Quick Hits
- A dental assistant for the California Department of Corrections and Rehabilitation (CDCR) alleged she faced whistleblower retaliation and constructive discharge after reporting safety concerns.
- The Court of Appeal affirmed a lower court’s decision that individual supervisors cannot be liable for retaliation under state law.
- The Court of Appeal overturned the lower court’s dismissal of the retaliation claim against the state and the CDCR.
Farzana Chaudhry, a dental assistant who worked at the California Medical Facility (CMF), which provides dental care for prison inmates, sued the state, the California Department of Corrections and Rehabilitation (CDCR), and three individual supervisors for retaliation under California’s Government Claims Act, California Labor Code section 1102.5, and the California Whistleblower Protection Act (Government Code Section 8547), which protects whistleblowers who report alleged improper government activities. She also sued for constructive discharge in violation of public policy.
Chaudhry alleged CMF retaliated against her in July 2018, October 2019, and multiple times in 2020 and 2022, terminated her employment after reinstatement by the State Personnel Board (SPB), and terminated her employment again a month after her return in January 2022. In August 2022, the day she returned to work after having again been reinstated by the SPB, she involuntarily resigned.
Chaudhry alleged that, in retaliation for her reports of unsafe working conditions and complaints to the California Division of Safety and Health (Cal/OSHA), her supervisors yelled at her, unfairly criticized her work, issued an employee counseling record accusing her of unsafe sterilization practices, accused her of wearing a face mask incorrectly and having a tool discrepancy, and twice improperly asked her to provide a doctor’s note for sick leave in April 2020 and August 2020. She also claimed they refused to promote her to acting supervising dental assistant, suspended her, and ultimately forced her to involuntarily resign on August 29, 2022.
Chaudhry filed her original complaint in April 2021, her first amended complaint in May 2022, and her operative second amended complaint in May 2023. In a motion for judgment on the pleadings, the three supervisors argued that they cannot be held liable under Section 1102.5 as a matter of law because they are not employers. Chaudhry, however, argued she could sue the individuals personally because the statute prohibits retaliation by an employer “or any person acting on behalf of the employer.”
The trial court dismissed all of Chaudhry’s claims, finding that she did not adequately support her retaliation and constructive discharge claims and that she failed to show she exhausted administrative remedies required under the California Whistleblower Protection Act. Chaudhry appealed.
Appellate Court Decision
The Court of Appeal, in a matter of first impression in California courts, agreed that individual supervisors cannot be liable for retaliation under Labor Code section 1102.5. The Court of Appeal examined Section 1102.5 in the context of its statutory scheme and, noting the ambiguity, took guidance from Jones v. Lodge at Torrey Pines Partnership. Under California law, the employer bears responsibility for the actions of its supervisors and employees, and retaliation claims often arise from the performance of necessary personnel duties.
Further, to constitute retaliation (an adverse employment action), an employer’s actions must materially affect the terms, conditions, or privileges of employment. The Court of Appeal concluded that the two doctor’s note requests and the mask accusation were minor and trivial and did not rise to the level of an adverse employment action. The Court of Appeal found Chaudhry did not demonstrate that the employee counseling record resulted in a change to the terms, conditions, or privileges of employment, such as a loss of pay or benefits.
Key Takeaways
This case confirms that supervisors cannot be personally liable for retaliation under Section 1102.5. The employer can still be held liable.
California employers may want to consider reviewing their employee handbooks and other written policies to ensure compliance with state and federal laws prohibiting retaliation.
Ogletree Deakins’ Whistleblower and Compliance Practice Group will continue to monitor developments and will post updates on the California and Ethics/Whistleblower blogs as additional information becomes available.
Tracie L. Childs is a shareholder in Ogletree Deakins’ San Diego office.
Joel H. Kosh is of counsel in Ogletree Deakins’ San Francisco office.
Sandra Aguilar is an associate in Ogletree Deakins’ Orange County office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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