Ramirez v. Dept. of Health Services
In granting the Department of Health Servicess demurrer to state employee Anna Ramirezs whistleblower claim, the trial court lamented: [T]he statute is screwy . . . theres not much I can do about it except apply it, apply the law. I think the legislature probably needs to address this and clear it up. Court now face the same predicament.
The statute, the California Whistleblower Protection Act (Whistleblower Act; Gov. Code, 8547 et seq.) allows a whistleblower who is penalized for making a protected disclosure of wrongdoing to bring a civil action for damages (Gov. Code, 8547.3) after filing a complaint with the State Personnel Board (SPB) and the [SPB] has issued, or failed to issue, findings . . . (Gov. Code, 8547.8, subd. (c)). The question posed by this appeal is whether the Whistleblower Act, by requiring an injured whistleblower to file a complaint, triggers well-established principles of collateral estoppel precluding a civil action unless the whistleblower obtains a favorable ruling from the SPB or successfully overturns adverse findings through administrative mandamus. A preliminary question posed is whether an investigation by the executive officer of the SPB followed by written findings and a decision qualifies as a quasi-judicial hearing for purposes of section 1094.5 of the Code of Civil Procedure.
Court conclude (1) that because plaintiff was provided the opportunity to submit evidence, name witnesses, and argue her claim, she was provided with the type of quasi-judicial hearing sufficient to satisfy Code of Civil Procedure section 1094.5 even though the SPB was not required to provide, and she did not request, an evidentiary hearing; and (2) that because the Legislature did not clearly provide that a whistleblower could pursue alternative remedies and did require plaintiff to initiate administrative proceedings, she is collaterally estopped from relitigating the findings that were actually litigated in the quasi-adjudicatory proceedings.
Court acknowledge that this result places a substantial burden on the whistleblower who, subject to an expedited investigation and without the benefit of an evidentiary hearing, must convince a court to overturn adverse findings in mandamus proceedings, despite the considerable deference the court must accord those findings. What the Legislature appeared to be giving a civil remedy for retaliatory conduct is, in reality, an elusive possibility unless the SPB sustains the complaint. But, as the trial court recognized, in the absence of a clear statute providing alternative remedies, we too must apply this screwy statute.
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