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Sheriff’s Deputy Whistleblower Protected from Retaliation

Darren Hager, as recently reported in a whistleblower complaint, was sworn in as a deputy sheriff in November 1988 and was continuously employed as such until he was terminated from employment effective July 28, 2003.

In June 1998, then off duty Deputy Sheriff Jonathan Aujay disappeared in the Devils Punchbowl area of the Antelope Valley. The Sheriff’s Department conducted an investigation into the disappearance. Hager declared he was unaware of the information developed during that inquiry.

In December 1999, Hager served an arrest warrant on a suspect who was eventually charged with multiple felony counts. The following month, the suspect called Hager wanting to work off his prison time. The suspect told Hager, among other things, that the word on the street was that Deputy Aujay was killed. Hager reported this information to Lieutenant Ron Shreves, his immediate superior, and was told to investigate the information.

During Hager’s employment as a deputy he served as a liaison to a federal Drug Enforcement Agency (“DEA”) task force investigating a large methamphetamine organization in the Antelope Valley.

In December 1999, homicide detective Larry Joseph Brandenburg learned from another deputy sheriff that Aujay may have been murdered and that deputy sheriff Richard Engels may have been involved. In March 2000, Brandenburg asked Hager to speak to an informant about “dirty deputies.” The informant told Hager that Engels was involved in narcotics and, possibly, in Aujay’s disappearance. Hager informed Brandenburg.

On March 23, 2000, Hager briefed then-assistant sheriff Larry Waldie regarding narcotics in Antelope Valley, telling him that deputy sheriff Engels may have been involved in Aujay’s disappearance and narcotics. Following subsequent investigations, the Department concluded that Engels had no involvement in Aujay’s disappearance or narcotics. Thereafter, Hager was terminated from employment for making false statements to his supervisors, among other things.

Hager sued the Department for whistleblower retaliation under the California Labor Code. Following a trial, the jury returned a substantial verdict in Hager’s favor. The Department appealed, basing their request for relief partially on the fact that Hager had not been the only, nor the first to report that Engels may have been involved in narcotics and the murder.

There are numerous laws and regulations that protect whistleblowers from retaliation. California Labor Code, Section 1102.5(b), prohibits employers from retaliating against an employee for disclosing information to a government or law enforcement agency of an alleged violation of state or federal law. Further, Section 1102.5(e) of the Code provides, “a report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency.”

To establish a claim for whistleblower retaliation under Section 1102.5(b), the employee must show he engaged in protected activity, his employer subjected him to an adverse employment action, and there is a causal link between the two. If the employee meets his prima facie burden, the employer must offer a legitimate, non-retaliatory explanation for its actions. To prevail, the employee must prove the explanation is a pretext for unlawful retaliation.

To prove that the employee engaged in protected activity, the employee must present evidence that he disclosed a suspected violation of the law. In Mize-Kurzman v. Marin Community College Dist., 202 Cal. App. 4th 832 (Cal. Ct. App. 2012), the California Court of Appeal construed “disclose” in Section 1102.5(b) in accordance with its plain meaning and dictionary definition – to “reveal something that was hidden and not known.” However, the Mize-Kurzman court did not consider whether a second employee who disclosed the same unlawful activity would be protected under Section 1102.5(b).

The Court of Appeals reviewed the filings by each party and listened to arguments, ultimately finding in favor of Hager and against the Department.

Relying on Mize-Kurzman, the Department argued Hager did not “disclose information” under Section 1102.5(b) because it was not the “first report” as the Department already knew that Engels might have been involved in drug trafficking and in Aujay’s disappearance based on homicide detective Brandenburg’s investigation. The appellate court rejected that argument as unsupported by the statute’s language or policy.

The Court first noted that Mize-Kurzman did not apply because it did not address the “first report” issue.

The Court next considered the statute’s plain language. It observed that, under Section 1102.5(e), a report made by a law enforcement employee constitutes a disclosure under Section 1102.5(b) and the Mize-Kurzman court did not consider the relationship between the two provisions. The Court also observed that a “report does not necessarily reveal something hidden or unknown.” It found the Department’s proposed “first report” rule was inconsistent with Section 1102.5’s purpose. The Court explained that protecting only the first employee to disclose unlawful acts would prevent employees from coming forward to report unlawful conduct for fear that someone else already had done so. Thus, the “first report” rule would discourage whistleblowing and contradict the statute’s purpose.

The Court also rejected the Department’s contention that the statute did not apply to reports of misconduct by fellow employees, but only to corporate wrongdoing, as unsupported by the statute’s language. Accordingly, the Court affirmed the judgment in Hager’s favor on his whistleblower retaliation claim, although it reduced his award of back pay and front pay as speculative and unsupported by the evidence.

The jury had originally awarded Hager $8.5 million in wages and punitive damages in his underlying case, up to $3.5 million in lost wages and up to $5 million for emotional distress.

The case involved not only firing from his job as a sheriff’s deputy, but the department also stripped him of his right to carry a firearm and protect himself from the criminals he had spent an entire career putting in jail. According to his claim, the emotional distress from being completely abandoned by law enforcement and essentially shunned, was simply too much to bear.

While the Court of Appeals did not agree with the amount of the jury award, they did decide to affirm it, sending it back to the trial court to revisit the issue of damages.

If you feel that you have information about wrongdoing at your work place on the part of your employer and wish to bring it to the attention of government agencies, before you take any initial steps, contact Stephen Danz & Associates at (877) 789-9707 or use the Contact Form on our website to schedule a free consultation today.

Stephen takes many cases on a contingency basis, meaning that you don’t pay any attorney’s fees unless you receive a judgment or settlement. He also has more than 30 years of experience defending California employees from retaliation and in bringing their whistleblower complaints to trial or settlement.