California Civil Jury Instructions (CACI) (2017)

4602. Affirmative Defense—Same Decision (Gov. Code, § 8547.8(e))

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4602.Affirmative Defense—Same Decision (Gov. Code,
§ 8547.8(e))
If [name of plaintiff] proves that [his/her] [making a protected disclosure/
refusing an illegal order] was a contributing factor to [his/her]
[discharge/specify other adverse action], [name of defendant] is not liable
if [he/she/it] proves by clear and convincing evidence that [he/she/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 (10th ed. 2005) Agency, § 284 et seq.
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 (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