Anti-SLAPP and harassment claims

Does the anti-SLAPP law apply to harassment claims in workplaces that have a medical peer review process for making employment decisions?

On March 11, 2015, the Fourth District Court of Appeal reviewed a case in which a doctor alleged she was subjected to harassment, discrimination, retaliation, and other wrongful conduct at the hospital where she worked. (DeCambre v. Rady Children’s Hospital-San Diego (Cal. App. 4th Dist. Mar. 11, 2015) 2015 Cal. App. LEXIS 224.) The doctor sought relief for harassment she alleged occurred through her employment along with a decision to not renew her contract to provide medical services resulting from a peer review proceeding.

The trial court dismissed the case early in the litigation following a special motion to strike (anti-SLAPP motion). Such a motion is designed to expedite the early dismissal of lawsuits aimed at preventing citizens from exercising their free speech or petition rights. Statements made in connection with an official proceeding authorized by law are one of these rights. The trial court based its decision on the doctor’s request for lost earnings, employment benefits, and staff privileges, all resulting from the nonrenewal of her contract. On appeal, the doctor contended that her claims arose from conduct outside of the peer review proceeding.

The court of appeal began by reviewing the California Supreme Court decision establishing that medical peer review involves the exercise of rights protected by the anti-SLAPP law. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192.) In the Kibler case, the high court determined that statements made during such a review are in connection with an official proceeding authorized by law. The court in DeCambre concluded that the decision to not renew the doctor’s contract was the result of the peer review proceeding. As such, this decision is protected by the anti-SLAPP law.

After making this conclusion, the court of appeal looked at the doctor’s various claims to determine whether each of them were based on the peer review proceeding. This review involves a focus on the defendant’s alleged conduct rather than the resulting damage.

With respect to the doctor’s harassment claim, the alleged conduct included provision of a housing allowance less than promised, denial of adequate support staff, and racially discriminatory statements made by support staff and other physicians throughout her employment. This conduct took place largely outside of and was unrelated to the peer review proceeding concerning her contract. Accordingly, the court of appeal decided that the trial court erred in dismissing the harassment claim.

As to the discrimination and retaliation claims, the court in DeCambre found that the contract decision was central. Indeed, such claims require evidence of an “adverse employment action,” which in this case was the decision not to renew the contract. Consequently, the court of appeal decided that these claims triggered the anti-SLAPP law. After determining that the doctor failed to show a probability of succeeding on the merits, the appellate court affirmed the trial court’s decision as to these claims.

This decision affirms the relevance of the anti-SLAPP law to decisions made as part of a medical peer review proceeding. In order to avoid a special motion to strike, an employee’s claim must be principally based on conduct that occurred outside of such a proceeding.

Posted by deanroyerlaw in Employment

Whistle-blowing at nuclear energy sites

Under a law protecting whistle-blowing employees at nuclear energy sites, what are the requirements for naming the retaliating party and does the employee have a right to a jury trial?

On March 4, 2015, the Ninth Circuit Court of Appeals clarified the federal law that empowers whistle-blowing employees working at nuclear energy sites to file retaliation claims in federal court after one year of administrative agency inaction. In Tamosaitis v. URS Inc. (9th Cir. Mar. 4, 2015) 2015 U.S. App. LEXIS 3595, the appellate court addressed the issues of (1) the specificity required to name the retaliating party at the administrative stage, and (2) whether an employee who files a lawsuit has a constitutional right to a jury trial.

Mr. Tamosaitis was an employee of URS Energy & Construction, Inc., a subcontractor of Bechtel Nation, Inc. Bechtel was contracted by the Department of Energy to assist with a clean-up of the pollution at the Hanford Nuclear site, a former nuclear weapons production facility that stored nuclear waste. Mr. Tamosaitis led a study reviewing technical challenges with the clean-up project. Mr. Tamosaitis advised an extension of the deadline to solve one lingering and complex issue; Bechtel opposed the extension given it would jeopardize their six-million-dollar fee. Mr. Tamosaitis brought his environmental and safety concerns to a meeting hosted by Bechtel, a URS employee and Assistant Project Manager of the clean-up project, and several clean-up project consultants. Two days later, URS fired Mr. Tamosaitis from the clean-up project and reassigned him to a nonsupervisory role in a basement office.

The Energy Reorganization Act (42 U.S.C. section 5851(b)(1)(A)) prohibits retaliation against employees for notifying their employers of alleged violations of the Development of Energy Sources law or the Atomic Energy Act of 1954. An employee seeking redress under the whistle-blower law must file a complaint with the Department of Labor, Occupational Safety and Health Administration within 180 days of the retaliatory act. (42 U.S.C. section 5851(b)(1).) Employees may take their retaliation cases to federal district court if DOL-OSHA has not issued a final decision within one year of the filing of the complaint. (42 U.S.C. section 5851(b)(4).)

On July 30, 2010, Mr. Tamosaitis filed a complaint against “his employer, URS, Inc.” with DOL-OSHA. On December 15, 2010, he added the Department of Energy as a party. On September 7, 2011, Mr. Tamosaitis changed the employer party from URS, Inc. to URS Corp. and URS Energy & Construction, Inc. He filed a complaint in federal court on November 9, 2011, naming URS Corp., URS Energy & Construction, Inc., and the Department of Energy as defendants, and also requested a jury trial.

The district court dismissed the case as to the Department of Energy, URS Corp., and URS Energy & Construction, Inc. at two different stages of the litigation on grounds Mr. Tamosaitis failed to wait a full year after naming these entities in his DOL-OSHA complaint. The district court also struck Mr. Tamosaitis’s jury demand, ruling that he had no statutory or constitutional right to a trial by jury.

On appeal, the Ninth Circuit agreed that, as a general rule, adding a new party to an administrative complaint restarts the one-year period as to that party. The appellate court noted that the language of the whistle-blower law and DOL-OSHA regulations indicates that the one-year period is linked to a particular party. The court in Tamosaitis also found that because the federal action consists of a review of the DOL-OSHA proceedings, the litigation is tied to the parties that were before the agency.

The Ninth Circuit determined that allowing an employee to sue a party who was not a party in the administrative proceedings for a full year before the case was moved to federal court would severely undermine the administrative scheme. The appellate court concluded that before an employee may bring a retaliation suit against a party in federal court, that party must have had notice of, and an opportunity to participate in, the DOL-OSHA action for one year.

Based on this conclusion, the court of appeals agreed that Mr. Tamosaitis’s claim against the Department of Energy failed because he did not name that entity in his original DOL-OSHA complaint and did not attribute any retaliatory conduct to it. The Ninth Circuit also affirmed dismissal of the case against URS Corp. because Mr. Tamosaitis’s original DOL-OSHA complaint did not allege that URS Corp. was either his employer or a subcontractor to Bechtel at the Hanford site. Furthermore, URS Corp. responded to the administrative complaint by noting as much.

With respect to URS Energy & Construction, Inc., however, the original DOL-OSHA complaint alleged that the intended party (named URS Inc.) was Mr. Tamosaitis’s employer and the principal subcontractor to Bechtel in a government contract at the Hanford site. URS Energy & Construction, Inc. responded to the complaint by acknowledging that Mr. Tamosaitis could only be referring to it, and explained that it was Mr. Tamosaitis’s employer and entered into the clean-up contract with Bechtel. The response also addressed the merits of Mr. Tamosaitis’s allegations in depth. The Ninth Circuit concluded that Mr. Tamosaitis gave adequate notice to URS Energy & Construction, Inc. that it was the named party to his complaint, such that it could defend itself in the original agency complaint.

As to the jury trial issue, the Ninth Circuit began with a review of the Seventh Amendment, which provides a right to a jury in actions enforcing laws that create legal rights and remedies. To determine whether the right exists in a particular case, the court must determine whether the claim is one that was historically tried at law or analogous to one that was. The court in Tamosaitis reviewed a decision concerning civil rights claims under 42 U.S.C. section 1983. That decision determined a jury trial right exists because the civil rights claims are basically tort actions and seek legal relief in the form of compensatory damages.

The Ninth Circuit found that Mr. Tamosaitis’s whistle-blower suit also sounds in tort and seeks compensatory damages. It also determined that his case is analogous to a wrongful discharge claim at common law, a tort that has been treated as a legal—in contrast to an equitable—action. The appellate court also noted that the whistle-blower law authorizes an award of compensatory damages. (42 U.S.C. section 5851(b)(2)(B).) Accordingly, it determined that Mr. Tamosaitis is entitled to non-economic damages such as emotional distress and loss of professional reputation (in addition to injunctive relief, and back pay and lost benefits).

The Ninth Circuit concluded that Mr. Tamosaitis has a right to a jury trial in the district court for his claims seeking money damages. It noted that this conclusion extends to employees and employers alike in other cases.

Posted by deanroyerlaw in Employment

Failure to prevent harassment

Can there be a failure to prevent harassment when the jury finds harassing conduct occurred but it was not severe or pervasive so as to constitute unlawful harassment?

The Second District Court of Appeal recently considered the relationship between a failure to prevent harassment or discrimination claim and the underlying harassing or discriminatory conduct. On March 6, 2015, in Dickson v. Burke Williams (Cal. App. 2d Dist. Mar. 6, 2015) 2015 Cal. App. LEXIS 209, the court reviewed a jury’s verdict finding a failure to prevent sexual harassment and discrimination.

In this case, the employee sued her employer alleging harassing and discriminatory conduct by two customers. At trial, the employer proposed a special verdict form that directed the jury to skip deliberations on the employee’s claims for failure to prevent harassment and discrimination if there was no finding of underlying harassment and discrimination. The trial court declined.

The jury found that the employee was subjected to unwanted harassing conduct because of her sex. But it also decided that the conduct was not severe or pervasive. Consequently, the jury concluded that the employer was not liable for sexual harassment. The jury also found in favor of the employer on the employee’s sex discrimination claim. Nevertheless, the jury decided the employer was liable for failing to prevent sexual harassment and sex discrimination.

On appeal, the employer contended that the trial court improperly denied a motion to enter a judgment in its favor (judgment notwithstanding the verdict). The employee asserted that the finding of harassing conduct was sufficient to support the jury’s verdict in her favor on the failure to prevent sexual harassment claim.

The court of appeal disagreed. It reviewed the decision in Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, which recognized that a failure to prevent sexual harassment is a distinct claim. The court in Dickson noted that the court in Trujillo emphasized that the absence of unlawful harassment precludes a claim for failure to prevent harassment. The appellate court also pointed to the Directions for Use for the special verdict form for failure to prevent claims. They state that the jury should not answer any of the questions unless it finds that the underlying claim is proved.

The court in Dickson also determined that it would be anomalous to provide a remedy for failure to prevent acts that are not unlawful. This would allow an employee to succeed on a failure to prevent claim even if the underlying conduct was nothing more than lawful conduct such as teasing, an offhand comment, or an isolated incident. The court of appeal concluded by indicating that the same logic applies to failure to prevent discrimination claims, i.e., there is no failure to prevent claim unless the underlying conduct is unlawful discrimination.

Posted by deanroyerlaw in Employment

Self-serving testimony

May an employee avoid pre-trial dismissal of her case with her own uncorroborated testimony?

On February 25, 2015, the Ninth Circuit revived a disability discrimination case after concluding that the employee provided sufficient facts to warrant the case going to a trier of fact. In Nigro v. Sears, Roebuck & Co. (9th Cir. Cal. Feb. 25, 2015) 2015 U.S. App. LEXIS 2810, the federal appeals court disagreed with the trial court’s determination that the employee’s written and oral statements were “self-serving” and not enough to get past the pre-trial proceeding of summary judgment.

In this case, Anthony Nigro sued his employer after being terminated. Mr. Nigro claims that Sears discriminated against him based on his disability, declined to provide an accommodation for his disability, and failed to engage in the required interactive process to determine a possible accommodation.

For the disability discrimination claim, Mr. Nigro stated in his written declaration that the General Manager of the store at which he worked told him “[i]f you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated.” Mr. Nigro also offered his oral deposition testimony that a District Facilities Manager told him not to be concerned about his pay issue because the District General Manager had indicated that Mr. Nigro was “not going to be here anymore.” The district court disregarded the evidence as Mr. Nigro’s “own self-serving testimony.” After noting prior decisions acknowledging that employee declarations are often self-serving, the Ninth Circuit determined that Mr. Nigro’s evidence—uncorroborated and self-serving—was sufficient to support a finding that Sears was motivated by his disability when it terminated him.

With respect to the accommodation claim, Mr. Nigro admitted that his supervisor “continued to accommodate him,” with respect to a condition that caused loss of sleep. But there was also evidence that the supervisor did not approve of the accommodation to start work later in the morning, required Mr. Nigro to arrive on time every day, and that Mr. Nigro came to work at 6:00 a.m. every day after he returned to work. The federal appeals court concluded that a reasonable jury could infer that the supervisor’s unwillingness to accommodate compelled Mr. Nigro to arrive at 6:00 a.m. instead of at a later time.

As to the interactive process claim, the Ninth Circuit decided that the evidence supported a finding that the supervisor “chilled” Mr. Nigro’s exercise of his right to request an accommodation. The federal appeals court also determined that the General Manager’s alleged statement that he would not accommodate Mr. Nigro created a factual dispute regarding Sears’s compliance with its duty to engage with Mr. Nigro to identify an accommodation.

The Ninth Circuit acknowledged that Sears put forward substantial evidence showing that it had a non-discriminatory reason for terminating Mr. Nigro’s employment: Mr. Nigro did not comply with Sears’s attendance and leave policies resulting in job abandonment. Nevertheless, the federal appeals court reiterated the principle that it should not take much for an employee in a discrimination case to overcome summary judgment because the ultimate question—the employer’s motivation for the decisions at issue—is one that is most appropriately resolved by a factfinder at trial.

Posted by deanroyerlaw in Employment

Consecutive days of work law

California law regarding consecutive days of work to be clarified.

The Ninth Circuit Court of Appeals has requested that the California Supreme Court decide three issues concerning California law that regulates consecutive days of work. In Mendoza v. Nordstrom, Inc. (9th Cir. Cal. Feb. 19, 2015) 2015 U.S. App. LEXIS 2551, the federal appeals court certified the following questions for review by the California high court:

    1. California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?
    2. California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
    3. California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

These questions arise from a lawsuit alleging that Nordstrom violated California Labor Code sections 551 and 552 by failing to provide two employees with one day’s rest in seven on three occasions. The district court decided that the required day of rest under section 551 is calculated on a rolling basis; the section 556 exemption applies when the employee works less than six hours in any one day of the week; and that Nordstrom did not cause the employees to work more than six days in seven because there was no coercion.

The Ninth Circuit directed the three questions to the California Supreme Court based on the ambiguous text of the statutes and the lack of legislative history and California court decisions to help answer the questions. The California high court’s answers to the questions will, as the Ninth Circuit noted, affect tens of thousands of employees.

Posted by deanroyerlaw in Employment