Whistleblower Claims Fail Where Employer Fired Worker for Performance

​An employee who alleged that he was fired after complaining to HR about unhealthy and unsafe working conditions could not go forward with his claims for unlawful retaliation and wrongful termination because his employer would have terminated him for a legitimate, independent reason, even absent his complaints, a California appeals court recently ruled.

The Long Beach, Calif.-based employer provides health care services for financially vulnerable individuals and families through government programs, such as Medicaid and Medicare. The employee worked as a call center supervisor for nine months, from Feb. 4, 2019, to Nov. 14, 2019. In addition to supervising approximately 30 call center agents, the employee was hired to administer the employer's auto dialer system, which allows the company to target and call specific groups of people in its database. The employee had previous experience with other auto dialer systems but not the particular one used by the employer.

At the beginning of his employment, the employee received a three-day orientation from the company's HR department. His immediate supervisor also trained him on several occasions.

The employee alleged that, within the first few weeks of his start date, one of the company executives came into his office upset. She yelled at and berated him about his failure to successfully operate the auto dialer system. When he attempted to respond to the tirade, she cut him off, left and slammed the door hard enough that it bounced off the wall.

The employee spoke to his immediate supervisor about the encounter. He suggested that the employee raise the issue with HR, and the employee filed a complaint with HR about the executive's behavior. The employee was later told to move out of his office and onto the floor with the other call center agents and work as a call center agent, rather than a supervisor.

Approximately one month after his encounter with the executive, the employee attempted to speak to her about his work. When he dropped by her office and asked if she had time to speak to him, she responded, "No. I'm too busy doing your job." The employee again complained to HR.

In August 2019, the employee's department head placed him on a performance improvement plan. Although she indicated she would meet with him weekly to review his progress, she only did so twice before he was terminated in November 2019.

On Jan. 14, 2021, the employee sued the employer for retaliation and wrongful termination. He alleged that he was first demoted to a customer service position and ultimately terminated in retaliation for his complaints to HR about the executive's harassing and abusive behavior.

The employer sought to have the action dismissed before trial, arguing that it had a legitimate, nonretaliatory and nondiscriminatory reason for terminating the employee: He failed to meet performance standards, including meeting call targets, administering the auto dialer system, and handling basic supervisory tasks at the call center. The employer also alleged that the employee's complaints to HR about the executive were not protected activity and, for that reason, could not form the basis for relief.

The trial court dismissed the action, and the employee appealed. 

Whistleblower Protection Claims

Under California law, an employer may not retaliate against an employee for disclosing information to a person with authority over the employee, if the employee has reasonable cause to believe that the information discloses a violation of a state, federal or local law. The law excludes from whistleblower protection disclosures that involve only disagreements over discretionary decisions, policy choices or interpersonal dynamics. Furthermore, under California law, an employer may not discharge an employee for a reason that violates fundamental public policy. An employer may defend both whistleblower and public policy claims by showing that it would have taken the same action for a legitimate, work-related reason.

The appeals court concluded that, with regard to both claims, the employer showed that it would have terminated the employee for legitimate, independent reasons absent his complaints. The employer's evidence clearly demonstrated that the employee failed to meet performance standards, and the employee failed to present any evidence to dispute this showing.

The court noted that it did not have to reach the issue of whether the employee's disclosures to HR constituted protected activity within the meaning of the whistleblower law because the result would be the same, even if the employee's actions were found to be protected. The employer's undisputed evidence that it fired the employee for performance-related reasons could serve as a defense to the claim.

The appeals court affirmed the trial court order dismissing the complaint.

Jones v. Molina Healthcare, Calif. Ct. App., No. B318825 (Nov. 7, 2023).

Joanne Deschenaux, J.D., is a freelance writer based in Annapolis, Md.