Stanford Law School - Robert Crown Law Library

Filed 7/31/08

IN THE SUPREME COURT OF CALIFORNIA

LES G. MIKLOSY et al.,
Plaintiffs
and
Appellants,
S139133
v.
Ct.App.
1/4
A107711
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA et al.,
Alameda
County
Defendants and Respondents. )
Super. Ct. No. RG04140484

The California Whistleblower Protection Act (Gov. Code, § 8547 et seq.)1
(hereafter the Whistleblower Act or the Act) prohibits retaliation against state
employees who “report waste, fraud, abuse of authority, violation of law, or threat
to public health” (§ 8547.1). The Act authorizes “an action for damages” to
redress acts of retaliation. (§§ 8547.8, subd. (c), 8547.10, subd. (c), 8547.12,
subd. (c).) But in the case of retaliation against a University of California
employee, the Act provides that “any action for damages shall not be available . . .
unless the injured party has first filed a complaint with the [designated] university
officer . . . , 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.) We conclude, as did the Court of Appeal,

1
Unless otherwise noted, all statutory citations are to the Government Code.

1

---

that this statutory language means what it says, precluding a damages action when,
as here, the University of California has timely decided a retaliation complaint.
I
Because this case comes before us on appeal from a judgment sustaining a
demurrer, we assume the truth of the facts alleged in the complaint and the
reasonable inferences that may be drawn from those facts. (See, e.g., Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; Coleman v. Gulf
Insurance Group (1986) 41 Cal.3d 782, 789, fn. 3; Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
Plaintiffs Leo Miklosy and Luciana Messina are computer scientists who,
in February 2003, were employed by the Regents of the University of California
(hereafter the University of California or the University), filling positions at the
Lawrence Livermore National Laboratory (the Laboratory). Plaintiffs worked in
the National Ignition Facility on a project designed to determine the safety and
reliability of the nation’s nuclear weapons stockpile. One method of evaluating
the safety and reliability of these weapons involved shooting laser beams at
“nuclear material” placed in a “Target Chamber.”
As their work proceeded, plaintiffs “identified problems with the . . .
project, including, inter alia, potential collisions by large million dollar robotic
‘positioners’ within the [Target Chamber] . . . , the delivery of unusable and
untested control software, a lack of defined engineering and operational
processes . . . , and inadequate . . . control operator training . . . .” Plaintiffs
repeatedly expressed their concerns to management, both orally and in writing,
enumerating specific mechanical problems with the positioners and the robotic
controls.
On Friday, February 28, 2003, defendants Kim Minuzzo, Larry Lagin, and
Jerry Krammen, who were supervisory employees of the Laboratory, fired
2

---

Miklosy. As he was leaving the premises, Miklosy heard Minuzzo tell Krammen:
“Messina is next.” Believing her performance was comparable to that of Miklosy,
Messina submitted a letter of resignation. Lagin and Minuzzo asked Messina to
reconsider her resignation over the weekend, which she agreed to do. When
Messina returned to her office after this meeting, she found her computer
disconnected.
On Monday, March 3, 2003, Messina inquired about transferring to a
different position at the Laboratory, but Minuzzo telephoned her the next day and
directed her to return to the National Ignition Facility. After that conversation had
ended, but before the telephone call was disconnected, Messina overheard
Minuzzo tell another employee that he intended to fire Messina. Messina resigned
as of March 7, 2003.
On August 16, 2003, plaintiffs filed complaints with the University under
section 8457.10, subdivision (a), of the Whistleblower Act. The Laboratory’s
Personnel Policies and Procedures Manual requires the director of the Laboratory
to appoint a “Retaliation Complaint Officer” (RCO) to investigate a complaint of
whistleblower retaliation. The RCO must prepare findings within 90 days; once
the findings are submitted, the director of the Laboratory must reach a decision on
the complaint within 15 days. The director’s decision may include “appropriate
relief for the complainant” and may be appealed to the president of the University.
This procedure is generally comparable to the procedure the State Personnel Board
follows when evaluating similar complaints by state agency employees. (See Cal.
Code Regs., tit. 2, § 56.3, subd. (a) [appointment of an investigator]; id. at §§ 56.3,
subd. (b), 56.5, subd. (a) [issuance of findings based on the investigator’s report];
id. at § 56.5, subd. (d) [appeal to the five-member State Personnel Board]; id. at
§§ 56.2, subd. (c), 56.5, subd. (d), 56.8 [no right to a formal hearing at any point in
the process, though one may be granted at the board’s discretion].)
3

---

In regard to plaintiffs’ complaints, John S. Hunt, a Laboratory employee,
acted as the RCO. The Laboratory has a staff that exceeds 8,000, and there is no
indication in the complaint that Hunt was in any way involved in the direct
management of the National Ignition Facility or had any personal connection with
the dispute. Hunt interviewed 23 witnesses and submitted his findings to Robert
Perko, the Staff Relations Officer, on November 4, 2003. Hunt found that
Laboratory management had not reacted adversely to plaintiffs’ reports of
problems at the National Ignition Facility, instead treating those reports as a
normal part of project development. Hunt found no support for the assertion that
management had retaliated against either Miklosy or Messina. Hunt determined
instead that the Laboratory had fired Miklosy for unsatisfactory work performance
and that the Laboratory had never intended to fire Messina and actually had tried
to convince her to stay. The Laboratory director adopted Hunt’s findings and
conclusions on November 17, 2003, and plaintiffs concede that the Laboratory
reached its decision within the time limits specified in its internal policies.
Plaintiffs did not appeal the director’s decision to the president of the University,
and therefore the decision became the University’s final resolution of the matter.
On February 10, 2004, plaintiffs filed a damages action in superior court
against the University and three supervisory employees — Minuzzo, Lagin, and
Krammen. The complaint alleged four causes of action: (1) unlawful retaliation
in violation of the Whistleblower Act (both plaintiffs); (2) wrongful termination in
violation of public policy (Miklosy); (3) wrongful constructive termination in
violation of public policy (Messina); and (4) intentional infliction of emotional
distress (both plaintiffs). The complaint sought compensatory damages, punitive
damages, and attorney fees.
The trial court sustained defendants’ demurrer with leave to amend, and
when plaintiffs filed an amended complaint, defendants again demurred. The trial
4

---

court then sustained defendants’ demurrer without leave to amend, and dismissed
plaintiffs’ action. The Court of Appeal affirmed, holding that plaintiffs had no
viable claim under the Whistleblower Act because the University timely resolved
their complaints, and further holding that plaintiffs’ common law claims were
statutorily barred. We granted plaintiffs’ petition for review.
II
In 1993, the Legislature enacted the Whistleblower Act, codifying it as
sections 8547 through 8547.11. (Stats. 1993, ch. 12, § 8, pp. 96-101.) At that
time, the Act was entitled the “Reporting of Improper Governmental Activities
Act,” and its stated purpose was to encourage the disclosure of “improper
governmental activities,” which the Act generally defined as activities that were
unlawful, economically wasteful, or involved gross misconduct or incompetence.
(Id. at pp. 96-97.) The Act was not wholly new; rather, it built on existing
provisions of the Government Code, in some cases renumbering those provisions
without changing their substantive content. In 1999, the Legislature extended the
Act to cover disclosures of health and safety problems (Stats. 1999, ch. 673, §§ 4,
6, 7), giving the Act its present name (id., § 1) and declaring, as its purpose, “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” (id., § 3).
Since its inception, the Act has dealt with employees of the state and the
University in separate provisions, indicating the Legislature’s awareness of the
University’s unique constitutional status and the concomitant need for special
provisions to govern whistleblowing at the University. For example, section
8547.3 imposes liability on state employees or officeholders who use their
authority to interfere with the disclosure rights conferred by the Act, and section
8547.11 imposes similar liability on employees and officers of the University.
Likewise, section 8547.8 protects state employees against whistleblower
5

---

retaliation, and section 8547.10 confers similar protections on employees and
officers of the University.
Regarding whistleblower retaliation, section 8547.8, subdivision (c),
imposes liability “in an action for damages” on “any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a
state employee” for disclosing improper governmental activities or unsafe
conditions. But, as enacted, section 8547.8, subdivision (c), included the
following caveat: “However, any action for damages shall not be available . . .
unless the injured party has first filed a complaint with the State Personnel
Board . . . , and the board has failed to reach a decision regarding any hearing
conducted pursuant to Section 19683.” (Stats. 1993, ch. 12, § 8, p. 99, italics
added.) Thus, as enacted, section 8547.8, subdivision (c), appears to have limited
damages actions by state employees to cases in which the State Personnel Board
has failed to reach a decision, essentially making the damages action a secondary
alternative, contingent on the malfunctioning of the primary alternative, rather
than an additional source of relief.
Section 8547.10, subdivision (c), imposes similar liability for retaliation
against employees or officers of the University, and it includes a similar caveat,
providing: “However, any action for damages shall not be available . . . unless the
injured party has first filed a complaint with the [designated] university
officer . . . , and the university has failed to reach a decision regarding that
complaint within the time limits established for that purpose by the regents.”
(Italics added.) This provision on its face appears to make the damages action an
alternative remedy available only if the University fails to act.
In 1994, the Legislature added section 8547.12 to the Act, extending
whistleblower protections to employees and officers of the California State
University. (Stats. 1994, ch. 834, § 1, pp. 4117-4118.) Section 8547.12,
6

---

subdivision (c), authorizes a damages action for whistleblower retaliation and
includes the same caveat as sections 8547.8 (governing state employees) and
8547.10 (governing University of California employees), but section 8547.12,
subdivision (c), adds a sentence that does not appear in the other provisions.
Specifically, section 8547.12, subdivision (c), provides: “However, any action for
damages shall not be available . . . unless the injured party has first filed a
complaint with the [designated] university officer . . . , and the university has
failed to reach a decision regarding that complaint within the time limits
established for that purpose by the trustees. Nothing in this section is intended to
prohibit the injured party from seeking a remedy if the university has not
satisfactorily addressed the complaint within 18 months.” (Italics added.) The
addition of the last sentence, and specifically the modifier “satisfactorily,” raises
the possibility that a court might find the state university’s decision unsatisfactory
(though timely) and on that basis permit a damages action. (See Ohton v. Board of
Trustees of the California State University (2007) 148 Cal.App.4th 749, 765.)
Here, we need only construe section 8547.10, subdivision (c), and therefore we
express no view on the substantive content, if any, of the term “satisfactorily” in
section 8547.12, subdivision (c). Above, we have set forth the text of section
8547.8, subdivision (c), and section 8547.12, subdivision (c), for the purpose of
comparison with section 8547.10, subdivision (c), the provision at issue here.
In 2001, the Legislature amended section 8547.8, subdivision (c),
governing state employees, to expressly permit a damages suit even when the
State Personnel Board has issued timely findings. (See Stats. 2001, ch. 883, § 3.)
As amended, the caveat in section 8547.8, subdivision (c), now provides:
“However, any action for damages shall not be available . . . unless the injured
party has first filed a complaint with the State Personnel Board . . . , and the board
has issued, or failed to issue, findings . . . .” (Italics added.) Arguably, this
7

---

amendment changed the provision from an alternative remedy (available only
when the administrative remedy fails to function) to a general remedy (available in
all cases, though requiring the employee to first exhaust administrative remedies).2
The Legislature, however, did not enact a comparable amendment to section
8547.10, subdivision (c), pertaining to employees of the University of California.
Therefore, as amended, the Whistleblower Act appears at first blush to
distinguish three groups of public employees: (1) a state employee may bring a
damages action alleging whistleblower retaliation after first seeking relief from the
State Personnel Board (§ 8547.8, subd. (c));3 (2) a California State University
employee may seek “a remedy” if the state university’s administrative remedy
fails to proceed to a timely decision or does not “satisfactorily address[]” the
employee’s complaint within 18 months (§ 8547.12, subd. (c)); and (3) a
University of California employee may bring a damages action only if the
University’s administrative remedy fails to result in a timely decision (§ 8547.10,

2
As discussed below, plaintiffs argue that the amendment was intended
merely as a clarification of existing law and that section 8547.8, subdivision (c),
was never anything other than an exhaustion requirement. The phrase “exhaustion
requirement” is perhaps inappropriate because it suggests that an employee who
has first pursued an administrative remedy before the State Personnel Board may
proceed with a damages action regardless of the State Personnel Board’s decision.
We express no view as to whether section 8547.8, subdivision (c), is properly
characterized in those terms, or whether a damages action is available only after a
favorable decision from the State Personnel Board. We also express no view as to
whether an employee must seek judicial review of an unfavorable decision from
the State Personnel Board before bringing a damages action, and the collateral
estoppel effect of the resulting judicial decision. These questions are not at issue
here and are now pending before us in other cases.
3
As noted in footnote 2, ante, whether the state employee must receive a
favorable decision from the State Personnel Board before bringing a damages
action is unclear. Also unclear is whether the employee must seek judicial review
of an unfavorable decision from the State Personnel Board. These questions are
not at issue here and are now pending before us in other cases.
8

---

subd. (c)) — if the University reaches a timely decision in its own favor, the
employee has no cause of action for damages.
III
Plaintiffs argue that their claims against the University of California for
damages under the Whistleblower Act remain viable notwithstanding the
Laboratory director’s timely decision rejecting those claims on the merits. This
argument requires us to interpret the terms of section 8547.10, subdivision (c),
which governs retaliation against University of California employees. Our task is
a familiar one. “We apply well-established principles of statutory construction in
seeking ‘to determine the Legislature’s intent in enacting the statute, “ ‘so that we
may adopt the construction that best effectuates the purpose of the law.’ ” ’
(Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199;
see People v. King (2006) 38 Cal.4th 617, 622; Fitch v. Select Products Co. (2005)
36 Cal.4th 812, 817-818.) We begin with the statutory language because it is
generally the most reliable indication of legislative intent. (City of Burbank v.
State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625.) If the statutory
language is unambiguous, we presume the Legislature meant what it said, and the
plain meaning of the statute controls. (People v. Hudson (2006) 38 Cal.4th 1002,
1009.)” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 211.) We
consider extrinsic aids, such as legislative history, only if the statutory language is
reasonably subject to multiple interpretations. (People v. King, supra, 38 Cal.4th
at p. 622.)
The plain language of section 8547.10, subdivision (c), states that a
damages action “shall not be available . . . unless . . . the university has failed to
reach a [timely] decision . . . .” The word “unless” when used as a conjunction
means “except on the condition that.” (Webster’s 9th New Collegiate Dict. (1988)
p. 1292.) Thus, as a matter of established usage, the “unless” clause states
9

---

conditions that must be satisfied in every case; if the conditions are not satisfied,
then the damages action “shall not be available.” Moreover, the two conditions set
forth in section 8547.10, subdivision (c), are clear: (1) “the injured party” must
have “filed a complaint with the [designated] university officer,” and (2) “the
university” must have “failed to reach a decision regarding that complaint within
the time limits established for that purpose by the regents.” If, as here, the
University has reached a timely decision in its own favor, then it has not “failed to
reach a decision,” the conditions stated in section 8547.10, subdivision (c), have
not been met, the “unless” clause is not satisfied, and “an[] action for damages
shall not be available.” (§ 8547.10, subd. (c).)
In short, the function of section 8547.10, subdivision (c), appears to be
limited to enforcing the University’s internal mechanism for resolving disputes by
providing an alternative secondary remedy that is available only when the
University’s internal mechanism fails to operate. As long as the University
completes in a timely fashion its own internal dispute-resolution process, the
alternative remedy of a damages action in state court is unavailable. If, however,
the University’s dispute-resolution process fails to function, the injured party is
protected by the statutory alternative of bringing a damages action in state court,
which has the potential to be much more costly to the University.
This interpretation is the only one that fits comfortably with the plain
meaning of section 8547.10, subdivision (c), and it is also the interpretation we
have given the statute in our prior decisions, albeit in dictum. Thus, in Campbell
v. Regents of the University of California (2005) 35 Cal.4th 311, 327 (Campbell),
we paraphrased the statute as follows: “[T]he 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. (§ 8547.10,
10

---

subd. (c).) . . . If, by contrast, the university has reached a decision on the
administrative action, the statute does not authorize any statutory damages action.”
Moreover, this interpretation is reasonable in light of the unique
constitutional status of the University of California. As we explained in
Campbell: “The California Constitution establishes the Regents [i.e., the
University of California] as a ‘public trust . . . with full powers of organization and
government.’ (Cal. Const., art. IX, § 9, subd. (a).) We have observed that ‘Article
IX, section 9, grants the [R]egents broad powers to organize and govern the
university and limits the Legislature’s power to regulate either the university or the
[R]egents. This contrasts with the comprehensive power of regulation the
Legislature possesses over other state agencies.’ (San Francisco Labor Council v.
Regents of University of California (1980) 26 Cal.3d 785, 788 . . . .) This grant of
constitutional power to the University includes the grant of quasi-judicial powers,
a view that is generally accepted in our jurisprudence. (Ishimatsu v. Regents of
University of California (1968) 266 Cal.App.2d 854, 864; see also Apte v. Regents
of University of California (1988) 198 Cal.App.3d 1084, 1091.) [¶] The Regents
may also exercise quasi-legislative powers, subject to legislative regulation.
Indeed, ‘policies established by the Regents as matters of internal regulation may
enjoy a status equivalent to that of state statutes.’ (Regents of University of
California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135, citing
Hamilton v. Regents (1934) 293 U.S. 245.) The authority granted the Regents
includes ‘full powers of organization and government, subject only to such
legislative control as may be necessary to insure compliance with the terms of the
endowment of the University and the security of its funds.’ (Goldberg v. Regents
of University of California (1967) 248 Cal.App.2d 867, 874.) Thus, ‘[t]he Regents
have been characterized as “a branch of the state itself” [citation] or “a statewide
administrative agency” [citation]’ (Regents of University of California v. City of
11

---

Santa Monica, supra, 77 Cal.App.3d at p. 135), and ‘[i]t is apparent that the
Regents as a constitutionally created arm of the state have virtual autonomy in
self-governance’ (ibid.).” (Campbell, supra, 35 Cal.4th at pp. 320-321.)
In short, the University functions in some ways like an independent
sovereign, retaining a degree of control over the terms and scope of its own
liability. Given the University’s unique constitutional status, it is not surprising
that the Legislature would take a deferential approach when authorizing damages
actions against the University. Thus, section 8547.10, subdivision (c), gives the
University the flexibility appropriate to a semiautonomous branch of the state
government to create its own mechanism for resolving whistleblower retaliation
claims, but it also provides an alternative remedy when the University’s remedy is
withheld. A damages action in state court may afford complainants a more
favorable forum because the fact finder in state court is not a University employee,
and because other procedural protections apply, such as evidentiary rules,
testimony under penalty of perjury, and cross-examination of witnesses. But the
appropriateness of granting these procedural protections to University
whistleblowers is a matter of policy that is not for this court to determine.4
The Legislature has encouraged the University to establish its own neutral
procedure for resolving whistleblower retaliation claims brought by University
employees or officers, and it has stated that if the University follows its procedure
and reaches a timely decision, a damages action cannot be brought against it in

4
We do not mean to suggest that there are no limits that apply in this
context. The University must provide a viable mechanism for fairly evaluating
whistleblower retaliation complaints, and the University’s consideration of a
complaint cannot be so perfunctory or arbitrary as to violate the due process
guarantee of the state or federal Constitutions. Plaintiffs here, however, do not
assert a due process violation.
12

---

state court. (§ 8547.10, subd. (c).) This legislative approach does not leave the
University’s decision completely unreviewable — an action for a writ of mandate
provides limited review5 — but it does give considerable leeway to the University
to operate with relative autonomy within the state governmental system.
If the University fails to follow its own procedures in a timely manner, the
Legislature has provided injured parties the protection of an alternative remedy in
the form of a state court damages action. This alternative remedy is not an
additional source of relief over and above whatever the University awards or fails
to award; rather, it is a backup remedy available only when the University has
failed to timely resolve the whistleblower complaint.
Plaintiffs direct our attention to the legislative history of the Whistleblower
Act. Although we find no ambiguity in the statutory language of section 8547.10,
subdivision (c), and therefore no reason to consult the legislative history, the
legislative history actually supports our conclusion.
The statutory language that now appears in sections 8547.8 (governing state
employees) and 8547.10 (governing University of California employees) actually
predates the 1993 enactment of the Reporting of Improper Governmental
Activities Act, having its roots in two predecessor statutes — former sections
10548 (state employees) and 10550 (University of California employees). Former
section 10548 was enacted in 1986 and looked very much like section 8547.8 as
enacted in 1993. Specifically, subdivision (c) of former section 10548 authorized
a damages action for whistleblower retaliation against state employees but added
the caveat that “any action for damages shall not be available to the injured party
unless the injured party has first filed a complaint with the State Personnel

5
Plaintiffs here did not file a mandate action challenging the University’s
decision.
13

---

Board . . . , and the board has failed to reach a decision regarding any hearing
conducted pursuant to Section 19683.” (Stats. 1986, ch. 353, § 4, p. 1511.) This
caveat is, of course, identical to the caveat contained in section 8547.8,
subdivision (c), as enacted in 1993.
Early drafts of the 1986 legislation authorized a damages action for
whistleblower retaliation but did not include the caveat. The Department of
Personnel Administration (DPA) objected to those versions, expressing among
other things the following concern: “This measure would seemingly permit an
employe[e] to have his or her case investigated and heard by the [State Personnel
Board] and then, if the findings and ruling are not to the employee’s liking, to file
with the court for a new trial. This is a departure from current procedure which
permits the court to simply determine whether the Board decision (for or against
an employee) is supported by substantial evidence in the existing record. No new
court trial is held.” (Dept. of Personnel Admin., analysis of Assem. Bill No. 1916
(1985-1986 Reg. Sess.) Jan. 31, 1986, p. 2.) In other words, the DPA criticized
the early versions of the bill precisely because it made the proceeding before the
State Personnel Board into a mere exhaustion requirement. The DPA’s analysis
further noted that this issue had “been discussed at length with the author’s staff”
and that staff had “indicated a willingness to take amendments.” (Id. at p. 1.)
Less than six weeks after the DPA issued this analysis, the bill was revised.
(Assem. Bill No. 1916 (1985-1986 Reg. Sess.) as amended Mar. 10, 1986, § 4,
pp. 7-8.) Among other things, this revision added the caveat restricting the
availability of a damages action: “However, any action for damages shall not be
available to the injured party unless the State Personnel Board has failed to reach a
decision regarding any hearing conducted pursuant to Section 19683.” (Id., p. 8.)
It appears that this caveat was added specifically to address the DPA’s criticism
that the damages action should not give complaining state employees a second bite
14

---

at the apple after losing before the State Personnel Board. Therefore, at least as of
1986, the Legislature expressly did not intend the State Personnel Board
proceeding to be a mere exhaustion requirement. Rather, it expressly sought to
restrict damages actions to those cases in which the State Personnel Board failed
to reach a timely decision; in all other cases, the State Personnel Board proceeding
was the employee’s exclusive remedy, subject only to substantial evidence review
in the courts. Notably, the DPA prepared a flowchart of the amended measure
indicating only two possibilities for proceeding to court after bringing a complaint
before the State Personnel Board: “1. For damages if no timely SPB decision [¶]
or [¶] 2. For review of SPB decision on merits.” (Italics added.) This flowchart
was attached to, and referred to in, a bill analysis by a Senate committee,
indicating that it came to the attention of the Legislature at least at the committee
level. (Sen. Com. on Public Employment & Retirement, Analysis of Assem. Bill
No. 1916 (1985-1986 Reg. Sess.) as amended May 12, 1986, p. 2 & attachment).
Two years later, the Legislature enacted former section 10550, addressing
whistleblower retaliation against University of California employees. In language
identical to that currently found in section 8547.10’s subdivision (c), former
section 10550’s subdivision (c) provided: “However, any action for damages shall
not be available . . . unless the injured party has first filed a complaint with the
[designated] university officer . . . , and the university has failed to reach a
decision regarding that complaint within the time limits established for that
purpose by the regents.” (Stats. 1988, ch. 1385, § 3, p. 4669.) The Legislature
appears to have adapted this language directly from former section 10548,
subdivision (c), which pertained to whistleblower retaliation against state
employees. It follows, therefore, that the Legislature likewise did not intend the
University’s internal proceeding to be a mere exhaustion requirement. Rather, it
expressly sought to restrict damages actions to those cases in which the University
15

---

failed to reach a timely decision on the complaint; in all other cases, the University
proceeding was to be the employee’s exclusive remedy.
In describing this new statute governing University employees, the
Legislative Counsel’s Digest first summarizes the effect of former section 10548,
which governed state employees: “Under existing law, a state employee . . . who
files a written complaint alleging acts of reprisal or intimidation due to disclosure
of improper governmental activities may file a copy of the complaint with the
State Personnel Board . . . . Existing law provides that failure of the board to
reach a decision on the complaint, as specified, is a condition precedent to filing a
civil action for damages.” (Legis. Counsel’s Dig., Assem. Bill No. 2765 (1987-
1988 Reg. Sess.) 4 Stats. 1988, Summary Dig., p. 475, italics added.) This
summary confirms our reading of former section 10548; a damages action was
available only when the State Personnel Board failed to reach a timely decision.
The Legislative Counsel’s Digest next explains the impact of the new statute (that
is, former section 10550): “This bill would add provisions, applicable exclusively
to University of California employees, . . . similar to the provisions administered
by the State Personnel Board, as described above, except the Regents of the
University of California would designate an officer to whom complaints could be
filed . . . and the regents would administer these provisions.” (Ibid.) This
description indicates that the Legislature both understood and intended that a
damages action against the University would be available only when the
University failed to reach a timely decision. It also indicates that the Legislature
intended the University to have autonomy in administering this process. Nothing
suggests that the Legislature had a different intent in 1993 when it repealed former
sections 10548 and 10550 (Stats. 1993, ch. 12, § 16, p. 101), and included
substantially identical language in sections 8547.8 and 8547.10 (Stats. 1993, ch.
12, § 8, pp. 98-100).
16

---

This interpretation of the Legislature’s intent is confirmed by later
amendments to section 8547.8. As noted, sections 8547.8, subdivision (c), and
8547.10, subdivision (c), originally included parallel language limiting the
damages remedy to situations in which either the State Personnel Board or the
University, as the case may be, failed to reach a timely decision. In 2001,
however, the Legislature enacted Senate Bill No. 413 (2001-2002 Reg. Sess.)
(Senate Bill 413), amending section 8547.8, subdivision (c), to allow state
employees to file a damages action if the State Personnel Board “has issued, or
failed to issue, findings,” thereby arguably making the provision into a mere
exhaustion requirement. As amended, a final decision at the administrative level
(or the failure of the administrative agency to reach a timely decision) clears the
way for the state employee to file a civil damages action. (But see fn. 2, ante.)
The Legislative Counsel’s Digest for Senate Bill 413 explained the effect of
the bill as follows: “[Existing law] provides that any action for civil damages is
only available to an injured party who has first filed a complaint with the State
Personnel Board and the board has failed to reach a decision pursuant to specified
procedures. [¶] . . . This bill would . . . provide instead that civil damages are
available to an injured party only if the State Personnel Board has issued, or failed
to issue, findings pursuant to the specified procedures.” (Legis. Counsel’s Dig.,
Sen. Bill No. 413 (2001-2002 Reg. Sess.) as chaptered Oct. 14, 2001, p. 1, italics
added.) Then, in a new paragraph, the digest adds: “The bill would specify that
its provisions shall apply to the California State University and the University of
California.” (Ibid.) Plaintiffs point to the latter sentence as indicative of a
legislative intent to amend, not just section 8547.8, but also sections 8547.10 and
8547.12, making the requirement of administrative proceedings (which is common
to all three sections) into mere exhaustion requirements in all three cases. We
disagree.
17

---

The first part of the above-quoted excerpt discusses the law as it was before
enactment of Senate Bill 413. In other words, it discusses the statutory language
that constituted the pre-amendment version of section 8547.8, subdivision (c) —
language that remains in section 8547.10, subdivision (c). Thus, the Legislative
Counsel’s discussion — stating that a damages action “is only available” when
“the board has failed to reach a decision” — actually supports defendants’ view
here that a damages action against the University is precluded so long as the
internal administrative process reaches a timely decision, even one unfavorable to
the employee. Moreover, by using the phrase “This bill would . . . provide
instead” (italics added), the Legislative Counsel’s Digest makes clear that the
Legislature intended to change existing law, not merely to explain existing law.
Therefore, plaintiffs’ argument would require us to adopt the following
implausible line of reasoning: When two parallel statutes use nearly identical
language, and when the Legislature amends one but not the other, and when the
amendment does not merely clarify existing law but actually changes the law, we
should nevertheless continue to give the two statutes the same meaning, treating
them as if the Legislature had actually amended both, and we should do so
because the Legislative Counsel’s Digest tells us that the bill will so “specify,”
though the actual text of the bill does not so specify. We reject this reasoning,
relying instead on the text of the bill, which amends section 8547.8, subdivision
(c), but not section 8547.10, subdivision (c).
Moreover, the sentence from the Legislative Counsel’s Digest on which
plaintiffs rely can be readily explained in a way that does not give it the
substantive significance plaintiffs wish it to bear. When first introduced, Senate
Bill 413 was limited to adding several new sections to the Government Code (see
§ 8548 et seq.) concerning the dissemination of information about the
Whistleblower Act. (Sen. Bill 413, as introduced Feb. 21, 2001, §§ 1-2, pp. 1-4.)
18

---

Later, provisions were added amending the Whistleblower Act. (See Sen. Bill
413, as amended Mar. 26, 2001, §§ 2, 4, 5, 6, pp. 3-4, 6-10; id., as amended June
14, 2001, §§ 3, 5, 6, pp. 4, 8-9; id., as amended July 11, 2001, § 8, p. 12.) The
specific provision we are considering here (authorizing a damages action under
section 8547.8, subdivision (c), when “the State Personnel Board has issued, or
failed to issue, findings”) was a relatively late addition to the bill. (See Sen. Bill
413, as amended Aug. 20, 2001, § 3, p. 5.) The early versions of the Legislative
Counsel’s Digest included the same sentence plaintiffs now highlight — that
“[t]he bill would specify that its provisions shall apply to the California State
University and the University of California” (see, e.g., Legis. Counsel’s Dig., Sen.
Bill No. 413 (2001-2002 Reg. Sess.) as amended Mar. 26, 2001, p. 2; id., as
amended June 14, 2001, p. 2; id., as amended July 11, 2001, p. 2; cf. id., as
introduced Feb. 21, 2001, p. 1); in the digest’s early versions, however, this
sentence necessarily referred to other changes Senate Bill 413 would effect, not
the specific change to section 8547.8, subdivision (c), at issue here, because the
change at issue here was not then a part of the bill.
When the Assembly amended Senate Bill 413 to add the specific change to
section 8547.8, subdivision (c), at issue here, the Legislative Counsel revised the
digest for the bill to describe this new provision. (Legis. Counsel’s Dig., Sen. Bill
No. 413 (2001-2002 Reg. Sess.) as amended Aug. 20, 2001, pp. 1-2.)
Significantly, this new bit of descriptive material was inserted at the end of the
paragraph immediately preceding the sentence on which plaintiffs are now relying,
giving rise to the confusing circumstance that the sentence can be read as referring
to the new provision, though the actual text of the bill makes clear the opposite is
true. (Ibid.) Nevertheless, the fact that the sentence remains set off in its own
separate paragraph tends to disassociate it from the new descriptive material and to
19

---

associate it more generally with the other provisions of the bill (which, by their
terms, apply to the University).
Plaintiffs further rely on a dialogue that took place during a hearing, held
on February 28, 2001, before the Senate Select Committee on Governmental
Oversight. At the hearing, an attorney for the California State Employees
Association complained that the original language of section 8547.8, subdivision
(c), governing state employees, could be read to preclude a damages action
whenever the agency has issued a timely decision, even a decision in its own favor
— which of course is exactly what defendants now argue about section 8547.10,
subdivision (c), governing University employees. The attorney said: “But I think
if you read the plain language, it makes it sound that if the Board has reached a
decision . . . [n]ot to act, then that’s it. That you can only bring a complaint if the
State Personnel Board has failed to act. I think it reads as a bar to civil litigation,
but I think it was meant as an exhaustion requirement.” (Italics added.) The
committee chair then asked: “So shall we clarify that?” Plaintiffs argue that to
“clarify” statutory language means to explain its already existing meaning, not to
change the law, and therefore they assert that section 8547.8, subdivision (c) —
and, by parallel reasoning, section 8547.10, subdivision (c) — was always
intended to be a mere exhaustion requirement, allowing the employee to file a
damages action once the agency has reached its decision, regardless of what the
decision might be.
This brief dialogue, however, cannot support the substantive conclusions
plaintiffs draw from it. First, the passing comment of a committee chair at a
legislative hearing hardly establishes the intent of the Legislature as a whole.
Moreover, the statement of the attorney for the California State Employees
Association actually supports defendants’ argument that the original language of
section 8547.8, subdivision (c) — language that remains in section 8547.10,
20

---

subdivision (c) — is best read to preclude a damages action. As the attorney
pointed out, “if you read the plain language, . . . it reads as a bar to civil
litigation.” (Italics added.) Therefore, the committee chair’s use of the word
“clarify” is not strong evidence that the committee intended to explain existing law
rather than to change the law. This conclusion finds further support in the
legislative history already discussed, indicating that the predecessor statute to
section 8547.8 — former section 10548 — was drafted to preclude the precise
interpretation plaintiffs are now advocating. Therefore, considered in this context,
the word “clarify” meant only that the committee would address the issue.
Moreover, in light of this dialogue, the committee was certainly made
aware that the original language of section 8547.8, subdivision (c) (which remains
in section 8547.10, subdivision (c)), was subject to the restrictive interpretation
defendants now urge. That the Legislature chose to amend section 8547.8’s
subdivision (c), which pertains to state employees, but not section 8547.10’s
subdivision (c), which pertains to University employees, must be treated as
substantively significant. (See People v. Athar (2005) 36 Cal.4th 396, 409
[“[W]hen the Legislature uses a critical word or phrase in one statute, the omission
of that word or phrase in another statute dealing with the same general subject
generally shows a different legislative intent.”]; see also People v. Licas (2007) 41
Cal.4th 362, 367; In re Young (2004) 32 Cal.4th 900, 907.) Plaintiffs suggest that
the Legislature’s failure to amend section 8547.10, subdivision (c), when it
amended section 8547.8, subdivision (c), was due simply to inadvertence or
oversight, and that we therefore should fulfill the Legislature’s intent by
construing section 8547.10 as if the Legislature had amended it. In other words,
plaintiffs suggest that the Legislature would certainly have amended section
8547.10, subdivision (c), at the same time that it amended section 8547.8,
subdivision (c), if that section had been brought to its attention.
21

---

A serious problem with this argument is that the restrictive language of
section 8547.10’s subdivision (c), which pertains to University of California
employees, was brought to the Legislature’s attention twice, but the Legislature
made no changes. The first such occasion was in 1994, when the Legislature was
considering the bill that added section 8547.12 (relating to the California State
University) to the Whistleblower Act. At that time, an organization called “The
University Plaintiffs Co-op” complained about several “loopholes” in the Act and
proposed (among other things) an amendment that would have authorized a
damages action against the University of California whenever the University’s
resolution of a whistleblower retaliation complaint was unsatisfactory to the
injured party. The views of this organization were summarized in various
legislative committee analyses, indicating that these committees gave
consideration to the organization’s proposals. (See Assem. Com. on Public
Employees, Retirement, and Social Security, Analysis of Sen. Bill No. 2097
(1993-1994 Reg. Sess.) as amended Apr. 20, 1994, p. 2; Assem. Com. on
Consumer Protection, Governmental Efficiency, and Economic Development,
Analysis of Sen. Bill No. 2097 (1993-1994 Reg. Sess.) as amended Apr. 20, 1994,
p. 2.) Nevertheless, the Legislature took no action at that time to amend the
restrictive language in section 8547.10, subdivision (c). Later, in 2006, a bill was
introduced that would have amended section 8547.10, subdivision (c), in virtually
the same way the Legislature amended section 8547.8, subdivision (c), in 2001.
(Sen. Bill No. 165 (2005-2006 Reg. Sess.) as amended Jan. 4, 2006, § 3, p. 10.)
That bill is currently inactive. Ordinarily, we do not draw substantive conclusions
based on legislative inaction (Quinn v. State of California (1975) 15 Cal.3d 162,
175 [“legislative inaction is indeed a slim reed upon which to lean”]), but here we
use this legislative history only to show that the restrictive language of section
8547.10, subdivision (c), was twice brought to the Legislature’s attention and
22

---

therefore that the Legislature’s failure to amend that section in 2001 was not
necessarily a matter of inadvertence or oversight.
Plaintiffs argue that defendants’ interpretation of section 8547.10,
subdivision (c), undermines the purpose of the Whistleblower Act, which as noted
is to prevent retaliation against state employees who “report waste, fraud, abuse of
authority, violation of law, or threat to public health.” (§ 8547.1.) Plaintiffs assert
that the availability of a civil remedy by which an employee could seek
compensatory damages, punitive damages, and attorney fees would serve to deter
whistleblower retaliation. That may well be true, but a statutory statement of
purpose does not override the express limits the Legislature has placed in the
statutory text; rather, the purpose is advanced only to the extent and in the manner
the statutory text has specified. Tenfold damages might also deter whistleblower
retaliation, but the statutory text does not impose such damages, and they are not
therefore awarded.
Finally, plaintiffs point to the “ ‘ “settled principle of statutory
interpretation that language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the Legislature did not
intend.” ’ ” (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, quoting
People v. Barksdale (1972) 8 Cal.3d 320, 334, quoting Bruce v. Gregory (1967)
65 Cal.2d 666, 673-674; see also Commission on Peace Officer Standards &
Training v. Superior Court (2007) 42 Cal.4th 278, 290; California School
Employees Assn. v. Governing Bd. of South Orange County Community College
Dist. (2004) 124 Cal.App.4th 574, 588 [“[I]n rare cases, . . . the literal meaning of
the words may be disregarded to avoid absurd results.”].) Plaintiffs find absurdity
in a rule that distinguishes between state employees and University of California
employees, denying only the latter the possibility of a damages action after
exhausting administrative remedies. We conclude, however, that a rational,
23

---

nonabsurd basis for the distinction may be found in the University’s unique status
as a self-governing institution, and the Legislature’s consequent desire to preserve
the University’s autonomy. (See Campbell, supra, 35 Cal.4th at pp. 320-321; see
also pp. 11-12, ante.) Significantly, the “grant of constitutional power to the
University includes the grant of quasi-judicial powers” (Campbell, at p. 320) and
“[t]he Regents may create a policy for handling whistleblower claims under their
power to organize and govern the University.” (Id. at p. 321.) Therefore, the
Legislature could reasonably have intended the University to resolve
whistleblower retaliation claims by way of its own internal procedures, reserving
the alternative remedy of a damages action for those instances when the University
fails to complete its process in a timely manner.6
We conclude that section 8547.10, subdivision (c), means what it says: a
civil action for damages against the University is available only when the plaintiff
employee has first filed a complaint with the University and the University has
failed to reach a timely decision on the complaint.
IV
Plaintiffs also assert common law claims of wrongful termination in
violation of public policy. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d
167 (Tameny).) In Tameny, we stated: “[W]hen an employer’s discharge of an
employee violates fundamental principles of public policy, the discharged
employee may maintain a tort action and recover damages traditionally available
in such actions.” (Id. at p. 170.) Later, in Gantt v. Sentry Insurance (1992) 1

6
We recognize the possibility of abuse in the self-policing mechanism that
the Legislature has established to prevent whistleblower retaliation at the
University, but because we find no compelling evidence of legislative error, and
because the statutory scheme is neither absurd nor inherently unfair, we must
construe the law as written by the Legislature.
24

---

Cal.4th 1083, 1095 (Gantt), we clarified that a Tameny cause of action must be
“carefully tethered to fundamental policies that are delineated in constitutional or
statutory provisions.”
Here, plaintiffs base their Tameny claims on the policy set forth in the
Whistleblower Act, which declares “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.) Plaintiffs also rely on Labor Code section 6310,
which prohibits the firing of an employee who complains to a governmental
agency having responsibility for regulating safety in the relevant industry.
Plaintiffs argue that their Tameny claims are expressly preserved by section
8547.10, subdivision (f), which provides: “Nothing in this article shall be deemed
to diminish the rights, privileges, or remedies of any employee under any other . . .
state law . . . .” Plaintiffs assert that the tort we recognized in Tameny constitutes
“other . . . state law” under this provision. Defendants respond, however, that a
Tameny action is unavailable against a public entity such as the University, and
therefore the savings clause found in section 8547.10, subdivision (f), is of no help
to plaintiffs. We agree.
The Government Claims Act (§ 810 et seq.) establishes the limits of
common law liability for public entities, stating: “Except as otherwise provided
by statute: [¶] (a) A public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or a public employee or any
other person.” (§ 815, subd. (a), italics added.) The Legislative Committee
Comment to section 815 states: “This section abolishes all common law or
judicially declared forms of liability for public entities, except for such liability as
may be required by the state or federal constitution, e.g., inverse
condemnation. . . .” (Legis. Com. com., 32 West’s Ann. Gov. Code (1995), foll.
§ 815, p. 167, italics added.) Moreover, our own decisions confirm that section
25

---

815 abolishes common law tort liability for public entities. (See Eastburn v.
Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179; Zelig v. County
of Los Angeles (2002) 27 Cal.4th 1112, 1127-1128; see also Adkins v. State of
California (1996) 50 Cal.App.4th 1802, 1817-1818; Michael J. v. Los Angeles
County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 866-867.)
In Palmer v. Regents of University of California (2003) 107 Cal.App.4th
899, the Court of Appeal applied section 815 in a context similar to that presented
here: a whistleblower retaliation claim against the University of California. The
court observed: “The only statutory authorization for a civil damage action based
on alleged 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, supra, at p. 909.) The court went on to affirm
summary judgment against the plaintiff, who had asserted only a Tameny cause of
action: “Because the ‘classic Tameny cause of action’ is a common law, judicially
created tort . . . and not authorized by statute, it is not properly asserted against the
Regents.” (Palmer, supra, at p. 909, citations omitted.) Although the Court of
Appeal’s discussion of section 815 was dictum (see Palmer, supra, at p. 910 & fn.
11), we agree with the Palmer court that section 815 bars Tameny actions against
public entities.7

7
In City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158-1161,
we held that an employee could bring a Tameny cause of action for disability
discrimination. The defendant in that case happened to be a public entity, but the
question of a public entity’s tort immunity under section 815 was not raised in that
case. “It is axiomatic that cases are not authority for propositions not considered.”
(People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
26

---

We are left, therefore, with plaintiffs’ Tameny claims against the individual
defendants. Plaintiffs argue that irrespective of whether section 815 abolishes
common law liability for public entities, the individual employees are subject to
common law liability, and under section 815.2, the University, as their employer,
bears that liability in their place. Section 815.2, subdivision (a), codifies the
doctrine of respondeat superior as it applies to public entities like the University,
stating: “A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his employment
if the act or omission would, apart from this section, have given rise to a cause of
action against that employee . . . .”
Plaintiffs, however, overlook the fact that a Tameny action for wrongful
discharge can only be asserted against an employer. An individual who is not an
employer cannot commit the tort of wrongful discharge in violation of public
policy; rather, he or she can only be the agent by which an employer commits that
tort. This conclusion flows logically from our reasoning in Tameny.
The tort we recognized in Tameny, and reaffirmed in Gantt, is premised on
the wrongful termination of an employment relationship. If an employer
terminates an employment relationship for a reason that contravenes some
fundamental public policy, then the employer breaches a general duty imposed by
law upon all employers and the employee’s remedy therefore sounds in tort.
(Tameny, supra, 27 Cal.3d at p. 176.) In that case, the various terms of the
employment relationship are not the source of the employee’s legal rights; rather,
tort law is the source of the employee’s legal rights, and the employment
relationship is merely the medium through which the tort is inflicted. (Ibid.)
Nevertheless, the breach of the employment relationship is an indispensable
element of the tort, because it serves factually as the instrument of injury. Thus,
27

---

there can be no Tameny cause of action without the prior existence of an
employment relationship between the parties.
This point was elaborated upon by the Court of Appeal in Weinbaum v.
Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310: “[T]he tort of
wrongful discharge in violation of public policy . . . arises when an employer
conditions employment upon required participation in unlawful conduct by the
employee. But the fact that an employee discharged in violation of public policy
has a tort remedy wholly independent of his express or implied contractual
relationship with his employer [citation] does not mean there exists a tort of
‘wrongful termination in violation of public policy’ independent of the duty rising
from the employment relationship. To the contrary, the duty on which the tort is
based is a creature of the employer-employee relationship, and the breach of that
duty is the employer’s improper discharge of an employee otherwise terminable at
the will or whim of the employer. [Citation.] There is nothing in . . . any . . . case
we have found to suggest that this tort imposes a duty of any kind on anyone other
than the employer. Certainly, there is no law we know of to support the notion
that anyone other than the employer can discharge an employee.” (Id. at p. 1315,
italics omitted and added.) Later cases have followed Weinbaum in reaching the
same conclusion. (See Khajavi v. Feather River Anesthesia Medical Group
(2000) 84 Cal.App.4th 32, 53; Phillips v. Gemini Moving Specialists (1998) 63
Cal.App.4th 563, 576; Jacobs v. Universal Development Corp. (1997) 53
Cal.App.4th 692, 703-704.)
Plaintiffs rely on Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, in which
the Court of Appeal concluded that supervisory employees can be held personally
liable under the Fair Employment and Housing Act (FEHA) for acts of retaliation.
We recently rejected that conclusion (Jones v. The Lodge at Torrey Pines
Partnership (2008) 42 Cal.4th 1158, 1173-1174), and in any case, the holding of
28

---

Walrath rested on the specific language of the retaliation provision of the FEHA,
which applies to “any employer, labor organization, employment agency, or
person.” (§ 12940, subd. (h), italics added.) We see no analogous justification for
imposing personal liability on supervisorial employees based on a common law
tort that depends on the existence of an employer-employee relationship between
the tortfeasor and the victim. We conclude therefore that the common law Tameny
cause of action for wrongful termination in violation of public policy lies only
against an employer.8
V
Plaintiffs allege defendants engaged in “outrageous conduct” that was
intended to, and did, cause plaintiffs “severe emotional distress,” giving rise to
common law causes of action for intentional infliction of emotional distress. The
alleged wrongful conduct, however, occurred at the worksite, in the normal course

8
One might argue that even if, strictly speaking, a Tameny action is
inappropriate against a supervisorial employee, we should nevertheless recognize
an analogous tort that applies to the conduct of supervisors. In other words, we
should hold that a supervisor who retaliates against a whistleblower violates a
general duty the law imposes on all supervisors and therefore commits a tort
separate from the tort he or she causes the employer to commit.

This argument does not, however, withstand careful analysis. The
supervisor, when taking retaliatory action against the employee, is necessarily
exercising authority the employer conferred on the supervisor, and it is only that
authority that makes the supervisor’s action injurious, not the action in itself. The
words “You are fired,” for example, have no legal significance if spoken by a
junior-level employee who has no role in hiring and firing decisions; it is only
when the speaker is in a position to exercise authority on behalf of the employer
that these words have significance. Thus, in a retaliation case, it is the employer’s
adverse employment action that constitutes the substance of the tort, and the
supervisor’s action merges with that of the employer. We could only hold that the
supervisor commits an independent tort if the supervisor’s action were somehow
by itself injurious, irrespective of the adverse employment action it causes the
employer to take, but that is not alleged here.
29

---

of the employer-employee relationship, and therefore workers’ compensation is
plaintiffs’ exclusive remedy for any injury that may have resulted. (Livitsanos v.
Superior Court (1992) 2 Cal.4th 744, 754; Shoemaker v. Myers (1990) 52 Cal.3d
1, 25; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)
Shoemaker v. Myers is of particular relevance here because it involved
termination of a whistleblower employee. We said: “To the extent plaintiff
purports to allege any distinct cause of action, not dependent upon the violation of
an express statute or violation of fundamental public policy, but rather directed at
the intentional, malicious aspects of defendants’ conduct . . . , then plaintiff has
alleged no more than the plaintiff in Cole v. Fair Oaks Fire Protection Dist. . . . .
The kinds of conduct at issue (e.g., discipline or criticism) are a normal part of the
employment relationship. Even if such conduct may be characterized as
intentional, unfair or outrageous, it is nevertheless covered by the workers’
compensation exclusivity provisions.” (Shoemaker v. Myers, supra, 52 Cal.3d at
p. 25.) We reaffirmed this holding in Livitsanos v. Superior Court, which also
involved a terminated employee: “So long as the basic conditions of
compensation are otherwise satisfied (Lab. Code, § 3600), and the employer’s
conduct neither contravenes fundamental public policy (Tameny . . . , supra, 27
Cal.3d 167) nor exceeds the risks inherent in the employment relationship (Cole
[v. Fair Oaks Fire Protection Dist.], supra, 43 Cal.3d 148), an employee’s
emotional distress injuries are subsumed under the exclusive remedy provisions of
workers’ compensation.” (Livitsanos v. Superior Court, supra, 2 Cal.4th at
p. 754.)
These holdings apply equally here. Nor are the exceptions stated in
Livitsanos v. Superior Court, supra, 2 Cal.4th at page 754, of any help to plaintiffs
here. The exception for conduct that “contravenes fundamental public policy” is
aimed at permitting a Tameny action to proceed despite the workers’
30

---

compensation exclusive remedy rule. As already discussed, however, plaintiffs’
Tameny action is barred by section 815. As to the exception for conduct that
“exceeds the risks inherent in the employment relationship,” it might seem at first
blush to apply here — based on the argument that whistleblower retaliation is not
a risk inherent in the employment relationship — but we rejected this same
argument in Shoemaker v. Myers, supra, 52 Cal.3d at page 25. Like plaintiffs
here, the plaintiff in Shoemaker alleged whistleblower retaliation and also a
Tameny cause of action, and although he incorporated these allegations as part of
his claim of intentional infliction of emotional distress, we held workers’
compensation to be his exclusive remedy and affirmed the trial court’s dismissal
of that cause of action. (Shoemaker v. Myers, supra, 52 Cal.3d at p. 26.) The
same holding applies here.
Accordingly, we conclude that plaintiffs’ causes of action for intentional
infliction of emotion distress are barred by the workers’ compensation exclusive
remedy provisions.
VI
We affirm the judgment of the Court of Appeal.
KENNARD,
J.
WE CONCUR:

BAXTER, J.
CHIN, J.
CORRIGAN, J.

31

---

CONCURRING OPINION BY WERDEGAR, J.
I agree with the majority that Government Code section 8547.10,
subdivision (c) must be read as precluding a whistleblower from bringing a
damages action against the University of California (University) when that person
has made an internal complaint to the University and the University has reached a
timely adverse decision finding its own actions did not constitute retaliation for a
protected disclosure in violation of Government Code section 8547.10.1 (Maj.
opn., ante, at p. 24.) Like the majority, I reach this conclusion because the statute
unambiguously states that a damages action following an internal complaint of
retaliation for whistle blowing is not available “unless . . . 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).)
I write separately because, unlike the majority, I do not find this result
“reasonable in light of the unique constitutional status of the University of
California.” (Maj. opn., ante, at p. 11.) To the contrary, this literal reading will
act powerfully to defeat the purposes of the Whistleblower Protection Act (§ 8547
et seq.) (the Act) with respect to University employees. As discussed below, I do
not believe the same Legislature that in section 8547.10 created a civil action for
damages on behalf of a whistleblower subjected to retaliation by the University

1
All further unspecified statutory references are to the Government Code.
1

---

“could reasonably have intended the University to resolve whistleblower
retaliation claims by way of its own internal procedures” (maj. opn., ante, at p. 24)
without any meaningful judicial review.
The decision we reach today, giving section 8547.10 its literal reading, will
strongly undermine the purposes of the Act, whose central purpose is explained in
section 8547.1: “The Legislature finds and declares 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.” For whistle blowing employees to be
confident they are protected against retaliation, they must have recourse to a fair
and impartial decisionmaking process outside the line management of their
employing agency or university. If the same government organization that has
tried to silence the reporting employee also sits in final judgment of the
employee’s retaliation claim, the law’s protection against retaliation is illusory.
The Legislature recognized and met the need for independent review by expressly
authorizing civil claims for retaliation by state agencies, the University of
California, and the California State University. (§§ 8547.8, 8547.10, 8547.12.)
Yet today’s decision eliminates meaningful independent review for University of
California employees.2 As a result, a University employee, knowing that any

2
Because the University’s process for resolving whistleblower retaliation
complaints does not include the right to an evidentiary hearing before a neutral
hearing officer, substantial-evidence review by petition for writ of administrative
mandate is not available. (See Code Civ. Proc., § 1094.5.) On petition for
ordinary mandate (id., § 1085), the agency decision is reviewed on the much laxer
and more limited arbitrary-and-capricious standard (Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2; Valnes v. Santa
Monica Rent Control Bd. (1990) 221 Cal.App.3d 1116, 1119), effectively
insulating University decisions so long as they are timely made under regular
procedures and are not facially irrational.
2

---

complaint of retaliation will be decided by the University itself, will be unable to
act “without fear of retribution.” (§ 8547.1.) The legislative goal will be defeated,
as University employees will have less reason to be “candid and honest without
reservation in conducting the people’s business.” (Ibid.)
As noted, the majority finds this result consistent with legislative intent
because of the University’s significant autonomy in running its internal affairs.
Had the Legislature simply exempted the University from the Act’s strictures,
I might agree. But it did not. By bringing the University under the Act’s
prohibitions on retaliation and providing University employees, like employees
with state agencies, a civil damages action for retaliation, the Legislature made
clear its view that “waste, fraud, abuse of authority, violation of law, or threat to
public health” (§ 8547.1) in public education, as in other areas of government, are
matters of vital concern to all the people of California — even when they occur at
the University. The problems addressed by the Act, the Legislature manifestly
believed, go beyond the internal affairs of the University and affect the public
generally. Consequently, the Legislature intended its policy to protect University
whistleblowers as well as those employed in other parts of state government.
The Act does recognize the University’s administrative autonomy to the
extent of permitting it to set its own procedures and timelines for the internal
investigation of whistleblower complaints. (§ 8547.10, subds. (a), (c).) But at the
same time the Legislature expressly permitted a civil damages action — and
authorized criminal liability — against University managers and officials for their
retaliation against whistleblowers. (Id., subds. (b), (c).) The court’s reading of the
Act, making the University the judge of its own civil liability and leaving its
employees vulnerable to retaliation for reporting abuses, thwarts the demonstrated
legislative intent to protect those employees and thereby encourage candid
reporting.
3

---

The literal reading of section 8547.10 we adopt today borders on the
absurd, bringing into possible play the principle that language of a statute should
not be given a literal meaning if doing so would result in absurd consequences the
Legislature did not intend. (Commission on Peace Officer Standards & Training
v. Superior Court (2007) 42 Cal.4th 278, 290.) But when, as here, the statutory
language is clear and unambiguous, to invoke this principle is to assert, in effect,
that the language can be corrected on the ground it resulted from a drafting error.
Courts should use this power to rewrite statutes “with great restraint,” only where
“the error is clear and correction will best carry out the intent of the Legislature.”
(Bonner v. County of San Diego (2006) 139 Cal.App.4th 1336, 1346, fn. 9.) In the
present case, I cannot be sure the language of section 8547.10, subdivision (c)
resulted from a drafting error. While the language is clearly contrary to the overall
purposes of the Act, its inclusion may have been the product of conceptual
confusion or failure to fully consider the problem rather than an error in the
drafting process itself.
As the majority explains, the legislative history of former section 10548,
the predecessor to section 8547.8, can be read to suggest that when originally
applied to state agency employees the presently disputed language was not
intended to create a mere administrative-remedies exhaustion requirement, but to
bar a subsequent civil damages action in all cases in which the State Personnel
Board reached a timely decision. (Maj. opn., ante, at pp. 13-15.) And the
legislative history contains no indication that language was intended to operate
differently when included in former section 10550, enacted in 1988 to extend
4

---

protections to University employees. (Maj. opn., ante, at pp. 15-16.)3 For this
reason, I cannot confidently conclude the disputed language was originally the
result of drafting error.
In 2001, the Legislature amended section 8547.8 so as to clearly impose
only an exhaustion requirement: a damages action by a state agency employee is
now authorized when the State Personnel Board “has issued” timely findings as
well as when it has “failed to issue” such findings. (See maj. opn., ante, at p. 17.)
The Legislature’s failure to similarly amend section 8547.10 at the same time
appears to have been an oversight. The amendment to section 8547.8 was
proposed and drafted by an attorney for the California State Employees
Association, an organization that represents state agency employees but not
employees of the University. Nowhere in the transcript of the February 2001
hearing of the Senate Select Committee on Government Oversight at which the
amendment was first proposed, or in the correspondence between the California
State Employees Association and the committee chair that led directly to the
amendment of section 8547.8, does any mention appear of section 8547.10 or of
University employees, much less any indication of a desire to defer to the

3
In using parallel language for the new statute, the Legislature may have
overlooked the fact that in former section 10548 the language applied to State
Personnel Board findings made after a hearing (see maj. opn., ante, at p. 14),
whereas the new statute, former section 10550, did not require the University to
hold hearings on whistleblower retaliation complaints. The difference is
important, because adverse State Personnel Board findings after an evidentiary
hearing were presumably reviewable for substantial evidence, while University
findings were not. (Maj. opn., ante, at p. 15; see fn. 2, ante.)
5

---

University’s constitutional autonomy.4 Unlike the majority (see maj. opn., ante, at
p. 21), therefore, I see nothing significant in the Legislature’s failure to amend
section 8547.10 at the same time as section 8547.8.
While I therefore suspect the current text of section 8547.10 is the result of
oversight, I cannot be sure. That the Legislature would have amended section
8547.10 at the same time as section 8547.8 had it been brought to its attention
appears likely, but not certain. As the majority notes (maj. opn., ante, at p. 22),
since 2001 the problematic language of section 8547.10 has been brought before
the Legislature, with no action thus far having been taken. In any event, that the
Legislature should — logically — have amended section 8547.10 when it
amended section 8547.8 is not a sufficient warrant for us to read the section as if it
had been amended. While the court may correct drafting errors, for us to reverse a
legislative failure to act — absent certainty that the failure was inadvertent and not
a legislative choice, however ill-advised — would overstep our proper bounds.
In sum, we cannot know whether the Legislature intended section 8547.10,
subdivision (c) to state only an administrative exhaustion requirement or to
preclude a damages action as well, when the University timely denies a
whistleblower’s retaliation claim. The latter interpretation accords with the
statute’s unambiguous language but is contrary to the overall purposes and
structure of the Act. I urge the Legislature to revisit this statute and if, as I

4
Indeed, nowhere in any of the statutory and legislative history I have
reviewed is there any suggestion the Legislature intentionally distinguished the
University from state agencies with respect to protection of whistleblowers against
retaliation, because of the University’s relative autonomy over its internal affairs.
That the Legislature had such a distinction in mind is simply the majority’s
invention.
6

---

suspect, it intended to create only a requirement that complainants exhaust their
internal remedies, to amend the statute in a manner that makes that intent clear.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
MORENO, J.
7

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Miklosy v. Regents of University of California
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 10/27/05 – 1st Dist., Div. 4
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S139133
Date Filed: July 31, 2008
__________________________________________________________________________________

Court:

Superior
County: Alameda
Judge: John Frederick Kraetzer

__________________________________________________________________________________

Attorneys for Appellant:

Gwilliam, Ivary, Chiosso, Cavalli & Brewer, J. Gary Gwilliam; Law Offices of Jan C. Nielsen and Jan C.
Nielsen for Plaintiffs and Appellants.

Loraine V. Johnson as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kerr & Wagstaffe, Michael von Loewenfeldt and Michael K. Ng for Project on Government Oversight as
Amicus Curiae on behalf of Plaintiffs and Appellants.

Joel Golden for Dr. Larry M. Brand as Amicus Curiae on behalf of Plaintiffs and Appellants.

Ross, Dixon & Bell and Jon R. Williams for Whistlebusters.org as Amicus Curiae on behalf of Plaintiffs
and Appellants.

Loulena Miles for Tri-Valley CAREs as Amicus Curiae on behalf of Plaintiffs and Appellants.

Beeson, Tayer & Bodine and Dale L. Brodsky for Society of Professionals, Scientists, and Engineers, Local
11 and University Professional and Technical Employees, CWA Local 9119, AFL-CIO as Amici Curiae on
behalf of Plaintiffs and Appellants.


__________________________________________________________________________________

Attorneys for Respondent:

Reed Smith, Paul D. Fogel, Dennis Peter Maio; Melissa M. Allain, Janet G. Tulk, Gabriela B. Odell, Max
A. Creamer; Jeffrey A. Blair; Hanson Bridgett Marcus Vlahos & Rudy, Patrick M. Glenn, Sandra K.
Rappaport and Sarah D. Mott for Defendants and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Gary Gwilliam
Gwilliam, Ivary, Chiosso, Cavalli & Brewer
1999 Harrison Street, Suite 1600
Oakland, CA 94612-3528
(510) 832-5411

Paul D. Fogel
Reed Smith
Two Embarcadero Center, Suite 2000
San Francisco, CA 94111-3922
(415) 543-8700

---

Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case includes the following issue: Does the requirement of the Whistleblower Protection Act (Gov. Code, sections 8547-8547.12) that an employee of the University of California have "filed a complaint with the [designated] university officer" and that the university have "failed to reach a decision regarding that complaint within [specified] time limits" before an action for damages can be brought (? 8547.10, subd. (c)) merely require the exhaustion of the internal remedy as a condition of bringing the action, or does it bar an action for damages if the university timely renders any decision on the complaint?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 07/31/2008	44 Cal. 4th 876, 188 P.3d 629, 80 Cal. Rptr. 3d 690	S139133	Review - Civil Appeal	closed; remittitur issued

Disposition
Jul 31 2008	Opinion: Affirmed

Dockets
Nov 28 2005	Request for publication filed (initial case entry)   by counsel for resps. (Regents of the Univ. of Calf., et al.) CA1/4 recommends denial of the request)
Dec 6 2005	Petition for review filed   Les Miklosy and Luciana Messina, appellants. J. Gary Gwilliam, Gwilliam Ivary Chiosso et al, retained counsel.
Dec 7 2005	Note:   $590 filing fee check received.
Dec 19 2005	Record requested
Dec 19 2005	Received Court of Appeal record   one accordion, one manila, loose briefs, exhibits (one volume)
Dec 27 2005	Answer to petition for review filed   Regents of the University of California, et al., respondents. Patrick M. Glenn, Hanson Bridgett et al, retained counsel.
Dec 27 2005	Change of contact information filed for:   Hanson Bridgett et al, counsel for respondents (Regents) {Holding for original to be returned with signature on proof of service)
Jan 4 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Werdegar, and Moreno, JJ.
Jan 13 2006	Certification of interested entities or persons filed   Les Miklosy, Luciana Messina, plaintiffs and appellants J. Gary Gwilliam, counsel
Jan 13 2006	Request for extension of time filed   for appellants to file the opening brief on the merits, to 4-4-06
Jan 17 2006	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file Appellants' Opening Brief on teh Merits is extended to and including April 4, 20026.
Jan 19 2006	Certification of interested entities or persons filed   U. C. Regents of the University of California, Kim Minuzzo, Larry Lagin, and Jerry Kramen, respondents. Patrick M. Glenn, Hanson Bridget Marcus et al., counsel of record
Feb 1 2006	Association of attorneys filed for:   Paul Fogel, Counsel
Mar 28 2006	Request for extension of time filed   to 5-4-2006 to file Appellants' Opening Brief on the Merits.
Mar 30 2006	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file Appellants' Opening Brief on the Merits is extended to and including May 4, 2006.
May 1 2006	Association of attorneys filed for:   Jan C. Nielsen with Gwilliam, Ivary et al. as counsel for Appellants Les Miklosy and Luciana Messina
May 3 2006	Opening brief on the merits filed   Appellants Les Miklosy and Luciana Messina
May 11 2006	Filed:   Appellants' Application to Append Appellants' Appendix (1 vol.) to Opening Brief on the Merits
May 17 2006	Request for extension of time filed   respondents requesting a 60-day extension to and including August 1, 2006 to file respondent's answer brief on the merits. The Regents of the University of California et al., Paul D. Fogel, counsel
May 18 2006	Opposition filed   To Appellant's Application to Append to Opening Bief on the Merits The Regents of the University of California et al., Respondents by Paul Fogel, counsel
May 22 2006	Extension of time granted   To August 1, 2006 to file respondents's answer brief on the merits.
May 24 2006	Received:   Appellants' reply to the Regents' opposition to application to append to opening brief on merits
May 26 2006	Order filed   Appellants' Application to File Appendix to Opening Brief on the Merits is hereby denied without prejudice to a motion to augment (Cal. Rules of Court, rule 12) and/or a motion for judicial notice (id., rules 22(a), 29.1(a).
Jun 2 2006	Request for judicial notice filed (granted case)   Appellants' "Motion to Augment Record on Appeal and/or for Judicial Notice"
Jun 6 2006	Supplemental brief filed   Appellants' supplemental brief on new authorities by Jan C. Nielsen, counsel
Jun 9 2006	Opposition filed   Respondents' Partial Opposition to Motion to Augment and/or for Judicial Notice
Jun 28 2006	Order filed   Appellants' "Motion to Augment Record on Appeal and/or for Judicial Notice," filed in this court on June 2, 2006, is granted in part. The court takes judicial notice of Senate Bill 165 (2005-2006 Reg. Sess.) as amended in the Senate January 4, 2006. In all other respects, the motion is denied.
Jul 27 2006	Answer brief on the merits filed   Regents of the University of California et al, respondents, by Dennis Peter Maio and Paul D. Fogel of Reed Smith LLP, retained.
Jul 27 2006	Request for judicial notice filed (granted case)   Respondents Regents of the University of California et al. (3 vols.)
Aug 1 2006	Request for extension of time filed   to October 16, 2006 (61 days) to file Appellants' Reply Brief on the Merits
Aug 4 2006	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including October 16, 2006.
Oct 11 2006	Request for extension of time filed   to November 15, 2006 to file appellants' reply brief on the merits.
Oct 13 2006	Extension of time granted   On application of appellants and good cause appeairng, it is ordered that the time to serve and file Appellants' Reply Brief on the Merits is extended to and including November 15, 2006.
Nov 15 2006	Received:   (oversize) reply brief on the merits and application for permission Les Miklosy and Luciana Messina, plaintiffs and appellants
Nov 15 2006	Reply brief filed (case fully briefed)   Les Miklosy & Luciana Messina, plaintiffs and appellants J. Gary Gwilliam, Jan Nielsen, counsel (oversized brief filed with permission)
Nov 15 2006	Request for judicial notice filed (granted case)   Miklosy and Messina, plaintiffs and appellants
Nov 27 2006	Filed:   Respondents' Response to Motion for Judicial Notice
Dec 13 2006	Request for extension of time to file amicus curiae brief   by Society of Professionals, Scientists, and Engineers, Local 11, Univiersity Professional and Technical Employees, CWA Local 9119, AFL-CIO, in support of appellants, for a 21-day extension of time, to and including January 5, 2007.
Dec 14 2006	Received application to file Amicus Curiae Brief   Dr. Larry M. Brand in support of appellants (Miklosy et al.) by Joel Golden, retained counsel
Dec 15 2006	Received application to file Amicus Curiae Brief   Tri-Valley Care in support of appellants (Miklosy et al.)
Dec 15 2006	Received application to file Amicus Curiae Brief   Project on Government Oversight in support of appellants (Gentry) by Michael von Loewenfeldt and Michael K. Ng of Kerr & Wagstaffe LLP
Dec 15 2006	Received application to file Amicus Curiae Brief   Loraine v. Johnson in support of appellants by Loraine V. Johnson, Esq.
Dec 18 2006	Extension of time granted   The application for an extension of time of Amicus Curiae Society of Professionals, Scientists, and Engineers, Local 11, University Professional and Technical Employees, CWA Local 9119, AFL-CIO to file the Application for Leave to File an Amicus Curiae Brief and Proposed Amicus Curiae Brief in Support of Appellants, is hereby granted to and including January 5, 2007.
Dec 18 2006	Received application to file Amicus Curiae Brief   Whistlebusters.Org in support of appellants by Jon R. Williams of Ross, Dixon & Bell, LLP. Request for Judicial Notice received separately.
Dec 26 2006	Permission to file amicus curiae brief granted   The application of Loraine V. Johnson for permission to file an amicus curiae brief in suport of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 26 2006	Amicus curiae brief filed   Loraine v. Johnson in support of appellants.
Dec 26 2006	Permission to file amicus curiae brief granted   The application of Project Government Oversight for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 26 2006	Amicus curiae brief filed   Project on Government Oversight in support of appellants
Dec 26 2006	Permission to file amicus curiae brief granted   The application of Tri-Valley Cares for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 26 2006	Amicus curiae brief filed   Tri-Valley Cares in support of appellants.
Dec 26 2006	Permission to file amicus curiae brief granted   The application of Whistlebusters.org for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 26 2006	Amicus curiae brief filed   Whistlebusters.org in support of appellants
Dec 26 2006	Permission to file amicus curiae brief granted   The application of Dr. Larry M. Brand for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 26 2006	Amicus curiae brief filed   Dr. Larry M. Brand in support of appellants.
Dec 26 2006	Request for judicial notice filed (granted case)   by Amicus Loraine V. Johnson.
Jan 5 2007	Received application to file Amicus Curiae Brief   Society of Professionals, Scientists and Engineers, Local 11, University Professional and Technical Employees, CWA Local 9119, AFL-CIO in support of appellants Dale Brodsky, counsel application & brief under same cover
Jan 9 2007	Permission to file amicus curiae brief granted   The application of Society of Professionals, Scientists, and Engineers, Local 11, University Professional and Technical Employees, CWQ Local 9119, AFL-CIO for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 9 2007	Amicus curiae brief filed   Society of Professionals, Scientists, and Engineers, Local 11, University Professional and Technical Employees, CWA Local 9119, AFL-CIO in support of appellants.
Jan 12 2007	Request for extension of time filed   to and including February 14, 2007, to file respondents' answers to amicus curiae briefs
Jan 17 2007	Extension of time granted   On application of respondents and good cause appearing, it is ordered that the time to serve and file answers to amicus curiae briefs is extended to and including February 14, 2007.
Feb 9 2007	Response to amicus curiae brief filed   respondents' "Consolidated Answer to Amicus Curiae Briefs" by Paul D. Fogel and Dennis Peter Maio of Reed Smith LLP
Feb 9 2007	Opposition filed   Respondents' Consolidated Opposition to Requests for Judicial Notice of Amici Curiae Whistlebusters.org and Loraine V. Johnson by Paul D. Fogel and Dennis Peter Maio of Reed Smith LLP
May 30 2007	Supplemental brief filed   Respondents The Regents of the University of California et al. by Paul D. Fogel of Reed Smith, LLP
Jun 6 2007	Supplemental brief filed   Les lG. Miklosy and Luciana Messina, appellants by Jan C. Nielsen, counsel
Sep 7 2007	Received:   Letter dated 9-6-2007 from Paul D. Fogel, ReedSmith, asking the Court not to place the matter on the December, 2007 calendar and the January, 2008 calendar (out-of-country trip)
Sep 13 2007	Received:   Letter dated 9-11-2007 from J. Gary Gwilliam, Gwilliam Ivary Chiosso et al., advising that he will also be out of the country from January 10, 2008 until approximately February 8, 2008.
Feb 29 2008	Received:   Appellants' Second Supplemental Brief on New Authorities by Jan C. Nielsen, counsel.
Mar 6 2008	Received:   Respondents' Second Supplemental Brief on New Authorities by Paul D. Fogel, Reed Smith LLP, counsel
Mar 26 2008	Received:   Letter dated March 25, 2008 from Paul D. Fogel, requesting that the Court not place the matter on its May or June 2008 calendars. He will be out of the country from May 21 through June 5, 2008.
Apr 9 2008	Case ordered on calendar   to be argued on Tuesday, May 6, 2008, at 9:00 a.m. in San Francisco
Apr 22 2008	Order filed   Appellants' request to postpone oral argument, filed April 21, 2008, is denied.
Apr 28 2008	Order filed   Respondents' request for judicial notice, filed July 27, 2006 and appellants' request for judicial notice, filed November 15, 2006 are granted. Amicus Loraine Johnson and amicus Whistlebusters.org's requests for judicial notice are denied.
May 6 2008	Cause argued and submitted
May 7 2008	Note: Mail returned and re-sent   to Attorney Loraine Sean Velasco
May 13 2008	Note: Mail returned and re-sent   to Attorney Loraine Sean Johnson at her home address per telephone conversation this date. Address noted herein.
Jun 4 2008	Note: Mail returned and re-sent   Max Andrew Creamer at the address appearing on the State Bar's website.
Jul 30 2008	Notice of forthcoming opinion posted
Jul 31 2008	Opinion filed: Judgment affirmed in full   Court of Appeal Judgment. Opinion by Kennard, J. -- joined by Baxter, Chin, Corrigan, JJ Concurring Opinion by Werdegar, J. -- joined by George, C.J. and Moreno, J.
Sep 2 2008	Remittitur issued (civil case)
Sep 2 2008	Received:   Acknowledgment of receipt of remittitur signed for by Channing Hoo, Deputy Clerk, First Appellate District, Division Four.

Briefs
May 3 2006	Opening brief on the merits filed
Jul 27 2006	Answer brief on the merits filed
Nov 15 2006	Reply brief filed (case fully briefed)
Dec 26 2006	Amicus curiae brief filed
Dec 26 2006	Amicus curiae brief filed
Dec 26 2006	Amicus curiae brief filed
Dec 26 2006	Amicus curiae brief filed
Dec 26 2006	Amicus curiae brief filed
Jan 9 2007	Amicus curiae brief filed
Feb 9 2007	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Dec 3, 2008 Annotated by diana teasland

Written by Beverly Moore CASE SUMMARY: Two former employees sued the University of California and three supervisory employees. The employees alleged, among other claims, unlawful retaliation in violation of the California Whistleblower Protection Act (Gov. Code, Section 8547 et seq.). The trial court sustained defendants’ demurrer without leave to amend and dismissed the action. The Court of Appeal affirmed the dismissal. The California Supreme Court affirmed the judgment of the Court of Appeal and concluded that Gov. Code, Section 8547.10, subdivision (c), precluded plaintiffs' damages action against the University of California because the University had timely decided plaintiffs' retaliation complaint. A civil action for damages against the University under section 8547.10, subdivision (c), is available only when an employee has first filed a complaint with the University and the University has failed to reach a timely decision on the complaint. The legislature did not intend the University’s internal proceeding to be simply an exhaustion requirement. Rather, given the unique constitutional status of the University, the legislature could reasonably have intended the University to resolve whistleblower retaliation claims by way of its own internal procedures, reserving the alternative remedy of a damages action only for those instances when the University fails to complete its process in a timely manner. With respect to plaintiffs' common law claims of wrongful termination in violation of public policy, the court found no justification for imposing personal liability on defendant supervisory employees. Plaintiffs' causes of action for intentional infliction of emotional distress were barred by the workers' compensation exclusive remedy provisions. The alleged wrongful conduct occurred at the worksite, in the normal course of the employer-employee relationship. ANALYSIS: I disagree with the Court’s ruling in this case. Although I am respectful of the weight the Court attributed to strict statutory interpretation, this ruling will undoubtedly undermine the California Whistleblower Protection Act and decrease the motivation of UC employees to come forward about offenses. Whistleblowers have historically made valuable contributions to the ethical and efficient operation of government, uncovering misdeeds such as improper subsidy payments and identifying abuses of power. Whistleblower “protection” in which the same governmental body that has tried to quash the complaints of employees who choose to report offenses is also the body that unilaterally determines the final judgment of the employee’s retaliation claim affords little meaningful protection. I would favor urging the California Legislature to revise Section 8547.10(c) of the statute to allow UC whistleblower employees, like other California state employees, to seek retaliation damages as long as they have exhausted internal UC remedies.