CACI 4601 Protected Disclosure by State Employee—California Whistleblower Protection Act—Essential Factual Elements (Gov. Code, § 8547.8(c))

California Civil Jury Instructions CACI

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

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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, § 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, Affirmative 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.” (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.” (Levisupra, 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.” (Levisupra, 15 Cal.App.5th at p. 904.)

Secondary Sources

3 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(II)-B, Retaliation Under Other Whistleblower Statutes, ¶ 5:1740 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)