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Lindberg v. California Dep't of Education10/31/2005
l evidence.
II. Admission of Testimony by Other Victims of Retaliation
Defendants contend the trial court erred in admitting testimony by other employees of CDE who testified that they too were retaliated against for whistle-blowing about fraud by the CBO's.
Before reaching the argument, it is necessary to set forth the procedural mechanism by which defendants' objection to this testimony was interposed. Prior to trial, defendants moved in limine to preclude Lindberg from offering any testimony by any other employees averring that they were disciplined for whistle-blowing activity similar to that engaged in by Lindberg. Exclusion was sought on the ground that Evidence Code section 1101, subdivision (a) precludes similar acts to show defendants' disposition to commit misconduct, and that under Evidence Code section 352, the prejudicial effect of the evidence exceeded its probative value.
The trial judge denied the motion, accepting Lindberg's argument that the proposed testimony was admissible under Evidence Code section 1101, subdivision (b), which allows admission of evidence that a person committed a crime or civil wrong when relevant to prove some fact such as motive, intent or absence of mistake or accident. The judge stated: " t seems to me that to see whether retaliated against Mr. Lindberg, if he thinks he has evidence where that was similarly done elsewhere, then that could be pertinent to establish whether or not it happened in his situation." In response to defendants' protest that the testimony of these alleged victims would result in a series of tangential mini-trials, the judge advised counsel, "clearly, you'll have an opportunity to cross-examine these individuals. And if you want to bring in their supervisors to say they didn't retaliate, then I think that's legitimate rebuttal evidence."
We find no abuse of discretion in the denial of defendants' pretrial attempt to bar all testimony by CDE employees tending to show that they were retaliated against for engaging in the same sort of protected whistle-blowing activity as Lindberg.
"`To establish a prima facie case of retaliation, a plaintiff must show that engaged in protected activity, that was thereafter subjected to adverse employment action by employer, and there was a causal link between the two.'" (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1125 (Guthrey), quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.) "Both direct and circumstantial evidence can be used to show an employer's intent to retaliate." (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).)
As the California Supreme Court has explained, " ubdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove
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