Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 98AS00583
MORRISON, J.
This case involves the aftermath of a high profile whistleblowing. Steve Rigg and his wife, Judy, were correctional officers at Corcoran State Prison. In 1994, Steve engaged in whistleblowing activities with respect to conduct at the prison. The Riggs were transferred to positions at High Desert State Prison, but left work on sick leave and eventually received disability retirement. They allege their health problems and retirement were due to continuous harassment and retaliation because of Steve’s whistleblowing. This appeal is the latest chapter in their attempt to collect damages.
For sake of convenience, we refer to the Riggs individually by their first names.
In late 1997, they filed a civil rights complaint in federal court against various supervisors in the California Department of Corrections (now the Department of Corrections and Rehabilitation), alleging violation of their First Amendment rights and conspiracy. The federal district court granted defendants’ motion for summary judgment. That judgment, except for a portion involving one defendant, was affirmed by the Ninth Circuit Court of Appeals.
In early 1998, the Riggs filed a state action against the State of California, alleging retaliation in violation of Labor Code section 1102.5. After the federal complaint was dismissed, they amended the state complaint to add a cause of action for failure to provide a reasonable accommodation in violation of Government Code section 12940. The trial court granted the State’s motion for summary judgment. The court found the retaliation claim was barred by collateral estoppel because the same issue had been litigated in federal court. The court found the Riggs failed to state a cause of action for failure to accommodate because they had failed to file a complaint under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).
The Riggs appeal. They contend they stated valid causes of action for failure to accommodate and whistleblower retaliation. They contend it was not necessary to file a FEHA complaint and collateral estoppel does not bar the retaliation claim. We find the trial court ruled properly on the State’s motion for summary judgment and affirm.
FACTS
The Riggs’s Employment with the Department
Steve was hired as a correctional officer by the Department of Corrections (the Department) in 1982. He was promoted to sergeant in 1986. In 1988, he was transferred to Corcoran State Prison. Four years later, he was promoted to lieutenant. Judy began work as a correctional officer in 1985. She was transferred to Corcoran in 1988. In 1989, the Riggs married.
During the summer of 1994, prisoners and correctional officers made allegations of misconduct at Corcoran. The allegations included that the correctional officers were pitting rival inmates against each other in fist fights and then using deadly force against them unnecessarily. Steve became concerned about the implementation of the correctional officer shooting policy at the prison. Another officer, Richard Caruso, came to Steve with concerns about the shooting death of an inmate. Steve sought advice from another lieutenant, who suggested contacting the FBI. Steve directed Caruso to remove certain prison documents to be turned over to the FBI. Steve met with the FBI. In November 1994, he testified before a grand jury.
The Riggs claimed they were harassed and retaliated against after these whistleblowing activities. Steve filed workers’ compensation claims for stress and high blood pressure in October and December 1994 and in March 1995. In November 1994, he filed an employee grievance due to comments by George Smith, the warden of Corcoran, and requested 24-hour protection for himself and his family.
Judy was transferred to Pleasant Valley State Prison in October 1994. The following year she was transferred to California Correctional Center and subsequently to High Desert State Prison. Steve was transferred to High Desert State Prison in the spring of 1995.
Steve received considerable media attention for his role as a whistleblower. In December 1995, he appeared on CNN. In the fall of 1996, articles appeared in the Los Angeles Times, the San Francisco Chronicle and the Sacramento Bee about the allegations concerning misconduct at Corcoran. These articles identified Steve as a whistleblower. In November of that year he was interviewed on the television program “60 Minutes.”
In January 1997, Steve went on sick leave due to high blood pressure. He never returned to work. Judy went on sick leave before then, but tried to return to work. On January 21, 1997, Captain Nancy McClure, who was investigating the Riggs’s claims of retaliation, telephoned Judy to ask if she knew of an alleged threat in which a sergeant said, “Lieutenant Rigg should not be telling or he is going to get himself killed.” Judy was so upset by the conversation that she was released from work and never returned.
Captain McClure, the investigative services captain at High Desert State Prison, determined this allegation was meritless.
On January 23, 1997, the Riggs sent a letter to Thomas Maddock, the interim director of the Department. The letter was “a formal request for protection.” The Riggs wrote, “We are in need of protection from all those who have and currently, view us and/or labeled us, as ‘traitors, snitches and informants’. We need protection from all those employees who feel we have violated the so[-]called ‘code of silence’.” The Riggs requested placement on administrative time off with pay or a mutually agreeable assignment outside of the institutions division.
Maddock responded on February 12, 1997. He ordered an immediate inquiry by the Special Services Unit. He told the Riggs, “Your request for paid administrative time off and transfer to another work location is premature. You are currently on sick leave status, which appears to be appropriate. If the SSU inquiry discloses information that you or your wife are potentially in danger, then alternative leave credits may have to be explored. Alternate work site placement would be most appropriately discussed with you after completion of the SSU investigation.”
In July 1997, the Riggs filed a claim under the Government Tort Claims Act (Gov. Code, § 910). The claim stated the Riggs “have been the subjects of continuous retaliation, harassment, discrimination and threats” from the Department, the various prisons where they worked and the staff and employees of these institutions. “Claimants were forced to go out on stress/medical leave and have not been accommodated so that they can return to work in a safe environment.” The claim was rejected.
Steve’s application for disability retirement was approved in October 1997. Judy’s application for the same was approved in April 1998.
The Federal Civil Rights Suit
In November 1997, the Riggs filed a civil rights complaint in federal court. Named as defendants were the State of California, the wardens of High Desert State Prison (William Merkle) and Corcoran State Prison (George A. Smith), a director (James Gomez) and interim director (Thomas Maddock) of the Department, and Eddie Myers, an administrator of the Department. The complaint alleged the retaliation and conduct set forth therein was designed to chill the Riggs’s First Amendment free speech rights and was a “consequence of a practice, custom and policy of encouraging, maintaining, authorizing and condoning a code of silence.” The complaint alleged two causes of action under 42 U.S.C. section 1983, for violation of the first Amendment and conspiracy to violate civil rights.
The complaint alleged Steve engaged in whistleblowing activities concerning conduct at Corcoran and was identified as a person who broke the code of silence and blew the whistle. As a result, plaintiffs “have been the targets of continuous retaliation, harassment, and threats by agents and employees of the State of California, Department of Corrections. Examples of said retaliation and harassment include, but are not limited to, the following: death threats; a photograph at High Desert State Prison depicting WILLIAM STEVEN RIGG with a tail and ears drawn to resemble a rat; punitive job changes; false allegations regarding conduct and performance; vandalism to personal property; being left alone with inmates without appropriate levels of staffing; and a failure to provide modified or alternate work assignments in a safe environment.”
The complaint alleged defendants failed to protect the Riggs from harassment and retaliation and defendants’ conduct “was done pursuant to a strategy to force the Plaintiffs to apply for disability retirement thus ending their careers with the Department of Corrections.” It further alleged that as “a foreseeable result of the alleged pattern of harassment Plaintiffs were forced to go out on stress/medical leave in January 1997 and have not been accommodated since then so they can return to work.”
The complaint recited the letter to Maddock and his response. It alleged that as a result of defendants’ failure to place the Riggs on paid administrative time off or transfer them to a safe work environment, they were forced to remain on medical leave and given no option but to apply for disability retirement.
The defendants moved for summary judgment or summary adjudication, contending the Riggs’s allegations were completely without merit as to each defendant.
The district court granted the motion. The court identified the substance of the Riggs’s claims as “that Steve Rigg’s vocal opposition to the policies at Corcoran State Prison (‘Corcoran’), beginning with his first complaint to the CDC to his subsequent cooperation with the Federal Bureau of Investigation (‘FBI’), created a cascade of reprisals that were either initiated or condoned by the defendants.”
The district court held the lawsuit against the State of California was barred by the Eleventh Amendment and the State was not a person under section 1983. It found the Riggs’s claims against the individual defendants were barred by the statute of limitations. The statute of limitations was one year, so the limitations period extended back to November 4, 1996. Most of the Riggs’s allegations fell outside the limitations period and were not saved by equitable tolling, the continuing violation theory, or the allegation that defendants conspired to violate the Riggs’s constitutional rights.
The Riggs conceded that equitable tolling, based on filing workers’ compensation claims, would apply only to claims against Warden Smith, who retired in May 1996. The District Court found the Riggs had not met the requirements for equitable tolling. The Ninth Circuit disagreed.
The district court found the Riggs took “a rather cavalier approach to their burden of showing a continuing violation” and did little to show an adverse employment action within the limitations period. The Riggs identified only Maddock’s response in February 1997 to their request for protection and paid administrative leave. The court also considered the alleged inaction of Myers, Gomez and Merkle in protecting the Riggs from retaliation and Merkle’s supervision of Captain McClure’s investigation of the alleged retaliation. Since a section 1983 action could not be based on vicarious liability, the Riggs had to show personal participation by the defendants in the retaliation or that they knew of the ongoing retaliation and deliberately failed to prevent it.
The district court found, “the crux of the Riggs’s claim against Maddock is that Maddock’s February 12, 1997 response to the Riggs’s request for protection was deficient because Maddock did not personally address the alleged acts of retaliation and because he did not approve the Riggs’s request for paid administrative leave or transfer. As a consequence, the Riggs argue that they had no option but to retire from the CDC when their sick leave credits were extinguished.”
The district court rejected the contention that Maddock’s denial of paid administrative leave or a transfer while the Riggs were on sick leave was a retaliatory adverse employment action. Further, Maddock’s investigation of whether the Riggs were in physical danger was appropriate and the investigation concluded, based on their own statements, that they were not. “This conduct does not amount to reckless or callous indifference to the Riggs’s claim of retaliation.” Maddock was the interim director of the Department; he was located in Sacramento and oversaw 45,000 employees. There were several layers of supervision between Maddock and the Riggs and none of the alleged acts of retaliation occurred after Maddock assumed his duties. The alleged act that was the subject of the phone call to Judy from Captain McClure was found not to have occurred. The Riggs failed to show Maddock retaliated himself or condoned retaliation by others. Their disagreement with his management decision did not create a triable issue of fact of a violation of the First and Fourteenth Amendments. The district court found the claim against Maddock “specious.”
As to the claims against Myers, Gomez and Merkle, the district court concluded the Riggs failed to show these defendants knew of the alleged retaliation or failed to act. The claim that McClure’s investigation of the alleged retaliation was inadequate also failed. Her investigation of three acts of alleged retaliation in late 1996 (two doctored pictures of Steve and a punitive job change for Judy) were either inconclusive or found not to be retaliation. There was no evidence a more experienced investigator would have reached a different result and no evidence of a biased, inadequate investigation.
In addition to finding the claims were barred by the statute of limitations, the district court also found defendants were entitled to summary judgment on all claims but one on alternative grounds. With one exception, the Riggs failed to show that any of the alleged adverse employment actions would not have been taken in the absence of Steve Rigg’s protected speech. To the extent any claim survived, the defendants had qualified immunity.
The one claim that would survive summary judgment, if not barred by the statute of limitations, was a claim that George Smith, the warden at Corcoran, gave Steve a punitive job change in 1994 after Steve’s whistleblowing activities. The district court characterized this claim as “weak.”
Steve appealed the district court decision. The Ninth Circuit reversed only as to four claims against Warden Smith. The appellate court found these claims, all occurring in 1994, were not barred by the statute of limitations because Steve had established an exception under the doctrine of equitable tolling.
The State Lawsuit
In February 1998, the Riggs filed a lawsuit against the State alleging retaliation in violation of Labor Code section 1102.5. The suit was stayed pending resolution of the federal case and the stay was lifted in May 2004.
Labor Code section 1102.5, subdivision (b) provides: “An employer may not retaliate 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.”
In 2005, after the decision in the federal case, the Riggs sought leave to amend the complaint to add a count alleging wrongful employment practice in violation of Government Code section 12940. They noted they had not filed an administrative complaint under FEHA, but asserted that was not necessary because the new claim was not brought directly pursuant to FEHA; instead, it was “a Tamenytype claim based upon a violation of fundamental public policy as provided for by statute and regulation.” They argued the State was not prejudiced by the amendment because the “retaliation claim and the disability discrimination claim are based on identical facts and are essentially two sides of the same coin.” The Riggs asserted the amended complaint contained only one cause of action under the primary rights theory of pleading; the two counts were alternate theories based on the same primary right, the right to employment.
Government Code section 12940 provides in relevant part that it is an unlawful employment practice: “For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. . . . [¶] For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Id., subds. (m) & (n).)
The trial court tentatively denied the motion for leave to amend, finding the amendment untimely and barred by the failure to file a complaint under FEHA. After the matter was argued and submitted, the court reversed its ruling and granted leave to amend.
The third amended complaint alleged that after Steve’s disclosures to the FBI and grand jury testimony, the Riggs “became the targets of continuous retaliation, harassment, and threats by agents and employees of the State of California, Department of Corrections.” The Riggs filed workers’ compensation claims, putting the Department on notice of the injuries caused by the retaliation. “As a foreseeable result of a pattern of retaliation Plaintiffs were forced to go out on stress/medical leave in January 1997. Thereafter, they were not given an opportunity to return to work or offered other options generally provided to injured workers such as a transfer.” The Riggs alleged they were constructively discharged because “a reasonable person in plaintiffs’ position would have felt there was no other option but to quit.”
The third amended complaint had two counts: retaliation in violation of Labor Code section 1102.5 and wrongful employment practice in violation of Government Code section 12940 and public policy. The Riggs alleged the State discriminated against them by failing to make reasonable accommodation for known physical and mental disabilities and by failing to engage in timely, good faith interactive processes to determine reasonable accommodations for each Rigg. As a result, they were forced to retire.
The State moved for summary judgment or summary adjudication, contending it was entitled to summary judgment for three principal reasons. First, both counts of the third amended complaint were barred by collateral estoppel because the federal action was based on the same allegations. Second, the Riggs failed to exhaust their administrative remedies because the government tort claim filed did not allege wrongful discharge or the failure to reasonably accommodate a disability. Finally, the State contended there was a “total lack of evidence of a triable issue.” The Riggs had conceded the state lawsuit was limited to actions occurring in 1997 and afterwards, culminating in the alleged forced retirements. The State asserted overtures to return them to work were made, but the Riggs “could not be returned to duty[.]” The State maintained the Riggs’s physicians never cleared them to return to work or requested a reasonable accommodation on behalf of the Riggs.
In opposition, the Riggs contended collateral estoppel did not apply because the federal court had dismissed the State for want of subject matter jurisdiction and therefore did not adjudicate any issue of the Department’s liability for retaliation or failure to accommodate. They asserted the State’s tort claim argument failed because they were not alleging a cause of action for constructive discharge or wrongful discharge. Finally, the Riggs maintained there were triable issues of fact as to retaliation and failure to accommodate.
The trial court granted the motion for summary judgment. It found collateral estoppel barred the retaliation claim as it was based on the same acts as alleged in the federal suit; the constitutional claim for retaliation for exercising free speech was indistinguishable from a Labor Code section 1102.5 claim. The court found collateral estoppel did not bar the failure to accommodate claim; the court reasoned that finding the denial of the request for transfer or paid leave was not done in retaliation was not the same as finding the employer properly discharged the duty to provide reasonable accommodation under Government Code section 12940.
The court found the Riggs failed to state a cause of action for failure to accommodate because they failed to file an administrative claim under FEHA. The court recognized that a common law cause of action for constructive discharge in violation of public policy did not require a FEHA claim, but the Riggs disavowed any constructive discharge claim. The Riggs asserted there was a common law right to reasonable accommodation, but the court was not convinced such a right existed. A Tameny claim required some form of discipline against the employee.
A judgment of dismissal was entered.
DISCUSSION
I. Collateral Estoppel
“Res judicata prohibits the relitigation of claims and issues which have already been adjudicated in an earlier proceeding. The doctrine has two components. ‘“In its primary aspect the doctrine of res judicata [or ‘claim preclusion’] operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.” . . . The secondary aspect is “collateral estoppel” or “issue preclusion,” which does not bar a second action but “precludes a party to an action from relitigating in a second proceeding matters litigated and determined in a prior proceeding.”’ [Citations.]” (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1335.)
“Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; fn. omitted.)
The Riggs advance several reasons why collateral estoppel does not bar the state suit. First, they contend the State overlooks that the Ninth Circuit reversed part of the district court decision. The Ninth Circuit found four claims against George Smith were not barred by the statute of limitations. The four claims against Smith were based on actions taken in 1994 and Smith retired in 1996. In request for admissions, the Riggs admitted the state suit was based on alleged conduct occurring in or after 1997, so no actions by Smith are within the scope of the state lawsuit. Nonetheless, the Riggs contend the Ninth Circuit’s decision to allow the claims against Smith to proceed is significant because, they assert, it is not unreasonable to conclude that Smith’s attitude toward Steve was fairly typical of the attitude of the Department. To establish a triable issue of fact on the retaliation claim, however, the Riggs must show more than an attitude; they must show an act of retaliation. That they may have a valid claim against Smith, or at least a triable issue of fact, for actions taken in 1994 does not aid them in an action for retaliation limited to actions taken in 1997 and afterwards.
The Riggs further contend collateral estoppel does not bar their suit in state court because the federal case did not decide the same issues. The State was dismissed as a defendant in the federal suit. The Riggs assert the federal case decided only the liability of the individual defendants and there was no ruling as to the State’s liability.
“The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 342.) The State contends all the issues in the two cases are identical. As to the retaliation claim only, we agree.
The federal and state lawsuits contain almost identical factual allegations. The federal case alleged that the Riggs “have been targets of continuous retaliation, harassment, and threats by agents and employees of the State of California, Department of Corrections.” The state suit alleged the Riggs “became the targets of continuous retaliation, harassment, and threats by agents and employees of the State of California, Department of Corrections.” It further alleged, “As a foreseeable result of a pattern of retaliation Plaintiffs were forced to go out on stress/medical leave in January 1997. Thereafter, they were not given an opportunity to return to work or offered other options generally provided to injured workers such as a transfer.” The federal suit alleged that as “a foreseeable result of the alleged pattern of harassment[,] Plaintiffs were forced to go out on stress/medical leave in January 1997 and have not been accommodated since then so they can return to work.” Thus, both lawsuits allege a pattern of retaliation that continued after the Riggs went on sick leave, included a failure to accommodate so they could return to work, and resulted in their leaving the Department.
Despite the similar, almost identical, allegations, the Riggs contend the issues decided in the federal case are not similar to those posed in the state case because the employer’s liability was not decided in the federal case. The employer -- the State -- is the sole defendant in the state case. The State, however, acts through its agents and employees. At best, the Riggs can claim only that the federal case did not name all state employees who may have been involved in retaliation. Although they could not sue the State in the federal action, they have not explained why they could not name all the state employees who retaliated against them. The failure to name as defendants all possible employees involved does not bar application of collateral estoppel. As the trial court found, the Riggs could have named other employees in the federal suit; they cannot do so now.
“‘The collateral estoppel aspect of res judicata will apply as to all issues which were involved in the prior case even though some factual matters or legal arguments which could have been presented in the prior case in support of such issues were not presented. [Citation.] Thus, where two lawsuits are brought and they arise out of the same alleged factual situation, and although the causes of action or forms of relief may be different, the prior determination of an issue in the first lawsuit becomes conclusive in the subsequent lawsuit between the same parties with respect to that issue and also with respect to every matter which might have been urged to sustain or defeat its determination. [Citation.] If the legal principle were otherwise, litigation would end finally only when a party could no longer find counsel whose knowledge and imagination could conceive of different theories of relief based upon the same factual background. [Citation.]’ [Citation.]” (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1301; original italics.)
The Riggs make much of the State’s dismissal as a party from the federal suit. However, since the seminal case of Bernhard v. Bank of America (1942) 19 Cal.2d 807, mutuality has not been a prerequisite to asserting collateral estoppel. The Riggs’s argument is much like that of the plaintiff in Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464. In Takahashi, a fired teacher argued that even if res judicata or collateral estoppel barred her action against the district, her causes of action against individually named defendants who were not defendants in the first action were not barred. The appellate court disagreed, noting all defendants were sued solely because of their involvement in the termination process and the requirements of res judicata or collateral estoppel were met. (Id. at p. 1477.)
Indeed, the Riggs are attempting to do exactly what the Bernhard court said could not be done. In questioning the rationalization for a mutuality requirement, the court noted that most jurisdictions recognized a broad exception to the traditional rule of privity and mutuality where derivative liability was involved. “Thus, if a plaintiff sues a servant for injuries caused by the servant’s alleged negligence within the scope of employment, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the master as res judicata if he is subsequently sued by the same plaintiff for the same injuries.” (Bernhard v. Bank of America, supra, 19 Cal.2d at pp. 812-813.) Collateral estoppel prevents a party “who has had his day in court” from relitigating “identical issues by merely switching adversaries.” (Id. at p. 813.)
The federal district court determined there was no retaliation against the Riggs for Steve’s whistleblowing activities or protected speech, and the Ninth Circuit affirmed, except for claims arising in 1994 against Smith. Because the issue of retaliation was determined against the Riggs, their state claim for retaliation in violation of Labor Code section 1102.5, for actions from 1997 and thereafter is barred by collateral estoppel.
The State contends the bar of collateral estoppel extends to the alleged violation of Government Code section 12940 as well. The State relies on the assertions of the Riggs in moving to amend the complaint to add this claim. They asserted it was based on identical facts as the retaliation claim was just another side of the same coin. The trial court determined collateral estoppel did not bar the second claim and we agree.
The claim for failure to accommodate or engage in a good faith interactive process is not the same issue as retaliation. The third amended complaint alleges the State discriminated against the Riggs by “failing to make reasonable accommodation for the known physical and mental disabilities of the plaintiffs and by failing to engage in timely, good faith, interactive processes to determine reasonable accommodations for each plaintiff.” This allegation is broader than retaliation; it would cover a failure to accommodate for reasons other than retaliation. The federal court determined only that Maddock’s denial of paid leave or a transfer was not retaliatory. There was no determination of whether the State failed in its duty to accommodate or engage in a good faith, interactive process.
II. Failure to File FEHA Complaint
Relying on Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, the Riggs contend they stated a valid cause of action for failure to accommodate. Without reaching the merits, the trial court granted summary adjudication in favor of the State on this claim, ruling sua sponte that the Riggs failed to file the necessary complaint with the Department of Fair Employment and Housing to state a cause of action under FEHA. (Gov. Code, § 12960.)
Although the Riggs emphasize this ruling was made sua sponte and the failure to file an administrative complaint was not raised by the State, they do not contend the trial court erred in raising the issue on its own. This court has approved the practice. (See Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 69.)
The Riggs contend the administrative complaint was not necessary because they alleged a tort based on a violation of public policy, a common law or Tameny theory (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167). They contend the trial court erred in concluding such a common law claim had to be based on an allegation of constructive discharge or wrongful termination. In effect, they assert they have a common law claim for failure to accommodate. Like the trial court, we find no such common law claim exists.
Somewhat disingenuously, the Riggs contend the trial court erred in requiring a claim for “constructive discharge” because constructive discharge is not itself actionable. Read in context, however, it is clear the trial court meant a claim for wrongful discharge, either actual or constructive.
In Tameny, the California Supreme Court held an employee who was discharged for refusing to break the law had a tort action against his employer for wrongful discharge in violation of public policy. (Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d at p. 178.) The court reaffirmed the viability of a tort action where the employer discharges an employee in contravention of the dictates of a fundamental public policy in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665-669. In Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 (overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6), the court explained that to support a tort action for wrongful discharge, the public policy must be supported by constitutional or statutory provision.
The high court has addressed cases where the action could have been brought under the provisions of FEHA. In Rojo v. Kliger (1990) 52 Cal.3d 65, the court held FEHA was not the exclusive remedy for sex discrimination in employment and therefore the plaintiff did not need to exhaust administrative remedies under FEHA to file an action for damages alleging nonstatutory causes of action. (Id. at pp. 72-88.) In that case, plaintiff could amend her complaint to plead a cause of action for wrongful discharge in violation of public policy. The fundamental public policy against sex discrimination in employment could be found in article I, section 8 of the California Constitution. (Id. at pp. 88-91.)
In Stevenson v. Superior Court (1997) 16 Cal.4th 880, the public policy at issue, age discrimination in employment, was effectively articulated only in FEHA. The court held a common law tort for wrongful termination in violation of the public policy against age discrimination articulated in FEHA was not subject to FEHA’s requirement that an employee exhaust administrative remedies before seeking judicial relief. (Id. at p. 905.)
In City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, at page 1161, the court held “that disability discrimination can form the basis of a common law wrongful discharge claim.” The court held Labor Code section 132a, prohibiting discrimination against workers who were injured in the course and scope of their employment, did not provide the exclusive remedy for this type of discrimination and did not bar FEHA and common law remedies. (Id. at p. 1148.)
From this line of cases we conclude that a common law cause of action for wrongful discharge in violation of public policies articulated in FEHA may stand. We need not determine, however, whether failure to accommodate or failure to engage in a good faith, interactive process is a fundamental and substantial public policy that will support a wrongful termination claim. As the trial court found, the Riggs disavowed that they were claiming wrongful discharge. In their opposition to the summary judgment motion, the Riggs twice stated, “plaintiffs have not alleged a cause of action for constructive discharge or wrongful termination.”
The Riggs made these statements in response to the State’s argument that a wrongful termination claim was barred by the Riggs’s failure to mention constructive discharge or forced retirement in their Government Tort Claims Act claim. On appeal, the Riggs do not contend they have stated a valid claim for wrongful discharge, so we need not determine whether their tort claim was sufficient to cover wrongful termination.
The Riggs contend they may maintain a common law Tameny cause of action for violation of public policy, failure to accommodate and failure to engage in the interactive process, apart from a Tameny claim for wrongful termination in violation of public policy. They cite no authority for the proposition that any violation of public policy is itself actionable and we are aware of none. The Tameny line of cases speaks to wrongful termination in violation of public policy. At least one court has held there is a Tameny cause of action against an employer for discipline in violation of public policy. (Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1560-1562, disapproved on another ground in Gantt v Sentry Insurance, supra, 1 Cal.4th 1083, 1093.) Courts have not, however, expanded a Tameny cause of action further. For example, there is no cause of action for nonrenewal of an employment contract in violation of public policy. (Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.4th 97, 112-113; Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 45.)
Because there is no common law action for failure to accommodate, the Riggs’s claim arose only as a statutory claim under FEHA. To bring suit on that claim, they were required to exhaust their administrative remedies and file a complaint under FEHA. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) Their failure to do so bars the claim.
Since both counts of the amended third complaint were barred, the trial court properly granted the State’s motion for summary judgment.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P.J., HULL, J.