Trial Court Erred By Dismissing Deputy District Attorney’s Disability Discrimination and Whistleblower Claims

Category: Fire Watch
Date: Aug 8, 2019 03:31 PM

Christopher Ross worked for the County of Riverside (“County”) as a deputy district attorney. In 2011, the County assigned Ross a murder case in which Ross believed the accused person was innocent. Ross emailed his supervisors twice indicating that he did not believe the County could prove the case beyond a reasonable doubt, and recommending that the dismissal of the case.

The case was not dismissed.  Over the next two years, Ross obtained more evidence exculpating the accused person. For example, Ross:  received DNA testing results indicating the accused did not commit the crime; identified a witness who implicated the accused’s roommate in the murder, and obtained recordings of two telephone calls the roommate made from jail in which the roommate admitted to murdering the victim. Despite Ross’ repeated requests from 2011 to 2013, the district attorney’s office did not dismiss the case until February 2014. Ross believed that the district attorney’s office was violating the accused’s due process rights by pursuing an allegedly malicious prosecution, but Ross never expressly informed his supervisors that he believed the office was violating state or federal law.

During this same time, Ross learned he was exhibiting neurological symptoms that required evaluation and testing. While Ross was undergoing testing at an out-of-state clinic, he requested a number of accommodations to reduce his workplace stress. However, the district attorney’s office either denied Ross’ requests or did not follow through with the accommodations.

A few months later, the assistant district attorney sent Ross a memorandum directing him to provide a doctor’s note indicating his work restrictions so that the County could evaluate whether it could reasonably accommodate him. Ross explained that his out-of-state testing center had a policy not to provide such documentation, but he offered to provide a note from his primary care physician. The County refused to accept a note from his primary care physician, so Ross never provided the County with any documentation.

After Ross missed approximately three weeks of work over a six-month period to attend out-of-state testing, the County placed him on paid administrative leave of absence pending the outcome of a fitness-for-duty examination. A little over a week later, Ross’ counsel sent the County a letter informing the County that Ross deemed himself constructively discharged as of the date of the letter. While the County attempted to send Ross subsequent letters directing him to return to work, Ross did not return. After repeated attempts, the County sent Ross a final notice indicating that the County considered him to have abandoned his job.

Ross then filed suit against the County alleging a violation of Labor Code section 1102.5 and the Fair Employment and Housing Act’s (“FEHA”) disability-related provisions. The trial court dismissed Ross’ lawsuit, and Ross appealed.

The Court of Appeal concluded that the trial court improperly dismissed Ross’ claims. In order to establish a claim for violation of Labor Code section 1102.5, an employee must show (1) participation in protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. Under Labor Code section 1102.5, an employee participates in protected activity by disclosing “‘reasonably based suspicions’ of illegal activity.” The court noted the trial court erred in dismissing Ross’ Labor Code section 1102.5 claim because Ross had sufficient evidence of protected activity. For example, Ross brought the evidence exculpating the accused to his supervisors, and he repeatedly recommended dismissing the case, at least in part, because of his belief that continued prosecution would violate the accused’s due process rights and well as Ross’ ethical obligations under state law. The court noted that while Ross did not expressly say that he believed the County was violating any specific state or federal law by continuing to prosecute the accused, Labor Code section 1102.5 does not require that.

Similarly, the court found that the trial court erred in dismissing Ross’ claims under the FEHA. The FEHA prohibits an employer from discharging or discriminating against an employee because of a physical disability. The FEHA also prohibits an employer from failing to reasonably accommodate an employee’s known physical disability, from retaliating against an employee who has requested a reasonable accommodation, and from failing to conduct a timely, good-faith interactive process with an employee who has requested a reasonable accommodation.  Ross presented enough evidence to show a physical disability, and that the County was aware of his potentially disabling condition. For example, Ross told his supervisors about his symptoms and that he was being tested at an out-of-state clinic, he missed work periodically to travel to testing, and the County placed him on a paid leave of absence pending a fitness for duty examination.

Ross v. County of Riverside, 36 Cal.App.5th 580 (2019).


This case illustrates that an employee need not say that the public agency employer is violating any particular state or federal law to pursue a whistleblower claim under Labor Code section 1102.5.  This case is also a cautionary tale about FEHA disability and reasonable accommodation claims; a careful analysis of the facts and law is always required in this high-risk area.

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