Unreported / Non-Citable
Background
Gregory S. Lewis, proceeding pro se, sued his former employer the San Francisco Bay Area Rapid Transit District (BART) over his disability and discrimination experiences as a BART electrician. His Second Amended Complaint asserted four claims: violations of the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Rehabilitation Act, plus a fourth claim for common-law wrongful termination/constructive discharge in violation of California public policy.
BART had previously moved to dismiss the First Amended Complaint, including the wrongful-termination claim, in part because Lewis at first inconsistently alleged he was still employed by BART. The court granted dismissal with leave to amend without reaching BART’s alternative argument that the wrongful-termination tort cannot be asserted against a California public entity. Lewis fixed the employment-status defect in the SAC by alleging he was “formerly employed,” but BART renewed the public-entity argument and moved again to dismiss the fourth claim.
The Court’s Holding
Chief Judge Richard Seeborg granted the motion to dismiss the wrongful-termination/constructive-discharge claim without further leave to amend.
Under California law, a governmental entity can be sued in tort only pursuant to an authorizing statute or enactment. Van Ort v. Estate of Stanewich, citing Lopez v. Southern Cal. Rapid Transit District, makes that rule clear; Miklosy v. Regents of University of California confirms that the California Government Claims Act “abolishes common law tort liability for public entities.” BART is a California public entity. The fourth claim is a tort claim. Lewis identified no authorizing statute. The claim therefore fails as a matter of law.
Lewis tried to recharacterize his fourth claim as something other than a common-law tort, asserting in his opposition that it “does not assert a common-law wrongful termination claim” but rather “completes the ADA and FEHA violations.” The court found that argument unpersuasive. The fourth claim in the SAC contained no reference or citation to the ADA or FEHA, while the first three claims did, and the cases Lewis himself relied on — Lopez, Brady v. Elixir Industries, Zilmer v. Carnation Co., Turner v. Anheuser-Busch, and Garcia-Brower v. Premier Automotive Imports — were either tort cases or were cited specifically for tort principles like constructive discharge. The fourth claim was unmistakably a common-law wrongful-termination tort.
Because Lewis had already been given leave to amend once and the deficiency was not curable — public-entity immunity is a structural defect, not a pleading problem — the court dismissed without further leave. The alternative motion to strike was denied as moot. The ADA, FEHA, and Rehabilitation Act claims continue.
Key Takeaways
- California public entities — including BART — cannot be sued for common-law wrongful termination in violation of public policy or constructive discharge unless a statute specifically authorizes the tort claim. The Government Claims Act abolishes common-law public-entity tort liability.
- Plaintiffs cannot save a common-law tort claim by recharacterizing it in opposition briefing as a derivative ADA or FEHA theory. The pleading itself controls, and federal employment-discrimination statutes provide their own remedies that do not need a parallel common-law claim.
- Statutory employment-discrimination claims (ADA, FEHA, Rehabilitation Act) remain available against California public entities even when common-law tort claims do not.
- Once a deficient claim has been given leave to amend and the deficiency is structural rather than factual, courts will dismiss without further leave under Zucco Partners.
Why It Matters
Public-entity tort immunity is a perennial trap for California employment plaintiffs, especially those proceeding pro se. The default in California is that you cannot sue a public entity in tort without finding a statute that says you can — and Tameny-style common-law wrongful termination in violation of public policy is the prototypical claim that fails this test. Miklosy and Lopez have been clear on this for years, but the issue keeps coming up because plaintiffs and their counsel often plead common-law theories alongside FEHA and ADA claims out of habit.
The opinion is a clean reminder that the right vehicle for terminated public-employee plaintiffs in California is statutory: FEHA, the ADA, the Rehabilitation Act, Labor Code § 1102.5, the First Amendment, and other express enactments. The common-law layer that exists for private-sector plaintiffs simply is not available against agencies like BART. Counsel reviewing a pleading against a public entity should affirmatively delete any common-law tort count unless the plaintiff can identify the authorizing statute.