State Supreme Court tosses lab whistle-blower lawsuit

0 Comments | Oakland Tribune, Jul 31, 2008 | by Josh Richman

The California Supreme Court ruled against two former Lawrence Livermore Laboratory workers Thursday, saying state law left them no room to sue for monetary damages once the University of California had reviewed and rejected their retaliation complaint.

The California Whistleblower Protection Act carves out a special exception for the university, the court found in a unanimous opinion, and the law's plain language "means what it says: a civil action for damages against the University is available only when the plaintiff employee has first filed a complaint with the University and the University has failed to reach a timely decision on the complaint."

Chief Justice Ronald George and associate justices Kathryn Werdegar and Carlos Moreno concurred with their four colleagues in a separate opinion, agreeing that's what the law says but that this loophole for the university will "act powerfully to defeat the purposes of the Whistleblower Protection Act."

"For whistle blowing employees to be confident they are protected against retaliation, they must have recourse to a fair and impartial decisionmaking process outside the line management of their employing agency or university," Werdegar wrote, urging lawmakers to revisit and clarify the statute.

Plaintiffs Leo Miklosy and Luciana Messina were computer scientists working at the lab's National Ignition Facility, which evaluates the safety and reliability of the nation's nuclear weapons. They said Miklosy was fired in February 2003, and Messina quit a week later upon hearing she was about to be fired, after they'd complained about hardware, software, oversight and training problems at the facility.

They filed complaints with the university in August 2003 and an investigation was finished by November, finding no retaliation; the university claimed Miklosy had been fired for unsatisfactory work performance and supervisors had tried to persuade Messina to stay. The scientists sued the university and three supervisors in February 2004; Alameda County Superior Court Judge John Kraetzer dismissed their case later that year, and the California Court of Appeal upheld that dismissal in October 2005.

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