Tuesday, September 6, 2016

I Feel a Little Less Alone in the Anti-SLAPP Universe

Nam v. Regents of the Univ. of Cal., No. C074796 (D3 Jul. 29, 2016)

A breath of fresh air in the anti-SLAPP arena. This is another case where an employer with a First Amendment-ish mission—here, a public university hospital that uses peer review—tries to pawn off alleged employment discrimination as “arising from protected activity” under the anti-SLAPP statute. It has happened before
. And on more than one occasion it has worked. But this time the court isn’t buying it. Even better, the court here does a commendable job of tracing the line of cases back to the 2011 Tuszynska v. Cunningham decision’s misreading of a 2002 Supreme Court case that had begun to lose track of its roots and propagate through the case law like a virus. 

Like last year’s decisions in DeCambre and Park, the case entails allegations of employment discrimination and retaliation in the context of a state-run medical facility’s internal peer review or physician disciplinary processes. Various earlier cases (correctly) determined that these processes are “official proceedings” such that cases based on statements made during that process arise from protected activity under the anti-SLAPP analysis. See Kibler v. N. Inyo Cnty. Local Hosp. Dist, 39 Cal. 4th 192, 198 (2006); Vergos v. McNeal, 146 Cal. App. 4th 1387, 1396 (2007).

What DeCambre and Park missed, but this case gets, is that a discrimination or retaliation case doesn’t actually arise from these proceedings. It instead arises from the employer’s allegedly making an employment decision on the basis of an unlawful criteria like race or gender. In these cases, the peer review or discipline processes—and statements made in connection with it—are the employer’s alternate explanation for why the adverse employment decisions was taken. I.e., “we didn’t fire you because you were a woman who complained about stuff, we fired you because you were a bad doctor.” Those reasons aren’t the gravamen of a discrimination plaintiff’s case; they are instead the employer’s defense. Which means the case doesn
t arise from them for anti-SLAPP purposes.

This all is pretty straightforward and the court does yeoman’s work cutting through the confusion. It recognizes there are cases that seem to go the other way. In particular, Hunter v. CBS Broadcasting, Inc., 221 Cal. App. 4th 1510, 1520 (2013)—which I was critical of—and Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 268-69 (2011)—whose flawed analysis is addressed in my post on Park—say that the defendant’s motive is irrelevant to the “arising from” analysis under Code of Civil Procedure § 425.16(b)(1) and (e). Under these cases, a discrimination case arises from protected activity so long as the means of the discrimination (as opposed to the motive) touch on some kind of protected process like a hospital peer review.

The court here exposes the nonsense of this argument. In particular, it traces the flaws in Tuszynska back to its misreading of the Supreme Court’s decision in Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002). As I explained in my Park post, and the court recognizes here, in holding that intent to chill free speech was not required to sustain the first element of the anti-SLAPP analysis, Navellier court explained that a plaintiff’s intent was essentially irrelevant. But somehow, Tuszynska confused that to read it as meaning that defendant’s intent doesn
t matter. Intent, however, is the entire crux of a discrimination case, andso long as Robert Bork’s exiled constitution doesn’t reappear on the scene anytime soondisparate treatment discrimination is not in any way constitutionally protected.

So as the court explains here, cases that arise from a defendant’s unlawful discriminatory intent—whether based on race, gender, or retaliation for some kind of protected speech—do not arise from protected activity. That’s the case even when the defendant’s proffered non-discriminatory reason implicates processes protected under the anti-SLAPP statute.

That’s solid analysis that has been lacking for too long. I have only one (minor) gripe. Somewhat puzzlingly, the court reaches this result without recognizing that DeCambre and Park—which are factually pretty closego the other way based on the flawed logic it rejects. Regardless, the split is now so well developed that a review petition—maybe even one in this case—should likely be granted in the near future.


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