25+ Years Defending CA Employers
At-Will Defense
Tameny / FEHA / Whistleblower
Free 15 min. Consultation
Does This Sound Like Your Situation?
Served with a wrongful termination complaint
Former employee alleging discrimination as the real reason for firing
Termination followed a complaint, claim, or report (retaliation theory)
Whistleblower allegation under § 1102.5 tied to the termination
Tameny public policy wrongful termination claim
Employee claims they were forced to resign (constructive discharge)
WARN or Cal-WARN claim tied to a reduction in force
Punitive damages sought based on the manner of termination
What's Actually at Stake
Labor Code § 2922 establishes the at-will doctrine. The exceptions (statutory, public policy, contract, implied covenant) are where almost every case lives.
Common-law tort under Tameny v. Atlantic Richfield (1980) allows tort damages, including punitive damages, when termination violates fundamental public policy.
For § 1102.5 whistleblower terminations, the employer carries a clear-and-convincing burden to prove the same decision would have been made anyway.
Uncapped punitive damages available on malice, oppression, or fraud findings. Plus emotional distress, back pay, front pay, and attorney’s fees on FEHA claims.
Wrongful termination is the umbrella that covers a wide range of underlying theories. The defense is rarely about the at-will doctrine in the abstract. It is about whether the documented, contemporaneous, legitimate non-discriminatory reason for the termination holds up against the plaintiff’s alternative theory. That contest is decided in the personnel file.
The Plaintiff’s Theory vs. What the File Shows
The Plaintiff’s Theory at Filing
Termination was pretext for discrimination, retaliation, or whistleblower reprisal.
Performance issues were fabricated or selectively enforced.
Decision-maker knew about protected activity or status.
Temporal proximity between protected activity and termination proves causation.
Comparators outside the protected class were treated more favorably.
What a Properly Built File Shows
Contemporaneous performance documentation predates protected activity.
Documented warnings, PIPs, and progressive discipline applied consistently.
Decision-maker awareness or non-awareness is established and dated.
Operational or business justification independent of the protected activity is on the record.
Comparator data shows consistent treatment across the workforce.
“Wrongful termination cases are not won by what the employer says about the firing. They are won by what the file already showed before the firing.”
How We Defend Wrongful Termination Cases
Reconstruct the Pre-Termination Record
We pull the personnel file, performance reviews, disciplinary notices, manager emails, and HR notes that pre-date the termination. The strength of the defense is set by what was documented before the decision-maker formed the intent to terminate.
Identify the Decision-Maker and Knowledge Trail
Causation in retaliation and whistleblower cases turns on what the decision-maker actually knew. We map the timeline of complaints, reports, or protected activity against the decision-maker’s awareness, which often defeats the proximity argument before discovery even opens.
Build the Comparator Defense
Disparate-treatment claims rise and fall on whether comparable employees outside the protected class were treated similarly. We build the comparator dataset (discipline records, performance metrics, terminations across the workforce) that defeats or significantly narrows the discrimination theory.
Apply the Right Burden Framework
FEHA discrimination claims use the McDonnell Douglas framework. § 1102.5 whistleblower claims shift to a clear-and-convincing burden under § 1102.6 (Lawson v. PPG, 2022). Tameny public policy claims have their own elements. We litigate each theory under the correct standard, not under the plaintiff’s framing.
Move for Summary Judgment Where the File Supports It
Wrongful termination cases that survive into the personnel-file record often die at summary judgment. We use the documented timeline, comparator data, and burden-shift framework to move for SJ on each theory of liability, and to position the remaining claims for trial or favourable settlement.
The personnel file is the case. The earlier we see it, the more we can do. Tell us about the termination. We’ll tell you what the file actually says.
Free 15-minute consult. We review the complaint, the personnel file, and the decision timeline, and lay out a defense plan.
Typical Wrongful Termination Patterns We Handle
Discrimination Termination
Pattern
Former employee alleges termination was motivated by age, race, disability, or another protected class, asserting documented performance issues were pretext.
Defense approach
McDonnell Douglas burden-shift framework. Reconstruct pre-protected-activity performance record. Build comparator dataset. Move for summary judgment on the pretext prong.
Whistleblower Termination
Pattern
Former employee reports alleged company misconduct and is terminated weeks or months later, asserting a § 1102.5 retaliatory discharge.
Defense approach
Apply § 1102.6 clear-and-convincing burden. Establish decision-maker non-awareness or pre-existing performance grounds. Defend on the “same decision” standard.
Constructive Discharge
Pattern
Employee resigns and then sues, claiming working conditions were so intolerable that a reasonable person would have felt compelled to quit.
Defense approach
Test the Turner v. Anheuser-Busch standard. Build record of accommodation requests, complaint channels offered, and intolerability gap. Often defeats the threshold element.
These are illustrative patterns of how the firm handles common wrongful termination scenarios. They are not specific case outcomes, and past results do not guarantee future outcomes.
Frequently Asked Questions
California is at-will. Doesn’t that mean we can terminate anyone for any reason?
At-will under Labor Code § 2922 is the default, but the exceptions cover most of the litigated terrain. Termination for a discriminatory reason violates FEHA. Termination for whistleblowing violates § 1102.5. Termination for engaging in legally protected activity violates public policy under Tameny. The at-will doctrine is the starting point, not the end of the analysis.
The employee resigned. Can we still be sued for wrongful termination?
Yes, through a constructive discharge theory. Under Turner v. Anheuser-Busch (1994), an employee who resigns can sue for wrongful termination if a reasonable person would have felt compelled to resign because of intolerable working conditions. The standard is high, but the theory is common. We defend the constructive discharge gap on the threshold element.
How long after the termination can a wrongful termination claim be filed?
It depends on the underlying theory. FEHA-based wrongful termination claims have a three-year window with the CRD (post AB 9) plus one year after the right-to-sue letter. Tameny public policy tort claims carry a two-year statute. § 1102.5 whistleblower claims have a three-year statute. Most plaintiffs file within twelve months of the termination, but the door stays open longer than employers often expect.
We did everything right but still got sued. What’s the defense playbook?
Most defensible terminations still get sued, because filing costs the plaintiff nothing and the upside is real. The playbook is the same regardless: pull the personnel file, reconstruct the pre-termination record, identify the decision-maker and knowledge trail, build the comparator dataset, apply the correct burden framework to each theory, and move for summary judgment where the record supports it.
Are punitive damages really on the table in wrongful termination cases?
Yes, on Tameny public policy claims and on FEHA claims where malice, oppression, or fraud can be shown under Civil Code § 3294. Punitive damages are uncapped under California law. They are usually the largest single component of a plaintiff verdict in serious wrongful termination cases, which is why the defense work on intent and decision-maker conduct is as important as the work on the underlying termination decision.
Wrongful Termination Claim Filed? Pull the File First.
California wrongful termination cases are decided by the documentation that existed before the termination, not by the arguments made after. We help California employers defend at-will terminations against FEHA, Tameny public policy, § 1102.5 whistleblower, and constructive discharge theories. The first move is reviewing the personnel file against the complaint, identifying the theory of liability the plaintiff is actually pursuing, and laying out the defense framework. Tell us what was filed. We’ll walk through it in a free 15-minute call.
Free. No obligation. Responses within 1 business hour. Employer-only representation, never employees.