California Court Dismisses Firefighter’s Suit Concluding Public Employment is Not Based On Contract

A lawsuit filed by a former probationary firefighter with the San Diego Fire Department who was terminated in 2014, has been tossed by the Court of Appeal of California, Fourth Appellate District. Josh McCauley claims the fire department breached his employment contract by terminating his employment during his probationary period without sufficient justification.

McCauley was terminated on May 30, 2014. He waited nearly three years to file suit, and when he did he alleged that the department breached an implied covenant of good faith and fair dealing. He pointed to language in the Department’s Basic Fire Academy Manual as constituting “an express written contract” that governed the terms of his probationary status.

The San Diego County Superior Court dismissed his claims concluding that he failed to comply with the Government Claims Act, and that as a public employee (probationary or not) his employment was not based upon a contract. McCauley appealed.

The Court of Appeals affirmed the Superior Court’s ruling, explaining the reasoning for public employment in California not being based on contract:

  • A covenant of good faith and fair dealing exists only if there is a contractual relationship between the parties.
  • McCauley had no employment contract with the City.
  • A public employee cannot state a claim for breach of contract or breach of the implied covenant of good faith and fair dealing.
  • Contract law does not apply to public employees.
  • [I]t is well settled in California that public employment is not held by contract but by statute.
  • [The] statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith.
  • A public employee has no contractual right to continued employment.
  • [I]nsofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law.
  • Public agencies have broad discretion in determining whether to retain a probationary employee.
  • Specifically, an employee who is still on probation may be terminated without a hearing and without judicially cognizable good cause.
  • McCauley acknowledges that he is not a party to any collective bargaining agreement.
  • McCauley has never identified any contract that guaranteed him permanent employment as a firefighter or even a “fair shake” at obtaining permanent employment.
  • Because McCauley had no contract claim, he could not have stated a claim for injunctive relief under the covenant of good faith and fair dealing.

Here is a copy of the decision:

I would be interested to hear from attorneys in various states on whether California is alone on this issue, or if it indeed has company. In most states, all employment (public or private) is inherently based on contract law. Probationary and at will employees have no basis to sue their employer for terminating the contract since it is terminable at any time by either party. Probationary and at will employees may have recourse through discrimination, whistleblower and retaliation laws, but generally breach of contract would not be one of them.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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