The Ninth Circuit today asked the Supreme Court to answer a question of California law relating to an employer’s alleged unlawful retaliation against an employee. In Lawson v. PPG Architectural Finishes, Inc., the plaintiff claims he was wrongfully fired after complaining about a fraudulent business practice by his company.
The question is one about the burden of proof: “Does the evidentiary standard set forth in section 1102.6 of the California Labor Code replace the McDonnell Douglas [(1973) 411 U.S. 792, 802] test as the relevant evidentiary standard for retaliation claims brought pursuant to section 1102.5 of California’s Labor Code?” (Links and case citation added.)
The Ninth Circuit says that three California Court of Appeal opinions “have sown widespread confusion as to which evidentiary standard actually applies to section 1102.5 retaliation claims,” even though (or maybe because) they have not “even cite[d], much less meaningfully deal[t] with, section 1102.6.” The three-judge panel concludes, “California statutory law seems to provide one standard, while some California courts have provided (though inconsistently . . .) another and materially different standard.”
It’s been over 14 months since the federal Court of Appeals last asked for the Supreme Court’s help deciding a legal issue, although it has come close a couple of times more recently (see here and here). That’s an unusually long gap between asks — in 2019, the Ninth Circuit made five requests; in 2018, there were nine.
The Supreme Court should let the Ninth Circuit know by the beginning of February — give or take — whether it will answer the questions. It probably will.