Metropolitan News-Enterprise


Monday, August 1, 2016


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Wrongful Termination Suit Against UC No SLAPP, C.A. Rules

University’s ‘Misguided Reading’ of Statute Would Virtually Immunize Employers Against Bias Suits, Panel Says




A Sacramento Superior Court judge did not err in denying an anti-SLAPP motion in a wrongful termination/discrimination suit by a former UC Davis Medical Center anesthesiology resident, the Third District Court of Appeal ruled Friday.

The justices rejected the university’s claim that the suit was an attempt to chill the school’s free speech right to conduct an investigation.  The essence of the case, Presiding Justice Vance Raye wrote, is that the plaintiff claims she was subjected to harassment, and eventually fired, because she complained about policies.

Raye noted that while the anti-SLAPP statute was enacted to cure a form of abusive litigation, it has been argued that “the cure has become the disease,” and that anti-SLAPP motions have themselves become a form of abuse.

‘Become Fatal’

“And the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if we were to accept the [university’s] misguided reading of the anti-SLAPP law and reverse the trial court’s denial of its motion to strike,” he wrote. “We agree with plaintiff Un Hui Nam that defendant did not sustain its burden to demonstrate that the gravamen of her claims for sexual harassment and retaliation arose from defendant’s protected First Amendment activity.”

Nam claims that after she started work as a resident in 2009, she obtained a strong initial evaluation. But her troubles, she said, came after she asked for clarification whether residents were allowed to intubate patients, saying she was “completely flabbergasted” that anesthesia residents would not be allowed to intubate and would have to wait for an on-call team in an emergency.

She copied her fellow residents and was told by some to expect retaliation from the medical center.  Within three years Nam was dismissed, having been the subject of a series of complaints, warnings and investigations over allegedly wearing inappropriate attire and eating on the job.

The university said it was not upset about the intubation inquiry, and that it had nothing to do with her subsequent issues.

Lawsuit Filed

Nam said she requested a formal hearing to contest her 2011 firing but never received it. In 2013, she filed her lawsuit claiming retaliation, discrimination, sexual harassment and wrongful termination.

Superior Court Judge Raymond Cadei denied the anti-SLAPP motion, and Raye questioned the logic of the university’s arguments in support of it. What UC was claiming, he said, was that every step in its disciplinary system, from receipt of a complaint through disposition, was part of an “official proceeding,” that all of its conduct in the course of that proceeding is constitutionally protected, and that lawsuits like Nam’s are designed to chill the exercise of its right to act on such complaints.

“By stitching together a number of disparate legal principles extracted from cases with very different facts, ignoring the fundamental question whether the lawsuit is indeed a SLAPP, and divorcing the analysis from the purpose of the anti-SLAPP law, defendant constructs an argument that, in effect, would subject most harassment and retaliation claims against public entities to an anti-SLAPP motion to strike,” he said.

Bad Argument

Under UC’s position, he elaborated, “[a]ny employer who initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits.”

That would, Raye said, be “at odds with the purpose of the anti-SLAPP law, which was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award.”

He went on to say:

“It is hard to imagine that a resident’s complaint alleging retaliatory conduct was designed to, or could, stifle the University from investigating and disciplining doctors who endanger public health and safety.”

The underlying lawsuit by Nam “may or may not have merit” but that can be tested in later summary judgment motions, he added, “but it is quite a stretch to consider it a SLAPP merely because a public university commences an investigation.”

The case is Nam v. Regents of the University of California, 16 S.O.S. 3850. 


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