In Nejadian v. County of Los Angeles, published October 1, 2019, the Second District Court of Appeal, Division 4, reversed a judgment after jury trial against the defendant county, and ordered judgment entered in the county's favor. The plaintiff, an Environmental Health Specialist, alleged that he was retaliated against for declining to allow home rebuilding plans after a wildfire. He alleged that county decisions approving the rebuilding plans violated the County Code. He also alleged age discrimination. He sued under Labor Code section 1102.5(c) and FEHA. The jury found against the plaintiff on his age discrimination claims, but found retaliation against him under section 1102.5(c) and FEHA.
The appellate court ruled that the verdict on section 1102.5(c) retaliation was erroneous, because the plaintiff had failed to prove that the conduct he declined to participate in violated a statute, rule, or regulation. labor Code section 1102.5(c) prohibits “[a]n employer, or any person acting on behalf of the employer, . . . [from] retaliate[ing] against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation." The plaintiff has the burden of proving that the activity actually violates a statute, rule, or regulation. That is a legal question for the court. No findings of fact are necessary to decide it. The court must decide that issue before the claim goes to the jury. If the court decides the activity violates a statute, rule, or regulation, then the jury determines whether the plaintiff refused to participate and if so whether that refusal was a contributing factor in the defendant’s decision to impose an adverse employment action on the plaintiff. The appellate court determined that the plaintiff failed to prove that the activities he declined to participate in violate a statute, rule, or regulation. The appellate court also ruled that the trial court erred in instructing the jury that the plaintiff could prove FEHA retaliation by proving he was retaliated against for refusal to participate in activities that would violate statutes, rules, or regulations. That is not a basis for FEHA liability. The court also concluded that there was no substantial evidence that the county took adverse employment actions against him in retaliation for his refusal to participate in the alleged conduct. Therefore, there was no need to remand the case for retrial.
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