Shuer v. County of San Diego

• Court: California Court of Appeals
• Writing for the Court: Benke
• Citation: Shuer v. County of San Diego, 11 Cal.Rptr.3d 776, 117 Cal.App.4th 476 (Cal. App. 2004)
• Decision Date: 02 April 2004
• Docket Number: No. D041925,D041925
• Parties: Marjorie SHUER, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.

11 Cal.Rptr.3d 776

117 Cal.App.4th 476

Marjorie SHUER, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.

No. D041925

Court of Appeal, Fourth District, Division 1

April 2, 2004

Joel C. Golden for Plaintiff and Appellant.

Catherine I. Hanson and Astrid G. Meghrigian, San Francisco, Amicus Curiae for California Medical Association on behalf of Plaintiff and Appellant.

John J. Sansone, County Counsel, and English R. Bryant, Deputy County Counsel, for Defendant and Respondent.

BENKE, Acting P.J.

Plaintiff and appellant Dr. Marjorie Shuer sued defendant and respondent County of San Diego (county) for wrongful termination from her position as a supervising psychiatrist. County demurred, arguing Shuer had failed to exhaust administrative remedies. The demurrer was granted. Shuer's case was dismissed. She appeals.

BACKGROUND

A. Complaint

1. Termination

In a first amended complaint Shuer, representing herself, alleged causes of action for wrongful termination in violation of Business and Professions Code Section 2056, subdivision (c), and unlawful retaliation in violation of Labor Code section 1102.5, subdivision (b). Business and Professions Code section 2056, subdivision (c), states that the termination of a physician for advocating for medically appropriate health care violates public policy. Labor Code section 1102.5, subdivision (b), makes it unlawful for an employer to retaliate against an employee for disclosing information to a government agency when the employee reasonably believes the information discloses a violation of law.

The complaint alleged that in November 2000, Shuer, a licensed psychiatrist, began working on a probationary basis for the County Health and Human Services Agency as a supervising psychiatrist in the Juvenile Forensic Services Facility (JFSF). Her duties included the supervision of psychiatrists and other medical staff and the clinical assessment and treatment of minors in juvenile hall.

During that employment, Shuer concluded that in large measure the community standard of care was not practiced at JFSF. Shuer believed medical employees at the facility engaged in unethical, negligent and unlawful practices. The complaint listed seven examples of such practices. They included the frequent failure of physicians to obtain informed consent before prescribing psychotropic medication, the failure to conduct "good faith examinations" before prescribing potentially dangerous medication and treatment, and failure to perform or properly interpret diagnostic tests. The examples included the prescribing of inappropriate medication, the failure to further treat patients after assuming responsibility for their care and the altering of medical records and consent forms. Finally, the complaint alleged that physicians submitted false time reporting forms for hours worked.

Shuer alleged she brought these matters to the attention of the psychiatrists she supervised. Her directives to correct the problems were ignored. Shuer also brought her concerns to the attention of her own supervisors. Again the matters were ignored. In light of this failure to take action, Shuer brought the cited practices to the attention of county counsel.

Shuer's employment with county was terminated on July 24, 2001. The cited basis for termination was the failure to satisfactorily complete the duties of her position. Shuer alleged the actual reason for her termination was retaliation for her refusal to participate in, and her efforts to correct, unethical, medically inappropriate and illegal practices in JFSF.

2. Post-Termination

The complaint alleged that with her letter of termination Shuer received a copy of rule 4.2.5 of the County of San Diego Civil Service Rules (Civil Service Rules) dealing with probationary employees. Subdivision (c) of that rule states that county shall dismiss a probationary employee who is found unsatisfactory for, or incompetent to perform, the duties of the position. The subdivision requires the dismissed employee be given a statement of the reasons for dismissal. The subdivision then states: "A probationer dismissed at any time within the probationary period shall have no right to appeal to the Commission [County of San Diego Civil Service Commission (Civil Service Commission)] in regard to his/her separation or performance appraisal. A probationer who alleges facts showing a violation of his/her liberty interest shall be entitled to a hearing in accordance with the rules ... implemented by the Commission and/or Director." (Ibid.)

Shuer alleged that after receiving the termination letter, she discussed the matter of a civil service hearing with the Executive Officer of the Civil Service Commission, Larry Cook. Cook explained to Shuer that in order to have a hearing, she would have to prove that her "liberty interests" were violated. Cook explained she would have to show that she was dismissed because of her misconduct and that the misconduct was extreme, i.e., criminal. Shuer concluded that since she was not dismissed for such conduct, she was not entitled to a hearing on that basis. In any event, the hearing was described as one designed to "clear" the employee's name and would not result in reinstatement or payment of lost income.

The complaint then states: "[Cook] did mention a charge of discrimination was a possibility, but since Plaintiff was not alleging discrimination, it once again did not appear appropriate to lodge a complaint with the Civil Service Commission."

The complaint alleges Cook did not encourage Shuer to file a complaint with the commission "nor did he in any way mention that it might be mandatory to do so if she were to file a claim." As a result of her discussion with Cook, appellant sought no administrative remedy.

Shuer alleged that she filed a timely claim with county. In denying her claim, county noted Shuer had six months in which to commence a court action but did not mention the requirement she exhaust administrative remedies before filing suit.

The complaint alleged that seeking an administrative remedy would have been futile as there is no administrative remedy available for a violation of Business and Professions Code section 2056.

In an allegation that is somewhat difficult to follow, Shuer stated that her right to due process was violated since her "abrupt termination" was an attempt to halt her appeal concerning what was apparently an earlier unfavorable performance appraisal. Shuer alleges county did not follow its rules for appealing an unfavorable evaluation. Shuer alleges her termination was a device to cut off the appeal of her performance appraisal.

3. Demurrer

County demurred to the complaint, arguing that Shuer failed to allege facts showing that she had exhausted available administrative remedies. Shuer, now represented by counsel, filed opposition, arguing that as a probationary employee she had no administrative remedies to exhaust. In any case, Shuer argued that county's misleading statements concerning, and failure to advise her of, any administrative remedies estopped county from asserting her failure to exhaust such remedies. Finally, she argued that any failure to exhaust any available administrative remedies was not a bar to her action since those remedies were inadequate, her right to due process was violated, and not allowing her action to proceed would be against public policy.

The trial court sustained county's demurrer without leave to amend. Shuer's action was dismissed.

DISCUSSION

Shuer argues the trial court erred in finding that she failed to exhaust available administrative remedies before bringing her wrongful termination action and therefore erred in granting county's demurrer. She first argues that as a probationary employee she had no administrative remedies to exhaust. She contends that assuming such remedies exist, county is estopped from asserting any failure to exhaust because of the misleading and erroneous information it provided her concerning administrative remedies. Shuer argues that in any case exhaustion was excused because any administrative remedy was inadequate, attempts to secure such remedy would have been futile, she was not provided adequate notice of such remedies and, finally, that it would violate public policy under the facts of this case to require she exhaust her administrative remedies before being allowed recourse to the courts.

"When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.]. Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demur[r]er, we determine whether the complaint states facts sufficient to state a cause of action." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.)

A demurrer may properly be granted based on the failure to adequately plead an exhaustion of administrative remedies. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 277, 283 Cal.Rptr. 191.) A plaintiff must exhaust the administrative remedies available before resorting to the courts. The issue is one of jurisdiction. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293, 109 P.2d 942.) The exhaustion requirement applies to statutory administrative remedies and also to internal grievance procedures of public and private organizations. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 474-477, 131 Cal.Rptr. 90, 551 P.2d 410; Moreno v. Cairns (1942) 20 Cal.2d 531, 535, 127 P.2d 914; City of Los Angeles v. Superior Court (1966) 246 Cal.App.2d 73, 75-76, 54 Cal.Rptr. 442.)

Allowing the administrative agency or organization an opportunity to redress the alleged wrong without...