Potts v. Radioshack

Filed 7/26/06 Potts v. Radioshack CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Derek Guy Johnson, Judge. Affirmed in part, reversed in part, and remanded with directions.

Geniene B. Stillwell for Plaintiff and Appellant.

Horvitz & Levy, Barry R. Levy, H. Thomas Watson, Jason T. Weintraub; Woldt & Associates and Wendy A. Woldt for Defendant and Appellant.

I

INTRODUCTION

Thomas Potts was employed by Radioshack Corporation as a store manager and was required to work an average of 50 to 60 hours a week. Potts had high cholesterol. One of Potts's doctors, believing Potts's high cholesterol was not being managed well by diet and medication, directed him to not work more than 40 hours a week so as to reduce stress, which in turn could lower his cholesterol levels. Potts informed his supervisor of the work restriction imposed by his doctor and indicated he wanted to take intermittent medical leave under the California Family Rights Act (Gov. Code, § 12945.2)[1] (the CFRA). In subsequent meetings with his supervisor to discuss the issue, Potts attempted to tape record the conversations, the tone of the meetings quickly deteriorated, and Potts was ultimately fired. Potts claimed he was fired because of his request for qualifying medical leave. Radioshack maintained Potts was fired for insubordination because he insisted on tape recording the meetings without the supervisor's consent in violation of company policy.

A jury returned a special verdict awarding $1 million in compensatory damages to Potts for breach of an implied agreement to not terminate employment except for good cause, violation of his rights under the CFRA, and wrongful termination in violation of public policy. The jury found against Radioshack on its cross-complaint for illegal recording under Penal Code section 632. The trial court denied Radioshack's motion for judgment notwithstanding the verdict (JNOV), but granted its motion for new trial due to juror misconduct.

Potts appeals the order granting new trial contending there was no prejudicial juror misconduct. Radioshack appeals the order denying JNOV contending there is insufficient evidence to support a judgment in Potts's favor on the contract or the CFRA causes of action. Radioshack also contends the jury's verdict in Potts's favor on the wrongful termination cause of action was inconsistent with its verdict in Radioshack's favor on another of his causes of action (perceived disability discrimination).

We agree with Radioshack the evidence is insufficient to support a judgment in Potts's favor on the contract causes of action because Potts expressly agreed in writing he was an at-will employee. We also agree with Radioshack the evidence does not support a judgment in Potts's favor on the CFRA causes of action because he failed to demonstrate that his high cholesterol constituted a â€