Final Decision Maker’s Involvement Excused Employee From Exhausting His Administrative Appeal

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Aug 09, 2021

Jason Briley worked for the City of West Covina as a deputy fire marshal.  As deputy fire marshal, Briley oversaw the operations of the Fire Prevention Bureau, which included checking building code plans and existing buildings for Fire Code compliance and conducting fire investigations.  For part of his employment, the assistant fire chief, Larry Whithorn, supervised Briley.

In June 2014, Briley complained to the City that several City officials, including Whithorn and the city manager, had:  failed to address his reports of Fire Code violations; and allowed a building permit to be issued before the building plans had passed fire inspection.  The City hired a private firm to investigate Briley’s allegations.

After making his initial complaint, Briley also complained that Whithorn and others had retaliated against him by canceling his scheduled overtime, moving him to a smaller office, and changing his take-home vehicle.  These new allegations were included in the pending investigation.

During this time, Briley also filed grievances raising many of the same claims and alleging that Whithorn had retaliated by giving him a poor performance review.  In January 2015, the investigation firm concluded that Briley’s allegations were largely unfounded.  The then-Assistant City Manager Freeland received the report and adopted the firm’s findings. As a result of this investigation, Whithorn’s relationship with Briley became “strained.”

While this investigation was still pending, Whithorn and the city manager also informed the City of multiple complaints against Briley involving allegations of misconduct and unprofessional behavior.  Specifically, Briley was alleged to have: 1) addressed a fire captain in an unprofessional manner and used profanity in addressing a retail worker when responding to a fire alarm at a store; 2) improperly obtained a prospective City employee’s personnel form, and 3) used profanity in addressing individuals at a CrossFit gym.  The City retained another firm to investigate the allegations against Briley.  The investigation ultimately determined that Briley had exhibited a pattern of unbecoming conduct, unprofessional behavior, and incompetence and that Briley had been untruthful.  By this time, Whithorn had been promoted to fire chief.

As fire chief, Whithorn issued Briley a notice of intent to terminate.  After a pre-termination meeting, another city official decided to uphold Briley’s termination and issued him a notice of termination.  Through his counsel, Briley protested his termination and asserted it was “clearly further retaliation against him.”

In December 2015, Briley initiated an administrative appeal of his discipline to the City’s HR Commission.  The City’s rules provide that the HR Commission must grant the employee an evidentiary hearing and deliver its recommendations to relevant City officials.  For Briley’s appeal, the ultimate decision-makers following the HR Commission’s review would have been Whithorn and Freeland.  Around this time, Freeland, who had adopted the investigation firm’s findings that Briley’s retaliation claims were largely unfounded, had been promoted to the city manager.

While the HR Commission scheduled Briley’s appeal, Briley’s counsel notified the commission that Briley would not proceed because the appeal hearing would be futile for several reasons, including that Freeland and Whithorn were biased against him. Briley then initiated a civil lawsuit against the City alleging whistleblower retaliation under Labor Code section 1102.5.  The City argued that Briley could not pursue his claims because he failed to exhaust his administrative remedies, but the trial court disagreed.  Instead, the court concluded that Briley was excused from pursuing an appeal to the HR Commission.  The matter proceeded to trial, and the jury awarded Briley $4 million dollars, including $3.5 million in noneconomic damages.  The City appealed.

On appeal, the City claimed, among other arguments, that the trial court: erred in concluding Briley was not required to exhaust his administrative remedies and abused its discretion in failing to reduce the jury’s excessive award for non-economic damages.

The Court of Appeal found for Briley the failure to exhaust remedies defense.  The Court relied solely on Whithorn’s involvement in the underlying dispute and his expected role in deciding Briley’s appeal.  Although the Court found that the standard for impartiality in an administrative hearing was lower than in judicial proceedings, the Court determined that Whithorn’s involvement in the administrative appeal violated due process.  Therefore, Briley was excused from proceeding with his administrative appeal.  The court reasoned that due process entitles a person seeking an evidentiary administrative hearing appeal to “a reasonably impartial, noninvolved reviewer.”  Whithorn’s role presented an “unacceptable risk” of bias that excused Briley from exhausting this remedy, given both:  Whithorn’s personal involvement in the same controversies at issue in the administrative appeal; and the significant animosity between Whithorn and Briley that resulted from Briley’s attacks on Whithorn’s integrity.  The Court was careful to emphasize that it was not making any blanket finding of bias in administrative hearing decision-makers.  Instead, the Court held “only that as a matter of due process, an official whose prior dealings with the employee have created substantial animosity and whose own conduct and character are central to the proceeding may not serve as a decisionmaker.”

The court concluded that the $3.5 million noneconomic damages award was so excessive that it may have resulted from the jury’s passion or prejudice.  At trial, Briley claimed that his termination had caused him “distress” and that the ordeal was “tough” because: his livelihood was taken away, and he had dedicated eight years to the City.  He also stated his termination was “upsetting”, and that he had “issues with his sleep” because of financial uncertainty.  There was no evidence, however, that any of the problems Briley described were particularly severe.  Thus, the court concluded that the jury’s total award of $3.5 million in noneconomic damages was “shockingly disproportionate to the evidence of Briley’s harm and cannot stand.”  The court remanded the case for a new trial on Briley’s non-economic damages.

Briley v. City of W. Covina, 66 Cal.App.5th 119 (2021).


LCW Managing Partner J. Scott Tiedemann, Senior Counsel David Urban, and Associate Alex Wong prepared an amicus brief on behalf of the League of California Cities and California Special District’s Association for this case.

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