In Briley v. City of West Covina, published July 1, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part a judgment after jury trial in favor of the plaintiff in an employment retaliation case. The plaintiff was a deputy fire Marshal. He complained to the city that various city officials had ignored his reports of misconduct, and had engaged in misconduct. The officials included the Fire Marshal, the plaintiff’s then direct supervisor. After making those allegations, the plaintiff additionally complained that the Marshal and others had retaliated against him. He also filed grievances with the city’s HR commission, raising the retaliation claims. The Marshal later testified at a deposition that his working relationship with the plaintiff had become strained, that the plaintiff had tried to undermine his authority, and that the plaintiff had tried to intimidate him. While the investigation of the plaintiff’s claims was pending, the Marshal informed the city manager of multiple complaints against the plaintiff involving allegations of misconduct and unprofessional behavior. The Marshal, who had been elevated to Fire Chief, issued the plaintiff a notice of intent to terminate. A pre-termination hearing upheld the termination. The plaintiff began an appeal to the city’s HR commission. The ultimate decision makers following the commission’s review would have been the Fire Chief, as the original decisionmaker, and the city manager. The plaintiff ceased pursuing his appeal, notifying the commission that doing so would be futile. The plaintiff brought this lawsuit. The trial court concluded that the plaintiff was excused from pursuing an appeal to exhaust his administrative remedies. The plaintiff obtained a jury verdict against the city under Labor Code section 1102.5 (retaliation for whistleblowing). The jury awarded him over $500,000 in economic damages, $2 million in past noneconomic damages, and $1.5 million in future noneconomic damages.
The appellate court affirmed the portion of the verdict holding the city liable. The appellate court rejected the city’s argument that the plaintiff had failed to exhaust his administrative remedies. A party must generally exhaust all available nonduplicative administrative review procedures before resorting to the courts. This doctrine is subject to several exceptions. Exhaustion is excused if the relevant administrative procedure fails to satisfy the standards of due process. Due process entitles a person seeking administrative review to a reasonably impartial, noninvolved reviewer. The Marshal/Chief’s expected role in deciding the plaintiff’s administrative appeal presented an unacceptable risk of bias that excused the plaintiff from exhausting the remedy. A conflict between the employee and supervisor alone will not disqualify the superior from serving as a decisionmaker. Nor must a decisionmaker be completely insulated from any matter relevant to the proceeding. But under due process, an official whose prior dealings with the employee have created substantial animosity, and whose own character and conduct are central to the proceeding, may not serve as a decisionmaker.
The appellate court concluded, however, that the damages awarded were excessive. The court offered the plaintiff a choice of a remittitur or a new trial on damages.
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