Un Hui Nam v. Regents of the University of California
1 Cal. App. 5th 1176
| Cal. Ct. App. | 2016Background
- Dr. Un Hui Nam, an anesthesiology resident at UC Davis, alleged sexual harassment by a supervisor (Dr. Singh) and subsequent retaliation culminating in dismissal; she sued for harassment, discrimination, retaliation, wrongful termination, and related claims.
- Key events: an exemplary evaluation in late Aug. 2009; Nam’s Sept. 1, 2009 e-mail questioning a department policy; a Sept. 22, 2009 Letter of Expectation; alleged sexual advance by Dr. Singh in Dec. 2009; later Letters of Warning; multiple investigatory leaves and internal reviews; dismissal in Dec. 2011 and unsuccessful appeal.
- University moved to strike under California’s anti-SLAPP statute (Code Civ. Proc. §425.16), arguing Nam’s claims arose from protected petitioning/speech (investigations, disciplinary letters, internal proceedings).
- Trial court denied the anti-SLAPP motion, finding the gravamen of Nam’s complaint was retaliation and harassment (not protected activity), and the Court of Appeal affirmed.
- The Court emphasized that when a plaintiff pleads discriminatory/retaliatory motive and the alleged wrongdoing is the discriminatory conduct (even if that conduct triggered protected communications or proceedings), the anti-SLAPP statute does not automatically apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nam’s claims “arise from” protected petition/speech under §425.16 | Nam’s suit challenges retaliation and sexual harassment; the gravamen is discriminatory/retaliatory conduct, not the University’s investigative communications | The disciplinary process, warnings, investigatory letters and internal complaints are statements in an official proceeding and thus protected; anti-SLAPP applies | Court held defendant failed to show the causes of action arose from protected activity; anti-SLAPP denied and affirmed on appeal |
| Whether defendant’s motive is relevant to the anti-SLAPP threshold | Motive (retaliation/sexual motive) is central to Nam’s claims that discipline was pretextual | Motive is irrelevant under anti-SLAPP; focus should be on whether defendant’s acts were protected regardless of motive | Court held defendant’s motive may be relevant in harassment/retaliation cases; cannot treat routine employment discipline as automatically protected |
| Whether communications/incidents that triggered proceedings convert claims into SLAPPs | Nam: such communications are evidence of retaliation, not the wrongful acts themselves | University: written/oral statements and filings in proceedings are protected and form the basis of Nam’s claims | Court distinguished protected communications used as evidence from the wrongful conduct itself; gravamen controls and here is retaliation |
| Whether public institutions can shield discriminatory conduct by invoking anti-SLAPP | Nam: permitting that would create a safe harbor for discrimination/retaliation | UC: broad reading of anti-SLAPP would apply when discipline follows complaints/investigations | Court rejected a rule that would subject most employment discrimination/retaliation suits against public employers to anti-SLAPP dismissal |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (explains focus on defendant’s activity in anti-SLAPP analysis)
- City of Cotati v. Cashman, 29 Cal.4th 69 (defendant’s act underlying claim must be an act in furtherance of petition or speech)
- Kibler v. Northern Inyo County Local Hospital Dist., 39 Cal.4th 192 (peer review can be an "official proceeding" for anti-SLAPP purposes)
- Department of Fair Employment & Housing v. 1105 Alta Loma Rd. Apartments, LLC, 154 Cal.App.4th 1273 (gravamen was disability discrimination; communications were evidence, not the wrongful acts)
- Martin v. Inland Empire Utilities Agency, 198 Cal.App.4th 611 (anti-SLAPP not a safe harbor for employer discrimination/retaliation)
- McConnell v. Innovative Artists Talent & Literary Agency, Inc., 175 Cal.App.4th 169 (retaliation/termination claims were based on employer conduct, not protected writings)