Metropolitan News-Enterprise


Thursday, December 10, 2009


Page 1


C.A. Upholds Retaliation Award to Fired Administrative Law Judge


By SHERRI M. OKAMOTO, Staff Writer


The Fifth District Court of Appeal yesterday upheld an award of nearly $500,000 to a fired administrative law judge on her claim that her superiors retaliated against her for voicing concerns over the way travel assignments were being distributed among her colleagues.

In the published portion of its opinion, the panel clarified that the doctrine of res judicata did not preclude Cynthia George from pursuing both internal administrative civil service remedies and those available under the Fair Employment and Housing Act.

George was employed by the California Unemployment Insurance Appeals Board and worked out of the agency’s Fresno office. ALJs from this location were required to travel throughout the San Joaquin Valley to conduct hearings and George claimed the office’s two male ALJs were given preference in travel assignments.

She said that she discussed her concerns with the assignment process with fellow ALJ Betsey Temple, who told her she would be “sorry” if she pursued her complaints.

Accommodations Eliminated

After George filed a complaint with the Department of Fair Employment and Housing in November 2001 asserting that she had been subjected to “differential treatment, [and] assigned less favorable overnight travel” in violation of the California Fair Employment and Housing Act, the agency modified the travel assignment procedure to a standardized rotation and eliminated all the accommodations previously made for individual ALJ preferences. 

Temple was subsequently promoted to presiding ALJ and allegedly began subjecting George to “a continuing series of adverse employment actions, disciplinary actions and differential treatment in her employment,” including hostile verbal and nonverbal communications, a failure to protect against retaliatory treatment from coworkers, a written warning and the three suspensions. 

George appealed her suspensions to the State Personnel Board, which found the first suspension was not supported, reduced the second to a one-week suspension, and upheld the third.

Second Complaint

In July 2003 George filed a second complaint with DFEH claiming she was being retaliated against for having objected to the agency’s prior travel scheduling practices.

After exhausting her administrative remedies, George filed suit in 2005 seeking lost wages, recovery of attorney fees to defend the third suspension, and emotional distress damages. 

The agency twice moved for summary judgment on a number of grounds, including that the action was barred by the doctrine of res judicata and/or the doctrine of collateral estoppel because the propriety of the suspension had already been litigated before the board. 

Fresno Superior Court Judge Adolfo M. Corona denied both requests and a jury found in George’s favor. She was awarded $25,000 in economic damages, $75,000 in noneconomic damages and $391,755 in attorney fees and costs. 

Writing for the appellate court, Justice Rebecca A. Wiseman explained that case law recognizes two distinct interests at stake when a civil service employee challenges discipline or termination on discriminatory or retaliatory grounds. 

‘Primary Right’

“The primary right protected by the state civil service system is the right to continued employment, while the primary right protected by FEHA is the right to be free from invidious discrimination and from retaliation for opposing discrimination,” she said. “These are distinctly different rights with different harms even though there may be overlap in the two statutory schemes.”

For this reason, the justice continued, a state employee does not need to raise the FEHA issue during the administrative review process.

However, Wiseman cautioned that the related doctrine of collateral estoppel may act to preclude a retaliation claim if issues decided in an administrative action resolves the claim itself or a key issue in the current claim.

She reasoned the board’s decision to uphold two of George’s suspensions established that some of the reasons given for the discipline were legitimate and so these findings were binding on George in her FEHA cause of action. But Wiseman said such findings did not defeat George’s FEHA claim, which was that the agency accumulated a number of minor incidents and used them collectively to support the suspensions with retaliatory animus.

“Given the relatively minor incidents used as justification for discipline and the deteriorating relationship between George and Temple, a finding that some of the collected incidents were sufficient under the civil service rules to sustain a lesser discipline than imposed is not the equivalent of a finding that the discipline imposed was just, proper, and nonretaliatory,” Wiseman concluded.  

Joined by Justices Dennis A. Cornell and Gene M. Gomes, Wiseman rejected the agency’s argument that George had to prove she acted reasonably or in good faith when she filed her charge with the DFEH, and the agency’s challenge to the sufficiency of the evidence supporting a nexus between George’s DFEH complaints and her suspensions.

In the unpublished portion of the decision, the panel declined to address the agency’s challenge to the economic damage award due to the lack of authority in the agency’s brief and its failure to articulate a legal theory on which its objection was based.

The agency was represented by Deputy Attorneys General Vincent J. Scally Jr. and Noreen P. Skelly, who did not return a MetNews phone call.

George was represented by Joseph Clapp of Kumin Sommers LLP and J. Wynne Herron of Herron & Herron.

Clapp told the MetNews that George had been fired from her ALJ position one month before trial began and her wrongful termination case is pending. He said George has left the practice of law and is “getting by, but not easily.”

The attorney opined that yesterday’s decision would have “pretty profound effects” on the wrongful termination case since the rulings finding retaliatory animus would be applied to that suit. 

He suggested that the decision also “clarifies things,” so that “when you have independent rights they can be prosecuted separately, independently of one another.”

The case is George v. California Unemployment Insurance Appeals Board, 09 S.O.S. 6994.


Copyright 2009, Metropolitan News Company