Romero v. County of Kern: Whistleblower Claims and Administrative Exhaustion
Anthony Romero worked for the County of Kern’s fire department for more than two decades and rose to the rank of captain. In early 2020, Romero reported concerns that fire extinguishers on county fire engines were being improperly serviced, which he believed created safety hazards and violated applicable regulations. He raised these concerns with supervisors and in writing to higher-level officials. After making those reports, Romero was barred from working in fire prevention, and his retaliation complaint was dismissed on the stated ground of “unauthorized overtime.”
Romero pursued several internal avenues, including complaints to human resources and the County’s Civil Service Commission, but ultimately withdrew one appeal after being assured the matter would be handled internally. In 2022, the County placed Romero on administrative leave and later terminated his employment. Romero filed a government claim, which the County rejected, and then brought suit alleging retaliation in violation of Labor Code sections 1102.5, 6310, and 98.6.
The County moved for judgment on the pleadings, arguing Romero’s claims were barred because he failed to exhaust administrative remedies under Kern County’s civil service rules governing employee discipline and appeals. The trial court agreed and entered judgment in the County’s favor. The Court of Appeal reversed.
In Romero v County of Kern, the appellate court began by reiterating the general rule that when a statute or local scheme provides an administrative remedy, exhaustion is ordinarily a jurisdictional prerequisite to suit. That rule applies to internal civil service remedies in many public employment contexts. However, exhaustion is not required where the purported remedy does not provide clearly defined machinery for the submission, evaluation, and resolution of the specific claims being asserted.
Applying that principle, the court carefully examined Kern County’s ordinances and Civil Service Commission rules. Those provisions establish procedures for appealing disciplinary actions, such as dismissals or suspensions, and authorize the Commission to affirm, modify, or revoke the appointing authority’s decision. But the court concluded that those procedures are limited to determining whether the employee committed the charged misconduct and whether the discipline should stand. They do not require the Commission to accept, investigate, or adjudicate claims that a dismissal itself was retaliatory whistleblowing conduct.
The court contrasted the County’s rules governing discipline with its separate rules addressing discrimination and harassment claims. Those latter rules expressly provide complaint procedures, investigations, hearings, and remedies. No comparable process existed for whistleblower retaliation claims. While an employee might attempt to argue retaliation during a disciplinary appeal, the Commission was not required to consider or resolve such a claim, and its decision was not required to address retaliation as an independent issue.
Because the County’s rules did not obligate the Commission to evaluate and resolve whistleblower retaliation claims, the court held they did not constitute an administrative remedy that must be exhausted. Requiring exhaustion under such circumstances would not serve the purposes of the doctrine, including development of a factual record or application of agency expertise to the specific claim at issue.
The court distinguished cases in which exhaustion was required because the employer had adopted specific internal procedures to handle whistleblower retaliation complaints. In the absence of such procedures, Romero was not required to pursue a disciplinary appeal before filing suit.
The Court of Appeal therefore reversed the judgment and directed the trial court to deny the County’s motion for judgment on the pleadings. The decision confirms that administrative exhaustion depends not on the existence of an internal process in the abstract, but on whether that process is actually designed to address the claims being asserted.
Romero underscores an important point for public employers. Internal civil service or disciplinary appeal systems do not automatically preclude whistleblower litigation. To trigger exhaustion, the employer’s rules must provide a genuine mechanism for addressing whistleblower retaliation itself, not merely the underlying discipline. Absent such a mechanism, employees may proceed directly to court on statutory whistleblower claims.