In Vatalaro v. County of Sacramento, ordered published June 1, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant county in a whistleblower retaliation suit under Labor Code section 1102.5. The plaintiff, an administrative analyst, was promoted to an administrative services officer position. The position was probationary for six months. The plaintiff complained about her job duties in her new position, which she believed did not rise to the level of her position. After her report, the plaintiff felt mistreated on several occasions, which she believed was attributable to her complaints. Her supervisor eventually recommended that the plaintiff be released from probation on the alleged grounds that she had been insubordinate, disrespectful, and dishonest in her actions. The trial court granted the county's motion for summary judgment, ruling that the county had met its burden of showing plaintiff could not allege a prima facie cause of retaliation because she had not alleged or presented evidence of protected conduct under section 1102.5, because she did not have a reasonable belief the county had violated a specific federal, state, or local law or regulation, but instead had only shown she complained about internal personnel matters. The court further ruled that the county had presented evidence it had a legitimate business reason for releasing the plaintiff, and the plaintiff had failed to raise a triable issue of material fact to support that the reason was pretext.
The appellate court ruled that the trial court's analysis was incorrect, but nevertheless affirmed summary judgment. The three-stage analysis the trial court had applied was disapproved for Labor Code section 1102.5 cases in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, because it fails to acknowledge Labor Code section 1102.6. Section 1102.6 provides that once the plaintiff demonstrates by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5. Therefore, under section 1102.6, once the plaintiff has met her burden, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action for legitimate, independent reasons even had the plaintiff not engaged in protected activity. The plaintiff need not show the reason was pretextual. The appellate court also questioned whether the correct test for a prima facie case is whether the plaintiff had a "reasonable belief," as multiple cases hold, since section 1102.5 actually refers to a "reasonable cause to believe." The appellate court ultimately did not resolve that issue, because it ruled that the trial court properly granted summary judgment on the ground that the county had carried its burden under section 1102.6 by presenting undisputed evidence that it had a legitimate business reason to release the plaintiff--that she was insubordinate, disrespectful, and dishonest in her actions.
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