CACI No. 4601. Protected Disclosure by State Employee - California Whistleblower Protection Act - Essential Factual Elements (Gov. Code, § 8547.8(c))

Judicial Council of California Civil Jury Instructions (2020 edition)

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4601.Protected Disclosure by State Employee - California
Whistleblower Protection Act - Essential Factual Elements (Gov.
Code, § 8547.8(c))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] made a
protected disclosure in good faith and that [name of defendant]
[discharged/specify other adverse action] [him/her/nonbinary pronoun] as a
result. In order to establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of plaintiff][specify protected disclosure, e.g., reported
waste, fraud, abuse of authority, violation of law, threats to public
health, bribery, misuse of government property];
2. That [name of plaintiff]’s communication [disclosed/ [or]
demonstrated an intention to disclose] evidence of [an improper
governmental activity/ [or] a condition that could significantly
threaten the health or safety of employees or the public];
3. That [name of plaintiff] made this communication in good faith
[for the purpose of remediating the health or safety condition];
4. That [name of defendant] [discharged/specify other adverse action]
[name of plaintiff];
5. That [name of plaintiff]’s communication was a contributing factor
in [name of defendant]’s decision to [discharge/other adverse action]
[name of plaintiff];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2014; Renumbered from CACI No. 2442 and Revised June 2015
Directions for Use
Under the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.) (the
Act), a state employee or applicant for state employment has a right of action
against any person who retaliates against him or her for having made a “protected
disclosure.” The statute prohibits a “person” from intentionally engaging in acts of
reprisal, retaliation, threats, coercion, or similar acts against the employee or
applicant. (Gov. Code, § 8547.8(c).) A “person” includes the state and its agencies.
(Gov. Code, § 8547.2(d).)
The statute prohibits acts of reprisal, retaliation, threats, coercion, or similar acts
against a state employee or applicant for state employment. (See Gov. Code,
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§ 8547.8(b).) If the case involves an adverse employment action other than
termination, specify the action in elements 4 and 5. These elements may also be
modified if constructive discharge is alleged. See CACI No. 2509, “Adverse
Employment Action” Explained, and CACI No. 2510, “Constructive Discharge”
Explained, for instructions under the Fair Employment and Housing Act that may be
adapted for use with this instruction.
Element 2 alleges a protected disclosure. (See Gov. Code, § 8547.2(e) [“protected
disclosure” defined].)
If an “improper governmental activity” is alleged in element 2, it may be necessary
to expand the instruction with language from Government Code section 8547.2(c) to
define the term. If the court has found that an improper governmental activity is
involved as a matter of law, the jury should be instructed that the issue has been
resolved.
If a health or safety violation is alleged in element 2, include the bracketed language
at the end of element 3.
The statute addresses the possibility of a mixed-motive adverse action. If the
plaintiff can establish that a protected disclosure was a “contributing factor” to the
adverse action (see element 5), the employer may offer evidence to attempt to prove
by clear and convincing evidence that it would have taken the same action for other
permitted reasons. (Gov. Code, § 8547.8(e); see CACI No. 4602, Affırmative
Defense - Same Decision.)
The affirmative defense includes refusing an illegal order as a second protected
matter (along with engaging in protected disclosures). (See Gov. Code, § 8547.8(e);
see also Gov. Code, § 8547.2(b) [defining “illegal order”].) However, Government
Code section 8547.8(c), which creates the plaintiff’s cause of action under the Act,
mentions only making a protected disclosure; it does not expressly reference
refusing an illegal order. But arguably, there would be no need for an affirmative
defense to refusing an illegal order if the refusal itself is not protected. Therefore,
whether a plaintiff may state a claim based on refusing an illegal order may be
unclear; thus the committee has not included refusing an illegal order as within the
elements of this instruction.
Sources and Authority
• California Whistleblower Protection Act. Government Code section 8547 et seq.
• Civil Action Under California Whistleblower Protection Act. Government Code
section 8547.8(c).
• “Improper Governmental Activity” Defined. Government Code section 8547.2(c).
• “Person” Defined. Government Code section 8547.2(d).
• “Protected Disclosure” Defined. Government Code section 8547.2(e).
• Governmental Claims Act Not Applicable. Government Code section 905.2(h).
• “The [Whistleblower Protection Act] prohibits improper governmental activities,
which include interference with or retaliation for reporting such activities.”
WHISTLEBLOWER PROTECTION CACI No. 4601
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(Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 939 [163 Cal.Rptr.3d
530].)
• “The CWPA ‘prohibits retaliation against state employees who “report waste,
fraud, abuse of authority, violation of law, or threat to public health” [citation].’
A protected disclosure under the CWPA is ‘a good faith communication,
including a communication based on, or when carrying out, job duties, that
discloses or demonstrates an intention to disclose information that may evidence
(1) an improper governmental activity, or (2) a condition that may significantly
threaten the health or safety of employees or the public if the disclosure or
intention to disclose was made for the purpose of remedying that condition.’ ”
(Levi v. Regents of University of California (2017) 15 Cal.App.5th 892, 902 [223
Cal.Rptr.3d 577], internal citation omitted.)
• “[Government Code] Section 8547.8 requires a state employee who is a victim
of conduct prohibited by the [Whistleblower Protection] Act to file a written
complaint with the Personnel Board within 12 months of the events at issue and
instructs, ‘any action for damages shall not be available to the injured party
. . .’ unless he or she has filed such a complaint. The Legislature could hardly
have used stronger language to indicate its intent that compliance with the
administrative procedure of sections 8547.8 and 19683 is to be regarded as a
mandatory prerequisite to a suit for damages under the Act than to say a civil
action is ‘not . . . available’ to persons who have not complied with the
procedure.” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100,
1112-1113 [150 Cal.Rptr.3d 405], internal citations omitted.)
• “Exposing conflicts of interest, misuse of funds, and improper favoritism of a
near relative at a public agency are matters of significant public concern that go
well beyond the scope of a similar problem at a purely private institution. State
employees should be free to report violations of those policies without fear of
retribution.” (Levi,supra, 15 Cal.App.5th at p. 905.)
• “Complaints made ‘in the context of internal administrative or personnel actions,
rather than in the context of legal violations’ do not constitute protected
whistleblowing.” (Levi,supra, 15 Cal.App.5th at p. 904.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 284 et seq., 303-304
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Employment
Torts And Related Claims: Other Statutory Claims (WPA), ¶ 5:894 et seq. (The
Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03[2][c], [3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 118, Civil Service, § 118.56
(Matthew Bender)
3 California Points and Authorities, Ch. 36, Civil Service, § 36.40 (Matthew Bender)
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