Ross v. County of Riverside

Facts

The governing text frames everything that follows. Labor Code section 1102.5, subdivision (b), as the court quoted it, forbids an employer to retaliate “against an employee for disclosing information … to a government or law enforcement agency [or] to a person with authority over the employee … if the employee has reasonable cause to believe that the information discloses a violation of [a] 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.” And under subdivision (e), “[a] report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency.” (Ross, supra, 36 Cal.App.5th at p. 591.) The court applied the current version of the statute; former versions were in force when the underlying events occurred, but “[n]either party argues we should apply a former version of the statute in this appeal.” (Id. at p. 591, fn. 3.) Because the appeal came from a defense summary judgment, the court recited the evidence in the light most favorable to Ross, and it declined to review the trial court’s wholesale overruling of the County’s 113 evidentiary objections absent a cross-appeal. (Id. at p. 584, fn. 2.)

The murder case. Ross was a deputy district attorney assigned to the County’s homicide prosecution unit, “responsible for however many cases were assigned to [him] by [his] supervisor,” including death penalty cases — “considered the most difficult cases in the office.” (Ross, supra, 36 Cal.App.5th at p. 584.) In mid-2011 an assistant district attorney assigned him a murder case previously handled by another attorney who believed the defendant was innocent and, although the defendant had admitted the crime, believed the confession was coerced; in late November 2011 she gave Ross a memorandum recommending dismissal. (Ibid.) In December 2011 Ross e-mailed his supervisor and the assistant district attorney that “he did not believe the district attorney’s office could prove the case beyond a reasonable doubt,” recommended further DNA testing, sent evidence out for testing two days later, and repeated the assessment, recommending dismissal. (Id. at pp. 584–585.) “Ross believed the district attorney’s office was violating the defendant’s due process rights by engaging in a malicious prosecution against the defendant. However, he never expressly informed his supervisor or the assistant district attorney he believed the district attorney’s office was violating state or federal law.” (Id. at p. 585.)

The evidence kept moving in one direction. In May 2012 the DNA results “exculpated the defendant,” and Ross turned them over to defense counsel; in May 2013 “corrected” results “exculpated the defendant with further certainty,” and Ross again produced them — after which the assistant district attorney told him not to turn the results over and “appeared upset” to learn he already had. (Ross, supra, 36 Cal.App.5th at p. 585.) In late 2013 an investigator located a new witness who implicated the defendant’s roommate, and then found recordings of two jail calls “in which the roommate admitted to murdering the victim.” At a meeting to discuss the exculpatory effect of this evidence, “the assistant district attorney told the investigator not to turn the phone call evidence over to defense counsel,” then told Ross he “would take care of it and handle the case.” The office dismissed the case in February 2014. (Id. at pp. 585–586.)

The medical condition. In May 2013 — the same month as the corrected DNA results — Ross learned he had neurological symptoms requiring evaluation for a serious condition; he told his supervisor “he might be very seriously ill with a neurodegenerative disease and needed to undergo medical testing.” (Ross, supra, 36 Cal.App.5th at p. 586.) His requests for a temporary transfer and for no new case assignments were denied by his supervisor (the latter “without explanation”), though a chief deputy later agreed to the no-new-cases arrangement, and Ross continued his existing court dates for several months to accommodate out-of-state testing. (Ibid.) In September 2013 he reported that his doctors said work stress was causing many of his symptoms, that two neurological diseases had been ruled out, and that an undiagnosed autoimmune disorder and concussion-related brain damage were suspected. The next day his supervisor assigned him a new death penalty case; a promised reassignment of that case “never occurred.” (Id. at pp. 586–587.) The assistant district attorney concluded that Ross’s “inability to accept new cases or go to trial in the near term made him insufficiently productive to be a member of the Homicide Unit.” (Id. at p. 587.) On a rotation-preferences form Ross wrote that he wanted “something with no stress, no quotas, no deadlines, no pressure.” (Id. at p. 588.)

In October 2013 the assistant district attorney directed Ross “to provide a physician’s written documentation that indicates whether or not you have restrictions or limitations on your duties,” promising to engage the ADA/FEHA interactive process if limitations existed; Ross was involuntarily rotated to the filing unit. When the out-of-state clinic would not supply such documentation, Ross twice offered a note from his primary care physician stating he was fit to work; the assistant district attorney refused, insisting on clinic documentation. (Ross, supra, 36 Cal.App.5th at p. 588.) From June to November 2013 Ross missed about three weeks of work for out-of-state appointments; in mid-November the County placed him on paid administrative leave pending a fitness-for-duty examination. (Id. at pp. 588–589.) After months of correspondence — including an April 2014 letter offering three paths back (functional-limitations documentation, a records release for the fitness-for-duty exam, or a full-duty return) — Ross’s counsel wrote that “no reasonable person could work for the County under the conditions Ross endured,” and Ross “deemed himself constructively terminated.” The County ultimately treated him as having abandoned his job as of June 12, 2014. (Id. at pp. 589–590.)

Procedural history

Ross sued the County in July 2014 for violation of Labor Code section 1102.5 and for disability discrimination, failure to reasonably accommodate, failure to engage in the interactive process, and failure to prevent discrimination under the FEHA (Gov. Code, § 12900 et seq.). (Ross, supra, 36 Cal.App.5th at pp. 583, 590.) He abandoned a disability-harassment claim, and he did not dispute the County’s point — raised for the first time on appeal — that his disability-retaliation claim as alleged did not exist under the FEHA in 2013. (Id. at p. 583, fn. 1.) The trial court granted the County summary judgment, ruling that Ross could not establish he engaged in activity protected by section 1102.5 and could not establish he was disabled for purposes of the FEHA claims. (Id. at p. 590.)

The Court of Appeal — reviewing de novo under the familiar standard that a defendant must show one or more elements of each cause of action cannot be established or a complete defense (Ross, supra, 36 Cal.App.5th at p. 591) — reversed as to the section 1102.5 claim and as to all four FEHA claims and remanded. (Id. at p. 596.) The court initially filed its opinion on May 20, 2019 (36 Cal.App.5th 25), granted rehearing, and filed the present opinion on June 20, 2019; the history block also reflects later Supreme Court docket entries concluding in a denial on September 25, 2019.

Issue

Two questions controlled. First, was there a triable issue that Ross engaged in activity protected by Labor Code section 1102.5(b) when he disclosed to his prosecutorial superiors that the office “would not be able to prove a particular murder case beyond a reasonable doubt and lacked probable cause to continue prosecuting the case” — disclosures made in the course of performing his job, and without any express statement that a specific law was being violated? (Ross, supra, 36 Cal.App.5th at p. 592.) Second, was there a triable issue that Ross had a “physical disability” within the meaning of the FEHA, where he was undergoing months of testing for a suspected neurological disease or autoimmune disorder that had not yet been diagnosed — and where the County transferred him, demanded medical documentation, and benched him pending a fitness-for-duty examination? (Id. at pp. 593–595.)

Holding

Reasoning

The framework, as it stood in 2019. The court stated the elements as then understood: a section 1102.5 claim requires “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation,” with the prima facie case comprising protected activity, adverse employment action, and a causal link. (Ross, supra, 36 Cal.App.5th at pp. 591–592, quoting Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141.) That three-step architecture — borrowed from the McDonnell Douglas tradition — is precisely what the Supreme Court later displaced in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, which held that Labor Code section 1102.6 supplies the governing standard. But Ross turned entirely on the first element — protected activity — and on that question its analysis remains good currency.

Protected activity means reasonably based suspicions, anchored to some legal foundation. An employee engages in protected activity “when the employee discloses ‘ “reasonably based suspicions” of illegal activity.’ ” (Ross, supra, 36 Cal.App.5th at p. 592, quoting Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.) The suspicion must have legal footing: “the employee must be able to point to some legal foundation for his suspicion — some statute, rule or regulation which may have been violated by the conduct he disclosed.” (Ibid., quoting Fitzgerald v. El Dorado County (E.D.Cal. 2015) 94 F.Supp.3d 1155, 1172.) Ross’s evidence supplied both halves. He disclosed to his superiors that the office could not prove the murder case beyond a reasonable doubt and “lacked probable cause to continue prosecuting the case because the defendant’s confession was coerced, Ross discovered DNA evidence exculpating the defendant, and the defendant’s roommate admitted in recorded phone calls to being the killer,” and he recommended dismissal “at least in part” because he believed continued prosecution “would violate the defendant’s due process rights as well as a prosecutor’s ethical obligations under state law.” (Id. at p. 592.)

The legal foundation was concrete, not gestural. The court did something practitioners should study: it identified the specific provisions a reasonable prosecutor in Ross’s position could believe were being violated. Business and Professions Code section 6068, subdivision (f) imposes on every attorney the duty to “advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.” Government Code section 26501 obligates the district attorney to institute proceedings against persons “reasonably suspected of public offenses when he has information that such offenses have been committed.” And rule 3.8(a) of the Rules of Professional Conduct commands that a prosecutor “not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause.” (Ross, supra, 36 Cal.App.5th at p. 592.) Continuing a murder prosecution against a defendant whom the accumulating evidence exonerated sat in obvious tension with each.

No magic words: the employee need not cite chapter and verse. The County’s strongest factual point was that Ross “never expressly informed his supervisor or the assistant district attorney he believed the district attorney’s office was violating state or federal law.” (Ross, supra, 36 Cal.App.5th at p. 585.) The court held that did not matter: “Although Ross did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Id. at pp. 592–593.) The statute protects the disclosure of information; the legal characterization can remain implicit.

Context supplies notice where the audience shares the employee’s obligations. The court added a second, quietly powerful point: “the particular information disclosed in this case, that evidence developed during Ross’s handling of the case undermined the district attorney’s office’s basis for continuing to prosecute the case, should have raised the same constitutional, statutory, and ethical concerns to Ross’s superiors as they did to Ross because Ross’s superiors were also prosecutors subject to the same legal and ethical constraints as Ross.” (Ross, supra, 36 Cal.App.5th at p. 593.) Where the recipients of a disclosure are themselves bound by the norms at stake, the disclosure’s legal import is self-evident — an analysis that neutralizes “the employer didn’t understand this as whistleblowing” arguments in professional workplaces.

Job-duty disclosures are protected by the statute’s plain text. Everything Ross disclosed, he disclosed as the prosecutor assigned to the case — memos and e-mails to his supervisor and the assistant district attorney recommending dismissal. Under the version of subdivision (b) the court applied, that is no obstacle: disclosures are protected “regardless of whether disclosing the information is part of the employee’s job duties,” and under subdivision (e) a government employee’s report to his own employer is a disclosure to a government agency. (Ross, supra, 36 Cal.App.5th at p. 591.) The opinion thus gave dispositive effect, at the summary judgment stage, to the Legislature’s 2013 rejection of any categorical job-duties exception — a rule earlier decisions (notably Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832) had had to reach through case-by-case reasoning. Having reversed under subdivision (b), the court expressly declined to decide whether triable issues also existed under subdivision (c) (refusal to participate in unlawful activity) or subdivision (a) (rules preventing disclosure). (Id. at p. 593.)

FEHA disability: potential and perceived impairments count, and testing absences limit working. Turning to the FEHA claims, the court assembled the statutory definition: a physical disability includes any physical impairment affecting, among others, the neurological or immunological systems that “limits a major life activity” (Gov. Code, § 12926, subd. (m)(1)); a limitation exists “if it makes the achievement of the major life activity difficult”; working is itself a major life activity; and “[r]epeated or extended absences from work for medical appointments constitute a limitation on the major life activity of working.” (Ross, supra, 36 Cal.App.5th at p. 594, citing Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 588–589.) Critically, “[a] physical disability may be temporary or short term,” and the statute protects against discrimination based on impairments that are “actually disabling,” “potentially disabling,” or “perceived as disabling or potentially disabling” (Gov. Code, § 12926.1, subd. (b)); an impairment is perceived as potentially disabling “when an employer regards or treats an employee as having a physical impairment that has no present disabling effect but may become disabling in the future.” (Id. at p. 594.)

The County’s own conduct proved the perception. Ross had symptoms and months of out-of-state testing for “a potentially disabling neurological disease or autoimmune disorder”; the testing required periodic absences; his doctors prescribed stress reduction; and the County responded by transferring him out of homicide, demanding medical documentation “but only from a doctor at the out-of-state clinic where he was undergoing testing,” and placing him “on a paid leave of absence pending a fitness-for-duty examination arranged by the County.” (Ross, supra, 36 Cal.App.5th at pp. 594–595.) That evidence, “if believed by the trier of fact, shows Ross had a temporary or short-term physical impairment that was potentially disabling or perceived by the County as potentially disabling,” and the impairment “limited the major life activity of working because it required Ross to be absent from work periodically over several months to travel to an out-of-state clinic for medical testing.” (Id. at p. 595.) Because the trial court’s sole ground for dismissing the four FEHA claims was the absence of disability, all four — discrimination, accommodation, interactive process, and failure to prevent — were reinstated. (Ibid.) A final housekeeping point: the court declined Ross’s unsupported request to remand the case to a San Bernardino County trial court based on the judicial affiliations of two of the prosecutors involved, noting that review of judicial-disqualification questions lies exclusively in a timely writ petition. (Id. at p. 596.)

Significance

Ross occupies a load-bearing position in the section 1102.5 canon for three reasons. First, it operationalized the 2013 amendments. The Legislature had added the “regardless of whether disclosing the information is part of the employee’s job duties” clause effective 2014, but Ross is among the first published decisions to reverse a summary judgment on the strength of that text in the paradigm hard case — a professional whose entire job was to evaluate and communicate exactly the kind of information he claims as whistleblowing. After Ross, the argument that a report loses protection because making it was the employee’s assignment is not merely weak; it contradicts the statute. (Ross, supra, 36 Cal.App.5th at pp. 591–593.) The holding harmonizes with the broader arc — McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443 had already held reports of coworker illegality protected, and the Supreme Court would later confirm the statute’s generous sweep in People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719.

Second, it settled that no express invocation of law is required. The “no magic words” holding (Ross, supra, 36 Cal.App.5th at pp. 592–593) matters enormously in practice, because real employees — even lawyers, as Ross shows — describe facts and consequences (“we can’t prove this case; we should dismiss it”) rather than reciting code sections. Ross keeps the inquiry where the statute puts it: on the information disclosed and the reasonableness of the employee’s belief, with courts able to supply the “legal foundation” from the surrounding regulatory landscape, as this court did with Business and Professions Code section 6068, Government Code section 26501, and rule 3.8(a). Third, it is a pre-Lawson building block that must now be read through Lawson. Ross recited the Manavian three-step, pretext-based framework (id. at pp. 591–592); Lawson, supra, 12 Cal.5th 703 subsequently held that section 1102.6’s two-step framework — contributing-factor proof by a preponderance, then the employer’s same-decision showing by clear and convincing evidence — governs section 1102.5 retaliation claims. Ross’s protected-activity holdings survive intact and are regularly paired with Lawson: Ross defines what counts as a disclosure by a working professional; Lawson defines how the resulting claim is tried and defended.

The FEHA half of the opinion deserves equal billing. Ross confirms that disability status does not wait for a diagnosis: an employee undergoing an extended diagnostic process for a suspected serious condition — with medically driven absences and physician-directed limitations like stress reduction — can be actually, potentially, or perceptibly disabled within Government Code sections 12926 and 12926.1, and the employer’s own protective measures (transfers, documentation demands, fitness-for-duty leave) can supply the proof of perception. (Ross, supra, 36 Cal.App.5th at pp. 594–595.) For public-employee and professional-workforce cases especially, Ross is the citation that keeps both the whistleblower and the disability theories alive past summary judgment.

Key quotes

“Although Ross did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Ross, supra, 36 Cal.App.5th at pp. 592–593.)

“[T]he particular information disclosed in this case, that evidence developed during Ross’s handling of the case undermined the district attorney’s office’s basis for continuing to prosecute the case, should have raised the same constitutional, statutory, and ethical concerns to Ross’s superiors as they did to Ross because Ross’s superiors were also prosecutors subject to the same legal and ethical constraints as Ross.” (Ross, supra, 36 Cal.App.5th at p. 593.)

“This evidence, if believed by the trier of fact, shows Ross had a temporary or short-term physical impairment that was potentially disabling or perceived by the County as potentially disabling … .” (Ross, supra, 36 Cal.App.5th at p. 595.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The opinion resolved protected activity and disability — nothing more. The court expressly declined to decide whether triable issues existed under section 1102.5, subdivision (c) (retaliation for refusing to participate in unlawful activity) or subdivision (a) (rules or policies preventing disclosure), leaving open how the assistant district attorney’s instructions about the exculpatory evidence would fare under those provisions. (Ross, supra, 36 Cal.App.5th at p. 593.) Because the parties did not raise the question, the court applied the current statute to conduct predating the 2014 amendments without deciding whether a former version should govern — an issue it flagged and reserved. (Id. at p. 591, fn. 3.) The elements the trial court never reached — whether Ross suffered an adverse employment action, whether he was constructively terminated, causation, and the County’s justifications — remained for remand, as did the merits of the accommodation and interactive-process claims beyond the threshold disability question. (Id. at pp. 590, 595.) And the opinion’s recitation of the Manavian burden-shifting framework (id. at pp. 591–592) has since been overtaken by Lawson: how the Ross record would be analyzed under section 1102.6’s contributing-factor and clear-and-convincing standards is a question the opinion, by its vintage, could not answer.