California Court Reverses Dismissal of Fire Captain’s Whistleblower Retaliation Lawsuit

A California appellate court has reinstated a whistleblower retaliation lawsuit brought by a long-serving county fire captain after concluding that he was not required to exhaust internal civil service appeal procedures before filing suit.

The case involves Captain Anthony Romero, who began his career with the Kern County Fire Department in October 1999. According to the allegations in the complaint, which the court accepted as true for purposes of the ruling, Captain Romero received positive performance evaluations over the years, earned certifications in fire prevention and code enforcement, and was promoted to engineer in 2009 and captain in 2019. 

In January 2020, Captain Romero learned that fire extinguishers on county fire engines were allegedly being improperly serviced. He believed the issue posed a safety hazard and violated applicable laws and regulations. Captain Romero raised the issue with his battalion chief and later submitted a written complaint to the deputy fire chief, citing specific statutes and regulations. The deputy chief forwarded the complaint to the fire marshal. 

Shortly thereafter, Captain Romero received a text message from the assistant fire marshal informing him that he was no longer permitted to work in the fire marshal’s office, or engage in fire prevention duties. Captain Romero complained that this action was retaliatory, but his complaint was dismissed. He was told that the restriction resulted from “unauthorized overtime,” not his reports about the fire extinguishers. 

In April 2020, Captain Romero filed an internal relations complaint with the County’s Office of Human Resources. That complaint was denied in July 2020. Later that year, Captain Romero elevated the matter to the Kern County Civil Service Commission but withdrew the complaint after the then–fire chief assured him the retaliation issue would be handled internally. 

In January 2022, Captain Romero was notified that he was under investigation for possible misconduct. He was placed on administrative leave several months later. On October 4, 2022, the County terminated his employment, citing violations of Kern County Civil Service Commission rules and fire department regulations. 

Captain Romero filed a claim under the California Government Claims Act in March 2023. The County rejected the claim in May 2023. He then filed a civil lawsuit in September 2023, later amending the complaint to assert three causes of action alleging wrongful termination in retaliation for protected whistleblower activity under Labor Code sections 1102.5, 6310, and 98.6. 

After answering the complaint, the County moved for judgment on the pleadings, arguing Captain Romero’s lawsuit was barred because he failed to exhaust administrative remedies by appealing his termination to the Kern County Civil Service Commission under the county’s ordinance and civil service rules governing employee discipline.

The trial court agreed, granting the County’s motion for judgment on the pleadings. Judgment was entered in April 2024. 

On appeal, the Fifth District Court of Appeal reversed. The court focused on whether Kern County’s ordinances and civil service rules provided a “clearly defined” administrative process for submitting, evaluating, and resolving whistleblower retaliation claims.

The appellate court reviewed the county’s disciplinary appeal procedures, which allow employees to challenge dismissals, suspensions, or demotions based on alleged rule violations. Under those rules, the Civil Service Commission reviews the appointing authority’s stated grounds for discipline and may affirm, modify, or revoke the action.

However, the court concluded that those procedures do not require the Commission to accept, evaluate, or resolve claims that a dismissal was motivated by retaliation for whistleblowing. While employees may respond to disciplinary notices and argue their innocence, the Commission’s authority is limited to ruling on the charged misconduct and does not extend to adjudicating statutory whistleblower retaliation claims. 

The court noted that the county’s rules explicitly provide detailed procedures for discrimination and harassment complaints, including retaliation related to those claims, but contain no comparable process for whistleblower retaliation. Because the county had not established a defined administrative remedy for such claims, the court held that Captain Romero was not required to exhaust the civil service appeal process before filing suit. 

As a result, the appellate court reversed the judgment and remanded the case to the trial court with instructions to vacate the order granting judgment on the pleadings and to enter a new order denying the County’s motion. Captain Romero was awarded his costs on appeal. 

It is important to note, neither the trial court nor the court of appeals reached the merits of Captain Romero’s whistleblower claims. Here is a copy of the decision.