Filed 3/4/21 Coffman v. Dept. of Transportation CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

AMALIA COFFMAN et al.,

Plaintiffs and Appellants,

v.

CALIFORNIA STATE DEPARTMENT 

OF TRANSPORTATION et al.,

Defendants and Respondents.

 H046473

 (Monterey County

 Super. Ct. No. 17CV000819)

Decedent John Coffman, a longtime employee of the California Department of 

Transportation (Caltrans), died by suicide in 2015. His wife and son (the Coffmans or 

appellants) sued Caltrans and Coffman’s supervisor, Michael Nelson, for wrongful death. 

They allege that Coffman was bullied, ridiculed, and harassed at work by a number of 

coworkers and that Caltrans and Nelson failed to prevent those acts, causing Coffman’s 

death. Caltrans and Nelson moved for summary judgment on the basis of their 

affirmative defense that the Coffmans’ claims are barred by workers’ compensation 

exclusivity. The trial court granted that motion. The Coffmans appeal. We shall affirm.

I. BACKGROUND

A. Undisputed Facts

Since at least May 1998, Caltrans has had a “zero tolerance” policy for workplace 

violence, including threats, harassment, verbal abuse, bullying, and intimidation.

1 Nelson 

1 The Caltrans workplace violence prevention policy that was in effect from 

May 1, 1998 until November 5, 2012 was numbered DP-18 and stated, in part: “It is 
2

was among the individuals tasked with responding to employee complaints alleging 

bullying and other workplace violence.

Coffman began working for Caltrans doing landscape maintenance work in the 

early 2000s. Nelson was his supervisor. Coffman submitted numerous written 

complaints about various coworkers, most alleging workplace violence, between 2002 

and his 2015 death, as described below.

In May 2002, Coffman reported to supervisor Denise Roberts that fellow 

employee David Craig had reprimanded him for cleaning bird droppings off a Caltrans 

vehicle using a squeegee as opposed to the vehicle wash area brush. When Coffman 

attempted to explain his actions, Craig responded by saying that he did not like stupidity. 

Coffman replied that Craig had an “abusive attitude” and that Coffman would not be 

“used as a rug.” Craig eventually told Coffman to get out of his office. Coffman’s 

complaint accused Craig of verbal abuse and intimidation.

In September 2004, Coffman reported to Nelson that Edgar Short, a fellow 

Caltrans employee, had yelled “you’re a fucking idiot and I’ll go to fist[i]cuffs with you” 

at Coffman, apparently because Short wanted Coffman to drive rather than driving 

himself.

Caltrans Policy to conduct business, provide services, and protect its employees and the 

public from harm by providing a safe and secure work environment that has zero

tolerance for violence, threats, harassment, and intimidation. Intimidating behaviors 

would include shouting, slamming doors, and throwing objects. Regardless of an 

individual’s actual intent, a threat, either direct or indirect, to do harm to another 

employee or member of the public will result in an adverse action against the employee, 

such as dismissal from State service.”

DP-18 was superseded on November 5, 2012 by DP-18-R1, which stated, in part: 

“It is the California Department of Transportation (Caltrans) policy to conduct business, 

provide services, and protect its employees and the public from harm by providing a safe 

and secure work environment that has zero tolerance for acts and/or threats of violence. 

Regardless of an individual’s actual intent, violence against another employee or member 

of the public will result in disciplinary action against the employee ranging from a 

corrective interview up to and including dismissal from State service.”
3

In 2006, Coffman complained in writing (both personally and through an attorney) 

about Caltrans employees illegally smoking in government buildings and vehicles. 

Then-leadworker David Craig, allegedly in retaliation, “berat[ed]” Coffman for “putting 

[his] nose in other people’s business” and for writing “memos and letters.” Following 

that incident, Coffman’s blood pressure was elevated and, on his doctor’s orders, he was 

excused from work for three weeks.

In July 2008, Coffman reported to supervisor Steve Phillips that a co-worker, 

Harry Bertrand, had yelled “[f]uck you” and displayed an obscene hand gesture at 

Coffman after Coffman reported to a supervisor that Bertrand had urinated in public. 

In August 2008, an attorney sent a follow-up letter to Phillips indicating that Coffman 

had not received a response to his complaint.

In June 2010, Coffman reported to supervisor Joel Wright that coworker 

Aerie Starbird had angrily and falsely accused Coffman of taking Starbird’s picture; 

falsely accused Coffman of cutting a padlock off Starbird’s locker; said over the radio 

“what are you going to screw up now John,” referring to Coffman; and called Coffman a 

liar.

In September 2011, Coffman reported to safety officer Mike Mendoza that 

coworker Joe Rodzach had said something “extremely embarrassing and offensive” to 

him during a safety meeting. Specifically, during a discussion about the use of personal 

mobile phones, Rodzach said a Caltrans fuel vendor was allowed to use a mobile phone 

while driving for work. Coffman then asked Rodzach what statute applied and Rodzach 

responded “loudly and angrily, ‘He didn’t say. What are you a judicial officer!’ ” 

During an investigation of the incident, four employee witnesses were interviewed. 

Three of those employees stated that Coffman interrupted Rodzach. All of the employees 

agreed that Rodzach’s statement to Coffman was not threatening. The investigator 

concluded that no workplace violence had taken place.
4

In April 2013, Coffman reported to leadworker Tharon Franklin that co-worker 

Javier Flores had instructed Coffman to spray in an area that required him to walk on ice 

plant despite Flores knowing that Coffman had a right ankle disability. At the time, 

Coffman “said okay to avoid a potential problem.” Coffman further reported that Flores, 

upon noticing that one of the flashers on Coffman’s vehicle was not working, criticized 

Coffman for failing to inspect his vehicle before checking it out. In fact, Coffman had 

not checked out the vehicle, another co-worker had done so. Finally, Flores had rudely 

shouted at Coffman to move his vehicle despite Coffman having previously informed 

Flores that the vehicle was not functioning.

In August 2013, Coffman reported to Nelson that co-worker Gary Lafontaine had 

yelled “[f]uck you” at Coffman in a disagreement over which of them would complete 

some work-related paperwork; Lafontaine later apologized. The incident was 

investigated. Lafontaine stated that he felt “needled” by Coffman but acknowledged that 

he should not have yelled. Lafontaine was counseled to let go of his anger, while 

Coffman was advised to “tone down his ‘humor’ ” and that “people don’t look at things 

like he does.” The investigator concluded that the incident did not constitute workplace 

violence.

In September 2013, Coffman reported to Nelson that co-worker Short had 

repeatedly asked Coffman to put Short’s name on Coffman’s time sheet until Coffman 

had agreed. Short then yelled at Coffman: “you bald headed son-of-a-bitch!”

In March 2014, Coffman reported to Franklin that Flores had taken a trimmer 

assigned to Coffman without permission and had returned it without cleaning it.

In July 2014, Coffman and Flores got into an argument about fixing a broken 

woodchipper. Coffman called Flores a “lazy son-of-a-bitch.” Flores shoved Coffman, 

who fell to the ground. Flores then punched Coffman in the face and head multiple 

times. Coffman went to the emergency room, where he received medical care for his 
5

injuries. Nelson investigated the incident and concluded that Flores had violated

Caltrans’s workplace violence policy. Flores was fired.

In a document dated December 21, 2015, Coffman described several incidents 

involving co-worker Short that occurred in 2014 and 2015.2 According to Coffman, 

Short had stolen two small bottles of hand sanitizer belonging to Coffman, taken 

Coffman’s hat without permission and returned it the next day, “hid[den]” Coffman’s 

shirt in one of Coffman’s assigned lockers, removed gloves from Coffman’s chemical 

locker, repeatedly closed Coffman’s gear locker so that Coffman had to reopen it using 

the combination lock, moved Coffman’s personal cell phone without permission and 

scratched the screen, moved Coffman’s lunch pail, “pretended to talk like a homosexual” 

and lightly tugged on Coffman’s right earlobe, and told Coffman he laughed like a 

woman. Short also had “shoved a round point shovel within inches of [Coffman’s] face”

and “demand[ed]” that Coffman put it away. Coffman had refused. Coffman attributed 

Short’s behavior to “jealousy.” The incident in which Short took Coffman’s shirt took 

place on October 2, 2015. Coffman immediately reported the incident to Nelson and 

Caltrans’s human resources department and filed a theft report with the California 

Highway Patrol. The incident caused Coffman to be “extremely stressed out.” The 

following day, Coffman went to the hospital; his blood pressure was elevated, and he was 

prescribed medication to “help [him] cope.”

Coffman was placed on leave due to emotional distress. He was scheduled to 

return to work on January 4, 2016. Coffman committed suicide on December 30, 2015.

B. Procedural History

The Coffmans sued Caltrans and Nelson in March 2017. They did so after 

submitting government claims forms to the California Victim Compensation and 

2 The record does not establish that this list was provided to Caltrans before 

Coffman’s death nine days later. However, the document states that the “acts . . . have 

been reported” and that “Nelson was informed.”
6

Government Claims Board and having those claims rejected by the Government Claims 

Program as “beyond the scope of analysis and legal interpretation typically undertaken by 

the” Government Claims Program and “best determined by the courts.” The Coffmans 

filed the operative first amended complaint, which asserts four wrongful death claims 

against Caltrans and Nelson, in August 2017. Nelson and Caltrans moved for summary 

judgment on grounds that the Coffmans’ claims are barred by workers’ compensation 

exclusivity. The trial court granted that motion. On September 26, 2018, the court 

entered judgment against the Coffmans and in favor of Nelson and Caltrans. 

The Coffmans timely appealed.

II. DISCUSSION

A. Legal Principles

1. Summary Judgment Principles and Standard of Review

“A defendant moving for summary judgment has the burden of showing that a 

cause of action lacks merit because one or more elements of the cause of action cannot be 

established or there is a complete defense to that cause of action.” (Jones v. Wachovia 

Bank (2014) 230 Cal.App.4th 935, 945.) The workers’ compensation exclusivity rule is 

one such complete defense. Where the defendant carries its initial burden to show that 

undisputed facts support each element of a defense, the burden shifts to plaintiff to show 

that there is a triable issue of material fact as to the defense. (Melendrez v. Ameron

Internat. Corp. (2015) 240 Cal.App.4th 632, 638.)

In reviewing an order granting summary judgment, we review the entire record de

novo in the light most favorable to the nonmoving party to determine whether the moving 

and opposing papers show a triable issue of material fact. (Addy v. Bliss & Glennon

(1996) 44 Cal.App.4th 205, 214.)

2. Workers’ Compensation Principles

The Workers’ Compensation Act (WAC; Lab. Code, § 3200 et seq.) is

“a comprehensive statutory scheme governing compensation given to California 
7

employees for injuries incurred in the course and scope of their employment.” (Charles

J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 810 (Vacanti).) 

Central to the statutory scheme is the so-called “compensation bargain,” under which 

“the employer assumes liability for industrial personal injury or death without regard to 

fault in exchange for limitations on the amount of that liability” and “[t]he employee is 

afforded relatively swift and certain payment of benefits to cure or relieve the effects of 

industrial injury without having to prove fault but, in exchange, gives up the wider range 

of damages potentially available in tort.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.)

“To give effect to the compensation bargain underlying the system, the WCA 

generally limits an employee’s remedies against an employer for work-related injuries to 

those remedies provided by the statute itself.” (King v. CompPartners, Inc. (2018) 

5 Cal.5th 1039, 1051, citing Lab. Code, §§ 3600, subd. (a), 3602, subd. (a).) This general 

rule is referred to as workers’ compensation exclusivity.

“To prevent employees from circumventing the exclusivity rule by bringing 

lawsuits for work-related injuries against coemployees, who in turn would seek 

indemnity from their employers, the Legislature in 1959 provided immunity to 

coemployees. ([Lab. Code,] § 3601, subd. (a), as amended by Stats. 1959, ch. 1189, § 1, 

p. 3275 [amending § 3601 to substantially its current version].) . . . Therefore, workers’ 

compensation was also made the exclusive remedy against fellow employees acting 

within the scope of employment.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 

Cal.4th 995, 1002 (Torres).)

“In determining whether exclusivity bars a cause of action . . . , courts initially 

determine whether the alleged injury falls within the scope of the exclusive remedy 

provisions. Where the alleged injury is ‘collateral to or derivative of’ an injury 

compensable by the exclusive remedies of the WCA, a cause of action predicated on that 

injury may be subject to the exclusivity bar.” (Vacanti, supra, 24 Cal.4th at p. 811.)
8

If the alleged injury falls within the scope of the exclusive remedy provisions, 

courts consider the nature of the underlying acts. Workers’ compensation exclusivity 

bars civil actions based on employer actions that “ ‘are a normal part of the employment 

relationship, such as demotions, promotions, criticism of work practices, and frictions in 

negotiations as to grievances,’ ” even where such actions are characterized “ ‘as 

manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance 

resulting in disability.’ ” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 712 (Fermino).) 

Conduct that courts have held to be a normal part of the employment relationship for 

purposes of workers’ compensation exclusivity include harassment in union negotiations, 

false accusations of misconduct, and efforts to force an employee’s involuntary

retirement (all carried out in retaliation for union activities) (Cole v. Fair Oaks Fire

Protection Dist. (1987) 43 Cal.3d 148, 152-153, 161 (Cole)), as well as yelling, 

humiliation, and the use of insults and profanities by an employer against an employee, 

where such conduct “involved criticisms of job performance or other conflicts arising 

from the employment.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 

338, 367-368 (Singh).)

By contrast, workers’ compensation exclusivity does not bar civil actions based on 

“certain types of intentional employer conduct which bring the employer beyond the 

boundaries of the compensation bargain.” (Fermino, supra, 7 Cal.4th at p. 714.) For 

example, employer conduct that “ ‘violates the fundamental policy of this state’ ”

(e.g., discharging an employee in violation of public policy) falls outside the 

compensation bargain. (Id. at pp. 714-715.) Employer conduct that courts have held to 

fall outside the compensation bargain includes “false imprisonment committed by an 

employer against an employee” (id., at p. 723); “violent and coercive criminal conduct 

committed against an employee’s person” (Vacanti, supra, 24 Cal.4th at p. 822 [citing 

cases]; and “ ‘illegal discriminatory practices’ ” (Murray v. Oceanside Unified School

Dist. (2000) 79 Cal.App.4th 1338, 1362).
9

B. Appellants Failed to Raise a Triable Issue of Fact as to the Applicability

of the Workers’ Compensation Exclusivity Defense

It is undisputed for purposes of the summary judgment motion that Coffman’s 

death falls within the scope of the WCA’s exclusive remedy provisions and that Nelson 

was acting within the scope of his employment at all relevant times. At issue is whether 

the conduct of Nelson and Caltrans fell outside the compensation bargain such that 

workers’ compensation exclusivity does not bar appellants’ action.

Appellants advance two arguments for why their claims are not barred. First, they 

maintain that the conduct of Coffman’s coworkers amounted to harassment, which they 

assert falls outside the compensation bargain. They further argue that Caltrans and 

Nelson ratified that conduct by failing to prevent it, such that they may be held liable for 

it. Second, appellants contend that Caltrans and Nelson’s failure to enforce Caltrans’s 

workplace violence prevention policy violated a fundamental policy of this state. Below,

we consider these arguments in connection with each of appellants’ causes of action.

1. Count 1

Count 1, a wrongful death claim based on negligence, alleges that Nelson and 

Caltrans negligently failed to prevent bullying and other workplace violence and that 

“[s]aid negligence caused John Coffman to suffer from a mental condition which resulted 

in an uncontrollable impulse to commit suicide . . . .” Count 1 seeks to impose liability 

on Nelson and Caltrans for their inadequate enforcement of Caltrans’s workplace 

violence prevention policy. As appellants themselves note, enforcing that policy was one 

of Nelson’s job responsibilities. As such, his alleged misconduct as it relates to the 

enforcement of that policy is squarely within the scope of his employment and was a 

“ ‘normal part of the employment relationship.’ ” (Fermino, supra, 7 Cal.4th at p. 712.) 

Moreover, the stated goal of Caltrans’s workplace violence prevention policy is to 

“provid[e] a safe and secure work environment.” “Workplace safety is clearly an issue 

contemplated by the workers’ compensation statutory scheme.” (Lenk v. Total-Western,
10

Inc. (2001) 89 Cal.App.4th 959, 973; see Vuillemainroy v. American Rock & Asphalt,

Inc. (1999) 70 Cal.App.4th 1280, 1286, fn. omitted [“injuries caused by unsafe working 

conditions are compensable solely under workers’ compensation, even if the employer 

recklessly or deliberately failed to correct known safety violations”].)

Again, count 1 is premised on Nelson and Caltrans’s own conduct with regard to 

the enforcement of the workplace violence prevention policy, and not on the conduct of 

Coffman’s coemployees that allegedly violated that policy. Therefore, appellants’

contention that workers’ compensation exclusivity does not bar claims based on

coemployee conduct that was outside the compensation bargain and was ratified by 

Caltrans and Nelson has no application to count 1.

Appellants’ alternative argument is that Caltrans and Nelson violated a 

fundamental policy of this state, thereby placing their conduct outside the compensation 

bargain and making workers’ compensation exclusivity inapplicable. Below and in their

opening brief, appellants identified Caltrans’s policy against workplace violence as the 

pertinent fundamental public policy. But not every employment policy of every state

agency constitutes a fundamental public policy. Rather, fundamental public policies are 

those “expressed in . . . constitutional or statutory provision[s].” (Turner v. AnheuserBusch, Inc. (1994) 7 Cal.4th 1238, 1252; Miklosy v. Regents of University of

California (2008) 44 Cal.4th 876, 898 [“ ‘fundamental policies . . . [are those] delineated 

in constitutional or statutory provisions’ ”].) Appellants point to no statutory or 

constitutional provision prohibiting workplace violence. Accordingly, they failed to raise 

a triable issue of fact as to whether Nelson and Caltrans violated a fundamental public 

policy.

For the first time on reply, appellants argue that Caltrans and Nelson violated 

fundamental public policies ensuring public safety on the roadways and protecting

whistleblowers. “Obvious reasons of fairness militate against consideration of an issue 

raised initially in the reply brief of an appellant.” (Varjabedian v. City of Madera (1977) 
11

20 Cal.3d 285, 295, fn. 11.) Accordingly, “[p]oints raised in the reply brief for the first 

time will not be considered, unless good reason is shown for failure to present them 

before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Because 

appellants have not shown good cause for raising these policies belatedly, we will not 

consider them.

For all the foregoing reasons, appellants failed to raise a triable issue of fact as to 

the applicability of the workers’ compensation exclusivity defense to count 1.

2. Count 2

Count 2 alleges a wrongful death claim based on a violation of Government Code 

section 12940, subdivision (h).

3 That provision makes it an unlawful employment 

practice to retaliate against an employee because that employee opposed any practice 

forbidden by the Fair Employment and Housing Act (§ 12900 et seq.; FEHA) or because 

the employee filed a complaint, testified, or assisted in any proceeding under the FEHA.

(§ 12940, subd. (h).)

“[T]he purpose of FEHA is to protect and safeguard the right and opportunity of 

all persons to obtain and hold employment and housing without discrimination on 

account of race, religious creed, color, national origin, ancestry, physical disability, 

mental disability, medical condition, genetic information, marital status, sex, gender, 

gender identity, gender expression, age, sexual orientation, or military and veteran 

status.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 723 (Nejadian), 

citing § 12920.) Among other things, the FEHA prohibits discrimination in employment

and harassment of employees based on race, religious creed, color, national origin, 

ancestry, physical disability, mental disability, medical condition, genetic information, 

marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or 

veteran or military status. (§ 12940.)

3 All further statutory citations are to the Government Code unless otherwise 

indicated.
12

The first amended complaint alleges that the complained-of conduct by Coffman’s

coworkers was done “in retaliation for decedent Coffman’s reporting of various 

workplace violations committed by said co-workers . . . [, which reporting] was protected 

by California Government Code §12940(h).” It further alleges that Nelson and Caltrans 

ratified that retaliatory and illegal conduct by failing to prevent it.

Appellants urge us to consider “the entirety of [the] conduct targeting Coffman,” 

which they characterize as harassment. Appellants suggest that harassing behavior

always falls outside the compensation bargain. In fact, “an employee . . . may not avoid 

the exclusive remedy provisions of the Labor Code by characterizing” actions that are a 

normal part of the employment relationship “as . . . harassment . . . .” (Cole, supra, 43 

Cal.3d at p. 160; id. at p. 161 [“Some harassment by superiors when there is a clash of 

personality or values is not uncommon”].) It is true that harassment in violation of the 

FEHA is outside the compensation bargain. (Light v. Department of Parks &

Recreation (2017) 14 Cal.App.5th 75, 100 (Light).) But count 2 is not premised on such 

illegal harassment.

Retaliation in violation of the FEHA, which count 2 does allege, likewise is

outside the compensation bargain. (Light, supra, 14 Cal.App.5th at p. 101.) But a 

plaintiff opposing summary judgment may not “rely upon the allegations or denials of its 

pleadings” but must set forth “specific facts” beyond the pleadings to show the existence 

of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) To establish 

retaliation in violation of the FEHA, an employee must show that he or she was retaliated 

against for engaging in a “protected activity.” (Nejadian, supra, 40 Cal.App.5th at 

p. 722.) Here, no record evidence shows that Coffman engaged in a protected activity, 

such as opposing discrimination or harassment based on race, religious creed, color, 

national origin, ancestry, physical disability, mental disability, medical condition, genetic 

information, marital status, sex, gender, gender identity, gender expression, age, sexual 

orientation, or veteran or military status. Instead, the evidence shows he opposed illegal 
13

smoking, public urination, and workplace violence. Accordingly, appellants failed to 

raise a triable issue of fact as to whether the complained-of conduct was outside the

compensation bargain because it constituted retaliation in violation of the FEHA.

Analyzing the incidents individually reveals that the majority of the complained-of

conduct by Coffman’s coworkers was within the compensation bargain. The incident in 

which Flores battered Coffman is an obvious exception, but that incident was 

investigated, Flores was found to have violated Caltrans’s workplace violence policy, and 

he was fired. Accordingly, Caltrans and Nelson cannot be said to have ratified that 

conduct and thus cannot be held liable for it.

Turning to the other conduct at issue, certain episodes involved criticism of

Coffman’s job performance, including the 2002 incident in which Craig reprimanded

Coffman’s use of a squeegee to clean a vehicle and the 2013 incident in which Flores

criticized Coffman for failing to inspect his vehicle. Such criticisms arise “from risks 

encompassed within the compensation bargain,” even when they are leveled in an 

“offensive and clearly inappropriate” manner. (Singh, supra, 186 Cal.App.4th at 

pp. 367-368 [misconduct by employer against plaintiff employee, including “berat[ing] 

and humiliate[ing] him, criticiz[ing] his job performance, and insult[ing] him with 

profanities on a regular basis,” held to be within the compensation bargain].)

Other complained-of conduct occurred in the context of disputes with coworkers

as to the performance of work duties. Specifically, Short verbally lashed out at Coffman 

in 2004 during a disagreement about which of them would drive. Lafontaine shouted 

profanity at Coffman during a 2013 argument over who would complete certain 

work-related paperwork. Also in 2013, Flores rudely told Coffman to move a Caltrans 

vehicle, a task Coffman could not complete because—as Flores had been made aware—

the vehicle was inoperable. In 2014, Flores—in the completion of his landscape work for 

Caltrans—used a Caltrans-owned trimmer assigned to Coffman without permission and 

returned it without cleaning it. Each of these conflicts arose directly from Coffman’s 
14

employment and the discharge of his (and his coemployees’) work duties. The 

coemployees’ use of coarse language and flashes of anger do not place their conduct 

outside the compensation bargain. As our Supreme Court has acknowledged, “ ‘ “[i]n

bringing [people] together, work brings [personal] qualities together, causes frictions

between them, creates occasions for lapses into carelessness, and for fun-making and

emotional flareup. . . . These expressions of human nature are incidents inseparable from

working together. They involve risks of injury and these risks are inherent in the working

environment.” [Citations.]’ [Citation.]” (Torres, supra, 26 Cal.4th at p. 1009.)

Other incidents involved personality clashes and interpersonal conflicts of the sort 

that routinely arise in the workplace. These include the incidents involving Bertrand, 

Rodzach, and Starbird. As noted above, friction between coworkers is a normal risk of

employment. (See Cole, supra, 43 Cal.3d at p. 161 [“Some harassment [of employees] 

by superiors when there is a clash of personality or values is not uncommon”].)

Whether Short’s treatment of Coffman in 2014 and 2015, which involved a series

of pranks and one possibly threatening act involving a shovel, was outside the scope of

the compensation bargain is a closer call. Apart perhaps from the shovel incident, the

acts appear to have been personal in nature, unrelated to any genuine employment-related 

matter. (See Vacanti, supra, 24 Cal.4th at p. 820 [“we have held that conduct ‘having a 

“questionable” relationship to the employment’ is not protected by the exclusivity rule”].) 

And while each individual incident might be characterized simply as friction between 

coworkers or harmless fun-making, the persistent nature of the conduct may take it 

outside the scope of the compensation bargain. We shall assume appellants raised a

triable issue of fact as to whether Short’s conduct in 2014 and 2015 was outside the scope

of the compensation bargain.

Next, we consider whether appellants raised a triable issue of fact as to ratification

of that conduct by Nelson and Caltrans. “ ‘ “[A]n employer may be liable for an 

employee’s act where the employer . . . subsequently ratified an originally unauthorized 
15

tort. [Citations.] . . . The theory of ratification is generally applied where an employer

fails to investigate or respond to charges that an employee committed an intentional tort,

such as assault or battery. [Citations.] Whether an employer has ratified an employee’s 

conduct is generally a factual question. [Citation.]” ’ ” (Ventura v. ABM Industries

Inc. (2012) 212 Cal.App.4th 258, 272.)

The record demonstrates that Coffman immediately reported the October 2015

shirt-stealing incident to Nelson. That appears to have been the final incident, shortly 

after which Coffman was placed on leave. However, the record contains no evidence

showing that Coffman contemporaneously reported the other incidents involving Short to

Nelson or another supervisor. Coffman documented those incidents in writing on 

December 21, 2015 and wrote that the “acts . . . have been reported” and that “Nelson 

was informed,” but the record is silent as to when those reports were made. In our view, 

the timing of those reports is critical to the ratification analysis because it is the ongoing 

and incessant nature of the conduct that potentially takes it outside the compensation 

bargain. Given the absence of evidence that each incident was reported to a supervisor

and no action was taken to address the conduct with Short, we cannot conclude that 

appellants have raised a triable issue of fact as to ratification.

For all these reasons, appellants failed to raise a triable issue of fact as to the 

applicability of the workers’ compensation exclusivity defense to count 2.

3. Count 3

Count 3 asserts a claim of wrongful death based on a violation of section 12940, 

subdivision (j)(1), a provision of the FEHA that makes it unlawful “to harass an 

employee” “because of race, religious creed, color, national origin, ancestry, physical 

disability, mental disability, medical condition, genetic information, marital status, sex, 

gender, gender identity, gender expression, age, sexual orientation, or veteran or

military status . . . .” The operative complaint alleges that, on a single occasion, 
16

coemployee Flores instructed Coffman to spray in an area that required him to walk on 

ice plant, a task Flores knew would cause Coffman pain due to a right ankle disability of 

which Flores was aware. The complaint further alleges that, in failing to prevent that 

incident, Nelson and Caltrans harassed Coffman because of a medical condition in 

violation of section 12940, subdivision (j)(1).

To the extent that appellants are arguing that Nelson and Caltrans ratified Flores’s 

conduct, that conduct—instructing Coffman to complete a specific work-related task—

was within the compensation bargain. That Flores may have acted insensitively in that 

context does not place his conduct outside the compensation bargain. Coffman’s written 

complaint to leadworker Franklin about the incident did not suggest that Flores targeted 

Coffman because of his medical condition, but rather that this was an example of 

“Flores’[s] constant bullying” of Coffman and others. Accordingly, appellants failed to 

raise a triable issue of fact as to whether Flores’s conduct was outside the compensation

bargain because it violated the FEHA.

To the extent that appellants are basing liability on Caltrans and Nelson’s failure 

to anticipate and prevent Flores from making the work assignment, that conduct

(involving as it does the management of employees and work assignments) was a normal 

part of the employment relationship and thus was within the compensation bargain. 

Appellants also fail to explain how a single omission by Nelson and Caltrans to anticipate 

and prevent Flores’s action could be considered harassment under the FEHA and thus 

outside the compensation bargain. In the context of the FEHA, “harassment focuses on 

situations in which the social environment of the workplace becomes intolerable because 

the harassment (whether verbal, physical, or visual) communicates an offensive message 

to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)

In sum, appellants failed to raise a triable issue of fact as to the applicability of the 

workers’ compensation exclusivity defense to count 3.
17

4. Count 4

Count 4, a wrongful death claim based on a violation of Labor Code 

section 6401.7, alleges that Nelson and Caltrans violated that provision’s requirement 

that employers “establish, implement, and maintain an effective injury prevention 

program” by failing to enforce Caltrans’s workplace violence prevention policy. As 

discussed in the context of count 1, Nelson and Caltrans’s enforcement (or lack thereof) 

of the workplace violence prevention policy was within the compensation bargain. 

Significantly, there is no allegation that the conduct of Coffman’s coemployees violated 

Labor Code section 6401.7 and was ratified by Nelson and Caltrans. Thus, appellants’

argument that coemployee conduct was outside the compensation bargain is inapplicable

to count 4. And, for the reasons discussed in connection with count 1, appellants have 

failed to raise a triable issue of fact as to whether Nelson and Caltrans violated a 

fundamental pubic policy. It follows that appellants have failed to raise a triable issue of 

fact as to the applicability of the workers’ compensation exclusivity defense to count 4.

III. DISPOSITION

The judgment is affirmed.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

Coffman et al. v. California State Department of Transportation

H046473