FEHA Mixed-Motive Standard Does Not Apply To Whistleblower Retaliation Cases

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Jun 05, 2024

Donald Ververka worked for the California Department of Veterans Affairs (CalVet) as the administrator of the veterans’ home in Yountville, CA.  Ververka sued his employer for allegedly terminating him in retaliation for his reporting of health and safety issues about the home to an independent state agency and to his supervisor.  Days after Ververka reported his safety concerns, his supervisor recommended Ververka’s removal due to poor management of the home.

At trial, the jury found that Ververka’s disclosures were protected and “contributing factors” to CalVet’s decision to terminate him for purposes of his Labor Code section 1102.5 whistle blower claim.  But the jury still found in favor of CalVet because CalVet had proven by clear and convincing evidence that it would have made the same decision for “legitimate, independent reasons” as specified in Labor Code section 1102.6.

At the California Court of Appeal, Ververka argued that because the jury found his protected activities were a contributing factor in his termination, he was entitled to declaratory relief, injunctive relief, reasonable attorney’s fees, and costs based on the California Supreme Court’s opinion in Harris v. City of Santa Monica.  That opinion held in part that employees are entitled to that relief in “mixed-motive” Fair Employment and Housing Act (FEHA) employment discrimination cases if: the employee proves a discriminatory motive was a substantial motivating factor in an employer’s decision; and the employer proves it would have made the same decision for non-discriminatory reasons.

The court disagreed.  The court concluded that the analysis in Harris was specific to the language in the FEHA and did not extend to Labor Code section 1102.5 whistleblower claims, which must be evaluated under the procedures described in Labor Code section 1102.6.

Ververka v. Department of Veterans Affairs, 2024 Cal.App. LEXIS 334.

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