Appeals court reverses judgment in Nevada County Family Court whistleblower suit
The state Third District Court of Appeals has ruled against former Nevada County Family Court mediator Emily Gallup, reversing a judgment that awarded her more than $300,000.
But Gallup and her attorneys, M. Catherine Jones of Nevada City and George Allen of Sacramento, say they plan to ask the state Supreme Court to hear her case.
“This has been going on a long time,” Gallup said of her suit, which stems from her 2010 termination. “It’s been exhausting … I do feel sick about this. Trying to fight the court feels so impossible and so unfair.”
Gallup’s suit against Nevada County Superior Court alleged she was wrongfully terminated after blowing the whistle on the court’s failure to follow state laws.
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Family Court handles cases where parties seek court intervention to solve family issues such as divorce, paternity, domestic violence and abuse, child custody, support and visitation.
Gallup’s concerns included a dispute over whether criminal records could be accessed in some cases; the time allowed for mediation; reviewing of the court files; collateral contacts; and separate mediation in domestic violence cases.
In October 2012, a Sacramento County jury found in Gallup’s favor, awarding her $313,206 in damages.
The jury was asked to determine whether Gallup was fired in retaliation for whistle-blowing, or because of a pattern of undermining her supervisor that culminated in an act of egregious misconduct — taking pages of notes from her supervisor’s diary that contained confidential case information.
The jury found that Gallup had reasonable cause to believe there had been a violation of a state statute or regulation and that she had disclosed that belief to her supervisors.
They also found that her attempts to disclose that belief had resulted in an adverse action — being fired — and that retaliation was the motive for her firing.
They agreed the court did not have a valid reason to terminate her and that she was caused substantial harm because of being fired.
The award was appealed by the attorney for the Administrative Office of the Courts, which is representing Nevada County Superior Court, on the basis that Gallup was required to file an administrative complaint with the labor commissioner, and that she did not exhaust the proper remedies before filing her suit in Sacramento County.
Gallup’s attorneys argued that state laws have been clarified and new case law states that a person does not need to exhaust those remedies.
AOC attorney Tim Yeung, however, argued that there was a requirement to exhaust that remedy, and that the recent change in law cannot be applied retroactively.
The appellate court sided with the AOC, saying in its opinion that the trial court erred and that Gallup was indeed required to file a complaint with the labor commissioner and that any subsequent amendment to the law could not be applied retroactively.
Two other appellate courts have ruled on similar cases and found no such requirement, Allen noted, adding that “this Court of Appeals made a similar decision (to this one) and the state Supreme Court depublished it.”
Allen said the next step will be to petition the state Supreme Court to hear the case.
“It’s discretionary, they don’t have to hear it, but I think we have a decent chance,” he said. “But it is justice delayed for Emily Gallup.”
Gallup said the appellate court decision dealt purely with proper procedure, and not the merits of her case.
“Right now, it looks like they won the battle and they don’t have to pay me,” she said. “But that doesn’t undo the fact that the jury found that I blew the whistle and was retaliated against, that I got fired. This doesn’t change the underlying findings of the case.”
To contact City Editor Liz Kellar, email firstname.lastname@example.org or call 530-477-4229.
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