• Dean Royer

Employer defense undermined

Employer defense to employment claims undermined.

On July 29, 2016, the Third District Court of Appeal issued a strongly worded decision denying an employer’s early dismissal of an employee’s case. In Nam v. Regents of the Univ. of Cal. (July 29, 2016, No. C074796) 2016 Cal. App. LEXIS 629, the issue was whether the employee’s case, as described in her initial filing (complaint), was based on the employer’s conduct protected by the federal or California constitutions.

In this case, Ms. Nam was a resident in the anesthesiology department at UC Davis Medical Center. She filed a complaint for retaliation, discrimination, sexual harassment, and wrongful termination. Ms. Nam alleged that she was sexually harassed and then retaliated against by her harasser, and also retaliated against because she complained about the clinical behavior of another doctor and serious patient care and safety issues. The Regents filed a special motion to strike (Code of Civil Procedure section 425.16), alleging that Ms. Nam’s complaint constituted a strategic lawsuit against public participation (SLAPP). In particular, the Regents contended that Ms. Nam’s complaint arose from written complaints made in connection with an investigation of and corrective action taken against Ms. Nam. The trial court denied the motion.

On appeal, the Nam court reviewed the “anti-SLAPP” law, which provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” The appellate court noted that the Legislature recognized that the law had as much potential for abuse as the litigation it was designed to thwart. The Nam court stated that “[t]his case illustrates the potential danger of abusing the anti-SLAPP law.”

The appellate court reviewed the standard for deciding whether a claim (cause of action) arises from protected activity: whether plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. The Regents asserted that Ms. Nam’s complaint was based on complaints it received about her performance, warnings it provided her, the results of ensuing investigations, and her written notice of termination. The Regents relied on the definition of protected conduct, which includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law….”

The court of appeal rejected this assertion. “By stitching together a number of disparate legal principles extracted from cases with very different facts, ignoring the fundamental question whether the lawsuit is indeed a SLAPP, and divorcing the analysis from the purpose of the anti-SLAPP law, defendant constructs an argument that, in effect, would subject most harassment and retaliation claims against public entities to an anti-SLAPP motion to strike.”

The Nam court acknowledged that prior decisions have established that the entire disciplinary process and grievance procedures constitute official proceedings authorized by law. The appellate court then reviewed two prior decisions, one by the Fourth District (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257) and the other by the Second District (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510), in which appellate courts concluded that the employer’s motive to discriminate was irrelevant in determining whether its conduct arose from protected activity. The Nam court criticized these decisions for relying on a California Supreme Court decision (Navellier v. Sletten (2002) 29 Cal.4th 82) that did not involve harassment, discrimination, or retaliation, and did not address the defendant’s subjective intent. In fact, the Navellier court determined that the plaintiff’s, not the defendant’s, intent was irrelevant. Accordingly, the Nam court found that it could not ignore the defendant’s alleged motive in a harassment, discrimination, or retaliation case:

“To conclude otherwise would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike. Any employer who initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits. Such a result is at odds with the purpose of the anti-SLAPP law, which was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award.”

The Nam court then reviewed Ms. Nam’s complaint and found that it made clear that the basis of her claim was the Regents’ retaliation. On this basis, it affirmed the trial court’s denial of the Regents’ motion.

The court of appeal concluded its opinion with a powerful admonition to employers considering filing anti-SLAPP motions in employment cases. “Moreover, we question whether plaintiff’s lawsuit for harassment and retaliation should be characterized as a SLAPP. The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance. As its name suggests, it is a strategic lawsuit designed to stifle dissent or public participation. It is hard to imagine that a resident’s complaint alleging retaliatory conduct was designed to, or could, stifle the University from investigating and disciplining doctors who endanger public health and safety. The underlying lawsuit may or may not have merit that can be tested by summary judgment, but it is quite a stretch to consider it a SLAPP merely because a public university commences an investigation.”

#AntiSLAPP #Discrimination #Harassment #Retaliation

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