Barber v.
Corrections
Filed 11/15/13 Barber v. Cal. Dept. of Corrections CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
PATRICK BARBER,
Plaintiff and Appellant,
v.
CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,
Defendants and Respondents.
E053758
(Super.Ct.No. SCVSS-129378)
OPINION
APPEAL from the Superior Court of
Bernardino County. W.
Robert Fawke, Judge. Affirmed.
Patrick Barber, in pro.
per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney
General, Alicia M. B. Fowler, Assistant Attorney General, Jerald L. Mosley and
Mark Schreiber, Deputy Attorneys General, for Defendants and Respondents.
Patrick Barber,
plaintiff and appellant (Barber), appeals from the judgment entered against him
and in favor of defendant and respondent California Youth Authority (CYA) following
a bench trial on Barber’s complaint for damages based on unlawful retaliation
in violation of Labor Code section 1102.5.
Barber, who represents himself in this appeal, contends the trial court
committed various errors in finding against him on his unlawful retaliation
claim. We conclude Barber’s claims are
meritless. Therefore, we will affirm.
Labor
Code section 1102.5 makes it unlawful for an employer to “retaliate against an
employee for disclosing information to a government or law enforcement agency,
where the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.†(Lab. Code, § 1102.5, subd. (b).)
According to the allegations
of his fourth amended complaint, which is the operative pleading in this action,
and his trial testimony, Barber had been
employed since 1998 by CYA as a youth correctional counselor at Heman G. Stark
Correctional Facility (Stark). Defendant
Xavier Ruiz (Ruiz) was employed by CYA “in a Manager capacity over [Barber].†In March 2001, Barber submitted a formal complaint
to the Office of the Inspector General (OIG) in which he asserted that other
employees at Stark had destroyed a videotape that showed a November 1999
assault on Barber by one of the wards at Stark, and the employees also had
given false testimony about that event in connection with “adverse actionâ€
taken against Barber as a result of the November 1999 event. Barber alleged that Ruiz, in turn, wrongfully
disseminated Barber’s OIG complaint by posting it on the “‘Read and Initial’†board
at Stark.
Barber alleged that in
February 2003, Ruiz initiated a formal investigation of an incident in which
Barber purportedly used a chokehold on a ward.
In February 2004 Ruiz engaged in the “adverse action†of dismissing
Barber from employment with CYA effective February 2,
2004,
apparently as a result of the chokehold incident in 2003. Barber appealed to the State Personnel Board. While Barber’s appeal was pending, Ruiz again
terminated Barber’s employment in June 2004 after investigating an incident
that occurred in May 2003 in which Barber allegedly directed foul language at
CYA counselor Manns. Barber alleged in
response to Ruiz’s charge that CYA had not followed the procedure specified in
the Institutions and Camps Manual for responding to a critical incident
referral “from the staff assault that [Barber] sustained 2 days earlier.†Barber appealed this second dismissal asserting,
because he had been fired in February 2004, CYA could not terminate his
employment a second time in June 2004.
The State Personnel Board agreed with Barber and following a hearing in
August 2004 declared the June 2004 termination of Barber’s employment legally
void.
Barber asserted in his
complaint, “Retaliatory animus can be seen from the fact that [Barber] was
terminated from employment in February and appealed the decision through the
[State Personnel Board], which overturned the dismissal. While [Barber] was litigating the dismissal,
[Barber] was dismissed again in retaliation for having engaged in protected
activity, namely appealing [Barber’s] dismissal through the [State Personnel
Board] and complaining about improper governmental activity.â€
The State Personnel Board
overturned Ruiz’s February 2004 decision to terminate Barber’s employment and instead
ordered that he be suspended for 45 days.
Barber went back to work in December 2004.
Based on the foregoing
facts, none of which are in dispute, Barber alleged CYA and Ruiz terminated his
employment in February 2004 in retaliation for Barber’s “‘Whistle Blowing,’
that is, for reporting improper governmental activities†in violation of Labor
Code section 1102.5. Ruiz eventually
filed a motion for summary judgment; the trial court granted that motion. Barber did not appeal the summary judgment
entered against him and in favor of Ruiz.
Barber’s cause of action
against CYA for retaliation in violation of Labor Code section 1102.5 was the
only claim that remained after the trial court granted Ruiz’s summary judgment
motion. Barber and CYA waived a jury,
and a bench trial on that remaining cause of action began on August 17, 2010. At the
conclusion of the presentation of evidence, the parties submitted written
closing arguments.
In February 2011, the trial
court issued a proposed statement of decision finding in favor of CYA. Barber submitted objections to the proposed
statement of decision. On April 20, 2011, the trial court issued a final statement of
decision, again finding in favor of CYA and against Barber on his retaliation
claim. The trial court entered judgment,
accordingly, on that same date.
DISCUSSION
Barber raises six purported claims of error in this
appeal, the first four of which are directed at the trial court’s statement of
decision. His fifth claim is the trial
court was biased against him, as evidenced by observations about his demeanor
in court, which the trial court included in the proposed statement of decision.
Barber’s final claim is the trial court
abused its discretion by not affording him sufficient time to prepare for trial
after his attorney of record was arrested and disbarred. We conclude his claims are meritless. Therefore, we will affirm.
Barber
contends the trial court did not afford his new attorney sufficient time to
prepare for trial. Neither he nor his new
attorney asked the trial court for a continuance, nor did either of them at any
time say they were not ready for trial.
Because he did not raise this issue in the trial court, Barber may not
raise it on appeal for the simple reason that the trial court was not given an
opportunity to address and resolve the issue.
(See Damiani v. Albert (1957)
48 Cal.2d 15, 18 [“points not urged in the trial court may not be urged for the
first time on appealâ€].)
2.
ADEQUACY OF THE STATEMENT OF
DECISION
Barber claims the
trial court’s statement of decision is incorrect, relies on hearsay evidence,
and contains numerous “factual and reasoning errors.†We will not address the substance of his
claims because although he objected
to the trial court’s first, or proposed, statement of decision, Barber did not
object to the trial court’s final statement of decision. More importantly, resolution of this appeal ultimately
depends on whether Barber’s evidence establishes a prima facie case of
retaliation. Because the parties do not
dispute the evidence presented in the trial court, we
determine whether it comports with the requirements of Labor Code section
1102.5. (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1450 [An “issue
of fact becomes one of law . . . if the undisputed facts leave no room for
a reasonable difference of opinionâ€].)
“Labor Code section 1102.5,
subdivision (b), ‘California’s general whistleblower statute’ [citation] . . .
provides: ‘An employer may not retaliate
against an employee for disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a violation
or noncompliance with a state or federal rule or regulation.’ ‘This provision reflects the broad public
policy interest in encouraging workplace whistle-blowers to report unlawful
acts without fearing retaliation.’
[Citation.] To establish a prima
facie case of retaliation, the plaintiff ‘must show (1) she engaged in a
protected activity, (2) her employer subjected her to an adverse employment
action, and (3) there is a causal link between the two.’ [Citation.]†(McVeigh
v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)
The
parties did not address each element of Barber’s whistleblower claim at trial. In their respective written closing
arguments, both Barber and CYA focused on whether Ruiz’s actions against Barber
were adverse employment actions or retaliatory, i.e., whether there was a
causal connection between the adverse employment action and Barber’s whistleblowing. The parties did not discuss whether Barber
had engaged in whistleblowing. Consequently,
the trial court did not address in its statement of decision whether Barber
engaged in protected activity. Instead,
like the parties, the trial court found that Barber did not prove CYA, in the
guise of Ruiz, had retaliated against Barber. The parties effectively assumed in the trial
court, as they do in this appeal that Barber engaged in protected whistleblowing
activity. Despite the focus in the court
below, Barber did not present any evidence to prove he engaged in protected
activity.
“An employee engages in
protected activity [under Labor Code section 1102.5, subdivision (b)] when [the
employee] discloses to a governmental agency ‘“reasonably based suspicions†of
illegal activity.’†(
Cal.App.4th 121, 138.) Under Labor Code section
1102.5, subdivision (e) a report of reasonably suspected illegal activity made
by an employee of a governmental agency to his or her employer constitutes a
disclosure to a government or law enforcement agency for purposes of
subdivision (b).
The evidence Barber
presented at trial does not establish that he engaged in protected activity,
i.e., that he disclosed reasonably suspected illegal activity to his employer
or any other governmental agency or entity.
Barber’s testimony, as recapped in his written closing argument, shows
he made many complaints, first to his employer, and next to the OIG, about how
he was being treated at Stark, not only by other Stark employees, but also by Ruiz
who had subjected him to repeated investigations about his work-related conduct.
According to his own description, set
out in his written closing argument, Barber’s disclosures were about
“misconduct†he claimed CYA had committed in its treatment of him as an
employee. Although Barber recounted the purported
misconduct at length in his trial testimony and his written closing argument,
he did not identify any state or federal law, rule, or regulation that Ruiz or
any other CYA employee violated, and that he in turn had reported in a
protected disclosure.
Barber did not identify in
the trial court, nor does he do so here, the particular disclosures he contends
constitute the protected activity. Barber’s three complaints to OIG are the only
evidence that arguably come within the category of protected disclosures. According to his testimony at trial, Barber
filed his first OIG complaint in January 2000 in which he complained that he
had been subjected to two separate investigations for each of three work-related
incidents, for a total of six investigations.
filed a complaint with the Equal Employment Opportunity Commission, and two
women interviewed him about that complaint.
The outcome was that Barber failed to establish an EEOC claim. According to Barber, the two interviewers
asked, “‘Mr. Barber, you are white, you’re a male, and you’re highly-[
Barber submitted a second
letter to OIG on March 7, 2001, a copy of which was introduced as Exhibit 3 at
trial. In that letter, Barber again
complained about how he was being treated at work. Barber also accused a fellow employee of
destroying a videotape that he contends was evidence of a 1999 incident at work
for which Barber was subjected to discipline.
It is apparent from his written complaint that a copy of the videotape
existed because Barber stated in the complaint that he watched the videotape on
March 5, 2001, two days before writing to OIG.
Moreover, to the extent Barber complained to OIG that destruction of the
videotape constituted a violation of Penal Code section 135, which prohibits
the destruction of evidence, he clearly states the videotape was not destroyed
until sometime after the district attorney’s office had rejected the case.
Barber filed a third and
final complaint with OIG in September 2001.
In that letter, Barber claimed his privacy had been violated because
someone at Stark had disclosed the fact that he had filed a complaint with
OIG. The disclosure occurred when OIG’s
August 14, 2001, memorandum addressed to the deputy director of CYA about its
investigation of Barber’s previous complaints was included with other material
circulated to Stark lieutenants and sergeants on what Barber referred to as the
“read and initial†clipboard. Barber
asserted in his OIG complaint that disclosure of the memorandum violated Penal
Code section 6128, subdivision (c). That
section refers to OIG’s duty not to disclose information;
entity.
title="">[4]
In short, Barber’s activity involved
complaints about internal personnel matters between himself, other employees,
and/or his employer. Those complaints
are not protected under Labor Code section 1102.5, subdivision (b), which prohibits
retaliation for disclosures of suspected illegal activity, i.e., the violation
of a state or federal statute, rule, or regulation, to government or law
enforcement agencies. Barber did not
identify in the trial court, nor does he do so in this appeal, any statute,
rule, or regulation the violation of which he contends was the subject of any
of his complaints. Absent such evidence,
Barber failed to establish a prima facie case against defendants. Therefore, the trial court correctly found in
favor of defendant CYA, even if it relied on different reasons than those we
cite in this appeal.
name="_ftnref5" title="">[5]
The
judgment is affirmed. Respondent to
recover its costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] It is
unclear from the record in this appeal whether Barber was a CYA employee at the
time of trial.
name="_ftn2" title=""> [2]
Barber did not introduce a copy of the January 2000 OIG complaint as
evidence at trial.
