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Lindberg v. California Dep't of Education10/31/2005
find liability for whistle-blower retaliation. Where reasonable, albeit conflicting, inferences about whether retaliation occurred may be drawn from the same set of facts, the question is exclusively within the province of the jury. (Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1562.) Here, reasonable inferences drawn from solid circumstantial evidence support the jury's finding that Lindberg was the victim of a deliberate plan to neutralize or purge CDE employees who interfered with the flow of money to the CBO's. The court properly denied defendants' motion for JNOV.
IV. Personal Liability As to Polster
Defendants advance a number of reasons for setting aside the jury's verdict as to Polster for violating Government Code section 8547.8. This section imposes personal liability against state government officials who intentionally engage in acts of reprisal against state employees for having disclosed information that may reveal improper governmental activity. In arguing against the jury's verdict as to Polster, defendants point out (1) that Polster did not work for CDE from 1996 to 1998, the time during which Lindberg did most of his investigative work for Adult Education; (2) that Polster was never Lindberg's direct supervisor; and (3) that her decisions not to hire Lindberg for the vacant positions were based on sound personnel principles and devoid of retaliatory motives. These arguments impermissibly present a view of the evidence in a light most favorable to Polster, contrary to settled principles of appellate review. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Defendants overlook the evidence that Polster retaliated by preventing Lindberg from being interviewed for the adults-with- disabilities consultant job, one for which he was by far the most experienced and qualified candidate. She even re-posted the position twice, when no other candidates had applied, rather than allow Lindberg to be interviewed by the hiring panel. Under cross-examination, Polster offered the incredible explanation that Lindberg's application and résumé showed he "wasn't qualified" for the job. But her reasons bordered on the absurd. For example, she said she did not consider Lindberg's cover letter stating that he had held an Adult Education position for 17 years with focus on the ADA, even though it was attached to his application. Nor did she permit herself to consider her own knowledge of Lindberg's background and experience, or the numerous letters of recommendation she received from respected educators. Instead, Lindberg was passed over in favor of Eileen Calise, a special education instructor who had never been a consultant, lacked familiarity with the ADA and had no experience in adults with disabilities.
The jury could infer that Polster's reasons for keeping Lindberg out of the running for the adults with disabilities job were false and pretextual. There was a
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