Thursday, February 6, 2020
Court of Appeal:
Opinion Follows Remand From California Supreme Court
By a MetNews Staff Writer
Div. One of the Court of Appeal for this district, which in 2016 held in a 2-1 decision that a fired journalist’s action against CNN did not satisfy the first prong of the anti-SLAPP statute, protected activity, has now proceeded, following a reversal and remand by the California Supreme Court, to address the second prong, finding that the action has minimal merit and may proceed.
Tuesday’s opinion was authored by Presiding Justice Elwood Lui of Div. Two, who returned to his former division for which he wrote, as an associate justice, the Dec. 13, 2016 majority opinion. That opinion reversed a determination by Los Angeles Superior Court Judge Mel Red Recana that the action by ousted CNN employee Stanley Wilson was a SLAPP.
Wilson, who worked as a producer for the cable news network from 1996 until he was fired on Jan. 28, 2014, at age 51, is an African-American/Latino-American. He claimed that his firing over alleged plagiarism—claimed to have been detected in an article he prepared for posting on the CNN website, with five other instances uncovered after an audit—was pretextual, with discrimination actually being at the root of the job action.
“This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights,” Lui said in the 2016 opinion, joined by Justice Victoria Chaney.
Presiding Justice Frances Rothschild countered, in a dissent:
“I would hold that a news organization’s employment decisions concerning a person, like Wilson, who has an undisputedly central role on the content of the news concerns an act in furtherance of the organization’s First Amendment rights and made in connection with issues of public interest.”
Supreme Court’s Decision
The California Supreme Court reversed the Court of Appeal in a July 22, 2019 opinion by Justice Leondra R. Kruger. Simply because an action is for employment discrimination and retaliation, she declared, an anti-SLAPP motion is not precluded if the conduct complained of stemmed from protected activity.
The jurist observed that CNN made a prima facie showing that it fired Wilson based on plagiarism—which, she said, is “universally recognized as a serious breach of journalistic ethics.” Firing a journalist guilty of such wrongdoing will safeguard a news organization’s credibility in commenting on public issues. Kruger reasoned.
She said CNN thus met the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, by showing that the action against it arises from its “conduct in furtherance” of its “speech in connection with” public matter.
The case was remanded to the Court of Appeal for a determination, under the second prong, as to whether Wilson could show a probability of prevailing on the merits with respect to wrongful termination. (Wilson’s other causes of action, Kruger said, did not come under the anti-SLAPP statute.)
Both Chaney and Rothschild joined in Tuesday’s unpublished opinion, in which Lui said that Wilson met his burden.
Nothing in Kruger’s opinion, he found, precludes Wilson from establishing, if he can, that the reason CNN put forth for firing him was pretextual. Lui wrote:
“The issue here is not whether CNN had the right to terminate Wilson’s employment for plagiarism; Wilson concedes that it did. Rather, the issue is whether CNN actually made its termination decision on that basis or whether it discharged Wilson for discriminatory or retaliatory reasons. None of the free speech cases that CNN cites holds that courts considering discrimination claims are precluded from examining whether a proffered, constitutionally protected reason for an employment decision was the real reason for the decision.”
Lui said various assertions of fact by Wilson in a declaration gave rise to an inference that discrimination motivated the dismissal. He provided this discussion:
“Crediting Wilson’s declaration, as we must, Wilson provided evidence that one of the persons involved in the termination decision had expressed hostility toward him and discriminated against him in the past; other employees who had engaged in similar conduct had not been disciplined, or had at least kept their employment; and at least one of CNN’s proffered grounds for Wilson’s discharge—the five articles CNN identified following its audit—lacked credibility in light of CNN’s failure to take any steps to remove those articles from its Web site. This evidence is sufficient at this stage of the proceedings to support an inference that the stated ground for CNN’s termination decision was pretextual.”
Lui went on to say:
“[E]ven if Wilson did copy sentences from other sources without attribution, he provided evidence that others had engaged in the same conduct without receiving similar discipline. CNN attempts to dismiss this evidence in its supplemental brief by arguing that ‘the fact that CNN may have disciplined another employee in a different way under different circumstances does not prove that CNN terminated Wilson for discriminatory reasons.’ However, Wilson is not required to prove his case at this point. The evidence that CNN treated Wilson differently than others who had engaged in the same conduct, and applied its anti-plagiarism policy selectively to replace him with a younger White employee, is sufficient to create an inference of pretext.”
The case is Wilson v. Cable News Network, Inc., B264944.
Attorneys on appeal were Lisa Maki, Jill McDonell, and Jennifer Ostertag of the Law Office of Lisa L. Maki and Carney R. Shegerian for Wilson and Adam Levin, Jolene Konnersman, Aaron M. Wais and Christopher A. Elliott of Mitchell Silberberg & Knupp CNN.
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