Barber v. Cal. Dept. of Corrections CA4/2 (2013) · DecisionDepot
Barber v. Cal. Dept. of Corrections CA4/2
California Court of Appeal Nov 15, 2013 No. E053758Unpublished
Filed 11/15/13 Barber v. Cal. Dept. of Corrections CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PATRICK BARBER,
Plaintiff and Appellant, E053758
v. (Super.Ct.No. SCVSS-129378)
CALIFORNIA DEPARTMENT OF OPINION CORRECTIONS AND REHABILITATION et al.,
Defendants and Respondents.
APPEAL from the Superior Court of San 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.
1
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
subdivision (b)] when [the employee] discloses to a governmental agency ‘“reasonably
based suspicions” of illegal activity.’” (Mokler v. County of Orange (2007) 157
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).
7
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.2
Barber testified that in January 2000 he also filed a complaint with the Equal
Employment Opportunity Commission, and two women interviewed him about that
2 Barber did not introduce a copy of the January 2000 OIG complaint as evidence at trial.
8
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-[sic]educated. What are you complaining about?’”
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
9
violated Penal Code section 6128, subdivision (c). That section refers to OIG’s duty not
to disclose information;3 it does not apply to any other person or entity.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
3 Penal Code section 6128 provides as follows: “(a) The Office of the Inspector General may receive communications from any individual, including those employed by any department, board, or authority who believes he or she may have information that may describe an improper governmental activity, as that term is defined in subdivision (c) of Section 8547.2 of the Government Code. It is not the purpose of these communications to redress any single disciplinary action or grievance that may routinely occur. [¶] (b) In order to properly respond to any allegation of improper governmental activity, the Inspector General shall establish a toll-free public telephone number for the purpose of identifying any alleged wrongdoing by an employee of the Department of Corrections and Rehabilitation. This telephone number shall be posted by the department in clear view of all employees and the public. When requested pursuant to Section 6126, the Inspector General shall initiate a review of any alleged improper governmental activity. [¶] (c) All identifying information, and any personal papers or correspondence from any person who initiated the review shall not be disclosed, except in those cases where the Inspector General determines that disclosure of the information is necessary in the interests of justice.”
4 Moreover, the trial court found in the statement of decision that disclosure of the OIG memorandum had been inadvertent. That finding is supported by Ruiz’s testimony at trial and by evidence that Ruiz immediately recalled all copies of the “read and initial” packet when he learned the memorandum was included as part of that packet.
10
trial court correctly found in favor of defendant CYA, even if it relied on different
reasons than those we cite in this appeal.5
DISPOSITION
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.
5 Because we affirm the judgment on different grounds than the trial court relied on, we will not address Barber’s claim that the trial court was biased against him. Although we do not agree with his assertion, it is irrelevant because Barber’s evidence, as a matter of law, fails to establish a prima facie case of retaliation in violation of the Labor Code.