Reported / Citable
Background
Hyewon and Joseph Pechkis are married physics professors who were tenured at California State University, Chico. According to their complaint, Hyewon was subjected to harassment and discrimination by the previous physics department chair based on her sex and Korean ancestry. The Pechkises raised concerns to the dean, but Chico State took no action. Hyewon developed serious mental health conditions linked to the hostile environment.
To escape the situation, the Pechkises accepted positions at California Polytechnic State University. Soon after, Chico State’s vice provost emailed Hyewon about a potential Family Educational Rights and Privacy Act violation based on old blog posts in Korean. Hyewon’s complaint alleged the investigation was a sham and that the Chico State vice provost called Cal Poly to tell them about the unfounded allegations in an attempt to derail her new employment. Cal Poly nonetheless extended employment offers, but the Pechkises also alleged that during the transfer of laboratory equipment a Chico State dean caused unnecessary damage and delay.
The Pechkises sued the Trustees of the California State University for discrimination, FEHA retaliation, failure to engage in the interactive process, hostile work environment, failure to prevent discrimination, and whistleblower retaliation. The Trustees filed an anti-SLAPP motion under Code of Civil Procedure section 425.16 against the two retaliation causes of action, arguing those claims arose at least in part from protected activity, namely communications between Chico State employees and Cal Poly about the investigation. The trial court denied the motion. The Trustees appealed.
The Court’s Holding
The Third District Court of Appeal affirmed. The court applied the standard two-step anti-SLAPP analysis but did not reach the second step because the Trustees failed at the first step. To shift the burden, the moving party must show that the challenged claim arises from protected activity, meaning that the alleged wrongdoing itself, not just background or context, is conduct in furtherance of the moving party’s right of petition or free speech.
The court explained that even if the Pechkises’ retaliation claims included some allegations about communications with Cal Poly that might qualify as protected activity, the claims also rested on a broad range of unprotected conduct, including the initiation of the allegedly sham investigation, the damage to and delay of laboratory equipment, and the broader pattern of discriminatory treatment. The fact that a claim is supported “in part” by protected activity does not satisfy the moving party’s burden when the rest of the claim rests on unprotected employment decisions.
Following Park v. Board of Trustees of California State University and Bonni v. St. Joseph Health System, the court emphasized that the initiation of an investigation by a public employer is not, on its own, protected activity for anti-SLAPP purposes. Treating it as such would essentially immunize public employers from harassment, discrimination, and retaliation claims because almost every such claim arises in the context of some sort of investigation or evaluation. The Trustees’ motion sought to strike the entire retaliation causes of action, but they did not propose any narrower surgical excision of allegedly protected allegations. The court declined to perform that excision on its own.
Key Takeaways
- Anti-SLAPP motions in employment cases must distinguish between conduct that is itself the basis for liability and incidental references to investigations or other communications that might involve protected activity.
- The initiation of an investigation by a public employer is not, by itself, protected activity for anti-SLAPP purposes.
- A claim that rests “in part” on protected activity does not satisfy the first step of the anti-SLAPP analysis when other unprotected conduct also supports the claim.
- Moving parties seeking to strike portions of a claim must propose specific allegations to be stricken; courts will not perform surgical excision on their own.
- FEHA retaliation and whistleblower retaliation claims against public employers are particularly likely to survive anti-SLAPP motions because they typically involve a mix of protected and unprotected conduct.
Why It Matters
This decision is a useful application of the California Supreme Court’s recent anti-SLAPP jurisprudence in the public employment context. Public university and other public employer defense lawyers should think carefully before filing anti-SLAPP motions against retaliation and harassment claims that include some allegations about communications with third parties. A motion seeking to strike entire claims that include unprotected employment decisions is unlikely to succeed.
For plaintiffs’ lawyers handling FEHA and whistleblower retaliation claims, the case offers helpful analysis emphasizing that broad investigatory and communicative conduct does not automatically receive anti-SLAPP protection. Pleadings should weave together the unprotected employment decisions with allegations about investigations or communications, while making clear that the wrongful conduct rests on the unprotected decisions.