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Michael Marlo v. United Parcel Service

August 23, 2012

MICHAEL MARLO, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

O

ORDER RE: STANDARD OF CAUSATION FOR RETALIATION CLAIMS

The parties disagree on the appropriate standard of causation for Plaintiff's state law retaliation and wrongful termination in violation of public policy claims. This case involves evidence that Defendant may have had a "mixed motive" for terminating Plaintiff. This means that Defendant may have been motivated both by legitimate reasons and by improper retaliatory reasons.

Defendant argues that a "but for" standard applies to Plaintiff's claims, citing to the California Supreme Court's decision in General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994).

Plaintiff argues that a "motivating reason" standard applies, as set forth in Grant-Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361 (2002). This standard is essentially adopted by Judicial Council of California Civil Jury Instruction ("CACI") No. 2430, for "Wrongful Discharge/Demotion in Violation of Public Policy."

Here, Plaintiff's proposed instruction, in line with Grant-Burton and CACI No. 2430, is as follows:

RETALIATION IN VIOLATION OF PUBLIC POLICY - TERMINATION

Plaintiff Michael Marlo claims that UPS retaliated against him in violation of the California Labor Code by terminating his employment. Mr. Marlo has the burden of proving each of the following elements by a preponderance of the evidence:

1. That Mr. Marlo engaged in protected activity; 2. UPS subjected Mr. Marlo to an adverse employment action by terminating his employment; and

3. UPS terminated Mr. Marlo's employment because he engaged in protected activity - that is, that the protected activity was a motivating or substantial factor in UPS's decision to terminate his employment.

If you find that Mr. Marlo has failed to prove any of these elements, your verdict must be for UPS.

If you find that Mr. Marlo has proved all three of these elements, then UPS must prove by a preponderance of the evidence that it would have made the same decision to terminate Mr. Marlo even if his protected activity had not been a motivating or substantial factor in the decision. If UPS does not meet this burden, then your verdict must be for Mr. Marlo.*fn1

Having reviewed the parties' supplemental briefs and the relevant law, the court concludes that the "motivating reason" standard is the correct one.

It is true, as Defendant argues, that General Dynamics references a "but for" standard. See 7 Cal. 4th at 1191 ("The plaintiff, of course, bears the burden of establishing the unequivocal requirements of the ethical norm at issue and that the employer's conduct was motivated by impermissible considerations under a 'but for' standard of causation."). In that case, however, the California Supreme Court "granted review to consider an attorney's status as 'in house' counsel as it affects the right to pursue claims for damages following an allegedly wrongful termination of employment." Id. at 1169. The Court then devoted the decision to resolving aspects of this issue. Accordingly, it is in dicta, on the penultimate page, and as part of a list of ...


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