UC Whistleblower Needs Not Exhaust to Sue

Taswell v. Regents of the Univ. of Cal., No. G053960 (D4d3 May 14, 2018)

The Government Code contains a statutory scheme to protect UC employees who become whistleblowers. They can vindicate their rights in an administrative proceeding run by the university system. But the statute also expressly permits a victim of retaliation to file a damages suit “if the university has not satisfactorily addressed the complaint within 18 months.”

Plaintiff here participated in the admin proceeding and lost. He did not, however, seek review of that ruling by filing a writ of administrative mandamus. Instead, he filed a separate lawsuit in superior court. The question is, does his failure to seek review of the admin ruling doom his lawsuit, whether through res judicata or a failure to fully exhaust the prior administrative remedies?

Relying on a Supreme Court case that interpreted an almost identical scheme applicable to CSU employees, the Court of Appeal holds it doesn’t. Although administrative cases can sometimes have preclusive effect, and a failure to seek administrative mandamus can sometimes bar a case for failure to exhaust, it all depends on the way the Legislature sets up the process. The statute here is specifically set up to permit an employee who doesn’t obtain a satisfactory administrative result to bring a de novo case. So Plaintiff’s loss in the prior case and his election not to seek writ review does not doom this one.

Reversed.