Mediator Gallup Walloped For Failure To Exhaust Administrative Remedies.
Family services mediator Emily Gallup complained to her supervisor and other court management about “insufficient time for mediation appointments, inadequate review of records and gathering of facts, failure to consider criminal histories, failure to advocate for the best interests of the children, failure to offer separate mediation to domestic violence victims, and use of undue influence to pressure parents into mediated agreements.” Following her complaints, she alleged “escalating criticism and punitive actions culminating in termination.”
She successfully sued the Superior Court of Nevada County (SCNC) under the whistleblower statute, Labor Code section 1102.5(b) and received an award for $313,206. The Court of Appeal, however, reversed the judgment, because she failed to exhaust administrative remedies, a requirement of Labor Code section 98.7. Gallup v. Superior Court of Nevada County, C073452 (3rd Dist. March 30, 2015) (Blease, Nicholson, Duarte) (published).
The published case will be of interest chiefly to employment and labor law attorneys, because the case has a detailed discussion of the retroactivity of the application of the administrative exhaustion requirement to the whistleblower protections, following changes in the law. The Court concludes the exhaustion requirement still applies retroactively despite changes made to the law in 2013. In so ruling, the Court of Appeal followed Campbell v. Regents of University of California, 35 Cal.4th 311 (2005), as controlling authority, and rejected Lloyd v. County of Los Angeles, 172 Cal.App.4th 320 (2009) as non-controlling.
The case is likely to be limited in its impact, as legislation passed in 2013, adding Labor Code section 244, states in part that “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy . . . “ Mediator Gallup filed her action in April 2011.