Hastings

A tenured university professor claimed he was removed as chair of a department in retaliation for his whistleblower activities. The university investigated his complaint and found the professors claim of retaliation without merit. The professor filed suit against the university and the dean of the department seeking damages for the alleged unlawful retaliation. The trial court entered summary judgment in favor of the university and dean, finding the professors action for damages barred because he had failed to exhaust his judicial remedies by first seeking writ relief to overturn the administrative decision. We affirm.

BACKGROUND

Appellant, Richard L. Runyon, has been a professor at respondent California State University Long Beach (CSU) since 1968. In 1991 Runyon was elevated to the position of Chair of the Finance, Real Estate and Law Department of the College of Business Administration.

Respondent, Luis Ma Calingo, became the dean of the College of Business Administration in 2000. In the fall of 2000 Dean Calingo awarded merit increases to the College of Business Administration professors, including Runyon. At a December 2000 meeting of department chairs Runyon complained that Calingos approval of the $500 merit increase to the chair of the search committee was an illegal payoff for selecting Calingo to be the new dean. Calingo and Runyon met after the meeting. According to Runyon, Calingo told him he could either resign his chair or Calingo would fire him. According to Calingo, Runyon told him he would rather resign than to accept the improper payoff. Calingo understood Runyons comment to be a verbal resignation from the chair position. Calingo declared the chair position vacant on December 8, 2000. Runyon complained to Calingos superiors who advised Calingo to rescind the termination and Calingo reinstated Runyon as chair in January 2001.

Runyon voiced numerous other complaints about Calingo beginning shortly after Calingos arrival at CSU. Runyon believed many of Calingos decisions or policies affecting the College of Business Administration were either wasteful or illegal. Runyon complained that:

(1) Calingo only spent between three to four days on campus. Calingo commuted to CSU from his home in Fresno and often left the campus on Thursday afternoon or early Friday.

(2) Calingo missed numerous CSU related events which had historically required the deans presence.

(3) Calingo made frequent trips to Asia largely at CSU expense, trips which did not have an apparent benefit to CSUs College of Business Administration.

(4) Calingo failed to intervene, investigate or punish a professor who got into altercations with personnel in the Finance Department.

(5) Calingo countermanded Runyons order and permitted professors in Runyons department to attend a conference in Mexico, despite a budget shortfall, and despite the questionable relevance of the conference to the professors discipline.

(6) Calingo permitted the College of Business Administration to incur an operating deficit of $400,000 in the 2003/2004 academic year, allegedly because of Calingos mismanagement.

(7) Calingo refused to reimburse Runyons department from College of Business Administration funds for the salaries of two professors who requested sick leave for catastrophic health problems.

(8) Calingo offered a new hire a tenured full professor position over the negative vote of the departments tenured faculty.

(9) Calingo undermined him as chair by refusing to accept his recommendation to add a basic finance class to the MBA program.

Four professors in Runyons department began complaining openly about Runyons management and leadership skills, in part because Runyons directives conflicted with Calingos position. In March 2004, Runyon sent Calingo a series of memoranda, with copies to the provost, senior vice president and others, detailing his complaints about Calingo and Calingos management of the College of Business Administration. On April 7, 2004 Runyon met with the provost and vice president and they apparently warned him further public criticism of Calingo would not be tolerated.

In 2003, Calingo had reappointed Runyon to another three-year term as chair of the Finance, Real Estate and Law Department. In his letter of appointment, Calingo charged Runyon with the task of developing curriculum changes, stating, "As regards your leadership of the Department, I expect you to lead the Department in designing curriculum improvements that will result in changes in the Finance Options curriculum requirements (including the design of new courses, as appropriate), thereby ensuring that the Finance program is attuned to the needs of the marketplace. I would like to see these processes commence no later than the Fall 2003 semester so that curriculum change proposals could be submitted to the Undergraduate Curriculum Committee by the end of Spring 2004."

At Runyons annual performance review on April 26, 2004 Runyon met with Calingo to review his proposed curriculum, and the adequacy of the processes Runyon had employed to vet his proposed curriculum. Calingo expressed dissatisfaction with Runyons performance and asked him to step down as chair of the Finance, Real Estate and Law Department, stating he had lost confidence in Runyons ability to chair the department. Calingos stated reason was that Runyon had failed to meet the conditions of his letter of appointment to the chair position. Runyon refused to resign his chair voluntarily and Calingo terminated his chairmanship.

Runyon believed Calingos stated reason of inadequate curriculum review was merely a pretext for the deans actual motive of retaliation for his earlier whistleblower activities. Runyon filed a whistleblower complaint under Executive Order No. 822, CSUs internal procedures for addressing whistleblower claims, alleging CSU and Calingo had retaliated against him for his whistleblower activities in violation of the California Whistleblower Protection Act. (Gov. Code, § 8547 et seq., further unmarked statutory references are to the Government Code.)

Executive Order No. 822 establishes a procedure for responding to whistleblower complaints by CSU employees who allege they have been retaliated against for having engaged in protected disclosures under the California Whistleblower Protection Act. Executive Order No. 822 implements section 8547.12 of the California Whistleblower Protection Act (pertaining exclusively to employees of CSU) and its purpose "is to provide a timely and effective procedure for the resolution of such complaints." No hearing is required or provided under Executive Order No. 822.

Runyons whistleblower complaint detailed his concerns about Calingos and CSUs "improper governmental activities," summarized above. Runyons complaint alleged he had been retaliated against for having made these "protected disclosures" and specified three actions which he claimed had been retaliatory: (1) Calingos removal of him as chair of the Finance, Real Estate and Law Department without first asking the department faculty for a vote of confidence; (2) Calingos denial of his request to transfer $50,000 to the Student Managed Investment Fund Account; and (3) Calingos refusal to let Runyon keep his old telephone number after he was no longer chair of the department.

CSU began an investigation of Runyons complaint in accordance with Executive Order No. 822. Ellen Bui, CSUs Manager of Human Resources, conducted the investigation. Over a four-month period, Bui interviewed 13 witnesses, interviewed Runyon three times, corresponded with Runyon and his counsel, and reviewed reports. She finalized her investigation by preparing a 19-page report which concluded that while Runyon suffered an adverse employment action by being removed as chair of the department, the decision to remove him as chair was based on a legitimate business decision unrelated to any retaliatory motive.

Runyon filed a 14-page response to the report and summary of the investigation. Thereafter, CSU issued a timely letter of determination. In this letter, the vice chancellor reviewed the investigators findings, Runyons response, and drew her own conclusions. The vice chancellor ultimately found that Runyon had made a protected disclosure when he reported to the provost his concerns about the deans attendance and that he had suffered an adverse employment action when Calingo removed him as chair. However, the vice chancellor agreed with the human resource manager that the investigation showed "there was no causal connection between [Runyons] protected disclosure and the deans decision to remove [him] from the chair position." Accordingly, CSU denied Runyons complaint.

Runyon filed an action for damages against CSU and Calingo claiming unlawful retaliation under the California Whistleblower Act. (§ 8547.12.)

CSU and Calingo filed a motion for summary judgment. They argued Runyons action was barred because (1) a precondition to filing a valid suit for damages was reversal of the adverse quasi-judicial decision through administrative mandamus review under Code of Civil Procedure section 1094.5, and (2) Runyons evidence he was retaliated against because of his whistleblower activities was insufficient as a matter of law.

Runyon filed opposition. He argued there were triable issues of material fact whether his removal as chair was based on retaliatory motives. He also argued he was not required to seek relief through administrative mandamus because (1) section 8547.12, subdivision (c) permitted a CSU employee to file suit directly if the employee believed CSU had not "satisfactorily addressed" the complaint, (2) administrative mandate under Code of Civil Procedure section 1094.5 was inapplicable because Executive Order No. 822 does not require a hearing, and (3) a writ proceeding would have been futile because of the deference usually accorded administrative decisions and because of the lack of an adequate record for the court to review. Runyon pointed out it was not until he conducted discovery in his civil action that CSU provided Runyon the investigators raw notes—the evidence he needed to establish his claims.

In their response, CSU and Calingo argued that even if an evidentiary hearing was not required or provided, Runyon was nevertheless required to exhaust his judicial remedies before filing suit by seeking instead an ordinary writ of mandate under Code of Civil Procedure section 1085.

After hearing extensive argument on the motion the trial court ruled an action for damages under section 8547.12, subdivision (c) was precluded if CSU conducted an investigation in good faith and rendered a timely decision, unless the employee first sought judicial review of CSUs final decision by way of a writ of mandate and succeeded in having the decision reversed. Because Runyon did not pursue any type of writ relief the court concluded his action for damages was barred. The court also rejected Runyons challenges to the writ review requirement claiming that (1) he was exempt from the writ requirement because his complaint was not "satisfactorily addressed" by CSU, (2) CSUs procedures for reviewing complaints was inadequate, and (3) pursuing writ relief was futile with an inadequately developed evidentiary record. The court entered judgment in favor of CSU and Calingo and Runyon appealed.

DISCUSSION

Standard of Review

A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

"`"A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action]. . . ."" (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.)

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., § 437c, subd. (c).)

"Satisfactorily Addressed"

The California Whistleblower Protection Act (§ 8547 et seq.) prohibits retaliation against state employees who "report waste, fraud, abuse of authority, violation of law, or threat to public health . . . ." (§ 8547.1.) The Act authorizes "an action for damages" to redress acts of retaliation. (§§ 8547.8, subd. (c) [state employees], 8547.10, subd. (c) [University of California employees], 8547.12, subd. (c) [California State University employees].) These three statutes have similar purposes but have somewhat different criteria for pursuing an action for damages.

For state employees, section 8547.8, subdivision (c) specifies, "any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683."

For University of California employees, section 8547.10, subdivision (c) states, "any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer . . ., and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents." The Supreme Court recently interpreted this statutory language to "mean[] what it says," namely, "a civil action for damages against the University is available only when the plaintiff employee has first filed a complaint with the University and the University has failed to reach a timely decision on the complaint." (Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 898 (Miklosy).) The Miklosy court acknowledged a damages action in state court might afford a more favorable forum, greater procedural protections, and better further the purposes of the whistleblower act, but concluded the "appropriateness of granting these procedural protections to University whistleblowers is a matter of policy that is not for this court to determine." (Miklosy, supra, 44 Cal.4th at p. 890.)

In the case of retaliation against a CSU employee, the preconditions for filing a civil action are similar, but with one notable exception. Section 8547.12, subdivision (c) provides "any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer . . ., and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the trustees. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months." (Italics added.) This last sentence does not appear in the other provisions. In noting the difference, the Miklosy Court opined that "[t]he addition of the last sentence, and specifically the modifier `satisfactorily, rais[ed] the possibility that a court might find the state universitys decision unsatisfactory (though timely) and on that basis permit a damages action. (Ohton v. Board of Trustees of the California State University (2007) 148 Cal.App.4th 749, 765.)" (Miklosy, supra, 44 Cal.4th at p. 886.) However, the Miklosy Court expressed no view "on the substantive content, if any, of the term `satisfactorily in section 8547.12, subdivision (c)." (Ibid.)

Runyon contends the phrase "satisfactorily addressed" suggests the Legislature believed that merely addressing a complaint within 18 months was not enough, but that it also must be "addressed to the satisfaction of the employee." Thus, Runyon asserts this clause authorized him to bring his damages action because, from his perspective, CSU did not "satisfactorily address[]" his complaint. (§ 8547.12, subd. (c).) CSU, in contrast, argues the correct interpretation of the phrase "satisfactorily addressed" means CSU rendered a final decision within the prescribed 18 months.

The Court of Appeal addressed these very arguments in Ohton v. Board of Trustees of the California State University, supra, 148 Cal.App.4th 749 (Ohton). In Ohton, a football coach contended he was retaliated against after he reported violations of the National Collegiate Athletic Association rules and other improprieties during an official CSU audit. (Id. at pp. 754-755.) He filed a complaint with CSU under Executive Order No. 822 and CSU hired outside counsel to investigate his complaint, which was denied. (Id. at pp. 756-761.) Ohton filed a civil action for damages against CSU under section 8547.12, subdivision (c). Like Runyon, he did not challenge CSUs final determination by filing a petition for writ of mandate. (Id. at p. 762.) CSU moved for summary judgment, claiming (1) it had timely addressed Ohtons complaint and (2) Ohtons action was barred by his failure to exhaust his judicial and administrative remedies. (Ibid.) The trial court granted the motion on the ground CSU had timely addressed Ohtons complaint. (Id. at p. 763.)

On appeal, CSU argued Ohtons action for damages was barred because it had timely addressed his complaint by reaching a final decision within the statutorily required 18 months. In Ohton, as here, CSU asserted the term "satisfactorily addressed" in section 8547.12, subdivision (c) should be interpreted as simply requiring that the complaint be addressed through its internal procedures under Executive Order No. 822 and a decision reached within 18 months. The court rejected this interpretation, reasoning it would read the words "satisfactorily addressed" out of the statute. (Ohton, supra, 148 Cal.App.4th at p. 764.)

The court also rejected Ohtons argument, identical to Runyons in this case, that the phrase "satisfactorily addressed" meant "to the subjective satisfaction of the whistleblower." "Ohtons subjective interpretation of `satisfactorily addressed can be rejected out of hand. Such an approach would render the statutory and administrative proceedings mandated by section 8547.12 and EO 822 nugatory; a complainant need only assert that he is unhappy with the decision in order to overturn it. We find no indication that the Legislature intended such a farfetched standard." (Ohton, supra, 148 Cal.App.4th at p. 765.) The court concluded Ohtons alternative "objective good faith" interpretation of the phrase "satisfactorily addressed" was "closer to the mark." The words "satisfactorily addressed" "imput[ed] a clear obligation on CSU to act in objective good faith in fulfilling its duties under the [California Whistleblower Protection Act]." (Ibid.)

We find the Ohton courts analysis of the proper interpretation of "satisfactorily addressed" in section 8547.12, subdivision (c) persuasive and adopt it as our own. "Satisfactorily addressed" has to mean more than simply "timely rendered," as CSU argues, or the phrase would be eliminated from the statute. At 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.

We also reject the subjective interpretation of "satisfactorily addressed" that Runyon urges. His interpretation would provide no standard for determining when filing an action for damages would be appropriate. We do not believe the Legislature would have included these words if they lacked any substance and their meaning depended on the particular whistleblowers view of the outcome of the administrative proceedings. Accordingly, as in Ohton, we reject Runyons claim "satisfactorily addressed" in section 8547.12, subdivision (c) means a whistleblower is entitled to file an action for damages whenever the outcome of the administrative proceedings is not to the whistleblowers satisfaction.

Exhaustion of Judicial Remedies

Runyon contends he was entitled to proceed directly to an action for damages because CSUs internal proceeding was a sham, it failed to provide him with minimal due process, and as such, failed to "satisfactorily address[]" his complaint of retaliation for his whistleblower activities. Runyons assertion is not supported by existing authority.

Notably, the whistleblower in Ohton made the same arguments Runyon makes in this court. The Ohton court rejected these arguments and concluded review and reversal of an adverse decision by writ of mandate was a precondition for filing a suit for damages under section 8547.12, subdivision (c). The Ohton court explained, "We reject Ohtons contention that he was not required to challenge the CSU proceeding and final decision by filing a petition for writ of mandate. There is no indication from the statute or its legislative history that an exception to the requirement for a writ of mandate was contemplated when section 8547.12 was enacted. CSU correctly notes `courts should not presume the Legislature in enactment of statutes intends to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication. [Citation.] Abandonment of the mandamus requirement is not implied by the granting of a civil remedy because the statute requires the complainant to establish that CSU has not `satisfactorily addressed his complaint as a condition precedent to sue for damages." (Ohton, supra, 148 Cal.App.4th at p. 767.)

The conclusion a prerequisite for filing a suit for damages under section 8547.12, subdivision (c) is review and reversal of an adverse administrative decision by securing a writ of mandate is reinforced by numerous decisions in analogous situations. (See, e.g., Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 71 [when employees have availed themselves of the administrative remedies a statute affords, and have received an adverse quasi-judicial finding, that finding is binding on subsequent discrimination claims under the FEHA unless set aside through a timely mandamus petition]; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484 ["so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the [defendants] action. . . . Accordingly, we conclude that plaintiff must first succeed in overturning the quasi-judicial action before pursuing her tort claim against defendants"]; California Public Employees Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 185 ["If the Legislature intends to allow whistleblowers to abort the administrative proceedings by filing a civil action without first overturning adverse findings through a writ of mandate, it will have to make its intentions explicit"]; Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1724 ["Important public policy interests are served by providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions"]; McGill v. Regents of the University of California (1996) 44 Cal.App.4th 1776, 1785 ["Judicial review of most public agency decisions is obtained by a proceeding for a writ of ordinary or administrative mandate"]; Bunnett v. Regents of the University of California (1995) 35 Cal.App.4th 843, 848 ["The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate"].)

Any doubt whether Runyon was required to secure a ruling in a writ proceeding that CSU had not "satisfactorily addressed" his complaint as a precondition to filing his action for damages has been dispelled by the Supreme Court in Miklosy. In Miklosy, as noted, the Supreme Court determined a damages action was precluded when the University of California timely decided a whistleblower retaliation complaint in its favor. In so holding, the court pointed out even this narrow construction of the statute "did not leave the Universitys decision completely unreviewable [because] an action for a writ of mandate provides limited review . . . ." (Miklosy, supra, 44 Cal.4th at p. 890.) The concurring opinion in Miklosy similarly observed that review by mandate would be available to reverse adverse determinations of whistleblower retaliation claims. The concurring opinion commented, "[b]ecause the Universitys process for resolving whistleblower retaliation complaints does not include the right to an evidentiary hearing before a neutral hearing officer, substantial-evidence review by petition for writ of administrative mandate is not available. (See Code Civ. Proc., § 1094.5.) On petition for ordinary mandate (id., § 1085), the agency decision is reviewed on the much laxer and more limited arbitrary-and-capricious standard (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2; Valnes v. Santa Monica Rent Control Bd. (1990) 221 Cal.App.3d 1116, 1119), effectively insulating University decisions so long as they are timely made under regular procedures and are not facially irrational." (Miklosy, supra, 44 Cal.4th. at p. 904, fn. 2, conc. opn. of Werdegar.)

More importantly to this case, the Miklosy Court stated that a court might find that CSU had not "satisfactorily addressed" a whistleblowers complaint and permit a damages action on that basis. (Miklosy, supra, 44 Cal.4th at p. 886 ["the modifier `satisfactorily, raises the possibility that a court might find the state universitys decision unsatisfactory (though timely) and on that basis permit a damages action"].) These comments from the Miklosy court reinforce the view a prerequisite for pursuing an action for damages under section 8547.12, subdivision (c) is review and reversal of an adverse administrative decision through a proceeding for writ of mandate.

Throughout these proceedings Runyon has steadfastly asserted he was entitled to bring an action for damages because his complaint was not "satisfactorily addressed" and thus writ review of the adverse decision was not required, or would have been futile because of the absence of a developed evidentiary record, and the extreme deference trial courts usually afford administrative decisions in mandamus proceedings. These shortcomings might well describe ordinary mandate review. However, to excuse the requirement of exhausting judicial remedies by first obtaining a writ of mandate as a prerequisite to filing an action for damages would run counter to a substantial body of law precluding an action for damages unless the challenged adverse administrative decision is first overturned in a mandate proceeding. In this case, we conclude Runyons failure to successfully establish through a writ proceeding that his claim had not been "satisfactorily addressed" operated as a bar to his action for damages. (Ohton, supra, 148 Cal.App.4th at p. 769.) CSU was thus entitled to judgment as a matter of law and the trial court did not err in granting summary judgment in its favor.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.