In Ross v. County of Riverside, ordered published June 10, 2019, the Fourth District Court of Appeal, Division 1 reversed summary judgment in favor of the defendant county on the plaintiff's claims for violation of Labor Code section 1102.5 and the disability discrimination provisions of FEHA. The plaintiff, a deputy district attorney, inherited a case from another attorney, who informed her superiors and the plaintiff that she believed the defendant was innocent and that the defendant's confession was coerced. The plaintiff repeatedly informed his superiors that he believed the DA's office lacked probable cause to prosecute the defendant. He sent evidence out for DNA testing, obtained results that exculpated the defendant, and turned the results over to defense counsel. The DA eventually dismissed the charges against the defendant. Meanwhile, the plaintiff underwent testing for suspected neurological and autoimmune conditions, and requested that he be accommodated by minimizing his stress at work and not assigning him new cases until his testing was complete. The DA's office allegedly failed to accommodate him. The plaintiff left his position, alleging constructive termination. The DA's office eventually declared he had abandoned his job. The trial court granted the county summary judgment on the grounds that the plaintiff could not establish he engaged in activity protected under section 1102.5 and that he could not establish he was disabled.
The appellate court ruled that the evidence, if credited by a trier of fact, showed that the plaintiff had disclosed information protected by Labor Code section 1102.5, subdivision (b). That subdivision forbids an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, or a person with authority over the employee, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Disclosing information to his superiors that he reasonably believed disclosed a violation or noncompliance with the federal and state law applying to criminal prosecutions and prosecutors is protected by subdivision (b). That includes a prosecution that the disclosure reasonably believes violates the defendant's due process rights and a prosecutor's ethical duties under state law. The appellate court did not determine whether there was a triable issue on whether the DA's office retaliated against the plaintiff based on the disclosure. The appellate court also determined the evidence raised a triable issue of fact on whether the plaintiff was temporarily disabled at the time he requested accommodation.
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