Last week we posted David Coppedge Case: Something’s Happening. Now we know what it was, and it’s not the final order we were hoping for.
The court order we were wondering about hasn’t been posted in the archive maintained by our friends at the National Center for Science Education (NCSE), located here: NCSE’s Coppedge archive. Nevertheless, we’re informed that it was the judge’s granting Coppedge permission to file an additional brief. That brief has now been filed, and it’s at the NCSE archive, here: Plaintiff’s Supplemental Brief.
We don’t know if JPL-Caltech will bother responding to it. Whether they do or not, we assume this is the end of the post-trial activity, and maybe we’ll get the judge’s final ruling sometime this month. Anyway, for what it’s worth, we’ll give you a few excerpts from the newest Coppedge brief. It’s all about his argument that he was laid off in retaliation for having filed a discrimination suit earlier, and therefore the layoff was illegal.
Apparently there are two different standards the courts use for deciding if employment termination is discriminatory. The Coppedge brief begins by saying:
Cal. Gov’t Code Sec. 12940, subd.(h) makes it unlawful for an employer to retaliate against an employee who has opposed discriminatory practices or because the employee has filed a complaint, testified, or assisted in any proceeding related to such practices.
We found the California Government Code online, and you can see that section here: SECTION 12940-12951. It says, with our bold font:
12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
The Coppedge brief continues:
The court is faced with choosing among three retaliation standards to adopt in this case: (1) the “materiality” test; (2) the “deterrence” test (a.k.a. “material adversity” test); or (3) both.
The brief then discusses several cases, and argues that Coppedge should win under either test. Frankly, dear reader, we’re not going to wallow in that mess. That’s what the judge is paid to do.
There’s no doubt that Coppedge had sued JPL-Caltech, and later — in a large, budget-related downsizing — he was among those laid off. It seems to us that he’s got to prove that the layoff was in retaliation for his earlier suit. Has he done that? JPL-Caltech says his computer skills were obsolete, and he got laid off as part of the 40% downsizing of its Cassini mission workforce. We’re not aware that there was any evidence to the contrary.
Coppedge seems to argue that the totality of his experience leaves no doubt that his layoff was retaliation for his earlier suit — regardless of JPL’s reasons for the layoff. Were that true, it means that an employee who sues for being demoted — as Coppedge originally did — becomes virtually “untouchable,” and from that moment on he can’t ever be laid off — regardless of the employer’s reasons for the layoff. Is that the law in California? Coppedge thinks it is, and we’ll soon find out.
If the judge rules in favor of Coppedge, then an employer in California is in a tough spot. If an employee deserves some kind of discipline — as seems to have been the situation leading to Coppedge’s earlier demotion — they have no choice but to fire him on the spot. If they merely take some kind of administrative action and the employee protests, then they’ll never be able to let him go later. Under the proposed “Coppedge rule,” any layoff for any reason is automatically deemed to be retaliation for the earlier protest.
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