By Kerianne Steele and Alejandro Delgado
Kerianne Steele is a shareholder of Weinberg, Roger & Rosenfeld. She provides general representation to labor unions, primarily in the public sector. Alejandro Delgado is an Associate in the Los Angeles office of Weinberg, Roger & Rosenfeld. He represents and advises public sector unions in all aspects of labor and employment law.
Bahra v. County of San Bernardino, 945 F.3d 1231 (9th Cir. 2019)
The Ninth Circuit Court of Appeals held that the San Bernardino County Civil Service Commission's ("Commission") order sustaining Plaintiff's dismissal did not preclude his claim for retaliation under California Labor Code § 1102.5, but did preclude his claim for retaliation under 42 U.S.C. § 1983.
Plaintiff challenged his termination by appealing to the Commission, which sustained the Department of Children and Family Services' order of dismissal. The Commission advised Plaintiff of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure § 1094.5. Rather than seek a writ, Plaintiff filed suit in federal court alleging that he was fired in retaliation for his whistleblowing activities in violation of Labor Code § 1102.5 and 42 U.S.C. § 1983. The district court granted summary judgment for Defendants, holding that Plaintiff's claims under Labor Code § 1102.5 and 42 U.S.C. § 1983 were barred by claim and issue preclusion. Plaintiff appealed.
The Ninth Circuit reversed in part and affirmed in part. With respect to Labor Code § 1102.5, the court reversed the district court and held that the Commission's order did not have a preclusive effect on his claim for retaliation. The court noted that in California, decisions issued by administrative agencies typically have preclusive effect. However, the court reasoned that the California Court of Appeal had recently applied a legislative-intent exception and held in Taswell v. Regents of University of California, 23 Cal.App.5th 343 (2018) ("Taswell"), that administrative findings by a state agency do not preclude claims for retaliation brought under Labor Code § 1102.5. The court further stated that Defendants had failed to persuade it that the court of appeal in Taswell had misapplied California law or that the California Supreme Court would disagree with that court's reasoning or conclusion.
As to Plaintiff's 42 U.S.C § 1983 claim, the court affirmed the district court and held that the Commission's ruling had preclusive effect of this claim, which concerned retaliation related to a petition regarding a hostile work environment. The court reasoned that Plaintiff did not argue that giving an administrative record preclusive effect in a later 42 U.S.C § 1983 claim is contrary to legislative intent and the court declined to conduct that analysis sua sponte. According to the court, the remaining issue was, therefore, whether the administrative proceeding had sufficient judicial character and provided Plaintiff with an adequate opportunity to litigate his claims. The court concluded that Plaintiff had a full opportunity to litigate his termination before the Commission based on the comprehensive evidentiary record and the availability of judicial review. The court reasoned that several witnesses testified about Plaintiff's position regarding a hostile work environment...
