Originally Published on January 29, 2021; Revised on April 5, 2021
In Ross v. County of Riverside, 36 Cal.App.5th 580 (2019), Plaintiff Christopher Ross (“Ross”) sued the County of Riverside (the “County”) for violation of California Labor Code section 1102.5 (“Labor Code section 1102.5”), California’s whistleblower statute. The salient facts of Ross are set forth below:
Background
Ross was a deputy district attorney for the County’s homicide prosecution unit.
In the summer of 2011, an assistant district attorney assigned Ross to a case that another attorney had handled initially. That other attorney told the assistant district attorney that she believed the accused was innocent and that the accused’s confession had been coerced.
In late November 2011, that same attorney provided Ross with a memorandum recommending dismissal of the case. She had previously recommended dismissal more than a year earlier, but the district attorney and assistant district attorney took no action at the time.
In December 2011, Ross sent an email to his supervisor and the assistant district attorney, stating that he did not believe the district attorney’s office could prove the case beyond a reasonable doubt. Ross recommended further DNA testing.
Two days later, Ross sent out additional evidence for DNA testing. He also sent an email to his supervisor and the assistant district attorney, again informing them that he did not believe the district attorney’s office could prove the case beyond a reasonable doubt. He recommended dismissing the case.
Ross believed the district attorney’s office was violating the accused’s due process rights by engaging in malicious prosecution. However, Ross never expressly stated to his supervisor or the assistant district attorney that he believed the district attorney’s office was violating state or federal law.
In May 2012, Ross received the DNA test results. The results exculpated the accused, and Ross provided the results to defense counsel. Based on the DNA test results, Ross believed there was no longer probable cause to continue prosecuting the case.
A year later, in May 2013, Ross received “corrected” DNA test results. The results further exculpated the accused, and Russ again provided the results to defense counsel.
Ross informed his supervisor and the assistant district attorney about the DNA results and again recommended dismissal. The assistant district attorney told him not to provide the results to defense counsel and “appeared upset when Ross indicated he had already done so.” (Ross v. County of Riverside, 36 Cal.App.5th 580, 585 (2019))
In late September 2013, Ross learned of a new witness in the case. In early October 2013, an investigator interviewed the witness, who implicated the accused’s roommate and said that the accused was innocent.
In late October 2013, the investigator found recordings of two phone calls in which the roommate admitted to the murder. Ross had the investigator send the information to the assistant district attorney.
A few days later, the assistant district attorney, the chief deputy district attorney, and Ross’s supervisor met with the investigator to discuss the case. During the meeting, the assistant district attorney told the investigator not to provide the phone call evidence to defense counsel.
In February 2014, the district attorney’s office dismissed the case against the accused.
In April 2014, Ross constructively terminated from his position after the County did not accommodate his physical disability.
Ross’s California Labor Code section 1102.5 Claim Against the County
In July 2014, Ross sued the County for violations of Labor Code 1102.5, among other things.
Labor Code section 1102.5 provides that “an employer may not retaliate ‘against an employee for disclosing information…to a government or law enforcement agency [or] to a person with authority over the employee…if the employee has reasonable cause to believe that the information discloses a violation of [a] state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation….’” (Id. at 591 (citing Labor Code section 1102.5(b) (emphasis added))
A Labor Code section 1102.5 claim requires that “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.]” (Id. at 591-92 (citation and quotation marks omitted))
To establish the first element above (i.e., a prima facie case of retaliation), the plaintiff “must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two.” (Id. at 592)
“An employee engages in activity protected by [Labor Code section 1102.5] when the employee discloses ‘reasonably based suspicions’ of illegal activity. [Citation.]” (Id. (citation and quotation marks omitted; emphasis added))
The Court of Appeal found that Ross “provided evidence showing he disclosed information to his superiors indicating the district attorney’s office would not be able to prove a particular murder case beyond a reasonable doubt and lacked probable cause to continue prosecuting the case because the defendant’s confession was coerced, Ross discovered DNA evidence exculpating the defendant, and the defendant’s roommate admitted in recorded phone calls to being the killer.” (Id.)
On the basis of this information, Ross recommended dismissing the case. In turn, he “based this recommendation, at least in part, on his belief continued prosecution would violate the defendant’s due process rights as well as a prosecutor’s ethical obligations under state law.” (Id.)
In other words, Ross “engaged in protected activity because he disclosed information to a governmental or law enforcement agency and to people with authority over him which he reasonably believed disclosed a violation of or noncompliance with federal and state law….” (Id.)
The Court of Appeal further noted that even though Ross “did not expressly state…that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement.” (Id. at 592-93 (emphasis added)) Instead, Labor Code section 1102.5(b) “requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Id. at 593 (emphasis added)) Click here to read the full Court of Appeal opinion.
Click here to read “Section 1102.5: Protecting Whistleblower Employees from Retaliation.”
If you have questions about California Labor Code section 1102.5, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. Finley Employment Law serves clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.