Thursday, August 21, 2014
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Panel Grants Publication in LASD Whistleblower Case
Court Rejected Proposed Rule That Only ‘First Report’ of Misconduct Be Protected
By a MetNews Staff Writer
The Court of Appeal for this district has ordered partial publication of a ruling handed down earlier this month in favor of a retired Los Angeles sheriff’s deputy in a retaliation suit.
The court held on Aug. 5 that a discharged employee is not foreclosed from maintaining a whistleblower retaliation action on the ground that the information he or she provided, believing it to be of value, had already been reported by somebody else. On Tuesday, the panel concluded, on its own motion, that portion of its opinion should be citable as precedent.
The decision by Div. Three partially affirmed a judgment in favor of Darren Hager, fired from his post as a Los Angeles deputy sheriff in 2003. It reversed to the extent of slashing $2 million from his $4.5 million jury award, obtained in the courtroom of Los Angeles Superior Court Judge Victor Chavez.
Hager, who had been working with the federal Drug Enforcement Agency in seeking to uncover major methamphetamine operations in the Antelope Valley, supplied information to his department linking Deputy Sheriff Richard Engels to those operations. He passed on disclosures to him that Deputy Sheriff Jonathan Aujay, who had disappeared in 1998, had been slain by operators of a meth lab which Aujay had stumbled upon.
Hager was fired based on conducting an unauthorized investigation into those matters and for misreporting the content of some related FBI wiretaps. He contended in his whistleblower suit, pursuant to Labor Code §1102.5(b), that those reasons were pretextual.
The county contended on appeal that Hager did not qualify as a whistleblower because the Sheriff’s Department already knew, from reports by others, of Engel’s alleged ties to a drug operation and the possible slaying of Aujay.
The county relied on the First District’s 2012 opinion in Mize-Kurzman v. Marin Community College District, 202 Cal.App.4th 832. There, the court held, in a whistleblower case, that “[t]he court did not err in instructing that reporting publicly known facts is not a disclosure protected by the California whistleblower statutes at issue here.”
The opinion also stated, more broadly, that “information that was already known did not constitute a protected disclosure,” without specifying that the information have been publicly known.
Aldrich responded:
“The County reads Mize-Kurzman…as limiting the protections of section 1102.5(b) to the first employee who discloses a violation of state or federal law that had not been previously disclosed by another employee. No such ‘first report’ limitation was discussed in Mize-Kurzman, appears in section 1102.5(b), or is addressed in the federal and state cases cited and relied on by the Mize-Kurzman court.”
The jurist commented:
“We also view the ‘first report’ rule the County proposes as contrary to the legislative intent in enacting section 1102.5(b). Protection only to the first employee to disclose unlawful acts would defeat the legislative purpose of protecting workplace whistleblowers, as employees would not come forward to report unlawful conduct for fear that someone else already had done so. The ‘first report’ rule would discourage whistleblowing. Thus, the County’s interpretation is a disincentive to report unlawful conduct. We see no such reason to interpret the statute in a manner that would contradict the purpose of the statute.”
In the remaining parts of the opinion, which remain unpublished, the court held that the trial judge did not abuse his discretion in excluding evidence of prior misconduct by Hager, including assaulting his girlfriend and an incident at a motel; that the jury’s award of more than $2 million in economic damages was unsustainable; and that Hager’s request for fees under the private attorney general statute was properly denied.
All of the “prior bad acts” evidence excluded by Chavez could reasonably be barred as either irrelevant or, under Evidence Code §352, as more prejudicial than probative, Aldrich said.
The economic damages, the justice said, were unsupported by “competent evidence suggesting that [the plaintiff’s] injuries have narrowed the range of economic opportunities available to him.” Those damages were based on the unsubstantiated belief that Hager, who applied for disability retirement—based on injuries sustained a year earlier—just before he was fired, could still work as a deputy sheriff, Aldrich explained.
As for attorney fees, the justice said, Chavez did not abuse his discretion in concluding that the lawsuit only benefitted Hager, and not a large class or the public at large.
The case is Hager v. County of Los Angeles, 14 S.O.S. 3631.
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