimley, a member of Golden States middle management, confronted him upon his arrival saying, You fucked up. Grimley also said, I know it was you who called.(Italics added.) It was only at this point that Hartman acknowledged that it was he who had called. Importantly, Grimley made these comments in front of Hartmans rig crew and the previous crew they were going to relieve.The other employees also voiced their disapproval and their attitude went unchecked by Grimley. In addition, Dean, another member of Golden States middle management, walked up to Hartman and stood directly in his face stating that he was not going to work with Hartman and that someone was going to get hurt. (Italics added.) Grimley then told Hartman he was fired.

As he was leaving, Hartman was then told to report to the main office. When he arrived, he again was met with hostility from Golden State senior management. The personnel director, Gerardo Vargas, confronted him and angrily asked, Whom do you think you work for? Vargas told him, we might lose this rig because of what youve done. Vargas asked Hartman, Are you a toxicologist? Vargas told him that he was unsure of what would happen to Hartman.

The next day (two days after the incident on rig eight), Vargas again did nothing to reassure Hartman that he was right about the safety issue, even if Golden State was not happy about the fact that Hartman reported the safety violation in a manner that might jeopardize their lease. Instead, following several heated rounds of conversation between members of Golden States management team, including Superintendent Rocha, Hartman was offered the opportunity to work on a different rig. The evidence shows that Golden States offer appeared to be made begrudgingly. Further, Rocha and others testified that the people working on a rig are like family andthat it was only a matter of time before employees on the other rigs would have found out that Hartman was the snitch that reported Grimm to Chevron.There was also evidence that workers on oil rigs rely heavily on their coworkers to keep them safe. In addition, there was evidence presented that Golden State asked Chevron to not allow Hartmans father-in-law, Mac Fernandez, back on rig eight. With all this as a backdrop, Hartman was told there would be a meeting on rig eight on Friday. When, under these circumstances, Hartman (not surprisingly) said he would not attend, Vargas told him if he did not show up on Monday that he would consider Hartman as having quit.

In my opinion, these facts are substantial evidence supporting the jurys decision that Hartman was constructively discharged. The jury was entitled to conclude that Golden States management culture placed an employee like Hartman at risk because 1) Golden State valued its lease more highly than the safety of its employees, and 2) Hartman could have faced a higher risk of injury because fellow employees knew he was the snitch and would not watch his back as required in the family atmosphere of working on an oil rig. Worse, the jury could have concluded that Hartman was in physical danger based on the comment made by a Golden State management employee (Dean) in the presence of other Golden State employees indicating that someone (inferentially Hartman) was going to get hurt. Golden State employees are often assigned to work on different rigs. The jury could have concluded that other Golden State employees would follow the lead of management and feel hostility toward Hartman so that Hartman would not likely receive the support of his coworkers in the future, even on a new rig, as required for a safe working environment. This is especially true since there is no evidence that Golden State did anything to reassure Hartman or emphasize to its other employees that Golden State believed safety was important and that Golden State intended to enforce its zero-tolerance policy for alcohol and drugs. The evidence instead suggested that Golden States concern about the significant safety issue was second to its concern that Chevron would discover an actual safety violation and terminate the lease. The inference was there for the jury to draw or reject as it saw fit.

In light of the evidence, it is understandable why the jury concluded that Hartman was not fired, but instead, constructively discharged. (Thomas v. Douglas (9th Cir. 1989) 877 F.2d 1428, 1434 [whether conditions were so intolerable as to justify reasonable employees decision to resign is question of fact].) The jury could well have concluded that Grimley did not have the authority to fire Hartman and that Golden States senior management quickly realized they could not legally fire an employee for reporting a safety violation even if it jeopardized their lease. Instead, the evidence supports the jurys finding that an employee in Hartmans position would have no reasonable alternative except to resign. The evidence supports a reasonable inference that Golden State forced Hartman to resign, rather than work in an unsafe environment. It did so not by its singular response to Hartmans report, but by its failure to assure Hartman that it would respond any differently in the future to significant safety violations or that it would confirm for its employees that Hartmans safety concerns were legitimate and it would not tolerate retaliation against Hartman.

Notably, the jury also found against Golden State concluding that, based on a preponderance of the evidence, Golden State intentionally inflicted emotional distress upon Hartman. Although it is unnecessary to address the legal issues related to this cause of action here, at the very least, it reflects the fact that the jury gave credence to the evidence presented by Hartman and rejected Golden States evidence. Doing so is within the province of the jury, not the appellate court. (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1150.)

In my opinion, the judgment should be affirmed.

___________________________

Wiseman, J.

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Analysis and review provided by La Mesa Property line attorney.

^[1] Dean, a plaintiffs witness, testified under direct examination by Hartmans attorney: Q. Didnt you say you wouldnt work with him because someone is going to get hurt? A. Yes. Dean testified that he was upset with Hartman for having called Chevron [b]ecause he didnt notify me and because Hartman had said something about if I would have did my job or something. Dean further testified he told toolpusher Grimley: I cant work with him. Either he goes or I go. We acknowledge that a jury could have viewed this as a threat by Dean of harm to Hartman, at least if Hartman had been required to work with Dean again. But Golden State never again required Hartman to work with Dean. Hartmans own testimony made no mention of any express threat. Hartman testified that Dean was upset after Hartman accused Dean of not doing his job, and that Dean told toolpusher Grimley I aint working with him.