IN THE SUPREME COURT OF 

CALIFORNIA

WALLEN LAWSON, 

Plaintiff and Appellant,

v.

PPG ARCHITECTURAL FINISHES, INC.,

Defendant and Respondent.

S266001

Ninth Circuit

19-55802

Central District of California

8:18-cv-00705-AG-JPR

January 27, 2022

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Groban, Jenkins, and Miller*concurred.

* Associate Justice of the Court of Appeal, Fourth Appellate 

District, Division Two, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
1

LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

S266001

Opinion of the Court by Kruger, J.

The question in this case concerns the proper method for 

presenting and evaluating a claim of whistleblower retaliation 

under Labor Code section 1102.5. Since 2003, the Labor Code 

has prescribed a framework: Once an employee-whistleblower 

establishes by a preponderance of the evidence that retaliation 

was a contributing factor in the employee’s termination, 

demotion, or other adverse action, the employer then bears the 

burden of demonstrating by clear and convincing evidence that 

it would have taken the same action “for legitimate, 

independent reasons.” (Lab. Code, § 1102.6, added by Stats. 

2003, ch. 484, § 3, pp. 3518–3519.) But in the years since section 

1102.6 became law, some courts have persisted in instead 

applying a well-worn, but meaningfully different, burdenshifting framework borrowed from the United States Supreme 

Court’s decision in McDonnell Douglas Corp. v. Green (1973) 411 

U.S. 792 (McDonnell Douglas). Noting the lack of uniformity, 

the United States Court of Appeals for the Ninth Circuit has 

asked us to decide which of these frameworks governs section 

1102.5 retaliation claims. Unsurprisingly, we conclude courts 

should apply the framework prescribed by statute in Labor Code 

section 1102.6. Under the statute, employees need not satisfy 

the McDonnell Douglas test to make out a case of unlawful 

retaliation.
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

2

I.

We take the facts from the Ninth Circuit’s certification 

order. From 2015 until he was fired in 2017, plaintiff Wallen 

Lawson worked as a territory manager for defendant PPG 

Architectural Finishes, Inc. (PPG), a paint and coatings 

manufacturer. Lawson was responsible for stocking and 

merchandising PPG paint products in Lowe’s home 

improvement stores in Southern California. PPG used two 

metrics to evaluate Lawson’s performance: his ability to meet 

sales goals, and his scores on so-called market walks, during 

which PPG managers shadowed Lawson to evaluate his rapport 

with Lowe’s staff and customers, among other things. Lawson’s 

direct supervisor, Clarence Moore, attended all but the first of 

these market walks. On that first market walk, Lawson 

received the highest possible rating, but the positive evaluations 

did not last and his market walk scores soon took a nosedive. 

Lawson also frequently missed his monthly sales targets. In 

spring 2017, PPG placed Lawson on a performance 

improvement plan. 

According to Lawson, that same spring, Moore began 

ordering him to intentionally mistint slow-selling PPG paint 

products — that is, to tint the paint to a shade the customer had 

not ordered. Lowe’s would then be forced to sell the paint at a 

deep discount, enabling PPG to avoid buying back what would 

otherwise be excess unsold product. Lawson did not agree with 

this mistinting scheme and filed two anonymous complaints 

with PPG’s central ethics hotline. He also told Moore directly 

that he refused to participate. The complaints led to an 

investigation. PPG eventually told Moore to discontinue the 

practice, but Moore remained with the company, where he 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

3

continued to directly supervise Lawson and oversee his market

walk evaluations. 

Some months later, after determining that Lawson had 

failed to meet the goals outlined in his performance 

improvement plan, both Moore and Moore’s supervisor 

recommended that Lawson be fired. He was. 

Lawson filed suit in the United States District Court for 

the Central District of California. As relevant here, Lawson 

claimed that PPG had fired him because he blew the whistle on 

Moore’s fraudulent mistinting practices, in violation of the 

protections codified in Labor Code section 1102.5 (section 

1102.5). PPG moved for summary judgment. Invoking a line of 

authority that traces back to Patten v. Grant Joint Union High 

School Dist. (2005) 134 Cal.App.4th 1378 (Patten), the district 

court applied the three-part burden-shifting framework laid out 

in McDonnell Douglas, supra, 411 U.S. 792 to evaluate Lawson’s 

section 1102.5 claim. Under that approach, the employee must 

establish a prima facie case of unlawful discrimination or 

retaliation. (McDonnell Douglas, at p. 802.) Next, the employer 

bears the burden of articulating a legitimate reason for taking 

the challenged adverse employment action. (Ibid.) Finally, the 

burden shifts back to the employee to demonstrate that the 

employer’s proffered legitimate reason is a pretext for 

discrimination or retaliation. (Id. at p. 804.) 

As to the first step of McDonnell Douglas, the district court 

concluded that Lawson had established a prima facie case of 

unlawful retaliation based on his efforts to stop the paint 

mistinting scheme. Moving to the second step of the framework, 

the court determined that PPG had sustained its burden of 

articulating a legitimate, nonretaliatory reason for firing him —
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

4

namely, Lawson’s poor performance on market walks and 

failure to demonstrate progress under the performance 

improvement plan. Finally, the district court concluded Lawson 

had failed to produce sufficient evidence that PPG’s stated 

reason for firing Lawson was pretextual. Because Lawson could 

not satisfy this third step of the McDonnell Douglas test, the 

court granted summary judgment in favor of PPG on the 

whistleblower retaliation claim. 

On appeal to the Ninth Circuit, Lawson argued that the 

district court erred in applying McDonnell Douglas. He 

contended the court should instead have applied the framework 

set out in Labor Code section 1102.6 (section 1102.6). Under the 

statutory framework, Lawson contended, his burden was merely 

to show that his whistleblowing activity was “a contributing 

factor” in his dismissal, not to show that PPG’s stated reason 

was pretextual. The Ninth Circuit determined that the outcome 

of Lawson’s appeal hinged on which of those two tests applied 

but signaled uncertainty on this point. (Lawson v. PPG 

Architectural Finishes, Inc. (9th Cir. 2020) 982 F.3d 752, 755.) 

It observed that our state’s appellate courts do not follow a 

consistent practice and that this court has never ruled on the 

issue. (Id. at pp. 755–759.) It asked us to consider the question

and we granted the request. 

II.

Section 1102.5 provides whistleblower protections to 

employees who disclose wrongdoing to authorities. As relevant 

here, section 1102.5 prohibits an employer from retaliating 

against an employee for sharing information the employee “has 

reasonable cause to believe . . . discloses a violation of state or 

federal statute” or of “a local, state, or federal rule or regulation” 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

5

with a government agency, with a person with authority over 

the employee, or with another employee who has authority to 

investigate or correct the violation. (§ 1102.5, subd. (b).) “This 

provision,” we have explained, “reflects the broad public policy 

interest in encouraging workplace whistle-blowers to report 

unlawful acts without fearing retaliation.” (Green v. Ralee 

Engineering Co. (1998) 19 Cal.4th 66, 77.) An employee injured 

by prohibited retaliation may file a private suit for damages. 

(Lab. Code, § 1105; see Gardenhire v. Housing Authority (2000) 

85 Cal.App.4th 236, 241.) 

When section 1102.5 was first enacted in 1984, the statute 

supplied only a set of substantive protections against 

whistleblower retaliation, unaccompanied by any provision 

setting forth procedures for proving retaliation. (Stats. 1984, 

ch. 1083, § 1, p. 3698.) So to give life to those substantive 

protections, courts looked to analogous statutory schemes for 

procedural guidance. Much as courts had done in employment 

discrimination and retaliation cases brought under the Fair 

Housing and Employment Act (FEHA), courts in section 1102.5 

cases generally adopted the three-part McDonnell Douglas

burden-shifting framework. (See Morgan v. Regents of 

University of California (2000) 88 Cal.App.4th 52, 67–69 

(Morgan); Akers v. County of San Diego (2002) 95 Cal.App.4th 

1441, 1453; see also Guz v. Bechtel National, Inc. (2000) 24 

Cal.4th 317, 354 (Guz) [applying McDonnell Douglas to a 

discrimination claim under FEHA; citing cases]; Yanowitz v. 

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [applying 

McDonnell Douglas to a FEHA retaliation claim; citing cases].)

As we explained in Guz, the high court established the 

McDonnell Douglas framework for trying claims of intentional 

discrimination — there, intentional employment discrimination 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

6

in violation of title VII of the Civil Rights Act of 1964 (42 U.S.C. 

§ 2000e et seq.) — based on circumstantial rather than direct 

evidence. (Guz, supra, 24 Cal.4th at p. 354.) Courts applying it 

to section 1102.5 retaliation cases adapted the test for that 

context, describing it as follows: First, a plaintiff who seeks to 

rely on circumstantial evidence must establish a prima facie 

case of retaliation, meaning “ ‘ “a plaintiff must show that she 

engaged in protected activity, that she was thereafter subjected 

to adverse employment action by her employer, and there was a 

causal link between the two.” ’ ” (Morgan, supra, 88 Cal.App.4th 

at p. 69.) Second, if the plaintiff has established a prima facie 

case, the burden of production shifts to the employer to come 

forward with evidence of “a legitimate, nondiscriminatory 

reason for the adverse employment action.” (Id. at p. 68.) Third, 

if the employer produces substantial evidence of a legitimate, 

nondiscriminatory reason, then the plaintiff bears the burden of 

proving the reason was a pretext for impermissible retaliation. 

(Id. at pp. 68–69.)

Courts imposed no similar burden-shifting requirements 

in cases built on direct evidence of retaliation. Morgan, 

however, cited out-of-state authority for the proposition that 

“[w]here a plaintiff offers direct evidence of discrimination that

is believed by the trier of fact, the defendant can avoid liability 

only by proving the plaintiff would have been subjected to the 

same employment decision without reference to the unlawful 

factor.” (Morgan, supra, 88 Cal.App.4th at pp. 67–68, citing, 

inter alia, Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 

244–245.) In other words, the test, as Morgan described it, 

allowed the employer to avoid liability upon a showing the 

employer would have made the same decision even absent any 

retaliatory motive.
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

7

In 2003, the Legislature amended the Labor Code’s 

whistleblower protections in response to a series of high-profile 

corporate scandals and reports of illicit coverups. (Stats. 2003, 

ch. 484, § 3, pp. 3518–3519.) Specifically citing “the recent spate 

of false business reports and other illegal activity by Enron, 

WorldCom and others” (Assem. Com. on Judiciary, Analysis of 

Sen. Bill No. 777 (2003–2004 Reg. Sess.) as amended May 29, 

2003, p. 1), legislators expressed concern that new laws were 

“needed in order to prevent the kind of damage to shareholders, 

investors, employees and the market that Enron and 

WorldCom, and now HealthSouth continue to cause.” (Sen. 

Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of 

Sen. Bill No. 777 (2003–2004 Reg. Sess.) as introduced Feb. 21, 

2003, p. 6.) The amendments, the Assembly Committee on the 

Judiciary explained, were designed to “encourage earlier and 

more frequent reporting of wrongdoing by employees and 

corporate managers when they have knowledge of specified 

illegal acts” by “expanding employee protection against 

retaliation.” (Assem. Com. on Judiciary, Analysis of Sen. Bill 

No. 777, supra, as amended May 29, 2003, p. 1.)

As pertinent here, the 2003 amendments added a 

procedural provision, section 1102.6, which states in full: “In a 

civil action or administrative proceeding brought pursuant to 

Section 1102.5, once it has been demonstrated by a 

preponderance of the evidence that an activity proscribed by 

Section 1102.5 was a contributing factor in the alleged 

prohibited action against the employee, the employer shall have 

the burden of proof to demonstrate by clear and convincing 

evidence that the alleged action would have occurred for 

legitimate, independent reasons even if the employee had not 

engaged in activities protected by Section 1102.5.” 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

8

After section 1102.6 took effect, some California courts 

identified that provision as supplying the applicable standards 

for claims of whistleblower retaliation under section 1102.5, 

without relying on McDonnell Douglas’s burden-shifting 

framework. But other courts have continued to rely on the 

McDonnell Douglas framework without mentioning section 

1102.6. (See Patten, supra, 134 Cal.App.4th at p. 1384 [“The 

elements of a section 1102.5(b) retaliation cause of action 

require that (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”]; Mokler 

v. County of Orange (2007) 157 Cal.App.4th 121 [same]; Hager 

v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540 

[same].)

As the Ninth Circuit explained in its certification order, 

“Although neither Hager, Patten, nor Mokler even cites, much 

less meaningfully deals with, section 1102.6, these cases have 

sown widespread confusion as to which evidentiary standard 

actually applies to section 1102.5 retaliation claims.” (Lawson 

v. PPG Architectural Finishes, Inc., supra, 982 F.3d at p. 757.) 

This confusion is reflected in the decisions of the federal courts, 

which have taken a variety of approaches to the issue. (Compare

Monaghan v. Telecom Italia Sparkle of North America, Inc.

(C.D.Cal., July 22, 2013, No. CV 13-00646 ABC (PLAx)) 2013 

WL 12171957, p. *10 [describing § 1102.6 as setting forth the 

burden of proof for a § 1102.5 claim], Greer v. Lockheed Martin 

Corp. (N.D.Cal. 2012) 855 F.Supp.2d 979, 989 [same], and 

Kumar v. Alameda County Medical Center (N.D.Cal., Mar. 25, 

2011, No. 09-4312 EDL) 2011 WL 13244636, pp. *13, *16 [same] 

with Nikmanesh v. Walmart Inc. (9th Cir. 2019) 789 Fed.Appx. 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

9

30, *31–*32 [applying McDonnell Douglas to the plaintiff’s 

§ 1102.5 claim], Sorensen v. National Railroad Passenger Corp.

(9th Cir. 2019) 786 Fed.Appx. 652, *653, *655 [same], and 

Canupp v. Children’s Receiving Home of Sacramento (E.D.Cal. 

2016) 181 F.Supp.3d 767, 789, 795 [describing both McDonnell 

Douglas and § 1102.6 as the governing evidentiary tests].) 

III.

To resolve the confusion, we now clarify that section 

1102.6, and not McDonnell Douglas, supplies the applicable

framework for litigating and adjudicating section 1102.5 

whistleblower claims. 

By its terms, section 1102.6 describes the applicable 

substantive standards and burdens of proof for both parties in a 

section 1102.5 retaliation case: First, it must be “demonstrated 

by a preponderance of the evidence” that the employee’s 

protected whistleblowing was a “contributing factor” to an 

adverse employment action. (§ 1102.6.) Then, once the 

employee has made that necessary threshold showing, the 

employer bears “the burden of proof to demonstrate by clear and 

convincing evidence” that the alleged adverse employment 

action would have occurred “for legitimate, independent 

reasons” even if the employee had not engaged in protected 

whistleblowing activities. (Ibid.)

PPG suggests that the sole pertinent effect of section 

1102.6 was to codify a kind of defense available to employers, 

colloquially known as the “same-decision defense,” and to 

impose a heightened burden to prove the defense by “clear and 

convincing evidence.” (Harris v. City of Santa Monica (2013) 56 

Cal.4th 203, 239 (Harris).) Section 1102.6 indeed does those 

things, but that is not all it does. The first prong of the statute 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

10

also tells us what plaintiffs must prove to establish liability, and 

by what evidentiary standard. Specifically, plaintiffs must 

show, by a preponderance of the evidence, that whistleblowing 

was a contributing factor in the employer’s decision. This is a 

complete set of instructions for the presentation and evaluation 

of evidence in section 1102.5 cases; it is not merely the 

codification of an affirmative defense. 

It is true, as PPG points out, that much of the legislative 

history of section 1102.6 focuses on the employer’s samedecision defense — particularly the Legislature’s interest in 

prescribing a more demanding standard for establishing the 

defense. (Assem. Com. on Judiciary, Analysis of Sen. Bill 

No. 777, supra, as amended May 29, 2003, p. 2 [bill provides 

employer “an affirmative defense against retaliation claims” by 

“clear and convincing evidence” standard]; Enrolled Bill Mem. 

to Governor on Sen. Bill No. 777 (2003–2004 Reg. Sess.) Oct. 6, 

2003, p. 1 [“This bill extends the current protection of the state 

whistleblower law by . . . increasing the burden of proof on the 

employer to a clear and convincing evidence standard”].) But 

even though the codification of the plaintiff’s burden received 

less attention in the legislative history, the Legislature 

undoubtedly understood what is clear from the face of the 

statute it enacted: that section 1102.6 established “the 

evidentiary burdens of the parties participating in a civil action 

or administrative hearing involving an alleged violation of the 

bill’s provisions.” (Legis. Counsel’s Dig., Sen. Bill No. 777 

(2003–2004 Reg. Sess.) 5 Stats. 2003, Summary Dig., p. 222, 

italics added; see Jones v. Lodge at Torrey Pines Partnership

(2008) 42 Cal.4th 1158, 1169 [the Legislative Counsel’s Digest 

is “ ‘printed as a preface to every bill considered by the 

Legislature’ ” to “ ‘assist the Legislature in its consideration of 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

11

pending legislation’ ”].) That is, section 1102.6 sets forth the 

evidentiary burdens of both sides in a whistleblower retaliation 

suit, not just one.

Even accepting that section 1102.6 establishes a complete 

set of instructions for both sides, PPG argues that courts need 

not choose between employing the section 1102.6 and McDonnell 

Douglas frameworks because one does not replace the other. On 

the contrary, PPG contends, McDonnell Douglas continues to 

govern at the first step of the section 1102.6 analysis. After all, 

PPG reasons, that first step of the section 1102.6 framework still 

requires plaintiffs to prove the employer’s retaliatory intent,

and determining an employer’s intent is the purpose of the 

McDonnell Douglas test. (See Guz, supra, 24 Cal.4th at p. 354.) 

PPG’s premises are correct, but its conclusion does not 

follow. Liability under section 1102.6 does require proof of 

retaliatory intent, and McDonnell Douglas does offer a method 

for proving such intent. (Guz, supra, 24 Cal.4th at p. 355.) But 

McDonnell Douglas is not the only possible method of proving 

discriminatory or retaliatory intent. (See, e.g., Trans World 

Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [McDonnell 

Douglas does not apply when the plaintiff presents direct 

evidence of discrimination].) Nor is it a method of proof well 

suited to litigation under the section 1102.6 framework.

Section 1102.6 requires whistleblower plaintiffs to show 

that retaliation was a “contributing factor” in their termination, 

demotion, or other adverse action. This means plaintiffs may 

satisfy their burden of proving unlawful retaliation even when 

other, legitimate factors also contributed to the adverse action. 

(See, e.g., State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 

Cal.App.2d 10, 17 (State Comp. Ins. Fund) [describing a 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

12

contributing factor standard as one in which the conduct at issue 

need not be the “exclusive cause” of the plaintiff’s injuries]; 

Rookaird v. BNSF Ry. Co. (9th Cir. 2018) 908 F.3d 451, 461 

(Rookaird) [“ ‘A “contributing factor” includes “any factor, which 

alone or in connection with other factors, tends to affect in any 

way the outcome of the decision” ’ ”].) But as we explained in 

Harris, the three-part McDonnell Douglas test was not written 

for the evaluation of claims involving multiple reasons for the 

challenged adverse action. McDonnell Douglas was decided at 

a time when the law generally presumed “that the employer has 

a single reason for taking an adverse action against the 

employee and that the reason is either discriminatory or 

legitimate.” (Harris, supra, 56 Cal.4th at p. 215.) The 

McDonnell Douglas framework reflects that presumption: “By 

hinging liability on whether the employer’s proffered reason for 

taking the action is genuine or pretextual, the McDonnell 

Douglas inquiry aims to ferret out the ‘true’ reason for the 

employer’s action.” (Ibid.) This focus on identifying the single, 

true reason for the adverse action creates complications in a socalled mixed-motives case, in which the employer is alleged to 

have acted for multiple reasons, some legitimate and others not: 

“What is the trier of fact to do when it finds that a mix of 

discriminatory and legitimate reasons motivated the employer’s 

decision?” (Ibid.) 

Although we acknowledged in Harris that courts have 

adopted the McDonnell Douglas test for FEHA employment 

discrimination cases that do not involve mixed motives, we 

declined to adopt the same test to govern mixed-motives cases. 

We instead explained that the plaintiff in a mixed-motives case 

bears an initial burden of showing that discrimination “was a 

substantial factor motivating his or her termination,” without 
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Opinion of the Court by Kruger, J.

13

ever suggesting that the plaintiff must satisfy the McDonnell 

Douglas test to carry this burden. (Harris, supra, 56 Cal.4th at 

p. 241; cf. id. at p. 239 [contrasting the causal standard in FEHA 

with the “contributing factor” standard in § 1102.6].)

Other courts addressing burden-shifting frameworks 

similar to section 1102.6 have similarly found McDonnell 

Douglas inapplicable. For instance, nearly all courts to address 

the issue have concluded that McDonnell Douglas has no role to 

play in the adjudication of First Amendment retaliation claims 

under the burden-shifting framework of Mt. Healthy City Board 

of Ed. v. Doyle (1977) 429 U.S. 274, which closely resembles the 

section 1102.6 framework. Mt. Healthy assigns to plaintiffs the 

initial burden of showing that conduct protected by the First 

Amendment was a “ ‘substantial’ ” or “ ‘motivating’ ” factor in an 

employer’s adverse employment decision, then assigns to the 

defendant the burden of showing it would have made the same 

decision in the absence of the protected conduct. (Mt. Healthy, 

at p. 287.) In such cases, “almost every circuit to have 

considered whether McDonnell Douglas should apply . . . has 

thought the idea a poor one.” (Walton v. Powell (10th Cir. 2016) 

821 F.3d 1204, 1210; see id. at pp. 1210–1212 [cataloging 

cases].)1

Much the same is true of courts interpreting federal 

statutes similar to section 1102.6. For instance, the federal 

Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) (18 U.S.C. 

1 The “almost” is a nod to the Eighth Circuit, whose 

precedent has been somewhat inconsistent on the issue, though 

more recent precedent suggests McDonnell Douglas does not 

apply to First Amendment retaliation claims. (See Wagner v. 

Jones (8th Cir. 2011) 664 F.3d 259, 270 [distinguishing the Mt. 

Healthy framework from McDonnell Douglas].)
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

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§ 1514A(b)(2)(A)) — which was enacted shortly before the 

Legislature enacted section 1102.6 — contains a nearly identical 

burden-shifting framework for the adjudication of whistleblower 

cases. The courts to address the issue have generally concluded 

that framework displaces McDonnell Douglas rather than 

supplementing it. (See, e.g., Day v. Staples, Inc. (1st Cir. 2009)

555 F.3d 42, 53 & fn. 6; Allen v. Administrative Review Bd. (5th 

Cir. 2008) 514 F.3d 468, 475–476; Barrick v. PNGI Charles 

Town Gaming, LLC (4th Cir. 2020) 799 Fed.Appx. 188, 189; 

Johnson v. Stein Mart, Inc. (11th Cir. 2011) 440 Fed.Appx. 795, 

801; see also Araujo v. New Jersey Transit Rail Operations, Inc.

(3d Cir. 2013) 708 F.3d 152, 157–158 [“when a burden-shifting 

framework other than McDonnell Douglas is present in a 

statute, Congress specifically intended to alter any presumption 

that McDonnell Douglas is applicable”]; Fraser v. Fiduciary 

Trust Co. Intern. (2d Cir. 2010) 396 Fed.Appx. 734, 735 

[declining to decide the question but noting that “SarbanesOxley provides its own burden-shifting framework”]; Beacom v. 

Oracle America, Inc. (8th Cir. 2016) 825 F.3d 376, 379 [setting 

out separate Sarbanes-Oxley framework without any mention of 

McDonnell Douglas]; Bechtel v. Administrative Review Bd., U.S.

(2d Cir. 2013) 710 F.3d 443, 447 [same].) Courts have generally 

reached similar conclusions with respect to other statutes 

containing similar burden-shifting schemes. (Trimmer v. U.S. 

Dept. of Labor (10th Cir. 1999) 174 F.3d 1098, 1101–1102

[McDonnell Douglas displaced by similar statutory framework 

in whistleblower provisions of Energy Reorganization Act of 

1974]; Araujo, supra, 708 F.3d at pp. 158–159 [same conclusion 

under whistleblower provisions of Federal Railroad Safety Act].) 

We reach a similar conclusion here. It would make little 

sense to require section 1102.5 retaliation plaintiffs to satisfy 
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McDonnell Douglas for the sake of proving that retaliation was 

a contributing factor in an adverse action. The central problem 

lies at the third step of McDonnell Douglas, which requires the 

plaintiff to prove that an employer’s proffered legitimate reason 

for taking an adverse action was a pretext for impermissible 

retaliation. (Morgan, supra, 88 Cal.App.4th at pp. 68–69.) 

Under section 1102.6, a plaintiff does not need to show that the 

employer’s nonretaliatory reason was pretextual. Even if the 

employer had a genuine, nonretaliatory reason for its adverse 

action, the plaintiff still carries the burden assigned by statute 

if it is shown that the employer also had at least one retaliatory 

reason that was a contributing factor in the action. There is, 

then, no reason why whistleblower plaintiffs should be required 

to satisfy the three-part McDonnell Douglas inquiry — and 

prove that the employer’s proffered legitimate reasons were 

pretextual — in order to prove that retaliation was a 

contributing factor under section 1102.6. To the contrary,

placing this unnecessary burden on plaintiffs would be 

inconsistent with the Legislature’s evident purpose in enacting 

section 1102.6: namely, “encourag[ing] earlier and more 

frequent reporting of wrongdoing by employees and corporate 

managers when they have knowledge of specified illegal acts” by 

“expanding employee protection against retaliation.” (Assem. 

Com. on Judiciary, Analysis of Sen. Bill No. 777, supra, as 

amended May 29, 2003, p. 1, italics omitted.)

At oral argument, counsel for PPG acknowledged the 

apparent mismatch between McDonnell Douglas and section 

1102.6’s contributing factor standard, but suggested that we 

should adapt McDonnell Douglas for purposes of guiding courts 

in the proper application of that standard. We see no indication 

that the courts are in need of this sort of guidance. The 
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Opinion of the Court by Kruger, J.

16

contributing factor standard is not an unfamiliar one. (See, e.g.,

State Comp. Ins. Fund, supra, 176 Cal.App.2d at p. 17;

Rookaird, supra, 908 F.3d at p. 461.) And we are not persuaded 

that introducing to the law yet another burden-shifting 

framework — a framework inspired by McDonnell Douglas, yet 

not McDonnell Douglas itself — would clarify matters more 

than it would confuse them.

PPG argues the legislative history reflects an intent to 

preserve a role for McDonnell Douglas in the adjudication of 

section 1102.5 retaliation cases. PPG’s argument centers on a 

bill analysis prepared by the Senate Rules Committee. Citing 

both Morgan and McDonnell Douglas, the bill analysis 

characterized existing law as follows: “[A]fter a plaintiff shows 

by a preponderance of evidence that the action taken by the 

employer is proscribed by the whistleblower statute, the burden 

shifts to the employer to show by a preponderance of the 

evidence that the alleged action would have occurred for 

legitimate, independent reasons even if the employee had not 

engaged in activities protected by the whistleblower statute.” 

(Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. 

Bill No. 777 (2003–2004 Reg. Sess.) as introduced Feb. 21, 2003, 

p. 3.) The analysis went on to say: “This bill instead requires 

the employer to make that showing by clear and convincing 

evidence.” (Ibid.) PPG sees this as evidence that the 

Legislature intended to preserve McDonnell Douglas, 

emphasizing that the bill analysis concerns only the codification 

of the burden on the employer to make out its same-decision 

defense and evinces no intent to displace “existing case law” 

(ibid.) insofar as existing law placed the burden on plaintiffs to 

establish retaliation under the McDonnell Douglas test. 

Lawson, by contrast, understands the bill analysis to mean that 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

17

the Legislature recognized that McDonnell Douglas was part of 

then-existing law and meant to change it. 

In truth, the bill analysis yields no clear answers on the 

McDonnell Douglas question. That is because the existing law 

the bill analysis attributes to McDonnell Douglas bears little 

resemblance to the test actually set out in McDonnell 

Douglas — as opposed to, for example, the meaningfully 

different Mt. Healthy burden-shifting framework. (See p. 13, 

ante.) Since the bill analysis does not acknowledge any 

understanding of the three-part McDonnell Douglas test as it 

had been applied in section 1102.5 retaliation cases, it is difficult 

to discern any legislative intent to either displace or preserve it. 

Fortunately, however, better evidence of the Legislature’s intent 

on that point exists in the form of the text of the statute it 

ultimately enacted — which, as we have already explained, is 

best read as allowing plaintiffs to establish liability under 

section 1102.5 without requiring reliance on McDonnell 

Douglas.

PPG also contends that even if section 1102.6 rather than 

McDonnell Douglas supplies the governing framework for the 

presentation of evidence at trial, McDonnell Douglas should 

govern at summary judgment for purposes of determining 

whether the plaintiff can meet the statutorily assigned burden 

of demonstrating that retaliation was a contributing factor in an 

adverse employment decision.

We reject the contention. Nothing in the text of section 

1102.6 supports this bifurcated approach, where one standard 

would govern section 1102.5 cases on summary judgment and a 

different standard would govern cases at trial. As we have 

already explained, PPG’s argument is simply incompatible with 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

18

the contributing factor standard set out in section 1102.6. That 

is no less true at summary judgment than at trial. Were we to 

adopt PPG’s bifurcated approach, employee plaintiffs might 

never have the opportunity to show at trial that retaliation was 

a contributing factor in an adverse action, because they would 

have first been required to show at summary judgment that 

retaliation was, in effect, the only factor. The purpose of 

summary judgment is not to weed out cases that might prove 

meritorious at trial. For that reason, the parties’ burdens of 

proof at summary judgment generally depend on their burdens 

of proof at trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 851 & fn. 15.) This case presents no reason to 

depart from that rule. 

PPG expresses concern that applying section 1102.6’s 

contributing factor standard at summary judgment instead of 

McDonnell Douglas will allow too many “meritless claims” to go 

to trial. To the extent PPG assumes that employers will not be 

able to raise a same-decision defense on summary judgment, 

that assumption is incorrect. (See, e.g., Texas v. Lesage (1999) 

528 U.S. 18, 20–21 [upholding a grant of summary judgment 

based on the same-decision defense].) In any event, PPG’s 

concern about more cases going to trial is not a sufficient reason 

to march every case through the McDonnell Douglas three-step 

solely for purposes of summary judgment. To the extent PPG is 

concerned that the existing framework sets the plaintiff’s bar 

too low by requiring only a showing that retaliation was a 

contributing factor in an adverse decision, PPG’s remedy lies 
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

19

with the Legislature that selected this standard, not with this 

court.2

IV.

We answer the Ninth Circuit’s question as follows: 

Section 1102.6 provides the governing framework for the 

presentation and evaluation of whistleblower retaliation claims 

brought under section 1102.5. First, it places the burden on the 

plaintiff to establish, by a preponderance of the evidence, that 

retaliation for an employee’s protected activities was a 

contributing factor in a contested employment action. The 

plaintiff need not satisfy McDonnell Douglas in order to 

discharge this burden. Once the plaintiff has made the required 

showing, the burden shifts to the employer to demonstrate, by 

clear and convincing evidence, that it would have taken the 

action in question for legitimate, independent reasons even had 

the plaintiff not engaged in protected activity.

2 We disapprove Hager v. County of Los Angeles, supra, 228 

Cal.App.4th 1538, 1540, Mokler v. County of Orange, supra, 157 

Cal.App.4th 121, 138, and Patten v. Grant Joint Union High 

School Dist., supra, 134 Cal.App.4th 1378, 1384 to the extent 

they are inconsistent with this opinion.
LAWSON v. PPG ARCHITECTURAL FINISHES, INC.

Opinion of the Court by Kruger, J.

20

 KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

MILLER, J.*

* Associate Justice of the Court of Appeal, Fourth Appellate 

District, Division Two, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Lawson v. PPG Architectural Finishes, Inc.

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding XX on request by 9th Circuit (Cal. Rules of 

Court, rule 8.548)

Review Granted (published) 

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________ 

Opinion No. S266001

Date Filed: January 27, 2022

__________________________________________________________ 

Court: 

County: 

Judge: 

__________________________________________________________ 

Counsel:

HKM Employment Attorneys, Patrick Leo McGuigan, Chaka 

Okadigbo; Obermayer Rebmann Maxwell & Hippel, Bruce C. Fox and 

Andrew J. Horowitz for Plaintiff and Appellant.

Littler Mendelson, Michael W. M. Manoukian, Theodore A. Schroeder, 

Robert W. Pritchard, Everett Clifton Martin; Hopkins & Carley and 

Karin M. Cogbill for Defendant and Respondent.

Nicholas Patrick Seitz, Cristina Schrum-Herrera, David L. Bell, 

Dorothy A. Chang and Phoebe Liu for Department of Industrial 

Relations, Division of Labor Standards Enforcement as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Chaka Okadigbo

HKM Employment Attorneys LLP

700 South Flower Street, 10th Floor, #1067

Los Angeles, CA 90017

(213) 431-6209

Robert W. Pritchard

Littler Mendelson, P.C.

625 Liberty Avenue, 26th Floor

Pittsburgh, PA 15222

(412) 201-7628