Liu v. Dept. of Industrial Relations CA1/5

Filed 4/24/15 Liu v. Dept. of Industrial Relations CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

AMY LIU, Plaintiff and Appellant, A143128 v. DEPARTMENT OF INDUSTRIAL (Alameda County RELATIONS, Super. Ct. No. RG14723621) Defendant and Respondent.

Amy Liu filed a complaint with Division of Labor Standards Enforcement of the Department of Industrial Relations (the Department) under Labor Code section 98.7,1 alleging unlawful retaliation by her former employer. After investigation, the Department determined that there was insufficient cause to initiate a complaint. Liu filed a petition for writ of mandate in the superior court, seeking to compel the Department to hold an evidentiary hearing. The trial court sustained the Department’s demurrer without leave to amend. We affirm. I. BACKGROUND A. Section 98.7 “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the [Department].” (§ 98.7, subd. (a).) The Department must assign the complaint to a discrimination complaint investigator, who 1 Undesignated statutory references are to the Labor Code.

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then submits a report to the Labor Commissioner, including the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. “The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint.” (Id., subd. (b).) The Department may hold an investigative hearing “whenever the Labor Commissioner determines, after review of the investigation report, that a hearing is necessary to fully establish the facts.” (Ibid.) If the Department determines a violation has occurred, it may “direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon . . . .” (§ 98.7, subd. (c).) The Department is authorized to bring an action to compel compliance, if necessary. (Ibid.) If, on the other hand, the Department determines no violation has occurred, the complainant and respondent are notified and the complaint is dismissed. In that event, the complainant may bring his or her own action in an appropriate court, “which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation.” (Id., subd. (d).) B. Procedural History2 Liu was employed by the University of California at Berkeley from 1993 until she was terminated on August 31, 2009. She filed a complaint with the Department, alleging retaliation for engaging in protected activity (i.e., filing a “whistleblower” complaint).3 On October 7, 2013, the Department notified Liu by letter of its determination that she had failed to meet her burden of proving retaliation. No formal evidentiary hearing was held. Liu, through counsel, initiated an administrative appeal of the decision. On