CACI No. 4602. Affirmative Defense - Same Decision (Gov. Code, § 8547.8(e))

Judicial Council of California Civil Jury Instructions (2023 edition)

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4602.Affirmative Defense - Same Decision (Gov. Code,
§ 8547.8(e))
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [making a
protected disclosure/refusing an illegal order] was a contributing factor
to [his/her/nonbinary pronoun] [discharge/specify other adverse action],
[name of defendant] is not liable if [he/she/nonbinary pronoun/it] proves by
clear and convincing evidence that [he/she/nonbinary pronoun/it] would
have discharged [name of plaintiff] anyway at that time, for legitimate,
independent reasons.
New December 2014; Renumbered from CACI No. 2443 and Revised June 2015
Directions for Use
Give this instruction in a so-called same-decision or mixed-motive case under the
California Whistleblower Protection Act. (See Gov. Code, § 8547 et seq.; CACI No.
4601, Protected Disclosure by State Employee - California Whistleblower Protection
Act - Essential Factual Elements.) A mixed-motive case is one in which there is
evidence of both a retaliatory reason and a legitimate reason for the adverse action.
Even if the jury finds that the retaliatory reason was a contributing factor, the
employer may avoid liability if it can prove by clear and convincing evidence that it
would have made the same decision anyway for a legitimate reason. (Gov. Code,
§ 8547.8(e).)
Select “refusing an illegal order” if the court has allowed the case to proceed based
on that basis. The affirmative defense statute includes refusing an illegal order as
protected activity along with making a protected disclosure. The statute that creates
the plaintiff’s cause of action does not expressly mention refusing an illegal order.
(Compare Gov. Code, § 8547.8(e) with Gov. Code, § 8547.2(c).) See the Directions
for Use to CACI No. 4601.
Sources and Authority
California Whistleblower Protection Act. Government Code section 8547 et seq.
Same-Decision Affirmative Defense. Government Code section 8547.8(e).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 302
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, 5:1790 et seq. (The Rutter
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (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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