Chief Deputy Who Campaigned On Stopping Extramarital Sexual Relationships In The Department Loses The First Round On His Wrongful Discharge Claim

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Jan 06, 2022

In 2018, Justin Fleeman, then a Chief Deputy with the Kern County (County) Sheriff’s Department (Department), ran for election for County Sheriff. One of Fleeman’s campaign messages was that he would stop Department employees from having extramarital sexual relationships with other employees, among other types of conduct that Fleeman deemed inappropriate. During his campaign, Fleeman spoke of a Department employee having a sexual relationship with another employee’s spouse.

Following Fleeman’s election defeat, the Department placed Fleeman on administrative leave pending an investigation into some of his campaign statements.  On February 28, 2019, Fleeman filed a tort claim against the County regarding his placement on leave. On March 6, 2019, the County rejected Fleeman’s tort claim.

The Department’s investigation determined that Fleeman’s campaign statements amounted to improper disclosure of confidential information about the Department employee. Based in part on this finding, the Department terminated Fleeman.  Following his termination, Fleeman filed a second tort claim, alleging that he was improperly investigated and terminated because of his campaign statements.  On September 25, 2019, the County rejected Fleeman’s second tort claim.

Thereafter, Fleeman filed suit against the County for wrongful termination in violation of Labor Code Section 232.5, among other claims. Under Labor Code Section 232.5, an employer may not discharge, formally discipline, or otherwise, discriminate against an employee who discloses information about the employer’s “working conditions.”

Under the Government Claims Act (Act), any claim for personal injury must include the “date, place and other circumstances of the occurrence or transaction which gave rise to the claim.”  The County moved to dismiss Fleeman’s wrongful termination claim on the grounds that the two government tort claims Fleeman presented failed to provide adequate notice of a Labor Code Section 232.5 claim because they: (i) did not notify the County of Fleeman’s allegation that he was improperly terminated for disclosing information about “workplace conditions”; and (ii) failed to identify Labor Code Section 232.5 as the state law at issue.  The district court disagreed, noting that Fleeman’s second tort claim put the County notice of the act (his termination) and the relevant circumstances surrounding that act, namely that Fleeman had shared with the public his concerns about Department employees’ sexual conduct.

The County also moved to dismiss Fleeman’s wrongful termination claim on the ground that Fleeman failed to state a cognizable claim under Labor Code Section 232.5.  Fleeman failed to identify the “workplace condition” related to sexual conduct. The district court agreed, noting that although Fleeman’s complaint alleged that he disclosed allegedly improper sexual behavior, he did not cite to any County policy that addressed such behavior.  The district court granted the County’s motion to dismiss Fleeman’s wrongful termination claim but granted Fleeman the opportunity to try again to state a claim under Labor Code Section 232.5.

Fleeman v. Cty. of Kern, 2021 WL 5514498 (E. D. Cal. Nov. 24, 2021) – unpublished.


As this decision shows, a government tort claim does not have to specifically identify the alleged statutory violation but merely needs to put an agency on notice of the act giving rise to the claim and the circumstances surrounding that act.

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