Anti-Slapp Motions As A Litigation Resource For Public Employers

Posted by David Urban on February 24, 2012

couthouse-flag.JPGPublic employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant. 

To understand why, let’s review what an anti-SLAPP motion is.  “SLAPP” stands for “strategic lawsuit against public participation.”  In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights.  The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests.  Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination.  By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it. 

California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time.  First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing.  The court will dismiss the case if plaintiff cannot make this early showing.  Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.  

If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute?  This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test).  The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  

Items (1) and (2) of this definition are of particular importance to public agencies.  They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest.  An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding.  For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety's investigation into the plaintiff's involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff. 

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Court Finds Unlawful Intent Is Missing From Jury Instructions On Retaliation, But Is It Missing From Instructions On Disability Discrimination, As Well?

Posted by Frances Rogers on February 14, 2012

Jury.jpgThe California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously because it would only be found in unusual circumstances such as those that were presented to the Court in Joaquin v. City of Los Angeles.  However, this also highlights the same fundamental flaw in another CACI instruction, particularly, disability discrimination. 

In Joaquin, a police officer was terminated following an evidentiary hearing by an independent review board which found that the officer made a knowing false accusation against his sergeant of sexual harassment. A superior court later ordered the officer reinstated finding that the review board’s decision was not supported by substantial evidence. 

The officer then filed a lawsuit alleging that the City terminated him in retaliation for making the complaint of sexual harassment, a violation of FEHA.  The jury was given the standard CACI No. 2505 instruction on retaliation which requires a verdict in favor of the plaintiff if: (1) the plaintiff made a complaint of harassment; (2) the plaintiff was subjected to an adverse employment action; (3) the complaint of harassment was a motivating reason for the adverse employment action; (4) plaintiff was harmed; and (5) the adverse employment action was a substantial factor in causing plaintiff’s harm.  

Because of this jury instruction, the City all but admitted the essential elements of the cause of action. As a result, the jury had no choice but to return a verdict in favor of the officer.  The City appealed and the Court of Appeal reversed, finding that the jury’s verdict was not supported by substantial evidence because there was no evidence that the City’s decision to terminate the  officer was intended to retaliate against him for making a complaint of harassment.  Rather, the independent board of review, after conducting an evidentiary hearing, had an honest, good faith belief that the officer lied about the allegations against his sergeant. This qualified as a legitimate, nonretaliatory reason for the officer’s termination, defeating the plaintiff’s cause of action. 

It was here the appellate court astutely noted that “retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.  However, the element is not identified in the CACI retaliation instruction.”    Thus, had the jury been asked whether the independent review board’s decision was motivated by the intent to retaliate against the officer for making a complaint of harassment, it most likely would have reached a contrary conclusion. 

While intent is an essential element of a cause of action for unlawful retaliation, it undoubtedly is also an essential element of a cause of action for discrimination.  In a thorough discussion of the relevance of discriminatory intent, one court stated, “[t]he defendant’s discriminatory mental state is crucial.”  For that reason, the CACI instruction on discrimination, particularly disability discrimination, is similarly flawed.  

Consider the following hypothetical:  Your employee is giving you reason to doubt her fitness for duty.  You send the employee for a fitness for duty exam. Your agency’s doctor finds the employee unable to perform the essential functions of the job because of a physical condition. After you exhaust the interactive process, you separate the employee because she is unable to perform the essential functions of the job with or without a reasonable accommodation and no other accommodation is feasible. Generally, under FEHA, if an employee has a physical or mental condition that limits a major life activity, including the ability to work in a single job for a single employer, the employee is considered to have a protected disability.  Thus, an employer in this hypothetical has seemingly terminated the employee because of the employee’s disability or because the employer perceived the employee as having a disability. 

The employee sues your agency for disability discrimination.  At trial, the employee pays for a doctor to opine that she is fit and can perform the essential functions of the job.  The jury is given the standard CACI instruction on disability discrimination: to establish a cause of action, plaintiff must prove: (1)  that the agency was an employer under FEHA; (2) that plaintiff was an employee of the agency; (3) that the employer knew or perceived  that the plaintiff had a “disability”; (4) that the plaintiff was able to perform the essential job duties with or without reasonable accommodation; (5) the employer discharged plaintiff; (6) that the plaintiff’s real or perceived “disability” was a motivating reason for the discharge; (7) that plaintiff was harmed; and (8) that the employer’s discharge was a substantial factor in causing plaintiff’s harm. 

Assuming the jury were to be more persuaded by the employee’s doctor-for-hire than your agency’s doctor, the jury will return a verdict against the agency regardless of the fact that your agency had an honest, good faith belief that the employee was unable to perform the essential functions of the job, an otherwise legitimate, nondiscriminatory reason for the discharge. 

However, as the court in Joaquin and numerous other courts in this state have noted, intent is an essential element of a cause of action for discrimination.  Moreover, if an employer’s adverse employment decision is based on reasons which, if true, preclude a finding of discrimination, the employer cannot be liable for discrimination, even if the employer’s honestly held belief is later shown to be wrong or unwise. While the objective soundness of an employer’s proffered reason supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.  That is why the CACI instruction on disability discrimination also presents a flaw in failing to include discriminatory intent as an element to the cause of action. 

The Joaquin decision came at no better time. The California Judicial Council recently issued an “Invitation to Comment” on new and revised CACI, including instructions on retaliation and disability discrimination.  Those wanting to comment on the new and revised jury instructions should submit their comments by March 2, 2012. 

Employee Personnel Records: Less Confidential Than You May Think

Posted by Guest Author on February 14, 2012

This guest post was authored by Peter J. Brown and Connie C. Almond 

Confidential-File.jpgIn Marken v. Santa Monica Unified School District, a School District investigated a complaint that a high school teacher had sexually harassed a 13 year old student.  The District determined that the teacher had violated the sexual harassment policy and issued him a reprimand.  The California Court of Appeal recently held that, upon request and despite the teacher’s objection, the District had to release the investigation report and reprimand.  

The California Public Records Act (CPRA) generally gives the public the right to inspect any public record.  But the CPRA exempts from disclosure “personnel, medical, or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy.”  The Court held that, although the teacher had a significant privacy interest over the requested documents, there is no unlawful invasion of privacy if the invasion is justified by a competing interest – strong public policy supporting transparency in government. 

The Court stated that a complaint of misconduct which is upheld by the agency or results in discipline must be disclosed.  If the complaint is not sustained, it is still subject to disclosure if it is of substantial nature and there is reasonable cause to believe the complaint is well founded.  Although the teacher did not occupy a high profile position, that factor is only relevant to determine when accusations of misconduct should be disclosed even if not well founded.  The Court ordered the agency to disclose the investigation report and the reprimand with the names and personal information of the student and the witnesses redacted. 

When Should an Agency Disclose Personnel Records 

Prior cases involving CPRA requests for personnel records involved more extreme cases where the complaint involved violence and sexual abuse, or a high profile public official.  But this case clarifies that if a charge of misconduct results in employee discipline, even minor discipline, the complaint must be disclosed upon request.  

If a complaint is not sustained, determining whether it is subject to disclosure is a bit more fact intensive.  The agency will have to assess the reliability of the information and whether there is sufficient support for the charge of misconduct, even if not enough for a sustained finding.  The agency should assess the source of the information, the availability and credibility of any corroborating evidence, the subject employee’s own statements, and each party’s likely motives. 

How Will This Case Impact Your Agency? 

This case, which followed two previous cases on the same topic, carves out a fairly significant exception to the CPRA which, for many, seems counterintuitive.  Most public employees would not expect any of their disciplinary documents or investigations into their alleged misconduct to show up in a newspaper.  This case requires that all public agencies carefully evaluate any requests for such documents and if necessary seek legal counsel on whether the documents requested must be released.  This case is not limited to school district employees.  With the exception of police officer personnel records which are subject to some additional protection under the law, this case and the cases which have preceded it could require your agency to release such documents.  

NLRB Issues Report Discussing Disciplining Employees For Facebook Posts

Posted by Morin Jacob on February 07, 2012

Employee Computer.JPGThere is no getting around it anymore: your employees are on Facebook.  Recent statistics from Facebook’s website state that it has over 800 million users.  It is time for all employers to know the rules surrounding employee use of social media. 

For purposes of the National Labor Relations Board (NLRB), social media is described as online technology tools that include text messages, audio, video, image, podcast, and other multimedia communications. 

Even the NLRB General Counsel is on the bandwagon to educate employers about those developments.  An initial report was issued by the NLRB in August 2011.  Then, on January 24, 2012, the NLRB General Counsel issued a second, updated report describing 14 cases submitted to the NLRB’s Division of Advice pertaining to social media policies and employee discipline issues based on social media postings by employees.  These discipline cases are the focus of this blog post.  It is worth noting that the NLRB is applicable only to private employers.  While PERB has not weighed in on this issue, it will quite likely follow the NLRB's lead.

The basic issue before the NLRB was whether employees, by their online postings, were engaged in protected activity, and thereby immune from disciplining by their employers based on the content of the posts.  The NLRB analyzed the topic of the posts to determine whether they involved workplace issues, and it analyzed whether the posts involved discussions among employees concerning their working conditions. The NLRB explained that an employee is not engaged in protected concerted activity where posts concern “personal gripes.”  The analysis is very fact-specific, so the slightest change of facts can change the outcome.

In some of the cases, the NLRB found that the employee had not engaged in protected activity, and thereby discipline was permissible.  For example, in one case an employee was reprimanded and then posted an expletive on Facebook about her employer. Two of her co-workers “liked” the post. The same day, the employee posted again, complaining that her employer did not appreciate its employees, but none of her co-workers responded to this second post.  The NLRB concluded that the employee had merely communicated her own frustration, was not intending to initiate collective action or a discussion about terms and conditions of employment, so her discipline was upheld.

In contrast, in one case the NLRB disapproved discipline where an employee was found to have invited group discussion about the terms and conditions of employment. The employee posted a series of items on Facebook, complaining that she had been reprimanded for getting involved in her co-workers’ issues with their employer.  Although the Facebook posts did not actually generate collective discussion, the NLRB said they were protected because they were an outgrowth of the employee’s discussions with her co-workers about the terms and conditions of their employment.  In a similar case, an employee criticized her manager in a Facebook post. The NLRB found the post to be protected activity because it involved the employee’s belief concerning her supervisor’s performance and was part of a broader Facebook conversation about management. The NLRB examined whether the employee’s comments were too disparaging to be protected, but found that, since they were made at home and while off-duty, they did not sufficiently disrupt the workplace so as to be unprotected.

The NLRB’s updated report provides employers some guidance as to how social media issues will be evaluated.  The cases discussed in the report demonstrate the fact-specific nature of the analysis the NLRB will conduct.  Like the technology itself, the case law governing social media issues is evolving.  Employers are encouraged to consult with legal counsel regarding their social media policies, and regarding whether discipline may be imposed based on employee online conduct.