On Aug. 5, 2010, plaintiff David Wabakken, a correctional officer for the California Department of Corrections and Rehabilitation (CDCR), received a disciplinary notice. As a result, he received a 5 percent reduction in salary for 36 months and was transferred to another Corrections Department facility. However, Wabakken then received a second disciplinary notice on April 6, 2011. As a result, he was demoted from Correctional Lieutenant to Correctional Officer. On April 22, 2011, Wabakken received a third notice of adverse action. This time, the disciplinary notice resulted in his dismissal from service with the CDCR on May 6, 2011. Wabakken appealed the disciplinary actions to the State Personnel Board. He raised multiple affirmative defenses to the charges, including that the alleged actions taken against him by the CDCR were in retaliation for testifying against the CDCR’s witnesses. He also filed a whistleblower retaliation complaint with the State Personnel Board, claiming the CDCR retaliated against him for making protected disclosures of its improper activities. The Board dismissed the whistleblower complaint, finding that Wabakken failed to show the disciplinary actions were in retaliation for his protected disclosures. During the pre-hearing conference regarding his appeal of the CDCR’s disciplinary actions, the CDCR attempted to bar Wabakken from presenting whistleblower retaliation as an affirmative defense. However, an administrative law judge denied the CDCR’s motion, finding that Wabakken was not precluded from asserting retaliation as an affirmative defense to the charges at the hearing. In the hearing on the merits, the administrative law judge found that the CDCR failed to establish the charges against Wabakken in the first and second disciplinary actions, but that it did prove some of the less serious charges of misconduct in the third action. However, the administrative law judge found that Wabakken’s dismissal was too harsh of a remedy. The administrative law judge did not address Wabakken’s whistleblower retaliation defense, but implicitly rejected it. The board adopted and accepted the administrative law judge’s decision. Following the board’s decision, Wabakken sued the California Department of Corrections and Rehabilitation and several correctional officers, including J.W. Morgan, George DiMaggio, Gary Grover, Keith Mayfield, Sharon Henry, Frank Chavez, Robert Ellis, David Grant, Mark Tigri, and Frank Martinez. Wabakken alleged that the defendants’ actions violated California’s Whistleblower Protection Act (California Government Code § 8547), violated 42 U.S.C. § 1983, and constituted intentional infliction of emotional distress. The CDCR’s counsel moved for summary judgment, arguing that Wabakken was collaterally estopped from re-litigating the whistleblower retaliation issue because it had already been litigated during the Board proceedings and had been decided against him. The CDCR’s counsel also argued that res judicata barred all of Wabakken’s claims. The district court ultimately granted CDCR’s counsel’s motion. Wabakken appealed the decision, and the Ninth Circuit reversed it. In reaching its conclusion that the State Personnel Board’s decision had no res judicata effect in a later civil action, the Ninth Circuit relied on State Bd. of Chiropractic Exam’rs v. Superior Court (2009), 45 Cal. 4th 963, 976. On remand, Chavez successfully moved for summary judgment on all causes of action. Henry, Ellis, Grant, Tigri, and Martinez were also let out of the case. The CDCR, DiMaggio, Grover, and Mayfield successfully moved for partial summary judgment on Wabakken’s claims of intentional infliction of emotional distress and violations of 42 U.S.C. § 1983. In addition, Morgan successfully moved for partial summary judgment on Wabakken’s claim of intentional infliction of emotional distress. Thus, the matter went to trial against the CDCR, DiMaggio, Grover, Mayfield, and Morgan on the claim of violations of the California Whistleblower Protection Act, California Government Code § 8547.6, and went to trial against Morgan on the additional claim of a violation of 42 U.S.C. § 1983. Wabakken claimed that between 2007 and 2011, while he worked as a camp commander at one of the CDCR’s fire camps, he disclosed to his supervisors several improper governmental activities, including the showing of a movie to inmates that violated department policy, attempts to collect overtime for hours not actually worked, the allowance of contraband into the camp, and the negligent supervision of inmates that resulted in the temporary escape of one inmate. Thus, claimed that he was acting as a whistleblower. However, Wabakken claimed that between August 2010 and April 2011, he received three disciplinary notices in retaliated for his whistleblower activities and that the third disciplinary notice ultimately resulted in his wrongful termination. Defense counsel argued that Wabakken did not make any protected disclosures and that, even if he did, the disclosures were not a substantial motivating reason for the three adverse actions to which Wabakken was subjected. In regard to the whistleblower claim, Morgan’s counsel argued that Morgan’s actions in reporting age and race discrimination, conveying inmate reports of misconduct, and participating in internal investigations by the CDCR’s Office of Internal Affairs and/or Office of Civil Rights was privileged under California Civil Code § 47. Counsel also argued that the statements Morgan made during a proceeding, or in preparation for a proceeding, including the State Personnel Board hearing process, was also considered privileged under California Civil Code § 47(b). As for the alleged 42 U.S.C. § 1983 claims, Morgan’s counsel argued that even if liability was found on the § 1983 retaliation cause of action, Morgan is entitled to qualified immunity because Morgan was not on notice that his actions would allegedly violate clearly established law. In addition, counsel argued that the generic principal that there was a constitutional right to be free from retaliation for protected speech was insufficient to preclude qualified immunity under recent Supreme Court authority., Wabakken claimed that he suffered emotional distress as a result of the retaliation against him. Thus, he sought recovery of $1.5 million in actual and emotional-distress damages.