• Dean Royer

Whistle-blowers and the State Personnel Board

Can a terminated whistle-blower seek relief with the State Personnel Board and then file a court case?

The Ninth Circuit Court of Appeals recently decided whether a whistle-blower who filed two actions with the State Personnel Board—one to challenge his termination and other discipline, and a second to claim whistle-blower retaliation—could then bring a whistle-blower claim in court. In Wabakken v. Cal. Dep’t of Corr. & Rehab. (9th Cir. Cal. Sept. 14, 2015) 2015 U.S. App. LEXIS 16307, the appellate court addressed the question of whether the court action was barred because the issue of whether the termination was the result of whistle-blower activity had already been decided against Mr. Wabakken by the Board.

In this case, Mr. Wabakken was an employee of the California Department of Corrections and Rehabilitation. He reported negligent supervision of inmates, the showing of a movie to inmates in violation of Department policy, attempts to collect overtime for work not done, and contraband allowed on site. His employer made a series of charges against him, resulting in a reduction in pay, demotion, and, finally, termination.

Mr. Wabakken challenged all three actions before the State Personnel Board, which hears employment disputes involving state government employees. In response to the charges, he raised the defense of whistle-blower retaliation. The Board decided that the charges against Mr. Wabakken in support of the reduction in pay and demotion were not supported by the evidence. It also determined that certain charges in support of the termination were supported by the evidence, but that termination was too harsh a penalty. The Board did not specifically address Mr. Wabakken’s retaliation defense.

Mr. Wabakken also filed a whistle-blower retaliation claim with the State Personnel Board. The Board concluded that he was not terminated for his reporting activity.

After the conclusion of the State Personnel Board proceedings, Mr. Wabakken filed a case in federal court alleging whistle-blower claims under federal and state law. The trial court dismissed the case on grounds the whistle-blower issues had already been decided against Mr. Wabakken by the State Personnel Board.

On appeal, the Ninth Circuit reviewed the law concerning “issue preclusion.” If a party raises an issue in one proceeding that results in a final judgment on the merits, the same party cannot raise the identical issue in a second proceeding. California law prohibits issue preclusion if doing so is contrary to the Legislature’s intent that established the first proceeding.

A previous decision by the California Supreme Court established that the Legislature did not intend for State Personnel Board decisions concerning whistle-blower retaliation claims to prevent an employee from subsequently pursuing a claim in court. In fact, an employee is required to file a claim with the Board prior to filing in court. As a result, regardless of the Board’s decision the employee may file a case in court.

Applying these standards to this case, the Ninth Circuit found that the State Personnel Board’s decision against Mr. Wabakken for his whistle-blower retaliation claim did not prevent him from pursuing the same claim in court. Likewise, the Board’s decisions regarding the discipline of Mr. Wabakken could not preclude the court case.

#StatePersonnelBoard #Whistleblower

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