982 F.3d 752
9th Cir.2020Background
- Plaintiff Wallen Lawson was a Territory Manager for PPG, supervised by Regional Sales Manager Clarence Moore; duties included merchandising and periodic "Market Walk" performance evaluations.
- Moore allegedly directed TMs to intentionally mis-tint paint to permit fraudulent inventory removal; Lawson anonymously reported this and later confronted Moore.
- Lawson was placed on a Performance Improvement Plan requiring a successful Market Walk; his Market Walk scores declined and he was terminated in September 2017.
- Lawson sued for retaliation under Cal. Lab. Code § 1102.5 and for wrongful termination in violation of public policy; the district court granted summary judgment for PPG after applying the McDonnell Douglas burden‑shifting framework.
- The Ninth Circuit confronted a split in state and federal courts about whether Cal. Lab. Code § 1102.6 (which shifts the burden of persuasion to the employer to prove by clear and convincing evidence that the adverse action would have occurred absent protected activity) replaces the McDonnell Douglas test for § 1102.5 claims.
- Because California precedent is unclear and the question is outcome-determinative, the Ninth Circuit certified to the Supreme Court of California whether § 1102.6 supplants McDonnell Douglas for § 1102.5 retaliation claims and stayed further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Lab. Code § 1102.6 replaces the McDonnell Douglas evidentiary test for § 1102.5 retaliation claims | § 1102.6 applies to § 1102.5 claims and shifts the burden of persuasion to the employer, who must prove by clear and convincing evidence the adverse action would have occurred absent protected activity | McDonnell Douglas remains the applicable framework; § 1102.6 either does not displace McDonnell Douglas or applies only in limited (e.g., mixed‑motive) contexts | Ninth Circuit did not decide; certified the question to the Supreme Court of California for resolution and stayed the appeal |
| Whether the district court’s grant of summary judgment should be upheld under § 1102.6 (given differing standards) | Applying § 1102.6, Lawson contends he would survive summary judgment because the employer bears the heavy clear‑and‑convincing persuasion burden | PPG relies on the district court’s McDonnell Douglas‑based finding of no triable issue of pretext and seeks affirmance | Court declined to reach the merits on this; remand or further proceedings depend on California Supreme Court’s answer |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden‑shifting framework adopted in Title VII cases)
- Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (clarifies defendant’s burden of production under McDonnell Douglas)
- St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (addresses ultimate burden of persuasion under McDonnell Douglas)
- Mondaca‑Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (defines "clear and convincing" evidentiary standard)
- Harris v. City of Santa Monica, 294 P.3d 49 (Cal. 2013) (California Supreme Court decision referencing § 1102.6 in the whistleblower context)
- Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013) (contrast of clear‑and‑convincing standard with McDonnell Douglas)
- Colorado v. New Mexico, 467 U.S. 310 (discusses meaning of clear and convincing standard)
- United States v. Sellers, 906 F.3d 848 (9th Cir. 2018) (remand practice where district court applied incorrect legal standard)