Public employees who are terminated after they blow the whistle on illegal 
conduct often have the opportunity to appeal their termination to some type of board or officer. That entity in turn usually has the authority to either rule on their claims or to make a recommendation to a civil service agency regarding whether the termination should be upheld or not. These proceedings hold out the promise of swift justice-a hearing and a decision by an impartial fact-finder in a relatively short amount of time. In practice, however, they rarely result in any type of reinstatement or fairness.
Public employees who make use of these appeals often find that when they try to bring their claims in court, where they have a better chance of getting a fair shake, the public entity argues that they are barred (“precluded”) from suing because they already had a hearing as part of the appeal process. In other words, public entities try to block public employees from suing just because the public employees make use of the civil service appeal process (which, as described above, is rarely fair or impartial).
That was the case in Bahra v. City of San Bernardino (9th Cir. 2019) Case No. 18-55789. Mr. Bahra, the plaintiff, worked as a social services practitioner for San Bernardino County in the Department of Children and Family Services (“CFS”). He discovered that a particular foster home was abusing children, but that CFS’s database did not reflect that history because of a series or database mistakes. He then reported these errors to his manager.
Prior to reporting those errors, Mr. Bahra had been actively involved in union organizing, circulating a petition and complaining about working conditions.
Soon after Mr. Bahra blew the whistle regarding the database errors, he was placed under “administrative review” in order to see if he had violated any work-related rules or policies. He then had a second review, after which the County issued him a notice of proposed dismissal.
The County then held an administrative hearing, which Mr. Bahra attended. After that hearing, the County issued a notice of dismissal. Mr. Bahra then appealed that notice, and was given a full evidentiary hearing that lasted 14 days, at which 27 witnesses were called and 89 exhibits were introduced. Despite Mr. Bahra’s efforts, the hearing officer found that he had not proved retaliation, and that the allegations against Mr. Bahra had been proved by the County. The hearing officer recommended that the Civil Service Commission of the County of San Bernardino uphold the termination, which it did.
Mr. Bahra then sought to vindicate his rights in court by filing a lawsuit under California’s Whistleblower Protection Law, Labor Code section 1102.5. The district court held that he was barred from doing that because he had participated in the earlier hearing. The Ninth Circuit reversed.
The Ninth Circuit based its analysis on Taswell v. Regents of Univ. of Cal. (2018) 232 Cal.Rptr.3d 628. In that case, the court held that administrative findings by a state agency do not preclude public employee whistleblowers from bringing claims in court for retaliation under Labor Code section 1102.5. The Ninth Circuit agreed with Taswell, and adopted its holding.
The Ninth Circuit distinguished Taswell from an earlier California Supreme Court case called Murray v. Alaska Airlines (2010) 237 P.3d 565. In Murray, the California Supreme Court had held that a federal agency’s investigative findings could preclude a later claim of retaliation pursued in a lawsuit. However, the Murray decision was careful to note that it was based on principles of comity and federalism, which are not present when the employee works for the State of California or one of its subdivisions.
In addition to his claim under Labor Code section 1102.5, Mr. Bahra also brought a claim under 42 U.S.C. § 1983. The Ninth Circuit held that that claims was precluded by the administrative proceedings for two reasons. First, Mr. Bahra had not argued that giving an administrative proceeding preclusive effect would violate legislative intend, the court found that he had waived that argument. Second, the administrative proceedings had sufficient “judicial character” to bar subsequent claims.
As a result, Bahra was something of a split decision. But at least Mr. Bahra was allowed to go forward on his claims under section 1102.5.
If you have questions about the ways that California laws protect whistleblowers in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.