Mize-Kurzman v. Marin Community College District: Erroneous Instructions Require New Trial of Whistleblower Action

Mize-Kurzman v. Marin Community College District (2012) 202 Cal.App.4th 832, is a case that I did not discuss earlier this year, but it came up in a recent seminar, and I wanted to note it.

The plaintiff alleged that the District retaliated against for complaining about several illegal policies. The case went to trial on three counts alleging violations of Labor Code section 1102.5, subdivisions (a) and (b), and Education Code section 87160 et seq. The jury found against the plaintiff on all three counts.

The plaintiff appealed, arguing that two special jury instructions included a number of improper limitations on what constituted "disclosures" based on federal law. She argued that these limitations did not apply to her California law claims and that, even if federal law provided applicable standards, the instructions given were erroneous interpretations of the federal law. Id. at 844.

The Court of Appeal reversed. First, it noted that the CACI jury instructions do not define "disclosing information" (Lab. Code § 1102.5(b)) or "protected disclosure" (Ed. Code 87162(e)) and that the trial court "could properly conclude that the jury required guidance as to what did and did not constitute "disclosing information" or a "protected disclosure" under the California statutes." Id. at 847-849.

Regarding the specific instructions given, the Court held that the trial court erred in instructing the jury that:

The plaintiff must prove that any disclosure was made in good faith and for the public good and not for personal reasons. Id. at 850-852.  

"Debatable differences of opinion concerning policy matters" were not protected disclosures. Id. at 852-856.  

Information passed along to a supervisor in the normal course of duties is not a protected disclosure. Id. at 856-858. 

However, the trial court did not err in giving instructions that: 

Reporting publicly known facts is not a protected disclosure. Id. at 858-859.  

Efforts to determine if a practice violates the law are not protected disclosures. Id. at 859-860.  

For the plaintiff to prevail, she must prove that the District acted with the intention of retaliating against her. Id. at 860-861. 

On the last point, the Court explained:  

Once an employee has demonstrated by a preponderance of evidence that an activity protected by the statute was a contributing factor in the alleged intentional retaliation, the burden of proof shifts to the employer to demonstrate by clear and convincing evidence that action alleged to be retaliatory would have occurred for legitimate, independent reasons. 

Id. at 861. One way for the district to meet this burden is to show "by clear and convincing evidence that those engaging in the alleged retaliation reasonably believed their conduct was justified on the basis of evidence separate and apart from the fact that the employee made a protected disclosure."  Id. at 862.  

The Court held that these instructional errors were prejudicial and remanded for retrial.  

The opinion is available here.