Monday, November 24, 2014
Court of Appeal Reinstates Whistleblower Suit Against Church
Panel Says Firing Based on Erroneous Belief That Plaintiff Was Whistleblower Is Actionable
By KENNETH OFGANG, Staff Writer
An employer who terminates an employee based on an erroneous belief that the employee disclosed information about the employer’s regulatory violations to a public agency may be held liable in a whistleblower suit, the Fourth District Court of Appeal ruled Friday.
Div. One reversed a San Diego Superior Court judge’s ruling in favor of Pilgrim United Church of Christ in Carlsbad. The plaintiff, Cecilia Diego, claims that she was terminated from her position as assistant director of the church preschool because the director mistakenly believed that Diego filed a complaint with the state agency that licenses preschools.
Diego said it was another employee who complained anonymously to the Department of Social Services’ licensing division about a foul odor in a classroom and the lack of adequate sand beneath the playground equipment. The other employee told Diego about it, but the director angrily blamed Diego and fired her within a few days of an unannounced inspection by the licensing division, the plaintiff said.
Diego added that she believed she was terminated because the director thought she had made the complaint, although Diego said she was not told that was the reason for her firing.
Pilgrim, whose pastor is onetime Los Angeles City Council candidate Madison Shockley, denied the allegations. The church said Diego was fired for insubordination and that it never believed she was the whistleblower.
Judge Randa Trapp granted Pilgrim’s motion for summary judgment, ruling that Diego could not prevail because she was not claiming to be a whistleblower and that her termination therefore did not violate public policy as a matter of law. The judge also rejected Diego’s claim the church intentionally inflicted emotional distress upon her, an issue the court said was abandoned on appeal.
Justice Joan Irion in her opinion for the Court of Appeal, said the public policy protecting whistleblowers, articulated in former Labor Code §1102.5(b), extends to those who are subjected to retaliation based on the erroneous belief they have engaged in whistleblowing activities.
“Given that the public policy behind former section 1102.5(b) is to encourage employees to report suspected violations of law, as applicable here we must determine whether that policy applies to a terminated employee who was merely perceived by the employer to be a whistleblower,” the justice wrote. “We believe it does.”
‘Tethered to’ Code Section
The lack of express statutory protection for such perceived whistleblowers is not fatal to a claim that their termination violates fundamental public policy, Irion wrote, because the doctrine protects employees who are fired in violation of a policy that is “tethered to” a statute or constitutional provision, even if the protection is not explicit in the legislation.
Extending the protection to perceived whistleblowers, the justice added, does not violate the policy set forth in the statute, which is silent on the issue, and benefits the public. Irion added that the policy was well established at the time Diego was let go, and that it is “substantial and fundamental” because allowing the termination of perceived whistleblowers would frustrate the Legislature’s intent that those with knowledge of wrongdoing be able to report it without fear of retaliation.
The court emphasized that it was only finding that plaintiff raised a triable issue as whether she was terminated because she was perceived as a whistleblower and was not expressing a view on other issues, such as the credibility of Pilgrim’s claim it never believed Diego was the complainant.
The case is Diego v. Pilgrim United Church of Christ, 14 S.O.S. 5264.
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