Opinion
G035913
5-23-2007
MICHELLE EMARD, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Appellants.
Duncan Campbell Webb for Plaintiff and Appellant. Lynberg & Watkins, Norman J. Watkins and William F. Bernard for Defendants and Appellants.
NOT TO BE PUBLISHED
After being terminated from her media relations job with the Orange County District Attorneys Office, Michelle Emard sued the County of Orange and the Orange County District Attorney, Anthony Rackauckas (sometimes referred to collectively as the defendants), for violation of the whistleblower protections of Labor Code section 1102.5, wrongful termination in violation of public policy, and defamation. Emard contended she was terminated for having objected to what she believed was an unconstitutional office policy of not cooperating with journalists and media outlets that reported unfavorably on Rackauckas. The defendants were granted a partial directed verdict on Emards Labor Code section 1102.5 and wrongful termination causes of action, and Emard subsequently dismissed her defamation cause of action. On appeal, Emard contends the partial directed verdict was error because she presented sufficient evidence to support a favorable judgment on both causes of action. We disagree and affirm the judgment.
Emard dismissed her defamation cause of action and does not raise any issues on appeal concerning that cause of action. Because we affirm the judgment, we need not consider the defendants protective cross-appeal concerning the courts denial of directed verdict on the defamation cause of action.
STANDARD OF REVIEW ON DIRECTED VERDICT
"A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.] [¶] Thus, if the party resisting a motion for directed verdict produces sufficient evidence to support a jury verdict in his or her favor, the motion must be denied." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630, fn. omitted.) On an appeal "taken from a judgment entered upon a directed verdict, we must view the evidence in the light most favorable to the appellant . . . . All inferences must be drawn in [the] appellants favor. If we find legal merit to [the] appellants claim and substantial evidence to support that claim, we are required to reverse the trial court. [Citation.]" (South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1120.) With that standard in mind, we set forth the facts most favorably to Emard.
FACTS
Emard was hired as an executive assistant in the Orange County District Attorneys Office in September 2002. Her at-will employment was terminated in May 2003. Emard was hired to serve as the media relations director/public information officer. Deputy District Attorney Susan Schroeder had been handling media relations for the district attorneys office since the prior media relations director left, and in particular, handled all media issues concerning a high profile capital murder case being prosecuted by the office (the Avila case). Schroeder was assigned to be Emards supervisor. Emard, who had no background in law enforcement, understood Schroeder was only going to provide her with a basic orientation to the workings of the district attorneys office and law enforcement media issues to transition her into her position as media relations director. As it soon turned out, Schroeder, who had moved herself into the official media relations directors office, supervised Emard on all tasks.
Emard was troubled by restrictions Schroeder placed on her concerning interaction with journalists and media outlets that reported unfavorably on Rackauckas and the district attorneys office. Schroeder instructed Emard to refer telephone calls and e-mails from particular journalists and media outlets to Schroeder, for Schroeder to handle personally. But, Emard believed Schroeder had a policy of not returning those calls or responding to reporters telephone inquiries, and required some media outlets to file formal requests for information under the Public Records Act. Additionally, Emard testified certain media outlets were not programmed into the office fax machine so when news releases and announcements of press conferences were automatically faxed to the media, those outlets did not get the announcements. Rackauckas himself refused to be interviewed by, or provide quotes to, certain journalists. Schroeder sometimes gave "scoops" to favored reporters.
Government Code section 6250 et seq.
Emard also testified all of the district attorneys office press releases, public information releases, and media advisories (i.e., announcements of press conferences) were posted on its Web site; all Public Records Act requests were handled by the same staff member regardless of the source of the request; no journalist or media outlet was ever excluded from press conferences; and although Rackauckas declined personal interviews with certain journalists, no similar media restrictions were placed on deputy district attorneys and they were free to talk to any reporter.
Trial Exhibit No. 72
In May 2003, Emard had a series of meetings with Rackauckas concerning her job duties and her disputes with Schroeder over control of media relations. Emards trial exhibit No. 72 was a lengthy e-mail memo she sent to the director of administration for the district attorneys office and Rackauckas on May 22, 2003, detailing her discussions with Rackauckas up to that point. Emard was terminated from her employment a few days after sending this e-mail.
Many other documents pertaining to Emards interactions with Schroeder and journalists, including e-mails and telephone messages, were admitted into evidence as well. However, as neither party requested transmittal of any of those exhibits, they are not before us. (See Cal. Rules of Court, rule 8.224(a)(1) [requires "a party wanting the reviewing court to consider any original exhibits that were admitted in evidence" to timely serve and file the proper notice in superior court designating those exhibits].) The defendants augmented the appellate record with trial exhibit No. 72. "Where exhibits are missing we will not presume they would undermine the judgment." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291; see also Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 925, fn. 1.)
In the first seven pages of the May 22 e-mail, Emard detailed the circumstances of her hiring, what she thought her job would be, and her frustrations and disputes with Schroeder about the way the media was handled. In February 2003, Emard had a confrontation with Schroeder in which Schroeder told Emard it was her responsibility to "get positive press" for Rackauckas, and she should not cooperate with reporters who did not advance that cause. Emard objected to Schroeder that her directive was unethical, damaging to Emards long standing relationships with members of the press, and compromised her professional and personal integrity. Emard told Schroeder they had "conflicting philosophies about what constituted a fair media relations policy[]" and demanded they meet with Rackauckas to discuss the issues. Emard believed the "`media policy" Schroeder was requiring Emard to adhere to was Schroeders, not Rackauckass. Emard warned Rackauckas refusing to "provide quotes" to certain journalists "was chipping away at his credibility to the public at large[.]" She "hoped things would change without my having to issue an ultimatum to [Schroeder] and [Rackauckas] about what I would and would not do in my capacity of Media Relations Director. I feared losing my job." Emard detailed several subsequent instances in which Schroeder assumed control of media strategy on particular cases and deliberately left Emard "out of the information loop[.]"
On May 6, 2003, Emard met with Rackauckas and "gave him a white paper listing the duties and responsibilities I believed I had to be empowered by him to do to continue on in my job as Media Relations Director." Those demands included that Emard be given total control over all media responsibilities (i.e., Schroeder is out), she be given complete discretion over media relations and interactions between Rackauckas and the media, she respond to all media inquiries, she provide all quotes to the media on behalf of Rackauckas and the office, and she "facilitate" all interviews for Rackauckas and the office. Rackauckas "listened and nodded" during the meeting while Emard read her list, and only asked if "[Emard] was placing a higher importance on [her] desire to communicate with the reporters [she] had [a] prior professional relationship with and a lower importance on [her] role as his Media Relations Director." Emard denied that was the case, acknowledging Rackauckas would certainly have "`veto power as my boss . . . and I would follow his wishes." [¶] I told him I just wanted to be able to do my job and advise him. [¶] [Rackauckas] then asked me to meet with him again and make a recommendation regarding resolving the issue of my role in his office."
Emard met with Rackauckas again on May 16 "and told him that he had to remove . . . Schroeder from the physical office she is now in and order her to stay out of the media relations realm completely. I told him that installing me in the official Media Relations Director office was an important step that would symbolize my role in his Administration and also his support of my role as Media Relations Director." Emard told Rackauckas she understood Schroeder was an important political advisor to him "but that without exception all communications with the media had to go through me in order for me to be effective in my role as Media Relations Director." Rackauckas told Emard "he wanted [a] week to think about it."
Emards Trial Testimony
Emard testified she was very frustrated by how Schroeder handled the press, reporters complained to Emard about how Schroeder handled their requests, and Emard felt her relationships with reporters were being negatively impacted.
When Emard met with Rackauckas on May 6, she told him about her conflicts with Schroeder over who should control media relations, and her tremendous confusion and frustration about her role in the office. She told Rackauckas he needed to put an absolute "firewall" between Schroeder and media relations. Emard told Rackauckas she was uncomfortable with how Schroeder handled the press, and did not like it that Schroeder told her to not return calls from certain reporters. She also told him if he did not want her to return certain reporters calls, or to do interviews with particular media outlets, she would abide by his wishes, she just wanted input in those decisions.
Emard denied she intended any of her demands as an "ultimatum" to Rackauckas, or a threat to quit, but understood her move could get her fired. She intended the list she presented to Rackauckas on May 6 as a statement of her expectations of the job duties and responsibilities she must be given "`to continue on in my job[,]" but she didnt mean to suggest that unless given those duties she would quit. Her "white paper" was not, however, "just a wish list."
Emard clearly understood after her May 6 meeting with Rackauckas, he did not want to remove Schroeder from all media responsibilities, and he specifically intended to have Schroeder continue handling media on the Avila case because Schroeder was indispensable to him on that matter. Rackauckas asked Emard to think about a compromise, "`a recommendation or a possible solution in terms of defining a role for [Schroeder] in relation to my job and this office which I agreed to do[.]" Emard believed after that meeting Rackauckas "genuinely wanted to keep [her] on" and wanted to "solve [her] problems[.]"
When she returned to talk to Rackauckas on May 16, Emard agreed she was telling him there would be "no compromise[.]" Emard testified she definitely "meant it" when she said to Rackauckas that he must remove Schroeder from all media relations completely. Again, Emard denied she intended this as an "ultimatum," but anticipated she would be fired as a result. On her first day at work after the May 22 e-mail went out, she expected her employment was going to be terminated. She was called into a meeting with Rackauckas who said, "`based upon our meetings and based upon what happened last week, which [Emard] took to mean the memo that [she] wrote, `Its just not working out. And he handed me . . . the termination letter."
Emard testified she was concerned Schroeders handling of certain journalists and media outlets (not returning phone calls, not advance faxing press releases, not giving them direct quotes from Rackauckas or setting up interviews with him, requiring they submit formal requests for public information, giving "scoops") might be illegal or violate First Amendment rights of the press. On cross-examination, Emard agreed she believed it was permissible for a public official to refuse to talk to journalists who had misquoted him, and it was alright to give "exclusives" to certain journalists. Although Emard told Schroeder and Rackauckas she disagreed with Schroeders policies, she never told either that she had First Amendment concerns or was worried any laws were being violated. She agreed her termination was the result of demands she placed on Rackauckas, not the result of anything Rackauckas demanded of her.
Procedural Facts
Emard filed the instant action against the County of Orange, Rackauckas, Schroeder, and Assistant District Attorney, Charles Middleton. Her complaint contained three causes of action: (1) violation of Labor Code section 1102.5, by retaliating against a whistleblower; (2) wrongful termination in violation of public policy; and (3) defamation. Prior to trial, Schroeder and Middleton were dismissed from the action with prejudice.
After both sides rested, the defendants moved for directed verdict on all causes of action. The court granted the motion as to the whistleblower and wrongful termination causes of action, but denied it as to the defamation cause of action. Emard subsequently dismissed the defamation cause of action in exchange for a waiver of costs by the defendants. A minute order entered June 7, 2005, granted directed verdict on the whistleblower and wrongful termination causes of action, and dismissed the case with prejudice.
The defendants filed a motion to dismiss Emards appeal on the grounds Emards stipulation to dismiss her defamation cause of action included her waiver of her right to appeal the order granting directed verdict on the whistleblower and wrongful termination causes of action. At oral argument before this court on March 22, 2007, the defendants withdrew this motion.
DISCUSSION
1. Whistleblower cause of action
Emard contends the trial court improperly granted directed verdict on her cause of action for violation of Labor Code section 1102.5, subdivision (b). We disagree.
Labor Code section 1102.5, subdivision (b), protects "whistleblowers" by prohibiting an employer from "retaliate[ing] against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." We conclude Emard did not present any evidence suggesting she was terminated in retaliation for having disclosed or complained about what she reasonably believed to be an unconstitutional media policy.
Preliminarily, we agree with the trial court Emard failed to demonstrate any unconstitutional conduct. "While the collection of information is an important aspect of First Amendment freedoms, [citation], the ability to collect information is not absolute. Although the First Amendment protects information gathering, it does not provide blanket access to information within the governments control. [Citations.] As a general rule, the First Amendment `does not guarantee the press a constitutional right of special access to information not available to the public generally." (Raycom Nat., Inc. v. Campbell (N.D.Ohio 2004) 361 F.Supp.2d 679, 682 (Raycom), citing Branzburg v. Hayes (1972) 408 U.S. 665, 728.)
Emard argues the issue is not whether certain media was denied access to otherwise public information. Rather, it is whether refusing to return the calls of, or grant interviews to, certain reporters, making those reporters go through official channels for information, and not proactively faxing them press releases and media advisories otherwise available to all on the district attorneys Web site, constituted unconstitutional discrimination against certain media outlets.
Emard has not shown that any such unconstitutional discrimination took place. InSnyder v. Ringgold (D.Md. 1999) 40 F.Supp.2d 714, after the plaintiff journalist aired a negative story about the police department, she began to experience difficulties in obtaining information from the defendant, the director of public affairs for the police department, including that he would no longer talk to her about stories, denied her access to information unless her requests were made in writing, and restricted her ability to conduct interviews with officials. The court concluded the plaintiff was not denied information "`generally available or `freely given to other members of the news media." Rather, the defendant was merely exercising his right not to answer questions or meet with particular members of the media. His actions were analogous to "`the commonly and widely accepted practice among politicians of granting an exclusive interview to a particular reporter" and "`equally widespread practice of public officials declining to speak to reporters whom they view as untrustworthy because the reporters have previously violated a promise of confidentiality or otherwise distorted their comments." (Id. at pp. 717-718.) The court recognized no reporter has the right to access a particular interview, story, or off-the-record statement.
Similarly, in Raycom, supra, 361 F.Supp.2d at page 681, a citys mayor established a policy that city employees no longer give interviews or provide information to a particular television station, except through a formal public information request, after the station aired a story critical of the mayor and his family. The court concluded the policy did not offend any constitutional rights of the station. The station was not denied access to information generally available to other members of the media or to the public generally. Its reporters were not prohibited from attending press conferences and it still had access to press releases. The court concluded the mayor was entitled to "exercise her right not to speak with certain reporters that, in her opinion, she views as untrustworthy or irresponsible." (Id. at p. 683.)
Emards heavy reliance on Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, is misplaced. That case concerned a journalists action against a public utility for defamation and interference with contractual relationships. The plaintiff had worked for an association opposed to nuclear power and reported negatively on the defendants activities. After she was later hired by an industry trade publication, the utilitys media manager accused her of having a conflict of interest due to her prior association with the anti-nuclear power group, causing her to loose her job. The court concluded the utility had effectively blacklisted the plaintiff in violation of Public Utilities Code section 453, which specifically prohibits a public utility from subjecting any person "`to any prejudice or disadvantage[,]" giving her a viable cause of action for interference with prospective economic advantage. (Id. at p. 455.)
Other cases upon which Emard relies for the proposition it is unconstitutional to treat one member of the media less favorably than another are also distinguishable. For example, in Borreca v. Fasi (D.Haw. 1974) 369 F.Supp. 906, 907-908, the reporter was denied entry to a general news conference otherwise open to all media. In Stevens v. New York Racing Assn, Inc. (E.D.N.Y. 1987) 665 F.Supp. 164, 175, the plaintiff photojournalist was prohibited from bringing his camera into the racetrack paddock areas that were otherwise open to all other journalists. (See also United Teachers of Dade v. Stierheim (S.D.Fla. 2002) 213 F.Supp.2d 1368 [access to press room]; American Broadcasting Companies, Inc. v. Cuomo (2nd Cir. 1977) 570 F.2d 1080, 1083 [access to post-election activities at candidates headquarters]; Westinghouse Broadcasting Co. v. Dukakis (D.Mass. 1976) 409 F.Supp. 895 [access to city council meetings]; Borreca v. Fasi (D.Haw. 1974) 369 F.Supp. 906, 907 [access to news conferences]; Telemundo of Los Angeles v. City of Los Angeles (C.D.Cal. 2003) 283 F.Supp.2d 1095, 1102 [access to ceremony commemorating Mexican War]; Times-Picayune Pub. Corp. v. Lee (E.D.La. 1988) 15 Media L. Rep. 1713, 1988 WL 36491 [notice of and access to press conferences].)
Here, it is undisputed no media outlets were denied access to information available to the public generally. Although Emard testified two media outlets were not on the automatically dialed fax list for press releases and media advisories, there was no evidence either Rackauckas or Schroeder had directed they be removed from (or not placed on) the list. All press releases and media advisories were posted on the district attorneys Web site. No journalist was ever excluded from press conferences. No restrictions of any kind were placed upon any deputy district attorney in talking to members of the media. Public information requests from all media were treated the same. And, although Emard testified some reporters complained to her, there was no testimony from any journalist or other media representative the policies materially and adversely impaired their ability to gather and report the news.
Emard argues it was not necessary she demonstrate any actual constitutional violations. Rather, to prevail on a whistleblower claim, Emard need only show she reasonably believed the reluctance to cooperate with journalists Rackauckas distrusted had constitutional implications and she was terminated in retaliation for having alerted Rackauckas to those concerns.
We conclude there is no evidence from which a reasonable trier of fact could find Emard was terminated for having complained about what she reasonably believed to be an unconstitutional media policy. Although there is abundant evidence Emard was troubled by how Schroeder dealt with certain members of the press, there is no evidence she shared with Schroeder or Rackauckas her concerns about the constitutionality of Schroeders conduct. To the contrary, Emard testified she never objected the policy was unconstitutional or illegal. We note that in her extensive May 22 e-mail, Emard complained about how Schroeder treated certain journalists, and placed on record her objections that Schroeders actions were unprofessional, bad policy, politically unwise, violated Emards sense of professional integrity and ethics, disrupted Emards preexisting professional relationships with certain journalists, and demonstrated Emard and Schroeder had conflicting philosophies about media relations, but there is no mention of concerns about violation of First Amendment rights of the press or any other laws.
It is also clear Emard was not fired for having complained about an unconstitutional press policy. Rather, Emard was terminated because she wanted to be placed in control of media policy, to the exclusion of Schroeder. Emard agreed in her testimony, she believed a public official could decline to talk to certain journalists. And Emard told Rackauckas she would abide by his directives concerning dealing with the press, including as to which reporters to set up interviews with, and which reporters to not call back. Emard simply wanted to be the one who advised him on those decisions, not Schroeder.
Emard testified when she presented Rackauckas with her "white paper," she did not intend it as an "ultimatum," but she did intend it to be a list of the duties and responsibilities she must be given "`to continue on in my job," and she anticipated she might be terminated as a result. She came away from her first meeting with Rackauckas with the clear understanding that Rackauckas would not remove Schroeder from all media responsibilities, particularly as to the Avila case. And she believed Rackauckas was entirely sincere when he asked her to come up with a compromise that would allow Schroeder to continue with media responsibilities Rackauckas insisted she handle, while allowing Emard to assume the media relations director role. Emard agreed when she returned to Rackauckas on May 16, she was telling him there would be no compromise on Schroeder, Schroeder must be transferred and removed from all media relations responsibilities. Again, Emard denied she intended to quit if Rackauckas did not accede to her demands, but she knew she would be probably be fired as a result. As she candidly admitted, her termination was the result of demands she placed on Rackauckas, not the result of anything he demanded of her. There simply is no evidence that would support a jury finding Emard was fired in retaliation for having reported unconstitutional activity. Accordingly, the trial court properly directed verdict on this cause of action.
2. Wrongful Termination in Violation of Public Policy
Emard next contends the trial court improperly granted the defendants motion for directed verdict on her second cause of action for wrongful termination in violation of public policy. We disagree.
An employer may not terminate an employee "for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. [Citation.]" (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252 (Turner).) Doing so gives rise to a "Tameny claim," i.e., a tort action in favor of the terminated employee. (Ibid., citing Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178.) "Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for `(1) refusing to violate a statute . . . [,] (2) performing a statutory obligation . . . [,] (3) exercising a statutory right or privilege . . . [, or] (4) reporting an alleged violation of a statute of public importance. [Citation.]" (Turner, supra, 7 Cal.4th at p. 1256.)
Emard contends she presented sufficient evidence she was fired in violation of the whistleblower protections set forth Labor Code section 1102.5, and her firing gives rise to a Tameny claim. But, as already discussed above, there was insufficient evidence to support Emards whistleblower cause of action. To prevail on a wrongful discharge in violation of public policy cause of action, Emard had to "demonstrate the required nexus between [her] reporting of alleged statutory violations and [her] allegedly adverse treatment . . . ." (Turner, supra, 7 Cal.4th at p. 1258.) Because Emard has presented no substantial evidence supporting her claim she was fired in retaliation for having reported what she reasonably believed was illegal or unconstitutional activity, her Tameny claim fails.
In view of this conclusion, we need not decide whether a Tameny wrongful discharge claim may be asserted against a public entity (see Palmer v. Regents of the University of California (2003) 107 Cal.App.4th 899, 909 ["[b]ecause the `classic Tameny cause of action is a common law, judicially created tort . . . and not authorized by statute, it is not properly asserted against [a public entity]"), or against Rackauckas individually (see Reno v. Baird (1998) 18 Cal.4th 640, 664-665 [plaintiff could not sue supervisors individually for wrongful discharge in violation of public policy set forth in Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)]).
DISPOSITION
The judgment is affirmed. The defendants are awarded their costs on appeal.
We concur:
ARONSON, J.
IKOLA, J.