Friday, November 28, 2014
S.C. Denies Review of Ruling in LASD Whistleblower Case
By KENNETH OFGANG, Staff Writer
The state Supreme Court has declined to review a ruling by this district’s Court of Appeal in favor of a retired Los Angeles sheriff’s deputy in a retaliation suit.
The justices, at their weekly conference in San Francisco Tuesday, voted unanimously to leave standing the decision by Div. Three in Hager v. County of Los Angeles (2014) 228 Cal. App. 4th 1538. That 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.
The county sought review after the Court of Appeal partially affirmed a judgment in favor of Hager, fired from his post as a 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, and Hager did not seek review of that part of the decision.
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.
First District Opinion
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.
Justice Richard Aldrich, writing for the Court of Appeal, 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.”
In the remaining parts of the opinion, which are 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 because the litigation primarily benefitted Hager, not the general public.
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