Thursday, April 9, 2015

But Causes of Action Don't Arise from Defenses

DeCambre v. Rady Children’s Hospital-San Diego, No. D063462 (D4d1, as modified Apr. 2, 2015)

Plaintiff is a doctor who got fired. She says it was racial harassment, discrimination, and retaliation. The hospital says it was the culmination of its peer review process. The hospital brought an anti-SLAPP motion, arguing that the peer review process is protected activity, and the trial court granted it. That was wrong. In the anti-SLAPP analysis, plaintiff’s claims “arise from” her own claims. Here, that was the harassment, discrimination, and retaliation, which are not protected activity. The peer review process, which unquestionably protected is, is only the hospital’s defense.  

On appeal, the court gets it half right. It says the peer review process is protected activity under Code of Civil Procedure § 425.16(e)(2) because the peer review has been considered an “official proceeding” by other courts. So far so good. And because the harassment occurred generally in the workplace, not during the peer review, the harassment claims don’t arise from it. Still good.

But then the court says that because the retaliation and discrimination took the form of an unlawful termination—a termination that the hospital claims was the culmination of the peer review—these claims “arise from” the peer review, and thus protected activity. The court essentially reasons that (1) there
s no claim without a termination; (2) so the termination itself must be a non-incidental aspect of the allegations; (3) the hospital showed that the termination was the result of the peer review, and thus, (4) plaintiff’s case must “arise from” the peer review.

If proof of an act protected under § 425.16(e) is an element of plaintiff’s claim, the claim should ordinarily satisfy the “arising from” test. The problem, however, is that in this case, plaintiff only needs to prove a termination, not a termination after a peer review, which is the only thing that arguably protects the hospital’s employment decisions under the anti-SLAPP statute. Unlike in cases where there is some expressive element inextricably intertwined with an employer’s hiring decisions—in which cases, the analysis gets troublesome and murky—there’s no basis to think that a hospital’s hiring decisions are, without more, conduct in furtherance of protected speech or petitioning.

It would be one thing if the plaintiff were actually challenging the results of the peer review. Or if her claim was based on something said during the peer review process. But that’s not her allegation. She claims, instead, that she was fired because of her race and gender, and because she complained about her mistreatment. Obviously, those are not grounds for dismissal that are within the ambit of the peer review process. The peer review was thus not the 
wrongful injury-producing conduct on which [plaintiffs] claims are based. See Scott v. Metabolife Int'l, Inc., 115 Cal. App. 4th 404, 417 (2004)

Instead, the role that the peer review plays in the context of the case is in the hospital’s defense. Peer review is the hospital’s explanation of why plaintiffs’ claims should fail. Employment discrimination cases use a framework—known as the McDonnell-Douglas framework after a 1973 Supreme Court case—to decide if there is enough evidence that plaintiff was actually terminated/demoted/not hired/etc. for an unlawful reason to get to trial. First, the plaintiff puts up a prima facie case of discrimination or retaliation. Then the defendant offers up its allegedly non-discriminatory reason for the adverse action. And then the employee tries to shoot holes in the employer’s explanation to show it is pretext. If plaintiff succeeds, the case goes to trial. If not, summary judgment.

So here, the peer review process is the hospital’s explanation of why its termination decision was not based on illegal grounds. Effectively, “we didn’t fire her because she was a black woman who complained about discrimination, we fired her because her colleagues thought she was a bad doctor and decided in peer review not to renew her contract.” Maybe that explanation is pretext, maybe not. But in any event, it does not seem like it should not satisfy the “arising from” standard, by any test, because that is not what plaintiffs’ causes of action are based on.

Anyway, the court then moves on to the second step of the analysis and holds that plaintiff didnt show a likelihood of success. In doing, it subjects plaintiff to a full-blown McDonnell Douglas analysis and finds that although plaintiff made a prima facie showing of discrimination and retaliation, she failed to come forward with evidence that the hospitals peer review explanation was pretextual. I’m not sure that is proper either. 

Generally, on prong two, plaintiff just needs to come forward with a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002). In the employment discrimination context, all that would seem to require is evidence sufficient to satisfy the first prong of McDonnell Douglas. See Texas Dept of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Requiring an employment discrimination plaintiff to beat back a full blown summary judgment analysis without the benefit of any discovery would appear to go beyond the anti-SLAPP statutes purpose to screen out claims that “lack[ ] even minimal merit[.] Navellier, 29 Cal. 4th at 89.

Reversed in part.

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