Case Number: BC515192    Hearing Date: September 12, 2014    Dept: 34

Moving Party: Defendants Board of Trustees of California State University; Charles Reed; Benjamin Quillian; and Gail Brooks (“defendants”)

Resp. Party: Plaintiff Bruce Gibson (“plaintiff”)

TENTATIVE RULING:

Defendants’ motion for summary judgment, or in the alternative summary adjudication, is DENIED.

PRELIMINARY COMMENTS:

An employee gets stellar reviews for 18 years. He then questions or opposes certain actions of his superiors, contending that they may be illegal or unethical. Over the next year, defendants take various actions concerning plaintiff that could be viewed as either innocuous or adverse. These actions are – depending on one’s point of view – are either justified due to plaintiff’s deteriorating performance or are illegal and retaliatory. This is a classic example of an alleged employment retaliation case where a Motion for Summary Judgment must be denied and the case decided by a jury.

Defendant’s own brief tends to undercut its position. Defendant states for instance that “not all of plaintiffs’ action amount to protected disclosures.” (MPA, p. 5:26; p. 17:22.) Defendants also argue that “not all of the actions were adverse or had a protected disclosure is a contributing factor.” (MPA, p. 9:4-5; p. 18:1-2.) Even if this is true, this is not enough for defendants to prevail. To win on summary judgment, defendants need to show that NONE of plaintiffs actions amounted to protected disclosures or NONE of defendants’ actions against plaintiff were adverse; it is simply not enough that NOT ALL of plaintiffs actions amounted to protective disclosures or that NOT ALL of defendants’ actions were adverse.

The Court notes that in Plaintiff’s Response to Defendants Separate Statement, plaintiff sometimes states “Objection.” (See, e.g., PMF 26, PMF 54-56, PMF 66, PMF 147.) Such “objections” do not comply with the California Rules of Court, Rule 3.1354.

At the time Plaintiff submitted his Opposition, counsel informed the court that it would be providing a hyperlinked flash drive, in compliance with the court’s recommendations. Given the large number of exhibits attached to this motion and opposition, such a flash drive would have made the Court’s analysis of the supporting and opposing evidence much easier. Unfortunately, as of the time of the writing of this tentative decision, the Court has not received the flash drive.

BACKGROUND:

Plaintiff commenced this action on 7/15/13. Plaintiff filed a first amended complaint on 10/29/13 against defendants for: (1) retaliation in violation of the Whistleblower Protection Act; (2) retaliation (FEHA); (3) and retaliation (Labor Code § 1102.5.) Plaintiff alleges that defendants retaliated against him because he reported violations of the requirements for hiring new employees and misconduct of his superiors Quillian and Brooks. (See FAC ¶¶ 16-25.)

ANALYSIS:

Defendants move for summary judgment, or in the alternative summary adjudication of plaintiff’s three causes of action and the claim for punitive damages.

Retaliation in Violation of the Whistleblower Protection Act

The Law.

The Whistleblower Protection Act – a statute designed to protect California State University employees – prohibits “[a]ny person” from engaging “in acts of reprisal, retaliation, threats, coercion, or similar acts against a California State University employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure.” (Gov. Code, § 8547.12(b).)

“Protected disclosure” means a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity, . . .” (Gov. Code, § 8547.2(e).)

“Improper governmental activity” means an activity by a state agency or by an employee that is undertaken in the performance of the employee’s duties, undertaken inside a state office, or, if undertaken outside a state office by the employee, directly relates to state government, whether or not that activity is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, (2) is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or (3) is economically wasteful, involves gross misconduct, incompetency, or inefficiency.” (Gov. Code, § 8547.2(c).)

The Act does not prohibit a manager or supervisor “from taking, directing others to take, recommending, or approving any personnel action, or from taking or failing to take a personnel action with respect to any university employee, including an officer or faculty member, or applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.” (Gov. Code, § 8547(d).)

The Act describes the burden of proof for a civil action:

In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.

(Gov. Code, § 8547(e).)

After the employer provides a legitimate, non-retaliatory reason for the adverse action, the employee may establish that the reason is merely a pretext for retaliation.

“ ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” ’ [Citations.] Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis. [Citations.] With direct evidence of pretext, ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer’s discriminatory intent to move past summary judgment.’ [Citation.]” [Citation.] “ ‘Direct evidence is that which, “if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.” [Citations.]’ ” [Citation.] Direct evidence may take the form of admissions by a decision maker that the adverse employment action was taken because of the employee’s membership in the protected class. [Citation.]” (Batarse v. Service Employees Intern. Union Local 1000 (2012) 209 Cal.App.4th 820, 834-835.)

The Facts.

Plaintiff was the Senior Director of Human Resources Services for the Chancellor’s Office in the California State University system. (DMF/PMF 1.) When plaintiff was terminated in August 2012, he was also the Senior Director of Equal Employment Opportunity and Whistleblower Compliance and the Interim Senior Director of Campus Relations and Advocacy. (DMF/PMF 2.) Defendant Brooks became plaintiff’s supervisor in 2006, and plaintiff had no other supervisors to whom he reported. (DMF/PMF 5-6.) Defendant Reed held a superior position to Brooks. (DMF/PMF 7.) Defendant Quillian was the Executive Vice Chancellor & Chief Financial Officer for the CSU system, and controlled the budget for Brooks’s departments. (PMF 7.)

In 2010, Bruce Biggs was appointed as the Interim Associate Vice Chancellor, Chief Information Officer. (DMF/PMF 11.) The parties dispute whether a posting of this position or recruitment process was required. (See DMF/PMF 12.) Plaintiff presents evidence that a posting of the position and recruitment process was required. (PMF 12.) In December 2010, Quillian advised Brooks that he wanted to convert Briggs’s position from Interim to Ongoing without recruitment. (DMF/PMF 13.) Plaintiff learned of this shortly after Quillian informed Brooks and obtained the concurrence of Reed. (DMF/PMF 14-17.) Plaintiff instructed his subordinate not to complete Brigg’s conversion until plaintiff received clarification regarding Reed’s approval. (PMF 18.) After Reed told Quillian to recruit the position following plaintiff’s phone call to Reed’s chief of staff, plaintiff met with Quillian and discussed his concerns over the lack of a recruitment. (PMF 19.) Later that same day, plaintiff e-mailed the recruitment policy to Quillian. (DMF/PMF 20.) Quillian stated that he was upset because he had gotten prior approval from Reed, and plaintiff offered to support Quillian through the recruitment process. (DMF/PMF 23-24.) Plaintiff told Quillian that converting Briggs’s position without recruitment could result in an audit finding of improperly hiring an employee without a posting or recruitment. (PMF 25.) This could have been reported to the Board. (Ibid.) Reed eventually decided that Briggs could be converted to a permanent position. (DMF 27.) On several occasions, Plaintiff talked with Brooks about Quillian’s failure to comply with CSU policies. (PMF 28.) Plaintiff raised the issue again in an e-mail dated 2/21/11. (DMF 28.)

Plaintiff presents evidence that Quillian communicated criticisms of plaintiff to Brooks and Reed in December 2010, which resulted in Reed “hollering” at Brooks about plaintiff and calling plaintiff a liar. (PMF 29.) Quillian told Brooks that he needed to “get rid of” plaintiff. (Ibid.)

In December 2010, plaintiff was given the temporary position of Interim Director of System Wide Advocacy and Campus Relations, in addition to his other job titles. (DMF/PMF 121.) For this position, plaintiff received an increase in pay. (DMF/PMF 122.) Defendants assert that Brooks asked plaintiff to relocate his office from the second floor to the fourth floor; plaintiff testified that Brooks merely suggested that he could move, and did not ask him to do so. (DMF/PMF 123.) Plaintiff argues that in September 2011 he did move to the fourth floor. (PMF 124.) The parties dispute whether plaintiff spent a sufficient amount of time on the fourth floor. (DMF/PMF 127-128, 131.)

In mid-2010, Brooks became aware of budget cuts and the need to reduce her budget. (DMF/PMF 30.) Brooks then began considering a consolidation project. (DMF/PMF 31.) Brooks informed plaintiff of a proposal for CSU Long Beach to administer the CO’s payroll, and asked plaintiff to look into the proposal. (DMF/PMF 33.) Though defendants assert that plaintiff failed to follow-up on this request, plaintiff presents evidence that he did look into the proposal by sending a senior HR representative as his proxy. (See DMF/PMF 34-36.) Plaintiff did not personally attend the meetings regarding the proposal. (See DMF 36-37.) Plaintiff declares that he sent his direct report, who reported back her conclusion and reasoning that the proposal was not feasible. (See Gibson Decl., ¶ 4.) Plaintiff reported this to Brooks, who rejected the proposal. (Ibid.)

In 2011, Brooks revisited the idea of consolidating payroll and benefits (the Synergy Project). (DMF/PMF 39.) The parties dispute whether Quillian was involved in the project, with plaintiff providing evidence of Quillian’s involvement. (DMF/PMF 40.) Brooks conferred with Reed about the project. (PMF 41.) Plaintiff was made the Synergy Project Leader. (DMF/PMF 45.) Plaintiff disputes defendants’ assertion that he was argumentative and caused delays in the project or that he committed errors in the service agreement he completed for the project. (See DMF/PMF 47-51.) Others working on the project expressed concerns to Brooks about plaintiff. (DMF/PMF 52-59, 61.) Plaintiff disputes defendants’ contention that he did not attend project meetings. (DMF/PMF 60.) In August 2011, Brooks met with plaintiff and asked him to improve his working relationship with others. (DMF/PMF 62.) Defendants assert that plaintiff missed two meetings regarding the project. (DMF 65.) The other workers continued to complain about plaintiff. (DMF 66.) Nonetheless, Brooks gave plaintiff a performance evaluation that was mostly complimentary regarding his work with others. (DMF/PMF 63-64.)

In the fall of 2011, plaintiff refused to participate in Quillian’s hiring of his next door neighbor, who had been working for CSU as a special consultant. (DMF/PMF 132.) Defendant asserts that, after a recruitment, the neighbor was not hired. (DMF 135.) This misstates the cited testimony. Plaintiff did not testify that the neighbor was never hired; instead, he stated only that he had not been hired when plaintiff left. (See DMF 135.) Plaintiff declares that the neighbor was eventually hired after plaintiff was placed on leave. (See PMF 135.)

Defendants argue that in September 2011 plaintiff “demonized” Brooks to his staff. (DMF 136.) Plaintiff denies this assertion. (PMF 136.) Brooks’ testimony and declaration that another employee had stated that plaintiff wanted to get Brooks fired is hearsay and would be inadmissible if a proper objection had been made. (See DMF 137.) Nonetheless, Plaintiff disputes that he tried to get Brooks fired or that he ever stated that he wanted her removed from her position. (DMF/PMF 138-139.)

In July 2011, Brooks informed employees that there would be layoffs of some employees. (DMF/PMF 95, 98-103.) Plaintiff voiced strong objections to laying off some of these employees. (PMF 105.) Plaintiff was not demoted as a result of the layoffs. (DMF/PMF 107, 112-116.) Plaintiff suggested that Brooks hire an outside consultant, Bonnie Burn, regarding the layoffs. (DMF/PMF 108.) Burn prepared a report discussing the sources of anxiety in plaintiff’s department, which Brooks discussed with plaintiff. (DMF/PMF 109-110.)

Defendants argue that plaintiff had other performance issues relating to his attempts to hire employees. (DMF 141-142.) The cited testimony pertaining to complaints from others regarding plaintiff’s performance constitutes hearsay, but no proper objection was made to this evidence. (See DMF 144-149, 151.) The parties dispute whether plaintiff had trouble working with others; plaintiff cites to performance evaluations from Brooks that praised plaintiff’s working relationships. (DMF/PMF 152.)

Between September and December 2011, Brooks discussed her concerns about plaintiff with Reed, thought about terminating plaintiff, and made notes entitled “Loss of Confidence in Bruce Gibson.” (DMF/PMF 68-69, 83.) In January 2012, Brooks sought the assistance of Briggs and the Director of Project Management, who provided a Project Leader, Dwight Martin, to assist with the project. (DMF/PMF 70.) Martin was the project leader for the second phase of the project. (DMF/PMF 71.) Though defendants assert that plaintiff remained the project leader, plaintiff states that Brooks excluded him from meetings and made decisions about the project without his knowledge or input. (DMF/PMF 72, 86, 92.) Plaintiff presents evidence that key decisions about the Synergy Project were made at meetings from which he was excluded. (PMF 117-118.) In February 2012, Brooks advised plaintiff that she would be asking another person to take over leadership of the project. (DMF/PMF 73.) Brooks asked plaintiff to submit a written plan describing the steps he intended to take to move the project forward. (DMF/PMF 74.) Plaintiff presents evidence that he did e-mail a written plan to Brooks, albeit after the date requested by Brooks. (See PMF 75; DMF 78, 82, 84.) Plaintiff expressed a willingness to look into the contentions made against him. (See PMF 77.) In February 2012, Quillian met with plaintiff and Brooks to discuss the project. (DMF/PMF 79-80.) Quillian expressed that failure was not an option. (DMF/PMF 81.)

In February 2012, Brooks informed plaintiff that an investigation would be started regarding his discrimination and retaliation claims. (DMF/PMF 85.) Plaintiff thereafter submitted to Brooks a formal complaint alleging that he was retaliated against because of his disclosure of Quillian’s activities. (DMF/PMF 87.) Brooks then placed plaintiff on paid administrative leave. (DMF/PMF 88-90, 93.) The parties dispute whether the Synergy Project ran smoothly following plaintiff’s placement on leave. (DMF/PMF 94.)

In March 2012, while on leave, plaintiff expressed a desire to be considered for the Associate Vice Chancellor Labor Relations Position. (DMF/PMF 167.) Brooks was the hiring manager for the position. (DMF/PMF 169.) Brooks put together a hiring committee for the position. (DMF/PMF 170.) The parties dispute the extent of Brooks’s involvement in the screening and interview process. (DMF/PMF 171, 172.) Brooks made the final decision to hire someone else. (PMF 171.) Defendants present evidence that the committee decided not to interview plaintiff because he did not have the requisite skills; plaintiff provides evidence that he did meet the minimum qualifications. (DMF/PMF 174-175.) It is undisputed that the committee did not discuss plaintiff’s whistleblowing complaint. (DMF/PMF 176.)

In March 2012 plaintiff requested documents pursuant to Education Code section 89546. (DMF/PMF 186.) Plaintiff picked up the documents in May 2012. (DMF/PMF 187.) Plaintiff made a new request for legible copies of certain documents in May 2012. (DMF/PMF 188.) On 5/29/12, Brooks informed plaintiff that additional documents were available. (DMF/PMF 190.) That same day, plaintiff sent Brooks a complaint alleging failure to comply with section 89546. (DMF/PMF 191.) Two days later, plaintiff contacted Brooks about an apparently missing document from the production; Brooks responded that CSU had fully complied and would not be processing it as a whistleblower complaint. (DMF/PMF 192-193.) On 6/11/12, plaintiff expressed disagreement as to whether CSU could refuse to process his complaint. (DMF/PMF 194.) Brooks then responded that she would process the complaint, and thereafter concluded that there had been a technical violation because the documents were not provided within the statutory period. (DMF/PMF 195.) The documents were ultimately produced. (DMF/PMF 196-198.)

In May 2012, plaintiff sent Brooks and Reed a complaint alleging wage and hour violations and Education Code violations. (DMF/PMF 179.) Plaintiff had learned of the violations in 2009 and had previously discussed them in meetings attended by Brooks. (DMF/PMF 180-181.) Plaintiff filed the 2012 complaint because he believed that CSU was still violating the law. (DMF/PMF 183.)

Plaintiff’s paid administrative leave ended on 8/23/12. (DMF/PMF 153.) On that date, Brooks decided to terminate plaintiff’s employment. (DMF/PMF 155.)

There are Triable Issues of Material Facts

These facts are more than sufficient to show triable issues as to whether plaintiff engaged in protected activities and whether he suffered adverse employment actions as a result. Defendants fail to establish that all of the information disclosed in plaintiff’s complaint were already known prior to the disclosures. For example, it is not clear that Reed had approved Quillian’s hiring practices. While the wage and hour violations had been previously brought to the attention of others, plaintiff’s later complaint pertained to the fact that the violations were still ongoing. There is no showing that the complaint regarding the section 89546 violation was previously known by defendants.

There are triable issues as to whether plaintiff suffered adverse employment actions. For example, there is a dispute as to whether defendants removed plaintiff as the project leader and whether he was excluded from project meetings. Even if the other actions taken against plaintiff were not adverse employment actions, defendants do not dispute that plaintiff’s termination was an adverse employment action.

There are triable issues as to whether the adverse actions were motivated by retaliatory animus, and whether defendants’ proffered reasons are pretextual. While it is true that plaintiff was terminated over a year after the complaints about Quillian, plaintiff points to other incidents with Quillian in the time between the initial complaint and plaintiff’s termination. (See PMF 163.) Just as temporal proximity does not necessarily imply causation, a longer span of time does not preclude causation. (See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 [“A long period between an employer’s adverse employment action and the employee’s earlier protected activity may lead to the inference that the two events are not causally connected. [Citation.] But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.”] There is also evidence that plaintiff engaged in other protected conduct while he was on leave, such as plaintiff’s complaints regarding wage and hour and Education Code violations. Defendants assert that plaintiff was terminated because of a loss of trust, leadership issues, behavioral problems, being unresponsive to coaching, attempting to have Brooks terminated, being difficult to work with, and the complaints against plaintiff. (DMF 159.) Plaintiff presents evidence that he was terminated because of the protected activity and that the proffered reasons are pretextual. (See PMF 159.) In support of this argument, plaintiff testified that the complaints against him were solicited by Brooks in an effort to support the termination. (See ibid.) When plaintiff had asked about the alleged performance issues during his leave, he was not provided an answer. (See PMF 160.) Other evidence discussed above could show that some of the reasons asserted by Brooks (e.g., that there were leadership issues and that plaintiff tried to have Brooks fired) are not true. (See Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2014) ¶ 7:435 [A plaintiff may satisfy the burden of proving that the proffered reason is a pretext by showing that the reason is factually untrue.])

Defendants also argue that this cause of action fails against individual defendants Reed and Quillian because they were not plaintiff’s supervisors and did not direct the decisions regarding his employment. The Act does not apply solely to supervisors and managers; instead, it prohibits “[a]ny person” from engaging “in acts of reprisal, retaliation, threats, coercion, or similar acts against a California State University employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure.” (Gov. Code, § 8547.12(b).) Quillian did not work directly with plaintiff from 2010 until 2012, but he was involved in communications and decisions that affected plaintiff, such as decisions regarding a project on which plaintiff worked (the Synergy Project). (See DMF/PMF 9.) Though Quillian was not plaintiff’s supervisor, plaintiff presents evidence that Quillian occupied a superior position, that he complained to Brooks and Reed about plaintiff after plaintiff’s complaint, that he told Brooks to get rid of plaintiff, and that he may have been involved in Brooks’s decisions regarding plaintiff. (See DMF/PMF 10; PMF 29, 155-156.) Reed held a superior position to Brooks who was plaintiff’s immediate supervisor. (See DMF/PMF 7.) Plaintiff presents evidence that Reed “hollered” at Brooks about plaintiff and called plaintiff a liar. (PMF 29.) Brooks communicated with Reed about plaintiff’s employment, and Reed responded “Good” when he was informed that plaintiff had been escorted off of CSU property by security. (PMF 91, 158.) Plaintiff testified that he understood from the rules that Brooks needed Reed’s approval in order to terminate plaintiff. (PMF 155, 157-158.) This evidence is sufficient to raise a triable issue of fact as to whether liability can be imposed on Reed and Quillian.

Defendants’ request for summary adjudication of the first cause of action is DENIED.

Retaliation in Violation of the FEHA

The FEHA makes it unlawful “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940(h).)

Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. [Citation.]

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.” (Id. at p. 1043.)

Defendants’ arguments as to the second cause of action are essentially the same as those raised as to the first cause of action – i.e., that plaintiff did not engage in protected conduct, that no adverse action was motivated by retaliation, and that defendants had a legitimate, non-retaliatory reason for the actions. Defendants rely on the same facts and evidence as presented for the first cause of action.
Defendants explicitly state that their Motion for Summary Adjudication as to the FEHA cause of action relies on UMF 1-199 – the same UMF’s as relied on for the Whistleblower Act cause of action. (See, Notice of Motion for Summary Judgment, p. 2:13-28.) For the reasons discussed above, there are triable issues of fact as to the second cause of action.

Defendants’ request for summary adjudication of the second cause of action is DENIED.

Retaliation in Violation of Lab. Code § 1102.5

Labor Code section 1102.5 provides, in relevant part:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

(d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

(Lab. Code, § 1102.5.)

Labor Code section 1102.5 is a whistleblower statute, the purpose of which is to “encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.” [Citation.] “ ‘ “To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” ’ ”

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288.)

Defendants’ arguments as to the third cause of action are essentially the same as those raised as to the first two causes of action – i.e., that plaintiff did not engage in protected conduct, that no adverse action was motivated by retaliation, that defendants had a legitimate, non-retaliatory reason for the actions, and that plaintiff cannot establish that the reasons were a pretext for retaliation. Defendants rely on the same facts and evidence as presented for the first cause of action. Defendants explicitly state that their Motion for Summary Adjudication as to issue #3 relies on the same UMF’s as for issues ##1 and 2. (See, Notice of Motion for Summary Judgment, p. 2:13- p.3:6.) For the reasons discussed above, there are triable issues of fact as to the third cause of action.

Defendants’ request for summary adjudication of the third cause of action is DENIED.

Punitive Damages

Defendant CSU argues that the claim for punitive damages fails because it is immune from such claims pursuant to Government Code section 818, which states: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” Plaintiff argues that the Whistleblower Protection Act allows the recovery of punitive damages against California State University. The Act provides, in relevant part: “Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious.” (Gov. Code, § 8547.12(c).)

Neither party has cited the court to any authority for their position. The Court’s own research has not disclosed any cases on- point. In two cases, Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 and Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760, our Supreme Court has analyzed section 8547.12; in both cases the Court quotes §8546.12(c)
as allowing punitive damages. However, in neither case did the Court discuss whether there is a conflict between Govt. Code § 818 and Govt. Code §8547.12(c), or, if the statutes are in conflict, which statute takes precedence.

Defendants argue that “a specific statute controls over a general statute.” (MPA, p. 20:14-15.) Unfortunately for defendant, in this case § 8547.12(c) is the more specific statute; §8547.12 applies specifically to California State University employees; § 818 applies more generally to all public entities. And contrary to defendants argument (see MPA, p. 30:5-19) Gov. Code §811.2 is not more specific than § 8547.12; section 811.2 simply states that the term “public entity” in section 818 “includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” (Gov. Code, § 811.2.)

The Court finds that §8547.12(c) allow plaintiff to pursue his claims for punitive damages against defendants.

Defendants’ request for summary adjudication of the punitive damages claim is DENIED.