Police CarIn Hager v. County of Los Angeles, ___ Cal.App.4th ___  (August 19, 2014), the California Court of Appeal (Second Appellate District, Division Three) affirmed in part and reversed in part the judgment of the Los Angeles County Superior Court (Judge Chavez) after a jury trial in favor of plaintiff on his whistleblower retaliation lawsuit.

Plaintiff was a deputy sheriff for defendant employer, County of Los Angeles for fifteen years.  A few years before his employment was terminated plaintiff obtained information that led him to believe that a missing deputy sheriff had been murdered and that another deputy was involved in the murder and cover up.  After plaintiff informed a homicide detective within the department, he was ordered by an assistant sheriff to refrain from investigating “any deputy sheriff wrongdoing or [the murder victim’s] disappearance.”  Any such information was to be documented and passed on to internal investigative organizations within the department. Nevertheless, while on assignment as a liaison to a federal Drug Enforcement Agency task force, plaintiff prepared a couple of documents at a Department lieutenant’s request which summarized additional information he had learned regarding the missing deputy’s murder and suspected involvement of the other deputy.  Consequently, plaintiff was charged with conducting a personnel investigation and making false statements to his supervisors about the suspected deputy. At the conclusion of the investigation, a department Chief decided to terminate plaintiff’s employment.  While the termination was being processed, however, plaintiff applied for and received disability retirement.

Plaintiff then filed an action against defendant for whistleblower retaliation and prevailed at trial.  The jury awarded plaintiff $2,006,015 in lost earnings ($806,041 in backpay and $1,199,974 in future lost income), and $2,500,000 in non-economic damages. Defendant appealed, arguing (among other things) that the trial court erred in excluding defendant’s evidence at trial of plaintiff’s past misconduct as additional reasons to support its termination decision. Defendant also challenged the sufficiency of the evidence to support the damages award.

The appellate court affirmed in part and reversed in part, concluding first that the trial court did not err in excluding evidence of plaintiff’s past misconduct because defendant had not relied upon this evidence during the administrative proceedings to terminate plaintiff’s employment and, thus, was irrelevant and prejudicial. The court also concluded, however, that there was no substantial evidence to support the economic damages awarded to plaintiff.  First, back pay was not appropriate because plaintiff had retired due to disability and, therefore, “would have sustained the loss due to his disability even if [defendant] had not terminated him.”  Second, the award of front pay was too speculative, because it was “based upon what [plaintiff] would have earned as a deputy sheriff, a job he can longer perform.”