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California whistleblower
claims are
not subject to McDonnell Douglas |
Lawson v. PPG Architectural
Finishes (California 01/27/2022)
http://case.lawmemo.com/ca/lawson1.pdf
Sent to Custom
Alerts™ subscribers on 01/27/2022
Lawson sued in federal
court claiming he was fired because he blew the whistle on his
employer's fraudulent practices, in violation of the protections
codified in Labor Code section 1102.5. The federal trial court
granted summary judgment for the employer because Lawson could not
satisfy all of the steps in a McDonnell Douglas Corp. v. Green
411 U.S. 792 (1973) analysis.
The 9th Circuit asked the
California Supreme Court to clarify whether McDonnell Douglas
is the proper framework for evaluating such whistleblower
retaliation claims.
The California Court held that a plaintiff
need not satisfy McDonnell Douglas's framework.
The answer to the certified question: "Section 1102.6 provides the
governing framework for the presentation and evaluation of
whistleblower retaliation claims brought under section 1102.5.
First, it places the burden on the plaintiff to establish, by a
preponderance of the evidence, that retaliation for an employee's
protected activities was a contributing factor in a contested
employment action. The plaintiff need not satisfy McDonnell
Douglas in order to discharge this burden. Once the plaintiff
has made the required showing, the burden shifts to the employer
to demonstrate, by clear and convincing evidence, that it would
have taken the action in question for legitimate, independent
reasons even had the plaintiff not engaged in protected activity."
Lawson claimed his boss began ordering him to
intentionally mistint slow-selling paint products – that is, to
tint the paint to a shade the customer had not ordered – and he
reported that to the company's hot line. Later, he was fired.
The federal district court applied the three-part
burden-shifting framework laid out in McDonnell Douglas Corp.
v. Green 411 U.S. 792 (1973), and found that Lawson failed to
satisfy the third prong in that he failed to produce sufficient
evidence that the company's stated reason for firing him was
pretextual.
The 9th Circuit observed that California's
appellate courts had not followed a consistent practice, and asked
the California Supreme Court to clarify.
The
California court said: By its terms, section 1102.6
describes the applicable substantive standards and burdens of
proof for both parties in a section 1102.5 retaliation case:
First, it must be “demonstrated by a preponderance of the
evidence” that the employee’s protected whistleblowing was a
“contributing factor” to an adverse employment action. (§ 1102.6.)
Then, once the employee has made that necessary threshold showing,
the employer bears “the burden of proof to demonstrate by clear
and convincing evidence” that the alleged adverse employment
action would have occurred “for legitimate, independent reasons”
even if the employee had not engaged in protected whistleblowing
activities.
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