Metropolitan News-Enterprise


Friday, September 2, 2005


Page 1


Privilege Bars Action by ‘Whistleblower’ Who Threatened Bosses


By KENNETH OFGANG, Staff Writer/Appellate Courts


The absolute privilege for statements made in official proceedings bars a whistleblower suit by an employee who claims he was retaliated against for complaining about mistreatment at the hand of his supervisors, the Third District Court of Appeal ruled yesterday.

The justices said that Kevin Brown’s action against the Department of Corrections was correctly dismissed under Civil Code Sec. 47(b) because it relied on statements made as part of an official investigation into reports that Brown had threatened to kill the supervisors.

Brown, a corrections officer at High Desert Prison in Lassen County, alleged in his complaint that he was subjected to an invalid lawsuit and arrest as a result of a January 2003 telephone call to the Office of Inspector General, which investigates complaints of official misconduct by prison officials and employees.

Brown said that he told the OIG phone operator that he had been assaulted and battered at work by a lieutenant and a sergeant. He said that he did not threaten anyone, but that the operator asked him whether he was made enough to kill, and that he responded that he had “been praying” and “was not ready to go off.”

Conversation Reported

The operator reported the conversation to Anthony Lewis, the assistant chief deputy inspector general. Lewis reported to officials at the prison that Brown told the operator that he “could lose it, and if he ever lost it he could kill” the lieutenant. Lewis forwarded the information to officials at the prison, including the warden.

The warden, D.L. Runnels, sued for a restraining order and injunction under Code of Civil Procedure Sec. 527.8. The statute permits an employer, using expedited procedures, to seek an injunction to protect employees from violence and threats of violence.

Lassen Superior Court Judge Stephen Bradbury found that the action had been brought in good faith, but denied the injunction on the ground that the warden did not prove by clear and convincing evidence that Brown had made a credible threat of violence.

In addition to being sued by the warden, Brown was arrested by Susanville police, but no charges were filed by the district attorney.

Bradbury ruled that because Brown’s lawsuit was based entirely on two official proceedings, the investigation of his phone call to OIG and the lawsuit by the warden, it was barred by Sec. 47(b). The Court of Appeal agreed.

Whistleblower Act

Justice Rodney Davis, writing for the appellate panel, rejected the contention that applying the privilege to an investigation into the plaintiff’s report of wrongdoing would eviscerate the California Whistleblower Protection Act, which protects state employees from retaliation for reports of waste, fraud, or abuse of authority, and the Labor Code section which generally protects employees in both the public and private sectors from being retaliated against for reporting, or refusing to participate in, illegal acts.

The justice distinguished Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, which held that the privilege did not bar a whistleblower suit by a former Department of Health Services investigator who claimed he was terminated for discovering wrongdoing that was tacitly approved by the department.

The trial judge ruled that he could not sue because the action was in effect a malicious prosecution action based on the administrative proceedings that resulted in his termination, and malicious prosecution actions against the state are barred by sovereign immunity.

The Court of Appeal reversed, holding that the whistleblower statute created an exception to sovereign immunity.

Brown’s case was different, Davis wrote.

“In contrast to the whistleblower in Shoemaker, Brown uttered threatening statements suspected to be criminal in themselves and it was these statements that led to the actions taken against him on which he bases his retaliation complaint here,” the justice explained.

The case is Brown v. Department of Corrections, 05 S.O.S. 4323.


Copyright 2005, Metropolitan News Company