California’s whistleblower protection laws are some of the nation’s most expansive. A central component of California’s whistleblower protection scheme is Section 1102.5 of the California Labor Code, which, among other protections, prevents employers from retaliating against employees who make complain internally, make whistleblowing reports to government agencies, or participate in government investigations. Section 1102.5 aims to encourage employees to speak out against wrongdoing. The 2003 amendments also codified the California appellate court decision in Gardenhire v. City of Los Angeles Housing Authority (2000) 85 Cal.App.4th 236, to clarify that a government employee’s report to the agency where they work constitutes whistleblowing activity.
But when do government whistleblowers get to enforce their rights in court? Sometimes, government employees who are subject to retaliatory acts—such as termination, demotion, official discipline, etc.—file administrative complaints. Such a complaint can involve a hearing, presentation of evidence, and legal representation, among other formal aspects. Sometimes, the administrative process will eliminate an individual’s right to proceed in court altogether. If an administrative decision lacks the “requisite judicial character” to constitute a full resolution of the legal issue, a court may step in. Sometimes an administrative decision will not be considered a final decision if that would go against the legislature’s intent, given that the legislature created the administrative body in the first place.
The Ninth Circuit Court of Appeals recently considered the legislative intent exception as it applies to public sector employees alleging whistleblower retaliation in Bahra v. County of San Bernardino. The plaintiff, Eric Bahra, was employed by San Bernardino County’s Department of Children and Family Services, which investigates referrals regarding child abuse, among other duties. While investigating allegations of abuse against a foster parent, Bahra discovered that the foster parent had a prior history of child abuse and neglect, but this history was not reflected in the agency’s database due to errors in previous entries.
He told his manager. Later that day, he witnessed his manager and another agency employee looking through the files on his desk. Next, the agency initiated an investigation into Bahra, assigned him to desk duty, then placed him on administrative leave. Eventually, the agency provided Bahra with a notice of proposed dismissal. He contested it in an initial administrative hearing in 2013, but the hearing officer ruled for the County and the agency dismissed Bahra. He appealed and requested a full evidentiary hearing at the County’s Civil Service Commission. After a 14-day hearing and testimony from 27 witnesses in 2014, the Commission’s hearing officer, in 2015, rejected Bahra’s retaliation claims, and the Commission adopted the hearing officer’s report. Although he was informed that he could seek a writ of mandamus pursuant to California Code of Civil Procedure 1094.5, he elected not to do so. Instead, he filed a civil suit in the United States District Court, bringing claims under Section 1102.5 and 42 U.S.C. § 1983. The District Court dismissed the complaint in 2018 on grounds of issue preclusion and claim preclusion, meaning, that because the matter had been fully adjudicated administratively, it could not be brought in court.
On December 30, 2019, the Ninth Circuit reversed as to Bahra’s Section 1102.5 claim. The court analyzed two state court decisions: Taswell v. Regents of University of California 23 Cal.App.5th 343 (2018), in which the California Court of Appeals held that administrative findings by a state agency do not preclude retaliation claims brought under Section 1102.5; and, Murray v. Alaska Airlines 50 Cal.4th 860 (2010), where the California Supreme Court held that a federal employee’s retaliation claim was precluded. The agency argued that Murray indicated that the California Supreme Court would disagree with Taswell.
The Ninth Circuit rejected this argument. First, the court stated that Murray was highly specific to the factual and legal circumstances of the case. It did not purport to apply to all administrative decisions, especially in light of federalism issues at play in Murray but absent in Bahra. Second, Murray analyzed the first exception—the “sufficiently judicial character” exception—and not the legislative intent exception. Third, the Ninth circuit looked to California Supreme Court precedent more recent than Murray, including decisions on which Taswell relied, which suggested that the California Supreme Court would agree with Taswell. Accordingly, the Ninth Circuit ruled that the Department of Child and Family Services decision did not preclude Bahra from bringing his Section 1102.5 claim to court.
But it was not a total victory for Bahra; the Ninth Circuit ruled against him with respect to his Section 1983 claims. Bahra had not argued that giving preclusive effect to the Section 1983 decision would go against legislative intent, so the Ninth Circuit did not address the issue. Instead, the court looked exclusively to the judicial character of the proceeding and, finding it sufficient, held that the Section 1983 claim was precluded, affirming the lower court.
If you have suffered workplace retaliation for whistleblowing activity, contact Bryan Schwartz Law.