Wallen Lawson v. Ppg Architectural Finishes, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALLEN LAWSON,
Plaintiff-Appellant,
v.
PPG ARCHITECTURAL
FINISHES, INC.,
Defendant-Appellee.
No. 19-55802
D.C. No.
8:18-cv-00705-AG-JPR
ORDER CERTIFYING
QUESTION TO THE
SUPREME COURT OF
CALIFORNIA
Filed December 7, 2020
Before: Kermit V. Lipez,
*
Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.
Order
*
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.

LAWSON V. PPG ARCHITECTURAL FINISHES2
SUMMARY
**
Certification to State Supreme Court
The panel certified the following question to the Supreme
Court of California:
Does the evidentiary standard set forth in
section 1102.6 of the California Labor Code
replace the McDonnell Douglas test as the
relevant evidentiary standard for retaliation
claims brought pursuant to section 1102.5 of
California’s Labor Code?
ORDER
Before this panel of the United States Court of Appeals
for the Ninth Circuit is an appeal concerning the appropriate
evidentiary standard for California Labor Code section
1102.5 retaliation claims. As we are aware of no controlling
state precedent that resolves this issue, we respectfully ask
the Supreme Court of California to exercise its discretion to
accept and decide the certified question below.
I. Question Certified
Pursuant to Rule 8.548 of the California Rules of Court,
we request that the Supreme Court of California answer the
following question: Does the evidentiary standard set forth
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

LAWSON V. PPG ARCHITECTURAL FINISHES3
in section 1102.6 of the California Labor Code replace the
McDonnell Douglas test as the relevant evidentiary standard
for retaliation claims brought pursuant to section 1102.5 of
California’s Labor Code? We understand that the Court may
reformulate our question, and we agree to accept and follow
the Court’s decision. Cal. R. Ct. 8.548(b)(2), (f)(5).
II. Background
A. Facts
1
PPG Architectural Finishes, Inc. (“PPG”) manufactures
paints, stains, caulks and other products for homeowners and
professionals, and sells its products to retailers such as The
Home Depot, Menards, and Lowe’s. Wallen Lawson began
working as a Territory Manager (“TM”) for PPG in June
2015. Lawson’s duties as a TM included, among other
things, merchandising PPG products in Lowe’s Home
Improvement stores and ensuring that PPG’s displays were
stocked and in good condition. Lawson reported directly to
Clarence Moore, a Regional Sales Manager (“RSM”), who
oversaw approximately a dozen TMs, including Lawson.
Lawson’s performance as a TM was measured based on
two metrics: (1) his ability to meet monthly sales goals, and
(2) the score he received on “Market Walks.” Market Walks
involved the RSMs and TMs “visit[ing] several stores within
the TM’s assigned territory and walk[ing] through the store
to ensure TMs were building relationships with Lowe’s
1
Because we are reviewing a grant of summary judgment, the
evidence is presented as we must view it: in the light most favorable to
Lawson, the nonmoving party. See L.F. v. Lake Wash. Sch. Dist. #414,
947 F.3d 621, 625 (9th Cir. 2020).

LAWSON V. PPG ARCHITECTURAL FINISHES4
employees, PPG product is properly placed throughout the
store, and TMs are training and helping customers.” Lawson
v. PPG Architectural Finishes, Inc., No. SACV 18-00705 AG
(JPRx), 2019 WL 3308827, at *1 (C.D. Cal. June 21, 2019)
(alterations adopted) (internal quotation marks omitted)
(unpublished). TMs were then “scored on a five-category
spectrum ranging from . . . ‘unsuccessful’ to ‘exceptional’”
based on their performance during these Market Walks. Id.
PPG management conducted several Market Walks with
Lawson between October 2016 and August 2017. On the first
Market Walk—the only Market Walk not conducted with
Moore—Lawson received an “exceptional” score. On the
second, Lawson received a “marginal” score. Lawson’s
scores dropped to “unsuccessful” on his third and fourth
Market Walks.
2
In April 2017, around the time of Lawson’s fourth Market
Walk, Moore instructed the TMs under his supervision to
intentionally “mis-tint”
3
PPG products at Lowe’s stores. This
fraudulent practice allowed PPG to avoid buying back the
mis-tinted product from Lowe’s, and forced Lowe’s to sell
2
Lawson also missed his monthly sales goals eight times in the year
leading up to March 2017.
3
As Lawson explains in his opening brief, paint is generally “shipped
from the factory as a neutral base formula without pigment, and then
tinted to the customer’s requested color at the Lowe’s paint desk using a
machine that mixes pigments into the base formula.” Though “Lowe’s
associates typically operate the tinting machine, [TMs] would frequently
cover the paint desk while the Lowe’s associates were at lunch or on
break,” allowing the TMs the opportunity to intentionally mis-tint paint.
If paint was mis-tinted, it was considered sold to Lowe’s, presenting PPG
with an opportunity to fraudulently remove slow-selling product from its
inventory.

LAWSON V. PPG ARCHITECTURAL FINISHES5
the product at a deep discount. Lawson fundamentally
disagreed with this practice, and submitted an anonymous
report to PPG’s web-based ethics reporting portal on April
21, 2017, which detailed Moore’s directive. Nothing
developed from this first report. But soon thereafter, Lawson
spoke with Moore over the phone regarding the mis-tinting
directive, telling Moore that there was “no way” he was going
to intentionally mis-tint the product.
That same month, April 2017, Lawson was placed on a
Performance Improvement Plan (“PIP”), which required,
among other things, a “successful” score on a Market Walk
by the time the PIP expired in July 2017. Before the July
Market Walk took place, Lawson filed a second anonymous
complaint regarding the mis-tinting directives on June 15,
2017. This complaint led to an investigation; after the
investigation, PPG instructed Moore to tell his TMs (via text
message) to immediately stop mis-tinting PPG products.
However, during and after this investigation, Moore
continued to supervise Lawson and oversee Lawson’s Market
Walks.
Lawson received only a “marginal” score on his July 13
Market Walk. Despite this subpar score, Lawson’s PIP was
extended by thirty days, and he was given another shot at
earning a “successful” score. But Lawson fared even worse
on his August Market Walk, resulting in both Moore and
Moore’s supervisor (Divisional Manager Sean Kacsir)
recommending termination. Lawson was subsequently
terminated on September 6, 2017.
Because he (1) expressed his disapproval of the mis-
tinting directive leading to PPG’s investigation of Moore and
(2) confronted Moore about the directive, Lawson believes

LAWSON V. PPG ARCHITECTURAL FINISHES6
that Moore knew he was the one who reported Moore’s
misconduct. Lawson also believes this knowledge influenced
the poor scores he received from Moore in his July and
August Market Walks and motivated Moore’s
recommendation that Lawson be terminated.
B. Procedural History
Based on these beliefs, Lawson brought claims for
(1) retaliation in violation of California Labor Code section
1102.5, and (2) wrongful termination in violation of public
policy.
4
Id. The district court granted PPG’s motion for
summary judgment on both claims. See id. In dismissing the
claims, the court applied the McDonnell Douglas “burden-
shifting” framework
5
to Lawson’s section 1102.5 retaliation
claim. Id. at *3–5. This test requires the plaintiff to first
establish, by a preponderance of the evidence, a prima facie
case of retaliation. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). If the plaintiff can do so, the
defendant must carry a burden of production “to articulate
some legitimate, nondiscriminatory reason for the [adverse
4
Lawson brought four additional claims, all of which were dismissed
on summary judgment. However, Lawson does not appeal these other
claims.
5
It should be noted that, under McDonnell Douglas, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
However, McDonnell Douglas is nevertheless commonly referenced as a
“burden shifting” framework because, at step two, the defendant bears
“the burden of ‘producing evidence’ that the adverse employment actions
were taken ‘for a legitimate, nondiscriminatory reason.’” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S.
at 254).

LAWSON V. PPG ARCHITECTURAL FINISHES7
employment action].” Id. If the defendant can carry its
burden of production, the plaintiff is “afforded a fair
opportunity to show that [the employer]’s stated reason for
[the employee]’s rejection [or dismissal] was in fact pretext.”
Id. at 804.
Applying this burden-shifting framework to Lawson’s
section 1102.5 claim, the district court first found that
Lawson had made out a prima facie case for retaliation under
section 1102.5. Lawson, 2019 WL 3308827, at *3–4. The
court then found that PPG bore its burden to produce
evidence of a legitimate, nondiscriminatory reason for
Lawson’s termination. The court found that PPG had done so
with its evidence that Lawson was fired for failing to meet the
performance expectations set forth in his PIP. Id. at *4.
But the district court concluded that Lawson failed to
carry his burden “to raise triable issues of fact regarding
pretext.” Id. In so doing, the court found, among other
things, that: (1) no reasonable jury would find Lawson’s
decline in Market Walk scores attributable to retaliatory
intent, and (2) PPG’s reasons for firing Lawson did not shift
over time. Id. at *4–5. On these bases, the district court
granted PPG’s motion for summary judgment on the first
claim. Id. at *5. Then, finding that Lawson’s claim for
wrongful termination in violation of public policy “depends
entirely on the sufficiency of [his] retaliation claim . . . in the
previous section,” the district court also granted summary
judgment on this second claim. Id. at *5.
On appeal, Lawson argues that the district court erred in
applying the McDonnell Douglas test to his section 1102.5
retaliation claim. Instead, he argues that the district court
should have applied the materially different evidentiary

LAWSON V. PPG ARCHITECTURAL FINISHES8
standard set forth in section 1102.6. Having considered the
parties’ briefs and arguments, we are convinced that
Lawson’s claims turn on the application of the proper
evidentiary standard. Because the Supreme Court of
California has provided no clear guidance on this specific
question,
6
we request clarification regarding the applicable
evidentiary standard for Lawson’s section 1102.5 retaliation
claim.
III. Explanation of Certification
The sole question for the Supreme Court of California is
this: what is the appropriate evidentiary standard for
Lawson’s section 1102.5 retaliation claims? The district
court applied the McDonnell Douglas test; Lawson argues
that the standard set forth in section 1102.6 should apply.
However, before analyzing the important distinctions
between the two standards, it is important to (1) discuss the
basis for the district court’s application of the McDonnell
Douglas test, and (2) highlight the confusion among both
state and federal courts regarding which standard applies to
section 1102.5 retaliation claims.
6
The Supreme Court of California has cited section 1102.6 in only
one case. See Harris v City of Santa Monica, 294 P.3d 49, 71 (Cal. 2013).
Though the language of that case indicated that the section 1102.6
standard applies to section 1102.5 retaliation claims, see id., it did not
thoroughly address the question at issue here—whether section 1102.6
replaced the McDonnell Douglas test for section 1102.5 claims.

LAWSON V. PPG ARCHITECTURAL FINISHES9
A.History of courts’ inconsistent application of
McDonnell Douglas to section 1102.5 retaliation
claims.
The McDonnell Douglas test originated in the context of
a Title VII case, where a plaintiff was required to show that
he was denied employment “because of his involvement in
civil rights activities” or “because of his race and color.”
411 U.S. at 801. McDonnell Douglas’s burden-shifting
framework was subsequently adopted by California state
courts because they found Title VII claims analogous to
California’s “retaliatory employment termination” claims and
thought federal case law provided helpful guidance for the
adjudication of these state-law claims. See Flait v. N. Am.
Watch Corp., 4 Cal. Rptr. 2d 522, 528 (Ct. App. 1992)
(noting that “[l]awsuits claiming retaliatory employment
termination . . . are analogous to federal Title VII claims, and
are evaluated under federal law interpreting Title VII cases”);
see also Clark v. Claremont Univ. Ctr., 8 Cal. Rptr. 2d 151,
164 (Ct. App. 1992) (“We hold the federal McDonnell
Douglas test provides the applicable standard of proof in this
case. Other published decisions under [California’s Fair
Employment and Housing Act] have repeatedly referred to
federal decisions under [T]itle VII for guidance, under the
theory that our ‘courts, while not bound, cannot overlook the
applicable federal law in a significant and emerging area,
such as [employment] discrimination.’” (third alteration in
original) (citing numerous California cases)). The district
court’s application of the McDonnell Douglas test in this case
is thus grounded in the California courts’ long-standing
application of McDonnell Douglas’s burden-shifting

LAWSON V. PPG ARCHITECTURAL FINISHES10
framework in the context of discrimination and retaliation
cases.
7
Lawson, 2019 WL 3308827, at *3.
However, the continued application of McDonnell
Douglas to section 1102.5 retaliation claims seems to ignore
a critical intervening statutory amendment. In 2003, the
California legislature passed Senate Bill 777, which
“establish[ed] the evidentiary burdens of the parties
participating in a civil action or administrative hearing
involving an alleged violation of” section 1102.5. 2003 Cal.
Legis. Serv. Ch. 484 (S.B. 777) (West). Specifically, and
among other changes not relevant here, the Bill added section
1102.6 to California’s Labor Code, which provides that:
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
7
Indeed, the district court in this case cited Ferretti v. Pfizer Inc., No.
11-CV-04486, 2013 WL 140088, at *10 (N.D.Cal. Jan. 10, 2013)
(unpublished) in support of its assertion that McDonnell Douglas provides
the applicable test for section 1102.5 claims. See Lawson, 2019 WL
3308827, at *3. Ferretti, in turn, cited Patten v. Grant Joint Union High
Sch. Dist., 37 Cal. Rptr. 3d 113 (Ct. App. 2005) to support this same
proposition. Ferretti, 2013 WL 140088 at *8. And Patten’s application
of the McDonnell Douglas test to section 1102.5 claims was based on
Flait, see Patten, 37 Cal. Rptr. 3d at 116, which (as noted above) applied
this burden-shifting framework, because “[l]awsuits claiming retaliatory
employment termination in violation of [California law] are analogous to
federal Title VII claims,” and should therefore be “evaluated under federal
law interpreting Title VII cases,” 4 Cal. Rptr. 2d at 528.

LAWSON V. PPG ARCHITECTURAL FINISHES11
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.
The California legislature thus expressly adopted a burden-
shifting evidentiary standard that seemingly replaced the
McDonnell Douglas test for section 1102.5 retaliation
claims.
8
The legislative history, though not dispositive,
reinforces this statutory history and the plain language of
section 1102.6. See S. Rules Comm. 2003–2004 Reg. Sess.,
Cal. Bill Analysis at Analysis, sec. 4 (Aug. 18, 2003) (noting
that the Bill was intended to replace the McDonnell Douglas
test for section 1102.5 claims with a standard that “requires
the employer to make [the necessary showing] by clear and
convincing evidence”).
9
8
PPG argues that Lawson’s “reliance on section 1102.6 is
overstated,” because this new standard only applies to “mixed-motive”
claims. Cf. Huynh v. Wal-Mart Assocs., Inc., No. 18-cv-01631-VC, 2020
WL 218522, at *1 (N.D. Cal. Jan, 14, 2020) (unpublished) (citing Judicial
Council Of California Civil Jury Instruction 4604 in support of the
assertion that section 1102.6 is to be applied “only in ‘mixed-motive’
cases”); Zelaya v. RMI Int’l, Inc., No. B251191, 2016 WL 1169405, at
*12 (Cal. Ct. App. March 24, 2016) (unpublished) (indicating that the
section 1102.6 standard only applies if there is a “mixed motive”
instruction). However, the plain language of the provision imposes no
such limitation. Nor does the statute’s context indicate such a limitation.
Rather, section 1102.6 would appear to apply to any and every
whistleblower claim brought under section 1102.5.
9
In full, the legislative history provided the following analysis:
“Existing law provides that, after a plaintiff shows by a preponderance of
evidence that the action taken by the employer is proscribed by the whistle
blower statute, the burden shifts to the employer to show . . . that the
alleged action would have occurred for legitimate, independent reasons

LAWSON V. PPG ARCHITECTURAL FINISHES12
However, despite the fact that section 1102.6 provides a
separate evidentiary standard that would seem to replace the
McDonnell Douglas test for section 1102.5 claims, three
published California appellate court decisions expressly
applied the McDonnell Douglas test to section 1102.5 claims
after the addition of section 1102.6. See Hager v. County of
Los Angeles, 176 Cal. Rptr. 3d 268, 269–70 (Ct. App. 2014);
Patten, 37 Cal. Rptr. 3d at 117 (applying the McDonnell
Douglas framework to a retaliation claim brought pursuant to
section 1102.5); Mokler v. County of Orange, 68 Cal. Rptr.
3d 568, 580–81 (Ct. App. 2007) (same).
10
Although neither
Hager, Patten, nor Mokler even cites, much less
even if the employee had not engaged in activities protected by the
whistleblower statute.” S. Rules Comm. 2003–2004 Reg. Sess., Cal. Bill
Analysis at Analysis, sec. 4 (Aug. 18, 2003) (citing McDonnell Douglas,
411 U.S. 792). The history then stated that “[t]his bill instead requires the
employer to make that showing by clear and convincing evidence.” Id.
(emphasis added).
10
PPG cites an additional published California case that it argues does
the same thing: Taswell v. Regents of the Univ. of Cal., 232 Cal. Rptr. 3d
628 (Ct. App. 2018). Taswell, however, does not necessarily fall into the
same bucket as Hager, Patten, and Mokler. That court never expressly
applied the McDonnell Douglas burden-shifting framework specifically
to the plaintiff’s 1102.5 claims and is therefore somewhat distinguishable
from these other cases.
Additionally, Lawson argues that two of these opinions—Patten and
Mokler—should be disregarded, because the claims were brought prior to
the statutory amendment and the addition of section 1102.6. Even
assuming Lawson’s observation is correct, these cases cannot so easily be
dismissed. California appellate courts have a general rule that they “apply
the law in effect at the time of review,” not the law in effect when the
underlying facts occurred or when the claims were brought. City of Grass
Valley v. Cohen, 226 Cal. Rptr. 3d 543, 553 (Ct. App. 2017). Thus, these
decisions—issued in 2005 and 2007—should have taken section 1102.6
into account.

LAWSON V. PPG ARCHITECTURAL FINISHES13
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.
Indeed, despite the analysis in Hager, Patten, and Mokler,
some California courts have applied the section 1102.6
evidentiary standard to section 1102.5 claims—including in
a recent published California appellate court decision, see
Willis v. City of Carlsbad, 262 Cal. Rptr. 3d 528, 549 n.13
(Ct. App. 2020).
11
Some federal courts have followed suit.
12

However, other courts—both state and federal—insist that the
McDonnell Douglas test continues to apply to section 1102.5
11
There are several other California cases that take the same
approach. See, e.g., Sanders v. County of Los Angeles, No. B267619,
2018 WL 1044239, at *7 n.4 (Cal. Ct. App. Feb. 26, 2018) (unpublished)
(noting that section 1102.6 provides the evidentiary standard for section
1102.5 retaliation claims); Tenpas v. Riverside Cmty. Coll. Dist., No.
D073007, 2018 WL 845916, at *7–16 (Cal. Ct. App. Feb. 13, 2018)
(unpublished) (applying the McDonnell Douglas test to retaliation claims
brought pursuant to California’s Fair Employment & Housing Act, but
section 1102.6’s “clear and convincing evidence standard” to section
1102.5 retaliation claims); Marcario v. County of Orange, No. G0419281,
2010 WL 3505157, *7 (Cal. Ct. App. Sept. 8, 2010) (unpublished) (stating
that “section 1102.6[ is] the statute specifying what must be proved in [a
section 1102.5] case”).
12
See, e.g., Monaghan v. Telecom Italia Sparkle of N. Am., Inc., No.
CV 13-00646 ABC (PLAx), 2013 WL 12171957, at *10 (C.D. Cal. July
22, 2013) (unpublished) (“Labor Code [section] 1102.6 sets forth the
burdens of proof for a [section] 1102.5 claim . . . .”); Kumar v. Alameda
Cty. Med. Ctr., No. 09-4312 EDL, 2011 WL 13244636, at *10–14 (N.D.
Cal. Mar. 25, 2011) (unpublished) (applying the McDonnell Douglas test
to retaliation claims brought pursuant to California’s Fair Employment &
Housing Act, but section 1102.6’s “clear and convincing evidence
standard” to section 1102.5 retaliation claims); Greer v. Lockheed Martin
Corp., 855 F. Supp. 2d 979, 988–89 (N.D. Cal. 2012) (applying the
section 1102.6 standard to a section 1102.5 retaliation claim).

LAWSON V. PPG ARCHITECTURAL FINISHES14
claims.
13
Others confusingly cite the two different standards
simultaneously.
14
And some argue that McDonnell Douglas
provides the relevant standard at the summary judgment
13
See, e.g., Nikmanesh v. Walmart Inc., 789 F. App’x 30, 31–32 (9th
Cir. 2019) (unpublished); Sorensen v. Nat’l R.R. Passenger Corp., 786 F.
App’x 652, 653 (9th Cir. 2019) (unpublished); Carter v. Nat’l R.R.
Passenger Corp., No. CV 18-9652 PSG (JCx), 2020 WL 2475085, at *8
(C.D. Cal. Jan. 24, 2020) (unpublished) (“California courts apply the
three-stage burden shifting test from McDonnell Douglas to retaliation
claims under both FEHA and Cal[ifornia] Lab[or] Code [section] 1102.5.”
(emphasis added)); Ruiz v. Paradigmworks Grp., Inc., No.
16-CV-2993-CAB-BGS, 2020 WL 133905, at *3 (S.D. Cal. Jan. 13, 2020)
(unpublished) (citing Taswell for the proposition that McDonnell Douglas
should be applied to section 1102.5 claims); Abdel v. Ikon Office Sols.,
Inc., No. C-05-1685 JCS, 2006 WL 2474331, at *10 n.5 (N.D. Cal.
Aug. 25. 2006) (unpublished) (citing Patten for support of the proposition
that McDonnell Douglas rather than section 1102.6 applies to section
1102.5 claims); Fanfassian v. City of L.A., No. B259019, 2016 WL
6777809, at *6 n.1 (Cal. Ct. App. Nov. 16 2016) (unpublished) (applying
McDonnell Douglas in the context of a section 1102.5 claim, and finding
that “[t]he clear-and-convincing standard set forth in . . . section 1102.6
is not applicable to the McDonnell–Douglas burden-shifting analysis”).
14
See, e.g., Canupp v.Children’s Receiving Home of Sacramento,
181 F. Supp. 3d 767, 789 (E.D. Cal. 2016) (stating that “[c]ourts analyzing
claims under [s]ection 1102.5 apply the burden[-]shifting analysis first set
forth . . . in McDonnell Douglas”); id. at 795 (citing the section 1102.6
standard as that which the jury must ultimately apply); Yau v. Saint
Francis Mem’l Hosp., No. 13-cv-02558-DMR, 2015 WL 3639521, at *12
(N.D. Cal. June 11, 2015) (unpublished) (citing both standards in its
discussion of what a plaintiff needs to do to prove a section 1102.5
retaliation claim); Hoeper v. City & County of San Francisco, Nos.
A151824, A152204, A152539, 2020 WL 740478, at *12 (Cal. Ct. App.
Feb. 13, 2020) (unpublished) (citing both standards in support of the
statement that “the plaintiff must prove the employer’s explanation is
merely a pretext for the alleged retaliation”); Mena v. Kern High Sch.
Dist., No. F073011, 2017 WL 2793856, at *2–3 (Cal. Ct. App. June 28,
2017) (unpublished).

LAWSON V. PPG ARCHITECTURAL FINISHES15
stage, while others insist that section 1102.6 should be
applied at that stage.
15
Thus, the basis for our question is this: California
statutory law seems to provide one standard, while some
California courts have provided (though inconsistently, as
discussed above) another and materially different standard.
B. Differences between the evidentiary standards set
forth in McDonnell Douglas and section 1102.6 are
material.
These disagreements over the appropriate standard are
material. Lawson asserts that the section 1102.6 evidentiary
standard “is entirely different from the McDonnell Douglas
analysis.” Lawson is right; there are several key differences
between the two standards.
First, unlike McDonnell Douglas, section 1102.6 sets
forth a burden-of-persuasion-shifting evidentiary standard.
As explained above, see discussion supra at pg. 6 and note 5,
the burden of persuasion under McDonnell Douglas never
truly shifts from the plaintiff. See Burdine, 450 U.S. at 253
15
Compare Salud v. Expediters Int’l, No. 18-cv-01677-YGR, 2020
WL 1820735, at *6 (N.D. Cal. Apr. 10, 2020) (unpublished) (stating that
McDonnnell Douglas’s burden-shifting framework, rather than the section
1102.6 standard, applies at the summary judgment stage of section 1102.5
claims), and Abdel, 2006 WL 2474331, at *10 n.5 (stating that section
1102.6 “does not alter the analysis of pretext at the summary judgment
stage in cases involving [section] 1102.5”), with Mango v. City of
Maywood, No. CV 11-5641-GW(FFMx), 2012 WL 5906665, at *16 n.13
(C.D. Cal. Oct. 5, 2012) (unpublished) (stating that section 1102.6 sets
forth the standard that should be applied to section 1102.5 claims on
summary judgment).

LAWSON V. PPG ARCHITECTURAL FINISHES16
(“The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.”). The defendant’s
only burden (at step two of the analysis) is that of production;
it must merely “produc[e] evidence that the plaintiff was
rejected, or someone else was preferred, for a legitimate,
nondiscriminatory reason.” Id. at 254. Thus, under
McDonnell Douglas, “[t]he defendant need not persuade the
court that it was actually motivated by the proffered reasons.”
Id.
However, under section 1102.6, once the plaintiff has
carried his initial burden to show that activity protected by
section 1102.5 “was a contributing factor in the alleged
prohibited action,” the burden of persuasion shifts from the
plaintiff to the defendant “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 [s]ection
1102.5.” Cal. Lab. Code § 1102.6. Section 1102.6 therefore
forces the defendant to introduce evidence sufficient to
persuade the trier of fact that the employment action was
indeed lawful. See id. Additionally, unlike McDonnell
Douglas, the plaintiff has no burden to show pretext under
section 1102.6; once he has made his initial showing, the
burden of persuasion stays with the defendant. Id.
A second difference between the two standards is that the
defendant’s burden under section 1102.6 to produce “clear
and convincing evidence” is much heavier than the burden of
production required under McDonnell Douglas. The clear
and convincing evidence standard “requires ‘an abiding
conviction that the truth of the factual contentions’ at issue is
‘highly probable.’” Mondaca-Vega v. Lynch, 808 F.3d 413,

LAWSON V. PPG ARCHITECTURAL FINISHES17
422 (9th Cir. 2015) (en banc) (alteration adopted) (quoting
Colorado v. New Mexico, 467 U.S. 310, 316 (1984)). This is
a far cry from the burden of production required by
McDonnell Douglas, where the defendant “need only produce
admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision had not
been motivated by discriminatory animus.” Burdine,
450 U.S. at 257.
Finally, and aside from the plain differences between
these frameworks, subjecting defendants in cases involving
section 1102.5 retaliation claims to the lower McDonnell
Douglas standard does some damage to workers’ rights. As
we have observed in another context, “standards of proof
serve a symbolic function.” Mondaca-Vega, 808 F.3d at 422.
And the California legislature’s decision to apply a
heightened evidentiary standard—such as clear and
convincing evidence—to section 1102.5 retaliation claims
indicates that there are “‘particularly important interests’ . . .
at stake.” Id. (quoting California ex rel. Cooper v. Mitchell
Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981)). Thus,
subjecting section 1102.5 retaliation claim defendants to
McDonnell Douglas’s lesser evidentiary standard would
subvert the California legislature’s decision to afford
plaintiffs bringing these claims heightened protection.
Cf. Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,
157–58 (3d Cir. 2013) (contrasting the two standards and
finding that the clear and convincing evidence standard “is
much more protective of plaintiff–employees than the
McDonnell Douglas framework”).

LAWSON V. PPG ARCHITECTURAL FINISHES18
For these reasons (and though we do not reach or attempt
to resolve the merits under either standard here
16
), while the
district court held that Lawson’s claims failed under the
McDonnell Douglas test, it seems reasonably clear that
Lawson would survive summary judgment under section
1102.6. Thus, the decision of which standard ought to be
applied is an important, outcome-determinative one.
***
In conclusion, 17 years after the passage of section
1102.6, neither federal nor state courts can agree on the
correct evidentiary standard for section 1102.5 retaliation
claims. Lawson asks this court to bring California law into
line with federal precedent consistent with the language of
section 1102.6. However, it is distinctly out of place for a
federal court to bring California law “into line,” especially
when we may request that the Supreme Court of California
resolve the issue. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 79 (1997) (“Speculation by a federal
court about the meaning of a state statute in the absence of
prior state court adjudication is particularly gratuitous when
the state courts stand willing to address questions of state law
16
If the Supreme Court of California does agree to take up this
question and concludes that the McDonnell Douglas test is the appropriate
evidentiary standard for section 1102.5 claims, we will need to determine
whether the district court properly applied it in this case. However, if the
Supreme Court of California determines that section 1102.6 provides the
correct evidentiary standard, the case will be remanded so that the district
court might have the first crack at the application of that standard to the
facts of this case. See United States v. Sellers, 906 F.3d 848, 855 (9th Cir.
2018) (“Because the district court applied an incorrect legal standard, we
follow our normal practice of remanding to the district court to determine
in the first instance whether” the correct standard has been met.).

LAWSON V. PPG ARCHITECTURAL FINISHES19
on certification from a federal court.” (alteration adopted)
(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
510 (1985) (O’Connor, J., concurring))). Because the
existence of seemingly conflicting evidentiary standards in
the context of section 1102.5 claims has caused no small
amount of confusion to both state and federal courts, and
because the answer to this question is necessary to dispose of
this appeal, see Adamson v. Port of Bellingham, 899 F.3d
1047, 1051 (9th Cir. 2018), we request that the Supreme
Court of California accept this certified question.
IV. Administrative Information
The names and addresses of counsel are listed in the
appendix at the end of this order. Cal. R. Ct. 8.548(b)(1). If
the Supreme Court of California accepts this request, the
Plaintiff–Appellant, Wallen Lawson, should be deemed the
petitioner.
The Clerk is hereby directed to transmit forthwith to the
Court the original and ten copies of this order as well as a
certificate of service to the parties. Cal. R. Ct. 8.548(d). The
clerk shall also transmit along with this request: ten copies of
the district court’s “Order Regarding Defendant’s Motion for
Summary Judgment” and ten copies of the briefs of the
parties in this appeal. The Clerk shall also provide additional
record material if so requested by the Supreme Court of
California. Cal. R. Ct. 8.548(c).
V. Stay of Proceedings and Withdrawal of Submission
In light of our decision to certify the issues set forth
above, the submission of this appeal is withdrawn, and all
further proceedings in this case before our court are stayed

LAWSON V. PPG ARCHITECTURAL FINISHES20
pending final action by the Supreme Court of California, save
for any petition for rehearing regarding this order. The Clerk
of this Court is directed to administratively close this docket,
pending further order. The parties shall notify the Clerk of
this court within fourteen days of the Supreme Court of
California’s acceptance or rejection of certification, and
again, if certification is accepted, within fourteen days of the
Supreme Court of California’s issuance of a decision.
IT IS SO ORDERED.

LAWSON V. PPG ARCHITECTURAL FINISHES21
Appendix
Counsel for Plaintiff-Appellants
Patrick Leo McGuigan
HKM Employment Attorneys LLP
600 Stewart Street
Suite # 901
Seattle, WA 98101
Bruce C. Fox
Obermayer Rebmann Maxwell & Hippel LLP
BNY Mellon Center
Suite # 5240
500 Grant Street
Pittsburgh, PA 15219
Andrew J. Horowitz
Obermayer Rebmann Maxwell & Hippel LLP
BNY Mellon Center
Suite # 5240
500 Grant Street
Pittsburgh, PA 15219
Counsel for Defendant-Appellee
Karin M. Cogbill
LITTLER MENDELSON, P.C.
50 W. San Fernando, 7th Floor
San Jose, CA 95113.2303

LAWSON V. PPG ARCHITECTURAL FINISHES22
Michael W. M. Manoukian
LITTLER MENDELSON, P.C.
50 W. San Fernando, 7th Floor
San Jose, CA 95113.2303
Theodore A Schroeder
LITTLER MENDELSON, P.C.
625 Liberty Avenue, 26th Floor
Pittsburgh, PA 15222