Schermerhorn v. Regents of the University of Cal.
Filed 7/13/07 Schermerhorn v. Regents of the University of Cal. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
KAREN SCHERMERHORN,
Plaintiff and Appellant, A114678
v. (Alameda County
Super. Ct. Nos.
REGENTS OF THE UNIVERSITY RG05218378, RG05234276)
OF CALIFORNIA et al.,
Defendants and Respondents.
_______________________________________/
Karen Schermerhorn appeals from a judgment entered after the trial court sustained demurrers and dismissed her complaint alleging a violation of the Whistleblower Protection Act (hereafter the WPA, Gov. Code, 8547[1] et seq.). She contends the trial court interpreted the WPA and other statutes incorrectly. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant worked as a student affairs officer for the University of California at Berkeley (University) in the Department of Materials Science and Engineering (DMSE). On May 27, 2004, appellant was notified she was being laid off due to budget cuts that had resulted in the elimination of her position.
Appellant believed the reason given for her layoff was pretextual and that the real reason was that she had complained that the DMSE was improperly administering the
funds in two endowed fellowships. According to appellant, one of the fellowships was not advertised properly, awards were made based on incomplete applications, and awards were given to graduate students who were affiliated with the professors who were making the award determinations. In appellants view, her layoff was unnecessary because the DSME could have filled whatever budget gap that existed by accessing other funds and by reducing its expenses.
On June 14, 2004, appellant challenged her layoff by submitting a grievance pursuant to the Universitys Personnel Policies for Staff Members (PPSM.) She alleged her layoff was improper and that it was motivated by the complaints she had made about the fellowships.
On June 25, 2004, Rosemary Leb, a grievance coordinator, informed appellant by letter that the University could not process her PPSM grievance because she had completed the paperwork incorrectly. Leb explained to appellant the steps she should take to remedy the problem.
Appellant submitted an amended PPSM grievance to the University on July 1, 2004. Leb declined to process the amended grievance because the procedural deficiencies outlined in her June 25 letter had not been corrected. Again, Leb explained the steps appellant could take to remedy the problem to provide the information Leb would need to evaluate appellants grievance for compliance with the provisions of Personnel Policy 70.
Appellant apparently declined to resubmit her PPSM grievance in accordance with Lebs instructions. Instead, she filed a grievance under the Universitys Whistleblower Protection Policy. Appellant alleged that her layoff was in retaliation for the disclosures she had made concerning the DSMEs administration of endowment funds. Appellant also alleged the Universitys failure to process her PPSM grievances was retaliatory.
As required by the rules set forth in the Whistleblower Protection Policy, the University appointed a factfinder to evaluate appellants whistleblower grievance. The factfinder, Ed Fennessy, conducted 30 interviews, reviewed over 300 pages of documents, and obtained appellants written answers to questions he prepared.[2] In April 2005, Fennessy issued a 49-page, single spaced report that described, in detail, the claims appellant had made, the information he had gathered, and his resolution of each claim. He concluded that appellants layoff was not retaliatory and that it was taken for valid budgetary reasons. He also concluded the Universitys rejection of appellants PPSM grievances was consistent with the Universitys policies and was not retaliatory.
Fennessys conclusions were adopted by Associate Chancellor John Cummins, the University official who was authorized to make that decision. The decision was communicated to appellants attorney by letter dated May 12, 2005.
Appellant then filed the complaint that is at issue in the current appeal. She named as defendants the Regents of the University of California and five of the Universitys employees.[3] As amended, appellants complaint alleged seven causes of action: (1) wrongful termination in violation of statute (the WPA), (2) wrongful termination in violation of public policy, (3) wrongful termination in breach of implied contract, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) invasion of privacy, and (7) wrongful termination in violation of the PPSM.
Appellant also filed, as a separate action, a petition for writ of mandamus, citing Code of Civil Procedure sections 1085 and 1094.5. Her writ petition challenged the Regents administrative decision to reject her whistleblower grievance.
By stipulation, the two actions were consolidated. The court conducted a trial on appellants writ petition and rejected it. After concluding that the Regents were not required to hold an administrative hearing on appellants administrative (whistleblower) complaint and that Code of Civil Procedure section 1094.5 was not applicable, the trial court applied the standard of review appropriate in an action seeking ordinary mandate. (Code Civ. Proc., 1085.) The court ruled the Regents decision to reject her whistleblower grievance was not arbitrary, capricious, or entirely lacking in evidentiary support.
The Regents then filed a series of demurrers challenging each of the causes of action appellant had alleged. The court sustained the demurrers, ultimately ruling that appellant could not prevail as a matter of law. After the court entered judgment in favor of the Regents, appellant filed this appeal.
II. DISCUSSION
Appellant contends the trial court erred when it sustained the Regents demurrers to the causes of action she alleged.[4]
In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. The burden of proving such reasonable possibility is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, internal citations & punctuation omitted.)
We turn to the individual causes of action appellant alleged.[5]
A. Wrongful Termination in Violation of the WPA
Appellant contends the trial court erred when it sustained the demurrer to her first cause of action alleging wrongful termination in violation of the WPA.
The Legislature determined in the WPA that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. ( 8547.1.) The act includes a section that specifically protects University of California employees. Section 8547.10, subdivision (a) states that a university employee may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts . . . . A victim of retaliation for whistleblowing may recover statutory penalties, damages, punitive damages, and reasonable attorney fees. ( 8547.10, subdivision (c).) However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university . . . and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents. ( 8547.10, subd. (c), italics added.)
Here, appellant alleged the Regents violated the WPA when it terminated her. Appellant also alleged the Regents violated the WPA when they failed to process the PPSM grievances she submitted. However, the documents provided to the trial court when it was evaluating the demurrer[6] showed the Regents had investigated both those allegations and had rejected them. Appellant did not and has not alleged the Regents failed to reach a decision on her whistleblower complaint within the time limits for that purpose established by the Regents. Since the University timely investigated and rejected appellants administrative claim, she cannot pursue a statutory damage claim.
This result is consistent with prior case law. In Campbell v. Regents of University of California (2005) 35 Cal.4th 311 (Campbell), the plaintiff sought damages for
retaliatory termination under two other whistleblower statutes, section 12653 and Labor Code section 1102.5. As to the former statute, the plaintiff alleged she was not required to exhaust her administrative remedies prior to filing suit because, in contrast to section 8547.10, subdivision (c), the statute did not contain an explicit exhaustion requirement. (Campbell, supra, 35 Cal.4that p. 327.) Our Supreme Court rejected that argument explaining that a statute need not expressly state the need for exhaustion. (Id. at pp. 327-328.) However, the court also made the following observations about section 8547.10 that, although dicta, are directly relevant in the present appeal: . . . The statute permits aggrieved university employees to file a damages action provided they have followed the administrative procedures and filed an administrative complaint before filing their lawsuit. . . . Of note here, the employee may not proceed with a court action against the university unless that institution has failed to reach an administrative decision on the action within specified time limits. . . . In such a case, the employee may file a lawsuit for damages even though the administrative complaint is pending. If, by contrast, the university has reached a decision on the administrative action, the statute does not authorize any statutory damages action. (Id. at p. 327; internal citations omitted; italics added.)
Here, as described in Campbell, the University investigated and reached a decision on appellants whistleblower complaint. Accordingly, the statute does not authorize a statutory damage claim.[7]
None of the arguments appellant makes convince us the trial court erred.
Appellant contends the trial court should have allowed her to proceed with her first cause of action because the Regents never gave her the opportunity to present her whistleblower claims in a trial-like evidentiary hearing where she could cross-examine witnesses. According to appellant, the Regents were required to provide her that opportunity under the logic of the Campbell case.
Appellant has not cited any statute or rule that would require the University to evaluate her whistleblower claim under section 8547.10 in a trial-like evidentiary hearing and precisely the opposite is true. The California Constitution grants the Regents broad powers to organize and govern the university. (Campbell, supra, 35 Cal.4th at p. 320.) This constitutional grant of power includes the grant of quasi-judicial and quasi-legislative powers. (Ibid.) Policies established by the Regents may enjoy a status equivalent to that of state statutes. (Ibid.) Our Supreme Court has said specifically that the Regents may create a policy for handling whistleblower claims under their power to organize and govern the University and that such a policy is treated as a statute in order to determine whether the exhaustion doctrine applies. (Id. at p. 321.)
Here, the Regents have adopted an elaborate set of rules and guidelines to govern claims of retaliation that are made under the WPA. Those rules set forth in detail how a claim must be filed, who must investigate and evaluate it, and who must make the ultimate determination about whether the claim has merit. However, neither party to this appeal contends those rules and regulations require the University to conduct a trial-like hearing. Since the rules and guidelines, which are the functional equivalent to a statute, do not require a trial-like hearing, appellant was not entitled to such a hearing.
The logic of the Campbell decision does not require a different result. Appellant relies on language in Campbell where the court was discussing the plaintiffs argument that requiring her to exhaust her administrative remedies would violate her equal protection rights because it would preclude her from filing a suit. (Campbell, supra, 35 Cal.4th at p. 332.) The court rejected the argument explaining that it misstates the effect of the exhaustion requirement, because judicial review of the administrative determination is available via administrative mandamus. (Code Civ. Proc. 1094.5.) (Campbell, supra, 35 Cal.4th at p. 332.) Appellant contends this passage means she is entitled to a trial-like hearing on her WPA claim because administrative mandamus is only available in cases where, by law, a hearing is required to be given and evidence is required to be taken. (Code Civ. Proc. 1094.5, subd. (a).)
Appellant correctly states when a party is entitled to review by administrative mandamus; however, she has misinterpreted the quotation from Campbell upon which she relies. As we have noted, the plaintiff in Campbell sought damages for retaliatory termination under two other whistleblower statutes--section 12653 and Labor Code section 1102.5. The primary issue in that case was whether the plaintiff was required to exhaust her administrative remedies prior to filing suit. As the passage cited, the court in Campbell was addressing and rejecting the plaintiffs claim of discrimination based on viewpoint. The Campbell court ruled exhaustion was required. (Campbell, supra, 35 Cal.4th at p. 333.) Thus the quote in question, when read in context, simply stands for the proposition that judicial review of an administrative decision under section 12653 and Labor Code section 1102.5 is available under Code of Civil Procedure section 1094.5. The quote cannot be read to mean that review of a decision under the WPA is by administrative mandamus under Code of Civil Procedure section 1094.5.
Next, appellant contends she was entitled to a trial-like hearing on her WPA claim under the due process clause of the United States Constitution. Appellant relies on cases that hold a public employee has a property interest in continued employment that cannot be taken away without an adequate hearing. (See, e.g., California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 348.) While a public employee can have a due process right to a hearing before being terminated (see, e.g., Mendoza v. Regents of University of California (1978) 78 Cal.App.3d 168, 173-174), the administrative investigation in this case was not conducted to determine whether appellant should be terminated. Rather the focus of that investigation was whether appellants WPA claim was valid. Appellant has not cited any authority that holds a WPA claim is a property right that must be evaluated in a trial-like hearing.
Next, citing Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944, appellant argues the administrative decision that was rendered in this case should not be given collateral estoppel effect because it lacked a judicial character. However, we do not hold the administrative decision must be given collateral estoppel effect, i.e., that some issue decided in the administrative hearing was binding for purposes of appellants WPA claim. Rather, we hold appellant did not state a claim for damages under section 8547.10, subdivision (c) because the University investigated and reached a decision on her claim. Principles of collateral estoppel are not relevant here.
Finally, appellant contends the court should have allowed her to proceed with her first cause of action because she was never provided a complete copy of the administrative decision rejecting her WPA claim. According to appellant, various attachments that were referenced in the report were not attached to the copy of the report she was provided. Appellant has not cited any authority that holds she has properly pled a WPA claim in her first cause of action based on the allegation that the attachments were omitted and indeed, she has not cited any authority at all on this point. The issue is waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) The argument is also not persuasive. While appellant may not have been provided with the attachments, she admits those attachments were ultimately filed in the court below. We fail to see how appellant was harmed when she ultimately obtained the documents that were omitted.
B. Wrongful Termination in Violation of Public Policy
Appellants second cause of action sought damages for wrongful termination in violation of public policy. Appellant identified the WPA as the basis for her public policy claim.
We conclude the trial court correctly sustained the demurrer to this cause of action. When a statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159.) Here, as we have explained, appellant could not state a claim for damages under the WPA because the University investigated and reached a decision on her claim. Since appellant did not have a claim under the WPA, she did not have a common law cause of action for wrongful termination in violation of the WPA.
C. Intentional Infliction of Emotional Distress
Appellants fourth cause of action sought damages for intentional infliction of emotional distress. On appeal she argues she should have been allowed to proceed with that cause of action under two theories. First, appellant argues she should have been allowed to proceed because whistleblower retaliation is inherently outrageous conduct. However, [t]he only statutory authorization for a civil damage action based on alleged [whistleblower] retaliation against a University of California employee for reporting improper activity is section 8547.10. Accordingly, a university employee who believes she is the victim of retaliation is limited to a statutory claim for damages under section 8547.10. (Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909, fn. omitted.)
Alternately appellant contends she should have been allowed to proceed on this cause of action because of the particularly humiliating and degrading fashion that she was terminated. Specifically, appellant contends the University summoned the campus police to supervise her exit. According to appellant Ordinary personnel management activity does not involve calling the police to escort an employee off of the premises in front of all of her coworkers . . . . However, to state a cause of action for intentional infliction of emotional distress a plaintiff must allege conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) It is not unusual for an employer to summon security personnel to make sure that a terminated employee leaves the workplace promptly and safely. The conduct appellant has alleged is insufficient to support her cause of action.
D. Invasion of Privacy
Appellants sixth cause of action sought damages for invasion of privacy. Appellant divided this cause of action into two counts. In the first, appellant alleged the Regents invaded her privacy by providing information about a prior job she had with the University to the investigator who was evaluating her whistleblower claim. Appellant contends that releasing that information violated Civil Code section 1798.24 of the Information Practices Act which makes it illegal to release personal information about a person without his or her prior written consent. However, as the trial court noted when rejecting this cause of action, Civil Code section 47, subdivision (b) establishes an absolute privilege that bars liability for communications made [i]n any . . . official proceeding authorized by law . . . . The court in Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1388-1391, ruled specifically that an investigation conducted under the WPA is an official proceeding to which the protections of Civil Code section 47, subdivision (b) apply. We conclude appellant cannot state a cause of action for invasion of privacy based on comments made in the course of an official proceeding that are absolutely privileged.
Appellant contends the privilege of Civil Code section 47, subdivision (b) does not apply here because the challenged disclosures were not authorized by law. Appellant cites Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg), in support of her argument. However, the Silberg court simply said that the privilege now set forth in Civil Code section 47, subdivision (b) protects communications made by litigants or other participants authorized by law. (Ibid.) Silberg does not state that the communication itself must be authorized by law.
Appellant also contends the privilege set forth in Civil Code section 47, subdivision (b) does not apply because the disclosures alleged exceeded the scope of Respondents right to investigate the allegations set forth in [her] administrative complaint . . . . However, the absolute privilege of Civil Code section 47, subdivision (b) protects disclosures so long as they have some logical relation to the matter at issue. (Silberg, supra, 50 Cal.3d at pp. 219-220.) Communications about appellants history of work for the University have a logical relation to appellants claim that the Regents terminated her position illegally.[8]
In the second count of her sixth cause of action, appellant alleged that the same acts that provide the foundation for her first count also violated her right to privacy under Article I, section 1, of the California Constitution.[9]
A plaintiff alleging a violation of her state constitutional right to privacy must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) conduct by the defendant constituting a serious invasion of privacy. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) The third element is a necessary because [n]o community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy. . . . Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy. (Id. at p. 37.)
The trial court rejected the second count of appellants sixth cause of action because she failed to allege facts that constitute a serious invasion of privacy. We agree with the trial court on this point. Appellant does not allege any conduct that can be characterized an egregious breach of the social norms underlying the privacy right. All she alleges is the disclosure of her workplace history and various related documents to an internal investigator who was appointed to investigate a workplace complaint she had initiated. We conclude the trial court correctly determined that appellants allegations were insufficient to support the cause of action she alleged.
E. Wrongful Termination in Violation of the PPSM
Appellants seventh cause of action sought damages for wrongful termination in violation of the Universitys PPSM. The trial court rejected this claim because it does not appear that [the Regents] policies give rise to a private cause of action. Appellant argues the trial court erred because the Regents policies and procedures are the equivalent of a statute the violation of which gives rise to a cause of action.
It is true that rules and regulations adopted by the University can be treated like statutes for some purposes. (Campbell, supra, 35 Cal.4th at p. 320.) However, appellants argument is premised on the assumption that a statutory violation necessarily gives rise to a cause of action for damages. That is incorrect. A statutory violation only gives rise to a cause of action for damages if that was the Legislatures intent. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 305.) Here, appellant has not even attempted to show that the Regents intended that violations be enforced through a cause of action for damages. Indeed, she has not even discussed the wording of the PPSM sections upon which she relies. An appellant has the burden of showing error. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Appellant has not carried her burden in this case.
F. Petition for Writ of Mandate
Appellant has not directly challenged the trial courts ruling on her petition for writ of mandate. Instead, she challenges the courts ruling on the individual causes of action for damages she alleged. However, in the course of discussing some of those causes of action, appellant makes arguments that could be interpreted as challenging aspects of the trial courts ruling on her writ petition. This raises the issue of whether we should interpret appellants brief as making a challenge to the trial courts ruling on her petition for writ of mandate. We decline to do so. California Rules of Court, rule 8.204(a)(1)(B) states that each brief must State each point under a separate heading or subheading summarizing the point . . . . An argument that violates this requirement may be deemed waived. (Roe v. McDonalds Corp. (2005) 129 Cal.App.4th 1107, 1114; Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9.) Because none of appellants headings directly challenge the trial courts ruling on her petition for a writ, we decline to address those aspects of her brief that might be interpreted as making such a challenge.
III. DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Needham, J.
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[1] Unless otherwise indicated, all further section references will be to the Government Code.
[2] Fennessy asked to interview appellant personally. She declined unless the interview was recorded. Fennessy had not allowed recordings in any of the more than 100 investigations he had conducted previously, and he declined to vary that procedure for appellants case.
[3] The individual defendants were Fiona Doyle, Wanda Capece, Janice Zeppa, Rosemary Leb, and Jane Taylorson. Unless the context requires otherwise, we will refer to the defendants collectively as the Regents.
[4] As we will discuss in greater detail below, appellant has not challenged the ruling denying the petition for writ of mandate.
[5] Appellant has not challenged the trial courts ruling as to her third and fifth causes of action.
[6] The Regents filed a request asking the trial court to take judicial notice of the administrative record that had been prepared when evaluating appellants grievances. Appellant did not oppose the request and the court granted it.
[7] Our Supreme Court has granted review in a case to determine the circumstances under which a university employee can state a cause of action for damages under the WPA. (See Miklosy v. Regents of the University of California, review granted Jan. 4, 2006, S139133.)
[8] The first count of appellants sixth cause of action also includes the allegation that the Regents violated her privacy rights when they failed to provide her with a copy of a letter that was contained in her personnel file. Plaintiff alleges the letter was written by a professor who was married to University of California President Dynes, and it relayed the professors complaint about her interactions with appellant. According to appellant, failing to provide her with a copy of the letter violated Civil Code section 1798.34, subdivision (a) which states a public agency must allow an individual to inspect all the personal information in any record containing personal information . . . . However, as the trial court stated when rejecting this claim, the Regents did provide appellant with a copy of the letter although they did so late. We conclude appellant cannot state a cause of action based on the Regents failure to provide her a document that she did in fact obtain.
[9] Article I, section 1, states, All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
