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Cosentino v. Fuller

The doctrine of sovereign immunity does not necessarily bar an employment based claim for wrongful discharge or termination against an governmental or agency actor when such conduct falls outside of the scope of such work.

Factual Background

In the case of Cosentino v. Fuller, the employee worked as a casino dealer at a Indian tribal casino and was at some point engaged by the tribe’s gaming commission to assist with an investigation involving illicit criminal gaming activities in the area, and eventually to which the employee became a confidential informant to further such investigative activities on behalf of the California Department of Justice. When the employee failed to cooperate in serving as a confidential informant, the gaming commission revoked his gaming license, effectively terminating his employment and ability to work in a casino.

The employee plaintiff sued on the basis that the revoking of his gaming license constituted a wrongful and prohibited retaliatory discharge, to which the gaming commission sought to dismiss and quash on the basis that their employment based actions were lawful and protected by way of sovereign immunity. Sovereign immunity is best understood as a legal theory by which governmental agencies, within the scope of their authority, are not to be held liable for any of their conduct, unless it involves gross negligence or intentional reckless conduct. In this case, the trial court agreed with gaming commission, dismissing the case and recognizing that the quasi-governmental agency was immune from liability under the doctrine of sovereign immunity.

The Appeal

Upon review, the California Court of Appeals reversed, finding that the doctrine of sovereign immunity did not apply in this case, and in particular, that the gaming commission was still liable for wrongful discharge and retaliatory employment related claims. More specifically, the California Court of Appeals reasoned that for sovereign immunity to actually apply, such claims must be based upon conduct or actions that officials took within their official capacity and within the scope of their official authority, wherein an official’s action that exceed the scope of his or her authority are not considered by the Court to be protected by sovereign immunity. Here, the Court determined that the gaming commission’s revoking of the employee’s license fell completely outside the scope of such authority, and was not based upon the employee’s actual conduct related to his performance as a casino dealer or otherwise, but rather was primarily based on an intent to wrongfully discharge and retaliate against the employee for conduct completed unrelated to his or her actual employment responsibilities or duties. In other words, the California Court of Appeals determined that the gaming commission clearly exceeded their authority and in so doing, violated the employee’s rights and in fact did rise to the level of wrongful and retaliatory discharge.

The significance of this case is that often governmental or quasi-governmental agencies will seek to obtain avoid liability for employment related legal claims on the basis of sovereign immunity. This is very important and relevant for a state such as California, where in 2014, it was estimated that there were approximately 218,000 state employees, and when considering both Federal, State, and Local government employees, the number is significantly higher. Government employees typically don’t have the same protections afforded other employees such as union support, arbitration or even human resources support, as such, it is often very challenging for government workers to fully protect their employment rights, especially where the presumption is often that government agencies are immune from such employment based liability. As such, when government workers assert employment based claims against their government employer, such issues generally are very complex, and involve both state and federal laws that are not necessarily straightforward as it pertains to their claims.

Although sovereign immunity can and does provide a real substantive challenge to employees seeking to assert particular employment based claims, the California Court of Appeals recognizes that such arguments still require a formal assessment as to whether or not the conduct and claims at issue were actually effectuated within the scope of official authority. Additionally, the California Court of Appeals recognizes the significance of sovereign immunity, it similarly allows the Court to conduct a very thorough factual review to determine specifically whether the conduct involved was within the scope of the agency’s purported authority and it it was not then the Court has made clear that sovereign immunity is not applicable. This should be a source of great comfort for government workers, in knowing that Courts will not necessarily always presume that sovereign immunity applies.

Employment based claims involving government workers requires a law firm that is experienced, competent, and knowledgeable concerning the complexities of sovereign immunity. If you have any employment-related dispute and are considering suing your employer for wrongful or retaliatory discharge, contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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