Plaintiff, the elected treasurer for the City of Inglewood, reported alleged financial improprieties to the city and various officials. After experiencing alleged retaliation, she sued for whistleblower retaliation under Labor Code section 1102.5. Defendants moved to strike the complaint under the anti-SLAPP statute, arguing Plaintiff was not an “employee.” The trial court denied the motion, finding the claims did not arise from Defendants’ speech. The Court of Appeal reversed, however, following City of Montebello v. Vasquez (2016) 1 Cal.5th 409, and concluding Plaintiff was not an employee under § 1102.6. 

On review, the California Supreme Court affirmed that section 1102.5 does not cover elected officials. It observed that section 1102.6 explicitly references various public entity employees but omits elected officials, in contrast to other statutes that expressly include or exclude them from “employee” definitions. The Court held that the phrase “includes, but is not limited to” in section 1102.6 did not compel inclusion of elected officials. Instead, looking at legislative context and history, it found legislative intent to protect “rank-and-file” employees who report to managers, not elected officials who report to the electorate. The Court further noted that pre-existing whistleblower statutes and section 1104 (which provides the “employee” definition for section 1102.6) consistently distinguish government employees from public officers. Based on these findings, it concluded section 1102.6 was intended to exclude elected officials.

Regarding Plaintiff’s public policy arguments, the California Supreme Court acknowledged that providing whistleblower protections to elected officials could be “one reasonable policy approach.” However, it deemed differential treatment also reasonable, given the availability of First Amendment retaliation protections and other potential relief. Finally, the Court rejected Plaintiff’s argument for “employee” status under section 1102.6 based on the common law test for employment. Following People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, it held that outside of a tort context, the common law test does not override indicators of contrary legislative intent.

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Plaintiff allegedly experienced retaliation after expressing safety concerns. Plaintiff was then suspended for potentially falsifying time cards and terminated based on the results of an internal investigation. Plaintiff sued. The jury found for Defendant on Plaintiff’s whistleblower retaliation claim, finding Defendant did not take adverse actions against him based on his protected disclosures. However, the jury found for Plaintiff on his defamation claim, finding that an investigator for Defendant published false statements about Plaintiff with malice. Defendant appealed after moving unsuccessfully for JNOV, and plaintiff cross-appealed. 

On appeal, the Court of Appeal reversed the defamation judgment and affirmed the retaliation judgment. Following Lazar v. Superior Court (1996) 12 Cal.4th 631 and Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, the court held that tort claims must arise from conduct separate from the termination and seek damages not solely resulting from the termination. Here, the defamation claim arose from the same report that led to the termination, and Plaintiff did not identify any damages unrelated to his termination, such as reputational damage. Defendant’s conduct did not therefore constitute an actionable tort. Regarding the retaliation claim, the court, citing Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, found that Plaintiff did not establish he was entitled to prevail as a matter of law. Even if the jury should have found that the termination was an adverse employment action, it did not address whether Plaintiff’s protected disclosures contributed to his termination. The court also found no abuse of discretion in the trial court’s evidentiary rulings.

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Defendant terminated Plaintiff partly for “failure to work efficiently,” which Plaintiff alleged was connected to his refusal to skip a mandatory air-brake test. Following partial summary judgment for Plaintiff and a jury verdict in his favor, the Ninth Circuit vacated the verdict and remanded, holding Plaintiff was not entitled to summary judgment on the “contributing factor” element. In a subsequent bench trial, the district court found that Plaintiff’s protected activity was a contributing factor in his termination but that it “contributed very little” to the decision. The district court ruled for Defendant, and Plaintiff appealed.

On appeal, The Ninth Circuit reversed. It held that under 49 U.S.C. § 20109(a)(2), an employer cannot discharge an employee for protected activity even “in part.” The Ninth Circuit remanded because the district court failed to determine if BNSF met its burden for the affirmative defense, which required proving by clear and convincing evidence that it would have terminated Plaintiff absent the protected activity (not just that it could have). The court also ruled that Plaintiff failed to show prejudice from the lower court’s evidentiary rulings.

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Plaintiff filed an EEO complaint alleging a hostile work environment.  One month later, the TSA investigated plaintiff for an alleged compensation scheme.  The U.S. Attorney declined to prosecute but allowed Defendant to issue a Kalkines warning. Plaintiff filed a second EEO complaint and was terminated 56 days later for refusing to cooperate with the investigation. He sued, alleging Title VII retaliation. The district court found Plaintiff established a prima facie case but granted summary judgment for Defendant, finding no pretext. Plaintiff appealed.

On appeal, the Ninth Circuit affirmed. It held that temporal proximity alone, even when close, generally requires independent evidence of discrimination or retaliation to establish pretext. Here, there was also close temporal proximity between the alleged misconduct and the termination. The court further held that supervisor awareness of the complaint was insufficient to show pretext and that Plaintiff failed to demonstrate retaliatory animus.

Full opinion

Plaintiff reported safety concerns to Defendant and a state agency.  Defendant terminated him, citing performance issues. Plaintiff sued for whistleblower retaliation under Lab. Code § 1102.5 and HSC § 1278.5. The trial court found for Defendant, acknowledging Plaintiff’s protected disclosures but finding Defendant would have terminated him anyway. Plaintiff unsuccessfully moved to vacate, arguing for declaratory and injunctive relief and attorney’s fees under Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 

On appeal, the Court of Appeal affirmed. It rejected Plaintiff’s reliance on Harris, holding that FEHA’s “substantial factor” standard does not apply to § 1102.5 claims, which are governed by § 1102.6. Citing Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 387–388, the court held that if the employer proves it would have made the same decision regardless of the protected activity, the Plaintiff is barred from all relief. The court also rejected Plaintiff’s argument that the Legislature intentionally omitted language from § 1102.6 explicitly prohibiting relief in such cases.

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Plaintiff, a Canadian citizen working in Canada for a Canadian subsidiary of a U.S. company, alleged retaliation after reporting fraud to Defendant and the SEC. He sued under the Sarbanes-Oxley Act, the Dodd-Frank Act, Cal. Lab. Code § 1102.5, and Cal. Bus. & Prof. Code § 17200. The district court dismissed all claims under Federal Rule of Civil Procedure 12(b)(6) based on extraterritoriality.

On appeal, the Ninth Circuit affirmed, applying the presumption against extraterritoriality and the two-step framework from Abitron Austria GmbH v. Hetronic Int’l, Inc. (2023) 600 U.S. 412, 417, and RJR Nabisco, Inc. v. European Cmty. (2016) 579 U.S. 325, 337. It held that the anti-retaliation provisions of the Sarbanes-Oxley and Dodd-Frank Acts do not apply to foreign conduct and that Plaintiff’s employment was not located in the United States. The court rejected Plaintiff’s argument that his access to Defendant’s web servers in California constituted domestic conduct. It also dismissed the state law claims, finding that insufficient relevant conduct occurred in California.

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