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Lindberg v. California Dep't of Education10/31/2005
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A. Elements of the Labor Code Section 1102.5 and Government Code Section 8547.8 Claims
The jury was instructed that, in order to recover under Labor Code section 1102.5, Lindberg had to show that (1) he was an employee of the state agency; (2) he disclosed information to a government or law enforcement agency, where he had reasonable cause to believe that the information disclosed a violation of state or federal statute, or violation or noncompliance with state or federal regulations; (3) he was subjected to an adverse employment action; (4) his disclosure of information was a motivating factor for the adverse employment action; and (5) resulting damage. (§ 1102.5; former BAJI No. 12.10; see also CACI No. 2505.) "The acts of retaliation include harassment, demotion, suspension, reduction of pay or benefits, failure to hire, or consider to hire, failure to give equal consideration in making employment decisions, failure to treat impartially in the context of any recommendations for subsequent employment which the employer may make, adversely affecting working conditions or otherwise denying any employment benefit." (Former BAJI No. 12.10.)
To state a claim under Government Code section 8547.8, the jury was told that Lindberg had to further show that defendants "intentionally engage in acts of reprisal, retaliation, threats, coercion, or similar acts" against Lindberg "for having made a protected disclosure . . . ." (Gov. Code, § 8547.8, subd. (b).) A "protected disclosure" includes "any good faith communication that discloses or demonstrates an intention to disclose information that may evidence . . . an improper governmental activity." (Gov. Code, § 8547.2, subd. (d).)
Defendants challenge the sufficiency of the evidence to support several of these elements, as discussed below.
B. Protected Activity
Defendants first complain there was a lack of evidence that Lindberg engaged in protected activity. The claim merits no extended discussion. It is undisputed that Lindberg reported fraudulent activity by CBO's involving misuse and expropriation of taxpayer funds to the CDE, the FBI and the State Auditor. These actions clearly qualified as disclosure of information to a government or law enforcement agency, wherein Lindberg "ha reasonable cause to believe that the information disclose a violation of state or federal statute, or violation or noncompliance with a state or federal regulation." (Lab. Code, § 1102.5, subd. (b), added by Stats. 1984, ch. 1083, § 1, p. 3698.)
In addition to filing a whistle-blower complaint with the State Auditor, Lindberg personally confronted Eastin with allegations that CDE was retaliating against whistle-blowers and turning its back on evidence of CBO fraud. Such conduct clearly qualifies as "good faith communication that . . . demonstrates an intention to disclose information that may evidence . . . an improper governmental
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