Facts

Plaintiff, a 30-plus year faculty member in Cal State Long Beach's College of Business Administration, was, for most of his career, a professor in the Finance Department. Since 1991 he was the chair of the department (except for a brief period in December 2000 and January 2001) until his removal by Dean Luis Calingo in April, 2004.

The department, in Spring 2003, re-elected Runyon as chair of the finance department. Calingo drafted and presented a reappointment letter to Runyon in April 2003. Therein, Calingo noted that Runyon needed to address certain concerns raised by four senior professors in the Department that the finance curriculum needed a review and potential overhaul. Runyon, according the terms of the reappointment letter, agreed to undertake the review.

During the litigation, Calingo testified that in April 2004 Runyon had asked him certain questions that gave Calingo the impression that Runyon had no idea how to conduct a curriculum review. Calingo claimed he had lost confidence in Runyon's ability to lead the Department and removed Runyon as chair.

In the litigation plaintiff also contended that Calingo's stated reason (regarding curriculum review process) for removing Runyon in April 2004 was false and demonstrably pretextual.

Runyon filed timely a complaint with the California State University (CSU) Chancellor's Office, contending that Calingo had improperly retaliated against him in violation of Govt. Code Sec. 8547.12, the provision of the California Whistleblowers' Protection Act that pertains to the CSU.

Part of the Act requires that the CSU establish a means of internally addressing complaints such as Runyon's. The Chancellor's Office enacted Executive Order 822, which requires, among other things, that the CSU appoint an investigator, interview witnesses, review documents, and make an initial determination which will be produced in summary form to the complaining party. The complaining party may then respond to the summary with additional facts, evidence and argument. The Chancellor's Office is to review the charging party's response, and then issue a final decision 14 days after receipt of the response.

It is undisputed that all these time lines were met with regard to Runyon's charge. In fact, CSU appointed an investigator employed by it who investigated plaintiff's claims and prepared a report. A summary of the investigator's findings was prepared by CSU.

Runyon filed a direct action in court for violation of the Whistleblower's Protection Act (Government Code Section 8547.12(c)), seeking damages for retaliation, among other things. Defendants later filed a summary judgment claiming that Runyon was required to first file an administrative writ pursuant to C.C.P. Section 1094.5 and prevail in such proceeding before he could file a lawsuit in court.

However, the trial court's order stated that since documentary evidence was taken and considered by the administrative officer, then the requirements of C.C.P. Section 1094 were met.

Runyon further argued that requiring him to file a writ before filing a lawsuit would directly conflict with the language and purpose of Government Code Section 8547.12 (c) and (e).

Runyon argued that, Section 8547.12 of the Government Code, which is part of the California Whistleblowers Protection Act, specifically permits California State University whistleblower employees to file directly in court a claim for damages for retaliation in the event that the University has failed to address the employee’s claims to the employee's satisfaction. Section 8547.12 provides in pertinent part:

"(c) In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee...shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law.

However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the [designated] 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."

Runyon argued that by the plain language of the statute, there is only one prerequisite to the filing of a civil action for damages: i.e., that the injured employee first filed a complaint with CSU which CSU has failed to address to the employee's satisfaction within 18 months. Runyon argued that in short, Government Code Section 8547.12 is an exception to the exclusivity of C.C.P. Section 1094.5. Since the evidence is undisputed that plaintiff properly and timely filed his internal complaint with CSU which CSU failed to address to plaintiff's satisfaction, Section 8547.12 permitted him to file a complaint for damages directly with the court.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Calingo removed Runyon in retaliation for his alleged "whistleblowing" activities. Runyon contended that the phrase "satisfactorily addressed" could only mean to the charging party’s satisfaction. Runyon further contended that he did not have to file for a writ of mandate challenging the administrative decision prior to filing his civil claim.

Runyon argued that exhaustion of administrative remedies is not required when the remedy is inadequate.

Runyon argued it would have been totally futile for Runyon to file an administrative writ.

DEFENDANT'S CONTENTIONS:
Defendants contended that Runyon was removed for legitimate, non-retaliatory reasons. In addition, defendants argued that Runyon was barred from bringing his action because the university timely issued its final decision and that "satisfactorily addressed" could only mean that the final decision was made within 18 months of the filing of the complaint. Defendants further contended that Runyon first had to seek a writ of mandate before filing his civil action.

Settlement Discussions

The parties attempted to mediate the matter before Lisa Krakow, without success.

Result

The court ruled that Sec. 8547.12's language with regard to "satisfactorily addressed" meant that the CSU final decision had to be timely rendered, and that plaintiff was first required to file for a writ of mandate before filing his civil action.

Other Information

Filing Date: 09/28/2005 Defendants' Motion for Summary Judgment was granted.