Wednesday, February 13, 2008
Court of Appeal Revives UC Worker’s Whistleblower Suit
By KENNETH OFGANG, Staff Writer
A University of California employee who does not receive a timely decision on a whistleblower grievance is entitled to sue, even if he or she waits until after the untimely decision is made, the Fourth District Court of Appeal ruled yesterday.
Div. One, in a ruling by Justice Joan Irion, said a San Diego Superior Court judge misconstrued a provision of the California Whistleblower Protection Act that applies exclusively to UC employees.
The claims reinstated by the panel arose under Government Code Sec. 8547.10(c), which provides that an employee who has been retaliated against for a protected disclosure may sue for damages if the employee has filed a complaint with the university “and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents.”
The plaintiff, Larry Brand, was a senior licensing officer in the Technology Transfer and Intellectual Property Service office at UC San Diego. He claims that he was denied pay raises, given negative evaluations, moved to a less desirable work space, subjected to a hostile work environment, and ultimately terminated—in June 2003—because he discovered, and reported, fraud, misappropriation of funds, and conflicts of interest involving his supervisor.
Brand filed three grievances between October 2002 and June 2003. After the initial grievances were rejected by the vice chancellor, Brand exercised his right to a factfinding process.
A management services officer in the Sociology Department was designated as factfinder. She met with the parties, allowed them to state their views and submit documentary evidence, and interviewed witnesses outside the presence of the parties.
In July 2004, seven months after the meeting, she submitted her report to the assistant vice chancellor, who found that Brand’s termination was not linked to any disclosure of wrongdoing.
Brand filed suit in June 2005, seeking damages under Sec. 8547.10(c), among other provisions. He relied on the “UC Whistleblower Protection Policy,” which requires, among other things, that the factfinder submit her report within 120 days of the filing of the complaint.
Superior Court Judge Joan M. Lewis sustained the university’s demurrer, ruling, among other things, that a plaintiff may not sue under Sec. 8547.10(c) once the university has made its decision, even if the decision was untimely.
Irion, however, said the meaning of the statute was plain—the factfinder’s failure to submit her report within the 120 days allowed by the UC policy gave the plaintiff the right to sue.
To rule otherwise, the jurist wrote, would be to disregard the strict provision allowing the employee to sue unless the university renders a decision within the time established by its own policies
Irion went on to reject the contention that the action was bared by the doctrine of judicial exhaustion. The university claimed that its decision was subject to review by writ of mandate, and that Brand’s failure to seek the writ barred him from suing for damages.
The doctrine did not apply, Irion said, because the underlying proceedings “did not have a judicial character.”
The justice explained:
“Specifically, a hearing was not held, testimony was not given under oath, the parties were not able to subpoena, call, examine, or cross-examine witnesses, and there is no indication that a record of the proceedings was created.”
The court did, however, affirm the trial judge with respect to Brand’s cause of action seeking damages from his supervisor and several co-workers under Sec. 8547.11, which allows persons to be sued individually if they attempt to coerce or intimidate an employee to prevent that person from filing a whistleblower complaint.
Brand, Irion said, failed to exhaust administrative remedies with regard to that claim.
The case is Brand v. Regents of the University of California, 08 S.O.S. 1021.
Copyright 2008, Metropolitan News Company