Monday, December 22, 2025
Page 3
Ninth Circuit:
Whistleblower Retaliation Suit Yields Penalties, Not Damages
By a MetNews Staff Writer
A District Court judge erred is dismisssing an action for whistleblower retaliation as time-barred, the Ninth U.S. Circuit Court of Appeals held Friday, anticipating that that if confronted with the issue, the California Supreme Court would decide that the onr-year statute of limitation applicable to tort damages does not apply.
The memorandum opinion reverses the determination by Judge R. Gary Klausner of the Central District of California that former Walmart stocking clerk Ryan Lokker had lost his claim for retaliation under California Labor Code §1102.5 by not filing suit within nine year of the termination of his employment.
However, it affirms a partial summary judgment for Walmart related to Lokkart’s claim for punitive damnages in connection with the wrongful termination, saying that there was no evidence that the manager of the Walmart store in San Bernardino County’s Yucca Valley had knowledge of the then-employee’s criticisms of food being left out that should have been refrigerated or frozen.
Unaffected by Friday’s decision is a jury’s award to Lokkart of $300,000 in noneconomic damages and $11,900 in economic damages. Walmart had voluntarily dismissed its cross appeal.
Klaisner’s Error
Addressing Lokker’s claim of whistleblower retaliation, a two-member panel (comprised of Circuit Judges Ryan D. Nelson and Lawrence VanDyke) said Klausner erred in construing any moneys due under §1102.5 to be damages. Subd. (f)(1) provides:
“In addition to other remedies available, an employer is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section to be awarded to the employee who was retaliated against.”
The judges said:
“Under California law, various claims for relief based in a single statute may be governed by different statutes of limitations when those claims are ‘distinct’ and aim to redress different harms….Since California courts have described compensatory damages as distinct from civil penalties, subject to distinct statutes of limitations, we apply that rule here….”
Reaction to Scandals
They continued:
“Nothing in the text of § 1102.5 or the history of its passage supports finding that the California Legislature displaced this general rule. The California Legislature added a provision allowing for the recovery of civil penalties as part of an effort ‘to include several additional employee protections’ in the wake of public scandals involving Enron and WorldCom….Accordingly, the district court erred in holding that claims for compensatory damages under § 1102.5 are subject to a one-year statute of limitations.”
The case is Lokker v. Walmart, Inc., 24-3445.
The matter was decided by two judges in light of the Dec. 7 death of Senior Circuit Judge Sandra S. Ikuta, who had been assigned to the panel. Ninth Circuit General Order 3.2(h) provides:
“If, after a matter is under submission to a three-judge panel, a judge becomes unavailable by reason of death, disability, recusal, or retirement from the Court, the remaining two judges may—if in agreement—-decide the matter as a quorum….”
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