Wednesday, October 23, 2013
C.A. Says Claims Act Not Applicable to Whistleblower Suits
By KENNETH OFGANG, Staff Writer
Compliance with the governmental claims statutes is not a prerequisite to an action under the California Whistleblower Protection Act, the Third District Court of Appeal ruled yesterday.
Reinstating a suit against the state Department of Social Services, the justices said the whistleblower statute, like the Fair Employment and Housing Act, has its own claims-presentation requirement that is a substitute for the Governmental Claims Act process. And because the claims act’s requirements for presenting a claim do not apply, neither does the statute requiring that an action be filed within six months of the written rejection of a claim, the court said.
The plaintiff in the case, Ruby Cornejo, has been battling the department before the State Personnel Board and in the courts for years. She filed a race-and-disability discrimination suit in 2000; whistleblower complaints with the board in 2004, 2005, and 2006; a second discrimination suit in 2007; and a fourth whistleblower complaint in 2009.
Her whistleblower complaints alleged that she was retaliated against by the department for having reported “improper governmental activity.”
Sen. Leland Yee, D-San Francisco, cited Cornejo’s case in introducing legislation to improve the whistleblower statute several years ago. He said Cornejo and a colleague may have been subjected to retaliation for criticizing “a lax policy on criminal background checks for foster parents and childcare and senior home licensees,”
Yee explained that “[a]ccording to Cornejo and [Michelle] Dille, they faced four years of continuous and unabated hostilities, harassment, and retaliation from DSS management.”
Cornejo’s last whistleblower complaint was dismissed by the board’s executive officer in 2009 for failure to allege retaliatory acts occurring during the 12 months preceding the filing, and she then brought suit in Sacramento Superior Court.
Trial Court Ruling
Judge Robert C. Hight sustained the state’s demurrer on the grounds that the plaintiff did not file a Government Claims Act claim and that she did not file suit within the time allowed by that act. But Justice M. Kathleen Butz, writing for the Court of Appeal, said the trial judge was wrong on both issues.
The justice acknowledged that the only statutes that the state appellate courts have held to be sufficiently comprehensive in their administrative claims processes as to obviate the need to comply with the Government Claims Act are the FEHA and “a somewhat obscure flood repair law.” But she agreed with the plaintiff’s contention “that the WPA is at least as equivalent to the purposes and procedures of the Claims Act as the FEHA, if not more.”
Butz noted that compliance with the administrative requirements of the whistleblower statute are a prerequisite to bringing suit, and said the state “failed to demonstrate any reason for requiring plaintiff to comply with the Claims Act in addition to exhausting her WPA administrative remedy.”
Statute of Limitation
As for the statute of limitations, Butz noted that the claims act’s six-month limitation period applies by its terms only to “a cause of action for which a claim is required to be presented,” and that the act expressly provides that when a claim need not be presented, the time allowed to sue a public entity is the same as against any other defendant.
She went on to say that the executive officer’s finding that the 2009 whistleblower complaint was untimely is not binding on the courts, nor are any adverse findings in prior administrative proceedings. The act’s intent, she said, is to provide employees with an independent judicial remedy for whistleblower retaliation, and not merely judicial review of the administrative process.
The case is Cornejo v. Lightbourne, 13 S.O.S. 5435.
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