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Runyon v. Board of Trustees of the California State University

May 3, 2010


Ct.App. 2/1 B195213, Los Angeles County Super. Ct. No. BC340560.

The opinion of the court was delivered by: Werdegar, J.

When an employee of the California State University (CSU) claims he or she suffered retaliation for making a protected disclosure under California's Whistleblower Protection Act (the Act) (Gov. Code, § 8547 et seq.),*fn1 and CSU, after an internal investigation, rejects the employee's claim of retaliation, must the employee obtain a writ of mandate overturning CSU's decision before he or she may bring an action for damages under section 8547.12? We hold CSU employees, like employees of state boards and agencies (see State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 978), need not exhaust the judicial remedy of a mandate petition before pursuing the judicial remedy for which the Act expressly provides, an action for damages.


Because the issues before us are entirely procedural, we will not rehearse here the factual details of plaintiff's complaint or the evidence for and against those allegations presented in connection with defendants' summary judgment motion. In brief, plaintiff, a tenured professor in the College of Business Administration at CSU Long Beach, was chair of that college's Finance, Real Estate and Law Department from 1991 until 2004, when defendant Luis Ma Calingo, dean of the College of Business Administration, removed him from the chairmanship.

In October 2004, plaintiff filed a complaint with CSU's vice-chancellor of human resources against CSU and Dean Calingo, alleging he had been removed as departmental chair and subjected to other adverse actions in retaliation for his having reported improper conduct by Calingo. Pursuant to CSU's established procedures for resolving whistleblower complaints, Ellen Bui, a CSU human resources manager, was designated to investigate the complaint.*fn2 In March 2005, Bui provided a summary of her investigation and conclusions to the vice-chancellor of human resources, who forwarded a copy to plaintiff. Bui concluded the revelations plaintiff claimed to have made regarding Dean Calingo's wrongdoing did not qualify as protected disclosures under the Act; that plaintiff did suffer an adverse employment action in being removed from the chairmanship of his department (a position that carried an increased salary and stipend); but that Calingo had removed plaintiff as departmental chair because plaintiff had made inadequate progress toward an expected review of the department's curriculum, rather than in retaliation for plaintiff's complaints and accusations against him.

In a written response, plaintiff took issue with many of Bui's conclusions. In particular, plaintiff argued Dean Calingo's stated reason for removing him - his failure to meet expectations regarding a curriculum review process - was pretextual. In an April 2005 letter of determination from the vice-chancellor of human resources, however, CSU decided that, while plaintiff had made a protected disclosure in complaining about Dean Calingo's habitual absence from campus, he had not been removed as chair because of that disclosure, but for having what the dean considered an inadequate curriculum review process.

Plaintiff then filed this action for damages against CSU and Calingo, alleging retaliation in violation of section 8547.12. The trial court granted defendants' motion for summary judgment on two grounds. First, subdivision (c) of section 8547.12 authorizes a civil action only if CSU "has failed to reach a decision" within the time set by its internal procedures.*fn3 While the subdivision goes on to say that it does not bar an action if CSU has not "satisfactorily addressed" the complaint within 18 months, the trial court interpreted that language as meaning only that CSU is subject to a civil action if it fails to reach a decision within the stated timeframe, a condition not met here. Second, the court held plaintiff was required to successfully challenge CSU's decision by writ of mandate, whether administrative (Code Civ. Proc., § 1094.5) or ordinary (id., § 1085), before bringing an action for damages; plaintiff, that is, failed to exhaust his judicial remedies.

The Court of Appeal affirmed. Relying on Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749 (Ohton), the court rejected plaintiff's contention that by denying his claim of retaliation CSU failed to "satisfactorily address[]" his whistleblower complaint; the quoted language, the Court of Appeal held, did not mean " 'addressed to the satisfaction of the employee.' " At the same time, again following Ohton, the court rejected CSU's interpretation (adopted by the superior court here), under which "satisfactorily addressed" would mean simply " 'timely rendered.' " Rather, the appellate court here opined, "[a]t minimum, the phrase must mean a thorough investigation of whistleblower claims of retaliation, conducted in good faith, consistent with the spirit and purpose of the California Whistleblower Protection Act."

The Court of Appeal further held summary judgment for the defense was proper because plaintiff had not, before bringing his action for damages, "successfully establish[ed] through a writ proceeding that his claim had not been 'satisfactorily addressed'...." Reversal of an adverse CSU decision through a proceeding for writ of mandate, the appellate court concluded, is a prerequisite for pursuing an action for damages under section 8547.12, subdivision (c).

We granted plaintiff's petition for review.


We are required here to determine the procedural prerequisites for bringing an action for damages under section 8547.12, subdivision (c), and in particular to decide whether, when CSU has reached a final administrative decision adverse to the alleged whistleblower, he or she must, before bringing a damages action, demonstrate through a petition for writ of mandate that CSU failed to "satisfactorily address[]" the internal complaint. To decide that we must also decide what the quoted statutory phrase means.

While this court has not previously addressed either question, we have recently faced parallel issues arising under related parts of the Act.

Subdivision (c) of section 8547.10, which authorizes an action for damages by an employee of the University of California alleging retaliation for a protected disclosure, provides that the action is not available unless the employee has made an internal complaint "and the university has failed to reach a decision regarding that complaint" within the applicable time limit. This subdivision of section 8547.10 closely matches the corresponding part of section 8547.12, except that it does not contain the latter's last sentence: "Nothing in this section is intended to prohibit the ...

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