76 Cal.App.5th 904
Cal. Ct. App.2022Background
- Plaintiff Arnold Scheer was CAO of UCLA Dept. of Pathology and Laboratory Medicine; he reported patient-safety and management concerns and was terminated June 2, 2016.
- Scheer sued Regents, Drs. Jonathan Braun and Scott Binder for retaliation under Health & Safety Code §1278.5, Labor Code §1102.5, and Government Code §8547 et seq.
- Defendants moved for summary judgment relying on the McDonnell Douglas burden‑shifting test and claimed legitimate nonretaliatory reasons (aggressive demeanor, ineffectiveness) stated in a June 2, 2016 NOIT.
- The trial court applied McDonnell Douglas, found Scheer established a prima facie case but no triable issue of pretext, and entered judgment for defendants.
- After the California Supreme Court’s decision in Lawson (12 Cal.5th 703 (2022)), this court held Lawson’s §1102.6 framework governs §1102.5 claims and, because the defendants used McDonnell Douglas, reversed and remanded the Labor Code and Government Code claims.
- The court also held McDonnell Douglas still governs Health & Safety §1278.5 claims and found triable issues of fact as to pretext (contradictory evaluations, praised negotiations, disputed NOIT statements), so that claim was also reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper framework for Labor Code §1102.5 retaliation claims on summary judgment | Lawson requires applying Labor Code §1102.6: plaintiff must show retaliation was a contributing factor; employer must then prove by clear and convincing evidence it would have acted anyway | McDonnell Douglas burden‑shifting governs; defendants satisfied their burden and plaintiff failed to show pretext | Lawson governs §1102.5 claims; defendants used wrong standard; summary adjudication on that claim reversed and remanded |
| Whether Lawson’s framework applies to Government Code §8547.10 claims | §8547.10(e) uses language mirroring §1102.6, so Lawson’s analysis should apply | McDonnell Douglas applies; summary judgment was proper | §8547.10 subdivision (e) mirrors §1102.6; Lawson informs the analysis; summary adjudication reversed and remanded |
| Whether summary judgment was proper on Health & Safety Code §1278.5 (pretext) | Evaluations, praise, continued responsibilities, and timing create triable issues that NOIT reasons were pretextual | NOIT identified legitimate reasons (harsh style, ineffectiveness); evaluations are checklists that do not contradict NOIT; temporal proximity insufficient | McDonnell Douglas still applies to §1278.5 claims; court finds triable issues of fact on pretext and reverses and remands |
Key Cases Cited
- Lawson v. PPG Architectural Finishes, Inc., 12 Cal.5th 703 (Cal. 2022) (§1102.6 provides governing framework for §1102.5 whistleblower claims)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden‑shifting test for discrimination/retaliation claims)
- Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686 (Cal. Ct. App. 2008) (employer's false or contrived reasons may support inference of unlawful motive)
- Hicks v. KNTV Television, Inc., 160 Cal.App.4th 994 (Cal. Ct. App. 2008) (commendations do not necessarily contradict termination reasons)
- Taswell v. Regents of University of California, 23 Cal.App.5th 343 (Cal. Ct. App. 2018) (Gov. Code §8547.10 authorizes retaliation claims by UC employees)
- Armin v. Riverside Community Hospital, 5 Cal.App.5th 810 (Cal. Ct. App. 2016) (applied McDonnell Douglas to Health & Safety Code §1278.5 claims)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (standard of appellate review for summary judgment)