Public Agency Cannot Terminate An Employee For Refusing To Answer Incriminating Questions Unless The State First Offers Immunity.

            In Ross v. San Francisco Bay Area Rapid Transit District, 2007 DJDAR 1151 (Cal. App. 1st Dist. Jan. 24, 2007)( ), the California Court of Appeal held that a public entity was immune from liability where the plaintiff claimed he was wrongfully terminated following an investigation and administrative proceeding that was based on allegedly “false” charges.

            Plaintiff George W. Ross, Jr. was a central maintenance supervisor for the Bay Area Rapid Transit District (BART).  On December 20, 2001, Ross was staffing BART’s “trouble desk.”  According to BART, several BART technicians became upset with a directive from another supervisor that they wear orange vests in addition to their regular uniforms, and walked off the job claiming to be “sick.”  Ross initially claimed to have been unaware of the issue.  However, during an investigation conducted by BART, Ross admitted that an employee had notified him that he would go home rather than comply with the orange vest policy, to which Ross responded “okie-dokie.”  The investigator conducting this investigation found that during two subsequent interviews Ross was untruthful and uncooperative. 

            Given these findings, BART issued Ross notice of a termination hearing.  Ross immediately filed for disability leave, claiming to be suffering from “stress.”  Ross did not appear at the termination hearing, purportedly because he believed that he was not allowed on BART property while on disability leave.  At the hearing, it was determined that Ross was responsible for the work stoppage on December 20, and that he should be discharged.  However, because BART could not terminate Ross while he was on disability leave, BART reduced the sanction to a 45-day suspension.  In response, Ross requested that BART stay the suspension until after he had a chance to challenge the penalty through a grievance procedure, which BART refused to do.  Upon learning that the suspension would not be stayed, Ross filed for voluntary retirement.

            In September 2002, Ross filed a complaint with the Department of Fair Employment and Housing, alleging that he had been constructively discharged because he was “the oldest on [his] job” (age 57), had “unionized lower management,” and was “36.5% disabled.”  After receiving a right to sue letter, Ross sued BART.  In his complaint, Ross asserted causes of action for (1) wrongful discharge in violation of public policy, (2) age discrimination in violation of the Fair Employment and Housing Act (FEHA), (3) failure to accommodate his disability in violation of FEHA, and (4) discrimination and retaliation in violation of public policy.  BART moved for  summary judgment and/or adjudication as to each cause of action. 

            The trial court granted BART’s motion with respect to the second cause of action, finding that Ross failed to come forward with a prima facie showing of age discrimination, but denied summary adjudication as to the remaining causes of action.  BART then petitioned the Court of Appeal for a writ of mandate, seeking an order directing the trial court to grant its motion as to Ross’s first, third, and fourth causes of action.  The Court of Appeal issued an alternative writ, directing the trial court to either set aside its order or to show cause why it had not granted summary adjudication as to these causes of action.  In response, the trial court granted summary judgment to BART, and Ross appealed.

            The Court of Appeal upheld the grant of summary judgment to BART.  In regards to Ross’s first and fourth causes of action, the court noted that California Government Code section 815.2(b) provides that “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”  Additionally, Government Code section 821.6 states that a “public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  Considering these two statutes, the Court of Appeal held that all of the employee actions at issue fell within the scope of section 821.6, and accordingly that BART was immune from liability pursuant to section 815.2(b).

            In so holding, the Court of Appeal first determined that BART had no direct liability, but only vicarious liability, for any common law tort claims asserted by Ross.  The court reasoned that, under section 815.2, BART could have no direct liability “except as provided by statute.”  A claim for wrongful termination in violation of public policy is by definition not based on any statute; otherwise, it would be “entirely redundant” of the statutory claim.  Accordingly, BART could be only vicariously liable for the commission of that tort.

            The Court of Appeal next went on to find that all of Ross’s allegations here fell within the scope of section 821.6.  The court pointed out that, in three other state court decisions, similar incidents had been found to be governed by that statute.  Here, too, Ross’s claims were found to fall within this “general rubric of malicious prosecution,” as the “gravamen” of his lawsuit alleged that “acting out of discriminatory and retaliatory motives, BART employees initiated and prosecuted administrative proceedings to discipline or discharge Ross based on accusations they knew to be false.”  The court determined that “[s]uch acts by employees are immune from liability under section 821.6, and therefore BART is immune from liability under section 815.2.”  The court rejected Ross’s argument that this rule should not apply here because individual employees may not be sued under FEHA for such actions.  The court noted that liability for common law wrongful discharge can arise only vicariously, and that absent establishing that BART’s employees were individually liable, Ross could not prevail on this cause of action.  In any event, each of Ross’s common law claims included allegations of retaliation in violation of FEHA, for which individual employees can be held liable, rendering Ross’s allegations in this regard moot.

Claim Against Public Employee Based On Decision Made In Official Grievance Proceeding Is Subject To Anti-SLAPP Motion.

            In Vergos v. McNeal, 2007 DJDAR 1059 (Cal.App. 3d Dist. Jan. 23, 2007)( ), the state Court of Appeal found that a plaintiff’s claim against a government employee alleging that his grievance was improperly denied should be dismissed as a “strategic lawsuit against public participation” (SLAPP) under California Code of Civil Procedure section 425.16.

            Plaintiff Randy Vergos, an inspector for the University of California at Davis, filed a grievance alleging that he was sexually harassed by his supervisor, Allen Tollefson.  According to Vergos, Tollefson followed him around, sometimes came up behind him, stared at his hair and body, made comments about other men’s genitalia, said one man had “pretty lips,” tugged at his own (Tollefson’s) crotch, and got angry with Vergos when he refused to enter Tollefson’s office.  Vergos also claimed that Tollefson referred to him as “my bitch” and “my boy toy.”  The U.C. Regents assigned an investigator to look into Vergos’s claims.  The investigator determined that Vergos’s claims were unfounded.  The results of that investigation were then reviewed by Julie McNeal, who was Tollefson’s immediate supervisor.  McNeal denied Vergos’s grievance, concurring with the finding of the investigation report that the allegations against Tollefson were without merit.  Vergos could have appealed McNeal’s denial of the grievance, but instead chose to file a complaint with the Department of Fair Employment and Housing.

            Soon thereafter, Vergos initiated a lawsuit which asserted three causes of action: (1) sexual harassment; (2) negligent hiring; and (3) “violation of civil rights.”  The first allegation was asserted as to “All defendants,” but did not make any specific allegation against McNeal.  McNeal was named as a defendant to the third cause of action.  In this cause of action, Vergos alleged that McNeal had improperly denied him his right to be free of harassment and discrimination.  In discovery responses, Vergos identified the statutory basis for his third cause of action as 42 U.S.C. section 1983, Title VII of the Civil Rights Act, and the 14th Amendment to the U.S. Constitution. 

            In response to this pleading, McNeal filed an anti-SLAPP motion pursuant to Government Code section 425.16, arguing that the third cause of action pertained to conduct that had arisen from activities “in furtherance of her right of petition or free speech.”  The trial court denied McNeal’s motion.  McNeal appealed the trial court’s ruling, which the Court of Appeal overturned.  The Court of Appeal held that McNeal’s anti-SLAPP motion should have been granted, and that Vergos’s civil rights claim should have been dismissed as to McNeal.

            In making this determination, the Court of Appeal held that McNeal’s conduct fell within the scope of section 425.16.  The court noted that the conduct protected by this statute includes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.”  Where the alleged conduct meets this standard, it is not necessary to show that there was a public issue or interest in dispute.  Rather, “it is the context or setting itself that makes the issue a public issue.”  Here, because McNeal conducted her review of Vergos’s claims in the context of an official grievance procedure, which had been established by the Regents (a constitutional entity having quasi-judicial powers), her conduct was protected.  The court noted, however, that similar conduct by employees of private companies would not be protected, as such conduct would not have taken place in an “official proceeding authorized by law.”

            The court rejected Vergos’s claim that McNeal had not simply denied his grievance, but had also “aided and abetted” the harassment, noting the lack of any such allegation in the complaint.  The Court of Appeal also noted that there is an important need to prevent supervisory employees from being “placed at risk of personal liability for personnel management decisions which have been delegated to the supervisor by the employer.”  Subjecting supervisors to liability in such situations would “result in public employees’ reluctance to assume the role of hearing officer in such cases, and thus thwart the petitioning activities of employees with grievances.”  The court also pointed out that, under a number of cases interpreting section 425.16, statements need not have been made on the individual’s own behalf in order to receive protection.  Accordingly, the conduct alleged as to McNeal fell within the protections of that statute. 

            Therefore, because any actions that McNeal took with respect to Vergos’s grievance were protected, she should have prevailed on her anti-SLAPP motion unless Vergos was able to establish a probability that he would prevail on his claims against McNeal.  Here, Vergos was not able to demonstrate any such probability.  He could not succeed on his Title VII claim because individuals cannot be held liable under Title VII, and his claim under 42 U.S.C. section 1983 failed because he offered no evidence showing that McNeal had violated his civil rights.  McNeal had submitted a declaration stating that she did not harbor any unlawful prejudice against Vergos, and that she denied his grievance based solely upon the findings of the investigation report, which she found to be adequate.  In support of his claim, Vergos simply submitted a declaration from University of California Davis Senior Superintendent Leslie Nopp.  That declaration disparaged McNeal, and contained a number of statements that were inadmissible for a variety of reasons.  After the objectionable portions of Nopp’s declaration were excluded, all that was left were Nopp’s claims that (1) normally, a mid-level manager (such as someone in Tollefson’s position) would review this type of grievance, (2) despite the availability of mid-level managers other than Tollefson, McNeal reviewed Vergos’s grievance herself, (3) Nopp was aware of other grievances filed around this time, and (4) none of those grievances were reviewed by McNeal.  The implication was that McNeal was biased against Vergos, and sought out his grievance specifically in order to deny it.  Vergos claimed that Nopp’s declaration established McNeal’s bad faith, because it showed that she had “made a special point of being in charge of [Vergos’s] grievances.”  The court disagreed, finding that Nopp’s awareness of “grievances unreviewed by McNeal does not support a civil rights action against McNeal.”  Accordingly, Vergos could not demonstrate any likelihood of success on the claim against McNeal, and McNeil was entitled to have the third cause of action stricken pursuant to her anti-SLAPP motion.  Because McNeal was successful, she was found to be entitled to an award of her attorneys’ fees, including those fees incurred on appeal.

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