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JUDICIAL UPDATES In FEHA Lawsuit, Correctional Officer Failed to Prove Alleged Retaliatory Act Was Protected by the First Amendment Bessie Gallanis-Politis, a Los Angeles County employee sued the County and a County official, asserting discrimination claims under state and federal law for gender discrimination under the Fair Employment and Housing Act and civil rights violations based on her race and gender under federal law. She alleged that her employers obstructed her efforts to obtain bilingual bonus pay by conducting a pretextual investigation and preparing a report falsely concluding she was not entitled to bilingual pay. She also later asserted a retaliation claim and sued two other County officials under that claim. The two County supervisors later filed a motion to strike the complaint under the anti-strategic lawsuit against public participation (anti-SLAPP) statute. The SLAPP seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Code of Civil Procedure Section 425.16.) The anti-SLAPP statute was enacted as a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. The conduct Gallanis-Politis claimed the supervisors engaged in was that they conducted an investigation and a report on her bilingual status. The report was from a request from their lawyer to produce discovery requests. The Court determined that the supervisors had engaged in protected First Amendment activity and Gallanis-Politis failed to make out a case against them likely of success. Because the investigation and report following the lawsuit were based on First Amendment protected activity, Gallanis-Politis was unable to show that she had a valid retaliation claim against her supervisors. Although she also alleged that she was forced to endure other retaliatory treatment, such as completing a new bilingual certification form, that claim was incidental to her primary claim of retaliation protected by the anti-SLAPP statute. Furthermore, in order for an employee to show a retaliation claim, the required adverse employment action must materially affect the terms and conditions of employment, considering the totality of the circumstances. Gallanis-Politis was also prevented from prevailing on the merits of her case because the litigation privilege operated as a bar to the retaliation claim against her supervisors. The litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Since the actions the supervisors took which she claimed were in retaliation against her occurred as part of the pending litigation, she was unable to prevail on the merits of the case. (Gallanis-Politis v. Medina, California Court of Appeal Case No. B187386.)
NEXT: In Order to Show Discrimination Based on Race of Gender, the Conduct Must Be Prompted by Gender or Race and Must be Sufficiently Severe or Pervasive
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