Mallon v. Hologic CA6, H050917

Background

Mallon was a longtime Hologic employee who performed internal audits and reported potential regulatory nonconformances in March–April 2015 and again in April 2016 (quality engineer qualifications; R&D training records).
After a 2015 reorganization Mallon was transferred into R&D under Jerome Lapointe; tension arose over her audit activity and role scope.
Mallon alleges a multi‑step course of adverse actions (performance criticism, removal of QA/EHS duties, exclusion from meetings, reassignment to a different supervisor, denied raise) culminating in elimination of her position in November 2017.
She sued asserting § 1102.5 whistleblower retaliation, defamation, and wrongful termination in violation of public policy (FEHA claims had been dismissed earlier by stipulation).
The trial court granted summary judgment for Hologic: it found Mallon’s protected reports were too remote and the alleged interim acts did not, as a matter of law, establish that whistleblowing was a contributing factor in her termination; wrongful termination and punitive damages were adjudicated accordingly.
Postjudgment the trial court struck costs incurred before dismissal of FEHA claims but awarded Hologic $25,615.29 in costs incurred after the FEHA dismissal; Mallon appealed both the summary judgment and the costs ruling.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1102.5 claim survived summary judgment (contributing‑factor causation)	Mallon: the April 2015/2016 protected reports and a series of interim acts (viewed collectively) create a triable issue that whistleblowing contributed to adverse treatment and eventual termination.	Hologic: protected reports were remote (up to 18+ months), many alleged acts were minor/not directed at Mallon, and evidence fails to show protected activity was a contributing factor.	Affirmed summary judgment for Hologic. Court found protected reports and interim events did not, as a matter of law, support a contributing‑factor inference.
Whether wrongful‑termination (public policy) claim could proceed	Mallon: wrongful‑termination depends on underlying §1102.5 claim; reversal on retaliation requires allowing wrongful‑termination claim.	Hologic: wrongful‑termination fails because retaliation claim fails.	Affirmed summary adjudication of wrongful‑termination; it depended on the dismissed §1102.5 claim.
Punitive damages against corporate employer	Mallon: triable issues exist whether decisionmakers acted with malice and whether they were managing agents whose conduct imputes corporate liability.	Hologic: punitive damages moot if underlying claims fail; alternatively, plaintiff cannot show required corporate agent status.	Declined to reach merits because underlying claims were dismissed; trial court also found punitive damages unsupported on corporate‑agent theory.
Postjudgment costs: applicability of FEHA cost limitation after FEHA claims dismissed and apportionment of costs	Mallon: FEHA’s discretionary cost bar applies to intertwined FEHA and non‑FEHA claims; costs should be struck or apportioned and court should consider plaintiff’s financial hardship.	Hologic: after Mallon voluntarily dismissed FEHA claims, Code Civ. Proc. §1032(b) governs and defendant is entitled to reasonable post‑dismissal costs as prevailing party.	Affirmed partial costs award: court properly struck pre‑dismissal costs under FEHA rule but awarded reasonable post‑dismissal costs under §1032(b); inability‑to‑pay is not a basis to reduce costs under §1032.

Key Cases Cited

Lawson v. PPG Architectural Finishes, Inc., 12 Cal.5th 703 (Cal. 2022) (articulates §1102.6 burden‑shifting: plaintiff must prove protected activity was a contributing factor; then employer must rebut by clear and convincing evidence)
Bailey v. San Francisco Dist. Attorney’s Office, 16 Cal.5th 611 (Cal. 2024) (retaliation analysis considers totality and workplace context; retaliatory acts may be a series of subtle injuries)
Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (Cal. 2005) (describes adverse employment action standard and that claims are judged in workplace context)
Williams v. Chino Valley Indep. Fire Dist., 61 Cal.4th 97 (Cal. 2015) (FEHA’s cost provision is an exception to §1032 and makes cost awards discretionary for FEHA claims)
Roman v. BRE Properties, Inc., 237 Cal.App.4th 1040 (Cal. Ct. App. 2015) (where FEHA and non‑FEHA claims are intertwined and costs cannot be apportioned, FEHA cost rule may control)
Francis v. City of Los Angeles, 81 Cal.App.5th 532 (Cal. Ct. App. 2022) (series of alleged slights that do not materially affect terms/conditions of employment are not actionable retaliation)
Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment burdens and framework)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (familiar burden‑shifting framework in employment cases; Lawson explains §1102.6 differs from McDonnell Douglas)
White v. Ultramar, Inc., 21 Cal.4th 563 (Cal. 1999) (defining "managing agent" standard for corporate punitive‑damages liability)