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Monday, September 21, 2015

Wabakken v. California Department of Corrections & Rehabilitation: State Personnel Board's Findings Do Not Bar Relitigation of Whistleblower Claims in Court

Just a quick word on Wabakken v. California Department of Corrections & Rehabilitation (9th Cir. 9/14/15). In Wabakken, the plaintiff was terminated after receiving three warnings for misconduct. He appealed the three adverse actions to the California State Personnel Board, which found that some of the accusations of misconduct were justified but overturned the termination decision. Wabakken then sued in district court for violations of 29 U.S.C. section 1983, California Government Code § 8547 ("California Whistleblower Protection Act") and intentional infliction of emotional distress. The district court granted the defendants’ motion for summary judgment, holding that the State Personnel Board findings collaterally estopped Wabakken from relitigating the whistleblower retaliation issue. The Ninth Circuit reversed, holding as follows:

Under State Board of Chiropractic Examiners v. Superior Court, 45 Cal. 4th 963 (2009), "the State Personnel Board’s decision does not have preclusive effect under theories of res judicata and collateral estoppel and thus does not prevent Wabakken from litigating his whistleblower retaliation damages claim in the district court."
The California Supreme Court held that § 8547.8(c) “means what it says: An employee complaining of whistleblower retaliation may bring an action for damages in superior court, but only after the employee files a complaint with the State Personnel Board and the board ‘has issued, or failed to issue, findings.’” Id.(quoting § 8547.8(c)) (emphasis omitted). Thus, once the State Personnel Board has issued findings, or failed to do so, “the employee may proceed with a damages action in superior court regardless of whether the [State Personnel Board’s] findings are favorable or unfavorable to the employee.”
The opinion is available here.

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