Burke Obtains Summary Judgment in Retaliation Case

By Carmen M. Aguado

On May 17, 2018, USDC Judge Jesus G. Bernal granted summary judgment in favor of the County of San Bernardino (“County”) and individually named County employees (collectively, “Defendants”) in Eric Bahra v. County of San Bernardino, et al., Case No. EDCV 16-1756 JGB (SPx), a retaliation case brought under 42 U.S.C. § 1983 and California Labor Code § 1102.

The plaintiff, in this case, was a former employee of the County Children and Family Services Department (“CFS”), who was terminated for violating numerous County policies. After a lengthy civil service hearing, which Burke defended the County in, the hearing commissioner found the plaintiff did not present sufficient evidence to demonstrate the County’s decision to terminate him was retaliatory and, thus, upheld plaintiff’s termination. The plaintiff then filed a federal claim alleging retaliation for exercising his right to free speech in violation of 42 U.S.C. § 1983 and retaliation in violation of California Labor Code § 1102. The plaintiff also alleged Defendants were negligent.

On summary judgment, Burke argued plaintiff’s claims were precluded by the County’s administrative hearing on his employment termination because the plaintiff received a full and fair opportunity to litigate his retaliation claims during the administrative hearing and, thus, his § 1983 claim for violation of the First Amendment and his California Labor Code § 1102.5 claim for whistleblower retaliation were precluded. Additionally, Burke argued plaintiff cannot establish his negligence claim. The Court adopted Burke’s arguments and granted Defendants’ motion for summary judgment.

Significantly, in opposition to Defendants’ motion for summary judgment, the plaintiff cited Taswell v. Regents of the Univ. of California, — Cal. Rptr. 3d – -, 2018 WL 2191561 (Cal. App. 2018), which held administrative findings should not be given preclusive effect in subsequent civil lawsuits involving whistleblower retaliation claims under California Labor Code § 1102.5.  However, the Court reasoned Taswell is unpersuasive because it failed to analyze Murray v. Alaska Airlines, Inc., 50 Cal. 4th 860 (2010), a California Supreme Court case that dealt directly with the preclusive effect to be given to a federal agency’s investigative findings for a § 1102.5 claim.

This case demonstrates the importance of providing a robust defense during civil service hearings.  If an employee attempts to argue that his or her employment was terminated for retaliatory purposes, proving that this argument lacks merit can both uphold the employee’s termination during a civil service hearing and prevent future litigation.

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