Terminated for Tweeting “All Lives Matter”: Eastern District Court Finds Political Retaliation Plausible and Allows Wrongful Termination Lawsuit Involving Sacramento Radio Host, Grant Napear, to Move Forward

         The case continues for former Sacramento Kings radio announcer, Grant Napear, as the Eastern District Court rules that Napear’s wrongful termination lawsuit may proceed under his political retaliation claim. Napear filed a wrongful termination lawsuit against his former employer, Bonneville International Corporation, who terminated Napear in May 2020 after he tweeted that “ALL LIVES MATTER…EVERY SINGLE ONE” during the height of the George Floyd-inspired unrest. Napear’s May 31, 2020 tweet responded to the question he received on Twitter from a former Kings player: “What’s your take on [Black Lives Matter]?”

        Bonneville terminated Napear on June 2, 2020, merely 36 hours after his tweet, under the determination that Napear’s tweet could likely discredit the station’s reputation. Bonneville terminated Napear for cause as defined in his employment contract, which states that “the term ‘Cause’ shall be defined as any of the following conduct by Employee, as determined by the Company in its reasonable discretion:…Any act of materials dishonesty, misconduct, or other conduct that might discredit the goodwill, good name, or reputation of the Company.”   

     Napear, the plaintiff, filed a federal employment discrimination and retaliation lawsuit against Bonneville in October 2021 alleging that Bonneville terminated him due to his religion, race, gender, and political views. In April 2023, the Court dismissed Napear’s complaint with leave to amend on the finding that Napear failed to allege sufficient facts showing that Bonneville knew of Napear’s religious beliefs, let alone that it had discriminated against him on the basis of those beliefs. Napear filed an amended lawsuit in May 2023.  

       In July 2023, the Eastern District Court ruled that Napear’s amended claim may proceed on the grounds of retaliation, but tossed Napear’s religious discrimination claim without leave to amend. Judge Dale A. Drozd ultimately ruled that Napear sufficiently stated a plausible claim for retaliation under California Labor Code §§ 1101 and 1102, which limit an employer’s ability to fire employees for their political activities.  

ON THE AMENDED SUIT & RELIGIOUS DISCRIMINATION 

      In May, Napear filed an amended suit asserting three claims: (1) wrongful termination in violation of public policy; (2) discrimination on the basis of religion in violation of the California Fair Employment and Housing Act, California Gov. Code § 12940 (“FEHA”); and (3) retaliation in violation of California Labor Code §§ 1101 and 1102. In the Second Amended Complaint (SAC) filed on May 11, 2023, Napear alleged that he “periodically spoke with his coworkers…about his religion and his faith in God.” He argued that his tweet was a “personal expression” of his “sincerely held Christian religious beliefs,” that the tweet was a “self-evident expression” of those beliefs, and that “[m]any people…including…[his] coworkers” and “members of the public” understood the tweet to be an expression of his “Christian religious beliefs.” 

     Bonneville, the defendant, filed a motion to dismiss Napear’s SAC in its entirety and relatedly argued that Napear’s allegations only suggested that his coworkers knew of his religious beliefs, not that any person directly involved with his termination knew of those beliefs. 

    The Court granted defendant’s motion to dismiss Napear’s religious discrimination claim without leave to amend. The Court noted that the facts alleged by Napear “do not give rise to the inference that [Napear’s] termination could have been based on religious animus” and therefore, the Court concluded that Napear failed to state a plausible claim for religious discrimination. Napear’s allegations do not suggest that Bonneville knew of the purported religious nature of Napear’s tweet nor that Bonneville knew of Napear’s religion more generally, before terminating him. Moreover, the Court noted that there was nothing contained in the tweet itself, such as a quotation to scripture or a reference to religion, indicating that the tweet was in any way religious in nature. 

ON POLITICAL RETALIATION 

      Next, the Court examined Defendant’s move to dismiss plaintiff’s claims brought under California Labor Code §§ 1101 and 1102. These sections serve to protect the fundamental right of employees to engage in political activity without interference by employers. California Labor Code § 1101 provides that “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy: (a) forbidding or preventing employees from engaging or participating in politics…[or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Similarly, § 1102 prohibits an employer from attempting to coerce or influence its employees’ political activities through the threat of discharge. 

       In its motion to dismiss plaintiff’s claims, Bonneville argued that plaintiff failed to state a claim under §§ 1101 and 1102 because he had not alleged that 1) Bonneville had a rule within the meaning of section 1101; 2) that the tweet constituted political activity; and 3) that defendant’s motivation in terminating Napear was political. The Court remained unconvinced by Bonneville’s assertion that it fired Napear as an apolitical business decision. The Court noted that Napear did sufficiently allege a rule within the meaning of § 1101. Napear met this standard by alleging that Bonneville used his termination as a warning to other Company employees that anyone who publicly criticized the Black Lives Matter movement (BLM) would be summarily terminated. 

      On the issue of whether Napear’s tweet constituted “political activity,” the Court considered Napear’s tweet to be facially political in nature when construed in the light most favorable to plaintiff. The tweet contained the phrase “All Lives Matter” in response to the question “What’s your take on BLM?”; was published by public figures; and was made just days after George Floyd’s death. These allegations were sufficient to allege that Napear’s tweet was political speech regarding a specific cause and could plausibly constitute political activity under §§ 1101 and 1102. 

       Napear’s amended claim also highlighted Bonneville’s political motivations underpinning the termination. Napear’s termination came swiftly, as did Bonneville’s public statement which noted that Napear’s tweet did not reflect the views or values of the company and that Napear’s tweet “was particularly insensitive.” Napear also contended that all seven individuals involved in his termination objected to the political and/or religious nature of his tweet and had expressed negative emotion in response to his “All Lives Matter” statement. Collectively, these allegations, the Court concluded, were sufficient to plausibly suggest that Napear’s political activity – which included posting a tweet containing a certain message – motivated Bonneville to terminate him. As such, Napear’s political retaliation claims under §§ 1101 and 1102 will move forward. 

TAKEAWAYS

   Two lessons emerge from this ruling. The first is that an employee claiming wrongful termination on the basis of religious discrimination must prove that the employer acted with a discriminatory motive. This involves showing that the employer knew of the employee’s religion, that those involved in making the decision to terminate the employee were aware of the employee’s religious beliefs, and that the employee was terminated due to those beliefs. A tweet isn’t religious just because the person posting it says it is. 

   Secondly, an employer’s use of a termination as a warning to other employees of intolerable conduct may be construed as a rule under § 1101, and thus give rise to a political retaliation claim. As Judge Drozd noted, “defendant used [Napear’s] termination ‘as an example to all other employees of the Company as an implicit warning that anyone that dared to speak out publicly and criticize the politics of the Black Lives Matter movement would be summarily terminated.’” This ruling serves as a warning to employers of the perils of view point discrimination against employees whose political beliefs differ from their own.

You can access the full July 25, 2023 Court Order here. 

SIGN UP REMINDER: Lunch & Learn POST Class Tomorrow, Oct. 18 on "Demystifying the New Decertification Process Under S.B. 2"

Join us tomorrow via Zoom as our attorneys, David E. Mastagni and Joshua Olander, present a class on "Demystifying the New Decertification Process Under S.B. 2." Class starts at 11:30 A.M. and is expected to end around 2:30 P.M.

The class provides an overview of the national standards for licensing police officers and aims to familiarize students with the grounds for decertification with a focus on the current legislative fight in California over Senate Bill No. 2. 

To register, you can go to our "Upcoming Events" page on our website. Click here to be redirected to the event sign up webpage. Click on the class (or classes) you wish to attend and enter in your contact information, including your POST ID. Once registered, you will receive a Zoom link. Alternatively, you can also email us at register@mastagni.com to register. 

Please contact us if you are having issues receiving the Zoom link or if you have any questions about our course offerings. The full list of our Lunch and Learn classes can be found on our flyer below. 

Thank you and we hope to see you soon! 

The Ninth Circuit Establishes Broad Scope of Qualified Immunity in Case Involving Officer Who Shot Suspect Beating His Partner

In an unusual and noteworthy move, the Ninth Circuit Court of Appeals reversed itself and granted qualified immunity to a police officer who used deadly force to stop a suspect beating his partner. The Los Angeles police officer, Edward Agdeppa, faced a § 1983 federal civil rights action filed by the decedent's mother, who argued that Agdeppa’s use of deadly force was objectively unreasonable and violated the decedent's clearly established Fourth Amendment rights. Although Agdeppa faced multiple legal setbacks while defending his actions, the Ninth Circuit has ultimately ruled that he is entitled to qualified immunity.

Qualified immunity is a legal concept used to protect police officers from personal liability in lawsuits over harm caused while carrying out their official duties. Qualified immunity applies unless (1) the officer violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established.”

The lower court ruled against Agdeppa, denying his qualified immunity defense because a jury might find that a reasonable officer would not have believed the suspect posed an immediate threat. Agdeppa appealed the decision to the Ninth Circuit, which issued a 2-1 decision in December 2022 upholding the denial of qualified immunity. However, following the retirement and replacement of one judge, the reconstituted panel decided to withdraw its ruling and rehear the case. On August 30, 2023, the Ninth Circuit issued its new decision, holding Agdeppa is entitled to qualified immunity because his actions did not violate clearly established law.

Facts of the Case

The incident occurred in October 2018, when Officers Agdeppa and Rodriguez responded to a Hollywood gym after receiving a report of an aggressive trespasser threatening patrons and assaulting a security guard. Upon arrival, the officers activated their body-worn cameras and were directed to the men’s locker room. There, they encountered Albert Dorsey standing naked in the shower area, playing music from his phone. Dorsey, 6'1” and weighing 280 pounds, towered over Agdeppa and Rodriguez, 5'1” and 5'5,” respectively, each weighing around 145 pounds.

For several minutes, the officers repeatedly ordered Dorsey to turn off his music, put on his clothes, and leave the gym. Rather than comply, Dorsey danced and raised his middle finger, taunting the officers. Agdeppa approached Dorsey and successfully secured one handcuff on his wrist, but failed to cuff the other wrist. Dorsey quickly became combative and a violent struggle ensued. The officers tried various tactical maneuvers to secure Dorsey, including using arm, finger, and wrist locks. The body-cam video shows that Dorsey used his size to thwart the smaller officers’ attempts to handcuff him.

As the struggle intensified, the body-cams were knocked to the floor. The remaining encounter was not caught on video, but the cameras continued to record the audio. Agdeppa alleged that the struggle turned more violent after the body-cams fell. The officers can be heard heard shouting, groaning, and crying out in pain amidst sounds of banging and thrashing.

Dorsey was repeatedly told to stop resisting. Despite both officers deploying their tasers multiple times, Dorsey continued resisting and overpowered them. Agdeppa attested that Dorsey repeatedly struck him in the face and knocked him into a wall, disorienting him and causing him to drop his taser. Agdeppa then witnessed Dorsey straddling Rodriguez and “pummeling” her head with a “flurry of punches,” while also gaining control of her taser. Agdeppa drew out his gun and ordered Dorsey to stop, but Dorsey continued beating Rodriguez. It was at this point that Agdeppa fired five shots to stop Dorsey, who subsequently died from his injuries.

Brief Procedural History

Dorsey's mother filed a § 1983 lawsuit against Agdeppa claiming he used unreasonable deadly force in violation of Dorsey’s Fourth Amendment rights. Agdeppa moved to have the case dismissed, arguing that the use of deadly force was objectively reasonable and that he was entitled to qualified immunity. The lower court denied qualified immunity, basing its decision on the U.S. Supreme Court’s broad constitutional principle that “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” The lower court ruled that because a jury could find that a reasonable officer would not have believed Dorsey posed an immediate threat, Agdeppa was not entitled to qualified immunity.

Agdeppa appealed only the second prong of the qualified immunity analysis – whether his conduct violated clearly established law. In December 2022, a Ninth Circuit three-judge panel upheld the lower court’s decision, 2-1. However, in May 2023, a reconstituted panel withdrew that opinion and announced it would reconsider the case. 

The Ninth Circuit Reverses Course and Grants Agdeppa Qualified Immunity

In its newly issued decision, the Ninth Circuit reversed the lower court and ruled that Agdeppa is entitled to qualified immunity because his use of deadly force did not violate clearly established law. The court explained that such a violation occurs only when it is “sufficiently clear that every reasonable [officer] would understand” that his or her conduct violates the law. In other words, the violation of law must be obvious and “beyond debate.

The Ninth Circuit explained that, according to the U.S. Supreme Court, “clearly established law” must not be defined at a high level of generality. That is because a police officer may have difficulty applying the abstract principles to the specific situation he or she faces, especially in high-stress and diverse search and seizure contexts. The court concluded that, unless it was obvious that the suspect did not pose an immediate threat, judges should not use hindsight to second-guess officers’ real-time decisions made in rapidly evolving situations.

The plaintiff additionally claimed that Agdeppa was constitutionally required to warn Dorsey before using deadly force. The Ninth Circuit again found that principle too general to defeat qualified immunity. The court emphasized that such a warning must be given “whenever practicable” and that it “is not a one-size-fits-all proposition.” The court recognized that there is “flexibility” in the warning rule, making it highly context-dependent. Therefore, the lack of a warning, on its own, is not sufficient to overcome qualified immunity.

Rather than rely on general constitutional principles, a plaintiff must point to precedent that “squarely governs the specific facts at issue.” While the plaintiff here offered numerous cases, the court rejected each of them by identifying how the facts of those cases differed from the one at hand. Because none of the cases were based on closely related circumstances, the court found that there was no basis to find that Agdeppa should have known that the use of force was obviously excessive, or that a deadly force warning was required.

Takeaways: 

The Ninth Circuit’s new opinion highlights the uncertainty and intensity that police officers face. In contrast to the lower court and rescinded opinions, this decision reflects an appreciation of the split-second decisions that officers are forced to make in high pressure situations. On one end of the spectrum, broad constitutional principles are far too general to be applied in denying qualified immunity. On the other end, decisions regarding specific factual situations should be cabined to very similar circumstances. Combining these concepts means that qualified immunity should generally be granted unless (1) the use of force is so obviously excessive that it is beyond dispute, or (2) there is binding precedent on highly analogous facts.

Nothing in the opinion detracts from an officer’s duties to de-escalate when feasible and give a deadly force warning when practicable. However, through this decision, the Ninth Circuit creates a high burden for labeling conduct as violating clearly established law, and establishes a broad framework for courts to find that police officers are entitled to qualified immunity.

The full Aug. 30^th Opinion can be found here. 

Watch David E. Mastagni's Oral Argument in the Ninth Circuit Court of Appeals on Behalf of Ventura County Deputies and Firefighters

In Anthony Sanders, et al. v. County of Ventura, current and former members of the Ventura County Deputy Sheriffs’ Association (“DSA”) and the Ventura County Professional Firefighters’ Association (“PFA”) filed an FLSA lawsuit challenging the County's unlawful pay practice of imposing an involuntary deduction from the earnings of employees who waive health insurance in order to defray the benefit costs of other employees.  The suit alleges the fee constitutes an illegal kickback of wages.  The County unilaterally imposed this "Opt-out Fee", which subsumes most of the Flexible Benefit Allowance (“Allowance”) paid to the Plaintiffs as income. 

On August 22, 2023, David E. Mastagni argued this case before the Ninth Circuit Court of Appeals. This appeal seeks reversal of the district court’s error in granting the County's cross-motion for summary judgment/adjudication based entirely upon its finding that the involved Flexible Benefits Plans were “bona fide” and the County’s cash-in-lieu payments were “incidental.”  The bona fide dispute is not dispositive of the claims raised in Plaintiffs/Appellants’ lawsuit. 

The County admitted that the opt-out fee is first paid to Plaintiff as gross income within the meaning of I.R.C. § 61 and reflected in Plaintiffs’ paystubs as earnings. David argued that because the full Allowance is paid directly to Plaintiffs prior to the deduction of an “Opt-out Fee”, the fee cannot be excluded from the regular rate of pay. In short, plaintiffs contend direct payments to employees who waive health insurance, the opt out fee cannot be excluded from the employee’s “regular rate of pay” pursuant to 29 U.S.C. § 207(e)(4). Flores v. City of San Gabriel, 824 F.3d 890, 901-02 (9th Cir. 2016), cert. denied, 137 S. Ct. 2117 (2017).  

However, this action is primarily a dispute over whether the fee constitutes an unlawful deduction for which Plaintiffs are entitled to restitution.  Because the FLSA involves overtime claims, the suit seeks restitution by alleging no overtime can be deemed paid until these Opt-out Fee deductions are repaid.  The FLSA also prohibits deductions unless they are voluntary and the employer derives no benefit from the deduction.  Here, Plaintiffs contend the deductions are involuntary and benefit the County by defraying its labor costs.  Finally, the FLSA requires overtime rates to be calculated on a pre-deduction basis. 29 C.F.R. § 531.37(b). 

Watch the oral arguments below:

Mastagni Holstedt Partner Joins PERB Advisory Committee

Kathleen N. Mastagni Storm, a partner in our Labor and Employment Department, has been asked to join the Public Employment Relations Board’s (PERB) Advisory Committee for its Panel of Neutrals Listing.

PERB is a quasi-judicial administrative agency that administers and enforces collective bargaining statutes like the Meyers-Milias-Brown Act (MMBA) and resolves claims of unfair labor practices. PERB also oversees the factfinding process, which involves a three-person panel that hears evidence on negotiation issues in dispute and provides findings of fact and recommendations for settlement. This process is similar to interest arbitration proceedings in that the panel can conduct investigations and hold hearings, but it is non-binding.

PERB’s Advisory Committee for its Panel of Neutrals Listing reviews and provides feedback on applications from those wishing to join PERB’s list of neutral factfinders. The Advisory Committee is composed of both union and management representatives. Kathleen, a well-known union advocate at PERB, will have the opportunity to provide labor’s perspective on those seeking to serve as factfinders with PERB. Once approved, the factfinder may be chosen to serve on a factfinding panel.

Kathleen is honored PERB asked her to participate on the Advisory Committee and looks forward to being involved in the process and assisting in growing the list of neutrals with expertise and experience in labor law.