The decision leaves employees in the awkward position of not knowing whether, in fact, the whistleblower law makes the Division of Equal Rights the exclusive forum for adjudication of claims or not.
The answer would seem to be no, inasmuch as the statute provides that an administrative action must be dismissed if a parallel court action is proceeding. Implicit in that provision is that an employee may seek relief in court. Nevertheless, an employee who pursues a whistleblower claim in court runs the risk of having no remedy at all, if the court finds it lacks jurisdiction.
Should the case receive further review in the Supreme Court, the key issue will likely be whether sec. 230.88(2)(c) is ambiguous or not.
If the statute is unambiguous, as the majority found, then the majority holding is clearly correct, the purpose of the statute notwithstanding.
If the statute is ambiguous, then the position in the dissent is likely to prevail, for the majority holding undermines the purpose of the provision avoiding parallel proceedings.
Even if we assume that the federal courts have jurisdiction to consider a state whistleblower claim, the majoritys holding is problematic.
The problem is that it is common, nationwide, for state employees who have suffered adverse employment actions, allegedly because of protected activity, to sue both under their respective state whistleblower law, and 42 U.S.C. 1983. This places the entire litigation in one forum fulfilling the purpose of sec. 230.88(2)(c).
Having the Section 1983 claim considered in federal court, and the whistleblower claim considered in an administrative proceeding, when both claims arise from the same conduct, is inefficient and undermines the purpose of the statute.
It sometimes happens, for one reason or another, that federal courts grant summary judgment on the Section 1983 claim, but not the whistleblower claim; the court then must determine whether to exercise supplemental jurisdiction over the state law whistleblower claim. If the administrative proceeding could be held in abeyance while a federal court action governing both claims is pending, the goal of judicial efficiency is well served.
An administrative claim, however, must be brought within 60 days of the retaliatory action, pursuant to sec. 230.85(1). So, if the federal court declines to exercise supplemental jurisdiction, the claim is lost, however meritorious it may be.
Employees thus face a dilemma. Suppose the employee has a valid whistleblower claim, and an arguably valid Section 1983 claim, based on the same conduct. The most efficient manner of resolving the matter is to pursue both in federal court. If, however, the section 1983 claim is dismissed, the whistleblower claim may be barred by the statute of limitations.
Thus, the only safe course of action is to file an administrative whistleblower claim, and a federal suit for the First Amendment claim, resulting in parallel proceedings over the same conduct exactly what sec. 230.88(2)(c) is intended to avoid.
Accordingly, if the statute is ultimately found to be ambiguous, then judicial efficiency and fairness are better served by allowing the administrative action to be held in abeyance pending a court action. If the statute is unambiguous, as the majority found, then the unintended consequences will need to be addressed by the legislature, if at all.
– David Ziemer
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David Ziemer can be reached by email.