Dennis Peter Maio and Paul D. Fogel, attor- Miklosy v. Regents of the University neys in the Appellate Group in the San of California: The California Francisco office of Reed Smith LLP, represent- ed The Regents of the University of California Supreme Court Confronts the before the California Supreme Court in Miklosy . Mr. Fogel's practice focuses on Whistleblower Protection Act appeals and writs in a broad range of civil law areas, including employment, higher educa- tion, and public entity law. Mr. Maio's prac- By Dennis Peter Maio and Paul D. Fogel tice focuses on appeals and writs in a similarly broad range of civil law areas. The opinion in Miklosy v. Regents of status” and the “concomitant need for BACKGROUND the University of California , 1 issued July special provisions to govern whistleblow- The two plaintiffs in Miklosy were 31, 2008, was the California Supreme ing at the University.” 20 former employees of Lawrence Court’s first major decision construing With one important caveat, the Act Livermore National Laboratory and applying the California has always permitted a damages action (Laboratory), which was then operated Whistleblower Protection Act (WPA or against any person who retaliates against by the University of California for the a state agency employee. 21 That caveat, as Act). 2 The Act prohibits retaliation United States Department of Energy. against state employees—whether enacted, was that a damages action “shall The Laboratory terminated the employ- employed by state agencies, the California not be available … unless the [employee] ment of one plaintiff, while the other State University, or the University of has first filed a complaint with the State resigned. 12 Plaintiffs filed complaints for California—who “report waste, fraud, Personnel Board … and the board has retaliation under the WPA with the des- abuse of authority, violation of law, or failed to reach a decision” within specified ignated University officer at the threat to public health.” 3 In line with that time limits . 22 In so doing, the Act made a Laboratory. 13 After factfinding estab- prohibition, the Act authorizes an “action damages action a remedy available only if lished that neither plaintiff had suffered for damages” to redress any acts of retali- the State Personnel Board failed to reach retaliation—both plaintiffs refused to be ation. 4 But in the case of retaliation a timely decision. 23 interviewed in the investigation that fol- against employees of the University of With a similar caveat, the Act has lowed their complaints, and the investi- California, who now number more than always permitted a damages action gator interviewed more than twenty 150,000, 5 “any action for damages shall against any person who retaliates against witnesses and produced a several-page not be available . . . unless the injured a University of California employee. 24 written decision—the University, party has first filed a complaint with the That caveat, since its enactment, is that a through the Laboratory’s Director, [designated] university officer . . . and the damages action “shall not be available . . . rejected their complaints within the time university has failed to reach a decision unless the [employee] has first filed a limits The Regents had established. 14 regarding that complaint within the time complaint with the [designated] univer- Without filing a petition for writ of limits established for that purpose by the sity officer . . . and the university has failed mandate in superior court to review the regents. ” 6 The Miklosy court held that the to reach a decision . . . within the time lim- Laboratory Director’s decisions, plain- Act “means what it says, precluding a its established for that purpose by the tiffs then filed a complaint for damages regents .” 25 In so doing, the Act has always damages action when . . . the University of against The Regents and certain supervi- California has timely decided a retaliation made a damages action a remedy avail- sory employees, asserting WPA damages complaint.” 7 able only if the University fails to reach a claims, common law Tameny wrongful In addition to the interpreting the timely decision. termination claims, and common law WPA, Miklosy resolved issues involving In 1994, the Legislature amended the intentional-infliction-of-emotional-dis- the common law of wrongful termination Act to permit a damages action against tress claims. 15 The superior court sus- in violation of public policy under any person who retaliates against a tained defendants’ demurrer without Tameny v. Atlantic Richfield Co. 8 and California State University employee, leave to amend and dismissed the again with one caveat. 26 That caveat pro- intentional infliction of emotional dis- action. 16 The court of appeal affirmed. 17 tress. The court held that The Regents of vided that a damages action “shall not be The California Supreme Court granted the University of California were immune available . . . unless the [employee] has review—and proceeded to affirm. 18 from Tameny wrongful termination first filed a complaint with the [designat- claims under the California Government ed] university officer . . . and the univer- WHISTLEBLOWER PROTECTION ACT Claims Act 9 and that supervisory employ- sity has failed to reach a decision . . . DAMAGES CLAIMS ees were outside the scope of such claims within the time limits established for that because they are not “employers.” 10 The In 1993, the Legislature enacted the purpose by the trustees ”—but further WPA. 19 From its inception, the Act has court also held that neither The Regents provided that the employee was not “pro- dealt with employees of state agencies nor supervisory employees were subject hibit[ed] . . . from seeking a remedy if the and the University of California in sepa- to intentional infliction claims by opera- university has not satisfactorily addressed rate provisions, reflecting its awareness tion of the exclusive remedy provision of the complaint within 18 months .” 27 of The Regents’ “unique constitutional the Workers’ Compensation Act. 11 continued on page 15 Volume 22, No. 6 California Labor & Employment Law Review 3
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