California Supreme Court Clarifies a State Public Employee's Right to Sue under the California Whistleblower Protection Act

February 27, 2009

Summary

In a unanimous decision yesterday, the California Supreme Court underscored the protective powers of the statute that applies to employees of the State of California who "blow the whistle" regarding improper governmental activities, by ruling that a state employee could sue for damages despite the civil service's administrative determination that her claims of retaliation were without merit. 

Details

Carole Arbuckle was a public employee of the State Board of Chiropractic Examiners ("SBCE").  In her lawsuit, Arbuckle alleges that in 2001, in response to a telephone inquiry about the license status of the chairwoman of the SBCE, she discovered that the chairwoman's license had been invalid for five months.  The same day that Arbuckle recorded this information in the SBCE information database, the chairwoman informed Arbuckle that although she had indeed forgotten to pay her license renewal fees, she had rectified this by paying the fees. 

Over the next five months, Arbuckle issued numerous citations to individuals who practiced under expired licenses, but the SBCE's executive director told Arbuckle not to issue a citation to the chairwoman.  In the aftermath of these events, the Board moved Arbuckle to another unit, changed her duties and denied her request for a modified work schedule.  Arbuckle thus filed a whistleblower retaliation complaint in 2002 with the State Personnel Board, alleging that the SBCE retaliated against Arbuckle for her involvement in documenting and attempting to cite the chairwoman for having an expired license.   

The State Personnel Board conducted a complete investigation of Arbuckle's complaint, during which each side submitted detailed documentary evidence and written argument.  Eventually, the State Personnel Board denied Arbuckle's whistleblower retaliation complaint, and notified Arbuckle that she could petition for a hearing with the Board.  Instead of filing a petition, Arbuckle filed a lawsuit seeking damages under the California Whistleblower Protection Act (Gov. Code § 8547.8). 

The Court of Appeal ruled that Arbuckle had failed to exhaust her administrative and judicial remedies because she had not utilized the hearing procedure provided by the Personnel Board, nor did she seek to have the findings against her set aside via writ of mandamus.

The Supreme Court reversed.  The Court reasoned that the plain language of the Whistleblower Protection Act permits an employee to file a complaint for damages after the employee files a complaint with the State Personnel Board and the Board has issued, or failed to issue, findings within the prescribed time period.  The Court emphasized that the statute contains no further prerequisites to filing a damages action in Superior Court under Government Code section 8547.8, and to graft on to the statute an additional burden of requesting a full hearing, and then seeking writ review of any adverse findings, would result in a damages remedy under the statute that is nearly impossible to pursue.

What This Means

The holding in this case is relatively narrow, and only applies to public employees of the state, not to private employees.  For cases under the statutory whistleblower protection scheme of Government Code section 8547.8, a state employee only needs to file an internal complaint with the state agency prior to pursuing a claim for damages.  Regardless of the outcome of the employee's complaint, once the state agency has issued (or failed to issue) a decision, he or she may proceed directly to the Superior Court to pursue a damages action without completing further internal appeals or seeking judicial review by filing a writ of mandamus.  Importantly, the standard is different for cases arising under other provisions of the Whistleblower Protection Act as applied to University of California and California State University employees.

Notably, the Court's decision does not change the doctrines of administrative and judicial exhaustion of remedies, which generally apply to claims outside the Whistleblower Protection Act.  Under these doctrines, an employee who begins an internal process must complete the process and have any adverse rulings set aside via writ of mandamus before pursuing damages in court.  Finally, the court declined to address the type of writ proceeding triggered by a documentary investigatory process in cases arising outside the Whistleblower Protection Act.

This e-update was authored by Sandra McDonough, Kari Searles, and Marie LaVanier.  For more information, or questions, please contact Ms. McDonough, Ms. Searles, Ms. LaVanier or any Paul, Plevin attorney at (619) 237-5200.

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