Metropolitan News-Enterprise


Friday, August 1, 2008


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UC Employees’ Whistleblower Claims Barred, S.C. Rules




A University of California employee who receives a timely administrative ruling on his claim under the California Whistleblower Protection Act cannot sue for damages, the state Supreme Court ruled yesterday.

The court unanimously ruled against two former Lawrence Livermore National Laboratory scientists who said they lost their jobs for complaining about safety problems. A four-justice majority said the result is consistent with the constitutional autonomy of the UC, while three dissenters questioned that rationale but said the university’s position was supported by the unambiguous language of the act.

The whistleblower law generally allows state employees to sue for retaliation. But a provision applicable solely to the UC, Government Code Sec. 8547.10(c), says that “any action for damages shall not be available . . . unless the injured party has first filed a complaint with the [designated] university officer . . . , and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents.”

Justice Joyce L. Kennard, writing for the high court, said the lower courts correctly ruled that Les Miklosy and Luciana Messina cannot sue for damages. The scientists claimed they were fired for raising safety concerns about the National Ignition Facility, a superlaser used for investigating nuclear fusion, but the university, which was sole manager of the lab when the suit was filed, rejected the claims.

“We conclude, as did the Court of Appeal, that this statutory language means what it says, precluding a damages action when, as here, the University of California has timely decided a retaliation complaint,” Kennard wrote.

Miklosy and Messina filed whistleblower complaints in August 2003. Pursuant to laboratory policies, the complaints were assigned to a “retaliation complaint officer,” who interviewed numerous witnesses before reporting that the two were not retaliated against.

The RCO found that Miklosy was fired for poor performance, and that Messina was not fired or constructively terminated, rejecting her claim that she had submitted her resignation after learning that she was going to be fired for making the same complaints as Miklosy. The RCO said that there was never any intent to fire Messina, and that in fact the university tried to convince her to stay.

The laboratory director adopted the RCO’s findings in November 2003. It was undisputed that the laboratory complied with policies requiring that the RCO complete his work within 90 days and that the director act on the RCO’s findings within 15 days; the employees could have appealed to the university president but did not, filing suit in February 2004.

Alameda Superior Court Judge Frederick Kraetzer sustained the university’s demurrer and dismissed the action. The Sixth District Court of Appeal affirmed.

Kennard, writing for the high court, noted that the statute provides three separate sets of rules for employees complaining of whistleblower retaliation, one for UC employees, one for California State University workers, and one for everyone else who works for the state.

Those in the last group, the justice explained, can sue as long as they have first sought relief from the State Personnel Board, and CSU employees may seek “a remedy” if the university fails to provide a satisfactory resolution within 18 months, but UC employees cannot sue unless the administrative process fails to result in a timely decision.

She elaborated:

“In short, the function of section 8547.10, subdivision (c), appears to be limited to enforcing the University’s internal mechanism for resolving disputes by providing an alternative secondary remedy that is available only when the University’s internal mechanism fails to operate. As long as the University completes in a timely fashion its own internal dispute-resolution process, the alternative remedy of a damages action in state court is unavailable. If, however, the University’s dispute-resolution process fails to function, the injured party is protected by the statutory alternative of bringing a damages action in state court, which has the potential to be much more costly to the University.”

Not only does this result comport with the literal language, Kennard went on to say, it upholds the semi-autonomous nature of the UC.. “Given the University’s unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages against the University,” she wrote.

Justices Marvin Baxter, Carol Corrigan, and Ming Chin joined in the opinion.

Justice Kathryn M. Werdegar, however, in a concurrence joined by Chief Justice Ronald M. George and Justice Carlos Moreno, said that while the statute “unambiguously” bars the plaintiffs from suing for damages, its doing so is inconsistent with its express purpose of protecting whistleblowers.

Because the various provisions of the act were amended at different times, she added, it is unclear whether the Legislature actually intended to protect the university from all whistleblower suits in which it reached a timely administrative decision, or merely to impose an exhaustion-of-remedies requirement.

 “I urge the Legislature to revisit this statute and if, as I suspect, it intended to create only a requirement that complainants exhaust their internal remedies, to amend the statute in a manner that makes that intent clear,” Werdegar wrote.

The case is Miklosy v. Regents of the University of California, 08 S.O.S. 4674.


Copyright 2008, Metropolitan News Company