The intake call sounds familiar. A fifteen-year county employee was fired two months after filing a disability accommodation request. The timeline is clean, the comparators look good, and the supervisor's emails are careless. In a private-sector case you would send a preservation letter, file with the Civil Rights Department, and start building damages. When the employer is a city, county, school district, special district, or the State, that routine can lose the case before you ever get to the merits.
Public employment carries a procedural layer that private practice never has to deal with: constitutional due process rights before discipline, civil service and union grievance systems with their own deadlines, Government Claims Act presentation requirements, and an administrative-findings doctrine that can bind the superior court to whatever a hearing officer decided. Lawyers who take on these cases occasionally need to know where each of those layers applies and where it does not.
Skelly Rights: What the Employer Owes Before It Acts
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 held that a permanent civil service employee has a property interest in continued employment protected by due process. Before the employer imposes discipline, the employee is entitled to notice of the proposed action, the reasons for it, a copy of the charges and the materials on which the action is based, and a chance to respond, orally or in writing, to the authority that first imposes the discipline. The U.S. Supreme Court reached the same result under the federal Constitution in Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532.
Several practical points follow. First, Skelly protects employees who have a property interest. Probationary employees, at-will appointees, and most management-level exempt positions usually do not, unless a statute, charter, or memorandum of understanding gives them one. Get the personnel rules and the governing MOU at intake, before you decide what kind of case you have.
Second, the Skelly meeting is not a full evidentiary hearing. It is a pre-deprivation check, and the full hearing comes afterward before a civil service commission, the State Personnel Board, a hearing officer, or an arbitrator. Skelly violations matter, but the remedy is narrower than clients expect. Under Barber v. State Personnel Board (1976) 18 Cal.3d 395, when the post-discipline hearing upholds the discipline on the merits, a Skelly defect typically gets the employee back pay from the date of discipline until the date the defect was cured, not reinstatement. Treat a Skelly violation as damages use and impeachment material. It is not a standalone win.
Third, the Skelly packet is discovery you get for free. The employer has to produce the materials it relied on. That file often holds the employer's first version of the story, which is useful when the litigated version changes.
The Administrative Hearing Is Part of the Lawsuit Whether You Like It or Not
The most dangerous doctrine in this area comes from Johnson v. City of Loma Linda (2000) 24 Cal.4th 61. The California Supreme Court held that when a public employee pursues an internal administrative remedy, such as a civil service appeal, and the agency issues adverse findings, the employee has to set those findings aside through a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 before filing a FEHA action. If the employee does not, the findings get collateral estoppel effect, and a finding that the termination was for legitimate cause usually defeats the discrimination or retaliation claim.
This changes how you approach the hearing. If your client has already filed a civil service appeal, that hearing is effectively the liability trial. Present it as one, with witnesses, exhibits, and a record built for writ review. Many employees go into these hearings with a union representative whose priority is reinstatement, not making a record for a later FEHA case. If you are consulted before the hearing, decide early whether to take part, whether to seek a continuance, or whether the client is better off not pursuing the internal remedy at all. FEHA does not require exhaustion of internal administrative remedies, so the employee can sometimes choose the judicial route alone.
If the findings are adverse, the writ deadline is short. For local agency decisions, Code of Civil Procedure section 1094.6 generally requires the petition within 90 days after the decision becomes final, provided the agency gave the required notice. Because a fundamental vested right is involved, the trial court reviews the record under the independent judgment test (Bixby v. Pierno (1971) 4 Cal.3d 130; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28). That standard is more favorable than substantial evidence review, but the court still decides on the administrative record. A thin record makes the writ hard to win.
State whistleblowers follow a different route. Under the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.), section 8547.8 requires a state employee to file a complaint with the State Personnel Board before bringing a damages action. In State Board of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, the Supreme Court held that an employee who receives an adverse SPB decision does not have to overturn it by writ before suing for damages under that statute. Do not read that holding into FEHA or other claims. It is specific to the statute.
Claim Presentation: Know Which Claims Are Exempt
The Government Claims Act (Gov. Code, § 810 et seq.) bars suit for money or damages against a public entity unless a timely claim was presented and rejected (§ 945.4). Claims for personal injury must be presented within six months of accrual, and most other claims within one year (§ 911.2). After a written rejection, the claimant has six months to sue (§ 945.6). Late-claim relief runs through sections 911.4 and 946.6.
FEHA claims are the major exception. Since Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, courts have held that FEHA's own administrative scheme displaces claim presentation, so the CRD complaint (due within three years under Gov. Code, § 12965) and the right-to-sue notice control. Labor Code section 1102.5 retaliation claims and other non-FEHA statutory theories against public entities have been treated differently in the appellate courts, and some decisions require claim presentation for them. In practice, if the complaint will plead anything other than FEHA, present a Government Claims Act claim within six months of the adverse action. It costs very little and removes a demurrer.
Watch the internal-exhaustion issue for non-FEHA claims as well. Campbell v. Regents of University of California (2005) 35 Cal.4th 311 required a university employee to exhaust internal grievance procedures before suing under section 1102.5. Later legislation has narrowed Campbell for Labor Code claims, but internal-exhaustion arguments still come up against charter cities, the UC system, and agencies with detailed grievance ordinances. Brief the current rule for your defendant rather than assuming.
Theories You Lose and Remedies That Shrink
Government Code section 815 abolishes common-law tort liability for public entities. Liability exists only where a statute provides it. In Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, the Supreme Court applied that rule to bar a Tameny wrongful-termination-in-violation-of-public-policy claim against a public employer. The common-law claim that anchors so many private-sector complaints is not available. Plead the statutory claims: FEHA, Labor Code section 1102.5, the Whistleblower Protection Act, and Government Code section 53298 for local agency whistleblowers where it applies.
Punitive damages are also off the table against the entity (Gov. Code, § 818). That changes valuation. With no punitive exposure, the case is worth its economic and emotional distress damages plus the fee-shifting under FEHA, so attorney fee exposure becomes the main source of settlement pressure. Track your hours from the first day.
Wage-and-hour theories do not carry over well either. In Stone v. Alameda Health System (2024) 16 Cal.5th 1040, the Supreme Court held that public entities are not subject to PAGA penalties or to several Labor Code meal, rest, and pay provisions. Our earlier analysis of PAGA after Viking River and the 2024 reform addresses the private-sector side of that statute. Do not assume any of it applies to a public employer.
Peace Officers, Firefighters, and Labor Board Preemption
Peace officers have additional protections under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.), including interrogation protections and a general one-year limit on completing investigations before discipline (§ 3304, subd. (d)). Firefighters have parallel protections under Government Code section 3250 et seq. Violations support separate claims and can void discipline, so audit the investigation timeline against the statute in every case involving a sworn employee.
Discovery in these cases has its own rules. Officer personnel records are protected by the Pitchess procedure (Evid. Code, §§ 1043, 1045), although recent amendments to Penal Code section 832.7 have opened certain categories of records. Records held by retirement systems, workers' compensation administrators, and outside investigators usually need subpoenas. The objections and enforcement practice covered in our article on third-party discovery subpoenas applies directly, with the addition of official-information privilege claims under Evidence Code section 1040.
Finally, keep the Public Employment Relations Board in mind. When the claim is really about retaliation for union activity, PERB may have exclusive initial jurisdiction under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) and its counterparts. Plead the claim around protected classes and whistleblowing, not organizing activity, unless you mean to file before PERB.
An Intake Checklist for Public-Employee Cases
Before you take the case, find out: the employee's status (permanent, probationary, or at-will); whether a Skelly notice issued and what it contained; whether an administrative appeal is pending, completed, or waived, and the date of any final decision; the governing MOU and grievance provisions; the date of the adverse action, which starts the six-month claim clock; whether the employee is a peace officer or firefighter; and whether the defendant is a state agency, a local entity, or the UC system, because the whistleblower statutes and writ deadlines differ for each.
Then calendar every deadline the same day: the claim presentation date, the CRD deadline, the section 1094.6 writ deadline if a decision is final, and the section 3304 investigation window for sworn employees.
Private-sector employment cases are usually decided on the merits. Public-sector cases are often decided earlier, on the procedural record. Lawyers who win them treat the Skelly packet, the civil service hearing, and the claim form as the first stage of the trial.