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Ververka v. Dept. of Veterans Affairs (CA1/1 A163571, filed 5/6/24, pub. 5/22/24) Whistleblower | Lab. Code section 1102.5

By May 22, 2024June 24th, 2024Uncategorized

Plaintiff Donald Ververka alleged defendant California Department of Veterans Affairs (CalVet) terminated him in violation of Labor Code section 1102.5, a statute prohibiting retaliation against whistleblowing employees.  The jury found that although Ververka made protected disclosures that were “contributing factor[s]” in CalVet’s decision to remove him, CalVet was not liable because it met its burden under section 1102.6 to prove it would have made the same decision for non-retaliatory reasons.  After the trial court entered judgment for CalVet, Ververka moved to vacate the judgment.  The court denied the motion. 

On appeal, Ververka contends the trial court erred in denying his motion to vacate the judgment.  Citing Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris), a case brought pursuant to the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), he argues that an employer’s “same decision” showing under section 1102.6 precludes only an award of damages and backpay and an order of reinstatement and, as a result, he was entitled to declaratory relief and reasonable attorney’s fees and costs.  CalVet has filed a protective cross-appeal, advancing alternative legal grounds for affirming the judgment.

We conclude the whistleblower statutes (§ 1102.5 et seq.) are not reasonably susceptible to Ververka’s interpretation.  We therefore affirm the judgment and dismiss the cross-appeal as moot.