Wabakken v. Cal. Dep’t of Corr. & Rehab.

Under issue preclusion, and pursuant to the California Whistleblower Protection Act, a State Personnel Board’s decision does not give preclusive effects to a claimant seeking relief to a retaliation claim in court.

David Wabakken was employed by the California Department of Corrections and Rehabilitation (Corrections Department). During his employment, Wabakken reported improper government activities to his superiors. During the same period, Wabakken also received three notices of adverse actions which resulted in his dismissal. Wabakken then appealed to the California State Personnel Board (the Board), where he raised a whistlerblower retaliation claim. An ALJ found that the Corrections Department failed to establish sufficient evidence against Wabakken in two of the three actions; that the dismissal from employment was too harsh and the dismissal of Wabakken’s retaliation complaint since he failed to demonstrate retaliation was because of his protected disclosure. The Board adopted and accepted the ALJ’s decision. Accordingly, Wabakken filed suit in District Court against the Correction Department alleging violation of 42 U.S.C. § 1983, violation of California Government Code § 8547 (California Whistleblower Protection Act), and the intentional infliction of emotional distress. The court granted the Corrections Department’s summary judgment, concluding that Wabakken was collaterally estopped from relitigating his whistle blower retaliation claim since it had already been litigated during the Board’s proceedings. On appeal, the Ninth Circuit Court reversed the district court’s decision. Citing Chiropractic Examiners v. Superior Court, the panel concluded that a State Personnel Board’s decision does not give preclusive effects under theories of collateral estoppel to a claimant seeking relief to a retaliation claim in court, because § 8457.8(c) specifically reserves a whistleblower retaliation claim for an employee, even after a Board’s decision is unfavorable and decided on the merits. REVERSED AND REMANDED.