The 9th Circuit asked the California Supreme Court to clarify whether McDonnell Douglas is the proper framework for evaluating California whistleblower retaliation claims.

The California Court held that a plaintiff need not satisfy McDonnell Douglas's framework. Lawson v. PPG Architectural Finishes (California 01/27/2022) [PDF]

Lawson sued in federal court claiming he was fired because he blew the whistle on his employer's fraudulent practices, in violation of the protections codified in Labor Code section 1102.5. The federal trial court granted summary judgment for the employer because Lawson could not satisfy all of the steps in a McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) analysis.

The answer to the certified question: "Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity."

Lawson claimed his boss began ordering him to intentionally mistint slow-selling paint products – that is, to tint the paint to a shade the customer had not ordered – and he reported that to the company's hot line. Later, he was fired.

The federal district court applied the three-part burden-shifting framework laid out in McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973), and found that Lawson failed to satisfy the third prong in that he failed to produce sufficient evidence that the company's stated reason for firing him was pretextual.

The 9th Circuit observed that California's appellate courts had not followed a consistent practice, and asked the California Supreme Court to clarify.

The California court said: By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be “demonstrated by a preponderance of the evidence” that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action. (§ 1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears “the burden of proof to demonstrate by clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities.