The University of California at Irvine (UCI) is liable for invasion of privacy notwithstanding California’s privileged communications statute and the fact that UCI properly terminated the employee for unrelated insubordination – so held the Court of Appeals for the Fourth District of California in Givens v. Regents of the Univ. of Cal., No. G030663, 2003 WL 21246766 (Cal. App. 4th Dist. May 30, 2003), an unpublished opinion.
Plaintiff Larry Givens worked for three years as UCI’s Director of Facilities Management before UCI promoted him to Assistant Vice Chancellor of Facilities Management. Givens’ ten-plus years of employment with UCI passed without incident until 1997, when someone lodged an anonymous complaint accusing him of having an inappropriate relationship with a female employee. One year after UCI’s investigation into the allegation, Givens’ supervisor sent a memorandum of expectations that directed Givens to change certain management practices "to avoid even the appearance of inappropriate workplace relationships."
One year later, another person lodged a similar complaint about Givens. At the same time that UCI launched its second investigation, Givens informed his supervisor that he planned to file a whistleblower complaint alleging that certain UCI employees wrongfully allocated maintenance funds for capital improvement. Two days after Givens’ supervisor told him that he was under investigation for insubordination as a result of his possible failure to implement the directives in the memorandum of expectations, Givens filed the whistleblower complaint.
Following the second investigation, in which an independent consultant concluded that Givens failed to comply with the majority of his supervisor’s directives, the department decided to terminate Givens for insubordination. Givens, in turn, filed a complaint alleging retaliation based on his whistleblower complaint. Additionally, Givens claimed that "his common law and constitutional rights to privacy were violated when UCI employees discussed his initial whistleblower complaint in a public elevator."
The California Whistleblower Protection Act provides, inter alia, that state employees should be able to report abuse of authority or violation of law "without fear of retribution" and the identity of the informant must be kept confidential.
At trial, the jury found that UCI appropriately terminated Givens for insubordination after Givens failed to implement his supervisor’s directives. However, after hearing evidence that the UCI employee in charge of the whistleblower complaint discussed the complaint for approximately one minute in a UCI public elevator, and that another employee circulated drafts of the whistleblower complaint and spoke about the complaint with UCI officials, the jury also determined that UCI violated Givens’s right of privacy and awarded him nearly $200,000 in damages.
On appeal, the Fourth District of California upheld the jury verdict and found that two of UCI’s employees involved in the investigation publicly disclosed Givens as the whistleblower on an elevator located in Givens’ workplace, making it more likely that anyone overhearing would know Givens. Further, the Whistleblower Protection Act, the public policy of California and UCI’s internal policies support Givens’ position that he had a privacy interest in his whistleblower status.
The court concluded that the breach was serious and egregious based upon testimony that suggested Givens’ status as a whistleblower became known throughout the state system and "damaged his reputation." After reviewing Givens’ testimony that he could not find a job at any other campus, the court concluded that although Givens was fired for insubordination, the jury could have reasonably concluded that Givens’ difficulty in finding a job was based at least in part on his reputation as a whistleblower.
Ultimately, the appellate court remanded the case for a new trial on the limited issue of whether the jury improperly calculated the damage award. While this is an unpublished opinion, it serves as a reminder to state employers that employees acting under a whistleblower protection statute have actionable constitutional privacy interests even when properly fired for unrelated reasons, and even when the disclosure is made during the employer’s investigation of the whistleblower complaint.
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