In Jones v. Regents of the University of California, (— Cal.Rptr.3d —, 2008 WL 2721184, Cal.App. 2 Dist., July 14, 2008), a California Court of Appeal considered whether an injunction should be issued to stop the Regents of the University of California from requiring that administrative complaints of whistleblower retaliation be presented on a form which requires the complainant to sign a confidentiality statement. The Court of Appeal held that an injunction is not necessary because the recommended form provided by the university is optional, not mandatory, and the whistleblower did not have to subscribe to the language in the form that she deemed constitutionally offensive.
Mary Jones, works as a nurse at the University of California, Los Angeles (UCLA). She filed a lawsuit for employment discrimination and retaliation asserting that she had been the victim of adverse employment action after she reported unsafe and unsanitary practices at the UCLA hospital. The trial court ruled that Jones failed to exhaust her administrative remedies as required by the California Whistleblower Protection Act, and more specifically, Government Code § 8547.10, subdivision (a).
Jones filed an amended complaint in which she alleged “she had exhausted her remedies as far as lawful,” but she had not filed the administrative complaint required by § 8547.10, subdivision (a). She alleged that the form made available to her to comply with § 8547.10 required her to waive her First Amendment rights because it required her to keep the proceedings confidential. Jones asked for an injunction to bar the Regents of the University of California (Regents) from requiring that administrative complaints of whistleblower retaliation be presented on the forms provided by UCLA.
Jones attached to her motion two “UCLA Whistleblower Retaliation Complaint Forms” which she had received from the university. Both forms contained a three-paragraph confidentiality agreement which provided that UCLA would handle the complaint as a confidential matter, and would disclose the complaint and the information derived from the investigation of the complaint, only as required by law or to investigate or resolve the complaint. The forms further provided that, until the complaint is dismissed or resolved, or a decision in the matter is reached, “persons who are parties to the complaint are expected to treat the matter as confidential so as not to compromise any investigation and to respect the rights of the parties.”
The forms also contained a “Declaration,” which the form stated was required under the California Whistleblower Act. The first sentence of the declaration provided that the declaration was made under penalty of perjury. The second sentence provided, “I agree to cooperate in any investigation of this matter, and declare that I have read, understand, and will comply with the confidentiality requirements stated above.” The third sentence of the declaration provided that communications with a claimant’s named representative would be treated as communication with the claimant. Jones asserted that only the first sentence of the declaration was required under § 8547.10, subdivision (a).
UCLA asserted that nothing required a claimant such as Jones to use the form provided by UCLA to file a whistleblower retaliation complaint, as long as he or she fulfilled the requirement of making a statement under penalty of perjury as required by § 8547.10, subdivision (a). The trial court denied Jones’s motion for injunction.
Jones asserted that the portion of the form provided by UCLA which required her to agree to comply with the confidentiality requirements violated her guarantee of free speech under the California and United States Constitutions. She claimed that the form required her “to waive her exercise of those rights, by way of ‘whistleblower speech.'” The Court of Appeal disagreed and affirmed the decision of the trial court.
The court first noted that Jones misconstrued the reach of the form’s confidentiality requirements. The confidentiality statement “requires only confidential treatment of the administrative ‘matter’ the form commences” and only requires confidentiality until the matter is resolved. The confidentiality “provision does note preclude any completed or new ‘whistleblowing,’ nor does it call for confidentiality about anything other than the administrative proceeding undertaken with the complaint.”
The court concluded that an injunction is not necessary because the use of the form is not required to initiate a whistleblower retaliation complaint The form is optional and “is not a mandatory or exclusive means for presenting a whistleblower retaliation complaint, so long as the requirements of section 8547.10, subdivision (a) are met.”
Furthermore, Jones failed to show that form violated her right to free speech. She failed to discuss the government interest that might support the limited restriction on speech contained in the confidentiality clause.