Court: U.C. Whistleblowers Have Nowhere to Go

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The California Supreme Court decided last week what two subordinate levels of the state’s judiciary had already agreed on: an employee of the University of California who reports fraud, waste, abuse or other problems within his or her unit of the system, and who then suffers career abrasion or termination, has no standing to bring a suit for damages under the state’s Whistleblower Protection Act so long as the University itself has checked out the retaliation complaint and, with proper timeliness, found it baseless.

This lack of an independent forum for relief is no accident, as the court noted. The Whistleblower Protection Act allows other state employees in general to sue for damages so long as they have taken their retaliation grievances first to the State Personnel Board. The Act allows California State University employees to seek outside remedies if their employer’s internal processes have failed to provide a satisfactory resolution within 18 months. But the Supreme Court majority held that, thanks to the Act, UC’s internal dispute resolution process, providing it yields some result in a timely way, leaves no avenue of appeal in court.

To appreciate what public awareness issues can be at stake here, consider what these whistleblowers were saying, as described in the high court’s opinion in Miklosy v. Regents:

Plaintiffs Leo Miklosy and Luciana Messina are computer scientists who, in February 2003, were employed . . . at the Lawrence Livermore National Laboratory (the Laboratory). Plaintiffs worked in the National Ignition Facility on a project designed to determine the safety and reliability of the nation’s nuclear weapons stockpile. One method of evaluating the safety and reliability of these weapons involved shooting laser beams at “nuclear material” placed in a “Target Chamber.”

As their work proceeded, plaintiffs “identified problems with the . . . project, including . . . potential collisions by large million dollar robotic ‘positioners’ within the [Target Chamber] . . . , the delivery of unusable and untested control software, a lack of defined engineering and operational processes . . . , and inadequate . . . control operator training . . . .” Plaintiffs repeatedly expressed their concerns to management, both orally and in writing, enumerating specific mechanical problems with the positioners and the robotic controls.

On Friday, February 28, 2003, defendants Kim Minuzzo, Larry Lagin, and Jerry Krammen, who were supervisory employees of the Laboratory, fired Miklosy. As he was leaving the premises, Miklosy heard Minuzzo tell Krammen: “Messina is next.” Believing her performance was comparable to that of Miklosy, Messina submitted a letter of resignation. Lagin and Minuzzo asked Messina to reconsider her resignation over the weekend, which she agreed to do. When Messina returned to her office after this meeting, she found her computer disconnected.

On Monday, March 3, 2003, Messina inquired about transferring to a different position at the Laboratory, but Minuzzo telephoned her the next day and directed her to return to the National Ignition Facility. After that conversation had ended, but before the telephone call was disconnected, Messina overheard Minuzzo tell another employee that he intended to fire Messina. Messina resigned as of March 7, 2003.

When Miklosy and Messina filed whistleblower complaints, the internal investigating officer concluded that they had not been fired for expressing their technical concerns; Miklosy was let go for unsatisfactory work, and Messina was not fired at all, but asked to stay on. And that, all courts subsequently agreed, was the only relief afforded the pair under the Act.

Justice Kathryn Mickle Werdegar, in a concurring opinion joined by Chief Justice Ron Geoge and Justice Carlos Moreno, said the Act was ambiguous: Was the UC’s internal dispute resolution mechanism intended to be simply an exhaustion requirement, i.e. a mandatory first stop for any employee alleging retaliation, or was it meant, as the court majority concluded, as the exclusive and final source of review for retaliation claims?

The latter interpretation accords with the statute’s unambiguous language but is contrary to the overall purposes and structure of the Act. I urge the Legislature to revisit this statute and if, as I suspect, it intended to create only a requirement that complainants exhaust their internal remedies, to amend the statute in a manner that makes that intent clear.

The issue seems tailor-made for Senator Leland Yee (D-San Francisco), whose legislative work this year currently includes a bill to improve employee remedies under the Whistleblower Protection Act; and for the second year in a row, the American Federation of State, County and Municipal Employees (AFSCME) Local 3299, which represents over 20,000 UC employees, this past Saturday named Senator Yee as their Legislator of the Year.

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