target="C066238_files/props0002.xml">
Arbuckle
v. Cal. Bd. Chiropractic Examiners
Filed
7/10/13 Arbuckle v. Cal. Bd.
Chiropractic Examiners CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CAROLE
M. ARBUCKLE,
Plaintiff and
Respondent,
v.
CALIFORNIA
BOARD OF CHIROPRACTIC EXAMINERS et al.,
Defendants and
Appellants.
C066238
(Super. Ct. No. 03AS00948)
In State Bd. of Chiropractic Examiners v. Superior Court (2009) 45
Cal.4th 963 (Arbuckle I), our Supreme
Court held that plaintiff Carole Arbuckle could pursue her whistleblower suit
defendant State Board of Chiropractic Examiners (Board) and its former
executive director, defendant Jeanine R. “Kim†Smith, despite adverse
administrative findings by the State Personnel Board (SPB)’s executive officer
and without first pursuing further administrative
remedies. The Board and Smith
(collectively the Board, except as indicated) now appeal from a judgment after
a substantial jury verdict in favor of Arbuckle.
The Board’s principal contention is
that Arbuckle was barred from prosecuting this civil suit by the
estoppel, a claim that unabashedly disregards the holding of
sufficiency of the evidence of liability and damages, but these contentions are
both forfeited and lack merit.
Accordingly, we shall affirm the judgment.
We begin with a summary of
argument and verdict, and posttrial proceedings.
I
liberally from Arbuckle
“[Arbuckle] alleged the following.
“She was hired as an office
assistant by the [Board] and was eventually promoted to management services
technician. At the [Board], which issues
licenses to chiropractors practicing in the state, Arbuckle’s duties related to
‘cashiering and license renewal,’ although she was also involved in issuing
citations for unlicensed practice. On
May 11, 2001, she received a telephonic inquiry from an outside caller
concerning the license status of Dr. Sharon Ufberg, the chairperson of the
[Board]. She verified for this caller
that [Ufberg’s] license had expired several months earlier. Fifteen minutes later, [Ufberg] contacted
her, saying she forgot to pay her renewal fee.
Later that day, [Ufberg] paid the fee. . . . During the next few months,
[Arbuckle] issued numerous citations to other individuals for practicing under
expired licenses, but when she inquired several times about issuing a citation
to [Ufberg], [Smith], the executive director of the [Board], told her not to
issue the citation.
“In the wake of these events,
Arbuckle confronted a stressful work environment, including numerous
indignities, disputes, and acts of favoritism.
Some of these incidents were minor in themselves, but together they
constituted a breakdown of trust and cooperation in the workplace, and in
particular a breakdown in the relationship between her and [Smith]. Among other things, [Board] managers changed
Arbuckle’s duties, denied her requests for a modified work schedule and a
light-duty assignment, cancelled her alternative work schedule, and transferred
her to a different unit.†(
“On July 23, 2002, Arbuckle filed a
complaint with the [SPB], alleging whistleblower retaliation in violation of
the [WPA]. . . .
“On January 24, 2003, the executive
officer of the [SPB] issued a 16-page ‘Notice of Findings,’ recommending
dismissal of Arbuckle's complaint. . . .
“Under the regulations of the [SPB]
that were then in effect [citation], a complaining employee who received
adverse findings from the [SPB]’s executive officer could file a petition for a
hearing before the board. . . .
“Arbuckle did not exercise this
right. Instead, on February 21, 2003,
she filed a damages action . . . against the [Board and Smith], claiming
whistleblower retaliation in violation of [the WPA]. Arbuckle included a cause of action under
Labor Code section 1102.5, which prohibits retaliation against an employee who
reports a violation of state or federal law[.] . . . Defendants moved for
summary judgment . . . arguing that Arbuckle had failed to exhaust her
administrative and judicial remedies.
The trial court denied the motion, but the Court of Appeal issued an
alternative writ and stayed the proceedings in the trial court.
“The Court of Appeal held that
Arbuckle had failed to exhaust both administrative and judicial remedies. The court stated that exhaustion of
administrative and judicial remedies in this case required more than merely
filing a complaint with the [SPB] and receiving the findings of its executive
officer; Arbuckle also needed to complete the administrative process by
petitioning the [SPB] for a hearing before an ALJ, and if this hearing request
was denied, she then needed to seek a writ of mandate from the courts in an
effort to have the [SPB]’s findings set aside.
The Court of Appeal concluded that Arbuckle, by failing to take these
steps, had in effect conceded her right to judicial review of the [SPB] findings,
and the findings therefore had the same legal significance as a final judgment
of a reviewing court. On that basis, the
Court of Appeal held that the executive officer’s specific finding that no
retaliation occurred was binding in Arbuckle’s later civil action[.]†(Arbuckle
I, supra, 45 Cal.4th at pp.
969-971.)
The Supreme Court concluded Arbuckle
did not need to proceed administratively beyond receiving the findings of the
SPB’s executive officer before filing her civil action. (Arbuckle
I, supra, 45 Cal.4th at pp.
972-974.)
The Supreme Court also held
that because those findings would not collaterally estop Arbuckle’s WPA claim,
she had no need to seek a writ of mandate to overturn them. (Arbuckle
I, supra, at pp. 974-978.)
at Trial
Arbuckle’s trial evidence was
broadly consistent with the alleged facts as set out in Arbuckle I, quoted above. We
describe Arbuckle’s testimony, annotated with
testimony of her damages expert. Then we
describe some of the Board’s evidence, mindful of the proper standard of
review.
title="">[2]
Arbuckle’s Case
Arbuckle testified she began working
for the Board on February 26, 1998, after recovering from alcoholism and being
unemployed and on disability since 1991, due to an automobile accident. She was hired through a disability program,
and started as “an office assistant/receptionist.†The office had not issued any licenses for
six months, so Arbuckle fielded irate calls from chiropractors about the
backlog. After her first month, she
received the highest rating of “outstanding,†and received the same rating the
following month. After she became a
regular employee, her October 26, 1998 probation report rated her as
“outstanding†except in the area of administrative ability, which was not part
of her duties, where she was rated as “standard,†the next highest rating. She received raises in September of 1998 and
1999. A December 1999 evaluation rated
her “excellent†in most categories and states she “worked hard to contributeâ€
and “was promoted to cashiering duties and has done an excellent job.†Arbuckle received a number of kind notes from
chiropractors and others, thanking her for her work.
On March 29, 2000, Arbuckle was
promoted to “office technician,†shortly before Smith became the executive
director. On March 8, 2001, Smith
approved another raise for Arbuckle, who by then was performing continuing
education audits. Because this was
“mindless†work with no prospect for advancement, Arbuckle took a promotional
exam to become a “personnel specialist,†and by February 2001, she had applied
to become a “staff services analyst†(SSA) and had interviewed with other state
agencies. Smith arranged for Arbuckle to
be given “citation desk†duties in addition to her cashiering duties, under
Cathy Hayes, an enforcement employee.
Arbuckle’s new duties included issuing citations for chiropractors who
failed to renew their licenses. A week
later, Hayes told Arbuckle she would become an SSA, and that “they could put
this promotion in place immediately.â€
Because Arbuckle was due for a merit salary raise in April, she asked
for a delay on the promotion, to maximize her salary, which Hayes agreed to.
On May 11, 2001, Arbuckle received a
call from a person identifying herself as a patient of the Board chair,
Ufberg. Arbuckle confirmed that Ufberg’s
“license became invalid at midnight December 31st of 2000, and she went into
forfeiture status on March 3rd of 2001.â€
Arbuckle gave the caller her standard advice, that if she had received
disability payments--which the caller had--she might have to pay them back, and
advised the caller to contact Ufberg.
Arbuckle immediately told Smith
about Ufberg’s forfeited license, and the fact that a patient had called asking
about it. Smith laughed, and Arbuckle
returned to her desk. Then Ufberg called
Arbuckle, “extremely, extremely upset,†claiming she had paid her renewal fee
and, “You lost my renewal.’†Ufberg
admitted she had been practicing during the forfeiture period. Arbuckle told Ufberg to fax her canceled
check. About 20 minutes later, Ufberg
called, admitted she had not renewed, and asked how to cure the problem. Arbuckle told her to fill out a “restorationâ€
declaration form, which Ufberg did that day, driving to Sacramento from the Bay
Area.
Later, while Ufberg was in Smith’s
office, Arbuckle brought the form to her.
When Arbuckle reminded Ufberg that she had told Arbuckle she had been
practicing and could not bill for that work, Ufberg laughed and said, “Oh, it’s
no problem. I’ll bill under
Elliotâ€--Ufberg’s husband and copractitioner.
Arbuckle replied that that would be improper, Smith said, “Don’t worry
about it, Sharon[,]†and then Arbuckle left the room to renew Ufberg’s license.
After Ufberg left, Arbuckle noticed
Ufberg had marked a box to declare that she had not practiced without a license.
When Arbuckle reported this to Smith, Smith thought “it was just kind of
funny, and she said, ‘Don’t worry about it, Carole.’â€
Arbuckle was also concerned because
at the April 2001 Board meeting, only four Board members--including
Ufberg--were present, and Arbuckle thought that if Ufberg had been unlicensed
at that time, no valid quorum existed.
Arbuckle did not receive the SSA
promotion on June 30, 2001. On July 16,
2001, Arbuckle asked Hayes whether there would be any disciplinary action
against Ufberg, and Hayes said, “Oh, we can’t do that; she’s board
chairman.†Two days later, Smith
announced that the SSA position had not been approved. But Lavella Matthews received an SSA
promotion that September, and Arbuckle testified--without objection
of 2001.â€
title="">[4]
On June 6, 2001, Arbuckle called the
Governor’s office to report that one of his appointees had served on the Board
while not licensed. She called again on
September 11, 2001, and gave more details.
On September 28, 2001, when Arbuckle asked Smith whether Ufberg would be
disciplined, Smith said, “Carole, let it lay.â€
After that, Arbuckle again called the Governor’s office.
Arbuckle had been handling weekly
deposits for over a year, in amounts between $25,000 and $125,000. In October 2001, she made a $5 error when a
chiropractor sent in a duplicate check, her first error with deposits. Smith became “irate†and “extremely upsetâ€
and publicly rebuked Arbuckle. Smith
thereafter had Yvonne Van Dyck, a retired annuitant and friend of Smith’s,
review Arbuckle’s deposits.
name="_ftnref5" title="">[5] Smith also became distant and “more harshâ€
with Arbuckle.
On her next review by Smith, dated
October 16, 2001, Arbuckle received only two “outstanding†ratings, and felt
the “standard†rating for “relationships with people†would make it hard to
find a new job. An addendum acknowledged
that Arbuckle had taken on new citation duties, but faulted her attention to
detail, specifying “typographical errors and incorrect information or data
pertaining to citations and licensing functions.†But there had never been any problems
relating to citations or licensing, apart from the Ufberg matter.
Near the end of October 2001, when
Arbuckle returned to work on a Monday after being off Friday, she found the
prior week’s deposit had not been locked up.
Although Arbuckle was not responsible for this error, Smith blamed her
for it, wrongly claiming it had been Arbuckle’s job to ensure others followed
procedures.
title="">[6]
Once Smith reprimanded Arbuckle “in
front of everyone†for sending a letter, but when Van Dyck stepped forward to
remind Smith that Van Dyck had sent the letter, not Arbuckle, and that Smith
had personally approved the letter, Smith did not apologize. Arbuckle testified Rowell, her lead worker,
changed her demeanor toward Arbuckle; “it was like all of a sudden in the
office I had leprosy.â€
On October 25, 2001, Arbuckle sent
an e-mail to the Employment Development Department (her second), asking whether
Ufberg had billed during her forfeiture, but received no reply. When she reported this to Smith, Smith “for
the second time†said, “Don’t worry about it, Carole. It’s not important.â€
In November 2001, Arbuckle’s desk
had been “gone through†and her documents about Ufberg were missing. This caused Arbuckle to lose concentration
and become nervous.
On December 4, 2001, Ufberg came
into the office, but when Arbuckle greeted her, Smith ran up and told Ufberg
she did not have to speak to Arbuckle.
On December 17, 2001, Arbuckle saw
Dr. Concepcion, because she had been having severe headaches. He recommended a new telephone headset for
Arbuckle, but Smith denied Arbuckle’s request for this accommodation.
On December 18, 2001, when Arbuckle
was speaking to Jana Tuton, the deputy attorney general who worked with the
Board on enforcement actions, Smith ran up and yelled, “‘Are you on that
citation issue again, Carole?’†After
that, Tuton avoided Arbuckle; “she’d go around the other way.â€
At one point a chiropractor called
the office, irate that he had not received his license, and when Arbuckle found
that there had been a mistake by another employee, she told the caller to fax a
change of address form to her. Smith
publicly yelled at Arbuckle for doing so, but later told her she had acted
correctly. Yet Smith raised the incident
repeatedly over the next several days and finally told Arbuckle she could not
handle calls from chiropractors, which comprised most of her work.
On Friday, March 15, 2002, Smith
called Arbuckle into a meeting and accused her of contacting the union, which
Arbuckle denied. After Phillips was
called in, Smith broke down crying and told them nobody could contact the union
without checking with her. As the union
shop steward, Arbuckle believed this order was invalid.
On Monday, March 18, 2002, Arbuckle
sent Smith an e-mail summarizing Friday’s meeting, and asking Smith to confirm
her directives limiting union activities.
Smith’s March 21, 2002 reply e-mail was evasive, and claimed she had not
spoken to Arbuckle in her capacity as shop steward, because Smith thought
Arbuckle had “relinquished†that position.
On April 11, 2002, Smith sent
Arbuckle an e-mail stating they had to meet “to discuss an incident†the prior
week regarding the “birthday clubâ€--a celebratory pool in which Arbuckle did
not wish to participate--“and other issues.â€
But on Friday April 12, 2002, Smith reprimanded Arbuckle for not working
the front desk, even though Matthews was supposed to work that desk, then Smith
denied giving such an order. This was
the last straw: Arbuckle went out on
stress leave. Arbuckle saw Dr.
Concepcion again, and did not return to work until May 31, 2002. While on leave, she completed probation,
became a “permanent†“management services technician,†or MST, and received a
five percent raise.
On May 8, 2002, Hayes notified
Arbuckle that when she returned to work, she would work on continuing
education, not resume her cashiering duties, and would be supervised by
Hayes. On Saturday, May 10, 2002,
Arbuckle sent Hayes a confirming
e-mail. Later that day Arbuckle received notes from
Smith advising of a “staffing reorganization[,]†that her “modified work
schedule†was unavailable, that she did not need to report for work Monday as
planned, and that she should liaise “medical-related†issues with Hayes.
On May 8, 2002, Arbuckle drank
alcohol, and called her therapist, Dr. Marvin Todd, whom she began seeing after
April 15, 2002, when she had been called at home and instructed to turn in her
keycard.
title="">[8]
When Arbuckle returned to work on
May 31, 2002, she could not enter until Smith and another employee let her in,
causing her to arrive “One minute after seven.â€
Later, Smith sent Arbuckle an e-mail stating she had not arrived until
7:15. Smith also said she would take
away Arbuckle’s flexible work schedule, but Arbuckle reminded her that this
required 30 days notice.
On June 4, 2002, Hayes sent Arbuckle
an email advising her of a meeting set for June 6, 2002, to discuss the
“birthday club†problems referenced in Smith’s April 11, 2002 e-mail, and
shortly thereafter Hayes walked by Arbuckle’s desk and said, “‘I’ll get
you.’†Arbuckle worked the next day,
June 5, 2002, but never returned thereafter, “Because I was fearful now that
they were going to write me up. They
wanted me out of the office[.]â€
alternate work schedule, effective July 15, 2002.
On June 17, 2002, Arbuckle filed her
SPB complaint, and on July 23, 2002, amended it to include the Ufberg issue.
Arbuckle sent a memo to Board member
Jeffrey Steinhardt--dated April 26, 2002, but apparently not sent until after
June 24, 2002--detailing her view of a cover-up by Smith and Hayes of the
Ufberg matter, matters she had discussed with Steinhardt some unstated time
previously.
name="_ftnref11" title="">[11]
On June 26, 2002, Arbuckle sent a
letter to the former Bureau of State Audits (now the California State Auditor’s
Office) detailing the Ufberg issue and Arbuckle’s subsequent ill treatment, as
well as other alleged Board problems. On
July 8, 2002, Arbuckle sent a memorandum to State Senator Liz Figueroa,
reporting Ufberg’s activity, because Figueroa was the chair of a legislative
committee with Board oversight.
Arbuckle’s workers compensation
stress claim was approved on July 17, 2003, whereupon leave credits she had
used were reinstated, and she used those leave credits until she found another
state job on December 3, 2003.
Arbuckle testified that had she
obtained the SSA promotion, she would have earned about $4,000 per month,
approximately $1,000 more than her Board salary of $2,905. She believed that because she had advanced
quickly, she would have continued to rise in rank until she retired at the age
of 62, at the title of staff services manager, earning between $5,614 and
$6,190. She returned to work at another
agency at the salary of about $2,530-2,536, and after a year transferred to a
third agency, with possibly a five percent increase. In 2006 she again changed agencies, lost the
increase, and in April 2006 was making $2,955, about the same she had been
making when she was at the Board. By the
time of trial she was “capped out†as a personnel specialist, with a monthly
salary of $4,067.
Economist John Hancock
testified--without objection--that he calculated Arbuckle’s economic damages
two ways: 1) assuming she became a
personnel specialist in February 2001 with another agency; and 2) assuming she
received an SSA promotion at the Board.
If she worked until age 66, she would have lost $528,501 under the first
option and $592,042 under the second, reduced to present value; if she worked
until 63, the figures were $382,120 and $469,771, respectively. Hancock’s calculations were based on
Arbuckle’s information.
The Board’s Case
We describe some of the evidence
tendered on behalf of the Board, but we presume the jury discredited evidence
unfavorable to Arbuckle. (See fn. 2,
Smith testified she had sought
approval from the Department of Finance to add an SSA position, and considered
Arbuckle a “competitive candidate,†but Arbuckle was not promised the position,
and the new SSA position was denied on October 11, 2001. Arbuckle was promoted to MST in October 2001,
and Smith’s report gave Arbuckle a “standard†rating for “relationships with
people†because she was “aggressive†with employees and there had been
complaints from chiropractors, although Smith conceded some chiropractors were
rude, vulgar, or abusive; in any event, Arbuckle did not protest the rating.
Either Hayes or Smith had discretion
to cite a chiropractor.
Smith denied that Ufberg said she
had been treating patients during the period of license forfeiture, or that she
said she would bill through her husband’s license.
Smith conceded she asked Phillips
and Arbuckle why they did not speak to her first, during a period of “pretty
tense†union issues, and conceded she began to cry, but denied making
anti-union statements.
Smith approved Arbuckle’s
“permanent†status as an MST as of April 30, 2002, and approved a pay raise for
Arbuckle in May 2002. After Arbuckle
left on a second stress leave in June 2002, she was kept “on the books†of the
Board until December 2003, when she obtained another job.
Smith testified the Board’s legal
counsel told her Ufberg’s license forfeiture did not affect Ufberg’s ability to
sit on the Board, but Smith conceded she did not consult counsel until after
Arbuckle filed her SPB complaint. Smith
denied telling Arbuckle she was going to consult with counsel, but in a
pretrial request for admissions, Smith stated she told Arbuckle not to issue a
citation “‘until [Smith] could consult with legal counsel regarding whether
there were any issues created by the status of Dr. Ufberg’s license, given that
she was a board member.’â€
Sclamberg, Ufberg’s former husband and chiropractic partner, testified they
were separated in 2001 and had “no business relationship†at that time. Ufberg had not treated any patients in the
office during the period of her forfeiture.
Nobody ever asked him if Ufberg practiced during that time, and he did
not stop using her name in advertisements until 2002.
she did not tell Arbuckle she had practiced during license forfeiture or
intended to bill through her husband’s license.
Ufberg denied having lunch with Steinhardt or discussing her license
with him. Ufberg denied practicing or
using the title “chiropractor†during forfeiture, but conceded owning part of
her husband’s practice during that period.
Ufberg also testified she was
licensed--in New York--when she acted as Board chair.
Verdicts and Posttrial Motions
Arbuckle’s counsel argued for an
award of $160,000 in economic damages for lost wages and benefits--explicitly
disavowing Hancock’s larger numbers--plus $22,000 for Todd’s bills. Counsel also sought $500,000 for Arbuckle’s
knowledge that the wrongdoing was unaddressed, plus “$500,000 for the year
thinking [her career is] all collapsed; and $500,000 for the year of torture.â€
The Board argued Arbuckle was a
liar, had never been denied a promotion, and there was no retaliation because
Smith did not know about Arbuckle’s alleged whistleblower claims, passed
Arbuckle on probation after the
Ufberg incident, and then gave her a raise.
The Board attacked “false†assumptions relied on by Hancock, and argued
that no malice by Smith was proven.
In reply, Arbuckle argued Ufberg and
Smith knew Arbuckle had made a disclosure, based on Steinhardt’s testimony
about his luncheon with Ufberg. Further,
Smith became a wrongdoer when she did not seek legal counsel as she said she
would and then tried to stifle Arbuckle through punishment. Arbuckle asked for $175,000 in economic
damages and $1,500,000 in noneconomic damages.
The jury found that Arbuckle made
good faith communications to disclose an improper governmental activity and a
condition threatening public safety, Smith subjected her to adverse employment
actions and acted with malice, and Arbuckle suffered $175,000 in economic
damages and $1,000,000 in noneconomic damages.
After a bifurcated trial phase, the jury awarded punitive damages of
$7,500 against Smith.
The trial court denied defense
the verdict--motions not in the appellate record.
The Board and Smith timely filed
this appeal. The judgment was later
amended to award Arbuckle costs of $4,748.99 and attorney fees of
$925,295. No appeal was taken from the
amended judgment.
I
Claim and Issue
Preclusion
The Board contends the trial court
should have granted its motion for summary judgment and a subsequent pretrial
motion based on claim preclusion (res judicata) and issue preclusion
(collateral estoppel), because the SPB’s adverse findings bar her WPA claim.
The Board asserts Arbuckle alleged
the same purported adverse actions in
her Labor Code and WPA claims, and therefore asserts they involve the same
“primary right†and the same cause of action for purposes of res judicata, and
also asserts they involve the same dispositive issues for purposes of
collateral estoppel. (See fn. 15,
But the Board fails to quote or even summarize the statutory elements of
Arbuckle’s Labor Code claim and WPA claim.
The proponent of claim or issue
preclusion bears the burden to show that requirements of those doctrines have
been met, that is, the primary right or the litigated issues are the same in
the current and prior cases. (See
Cal.3d 335, 341 (Lucido) [collateral
estoppel]; Vella v. Hudgins (1977) 20
Cal.3d 251, 257 [res judicata].) By
faili ng to explain the statutory bases
for Arbuckle’s claims, the Board has failed in its duty to provide a coherent
argument, supported by authority, to carry its position. (See In
re S.C. (2006) 138 Cal.App.4th 396, 408 [“appellant must present meaningful
legal analysis supported by citations to authorityâ€].) It has forfeited its claims of preclusion.
In any event, the Board’s preclusion
arguments are substantively baseless, as we explain immediately
After the matter was remanded in
for summary judgment, contending Arbuckle’s Labor Code claim was barred by the
failure to exhaust judicial remedies (by failing to have the SPB finding
overturned), both claims were barred because no “adverse†actions were taken,
and the WPA claim was “barred by res judicata†because it was based on the same
facts as the Labor Code claim. The trial
court granted summary adjudication on the Labor Code claim, but not the WPA
claim.
that summary adjudication of the Labor Code claim barred the WPA claim.
On appeal, the Board contends as
follows:
“The trial court correctly found that Arbuckle
was not required to set aside the SPB’s adverse findings before filing a civil
action pursuant to the WPA. Had
Arbuckle’s civil action been limited to a claim for whistleblower retaliation
pursuant to the WPA, the trial court’s denial of summary adjudication of that
claim would have been proper. Arbuckle,
however, asserted whistleblower retaliation claims pursuant to the WPA
section 1102.5 cause of action bars relitigation of the same cause of action
pursuant to the WPA[.]â€
To the extent that we understand the
Board’s argument, we disagree with it.
Res
judicata, or
claim preclusion, does not apply here.
Simply put, because this case is and has been ongoing since its
inception, there have been no final judgments issued on which the application
of the doctrine might be appropriately based.
“The doctrine of res judicata gives
certain conclusive effect to a former judgment in subsequent litigation
involving the same controversy.†(7
Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, p. 938 (
judgment on which to base res judicata.
“[J]udgments are parceled out at the ration of one per lawsuit.†(Paterno
v. State of California (1999) 74 Cal.App.4th 68, 110; see Code Civ. Proc.,
§ 577.) An order based on fewer than all
claims is not a final judgment. (See Morehart
v. County of Santa Barbara (1994) 7 Cal.4th 725, 743-744; 9 Witkin,
[discussing rule].) There was no prior
final judgment on the Labor Code claim, merely an order granting summary
adjudication. (See 9 Witkin,
437c, subd. (k).) For res judicata
purposes, that order was not final, because it was subject to review. (See Franklin
& Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85
Cal.App.4th 1168, 1174 [“in California . . . the finality required to invoke
the preclusive bar of res judicata is not achieved until an appeal from the
trial court judgment has been exhaustedâ€]; Sharon
v. Hill (C.C.D. Cal. 1885) 26 Fed. 337, 345-347 [11 Sawy. 290] [discussing
California law on this point]; Code Civ. Proc., § 1049 [“An action is deemed to
be pending from the time of its commencement until its final determination upon
appeal, or until the time for appeal has passed, unless the judgment is sooner
satisfiedâ€].) It was subject to review
because Arbuckle could have filed a protective cross-appeal to try to revive
her Labor Code claim. (See, e.g.,
Corp. of America (2004) 115 Cal.App.4th 168 [reviewing summary adjudication
of contract claim in cross-appeal after jury trial on tort claim].)
The Board contends the SPB’s
findings dismissing Arbuckle’s whistleblower complaint are entitled to
collateral estoppel effect.
But again, there was no prior
proceeding, because Arbuckle’s civil suit has not yet reached its
conclusion. (See Lucido, supra, 51 Cal.3d
at p. 341 [referring to “prior†and “former†proceedings]; 7 Witkin,
rule].) And again, the Board fails to
analyze the two statutory claims to show the same issues were litigated. (See
7 Witkin, supra, § 414, p.
1055.) In fact, the issues differed,
specifically, the administrative steps Arbuckle was required to complete in
order to obtain any recovery differed under the two statutes.
Generally, a plaintiff must plead
and prove that she or he has exhausted applicable administrative remedies, or
facts showing a legal excuse for not doing so.
(See Hood v. Hacienda La Puente
Unified School Dist. (1998) 65 Cal.App.4th 435, 439.) To prosecute her Labor Code claim, Arbuckle
had to show she obtained a favorable administrative
ruling. (See
California (2005) 35 Cal.4th 311, 321-322, 329-331.) But Arbuckle I held Arbuckle did not need to obtain favorable
administrative findings to prosecute her WPA claim. (Arbuckle
I, supra, 45 Cal.4th at pp.
971-978; see Murray v. Alaska Airlines,
Inc. (2010) 50 Cal.4th 860, 877-878, fn. 8 [discussing Arbuckle].) Thus, summary
adjudication on the Labor Code claim could be (and likely was) based on an
issue irrelevant to the WPA claim. Thus
the Board has not shown that the same issues were litigated and cannot
demonstrate issue preclusion.
II
Sufficiency of
the Evidence
A. Standard
of Review
The bulk of the Board’s briefing
challenges the sufficiency of the evidence, although the Board at times couches
its arguments as legal arguments.
However, the Board disregards or overlooks two important appellate
procedural rules.
First, the Board fails to pay proper
deference to the jury’s findings.
“With rhythmic regularity it is
necessary for us to say that where the findings are attacked for insufficiency
of the evidence, our power begins and ends with a determination as to whether
there is any substantial evidence to
support them; that we have no power to judge of the effect or value of the
evidence, to weigh the evidence, to consider the credibility of the witnesses,
or to resolve conflicts in the evidence or in the reasonable inferences that
may be drawn therefrom.†(
Cal.App.2d 367, 370 (Overton), partly
quoted with approval by Leff v. Gunter
(1983) 33 Cal.3d 508, 518.)
Second, although the Board makes
arguments based on its interpretation of precedent, it does not head and argue
any challenge to the jury instructions.
“[W]here a party to a civil lawsuit claims a jury verdict is not
supported by the evidence, but asserts no error in the jury instructions, the
adequacy of the evidence must be measured against the instructions given the
jury.†(Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535 (
Because the Board does not challenge
the instructions, we presume the jury was properly instructed on the law. (See Loranger
v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9 [failure to head and argue
a point forfeits the claim of error]; Opdyk
v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4
[same].) Therefore, the Board’s
arguments based on its interpretation of statutes and precedent are
us to measure the evidence against legal rules not set forth in the jury
instructions. (Null, supra, 206
Cal.App.3d at p. 1535.)
B. Improper
Governmental Activities
The Board contends Arbuckle never
made any report of improper governmental activity by Ufberg or by Smith. We disagree.
The jury was instructed in part that
Arbuckle had the burden to prove:
“That plaintiff made a good-faith
communication that disclosed or demonstrated an intention to disclose information
that may evidence, 1, an improper governmental activity or, 2, a condition that
may significantly threaten the health or safety of employees or the public, and
that the disclosure or intention to disclose was made for the purpose of
remedying that condition.
“‘Good faith’ refers to an honesty
of intention as reflected by the circumstances.
“‘Improper governmental activity’
means any activity by a state agency or an employee that is undertaken in the
performance of the employee’s official duties whether or not that action is
within the scope of her or her employment and, 1, is in violation of any state
or federal law or regulation, including, but not limited to, a willful omission
to perform a duty, or, 2, is economically wasteful or involves gross
misconduct, incompetency or inefficiency[.]â€
The Board construes the WPA to cover
only serious and actual violations of the law.
However, the jury was not so instructed.
As noted ante, we measure the
facts against the instructions. (See
Further, the relevant statute
covered “any activity†that violated “any†state law or regulation, “undertaken
in the performance of the employee’s duties, undertaken inside a state office,
or, if undertaken outside a state office by the employee, directly relates to
state government, whether or not that activity is within the scope of his or
her employment[.]†(Former Gov. Code, §
8547.2, subd. (b); Stats. 1999, ch. 673, § 4, p. 4997.) Generally, “any†means all or every. (See Emmolo
v. Southern Pacific Co. (1949) 91 Cal.App.2d 87, 91-92 [“the use of the
word ‘any’ in the statute negatives the contention that the statute is
restrictedâ€].) Thus, the statutory
protection is not limited to reports of “serious†violations, as the Board
urges.
This broad reading of the WPA
advances the statutory purpose. In 1999,
the WPA was amended in part to reflect legislative findings that “state
employees should be free to report waste, fraud, abuse of authority, violation
of law, or threat to public health without fear of retribution†and that
“public servants best serve the citizenry when they can be candid and honest
without reservation in conducting the people’s business.†(Gov. Code, § 8547.1; Stats. 1999, ch. 673, §
3, p. 4997.) The WPA is a remedial
statute, that is, a statute that “provide[s] a remedy, or improve[s] or
facilitate[s] remedies already existing, for the enforcement of rights and the
redress of injuries.†(3 Sutherland,
Statutory Construction (7th ed. 2008) Remedial Legislation, § 60:2, p. 264
(Sutherland); see Shoemaker v. Myers
(1990) 52 Cal.3d 1, 20-22 (Shoemaker)
[“The whistleblower statute [former Gov. Code § 19683, a predecessor to the
WPA] was a legislative expression intended to encourage and protect the reporting
of unlawful governmental activities, and to effectively deter retaliation for
such reporting. The Legislature clearly
intended to afford an additional
remedy to those already granted under other provisions of the lawâ€].) “A remedial statute must be liberally
construed so as to effectuate its object and purpose, and to suppress the
mischief at which it is directed.†(
(1976) 58 Cal.App.3d 340, 347 (Whitlow);
see Sutherland, supra, § 60:1, p. 250 [discussing rule].)
The statute also refers to a
whistleblower’s “good faith communication†of a suspected violation, showing
that an actual violation need not be
proven. (Former Gov. Code, § 8547.2,
subd. (d); Stats. 1999, ch. 673, § 4, p. 4998; see Mize-Kurzman v. Marin Community College Dist. (2012) 202
Cal.App.4th 832, 850 (Mize-Kurzman)
[generally, a whistleblower complaint is sufficient if “‘the employee can voice
a reasonable suspicion that a violation of a constitutional, statutory, or
regulatory provision has occurredâ€]; accord, Devlyn v. Lassen Mun. Util. Dist. (E.D. Cal. 2010) 737 F.Supp.2d 1116, 1124 [Lab. Code, §
1102.5 case, “Defendant’s argument inappropriately [implies] that the person
reporting the suspected violation must be correct in order to be
protected. That is not what the statute
requires. ‘Reasonable cause’ is the
relevant standardâ€].)
The Board contends at worst Ufberg
made a “private†lapse, but did nothing wrong in her “official†capacity. The Board argues that the
required to be licensed upon appointment, need not maintain licensure during
tenure. Putting aside the fact that the
instructions did not cover this point, even if the Board were legally correct,
that would not change Arbuckle’s good-faith
belief in wrongdoing. But we briefly
examine the Board’s claim on the merits.
It is “unlawful for any person to
practice chiropractic in this state without a license so to do.†(Stats. 1983, ch. 533, § 1, p. 2304.) Licensees are sent annual renewal notices,
and:
“The failure, neglect or refusal of
any person holding a license . . . to pay the annual fee during the time their
license remains in force shall, after a period of 60 days from the last day of
the month of their birth, automatically work a forfeiture of his or her license
or certificate, and it shall not be restored except upon the written
application therefor and the payment to the board of a fee of twice the annual
amount of the renewal fee . . . .â€
(Stats. 2010, ch. 539, § 1.)
The Board is composed of seven
members, including five “licensee’†members.
(Stats. 1976, ch. 263, § 1, p. 547.)
By well-settled definition, a
“licensee†is a person “who holds a license.â€
(Black’s Law Dict. (4th ed. 1968) p. 1070; see Ballentine’s Law Dict.
(3d ed. 1969) p. 736; Webster’s New Collegiate Dict. (1973) p. 662.) The Board’s regulations (from 1991 and to
date) describe a license in forfeiture as an expired license. (See Cal.
Code Regs., tit. 16, § 371(b) [“A license shall expire annually on the last day
of the licensee’s birth monthâ€]; former Cal. Code Regs., tit. 16, § 355(c),
Register 91, No. 21 (May 24, 1991) p. 52 [“Licenses . . . will henceforth
expire on the last day of the birth month of the licenseeâ€].)
The Board argues that because a
Board member’s term lasts for four years, any loss of eligibility after
appointment would merely preclude reappointment, unless the Governor acted to
remove the Board member “after receiving sufficient proof of the inability or
misconduct of said member.†(Stats.
1971, ch. 1755, § 3, p. 3785.)
We acknowledge that, in any given
context, there may be differences between qualifications required for
appointment and qualifications required to be maintained during tenure. (See, e.g., People v. Bowen (1991) 231 Cal.App.3d 783, 786-789 [discussing
differences between appointment and tenure requirements for judges].) But given the statutes, regulations, and
definitions that we describe ante, it
cannot seriously be argued that Arbuckle’s belief that Ufberg was required to
maintain a valid license to continue to serve lawfully on the Board was
And even if we agreed with the
Board’s legal assertion that the relevant statutes merely required Ufberg to be
licensed at the time of appointment but not thereafter, an
trial court rejected, that would not change the fact that Ufberg acted
improperly by allowing her license to lapse and continuing to
“inefficiency,†if not “a willful omission to perform a duty†required by law,
as provided by the jury instructions.
And such misconduct might well have led the Governor to remove her from
the Board. Thus, there was ample cause to
believe Ufberg’s actions while she was the as Board chair reflected
The Board argues Smith did nothing
wrong because it was her discretionary decision whether to cite a chiropractor,
not Arbuckle’s. (Cf.
230 Cal.App.3d 319, 330 [“the predominant character of licensing is
discretionaryâ€].) But the jury had ample
evidence on which to find Arbuckle had a good faith belief Smith’s exercise of
discretion was based on favoritism, due to Ufberg’s status as Board chair. Discretion must be exercised based on the
legal principles applicable to its exercise, not for arbitrary reasons such as
privilege or rank. (See
Supervisors (1989) 49 Cal.3d 432, 442 [mandamus will lie to compel official
to exercise discretion “under a proper interpretation of the applicable lawâ€];
Cal.App.3d 1287, 1297-1298 [“The scope of discretion always resides in the
particular law being applied,†and “The legal principles that govern the
subject of discretionary action vary greatly with contextâ€].) The Board cites no contrary authority.
C. Protected
Disclosures
In several sub-claims overlapping
with each other and with the prior claims, the Board contends Arbuckle’s
reports were not “protected†disclosures.
The Board contends they were “not protected because they were made
pursuant to Arbuckle’s citation duties†and “Arbuckle’s reports are nothing
more than disagreements with Smith or implementation of Board policies and
procedures†and involved “internal personnel or administrative mattersâ€
confided to “employer-employee management.â€
But because the jury was not
instructed on any of these claimed limitations, they are irrelevant for
purposes of this appeal. (See
Moreover, although purely internal
matters or “‘debatable differences of opinion concerning policy matters’†may
not be protected, such limitation extends to and only to “policies that
plaintiff believed to be unwise, wasteful, gross misconduct or the like,†not
“policies that plaintiff reasonably believed violated federal or state
statutes, rules, or regulations, which are not subject to this limitation, even
if these policies were also claimed to be unwise, wasteful or to constitute
gross misconduct.†(Mize-Kurzman, supra, 202
Cal.App.4th at pp. 852-855 [discussing Lab. Code, § 1102.5 and Ed. Code,
§ 87160, et seq., distinguishing the federal rule in whistleblower
cases].)
The Board’s claim that Arbuckle’s
report about Ufberg to Smith was not
a protected disclosure, because it was part of Arbuckle’s job duties to report
problems with chiropractic licenses, is partly based on federal cases
interpreting a different, federal whistleblower law. (See, e.g., Huffman v. OPM (Fed. Cir.
2001) 263 F.3d 1341 (Huffman).) The Board never quotes or even describes the
federal law, and therefore fails to show that cases interpreting it are
persuasive on the particular WPA issues relevant to this case. (See In
re S.C., supra, 138 Cal.App.4th at p. 408.)
The Board also reasons that effective
January 1, 2000, the WPA was amended to redefine “protected disclosures†to
mean “any good faith communication that discloses or demonstrates an intention
to disclose information that may evidence (1) any improper governmental
activity or (2) any condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to disclose
was made for the purpose of remedying that condition.†(Former Gov. Code, § 8547.2, subd. (d);
Stats. 1999, ch. 673, § 4, p. 4998.)
Effective January 1, 2010, after
the events at issue, the statutory definition was amended to include “any
communication based on, or when carrying out, job duties[.]†(Stats. 2009, ch. 452, § 5.) The Board reasons from this statutory change
that, at the relevant times in this case, a disclosure in the course of an
employee’s job duties was not protected.
We conclude the 2010 amendment
merely clarified the law, and did not remove an unstated restriction on
protected disclosures, as the Board contends.
(See Mize-Kurzman,
[rejecting similar claim as to Lab. Code, § 1102.5, and rejecting
stated that a report to a supervisor in the normal course of duties is not a
protected disclosureâ€]; Colores v. Board
of Trustees (2003) 105 Cal.App.4th 1293, 1312-1313 (Colores) [Lab. Code, § 1102.5 case, “plaintiff was employed by a
governmental agency and she had every reason to expect that Avery would not
sweep the information under the rug but rather would conduct an investigation
into the matterâ€]; see also Jaramillo v.
County of Orange (2011) 200 Cal.App.4th 811, 825-827 [rejecting
California law].)
The Board’s argument ignores the
fact that the relevant statute refers to “any
good faith communication†(emphasis added) and is not restricted to
communications made outside an
employee’s job duties. Further, as we
have already noted, the WPA is to be construed broadly, to effectuate its
remedial purpose. (See
supra, 58 Cal.App.3d at p. 347.)
The Board also characterizes
Arbuckle’s actions as “disclosures made in the context of internal or
administrative matters†which should not be deemed “protected†by the WPA. Putting aside the point (once again) that
this limitation was not reflected by the instructions (see Null, supra, 206
Cal.App.3d at p. 1535), we reject it.
The Board largely relies on two distinguishable decisions of this
court.
In Patten v. Grant Joint Union High School Dist. (2005) 134
Cal.App.4th 1378 (Patten), we
interpreted Labor Code section 1102.5 to conclude that three particular claimed
disclosures by a school principal were not protected disclosures: Two were about conduct by teachers passed on
for possible personnel action; the third was a request for more security. We held the former complaints were “internal
personnel matters involving a superior and her employee, rather than the disclosure
of a legal violation[,]†and the latter was “made in an exclusively internal
administrative context†and did not “show any belief on Patten’s part that she
was disclosing a violation of state or federal law in any sort of
whistleblowing context[.]†(
v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163 (
protecting whistleblower public school employees (Ed. Code, § 44110, et
seq.). Following Patten, we held, “Conn’s complaints about unruly first graders, the
failure to perform an assessment before deciding to terminate her son’s
services, how a particular screening was performed, an error in her son’s
[Individual Education Plan], and the behavior of members of the special
education team were done in the context of internal administrative or personnel
actions, rather than in the context of legal violations. The evidence adduced at trial showed that in
making her complaints Conn was attempting to secure special education services
for her own children and certain students in her class, not ‘blow the
whistle.’†(Conn, supra, 186
Cal.App.4th at p. 1182.)
In contrast, Arbuckle was
complaining about Ufberg’s possible disqualification from office, her unlawful
practice of chiropractic, and Smith’s efforts to cover up Ufberg’s
conduct. Those were not “internal or
administrative†matters, but suspected violations of law, and matters of public
interest relating to the efficiency and legitimacy of the Board.
Again relying on federal precedent,
the Board claims Arbuckle’s reports to Smith about Smith’s own wrongdoing are
not protected. This limitation was not
in the jury instructions (see Null,
in any event, there was evidence from which the jury could rationally find that
Smith was not yet a wrongdoer when Arbuckle initially pressed her to cite
Ufberg, but only developed into a wrongdoer when she acted to cover up Ufberg’s
wrongdoing by punishing Arbuckle.
In its reply brief, the Board argues
reports of publicly-
was not in the jury instructions. (See
Further, this point is forfeited because it was not made in the opening
brief, thereby depriving Arbuckle of the ability to reply. (See Utz
v. Aureguy (1952) 109 Cal.App.2d 803, 808.)
D. Adverse
Actions
The Board next contends Arbuckle did
not suffer any adverse action.
The jury was instructed in part that
it had to find that “Smith subjected the plaintiff to an action that materially
affected the terms, conditions or privileges of her employment[.]â€
Putting aside the Board’s disregard
of the broad scope of this instruction, while “mere oral or written criticismâ€
or a benign “transfer into a comparable position†do not suffice to show an
adverse action, “Where an employer . . . [eliminates] a reasonable potential
for promotion or materially delaying the promotion, there is a legally tenable
basis for a jury to find the employer substantially and materially adversely
affected the terms and conditions of the plaintiff’s employment.†(Akers
v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456-1457 [Lab. Code, §
1102.5 case], approved on this point by Yanowitz,
v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063
[applying rule, but finding no material change in employment conditions];
Rehabilitation (2006)
142 Cal.App.4th 377, 386-388, 390-397 [similar holding].)
Here, we must view the totality of
the evidence, not weigh each claimed adverse act in isolation, as the Board
suggests. (See Yanowitz, supra, 36
Cal.4th at pp. 1055-1056 [“Contrary to L’Oreal’s assertion that it is improper
to consider collectively the alleged retaliatory acts, there is no requirement
that an employer’s retaliatory acts constitute one swift blow, rather than a
series of subtle, yet damaging, injuriesâ€].)
Nor does the fact that Arbuckle retained her title and pay preclude a
finding of an adverse action. (See
Viewing the evidence in favor of
Arbuckle, Smith materially worsened her working conditions and prospects for
advancement. In addition to cancelling
the promised promotion and stripping her of more desirable duties, Smith made
Arbuckle’s work environment intolerable, by criticizing her for trivial things
and things that Arbuckle had not done, being openly rude and demeaning, and
causing other employees to shun Arbuckle.
In short, viewing the record in the light most favorable to the verdict,
as we must, the evidence amply supports the finding of adverse action.
E. Nexus
The Board contends no
causal link between Arbuckle’s disclosures and Smith’s actions, because the
evidence does not show that Smith knew about Arbuckle’s disclosures. We disagree.
Although there may not have been
direct evidence that Smith knew Arbuckle had complained to persons
Arbuckle had complained many times to
Smith about Ufberg’s license issue.
The record shows Smith and Ufberg spoke to each other, after which
Smith’s behavior towards Arbuckle abruptly changed. And Smith attempted to lull Arbuckle into
silence, by claiming she would raise the Ufberg issue with legal counsel. (See fn. 20, ante.)
Retaliation may be proven by
v. County of Orange (2007) 157 Cal.App.4th 121, 138 [a Lab. Code, § 1102.5
case].) This includes the temporal
proximity between a disclosure and adverse treatment. (See id.
at pp. 140-141 [based on employer’s “sudden change of position†toward employee
after disclosure, a jury could infer the proffered reasons for termination were
pretextual]; see also Keyser v.
Sacramento City Unified Sch. Dist. (9th Cir. 2001) 265 F.3d 741, 751-752
[similar proximity rule in case involving claimed retaliation for exercise of
free speech rights].)
The Board asserts “temporal
proximity alone†between an alleged adverse action and an employee’s disclosure
“is insufficient to support an inference of retaliation.†The sole authority cited by the Board does
not support this proposition.
2003) 320 F.3d 968 (Coszalter),
involving alleged retaliation for the exercise of free speech rights,
emphasized that, “Retaliation often follows quickly upon the act that offended
the retaliator, but this is not always so.
For a variety of reasons, some retaliators prefer to take their
time: They may wait until the victim is
especially vulnerable or until an especially hurtful action becomes
possible. Or they may wait until they
think the lapse of time disguises their true motivation.†(Coszalter,
supra, 320 F.3d at pp. 977-978 [held, “three to eight months is easily
within the time range that supports an inference of retaliationâ€].) Coszalter
did not hold that temporal proximity cannot suffice.
There is authority, not cited by the
Board, indicating that where temporal proximity is the sole theory of causation, the connection between the protected
activity and the retaliatory action must be “‘very close[.]’†(Clark
County Sch. Dist. v. Breeden (2001) 532 U.S. 268, 273-274 [149 L.Ed.2d 509,
515] [alleged retaliation for complaint of sexual harassment].) Here, the evidence shows that Arbuckle’s
working conditions immediately
worsened after she raised issues about Ufberg to Smith. The temporal connection could not have been
closer.
Accordingly, the jury could
logically ascribe Smith’s abrupt change of treatment of Arbuckle to Arbuckle’s
persistence in pressing the Ufberg issues, that is, that the
Arbuckle’s whistleblowing actions.
F. Malice
The Board contends no substantial
evidence shows Smith acted with malice, because Arbuckle had to prove actual
“ill will and hatred.†We disagree.
First, the jury instructions did not
require a finding of actual ill will and hatred, but also permitted liability
if the jury found that Smith’s “despicable†conduct was done with a “conscious
disregard for the rights and safety of others.â€
As we have noted ante, the
Board brings no challenge to these (or any other) instructions.
Second, the Board’s view of the law
underlying the instruction is not accurate.
(Civ. Code, § 3294, subd. (c)(1) [“‘Malice’ means conduct which is
intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others[,]†emphasis
added].) Even the one case relied on by
the Board, a prior decision of this court, has been misread by the Board. In that case, although we emphasized that the
essence of malice is “
| Description | In State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 (Arbuckle I), our Supreme Court held that plaintiff Carole Arbuckle could pursue her whistleblower suit[1] against defendant State Board of Chiropractic Examiners (Board) and its former executive director, defendant Jeanine R. “Kim†Smith, despite adverse administrative findings by the State Personnel Board (SPB)’s executive officer and without first pursuing further administrative remedies. The Board and Smith (collectively the Board, except as indicated) now appeal from a judgment after a substantial jury verdict in favor of Arbuckle. The Board’s principal contention is that Arbuckle was barred from prosecuting this civil suit by the doctrines of res judicata and collateral estoppel, a claim that unabashedly disregards the holding of Arbuckle I. The Board also purports to challenge the sufficiency of the evidence of liability and damages, but these contentions are both forfeited and lack merit. Accordingly, we shall affirm the judgment. |
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