We hold that, following an administrative hearing, Taswell was not required to exhaust his judicial remedies (by seeking a writ of mandamus) to challenge the University's rejection of his claims of retaliation. We also hold that, after exhausting his administrative remedies, Taswell was statutorily authorized to file this civil action and seek damages based on his statutory whistleblower retaliation claims; the administrative decision has no res judicata or collateral estoppel effect on this action.
Also, a triable issue of material fact exists as to whether the University's decisions to place Taswell on an investigatory leave of absence and to not renew his contract had a causal connection to Taswell's whistleblowing activities. Therefore, summary judgment and/or summary adjudication should not have been granted on the theory that no triable issue of fact existed.
FACTS
Taswell is a licensed medical doctor who is board certified in nuclear medicine. In December 2011, Dr. Scott Goodwin, the chair of the radiology
Shortly before Taswell began work for the University, Goodwin informed him that he would be starting as a "specialist" before the clinical professorship could be processed. Taswell had reservations about starting work for the University "before the clinical professorship could be implemented," but Goodwin assured Taswell he "had [his] back" and would "protect [him] from any blowback."
On January 2, 2012, Taswell began working in the authorized user position. As an authorized user, Taswell had significant radiation safety responsibilities mandated by state and federal law. That position involved being responsible for and having control over the quality, safety, and technical and medical aspects of the imaging procedures performed at the brain imaging center. The position required working with the campus and hospital radiation safety committees, the campus environment health and safety department, radiation safety officers, and others to ensure the safe operation of the brain imaging center, that the center was "properly documented,"
In early February 2012, radiochemist Dr. Farhad Karimi, who had recently joined the brain imaging center, provided information to the University's medical school about potential safety and compliance problems at the brain imaging center. On February 9, the radiochemistry laboratory of the brain imaging center was closed; it remained closed as of the date the motion for summary judgment was filed. On February 16, Karimi provided information about the problems at the brain imaging center to "high-ranking officials" at the University and the medical school.
On February 17, Karimi told Taswell of the potential safety and compliance problems at the brain imaging center. Taswell called Goodwin later that evening and informed him of what he had been told by Karimi. On February 19, Taswell reported the same issues to the UC whistleblower hotline and on February 22, he met with Michael Arias, the University's associate executive vice chancellor and the local designated official responsible for receiving whistleblower complaints. Arias told Taswell that investigations would begin and that Taswell should keep the allegations confidential and not investigate them himself.
On March 16, Taswell reported his concerns regarding "serious violations" at the brain imaging center to the California Department of Public Health. On March 19, he reported his concerns to the United States Food and Drug Administration, Department of Health and Human Services.
On March 20, Taswell told Goodwin that he had informed state and federal authorities about the problems at the brain imaging center. While Goodwin did not appear to be angry with Taswell, he remarked "this makes me look bad."
On March 22, Taswell, along with three other University employees who had campus radiation-safety responsibilities, entered Dr. Jogeshwar Mukherjee's radiochemistry laboratory near, but not part of, the brain imaging center. Taswell took pictures of what he perceived to be safety violations. A researcher in the laboratory became angry, questioning whether the group, including Taswell, was authorized to enter the laboratory. Taswell believed he was authorized to inspect the laboratory because his job duties included conducting inspections, he had been invited by the radiation safety committee to enter the laboratory, and an inspection was particularly appropriate given that the brain imaging center was scheduled to reopen without remediating the dangerous conditions.
On April 2, Goodwin and another official informed Taswell that he was being placed on a paid leave of absence for entering Mukherjee's laboratory without authorization, pending an investigation. (In May 2012, the University retained a law firm to conduct an independent investigation to determine whether Taswell's entry into the laboratory was authorized. The law firm concluded that because Taswell was with other employees who had authority to enter the laboratory, his entry was not unauthorized.)
In April 2012, Taswell filed an internal complaint for whistleblower retaliation, alleging the decisions to place him on investigatory leave and not to renew his contract constituted retaliation for his whistleblowing activities. He also initiated a grievance procedure pursuant to the University's Academic Personnel Manual.
The grievance procedure culminates in a Step III formal grievance appeal hearing. At that hearing, the grievant is represented by counsel and is permitted to present his or her case by oral and documentary evidence. The introduction of rebuttal evidence and the cross-examination of witnesses are permitted, and the hearing is either transcribed or recorded. Following the hearing, the hearing officer is required to provide the parties a written statement of his or her findings and recommendations.
Dr. Kenneth Janda, the University's dean of the school of physical sciences, was the Step III hearing officer for Taswell's grievance proceedings. He concluded the University did not retaliate against Taswell because of his whistleblower activities and that the University would not have renewed Taswell's contract even if he had not engaged in such activities. As reasons for the actions taken by the University, Janda cited what he described as emotional communications by Taswell suggesting he would not approve protocols proposed by a certain faculty member, Taswell's failure to follow Arias's admonition to refrain from investigating the safety allegations himself, and Taswell's "behavior" in the March 15 meeting with the radiation safety committee.
On April 22, 2013, the University's vice-provost for academic personnel approved Janda's decision denying Taswell's grievance (the administrative decision). Taswell did not file a petition seeking a writ of mandamus to challenge the administrative decision, but filed the instant action instead. It is undisputed Taswell exhausted the University's administrative grievance process.
PROCEDURAL HISTORY
At the time the Regents filed their motion for summary judgment, the following four claims contained in Taswell's fourth amended complaint for
The trial court granted the Regents' motion for summary judgment "in its entirety" and granted summary adjudication of issues, on the grounds that Taswell's retaliation claims were barred by res judicata and/or collateral estoppel, and because Taswell failed to exhaust judicial remedies. Judgment was entered in favor of the Regents. Taswell appealed.
DISCUSSION
I.
STANDARD OF REVIEW
"We review orders granting summary judgment or summary adjudication de novo. [Citations.] A motion for summary judgment or summary adjudication is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law." ( Mooney v. County of Orange (2013)
II.
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE GROUND TASWELL FAILED TO EXHAUST JUDICIAL REMEDIES OR BECAUSE THE ADMINISTRATIVE DECISION HAD PRECLUSIVE EFFECT ON TASWELL'S STATUTORY RETALIATION CLAIMS.
The Regents argued in the trial court and on appeal that the administrative decision constituted a binding adjudication entitled to preclusive effect in a subsequent judicial proceeding and thus summary judgment and adjudication as to all of Taswell's retaliation claims were properly
A.
SUMMARY OF APPLICABLE LEGAL PRINCIPLES GOVERNING THE PRECLUSIVE EFFECT OF ADMINISTRATIVE FINDINGS AND DECISION ON A SUBSEQUENT JUDICIAL ACTION .
We begin with the general rule regarding the preclusive effect of administration decisions on subsequent judicial actions: "Under the doctrine of exhaustion of judicial remedies, '[o]nce a[n administrative] decision has been issued, provided that decision is of a sufficiently judicial character to
The Supreme Court has explained: "An administrative finding will not be given preclusive effect in a later judicial proceeding, however, ' " '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.' " ' " ( Runyon, supra,
B.
GOVERNMENT CODE SECTIONS 8547.8 (GOVERNING STATE AGENCY EMPLOYEES) AND 8547.12 (APPLICABLE TO CALIFORNIA STATE UNIVERSITY EMPLOYEES) REFLECT A LEGISLATIVE INTENT THAT AN ADMINISTRATIVE FINDING ON RETALIATION ISSUES NOT BE GIVEN PRECLUSIVE EFFECT IN A LATER JUDICIAL PROCEEDING .
In 1993, the Legislature enacted what is now called the California Whistleblower Protection Act (the Act), codifying it as Government Code sections 8547 through 8547.11. ( Gov. Code, § 8547 ; Miklosy v. Regents of University of California (2008)
In Runyon, supra,
The Supreme Court explained that an employee claiming retaliation under Government Code section 8547.12, subdivision (c) was not required to
The Supreme Court added: "Also as in Arbuckle , giving CSU's adverse decision preclusive effect would unduly restrict the civil remedy expressly provided for in section 8547.12. Writ review, whether through administrative mandate ( Code Civ. Proc., § 1094.5 ) or ordinary mandate (id. , § 1085), gives substantial deference to the agency's findings. Requiring the employee to overturn CSU's adverse decision by writ before bringing a civil action would mean that 'in nearly every case, an adverse decision from [CSU] would leave the employee without the benefit of the damages remedy set forth in [ section 8547.12, subdivision (c) ].' [Citation.] As we explained: 'Nothing in [the Act] 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." ' " ( Runyon, supra,
The Supreme Court rejected the argument that interpreting both sections 8547.8 and 8547.12 as requiring that an employee submit his or her complaint to what is essentially a nonbinding administrative investigative procedure was irrational or particularly unusual. ( Runyon, supra, 48 Cal.4th at pp. 774-775,
TASWELL'S CLAIM FOR RETALIATION IN VIOLATION OF GOVERNMENT CODE SECTION 8547.10, SUBDIVISION (C) IS NOT BARRED BY A FAILURE TO EXHAUST JUDICIAL REMEDIES, OR BY APPLICATION OF THE RES JUDICATA OR COLLATERAL ESTOPPEL DOCTRINES .
Taswell's first cause of action was for retaliation in violation of Government Code section 8547.10, a statute that, along with sections 8547.8 and 8547.12 discussed ante , is part of the Act.
i.
The applicable version of Government Code section 8547.10, subdivision (c)
Government Code section 8547.10, subdivision (a) provides: "A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of ... retaliation ... for having made a protected disclosure, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act of reprisal complained about."
In 2010, before Taswell began working for the Regents,
ii.
The phrase "not satisfactorily addressed the complaint" means the complaint was not addressed to the complainant employee's satisfaction.
In Runyon, supra,
The Supreme Court rejected the defendants' argument that "the entity to be satisfied" in that phrase "is a court presented with a mandate petition" in which the complainant must "convince the court CSU acted in bad faith or in a 'slipshod' manner" in investigating the complaint. ( Runyon, supra,
The Supreme Court assured the defendants that the availability of a civil action would not allow a complainant to overturn an administrative decision at will: "A CSU employee cannot obtain relief in a civil action merely by 'assert [ing] that he is unhappy with the decision' of CSU on the administrative complaint, as Ohton [ v. Board of Trustees of California State University (2007) ] 148 Cal.App.4th [749] at page 765 [
iii.
Applying the Supreme Court's interpretation of language found in section 8547.12, subdivision (c) that is identical to that found in section 8547.10, subdivision (c), summary adjudication should not have been granted as to Taswell's section 8547.10 claim.
The Supreme Court's interpretation of the last sentence of section 8547.12, subdivision (c), and in particular, the phrase "satisfactorily addressed the complaint," applies equally to the identical sentence contained in the parallel statute, section 8547.10, subdivision (c). Therefore, following the administrative decision denying his complaint that he had been retaliated against for whistleblowing-resulting in his complaint not being satisfactorily addressed from his perspective-Taswell was statutorily authorized to file a retaliation claim for violation of section 8547.10 in the trial court. Given the Legislature's intent to permit such a lawsuit, Taswell was not required to exhaust judicial remedies and challenge the administrative decision by filing a petition for a writ of mandamus. Furthermore, his claim was neither limited by the administrative decision nor otherwise barred by the doctrines of res judicata or collateral estoppel. (See Runyon, supra,
The Regents' arguments that summary adjudication was properly granted as to this claim are without merit.
In moving for summary adjudication, the
Taswell began to work for the University in January 2012 and thus Miklosy ' s analysis regarding its interpretation of the pre-2010 amendment version of Government Code section 8547.10, subdivision (c) is inapplicable in this case.
In their appellate brief, the Regents argue that "[Taswell]'s position that the University's decision has no preclusive effect under section 8547.10 is untenable under the California Constitution." The Regents cite in support of their argument Miklosy 's discussion of the University of California's origin in the California Constitution. The Supreme Court in Miklosy did not conclude the Legislature would be constitutionally precluded from authorizing an employee to file a whistleblower retaliation claim for damages against the
D.
TASWELL'S CLAIM FOR RETALIATION IN VIOLATION OF HEALTH AND SAFETY CODE SECTION 1278.5 IS NOT BARRED BY A FAILURE TO EXHAUST JUDICIAL REMEDIES, OR BY APPLICATION OF THE RES JUDICATA DOCTRINE .
Taswell also asserts a cause of action for retaliation in violation of
"(b)(1) No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: [¶] (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. [¶] (B) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.
"(2) No entity that owns or operates a health facility, or that owns or operates any other health facility, shall discriminate or retaliate against any person because that person has taken any actions pursuant to this subdivision.
"(c) Any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to a governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint."
Health and Safety Code section 1278.5"does not affirmatively state that these remedies may be pursued by means of a civil action, but it necessarily assumes as much when it explains certain procedures that may apply when 'the member of the medical staff ... has filed an action pursuant to this section .' " ( Fahlen, supra,
In Fahlen, supra,
The Supreme Court's reasoning in Fahlen continued: "Moreover, such a condition would seriously undermine the Legislature's purpose to afford a whistleblower on a hospital medical staff the right to sue. A hospital disciplinary proceeding against a member of the medical staff is ostensibly focused on concerns about the physician's professional fitness, not on redressing his or her claims of whistleblower retaliation. Indeed, plaintiff asserts here that the hospital proceeding was the very means of retaliation. By concluding, on limited mandamus review, that the administrative evidence of
As is the case with Government Code sections 8547.8, 8547.10 and 8547.12, the Supreme Court has concluded that the Legislature, in enacting Health and Safety Code section 1278.5, expressly authorized a civil action for damages. ( Fahlen, supra, at p. 661,
E.
TASWELL'S CLAIMS FOR RETALIATION IN VIOLATION OF LABOR CODE SECTION 1102.5 AND GOVERNMENT CODE SECTION 12653 ARE SIMILARLY NOT BARRED BY HIS FAILURE TO EXHAUST JUDICIAL REMEDIES, OR BY APPLICATION OF THE RES JUDICATA DOCTRINE .
Taswell's remaining two retaliation claims are based on Labor Code section 1102.5 and Government Code section 12653, respectively.
Labor Code section 1102.5, subdivision (b) provides: "An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information
Labor Code section 1105 creates a private right of action for damages for violation of section 1102.5. (See
Section 12653 of the Government Code provides:
"(a) Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of his or her employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this section or other efforts to stop one or more violations of this article.
"(b) Relief under this section shall include reinstatement with the same seniority status that the employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, and where appropriate, punitive damages. The defendant shall also be required to pay litigation costs and reasonable attorneys' fees. An action under this section may be brought in the appropriate superior court of the state.
"(c) A civil action under this section shall not be brought more than three years after the date when the retaliation occurred." (Italics added.)
Although an employee seeking to pursue a claim for damages in court for a violation of either Labor Code section 1102.5 or Government Code section 12653 must exhaust administrative remedies before filing suit ( Campbell v. Regents of University of California, supra,
NEITHER SUMMARY JUDGMENT NOR SUMMARY ADJUDICATION SHOULD HAVE BEEN GRANTED ON THE GROUND NO TRIABLE ISSUES OF MATERIAL FACT EXIST AS TO ANY OF TASWELL'S RETALIATION CLAIMS.
The Regents argue that although the trial court granted summary judgment on the ground Taswell failed to establish a triable issue of material fact, Taswell did not address that ground in his opening appellate brief and thus forfeited challenging that determination on appeal. In other words, the Regents argue that, notwithstanding the trial court's and the parties' focus on the question whether summary judgment or adjudication should be granted based on the exhaustion of judicial
We reject the Regents' forfeiture argument for three reasons. First, the trial court's order granting summary judgment failed to comply with section 437c, subdivision (g) of the Code of Civil Procedure which provides: "Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact , the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order." (Italics added.) The key objective of section 437c, subdivision (g) of the Code of Civil Procedure is to provide "meaningful appellate review." (See W.F. Hayward Co. v. Transamerica Ins. Co. (1993)
The court's order did not comply with section 437c, subdivision (g) of the Code of Civil Procedure because it did not specifically refer to the evidence proffered in support of and/or in opposition to the motion that indicated no triable issue of material fact existed. The trial court's minute order explained that the court granted summary judgment and/or summary adjudication based on Taswell's failure to exhaust judicial remedies and by application of the doctrines of res judicata and collateral estoppel. At the end of the court's five-page, single-spaced minute order, the court stated: "Even if that were not
"The trial court's failure to perform this statutory duty [under Code of Civil Procedure section 437c, subdivision (g) ], however, does not automatically require a reversal. [Citation.] The de novo standard for appellate review of an order granting summary judgment frequently means the lack of a proper order constitutes harmless error." ( Main Street Plaza v. Cartwright & Main, LLC (2011)
Here, the trial court's failure to explain its reasons and identify evidence it relied upon was prejudicial. The court's alternative basis for granting summary judgment was not clearly presented in the detail required by statute to inform Taswell of the evidentiary bases underlying the summary adjudication of each of his claims. The court's failure to comply with
Second, Taswell did challenge the finding that no triable issue of material fact existed. He stated in his appellate brief, albeit in a context other than an analysis of his statutory retaliation claims, that he had "alleged and submitted evidence-as to create a triable issue of fact-that UC employees engaged in 'wrongful, unethical, illegal, retaliatory, and exploitative conduct', and that the UC ... knew or should have known of their propensity to commit such conduct." He also identified evidence in his opening appellate brief's statement of facts supporting the existence of a triable issue of material fact on the causal connection between his whistleblowing activities and the adverse employment actions he experienced.
Third, in their appellate brief, the Regents analyzed the issue whether a triable issue of material fact exists as to the statutory retaliation claims. Therefore, the Regents are not prejudiced by Taswell's failure to more fully develop this issue in his appellate brief.
In the Regents' memorandum of points and authorities in support of the motion for summary judgment, the Regents argued that Taswell would be unable to prove any of his four statutory retaliation claims because he could not prove he was subjected to adverse employment action or that there was a causal connection between any protected activity on his part and an adverse employment action. The Regents did not produce any individualized analysis for each claim.
It is undisputed that Taswell was placed on paid leave pending investigation of whether his entry into the laboratory was unauthorized and, that same day, he was informed his contract with the University would not be renewed. Both actions constitute adverse employment actions. (See Whitehall v. County of San Bernardino (2017)
Furthermore, a triable issue of fact existed regarding whether a causal connection could be drawn between Taswell's whistleblowing activities and the adverse employment actions he faced. Retaliation may be proven by circumstantial evidence. ( Mokler v. County of Orange (2007)
The Regents argue that because they articulated legitimate business reasons for placing Taswell on leave and refusing to renew his contract, namely that Taswell disregarded instructions not to conduct his own investigation, was difficult to work with, and entered the laboratory without authority, the burden shifted to Taswell to produce evidence that the Regents' proffered reasons for taking those actions were pretextual.
The record contains evidence supporting a finding of pretext sufficient to create a triable issue of material fact, including: (1) Taswell's protected activity in his disclosures
Summary judgment and summary adjudication, therefore, should not have been granted because a triable issue of material fact exists regarding whether Taswell suffered actionable retaliation.
DISPOSITION
The judgment is reversed. Appellant shall recover costs on appeal.
WE CONCUR:
MOORE, ACTING P.J.
GOETHALS, J.
Notes
This section summarizes evidence referenced in the parties' separate statements and contained in Taswell's declaration in opposition to the motion for summary judgment.
In addition to the retaliation claims, the fourth amended complaint originally contained a claim under the Private Attorneys General Act, Labor Code section 2699 et seq. against the Regents, and claims for intentional and negligent infliction of emotional distress and defamation; these claims were dismissed before the motion for summary judgment was filed. Some of the claims in the fourth amended complaint were alleged against Arias as well as the Regents; Arias was no longer a defendant in the case at the time the motion for summary judgment was filed.
Government Code section 8547.8, subdivision (c) provides: "In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or applicant for state employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law. However, 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 Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683 ." (Italics added.)
Government Code section 8547.12, subdivision (c) provides: "In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), 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 Supreme Court disapproved of Ohton v. Board of Trustees of California State University, supra,
The Regents' analysis in its memorandum of points and authorities filed in the trial court of whether Taswell could establish he had been retaliated against was less than two pages and did not use the term "triable issue of fact."