Court of Appeal: Discharge of Executive Uncooperative in Investigation

is perfectly legal.

Applied Signal fired John McGrory.  One of his reports, Dana Thomas, complained to human resources that McGrory harassed / discriminated against her because of her sex / sexual orientation.  Applied hired an outside investigator.   McGrory did not like the investigator, but she exonerated him of mistreating Thomas.  She did find, though, that McGrory was untruthful and uncooperative during the investigation.  She also found that McGrory violated the company's anti-harassment policy because he made off-color jokes related to sex and national origin.

Applied fired McGrory, not for discrimination or harassment against Thomas, but for his lack of cooperation and deception during the investigation.  He sued Applied Signal, claiming not only wrongful termination, bur also sex discrimination and defamation.  He believed he was disfavored because of his male sex, that even at-will employees are entitled to notice of an investigation, and more.

McGrory argued Allied could not fire him for participating in the investigation, “'The public policy of California is to shield anyone participating in an investigation of discrimination from the possibility of retaliation,' presumably even if the participant is uncooperative and untruthful."

Wrong.  I have come across people who refused to participate in investigations without their lawyer, or simply were uncooperative.  I have heard some people question whether it is OK to fire someone for refusing to cooperate in an investigation.  (They don't read the blog, but maybe they should. Just sayin').

Anyway, the court of appeal has laid that issue to rest:

refusing to participate in or cooperate with an investigation into a discrimination claim is not participation or assistance and is not a protected activity. (Alack v. Beau Rivage Resorts, Inc. (S.D. Miss. 2003) 286 F.Supp.2d 771, 775; Bray v. Tenax Corp. (E.D. N.C. 1995) 905 F.Supp. 324, 328.)

Here's another news flash to those employees who lie during an investigation. They have no protection, either:

The participation immunity does not prohibit an employer from imposing discipline for an employee‟s misbehavior during an internal investigation, such as attempting to deceive the investigator. (Cf. Vasconcelos v. Meese, supra, 907 F.2d 111, 113.) “Lying in an internal investigation is disruptive of workplace discipline.” (Hatmaker, supra, 619 F.3d 741, 746.) “[W]hether to fire an employee for lying to the employer in the course of the business‟s conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department.” (Total System Services, supra, 221 F.3d 1171, 1176.)

McGrory also argued that the employer could not lawfully rely on fear of litigation with the accuser as a basis for firing him.  Really?  The Court of Appeal held that fear of liability also is a legitimate, non-discriminatory reason for firing an accused harasser:

Employee also argues that his “relatively innocent behavior” could not justify “a sexual harassment claim.” Employee provides no authority requiring an Employer to retain an at-will employee until his conduct creates civil liability. 

The court also held that the VP of HR's explanation to another employee that McGrory was fired for being uncooperative was privileged and made without malice. No slander for you.

This is a significant case about the meaning of employment at will and the employer's freedom to discipline and discharge those who violate policies.

The opinion is McGrory v. Applied Signal Tech. and the opinion is here.

Court of Appeal Upholds SLAPP Against Accused Harasser's Counterclaim

Aber sued Comstock for sexual harassment among other things.  This did not sit well with Comstock, who sued Aber back, claiming defamation among other things.

Aber then filed a motion to strike Comstock's cross-claim. She claimed his lawsuit was a "SLAPP" or a retaliatory action against Aber.  The trial court agreed and the Court of Appeal affirmed.

If someone sues you and you return the favor, your lawsuit may be subject to a motion to strike as a "SLAPP" (strategic lawsuit against public participation).  To overcome the anti-SLAPP motion, you have to prove that you have a good chance of winning your case.   Comstock apparently did not do that, which is why his suit was dismissed.  If you file a lawsuit that is dismissed as a SLAPP, you owe the other side attorney's fees.   So, be careful before filing cross claims. It's probably wise to win your case first and then sue for malicious prosecution.

Anyway, what makes this case even more interesting is that  the Court of Appeal held that the harassment victim's pre-litigation statements made to company HR investigators were covered by the anti-SLAPP statute as protected conduct.  That means, for example, that if an employee participates in a sexual harassment investigation and reports misconduct against another employee, any defamation lawsuit will be examined as a potential SLAPP.  Even witnesses who report to HR likely will be protected from retaliatory defamation lawsuits brought by the accused harasser.  While that is good news for witnesses and victims of discrimination or harassment, it is bad news for those who are wrongly accused of harassment, who will have a tougher time protecting themselves from career-ending accusations.

This case is Aber v. Comstock and the opinion is here.

Court of Appeal Protects Investigator During Litigation

Bessie Gallanis-Politis sued her employer, LA County, for discrimination. During the litigation, a couple of supervisors investigated certain issues, purportedly to help prepare the discovery responses. They also took a number of other, incidental, actions, including requiring Gallanis-Politis to change her attendance records to "unapproved absence" when she attended depositions. She amended her complaint, suing the individual supervisors for retaliation. The Court of Appeal held that the supervisors' conduct arose from the litigation and were protected by California's anti-SLAPP law. In other words, the court said that Gallanis-Politis retaliated against the supervisors in violation of the statute. This case protects employees from employee-plaintiffs who attempt to sue managers involved in the defense of the case, and employee-plaintiffs who attempt to shield themselves from neutral policies during litigation. The case is Gallanis-Politis v. Medina, and the opinion is here.