Metropolitan News-Enterprise


Wednesday, August 28, 2013


Page 1


Court Rejects Fired State Employee’s Smoking Complaint

Panel Says Whistleblowers Must Exhaust Administrative Remedies Before Suing


By a MetNews Staff Writer


California statutes protecting employees from retaliation for complaining about health and safety violations require exhaustion of administrative remedies prior to filing a lawsuit, the Third District Court of Appeal ruled yesterday.

The court affirmed the dismissal of former legislative staff member Aaron MacDonald’s suit against the state and the Assembly. MacDonald claims that he was fired after he complained to his supervisors—including Evan Oneto, who was chief of staff to then-Assemblyman Bill Berryhill, R-Stockton—that a fellow employee was smoking in the office, in violation of state law.

San Joaquin Superior Court Judge Barbara Kronlund sustained the state’s demurrer, agreeing that MacDonald failed to comply with Labor Code Sec. 98.7 and that such non-compliance was a bar to suit under Sec. 1102.5 or Sec. 6310.

Sec. 98.7 provides in part that “[a]ny person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation,” and that the commissioner shall then investigate and render a decision.

Sec. 1102.5 prohibits an employer from retaliating against an employee “for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”

Sec. 6310 bars an employer from discharging or discriminating against a worker for having, among other things, complained to a state agency regarding an issue of employee safety or health.

The Labor Commissioner is authorized to enforce Secs. 1102.5 and 6310.

Justice Coleman Blease, writing for the Court of Appeal, cited Campbell v. Regents of University of California (2005) 35 Cal.4th 311, which held that a university employee who failed to exhaust the university’s internal procedures for challenging a retaliatory dismissal could not bring a whistleblower suit.

Blease rejected the argument that Campbell did not apply because the Assembly has no internal remedy for whistleblowers.

“Because the administrative remedy at issue here is provided by statute, Campbell controls, and plaintiff was required to exhaust that remedy before pursuing the underlying action,” the justice wrote.

An arguably contrary holding, in Lloyd v. County of Los Angeles (2009) 172 Cal.App. 4th 320, does not control because the case failed to distinguish Campbell and did not reference that case in its discussion of Sec. 98.7, Blease explained in a footnote.

The case is MacDonald v. State of California, 13 S.O.S. 4551.  


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