• Dean Royer

Discrimination cases and free speech

Are discrimination cases that challenge peer review decisions subject to dismissal based on free speech rights?

The Second District Court of Appeal recently decided whether a university faculty member’s discrimination case was based on protected tenure review communications. In Park v. Board of Trustees of the California State University (Cal. App. 2d Dist. Aug. 27, 2015) 2015 Cal. App. LEXIS 749, the appellate court reviewed a trial court’s denial of CSU’s request to dismiss the case based on its free speech rights.

Dr. Park, whose nation of origin is Korea, was denied tenure for the alleged reason that he did not have sufficient “professional achievement” such as publications. Dr. Park filed a grievance, which was denied. He then sued CSU for national origin discrimination and failure to prevent discrimination.

CSU sought to have the case immediately dismissed based on California’s “anti-SLAPP” law. This law allows for dismissal of cases based on the defendant’s right of petition or free speech in connection with a public issue where the plaintiff cannot show a probability of prevailing.

The trial court denied CSU’s request. It found that Dr. Park’s case was not based on CSU’s communications when denying him tenure and his grievance, but rather the act of denying him tenure based on national origin.

On appeal, the court reviewed the anti-SLAPP law standards. The first step is a determination of whether the plaintiff’s case is based on the defendant’s “protected activity.” Such activity includes statements made in connection with an official proceeding. The appellate court determined that the tenure review proceedings qualified as this type of activity because CSU is authorized by California law to adopt rules for tenure review.

Next, the court of appeal considered whether Dr. Park’s claims arise out of the protected activity. To make this determination, the court identified the alleged wrongful and injury-producing conduct that provides the foundation for Dr. Park’s case: CSU’s decision to deny him tenure. This conduct, as alleged in Dr. Park’s complaint, was based entirely on evaluations of Dr. Park during the tenure review process. Although Dr. Park’s claims are that CSU’s motive was discriminatory, it is CSU’s alleged conduct that is relevant.

As a result, the court of appeal concluded that Dr. Park’s case was based on CSU’s protected tenure review communications. It returned the case to the trial court to determine whether Dr. Park can show a probability of prevailing.

This decision continues a recent trend toward making employment discrimination cases that challenge peer-review decisions more difficult to bring.

#Discrimination #Peerreview

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