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

California Civil Jury Instructions CACI

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

Crowdsource Lawyers

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 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 Bender)