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The California Supreme Court clarified Jan. 27 that in determining whistleblower retaliation, courts should follow California’s framework law, not a 1973 United States Supreme Court decision that courts have been improperly following.

Labor Code section 1102.5 has prescribed a framework for determining whistleblower retaliation since 2003: An employee whistleblower must prove by preponderance of the evidence that retaliation was a contributing factor in adverse action taken against them, and then the employer bears the burden by proving through clear and convincing evidence that it would have taken the same action for legitimate and independent reasons, according to the court’s opinion.

Since then, however, some courts have been applying a different framework from the 1973 Supreme Court case McDonnell Douglas Corp. v. Green, according to the opinion.

The McDonnell Douglas framework requires employees to establish a prima facie case of unlawful discrimination and retaliation, then gives the employer the burden to articulate a legitimate reason for taking their action, then gives the employee the burden to demonstrate that the employer’s reason is a pretext for discrimination or retaliation.

The case

In the case, the paint company PPG Architectural Finishes fired its territory manager Wallen Lawson, who oversaw PPG products in Lowe’s Orange County stores.

Lawson’s performance rating was low, and he missed his monthly sales targets, according to the opinion. His supervisor told Lawson to intentionally mistint certain paints, so that Lowe’s would buy them back at lower rates than they would otherwise, according to Lawson.

Lawson refused to do so, and filed complaints with his company’s ethics hotline. Months later, PPG fired him.

Lawson filed suit against PPG in district court, claiming whistleblower protections. The court, under now-retired Judge Andrew Guilford, applied the McDonnell Douglas framework, and granted summary judgment against Lawson, according to the ruling.


Patrick Leo McGuigan and Chaka Okadigbo of HKM Employment Attorneys, and Bruce C. Fox and Andrew J. Horowitz of Obermayer Rebmann Maxwell & Hippel LLP represented Lawson.

Michael W. M. Manoukian, Theodore A. Schroeder, Robert W. Pritchard and Everett Clifton Martin of Littler Mendelson PC; and Karin M. Cogbill of Hopkins & Carley represented PPG.

Justice Leondra Kruger wrote the unanimous opinion.

Original case number 8:2018cv00705.

Supreme Court number S266001.

Read the ruling here.


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