Whistleblowers: Are You Completely Exhausted?
One of the primary laws that protects California whistleblowers is Labor Code section 1102.5. That section prohibits retaliation against employees who report illegal conduct by their employer. It also prohibits retaliation against employees who refuse to engage in illegal conduct by their employer.
Over the last several years, Courts and legislature have been grappling with the issue of whether whistleblowers under Labor Code section 1102.5 are required to exhaust certain administrative remedies before they can pursue a lawsuit. One recent unpublished California Court of Appeals case, Shawn Terris v. County of Santa Barbara (2d Civ No. B268849), discussed whether a County employee was required to first completely exhaust the internal complaint process provided by County’s civil service rules before filing a lawsuit.
Internal Exhaustion Required
In the Terris case, Ms. Terris filed a wrongful termination and employment discrimination case against the County of Santa Barbara. The County moved to dismiss her case on grounds, among other things, that Terris had failed to exhaust her administrative remedies by filing a complaint with the Equal Employment Opportunity Office (EEO). The trial court agreed and her case was dismissed.
On appeal, the Court of Appeal held that where an administrative remedy is provided by statute, relief must be sought by the administrative body and this remedy must be exhausted before the courts will act. Administrative remedies include “internal grievance procedures” provided by a public entity. County employees must exhaust internal administrative remedies that are provided in county civil service rules. Those civil service rules included a procedure that allowed Terris to file an EEO complaint and, if she disagreed with the EEO report, she could file an appeal directly to the Civil Service Commission. The EEO was specifically empowered to investigate employment discrimination claims based on violations of Labor Code section 1102.5. The civil service rules provided her with the right to challenge the alleged discrimination before the Commission. She had the right to an evidentiary hearing, to subpoena witnesses and judicial review of the Commission’s decision. The Commission had the power to reinstate her, order back pay, and attorney fees.
In this case, because Terris was a County employee, she was subject to the County’s civil service rules. Furthermore, her claims in the lawsuit were the same type of claims that could be investigated by the EEO if she had filed an EEO complaint. The Court of Appeal held that because she did not completely exhaust those internal remedies prior to filing a lawsuit, she was precluded from bringing a lawsuit.
Although the Terris case is an unpublished Court of Appeal decision, there are a couple of takeaways from this case if you are a public service employee. First, you should carefully examine the civil service rules that govern your employment before filing a lawsuit. Second, public service employees may be required to completely exhaust those remedies before bringing a lawsuit under Labor Code s. 1102.5. The failure to do so may get your case thrown out of Court.
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Disclaimer: The foregoing is provided for informational purposes only, is not an advertisement, does not constitute legal advice or legal opinion, and does not create an attorney-client relationship. The content may not apply to the specific facts or a particular matter. You should not act or rely on any information contained in this article without first seeking the advice of an attorney licensed to practice in your jurisdiction.