Business Law

Scheer v. Regents of the Univ. of California (Mar. 28, 2022, B303379) __ Cal.App.5th __ [2022 WL 896766]

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Section 1278.5 whistleblower claims are analyzed under the McDonald Douglas framework, not the Lawson framework.

Dr. Arnold Scheer filed whistleblower claims under Labor Code section 1102.5, Government Code section 8547 et seq., and Health and Safety Code section 1278.5 against the Regents. He alleged wrongful termination in retaliation for his alleged attempts to report and correct patient safety issues, mismanagement, and other fraudulent, illegal and/or unsafe practices. The Regents moved for summary judgment, asserting that it terminated Dr. Scheer for a legitimate, nonretaliatory reasonā€”his overly aggressive, harsh, disruptive, and ineffective work style.  The trial court applied the burden-shifting analysis in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and granted summary judgment, ruling that Dr. Scheer failed to raise a triable issue that the Regentsā€™ nonretaliatory termination reasons were pretextual. Dr. Scheer appealed.

The Court of Appeal reversed and remanded.  Regarding retaliation claims under the Labor Code and Government Code, the Court held that the standard in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 provides the correct analytical framework. Under Lawson, a whistleblower need not prove pretext; rather, once he establishes by a preponderance of the evidence that retaliation was a contributing factor in the adverse employment decision, the burden shifts to the employer to prove by clear and convincing evidence that it would have taken the same action for legitimate reasons. The court ruled that, upon remand, The Regents can move for summary judgment under the Lawson standard. In contrast, the court held that the Lawson framework does not apply to whistleblower claims under section 1278.5; the McDonnell Douglas approach used by the trial court applies instead. The court nonetheless reversed the summary judgment on that claim as well, because Dr. Scheer had presented sufficient evidence to create a triable issue that the Regentsā€™ stated reasons for the termination were a pretext for a retaliatory discharge.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, who are partners at the appellate firm Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or

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