IN THE SUPREME COURT OF CALIFORNIA
STATE BOARD OF CHIROPRACTIC
EXAMINERS et al.,
Petitioners,
S151705
v.
) Ct.App.
3
C052554
THE SUPERIOR COURT OF
SACRAMENTO COUNTY,
Sacramento County
Super. Ct. No. 03AS00948
Respondent;
___________________________________ )
)
CAROLE M. ARBUCKLE,
Real Party in Interest.
The Legislature enacted the California Whistleblower Protection Act (Gov.
Code, § 8547 et seq.)1 (the Act) to protect the right of state employees “to report
waste, fraud, abuse of authority, violation of law, or threat to public health without
fear of retribution.” (§ 8547.1.) In adopting the Act, the Legislature expressly
found “that public servants best serve the citizenry when they can be candid and
honest without reservation in conducting the people’s business.” (Ibid.)
Therefore, the Act authorizes a state employee who is the victim of whistleblower
1
All further statutory references are to the Government Code unless
otherwise indicated.
1
retaliation to bring “an action for damages” in superior court (§ 8547.8, subd. (c),
hereafter section 8547.8(c)) and to recover, if appropriate, punitive damages and
attorney fees (ibid.), but the employee must “first file[] a complaint with the State
Personnel Board . . . , and the board [must] . . . issue[], or fail[] to issue, findings
pursuant to Section 19683” (ibid., italics added).
Here, the employee filed a complaint with the State Personnel Board, and
the board issued adverse findings. The Court of Appeal held that the employee
had to succeed in having those adverse findings set aside before she could proceed
with her court action for damages under section 8547.8(c), because otherwise the
adverse findings would be binding in the damages action, precluding recovery.
Because this holding undermines the Act’s purpose of protecting whistleblower
employees by assuring them the procedural guarantees and independent fact-
finding of a superior court damages action, we reverse.
I
A. Factual Background
State employee Carole M. Arbuckle alleged the following.
She was hired as an office assistant by the State Board of Chiropractic
Examiners (SBCE) and was eventually promoted to management services
technician. At the SBCE, which issues licenses to chiropractors practicing in the
state, Arbuckle’s duties related to “cashiering and license renewal,” although she
was also involved in issuing citations for unlicensed practice. On May 11, 2001,
she received a telephonic inquiry from an outside caller concerning the license
status of Dr. Sharon Ufberg, the chairperson of the SCBE. She verified for this
caller that Dr. Ufberg’s license had expired several months earlier. Fifteen
minutes later, Dr. Ufberg contacted her, saying she forgot to pay her renewal fee.
Later that day, Dr. Ufberg paid the fee. Because the license had been invalid from
2
January 1, 2001, through May 11, 2001, for failure to pay the renewal fee,
Arbuckle noted that fact on an “information line” in the computer database.
During the next few months, she issued numerous citations to other individuals for
practicing under expired licenses, but when she inquired several times about
issuing a citation to Dr. Ufberg, Jeanine R. Smith, the executive director of the
SCBE, told her not to issue the citation.
In the wake of these events, Arbuckle confronted a stressful work
environment, including numerous indignities, disputes, and acts of favoritism.
Some of these incidents were minor in themselves, but together they constituted a
breakdown of trust and cooperation in the workplace, and in particular a
breakdown in the relationship between her and the SBCE’s executive director,
Jeanine Smith. Among other things, SBCE managers changed Arbuckle’s duties,
denied her requests for a modified work schedule and a light-duty assignment,
cancelled her alternative work schedule, and transferred her to a different unit.
B. Administrative and Judicial Proceedings
On July 23, 2002, Arbuckle filed a complaint with the State Personnel
Board, alleging whistleblower retaliation in violation of the Act. The board’s
executive officer conducted an investigation in accordance with board regulations,
during which each side submitted detailed documentary evidence and written
argument. Arbuckle, for example, submitted approximately 360 pages of
documents in support of her complaint.
On January 24, 2003, the executive officer of the State Personnel Board
issued a 16-page “Notice of Findings,” recommending dismissal of Arbuckle’s
complaint. The executive officer concluded that some of the alleged
whistleblower activity did not constitute “[p]rotected disclosure[s]” of “[i]mproper
governmental activit[ies]” as those terms are used in the Act. (§ 8547.2, subds.
3
(b), (d).) The executive officer further determined that some of the alleged acts of
retaliation were not sufficiently adverse to constitute violations of the Act. In
regard to the few remaining allegations, the executive officer found an insufficient
showing of a nexus between Arbuckle’s protected disclosure and the adverse
employment actions the SBCE had taken against Arbuckle. The executive officer
found persuasive the SBCE’s evidence that the actions it had taken against
Arbuckle were for reasons unrelated to Arbuckle’s protected disclosures.
Under the regulations of the State Personnel Board that were then in effect
(Cal. Code Regs., tit. 2, §§ 56-56.8, as adopted Register 2002, No. 34 (Aug. 23,
2002) p. 1712,2 hereafter 2002 Regulations), a complaining employee who
received adverse findings from the board’s executive officer could file a petition
for a hearing before the board. (2002 Regs., § 56.3, subd. (a).) The board could
deny such a petition and adopt the findings of its executive officer (id., § 56.3,
subd. (f)), or it could grant the petition and assign the matter to an administrative
law judge (ALJ) for a hearing (id., § 56.3, subd. (g)). Here, the executive officer’s
findings expressly informed Arbuckle of her right to petition the board for this
hearing before an ALJ: “Either party has the right to file a petition for hearing
with the five-member State Personnel Board . . . . Any petition for hearing must
be filed no later than 30 days following service of this Notice of Findings. If no
party files a petition for hearing within 30 days . . . , this recommendation shall
become the final decision of the State Personnel Board.”
Arbuckle did not exercise this right. Instead, on February 21, 2003, she
filed a damages action in superior court against the SBCE and its executive
2
The text of the 2002 Regulations is posted online at
<http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=2790> (as of Feb. 26,
2009).
4
director, Jeanine Smith, claiming whistleblower retaliation in violation of
Government Code section 8547.8. Arbuckle included a cause of action under
Labor Code section 1102.5, which prohibits retaliation against an employee who
reports a violation of state or federal law, and she also included a tort cause of
action for violation of public policy (see Tameny v. Atlantic Richfield Co. (1980)
27 Cal.3d 167). The trial court sustained defendants’ demurrer to the Tameny
claim, and that issue is not before us. Defendants moved for summary judgment
with regard to the remaining causes of action, arguing that Arbuckle had failed to
exhaust her administrative and judicial remedies. The trial court denied the
motion, but the Court of Appeal issued an alternative writ and stayed the
proceedings in the trial court.
The Court of Appeal held that Arbuckle had failed to exhaust both
administrative and judicial remedies. The court stated that exhaustion of
administrative and judicial remedies in this case required more than merely filing a
complaint with the State Personnel Board and receiving the findings of its
executive officer; Arbuckle also needed to complete the administrative process by
petitioning the board for a hearing before an ALJ, and if this hearing request was
denied, she then needed to seek a writ of mandate from the courts in an effort to
have the board’s findings set aside. The Court of Appeal concluded that Arbuckle,
by failing to take these steps, had in effect conceded her right to judicial review of
the State Personnel Board findings, and the findings therefore had the same legal
significance as a final judgment of a reviewing court. On that basis, the Court of
Appeal held that the executive officer’s specific finding that no retaliation
occurred was binding in Arbuckle’s later civil action, and the trial court therefore
should have granted defendants’ motion for summary judgment as to all causes of
action.
5
The Court of Appeal issued a writ of mandate, ordering the trial court to
grant summary judgment in favor of defendants. We granted Arbuckle’s petition
for review.
II
Section 8547.8(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 this provision includes an important 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 issued, or failed to issue, findings pursuant to Section 19683.” (§ 8547.8(c),
italics added.) Section 8547.8(c) refers only to the issuance of “findings,” nothing
more. On its face, it does not require the complaining employee to petition the
State Personnel Board for a hearing before an ALJ, nor does it require the
employee to seek writ review of the board’s findings. Section 8547.8(c) also
makes express reference to section 19683, thereby clarifying the precise type of
findings that satisfy the caveat.
Section 19683, subdivision (a), provides: “The State Personnel Board shall
initiate a hearing or investigation of a written complaint of reprisal or
retaliation . . . within 10 working days of its submission. The executive officer
shall complete findings of the hearing or investigation within 60 working days
thereafter . . . .” (Italics added.) This provision clearly uses the term “findings” to
refer to the initial decision of the board’s executive officer (issued within 70 days
of the filing of the complaint), and therefore section 8547.8(c)’s express cross-
reference to section 19683 indicates that this initial decision constitutes the
“findings” that satisfy section 8547.8(c).
6
In summary, the plain meaning of the statutory language supports
Arbuckle’s argument that there was no legal impediment to her filing an action in
the superior court immediately after receiving the State Personnel Board’s adverse
findings. The Court of Appeal, however, read into the statutory scheme the
requirements that the complaining employee petition the board for a hearing
before an ALJ and then, if unsuccessful, seek a writ of administrative mandate in
superior court to set aside adverse findings.
A. Exhaustion of Administrative Remedies
Nothing in section 19683 indicates that complaining employees must
request a hearing before an ALJ after receiving adverse findings from the State
Personnel Board. Moreover, this omission is significant in that subdivision (b) of
section 19683 expressly authorizes “the supervisor, manager, employee, or
appointing power” to request a hearing before the State Personnel Board regarding
any finding sustaining the allegation of whistleblower retaliation. Therefore, if
one looks only at the statutory provisions, a complaining employee has no option
to petition the board for a hearing after receiving the executive officer’s adverse
findings; rather, the statute extends that option only to the responding party.
Nevertheless, at the time Arbuckle filed her complaint with the State
Personnel Board, its regulations permitted the complaining party to seek a hearing
before the board to challenge adverse findings. Section 56.2, subdivision (m), of
the 2002 Regulations stated: “The Notice of Findings shall inform each named
party of his or her respective right to file a Petition for Hearing Before the Board,
pursuant to the provisions of Section 56.3 [complainant] and/or 56.4
[respondents].” (Italics added.) Section 56.3 of the 2002 Regulations provided in
relevant part: “(a) If the Notice of Findings concludes no retaliation occurred, the
complainant may file a Petition for Hearing before the Board. [¶] . . . [¶] (f) If
7
the Petition for Hearing is denied, the Board shall issue a Decision that adopts the
findings of the Executive Officer as its own decision in the matter. [¶] (g) If the
Petition for Hearing is granted by the Board, the Board shall issue a resolution
rejecting the findings of the Executive Officer and assign the matter to an
administrative law judge, who shall conduct an evidentiary hearing . . . .” (Italics
added.)
Therefore, under the State Personnel Board’s regulations, Arbuckle could
have petitioned the board for a hearing before an ALJ after receiving the board’s
adverse findings, and the board might have granted such a hearing and revised its
findings in Arbuckle’s favor. But because the board’s regulations cannot amend
the statutory scheme, we have no basis for concluding that the Legislature
intended this additional administrative remedy to be a mandatory step that
employees must pursue before bringing a civil damages action.
In explaining its holding, the Court of Appeal stated: “[I]t is not usually
enough to invoke an administrative forum, a claimant must pursue the matter
through all extant administrative review procedures,” thereby completing the
administrative process. We agree that exhausting all possibilities for relief at the
administrative level is generally a prerequisite to obtaining judicial review of
administrative findings. (Coachella Valley Mosquito & Vector Control Dist. v.
California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) But
section 8547.8(c) lacks language making this administrative exhaustion a
prerequisite to bringing the specific type of damages action permitted under that
provision. Section 8547.8(c) authorizes, not an action to review the decision of the
State Personnel Board, but a completely separate damages action in the superior
court in which the employee will enjoy all the procedural guarantees and
independent factfinding that generally accompany such actions. Exhaustion of
every possible stage of an administrative process is not particularly necessary
8
where the civil action that the Legislature has authorized is not one to review the
administrative decision, but rather a completely independent remedy. Here, the
only prerequisite to bringing suit that the statute mentions is the issuance of (or
failure to issue) “findings pursuant to Section 19683,” which occurred when the
board’s executive officer issued the “Notice of Findings” on January 24, 2003.
Moreover, this asymmetry regarding the administrative remedies the statute
extends to a complaining employee as compared to those it extends to a
responding party makes sense in light of the overall statutory scheme. The
employee is not bound by the State Personnel Board’s decision, and therefore the
Legislature gave the employee no statutory right to pursue an intra-agency appeal
of the executive officer’s findings. The Legislature, however, gave the board
significant authority to take action against a retaliating party, including ordering
specific relief and awarding compensatory damages. Therefore, to protect that
party’s rights, the Legislature authorized an intra-agency appeal available to that
party only. (Gov. Code, § 19683, subd. (b).)
We therefore conclude, contrary to the Court of Appeal’s holding, that
Arbuckle was not required to seek an ALJ hearing before bringing a civil damages
action in superior court. Instead, it sufficed for Arbuckle to receive the findings of
the board’s executive officer.
It is true that the Notice of Findings at issue here concluded with only a
recommendation, not a final determination of the State Personnel Board. The
Notice of Findings stated: “Based upon the foregoing findings and conclusions of
law, and the entire record in this case, it is hereby recommended that: [¶] The
Complaint . . . be dismissed and that [Arbuckle’s] request [for disciplinary action]
be denied.” (Italics added.) Nevertheless, the same findings also stated: “If no
party files a petition for hearing within 30 days following service of this Notice of
Findings, this recommendation shall become the final decision of the State
9
Personnel Board.” (Italics added.) This latter statement was in accord with the
board’s regulations, which provided: “If no Petition for Hearing is received . . . ,
the Notice of Findings [issued by the executive officer] shall be deemed to be the
Board’s final Decision in the matter . . . .” (2002 Regs., § 56.5.) Thus, by
operation of the board’s regulations, the executive officer’s “recommended”
findings became the board’s “final [d]ecision,” and section 8547.8(c) requires no
more.
B. Exhaustion of Judicial Remedies
Not only did the Court of Appeal require Arbuckle to petition the State
Personnel Board for a hearing before an ALJ to challenge the board’s adverse
findings, but it also required her to exhaust judicial remedies by filing a petition
for a writ of mandate under Code of Civil Procedure section 1094.5, challenging
the board’s adverse findings and succeeding in having the superior court set those
findings aside. Only then, the Court of Appeal held, could Arbuckle pursue a civil
damages action in superior court.
A petition for a writ of administrative mandate under Code of Civil
Procedure section 1094.5 may be brought only “for the purpose of inquiring into
the validity of any final administrative order or decision made as the result of a
proceeding in which by law a hearing is required to be given, evidence is required
to be taken, and discretion in the determination of facts is vested in the inferior
tribunal, corporation, board, or officer.” (Code Civ. Proc., § 1094.5, subd. (a),
italics added.) The Court of Appeal concluded that the statutory requirements that
the State Personnel Board “initiate a hearing or investigation of a written
complaint” and that its “executive officer . . . complete findings” (Gov. Code,
§ 19683, subd. (a)) satisfied the conditions of Code of Civil Procedure section
1094.5. In this regard, the court noted that under the board’s regulations the
10
executive officer’s “investigation” constituted a documentary hearing and the
exercise of discretion in the determination of facts.
The Court of Appeal next drew a significant substantive conclusion from
the availability of writ of mandate review under Code of Civil Procedure section
1094.5. It asserted that, after such review, a civil judgment upholding the findings
of the State Personnel Board would have a collateral estoppel effect in any later
civil action, including a damages action under Government Code section
8547.8(c). The validity of this assertion is far from clear. (See Johnson v. City of
Loma Linda (2000) 24 Cal.4th 61, 76 (Johnson); see also Westlake Community
Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484 (Westlake); Knickerbocker v.
City of Stockton (1988) 199 Cal.App.3d 235, 242-245; but see Pacific Lumber Co.
v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944) [emphasizing
the conditions an administrative factfinding proceeding must satisfy before
collateral estoppel will apply].) Nevertheless, the Court of Appeal reasoned that a
failure to seek a writ under Code of Civil Procedure section 1094.5 constituted a
default, elevating the State Personnel Board’s decision to the same status as a
court-rendered civil judgment. The Court of Appeal stated: “If the [State
Personnel Board] issues findings adverse to the employee, unless the employee
succeeds in overturning that decision by a writ of administrative mandate, a civil
tort suit on the same claim would be barred by judicial exhaustion (issue
preclusion). . . . The [board] is an administrative agency endowed by the
Constitution with quasi-judicial powers. [Citation.] When a party to a quasi-
judicial proceeding fails to challenge the agency’s adverse findings by means of a
writ of mandate action in superior court, the adverse findings are binding in later
civil actions. [Citations.]”
Applying this rule, the Court of Appeal concluded that the State Personnel
Board’s specific finding here that no retaliation occurred precluded relitigation of
11
that issue and required judgment for defendants: “Because . . . Arbuckle has not
set [the board’s finding] aside, it precludes her civil action, which is predicated on
the same factual claims of retaliation.” Quoting at length from our opinion in
Johnson, supra, 24 Cal.4th at pages 69-70, the Court of Appeal stated that writ of
mandate review of the board’s decision was necessary to “ ‘accord[] proper
respect to [the] administrative agency’s quasi-judicial procedures’ ” and to
“ ‘ “provid[e] a uniform practice of judicial, rather than jury, review of quasi-
judicial administrative decisions.” ’ ” Otherwise, in the court’s view, the
administrative proceeding would be a “waste of time” and “meaningless.”
Therefore, the Court of Appeal held that only a favorable decision from the State
Personnel Board (either before or after writ review) would clear the way for a
damages action in superior court under section 8547.8(c); an unfavorable decision
would preclude a damages action, because its resolution of the factual issues could
not be relitigated.
The error in the Court of Appeal’s reasoning lies in its assumption that
Arbuckle’s failure to pursue further administrative remedies, coupled with her
failure to seek writ of mandate review of the State Personnel Board’s findings,
elevated those findings to the same status as a final civil judgment rendered after a
full hearing, precluding relitigation of the factual issues the board’s executive
officer resolved against Arbuckle. It is true as a general matter that writ review of
an adverse administrative decision is a necessary step before pursuing other
remedies that might be available. (Johnson, supra, 24 Cal.4th at p. 76; Westlake,
supra, 17 Cal.3d at p. 484.) It is also generally true that if a litigant fails to take
this step, and if the administrative proceeding possessed the requisite judicial
character (see Pacific Lumber Co. v. State Water Resources Control Bd., supra, 37
Cal.4th at p. 944), the administrative decision is binding in a later civil action
brought in superior court. But, as discussed, the Legislature expressly authorized
12
a damages action in superior court for whistleblower retaliation (§ 8547.8(c)), and
in doing so it expressly acknowledged the existence of the parallel administrative
remedy. It did not require that the board’s findings be set aside by way of a
mandate action; rather, it gave as the only precondition to the damages action
authorized in section 8547.8(c), that a complaint be filed with the board and that
the board “issue[], or fail[] to issue, findings.” (Ibid.) The bareness of this
statutory language suggests that the Legislature did not intend the State Personnel
Board’s findings to have a preclusive effect against the complaining employee.
The specific statutory authorization at issue here makes this case analogous
to the high court’s decision in University of Tennessee v. Elliott (1986) 478 U.S.
788, 795-796, which concluded that certain statutory language in title VII of the
federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) indicated Congress’s
intent that state administrative findings not be binding in title VII actions.
Thereafter, this court in Johnson, supra, 24 Cal.4th at pages 74-75, distinguished
Elliott on this ground. Here, therefore, where we have specific statutory language
suggesting that adverse findings by the State Personnel Board are not binding in a
section 8547.8(c) damages action, the high court’s decision in Elliott seems to be
the more relevant precedent, rather than our decision in Johnson, supra, 24 Cal.4th
61, on which the Court of Appeal here relied. As we recently explained,
discussing limitations on administrative collateral estoppel, “ ‘[A] court may not
give preclusive effect to the decision in a prior proceeding if doing so is contrary
to the intent of the legislative body that established the proceeding in which res
judicata or collateral estoppel is urged.’ ” (Pacific Lumber Co. v. State Water
Resources Control Bd., supra, 37 Cal.4th at p. 945, quoting Brosterhous v. State
Bar (1995) 12 Cal.4th 315, 326.)
Our conclusion does not make the proceeding before the State Personnel
Board a “waste of time” and “meaningless.” We can think of several instances in
13
which the Legislature has required or permitted disputing parties to complete a
nonbinding adjudicative procedure before proceeding with a damages action in
superior court. For example, an employee who does not receive wages has the
option of filing a wage claim with the Labor Commissioner, who holds an
informal hearing and issues a decision. (Lab. Code, §§ 98, 98.1.) Labor Code
section 98.2 then permits either party to “appeal” the Labor Commissioner’s
decision “to the superior court, where the appeal [is] heard de novo.” Additional
analogies can be made to nonbinding arbitration under the mandatory fee
arbitration act (see Bus. & Prof. Code, § 6204, subd. (a)) and judicial arbitration,
which is also nonbinding (see Code Civ. Proc., § 1141.20). The Legislature may
consider such nonbinding proceedings to be useful as a means of promoting
settlement, and in many cases nonbinding proceedings may be an effective way of
resolving minor disputes with minimal expense to the parties.
Moreover, the Court of Appeal’s conclusion that the State Personnel
Board’s findings are binding in a court action for damages under Government
Code section 8547.8(c) would unduly restrict that remedy. Writ review under
Code of Civil Procedure section 1094.5 is limited to the record compiled by the
administrative agency, and the agency’s findings of fact must be upheld if
supported by “substantial evidence.” (Code Civ. Proc., § 1094.5, subd. (c).) Writ
review under Code of Civil Procedure section 1085 is even more deferential; the
agency’s findings must be upheld unless arbitrary, capricious, or entirely lacking
evidentiary support. (Strumsky v. San Diego County Employees Retirement Assn.
(1974) 11 Cal.3d 28, 34-35, fn. 2.) We need not decide now which type of writ
review would be available in the case of a documentary hearing like that
14
conducted here by the State Personnel Board’s executive officer,3 but under either
of standard of review it would be very difficult for a complaining employee to
have the board’s adverse factual findings overturned. Therefore, in nearly every
case an adverse decision from the board would leave the employee without the
benefit of the damages remedy set forth in Government Code section 8547.8(c).
As the trial court pointed out in its ruling: “Petitioners who cannot overcome th[e]
deferential standard [of review] would be completely deprived of the remedy
provided by the statute, i.e. an action for damages.” In such cases, the
whistleblower employee’s only remedy would be the documentary hearing before
the State Personnel Board’s executive officer, without even the opportunity to
address the executive officer in a face-to-face discussion. Nothing in Government
Code section 8547.8(c), suggests that the Legislature intended the damages
remedy created in that provision to be so narrowly circumscribed, and such a
narrow interpretation of the damages remedy would hardly serve the Legislature’s
purpose of protecting the right of state employees “to report waste, fraud, abuse of
authority, violation of law, or threat to public health without fear of retribution.”
(§ 8547.1.)
Finally, the Court of Appeal’s reasoning would produce sweeping
consequences the Legislature could not have intended. The Court of Appeal held
that only an adverse decision by the State Personnel Board would bar a later
damages action in superior court, whereas a damages action would be available if
3
In concluding that writ review under Code of Civil Procedure section
1094.5 was available here, the Court of Appeal relied on a line of decisions
holding that a documentary hearing can meet the requirements of that section.
(See, e.g., Friends of the Old Trees v. Department of Forestry & Fire Protection
(1997) 52 Cal.App.4th 1383, 1391-1392; Mahdavi v. Fair Employment Practice
Com. (1977) 67 Cal.App.3d 326, 334.) We express no view regarding the validity
of these decisions or the Court of Appeal’s application of them.
15
the board’s findings were favorable to the whistleblower employee. The Court of
Appeal did not, however, explain how this distinction would work in practice.
The State Personnel Board’s remedial powers are very broad. It is expressly
authorized to “order any appropriate relief, including, but not limited to, [specific
performance and] . . . compensatory damages” (§ 19683, subd. (c), italics added),
and also including “a just and proper penalty” imposed against individual
wrongdoers (§ 19683, subd. (d)). Therefore, a truly favorable decision of the State
Personnel Board would give the complaining employee a full recovery, and a civil
action for damages under section 8547.8(c) would be unnecessary. Conversely, if
the State Personnel Board’s findings were even slightly adverse to the employee
(i.e., awarding anything short of a full recovery), the State Personnel Board’s
adverse findings would, under the Court of Appeal’s reasoning, have a collateral
estoppel effect, precluding any award of additional damages. Thus, under the
Court of Appeal’s rationale, the court action for damages that is authorized by
section 8547.8(c) would be, to a large extent, superfluous. That result cannot be
what the Legislature intended.
We conclude therefore that section 8547.8(c) means what it says: An
employee complaining of whistleblower retaliation may bring an action for
damages in superior court, but only after the employee files a complaint with the
State Personnel Board and the board “has issued, or failed to issue, findings.” So
long as the board has issued findings (or the deadline for issuing findings has
passed), the employee may proceed with a damages action in superior court
regardless of whether the board’s findings are favorable or unfavorable to the
employee.4 Moreover, once the board has issued findings, the employee need not
4
If the executive officer’s findings are favorable to the employee, and the
responding party has requested a hearing before the State Personnel Board, the
(footnote continued on next page)
16
pursue additional administrative remedies and need not challenge the findings by
way of a petition for a writ of administrative mandate.5 In concluding to the
contrary, the Court of Appeal erred.
III
We reverse the judgment of the Court of Appeal and remand the case to
that court with instructions to deny defendants’ petition for writ of mandate.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
(footnote continued from previous page)
question arises whether the employee can pursue a civil damages action even
while the respondent’s administrative appeal is pending, resulting in two parallel
proceedings adjudicating the same dispute. That case is not before us, and we
express no view on the matter.
5
We disapprove California Public Employees’ Retirement System v.
Superior Court (2008) 160 Cal.App.4th 174 to the extent it reaches a contrary
conclusion.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion State Board of Chiropractic Examiners v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 148 Cal.App.4th 142
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S151705Date Filed: February 26, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Sacramento
Judge: Shelleyanne W. L. Chang
__________________________________________________________________________________
Attorneys for Appellant:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, David Chaney, Chief Assistant AttorneyGeneral, Gordon Burns, Deputy State Solicitor General, Jacob Appelsmith, Assistant Attorney General,
Vincent J. Scally, Jr., Miguel Neri, Fiel D. Tigno, Alicia M. B. Fowler, Lyn Harlan and Noreen P. Skelly,
Deputy Attorneys General, for Petitioners.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.Garcia & Associates and Gaspar Garcia II for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lyn HarlanDeputy Attorney General
1515 Clay Street, 20th Floor
Oakland, CA 94612-0550
(510) 622-2208
Gaspar Garcia II
Garcia & Associates
1395 Garden Highway, Suite 175
Sacramento, CA 95833
(916) 568-3692
Document Outline
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Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. State Bd. of Chiropractic Examiners both present issues concerning whether, under the Whistleblower Protection Act (Gov. Code section 8547 et seq.), a state employee may bring a civil action after suffering an adverse decision by the State Personnel Board without successfully seeking a writ of administrative mandate to set aside that decision. The court ordered briefing in Ramirez deferred pending decision in State Bd. of Chiropractic Examiners.
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 02/26/2009 | 45 Cal. 4th 963, 201 P.3d 457, 89 Cal. Rptr. 3d 576 | S151705 | Review - Civil Original Proceeding | closed; remittitur issued | BRAND v. U.C. REGENTS (S162019) |
| 1 | Board Of Chiropractic Examiners (Petitioner) Represented by Lyn Harlan Office of the Attorney General P.O. Box 70550 1515 Clay Street, 20th Floor Oakland, CA |
| 2 | Smith, Jeanine R. (Petitioner) Represented by Lyn Harlan Office of the Attorney General 1515 Clay Street, 20th Floor Oakland, CA |
| 3 | Superior Court Of Sacramento County (Respondent) 720 9th Street Sacramento, CA 95814 |
| 4 | Arbuckle, Carole (Real Party in Interest) Represented by Gaspar Roberto Garcia Garcia & Associates 1710 Baines Avenue Sacramento, CA |
| Disposition | |
| Feb 26 2009 | Opinion: Reversed |
| Dockets | |
| Apr 9 2007 | Petition for review filed Carole M. Arbuckle, Real Party in Interest Gaspar Garcia, II, Counsel (CRC 8.25b) |
| Apr 11 2007 | Record requested |
| Apr 11 2007 | Received Court of Appeal record 1 doghouse |
| May 29 2007 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including July 6, 2007, or the date upon which review is either granted or denied. |
| Jun 27 2007 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ. |
| Jul 10 2007 | Certification of interested entities or persons filed counsel resps. State Brd. of Chiropractic Examiners, et al., |
| Jul 11 2007 | Certification of interested entities or persons filed Carole Arbuckle, Real Party in Interest by Gaspar Robert Garcia, counsel |
| Jul 24 2007 | Request for extension of time filed for RPI to file the opening brief on the merits, to 8-24-07 |
| Aug 2 2007 | Extension of time granted On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 24, 2007. |
| Aug 27 2007 | Opening brief on the merits filed Carole Arbuckle, RPI Gaspar Garcia II, counsel (timely per CRC 8.25) |
| Aug 27 2007 | Request for judicial notice filed (granted case) Carole Arbuckle Gaspar Garcia II, counsel |
| Sep 18 2007 | Request for extension of time filed Board of Chiropractic Examiners, petitioner Extension of time requested to 10-26-07 to file the answer brief on the merits. |
| Sep 24 2007 | Extension of time granted On application of petitioners and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 26, 2007. |
| Oct 18 2007 | Request for extension of time filed for petitioners to file the answer brief on the merits, to 11-9-07. |
| Oct 19 2007 | Extension of time granted On application of petitioners and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 9, 2007. |
| Nov 9 2007 | Answer brief on the merits filed State Board of Chiropractic Examiners, petitioner Lyn Harlan, Noreen Skelly, Dep. A.G.s |
| Nov 20 2007 | Request for extension of time filed for RPI to file the reply brief on the merits, to 12/28/07. |
| Nov 28 2007 | Extension of time granted On application of real party in interest 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 December 28, 2007. |
| Dec 31 2007 | Application to file over-length brief filed reply brief from rpi Carole M. Arbuckle by Gaspar Garcia, counsel (brief attached; CRC 8.25(b)) |
| Jan 10 2008 | Order filed The application of real party in interest for permission to file the reply brief on the merits containing 4,882 words that exceeds the 4200-word limit prescribed by California Rules of Court rule 8.520(c) by 682 words is hereby granted. |
| Jan 10 2008 | Reply brief filed (case fully briefed) Carole M. Arbuckle, real party in interest by Gaspar Garcia, II, counsel |
| Apr 16 2008 | Filed: "Notice of Unavailability" by Lyn Harlan, Dep. A.G., counsel for petitioners (for period of 6/6/08-6/20/08) |
| Oct 22 2008 | Case ordered on calendar to be argued on Tuesday, December 2, 2008, at 9:00 a.m., in Los Angeles. |
| Dec 2 2008 | Cause argued and submitted |
| Feb 25 2009 | Notice of forthcoming opinion posted |
| Feb 26 2009 | Opinion filed: Judgment reversed We reverse the judgment of the Court of Appeal and remand the case to that court with instructions to deny defendants' petition for writ of mandate. Majority Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| Feb 27 2009 | Received: notice for change of address for counsel for real party in interest on February 25, 2009. Opinion re-sent to counsel. |
| Apr 8 2009 | Remittitur issued |
| Apr 23 2009 | Received: Receipt for Remittitur from 3 DCA. |
| Briefs | |
| Aug 27 2007 | Opening brief on the merits filed |
| Nov 9 2007 | Answer brief on the merits filed |
| Jan 10 2008 | Reply brief filed (case fully briefed) |
| May 21, 2011 Annotated by stephanie tsay |
Issue
In a claim under the Whistleblower Retaliation Act, California Government Code § 8547.8, does the exhaustion provision require a claimant to petition for a hearing before an administrative law judge and seek a write of mandate to overturn adverse findings before pursuing a claim in superior court? Facts/BackgroundPlaintiff Carol Arbuckle was a state employee in the office of the State Board of Chiropractic Examiners (SBCE). At SBCE, Ms. Arbuckle’s duties relate to cashiering and license renewal of chiropractors licensed in the State of California. After discovering that numerous chiropractors had been practicing under expired licenses, she began issuing citations. When she inquired about issuing a citation to a particular Dr. Ufberg, the executive director of the SBCE, Jeanine Smith, told her not to issue the citation. Following her inquiry, Ms. Arbuckle confronted a stressful work environment and among other things, SBCE managers changed her duties, denied her requests for a modified work schedule and lighter work-load, canceled her alternative work schedule and transferred her to a different unit. Ms. Arbuckle filed a complaint with the California Personnel Board under California Government Code section 8547.8, which protects whistleblowers from employer retaliation. The board issued adverse findings. She then filed a claim in superior court, and on appeal the court of appeal determined that Ms. Arbuckle had to succeed in having the Board's adverse findings set aside before she could proceed with her court action for damages under California Government Code section 8547.8, subdivision (c). Procedural PosturePlaintiff Carol Arbuckle filed a complaint with the State Personnel Board, pursuant to the California Whistleblower Act, California Government Code section 8547.8, alleging whistleblower retaliation in violation of the Act. After an investigation in accordance with board regulations, the board issued adverse findings. Although the process provided a right to file a petition for a hearing before a final decision was ordered, Ms. Arbuckle did not exercise this right. Cal. Code. Regs., tit. 2, §§ 56-56.8 (2002). On February 21, 2003, Ms. Arbuckle filed a damages action in Superior Court against the SBCE and its executive director, Jeanine Smith, claiming whistleblower retaliation in violation of California Government Code § 8547.8. Additionally, she filed a claim under California Labor Code section 1102.5, which prohibits retaliation against an employee who reports a violation of state or federal law, and a tort cause of action for violation of public policy pursuant to Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980). The trial court sustained defendants’ demurrer to the tort claim. Although the trial court denied defendant’s motion for summary judgment for failure to exhaust administrative remedies with regard to the remaining causes of action, the court of appeal issued an alternative writ and stayed the proceedings in the trial court. The court of appeal held that Ms. Arbuckle had failed to exhaust both administrative and judicial remedies. The court found that Ms. Arbuckle had failed to do more than file a complaint. She was required to petition the board for a hearing and if denied a hearing and was required to seek a writ of mandate from the courts to set aside the board’s finding. Moreover, the court held that Ms. Arbuckle had to succeed in having those adverse findings set aside before she could proceed with her court action for damages under section 8547.8(c), because otherwise the adverse findings would be binding in the damages action, precluding recovery. The court of appeal granted a writ of mandate and ordered the trial court to grant summary judgment in favor of defendants. The California Supreme Court granted review and reversed the court of appeal’s findings, holding that an adverse judgment in administrative court did not preclude a claim in superior court for damages. DispositionThe supreme court reversed and remanded with instructions to deny petitioners' application for a writ of mandate. HoldingsThe Supreme Court, in an opinion by Judge Kennard, held that: (1) Statutory Plain Language Does Not Require More Than “Findings.” The Whistleblower Retaliation Act, California Government Code Section 8547.8(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.” Cal. Gov. Code. § 8547.8. The provision provides and exhaustion clause: “[A]ny 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 pursuant to Section 19683. Cal. Gov. Code § 8547.8(c). Nowhere in the provision is there a requirement of more than the issuance of “findings,” which Ms. Arbuckle received from the State Personnel Board. The plain statutory language does not require a petition for hearing before and Administrative Law Judge or a write of mandate of the board’s findings. Thus, the court of appeal erred in holding that Ms. Arbuckle failed to exhaust her administrative and judicial remedies and that exhaustion required more than filing a complaint and receiving findings. (a) Exhaustion of Administrative Remedies The plain language of California Government Code section 19683, subdivision (b), expressly authorizes “the supervisor, manager, employee, or appointing power” to request a hearing regarding any finding sustaining the allegation of whistleblower retaliation. Thus, there is no language that permits the complaining party to petition the board for a hearing after receiving adverse findings – the option only extends to the responding party. Moreover, Section 8547.8(c) authorizes a damages action in superior court as a completely independent remedy, not an action to review the board’s decision. (b) Exhaustion of Judicial Remedies The Court of Appeal erred in requiring Ms. Arbuckle to exhaust her judicial remedies by filing a petition for write of mandate under California Code of Civil Procedures section 1094.5 to challenge the board’s adverse findings. A petition for a writ of administrative mandate may be brought only “for the purpose of inquiring into the validity of any final administrative order or decision.” Cal. Code Civ. Proc. § 1094.5(a). Although as a general matter, a writ review of an administrative decision is a necessary step before pursuing alternative remedies, here the legislature expressly authorized a damages action in superior court for whistleblower retaliation. Cal. Gov. Code § 8547.8(c). (2) Legislative Intent Does Not Support the Court of Appeal’s Decision. The bareness of the statute suggests that the Legislature did not intend the State Personnel Board’s findings to have a preclusive effect against the complaining employee. Moreover, if a court remedy of damages was only authorized when the board issued a favorable finding, which already provides for appropriate relief, a court action would be superfluous at best. (3) Public Policy Suggests that Administrative Court’s findings are not binding in a claim for damages. The court of appeal’s conclusion that the State Personnel Board’s findings are binding in a court action for damages under the California Government Code would unduly restrict that remedy. Writ review is very deferential under California Government Code section 8547.8(c) (findings are upheld unless arbitrary) and California Rule of Civil Procedure 1094.5(a) (rulings are limited to the record). Because it would be difficult under either standard of review to overturn a board’s adverse finding, in nearly every case, an adverse finding would leave the employee without benefit of damages remedy set forth in California Government Code Section 8547.8(c). Thus, as a matter of public policy, requiring the exhaustion of both would undermine the legislature’s purpose of protecting whistleblower employees by assuring them the procedural guarantees and independent fact-finding of a superior court damages action. Key CasesUniversity of Tennessee v. Elliott , 478 U.S. 788 (1986) Pacific Lumber Co. v. State Water Resources Control Board, 126 P.3d 1040 (Cal. 2006) Johnson v. City of Loma Linda, 5 P.3d 874 (Cal. 2000) Westlake Community Hospital v. Superior Court, 551 P.2d 410 (Cal. 1976) Key Statutes Government Code § 8547.8 Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980) Strumsky v. San Diego County Employees Retirement Association, 520 P.2d 29 (Cal. 1974) Mahdavi v. Fair Employment Practice Commission, 136 Cal. Rptr. 421 (Cal. Ct. App. 1977) Tagswhistleblower, retaliation, administrative remedy, exhaustion, writ of mandate, writ review, collateral estoppel, preclusion, damages, adverse findings, binding, legislative intent, plain meaning, plain language, state employee, board hearing, statutory interpretation |
