APPEAL from a judgment of the Superior Court of Los Angeles County, Theresa Sanchez-Gordon, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC342669).
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiff and appellant Dartheatus Lloyd (Lloyd) appeals a judgment following a grant of summary judgment in favor of his former employer, defendant and respondent County of Los Angeles (the County).
The essential issues presented are whether Lloyd‟s action is barred by a failure to exhaust administrative remedies, and if not, whether a triable issue of material fact exists so as to preclude summary judgment.
In the published portion of this opinion, we hold:
Lloyd‟s claim he suffered a retaliatory dismissal for whistleblower activity did not constitute a claim of discrimination on the basis of a "non-merit factor" within the meaning of rule 25.01 of the County‟s Civil Service Rules (rules). Therefore, Lloyd was not required to exhaust his administrative remedies under the County‟s internal rules.
We also hold Lloyd‟s causes of action alleging statutory violations of the Labor Code are not barred by his failure to exhaust the administrative remedy afforded by Labor Code section 98.7. There is no requirement that a plaintiff pursue the Labor Code administrative procedure prior to pursuing a statutory cause of action. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 46, review den.; Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1359, review den.)
We further hold Lloyd‟s common law tort claims against the County, alleging retaliation and wrongful termination in violation of public policy, are barred by Government Code section 815‟s elimination of common law tort liability for public entities. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.)
In the unpublished portion of the opinion, we address the merits of Lloyd‟s other causes of action. We conclude the County met its burden to establish a legitimate justification for its employment decisions, and that Lloyd failed to raise a triable issue of material fact as to whether the County‟s reasons were pretextual. Therefore, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991, Lloyd commenced his employment with the County. In 1995, he became a permanent heat and frost insulator. In June 2003, Lloyd was laid off. In March 2004, he was rehired as a temporary employee. He worked in that capacity until January 2006, until he was laid off for a second time.
The operative second amended complaint, filed June 9, 2006, sets forth five causes of action against the County. The gravamen of the action is that Lloyd (1) was laid off initially, (2) rehired as a temporary employee, (3) kept in a temporary appointment for nearly two years, and then (4) was laid off for a second time, all in retaliation for his complaints about asbestos removal at Los Angeles County-USC Medical Center (LACUSC) and his refusal to remove asbestos without being duly certified.
The first cause of action alleges retaliation in violation of public policy (Cal. Const., art. I, § 1). The second cause of action alleges retaliation in violation of whistleblower statues (Lab. Code, §§ 6310, 6311). The third cause of action alleges retaliation in violation of public policy (Cal. Const., art. I, § 8). The fourth cause of action alleges retaliation in violation of whistle blower statutes (Lab. Code, §§ 98.6, 1102.5, 6399.7 & Gov. Code, § 8547). The fifth cause of action alleges retaliation in violation of the public policy delineated in said statutes.
3. Summary Judgment Proceedings
On March 12, 2007, the County filed a motion for summary judgment, arguing Lloyd could not establish a prima facie case of retaliation. The County further contended it had legitimate, nondiscriminatory reasons for the adverse employment actions of which Lloyd complained.
Specifically, the County asserted Lloyd was laid off in 2003 because (1) there was a department-wide work-force reduction, part of an effort to reduce the budget for the County‟s Department of Health Services (Department); (2) the reduction affected the permanent heat and frost insulator positions; and (3) Lloyd was the least senior heat and frost insulator at the time of the reduction.
Thereafter, Lloyd was rehired in March 2004 as a temporary employee because
(1) six months after Lloyd was laid off, the County realized it needed an additional heat and frost insulator at LAC-USC; (2) at that time, LAC-USC had a budget for an additional 1.7 temporary positions; and (3) the County rehired Lloyd because he was at the top of the re-hire list.
The County further contended it retained Lloyd in that capacity for nearly two years because various projects warranted Lloyd‟s continued employment.
Finally, Lloyd was laid off from his temporary appointment in January 2006 due to a lack of work.
In opposition, Lloyd asserted the following facts were undisputed: (1) he was illegally ordered to remove asbestos without proper certification; (2) he was twice fired for refusing to remove asbestos illegally; (3) the County retaliated against him by maintaining him in a temporary position exceeding 12 months, in violation of civil service rules; (4) he made numerous requests for an investigation into unlawful asbestos removal but the County failed and refused to conduct such an investigation; and (5) despite the existence of numerous job opportunities and openings, the County denied him permanent employment.
On June 1, 2007, the matter came on for hearing. The trial court granted the motion for summary judgment and orally delivered its ruling, as follows:
"There is no triable issue of fact that defendant had legitimate, nondiscriminatory reasons for its employment decisions. [¶] . . . [¶] Defendant has provided evidence of legitimate nonretaliatory reasons for plaintiff‟s terminations from permanent and temporary employment. The termination from permanent employment was due to budget cuts. The termination of temporary employment was due to lack of work. Plaintiff has failed to produce evidence that the reasons were pretextual.
"There is no evidence of proximity in time between the protected activity, refusing to remove asbestos and making complaints that he was asked to remove asbestos. Plaintiff was first asked to remove asbestos in 2001, two years before his termination. Plaintiff refused to remove asbestos ten to 15 times before his termination. Plaintiff engaged in the protected activity repeatedly over two years before termination without consequences.
"As a temporary employee, plaintiff also refused to remove asbestos and within the first three months of employment, filed two complaints that he was being asked to illegally remove asbestos. However, he was not terminated as a temporary employee until January, 2007, well over a year after he filed his complaint.
"Plaintiff also claims he was not given permanent status. The evidence is undisputed that the job posting at the time of his termination was in error and withdrawn, that the funding for his temporary position was only for a temporary, not permanent, position, and that plaintiff‟s name would remain on the rehire list for one year. The positions plaintiff states that he was not offered were advertised in January, 2006, after a rehire list expired. Plaintiff has not alleged that he applied for those jobs. Defendant did not have the ability to make his temporary position permanent, nor would defendant offer plaintiff a job for which he did not apply.
"It is necessary for each of the causes of action that plaintiff establish he was subject to retaliation. As plaintiff has not raised a triable issue of fact to defeat defendant‟s legitimate, nondiscriminatory retaliatory reasons for its actions, the motion for summary judgment is granted."
Lloyd filed a timely notice of appeal from the judgment.
Lloyd contends: he established a prima facie case of retaliation; the County failed to meet its burden to present a nonretaliatory justification for each of its four adverse employment decisions; his evidence created a factual issue as to whether the County‟s purported justifications for its adverse employment decisions were pretextual; and any exhaustion argument by the County is irrelevant.
The County contends summary judgment should be affirmed on the ground that Lloyd failed to exhaust his administrative remedies, and moreover, Lloyd failed to present evidence to create a triable issue of fact as to whether the County‟s reasons for its actions were a pretext for retaliation.
I. Trial Court Properly Rejected the County's Claim that Lloyd Was Required to Exhaust Internal Administrative Remedies Prior to Filing Suit*fn2
Citing the rule of exhaustion of administrative remedies (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292; Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321), the County contends Lloyd was obligated to pursue internal administrative remedies pursuant to the County‟s civil service rules, and his failure to exhaust bars his entire action. The County‟s argument is meritless because Lloyd‟s claim he suffered discrimination based on whistleblowing is not governed by the internal rules on which the County relies. We agree with the trial court‟s resolution of this issue.
Rule 4.01 provides in relevant part: "Right to petition for a hearing. Any employee or applicant for employment may petition for a hearing before the commission who is: [¶] A. Adversely affected by any action or decision of the director of personnel concerning ...