Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^** 

Curtis Smith appeals the district court's grant of summary judgment in favor of his former employer, Georgia-Pacific, Inc., in his wrongful discharge action. Smith contends that the district court erroneously concluded that his claims for breach of implied contract of employment and breach of covenant of good faith and fair dealing are preempted by California Labor Code Sec. 132a. We affirm.

* In 1984, Smith was injured when he slipped and fell at work. He was eventually diagnosed as having a permanent disability precluding heavy work. Georgia-Pacific removed Smith from the payroll in April 1985.

Smith contends that Georgia-Pacific breached an implied employment contract pursuant to which the company agreed to employ him whether or not he was capable of performing heavy labor. The district court found this claim preempted by Cal.Labor Code Sec. 132a. We agree.¹ 

Even assuming Smith has provided sufficient evidence of a contract's existence, his action for breach of that contract is within the purview of Labor Code Sec. 132a. See Section 132a(4); Judson Steel Corp. v. Workers' Compensation Appeals Board, 22 Cal. 3d 658, 667, 586 P.2d 564, 569, 150 Cal. Rptr. 250, 255 (1978) (section 132a applies whenever employers discriminate in any manner against industrially injured employees). Because section 132a provides the exclusive remedy for discriminatory acts taken against injured employees is an action with the Worker's Compensation Appeals Board, the district court properly concluded Smith's contract claim was preempted. See Portillo v. G.T. Price Products, Inc., 131 Cal. App. 3d 285, 286-87, 182 Cal. Rptr. 291, (1982); Pickrel v. General Telephone Co., 205 Cal. App. 3d 1058, 1063, 252 Cal. Rptr. 878, 881 (1988).

This is true despite Smith's contention that the implied contract here is supported by bargained-for consideration independent of any original employment contract. Because Smith's claim is, in essence, an action for recovery of wages and benefits lost due to a work related injury, and because the allegedly wrongful conduct of the employer cannot be analyzed outside of the employment context, the claim preempted. See Potter v. Arizona Southern Coach Lines, Inc., 202 Cal. App. 3d 126, 134-5, 248 Cal. Rptr. 284, 289 (1988) (citing Cole v. Fair Oaks Fire Protection District, 43 Cal. 3d 148, 163, 233 Cal. Rptr. 308, 729 P.2d 743 (1987)). Smith may not avoid the exclusive remedy provision of section 132a by simply alleging that recovery is based on a different theory. See id.

Finally, Smith contends that Georgia-Pacific is liable for breach of the covenant of good faith and fair dealing pursuant to either the original employment contract or the subsequent implied contract for continued employment. Recently, the California courts have specifically rejected attempts to circumvent the exclusive remedy provision of section 132a using this theory. See Giorgio v. Verdugo Hills Hosp., 210 Cal. App. 3d 252, 258 Cal. Rptr. 426, 437-38, 443 (1989). The district court properly granted Georgia-Pacific's summary judgment motion.

II

Georgia-Pacific contends that Smith filed a frivolous appeal and requests an award of sanctions, costs and fees. We have discretion to award attorneys' fees and costs for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912. An appeal is frivolous if the result is obvious or the arguments of error are wholly without merit. DeWitt v. Western Pacific R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983).

Although we have found that Smith may not prevail on his claim, his arguments are not wholly without merit. We therefore decline to grant any award. See Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988).

AFFIRMED.