In Nejadian v. County of Los Angeles, the Court looked at the standard for prevailing on a retaliation claim.  A jury found in favor of plaintiff against his employer, defendant County of Los Angeles, on his causes of action for retaliation in violation of Labor Code section 1102.5, and for retaliation in violation of the Fair Employment and Housing Act (FEHA). The County appealed, claiming plaintiff failed to present sufficient evidence to support the jury’s verdict on both claims.  The Court of Appeal agreed with the County.

The Court noted that §1102.5(c) prohibits “[a]n employer, or any person acting on behalf of the employer, … [from] retaliate[ing] 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. The Court held that to prevail on a claim under this provision, the plaintiff must identify both the specific activity and the specific statute, rule, or regulation at issue; the court must then determine the legal question whether the identified activity would result in a violation or noncompliance with the identified statute, rule, or regulation, and, if so, the jury must determine the factual issue whether the plaintiff was retaliated against for refusing to participate in the identified activity.  It noted the trial court declined to make the initial legal determination. It then stated there was insufficient evidence at trial to establish that any acts he was asked to perform a task that would result in a violation of or noncompliance with any identified state, federal, or local statute, rule, or regulation.  Therefore, County was entitled to judgment on the section 1102.5(c) retaliation claim.    

With regard to the FEHA retaliation claim, the jury was instructed that the plaintiff could establish that claim by proving that County subjected him to an adverse employment action in retaliation for “refusing to participate in activities that would violate state, federal, or local statutes, rules, or regulations and/or for complaining about age discrimination and retaliation in violation of FEHA.”  Because this instruction erroneously allowed the jury to find in favor of him even if no violation of FEHA was committed, the judgment on this claim must be reversed.  The Court then found find that County was entitled to judgment in its favor because the plaintiff failed to present evidence from which a reasonable jury could conclude that any adverse employment action he suffered was motivated by retaliation for complaints he made regarding discrimination or other activity protected by FEHA. 

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