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Lindberg v. California Dep't of Education10/31/2005
ng disapproval of his activities or ordering retaliation against him for engaging in whistle-blowing. But the law does not require that employers be tactless or clumsy about their retaliatory acts to be answerable for them.
A retaliatory motive "`is "proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter." [Citation.] "The causal link may be established by an inference derived from circumstantial evidence, `such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'"'" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69; see also Jordan v. Clark (9th Cir. 1988) 847 F.2d 1368, 1376.)
The jury was presented with abundant circumstantial evidence from which they could draw an inference of retaliatory motive. This evidence included the fact that around the time he began to uncover evidence of CBO fraud and just after he complained about it to Eastin, Lindberg was removed from a position at which he excelled and moved to a meaningless job which neutralized him as an effective investigator; that a month after his second confrontation with Eastin, Lindberg's computer was seized and his investigative files destroyed; that Lindberg was kept from advancing to three vacant positions for which he was qualified; that Polster thrice denied him an interview for a position equivalent to one he had held for many years, resulting in the hiring of a newcomer with no experience; and that CDE retaliated against other officials and employees who refused to look the other way when confronted with evidence of fraud by the CBO's. This "mosaic of evidence," when considered in its totality, leaves the distinct impression that defendants "possessed a retaliatory motive, not a benign one." (Colarossi, supra, 97 Cal.App.4th at p. 1154.)
The fact that the CDE allowed Lindberg to complete the investigations he had started after he was removed as CBO compliance monitor was simply one factor the jury could consider in determining whether retaliation took place. It does not, as defendants suggest, conclusively negate a retaliatory motive.
Nor does the fact that CDE eventually took action to defund and prosecute some CBO's compel the conclusion that there was no retaliation. Despite increasing evidence of fraud, CDE took no overt action against the CBO's before 1998. The jury could well conclude that defendants only became serious about cracking down on fraud when they themselves became the target of state and federal investigations into corruption, not because they "approved" of Lindberg's whistle-blowing activity.
We reject defendants' suggestion that the jury had to resort to a speculative "conspiracy" theory to
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