Employer Terminated At-Will Employee for Failing to "Retreat" from a Fight at Work

October 1, 2003

By: Barbara L. McCully

In Escalante v. Wilson's Art Studio, Inc., 109 Cal.App.4th 692 (2003), the appellate court reversed a jury's verdict that plaintiff was terminated in violation of public policy (the right to self-defense). The court found that, although a person who is physically attacked by a co-worker has the "legal right" to defend him/herself, the right to engage in self-defense does not amount to the type of "public policy" that supports a wrongful termination claim.

In Escalante, plaintiff was attacked by a co-worker without apparent provocation. After screaming at plaintiff, the co-worker began swinging a piece of wood at plaintiff then hit plaintiff with either a hammer or box of screws, after which plaintiff fled the room. The co-worker followed plaintiff, threw a box of screws at him, hitting him in the back. Plaintiff stopped fleeing and rushed the co-worker when he saw the co-worker holding a large metal cap. When plaintiff grabbed the co-worker in a bear hug to restrain him, the co-worker hit plaintiff in the head with the metal cap.

After investigating the matter, the employer terminated plaintiff because it appeared that plaintiff had made a decision to go back and fight, rather than just leave the scene, in violation of the company's policy against employee fighting.

At trial, there was conflicting evidence as to whether plaintiff had intended to fight the co-worker when he stopped fleeing and turned back or whether he had merely sought to stop the co-worker from throwing additional items at him. The jury was presented with a sole cause of action: wrongful termination in violation of public policy. The employer contended that the right of self defense was not the type of "public policy" that would support a wrongful termination case, but the trial court disagreed.

The jury found in favor of plaintiff on the grounds that (1) even after he turned back, plaintiff had not become an "aggressor" in the fight with the co-worker and (2) plaintiff was terminated in violation of public policy because he was terminated for engaging in self-defense.

The appellate court reversed, finding that not every "legal right", even those rights expressed in California's constitution, necessarily amount to a public policy in the wrongful termination context. The court agreed with the employer's position that a "public policy" must affect a duty which inures to the benefit of the public at large and that while plaintiff's decision to abandon his retreat and fight back might have benefited plaintiff, personally, it did not tend to promote workplace safety.

The court further found that California law does not necessarily encourage or advocate self-defense and reasoned that "because the concept of self-defense governs even a situation where retreat would be a safer option than resistance, we cannot say that society would always encourage resistance."