Whistleblower Protection Expanded in Retaliation Suit

(via Michigan Dept. Ed.)

A San Diego schools’ manager may use whistleblower laws to fight his firing, says a state court of appeals decision that provides an expansive reading of whistleblower protections.  San Diego’s Fourth District Court of Appeals reinstated Rodger Hartnett’s suit for alleged retaliation, after the San Diego County Education Office fired him in October 2007 for alleged incompetence, insubordination and dishonesty.

Following his dismissal, Hartnett sued, claiming retaliation for blowing the whistle on individual defendants, whom he said had traded the Education Office’s legal business with family and friends, in exchange for gifts that included discounted personal legal services.  Hartnett was a claims coordinator for the Education Office’s risk management department.

The appeals decision overturns the San Diego trial judge’s grant of summary judgment for  individual defendants in the county education office.  Trial Judge Steven R. Denton reasoned that, although the Education Code prohibits interference with the types of disclosures made by Hartnett, it did not apply to the individual defendants, because the code also specifically excludes management employees from liability.

But the appeals court found, despite the Education Code exemption, that the individuals may have been acting in a “supervisory employee” capacity and thus were not exempt from suit over  personnel actions, such as the alleged retaliation against Hartnett.

The supervisory employee classification was neither expressly included nor excluded from the definition of employee in the government code, according to Justice Judith McConnell.

“Nevertheless, the legislative history indicates the California School Employees Association sponsored the legislation to give public school employees protections similar to those provided to state employees under the California Whistleblower Protection Act… so that public school employees, particularly classified school employees and teachers, could ‘bring forward to their supervisors or management improper activities without having to fear they are endangering their jobs,’” she wrote.

Since the California School Employees Association-sponsored legislative history bears out strong whistleblower protections, McConnell inferred intent to hold accountable any supervisory employees who allegedly retaliated against Hartnett.

But it is not all good news for Hartnett.  He argued that he should be eligible to claim punitive damages and attorney fees, but under the statute, these do not apply to employees designated as managers, unless the Public Employment Relations Board (PERB) finds the designation in error.  Hartnett was considered a manager at the time.  But the appeals court remanded his suit to allow him to amend the complaint to sue under a different statute, and potentially include a federal civil rights violation claim.

Justice McConnell was joined by Justices Patricia Benke and Gilbert Nares.

Case:  Hartnett v. Crosier, No. D058914



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