Wednesday, September 16, 2015

From a Bum Seed, a Forest Grows

Park v. Bd. of Trustees of Cal. State Univ., No. B260047 (D2d4, as modified, Sept. 1, 2015)

This anti-SLAPP case goes awry along the same lines as last spring’s DeCambre decision. It assumes that, because statements made during a university’s faculty and tenure selection processes are protected as matters of academic freedom, a complaint alleging unlawful national origin discrimination in awarding tenure addresses “protected activity” under the anti-SLAPP statute.

The court correctly notes that various prior decisions have found that statements made during public institution peer review and tenure processes are statements in “official proceedings authorize by law” that qualify as “protected activity” under Code of Civil Procedure § 425.16(e)(2). No beef there. 

But what about the ultimate tenure decision? That’s not really a “written or oral statement” as much as it is a governmental decision. Which would suggest that, if anything, this case addresses the protected activity catchall in (e)(4), if that test is satisfied. But the court in a footnote asserts that this is a pure (e)(2) case and thus doesn’t address (e)(4). See Slip. Op. 10 n.7.

Further, like many recent cases, the court loses its footing in finding that plaintiff’s discrimination claim arises from the tenure processes. (It bears mention that plaintiff clearly did himself no favor by sprinkling his complaint and appellate briefs with various gripes about the process itself.) No tenure process, however, permits a decision based on national origin. A discriminatory failure to grant tenure is thus a claim that manifestly does not arise from the tenure process. A proper tenure process is, instead, the rationale the defendant gives to explain why it did not actually commit unlawful discrimination. It is a defense.

The upshot of these bad rulings is that in certain industries where work touches on first amendment activity—media, law, academia—cases alleging employment discrimination on the basis of race, gender, and other protected traits are being subjected to anti-SLAPP treatment. Given the statute’s requirement of a pre-discovery prove-up on the merits, that makes these cases—which turn on often circumstantial proof of intent—impossible to win. But there is no reason why a TV station’s sex discrimination should be immune from liability when an auto mechanic’s is not.

Given the number of these bad SLAPP/discrimination decisions that have been popping up of late, I dug down on where this line of cases went wrong. The fork in the road seems to be a case called Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 266 (2011), which involved an allegation of gender discrimination in the assignment of union legal aid lawyers. It held that plaintiff’s claim “arose from” the constitutionally protected assignment of lawyers and not the defendant’s allegedly unlawful discriminatory intent in making those assignments. In getting there, the court explained—in a oft-cited passage in cases gone astray—that the distinction between a claim “arising from” the protected nature of the employer’s business conduct and its “arising from” the unlawfulness of a discriminatory motive:
is untenable in the anti-SLAPP context because it is at odds with the language and purpose of the anti-SLAPP statute. The statute applies to claims ‘based on’ or ‘arising from’ statements or writings made in connection with protected speech or petitioning activities, regardless of any motive the defendant may have had in undertaking its activities, or the motive the plaintiff may be ascribing to the defendant’s activities.
Id. at 268–69.

Problem is, the California Supreme Court case that Tuszynska cites on the point—Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002)—does not actually support it. The cited portion of Navellier stands only for a much more limited rule—established on that same day in Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 58–68 (2002)—that the “arises from protected activity” standard in § 425.16(b) does not “depend[ ] on whether plaintiffs subjectively intended to chill [defendant’s] speech or petitioning.” (emphasis added). Navellier says nothing at all about—as Tuszynska describes it—“any motive the defendant may have had in undertaking its activities[.]” 

Of course, in a disparate treatment discrimination case like the one plaintiff alleged here, the defendant’s intent is the whole damn point! Dscriminatory intent is the sine qua non of such a claim. Absent that bad intent, any disparate treatment—in giving tenure, in retaining university doctors, in hiring weathermen, whatever—is ordinarily perfectly legal. So fairly considered, it is difficult to surmise how a disparate treatment claim could possibly arise from anything else. Far from being “irrelevant,” to the “arising from” test, accord Tuszynska, 199 Cal. App. 4th at 271, in a discrimination case, the defendant’s intent is the very “wrongful and injury-causing conduct . . . that provides the foundation for the claim.” See Martinez v. Metabolife Int’l, Inc., 113 Cal. App. 4th 181, 189 (2003).

Unfortunately, the contagion of this bum cite in Tuszynska has begun to spread with increasing speed. This case cites it nine times, for both prosaic points as well as the problematic ones about the defendant’s intent always being irrelevant. It appears that three published cases and a dozen more unpublished ones cite it for the point. And indeed, cases are starting to cite the cases that cite Tuszynska, so the rule is beginning to develop a life of its own, wholly divorced from its mis-cited source in Navellier

This case does, however, offer a glimmer of hope. Although he doesn’t write a great deal, Justice Epstein dissents. Citing primarily to Equilon, he thinks that while statements made during the tenure process are protected, the ultimate decision is not. So a decision not to give tenure on the basis of race does not “arise from protected activity.” 

Reversed.

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