Terminated Employee Cannot Bring Whistleblower Retaliation Claim to Trial

​An employer had undisputed evidence that its decision to terminate an employee would have occurred for legitimate, independent reasons even if she had not engaged in activities protected by California's whistleblower law, so the employee could not go forward with her whistleblower retaliation claim, a California appeals court ruled.

The appellate court applied the whistleblower retaliation test recently enunciated by California's highest court in Lawson v. PPG Architectural Finishes, which made it easier for an employee to prove whistleblower retaliation, but still ruled in the employer's favor.

After the employee was terminated from her position as an administrative analyst with Sacramento County, she sued the county for unlawful retaliation under Labor Code section 1102.5, which protects employee whistleblowers.

Under this statute, an employer cannot retaliate against an employee for disclosing information that the employee has reasonable cause to believe reveals a violation of a local, state or federal law. The employee alleged that, in violation of this statute, the county retaliated against her after she reported that she was working below her service classification.

The trial court dismissed the lawsuit before trial, and the employee appealed.

The court said that, under section 1102.5, an employee first must establish that retaliation for a protected activity was a contributing factor in a contested employment action. Once the employee 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 if the employee had not engaged in the protected activity.

The court noted that there was some dispute as to whether the employee had met her burden of proof under the statue because the fact that she was working below her service classification did not violate any law, and it was not clear whether the employee reasonably believed that it did violate the law. Therefore, the employee may not have engaged in conduct protected by the statute.

However, the court went on to say that the employer showed that it would have taken action for legitimate, independent reasons even if the employee had not engaged in the protected activity.

Legitimate, Nonretaliatory Reasons

The county said that it terminated the employee because she had been insubordinate, disrespectful and dishonest. Her supervisor described her reasons for reaching this conclusion in a memorandum recommending the employee's release. She stated that the employee had been dishonest on several occasions. On one occasion, for example, she noted that the employee said that she could not complete her work because she could not talk directly to a co-worker during a meeting. But the employee later admitted that she in fact did participate in the meeting by talking and asking questions.

The supervisor further stated that the employee had repeatedly been insubordinate and disrespectful. She wrote that the employee repeatedly called several work meetings "a waste of her time" and, on one occasion, declined to meet with her because she thought it would not be a "valuable use of [her] time." Following a misunderstanding about an assignment, she wrote "a disrespectful and unprofessional" e-mail that accused her supervisor of wasting her time. The supervisor noted, among other things, that the employee expressed dissatisfaction with her job and said she planned to "promote up higher" to a better position.

The employee, the court said, never meaningfully disputed the alleged act of dishonesty or the alleged acts of disrespectful and insubordinate conduct. Her e-mails supported her supervisor's claims. One e-mail, for example, accused her supervisor of wasting her time by failing to sufficiently clarify an assignment, writing: "You know, you could have saved a whole lot of time if you just would have said that an hour ago."

Even the employee acknowledged her shortcomings at one point, at least in part, the court noted, by writing in an e-mail that she realized that she had been "difficult" to work with, "distant," and "unwilling to cooperate."

The court concluded that the county's undisputed evidence would require a reasonable factfinder to find it "highly probable" that the county's decision to terminate the employee would have occurred for legitimate, independent reasons even if she had not complained about working on low-level assignments. The court therefore ruled that the trial court had correctly dismissed the employee's lawsuit.

Vatalaro v. County of Sacramento, Calif. Ct. App., No. C090896 (June 1, 2022).

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