Opinion
PERLUSS, P. J.
Plaintiff Patricia M. Palmer sued the Regents of the University of California (the Regents) in a common law action for wrongful termination in violation of public policy without first pursuing University of California grievance procedures expressly created to protect employees like Palmer who claim to be victims of retaliation for reporting improper activities. The trial court granted the Regents’ motion for summary judgment based on Palmer’s failure to exhaust the internal remedies available to her. We affirm.
Factual and Procedural Background
1. Palmer’s Termination and Her Complaint for Wrongful Discharge
Palmer was employed for 21 years as a clinical laboratory technologist at the UCLA Medical Center’s Department of Pathology and Laboratory Medicine. In January 1997 the department announced a major restructuring. [902]*902Palmer and a number of her coworkers were advised they would be laid off effective March 31,1997, but would be permitted to apply for new positions within the restructured department prior to the layoff date. Palmer was also told “as a regular status employee with more than ten years of seniority, you shall have preference for re-employment for three years from the date of layoff.”
A committee established to select employees to whom permanent positions would be offered after the restructuring interviewed Palmer but did not offer her a job because, according to the chair of the committee, “there were other, better qualified applicants for the positions available.” However, Palmer was hired as a temporary clinical laboratory technologist in a position that terminated in December 1997. Palmer was told her “knowledge and ability qualify you [for] this position.”
Palmer brought this action against the Regents, alleging wrongful discharge in violation of the public policy against retaliation for reporting unlawful activity. In paragraphs 19 and 20 of her complaint she asserts she “repeatedly reported laboratory abuses to defendants [including] failure . . . to comply with state regulations regarding reviewing lab results and failure to comply in signing off those results [and] that data from the lab was being falsified.” She alleges she “was wrongfully terminated and not rehired because of her whistleblowing activities as set forth in paragraphs 19 and 20 of this complaint.”
2. The Regents ’ First Motion for Summary Judgment
The trial court granted the Regents’ initial motion for summary judgment, construing Palmer’s complaint as limited to a cause of action for discharge in violation of Labor Code section 1102.5, subdivision (b), which prohibits an employer from retaliating against an employee who reports the violation of a federal or state statue or regulation to “a government or law enforcement agency.” The trial court concluded that reports of violations to the employer itself are not protected under Labor Code section 1102.5 and that, in any event, the Regents had presented evidence of a proper basis for Palmer’s termination. We reversed in an unpublished opinion (Palmer v. Regents of the University of California (Mar. 5, 2001, B138553)), holding that Palmer had stated a “classic” common law cause of action for discharge in violation of public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314], and that triable issues of fact existed as to the reasons for Palmer’s discharge.
[903]*9033. The Second Summary Judgment Motion: Failure to Exhaust Internal Grievance Procedures
On remand the Regents again moved for summary judgment, asserting that Palmer was required to exhaust available internal grievance procedures before bringing her wrongful discharge action. The Regents explained Palmer had available both the general employee grievance ^procedure described in the complaint resolution section of the pamphlet entitled Personnel Policies for Staff Members (PPSM) and the more specific internal grievance process involving retaliation for reporting improper activities, outlined in the document, UCLA Procedures for Reporting Whistle Blowing Complaints. Although Palmer did file a grievance under the PPSM alleging discrimination based on age, race and sex, as well as retaliation for her participation in union organizational activities, she abandoned that grievance before it was finally resolved. No internal complaint or grievance was ever filed claiming she was the victim of retaliation for reporting unlawful activity at UCLA.
Palmer responded to the motion by arguing exhaustion of administrative remedies is not a valid affirmative defense to a common law cause of action for wrongful discharge in violation of public policy. She did not contend the Regents’ internal grievance procedures are inadequate for adjudication of her claim of wrongful termination.
The trial court once again granted the Regents’ motion for summary judgment, agreeing with the Regents that Palmer was required to pursue internal grievance procedures before filing her lawsuit. Palmer filed a timely notice of appeal.
Discussion
1. Palmer’s Failure to Exhaust Internal Grievance Procedures Precludes Her Civil Action for Wrongful Termination
In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), the Supreme Court held a physician’s failure to pursue a hospital’s internal grievance process barred his civil suit for damages based on the hospital’s purportedly improper denial of staff privileges. “[A] doctor who has been denied hospital staff privileges must exhaust all available internal remedies before instituting any judicial action, including an action seeking only damages . . . .” (Id. at p. 485.) In Rojo v. Kliger (1990) 52 Cal.3d 65 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo), the Supreme Court distinguished Westlake (id. at p. 86) and held that, while [904]*904an employee must exhaust the administrative remedy made available by the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)1 (FEHA) before bringing a cause of action under FEHA, exhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action. (Rojo, at p. 88 [tort of wrongful discharge in violation of public policy against sex discrimination and sexual harassment in employment]; accord, Stevenson v. Superior Court (1997) 16 Cal.4th 880, 905 [66 Cal.Rptr.2d 888, 941 P.2d 1157] (Stevenson) [applying exhaustion analysis of Rojo to claim of wrongful discharge in violation of public policy against age discrimination].)
The difference between Westlake, where exhaustion was required, and Rojo and Stevenson, where it was not, is that Westlake involved the use of internal grievance procedures, made available to an employee or member by the organization itself. (See, e.g., Rojo, supra, 52 Cal.3d at p. 87 [courts “with little, or no, analysis” have extended Westlake,
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
PERLUSS, P. J.
Plaintiff Patricia M. Palmer sued the Regents of the University of California (the Regents) in a common law action for wrongful termination in violation of public policy without first pursuing University of California grievance procedures expressly created to protect employees like Palmer who claim to be victims of retaliation for reporting improper activities. The trial court granted the Regents’ motion for summary judgment based on Palmer’s failure to exhaust the internal remedies available to her. We affirm.
Factual and Procedural Background
1. Palmer’s Termination and Her Complaint for Wrongful Discharge
Palmer was employed for 21 years as a clinical laboratory technologist at the UCLA Medical Center’s Department of Pathology and Laboratory Medicine. In January 1997 the department announced a major restructuring. [902]*902Palmer and a number of her coworkers were advised they would be laid off effective March 31,1997, but would be permitted to apply for new positions within the restructured department prior to the layoff date. Palmer was also told “as a regular status employee with more than ten years of seniority, you shall have preference for re-employment for three years from the date of layoff.”
A committee established to select employees to whom permanent positions would be offered after the restructuring interviewed Palmer but did not offer her a job because, according to the chair of the committee, “there were other, better qualified applicants for the positions available.” However, Palmer was hired as a temporary clinical laboratory technologist in a position that terminated in December 1997. Palmer was told her “knowledge and ability qualify you [for] this position.”
Palmer brought this action against the Regents, alleging wrongful discharge in violation of the public policy against retaliation for reporting unlawful activity. In paragraphs 19 and 20 of her complaint she asserts she “repeatedly reported laboratory abuses to defendants [including] failure . . . to comply with state regulations regarding reviewing lab results and failure to comply in signing off those results [and] that data from the lab was being falsified.” She alleges she “was wrongfully terminated and not rehired because of her whistleblowing activities as set forth in paragraphs 19 and 20 of this complaint.”
2. The Regents ’ First Motion for Summary Judgment
The trial court granted the Regents’ initial motion for summary judgment, construing Palmer’s complaint as limited to a cause of action for discharge in violation of Labor Code section 1102.5, subdivision (b), which prohibits an employer from retaliating against an employee who reports the violation of a federal or state statue or regulation to “a government or law enforcement agency.” The trial court concluded that reports of violations to the employer itself are not protected under Labor Code section 1102.5 and that, in any event, the Regents had presented evidence of a proper basis for Palmer’s termination. We reversed in an unpublished opinion (Palmer v. Regents of the University of California (Mar. 5, 2001, B138553)), holding that Palmer had stated a “classic” common law cause of action for discharge in violation of public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314], and that triable issues of fact existed as to the reasons for Palmer’s discharge.
[903]*9033. The Second Summary Judgment Motion: Failure to Exhaust Internal Grievance Procedures
On remand the Regents again moved for summary judgment, asserting that Palmer was required to exhaust available internal grievance procedures before bringing her wrongful discharge action. The Regents explained Palmer had available both the general employee grievance ^procedure described in the complaint resolution section of the pamphlet entitled Personnel Policies for Staff Members (PPSM) and the more specific internal grievance process involving retaliation for reporting improper activities, outlined in the document, UCLA Procedures for Reporting Whistle Blowing Complaints. Although Palmer did file a grievance under the PPSM alleging discrimination based on age, race and sex, as well as retaliation for her participation in union organizational activities, she abandoned that grievance before it was finally resolved. No internal complaint or grievance was ever filed claiming she was the victim of retaliation for reporting unlawful activity at UCLA.
Palmer responded to the motion by arguing exhaustion of administrative remedies is not a valid affirmative defense to a common law cause of action for wrongful discharge in violation of public policy. She did not contend the Regents’ internal grievance procedures are inadequate for adjudication of her claim of wrongful termination.
The trial court once again granted the Regents’ motion for summary judgment, agreeing with the Regents that Palmer was required to pursue internal grievance procedures before filing her lawsuit. Palmer filed a timely notice of appeal.
Discussion
1. Palmer’s Failure to Exhaust Internal Grievance Procedures Precludes Her Civil Action for Wrongful Termination
In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), the Supreme Court held a physician’s failure to pursue a hospital’s internal grievance process barred his civil suit for damages based on the hospital’s purportedly improper denial of staff privileges. “[A] doctor who has been denied hospital staff privileges must exhaust all available internal remedies before instituting any judicial action, including an action seeking only damages . . . .” (Id. at p. 485.) In Rojo v. Kliger (1990) 52 Cal.3d 65 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo), the Supreme Court distinguished Westlake (id. at p. 86) and held that, while [904]*904an employee must exhaust the administrative remedy made available by the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)1 (FEHA) before bringing a cause of action under FEHA, exhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action. (Rojo, at p. 88 [tort of wrongful discharge in violation of public policy against sex discrimination and sexual harassment in employment]; accord, Stevenson v. Superior Court (1997) 16 Cal.4th 880, 905 [66 Cal.Rptr.2d 888, 941 P.2d 1157] (Stevenson) [applying exhaustion analysis of Rojo to claim of wrongful discharge in violation of public policy against age discrimination].)
The difference between Westlake, where exhaustion was required, and Rojo and Stevenson, where it was not, is that Westlake involved the use of internal grievance procedures, made available to an employee or member by the organization itself. (See, e.g., Rojo, supra, 52 Cal.3d at p. 87 [courts “with little, or no, analysis” have extended Westlake, which “concerned the exhaustion of private internal remedies,” “to require exhaustion of ‘external’ administrative remedies in a variety of public contexts”].) When a statute such as FEHA provides an administrative process for resolution of grievances, exhaustion of those administrative remedies is a precondition to bringing a civil suit on a statutory cause of action, but not for seeking judicial relief on a common law tort claim for wrongful termination in violation of public policy. (Stevenson, supra, 16 Cal.4th at p. 905 [“An employee’s post-termination failure to exhaust administrative remedies has no bearing on whether the termination violated the public policy expressed through the statutory prohibition against age discrimination, and thus the employee’s post-termination administrative default does not preclude assertion of a nonstatutory tort claim for wrongful termination in violation of public policy.”].) When a private association or public entity establishes an internal grievance mechanism, as the Regents has done, failure to exhaust those internal remedies precludes any subsequent private civil action. (Rojo, at p. 86; Westlake, supra, 17 Cal.3d at p. 485.)
Although Westlake involved exhaustion of internal grievance procedures maintained by a voluntary private association (Westlake, supra, 17 Cal.3d at p. 474), in Rojo the Supreme Court confirmed that the Westlake exhaustion doctrine was not confined to private associations and voluntary organizations. In the course of explaining why Westlake did not mandate exhaustion of FEHA administrative procedures before proceeding with a judicial action for the common law tort of wrongful discharge in violation of public policy, the Rojo court defined the “context” in which exhaustion of internal remedies was a precondition to a civil suit: “We agree the exhaustion doctrine, [905]*905when applicable, serves important policy considerations. . . . As we stated in Westlake, ‘From the earliest decisions reviewing actions of voluntary private associations, . . . our courts have recognized the applicability of the exhaustion of remedies doctrine in this context.’ [Citations.] fl[] The ‘context’ to which Westlake properly applies is where the party or entity whose ‘quasi-judicial’ determination is challenged—be it hospital, voluntary private or professional association, or public entity—has provided an internal remedy. [Citations, including City of Fresno v. Superior Court (1987) 188 Cal.App.3d 1484, 1490-1491 [234 Cal.Rptr. 136] (city); Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515 [205 Cal.Rptr. 6] (university); and Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 123-124 [185 Cal.Rptr. 878] (state-funded agency).]” (Rojo, supra, 52 Cal.3d at p. 86, italics added.)
As made plain by Rojo’s expansive definition of the “context” in which the doctrine properly applies, the rationale for Westlake’s exhaustion requirement is not the existence of a contractual relationship between the plaintiff and the defendant entity. Indeed, the Supreme Court specifically rejected that notion when it recognized that the exhaustion doctrine was equally applicable to an applicant for membership who has been denied admission to the organization and an individual whose membership has been revoked. (Westlake, supra, 17 Cal.3d at p. 475 & fn. 4.) Exhaustion of internal grievance procedures is required not because of contractual obligation but because of “compelling” policy considerations: “[A]n exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies. [Citation.] [f] Moreover, by insisting upon exhaustion even in these circumstances [where the plaintiff is seeking only damages and not reinstatement], courts accord recognition to the ‘expertise’ of the organization’s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiff’s claim in the first instance.” (Id. at p. 476; accord, Edgren v. Regents of University of California, supra, 158 Cal.App.3d at p. 521.)2
The “ ‘context’ to which Westlake properly applies” is precisely the situation now before this court. As was true in Westlake, plaintiff Patricia [906]*906Palmer had available to her internal grievance procedures that, if used, could have eliminated or at least minimized any injury she has sustained. (Westlake, supra, 17 Cal.3d at p. 476.)3 Accordingly, the trial court properly granted the Regents’ motion for summary judgment based on Palmer’s failure to exhaust internal grievance procedures. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1151 [43 Cal.Rptr.2d 693, 899 P.2d 79] [exhaustion requirement is jurisdictional].)
2. The Primary Jurisdiction Doctrine Has No Application to the Requirement That Internal Grievance Procedures Be Utilized Before a Civil Action Is Initiated
As the Supreme Court noted in Rojo, supra, 52 Cal.3d at page 87, a number of courts have confused or conflated issues involving exhaustion of private internal grievance procedures with the distinct doctrine requiring exhaustion of external administrative remedies. The dissent compounds this problem by relying on principles associated with the doctrine of primary jurisdiction, a corollary to the doctrine of exhaustion of administrative remedies that is itself often confused with the exhaustion doctrine (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390 [6 Cal.Rptr.2d 487, 826 P.2d 730]), to analyze the separate question whether internal grievance procedures must be utilized before filing a lawsuit.4
The primary jurisdiction doctrine obligates a litigant to apply to an outside regulatory agency (for example, the state Insurance Commissioner, the Federal Communications Commission or the Civil Aeronautics Board) for relief before pursuing a civil action. It, like the closely related doctrine of exhaustion of external administrative remedies, arises in the context of complex regulatory schemes utilizing expert administrative agencies. Both doctrines are, in the words of the Supreme Court, “ ‘essentially doctrines of comity between courts and agencies. They are two sides of the timing coin: Each determines whether an action may be brought in a court or whether an agency proceeding, or further agency proceeding, is necessary.’ [Citation.]” [907]*907(Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 390.) “ ‘ “Exhaustion ” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ [Citations.]” (Ibid.)
Justice Frankfurter authored the classic statement of the principles underlying the primary jurisdiction doctrine in Far East Confer. v. United States (1952) 342 U.S. 570, 574-575 [72 S.Ct. 492, 494, 96 L.Ed. 576]: “Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” The primary jurisdiction doctrine is thus grounded in the judiciary’s desire to take advantage of administrative expertise and to help ensure uniform application of complex regulatory laws. (Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 391.)
The dissent is correct that cases alleging wrongful termination in violation of public policy typically do not involve issues of such a complex or technical nature that the doctrine of primary jurisdiction is properly invoked, and the Regents does not argue to the contrary. But very different policy considerations support the requirement that an employee pursue to completion internal grievance procedures before initiating a lawsuit concerning an adverse employment decision—principally, the desire to provide an opportunity for the employer {not an outside administrative agency) to quickly and efficiently redress a grievance and thereby minimize or even eliminate injury to the plaintiff. (Westlake, supra, 17 Cal.3d at p. 476.) Even though the doctrine of primary jurisdiction may be inapplicable to wrongful termination and employment discrimination cases,5 the principles articulated in Westlake are fully applicable here.
[908]*9083. Section 8547.10 Requires Exhaustion of the Regents’ Internal Grievance Procedures
The policy underlying section 8547.10, part of the California Whistleblower Protection Act, reinforces the propriety of applying the West-lake doctrine to preclude Palmer’s action against the Regents for wrongful termination without first exhausting the university’s internal grievance procedures. Section 8547.10, subdivision (c), specifically applicable to employees of the University of California, provides, “[A]ny person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. . . . However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a),[6] and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents.” (Italics added.)7
The manual, UCLA Procedures for Reporting Whistle Blowing Complaints, contains the UCLA campus procedures for implementing the university’s [909]*909responsibilities under section 8547.10.8 Pursuant to section 8547.10, subdivision (c), therefore, pursuing the internal remedies described in the UCLA manual is an administrative prerequisite to filing a civil action for wrongful termination in violation of public policy against retaliation for reporting unlawful activity. (See Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 440-441 [76 Cal.Rptr.2d 448].) Compliance with section 8547.10, subdivision (c), is jurisdictional. (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1151; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942, 132 A.L.R. 715].)
Although section 8547.10, subdivision (f), added to the statute after Palmer filed her lawsuit against the Regents, expressly preserves an employee’s remedies under any other state law,9 a common law action for wrongful termination in violation of public policy against retaliation for reporting unlawful activity is generally not a “remedy under state law” available to a plaintiff in Palmer’s position. “Except as otherwise provided by statute: [T[] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (§ 815, subd. (a).) The Regents is a public entity. (§ 811.2.) The only statutory authorization for a civil damage action based on alleged retaliation against a University of California employee for reporting improper activity is section 8547.10. Accordingly, a university employee who believes she is the victim of retaliation is limited to a statutory claim for damages under section 8547.10.10 Because the “classic Tameny cause of action” is a common law, judicially created tort (Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 176-178; see Stevenson, supra, 16 Cal.4th at pp. 906-908) and not authorized by statute, it is not properly asserted against the Regents.
[910]*910 Because this court previously concluded Palmer had stated a common law cause of action for wrongful discharge in violation of public policy,11 we do not hold the Regents are immune from her Tameny action under section 815, subdivision (a)—an argument not asserted by the Regents’ counsel in either the current or prior appeal. Nonetheless, the Legislature’s decision to require university employees to exhaust internal grievance procedures as a prerequisite to filing a whistle-blower suit pursuant to section 8547.10, subdivision (c), reinforces our conclusion that Westlake applies to the case at bar and that the trial court properly granted the Regents’ motion for summary judgment based on Palmer’s failure to utilize the internal grievance procedures available to her.
Disposition
The judgment is affirmed. Respondent The Regents of the University of California is to recover its costs on appeal.
Woods, J., concurred.