Whistleblowers—employees
who sound the alarm on their employer’s or coworkers’ illegal activity—are vital
to protect the public from corporate and government wrongdoing. But there are
understandable reasons that employees choose not to speak out, including fear
of retaliation. Whistleblower protection laws are designed to prohibit
retaliation and encourage whistleblowing.
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.
