Does the anti-SLAPP statute discriminate against FEHA plaintiffs?

An analysis of [case]Decambre[/case] and how it injected the [case]McDonnell-Douglas[/case] burden-shifting test into anti-SLAPP motion consideration

John Steven West
2016 June

Much has been written about California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. That statute is a mechanism for courts to test the viability of claims arising out of a defendant’s constitutionally protected activity. Its purpose “is to prevent the chilling of ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances’ by ‘the abuse of the judicial process.’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 313.)

Based on anecdotal evidence, it is fair to say that the statute is about as popular as North Korea these days. The statute’s critics are not limited to plaintiffs’ attorneys who are bitter about claims lost to anti-SLAPP motions without discovery, about the work required to defeat motions filed under Section 425.16, or about the delays triggered by a defendant’s right of automatic appeal from the denial of any anti-SLAPP motion. The courts themselves have been openly critical of Section 425.16. In Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1001, the Court of Appeal noted that the “right of a defendant to appeal a losing anti-SLAPP motion quickly became, like so much else of the anti-SLAPP procedure, the subject of criticism.”

Thanks to a recent decision out of the Fourth Appellate District, Decambre v. Rady Children’s Hospital-San Diego (“Decambre”) (2015) 235 Cal.App.4th 1, it is arguable that a new criticism can be leveled at Section 425.16: the second step of the two-step anti-SLAPP analysis discriminates against plaintiffs who assert claims under California’s Fair Employment and Housing Act (“FEHA”), Government Code section 12900 et seq.

As many practitioners have already seen, “[a]nalysis of an anti-SLAPP motion requires a two-step process. ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036.)

Before Decambre, cases unanimously held that plaintiff’s second prong factual burden under the anti-SLAPP test was only to “establish that his or her claim has minimal merit.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471) Or, as another court put it, “the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” (Mann v. Quality Old Time Serv., Inc. (2004) 120 Cal.App.4th 90, 105.) And, as will be shown, before Decambre, cases unanimously recognized that in the anti-SLAPP context, courts do not weigh evidence or assess relative credibility.

In Decambre, the Fourth District seemed to jettison both the standard applicable to a plaintiff’s burden and the rule against weighing evidence in the context of an anti-SLAPP motion directed against a FEHA claim. That court adopted the three part “McDonnell-Douglas test” as the analytical tool for determining whether a FEHA plaintiff has met his anti-SLAPP factual burden. In doing so, Decambre has placed FEHA plaintiffs at a disadvantage, compared to non-FEHA plaintiffs, in the anti-SLAPP setting. That disadvantage is the product of the fundamental incompatibility between the way courts analyze facts under McDonnell Douglas and the way courts are supposed to analyze the facts under the anti-SLAPP statute.

The Decambre case

The plaintiff in Decambre was a doctor who sued a hospital for discrimination and retaliatory termination. The hospital filed an anti-SLAPP motion which asserted: (1) that the peer review process that resulted in the doctor’s termination constituted protected activity for purposes of Section 425.16; and (2) that the plaintiff was terminated for a variety of legitimate business reasons. The motion was granted and the plaintiff appealed.

The Fourth District affirmed, devoting the bulk of its analysis to the prong of the anti-SLAPP test. According to that court, dismissal of the FEHA claims “was appropriate because DeCambre failed to make a sufficient showing that the defendants’ asserted rationale for the decision not to renew her contract was pretextual.” (Decambre, supra, 235 Cal.App.4th at 23.) In reaching that conclusion, Decambre cited at length to an earlier case, Hersant v. Department of Social Services (“Hersant”) (1997) 57 Cal.App.4th 997, in which the Court of Appeal applied the “McDonnell- Douglas” test in the context of a summary judgment motion. Decambre adopted the same McDonnell-Douglas test that the Hersant court used.

The McDonnell-Douglas test applies to discrimination claims

The test adopted in Decambre derives its name from McDonnell Douglas Corp. v. Green (“McDonnell Douglas”) (1973) 411 U.S. 792, 792, in which the United States Supreme Court articulated a burden shifting test to assess the sufficiency of discrimination claims. According to McDonnell Douglas, in such cases the plaintiff bears “the initial burden . . . of establishing a prima facie case of . . . discrimination.” (411 U.S. at 802-04.) If the plaintiff meets his initial burden, the “burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” (Ibid.) If the employer does so, the burden then shifts back to the plaintiff to show that the employer’s “stated reason . . . was in fact pretext.” (Ibid.)

California has adopted the McDonnell- Douglas test with respect to discrimination cases brought under FEHA. (Guz v. Bechtel Nat. Inc. (“Guz”) (2000) 24 Cal.4th 317, 354.) In Guz, our own Supreme Court noted that the “McDonnell-Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.”

When the McDonnell-Douglas test is appropriate

In the very case that gave rise to the test adopted in Decambre, the United States Supreme Court stressed that a discrimination plaintiff “must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” (McDonnell Douglas Corp., supra, 411 U.S. at 805.)

Consistent with the principle that the McDonnell-Douglas test is applied only when a plaintiff has had a full and fair opportunity to present his case, i.e., after unrestricted discovery, the test is typically applied in the summary judgment setting. “[B]y applying McDonnell-Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; see also Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108-09 (“When a plaintiff alleges . . . a claim under the FEHA . . . and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (citation omitted) to determine whether there are triable issues of fact . . . ”).)

The McDonnell-Douglas test in the anti-SLAPP context

In the anti-SLAPP context, a discrimination plaintiff is denied a full and fair opportunity to present his case, or to cross examine the employer’s defenses. In fact, the intent of the anti-SLAPP statute is the exact opposite. The statute precludes any and all discovery without special leave of court.

On its face, and by legislative intent, the anti-SLAPP statute denies a discrimination plaintiff the right established by McDonnell Douglas, supra, to (1) a full and fair opportunity to present his case, and (2) to examine the employer’s witnesses. That denial is codified in Code of Civil Procedure section 425.16, subdivision (g) itself, which provides: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.”

Numerous cases stress the Legislature’s intent that Section 425.16 result in early and quick resolution of claims. “Thus, the motion may be filed within 60 days from service of the initial action and it must be heard no later than 30 days from notice of the hearing unless the docket conditions of the court require a later hearing.” (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (“Mattel”) (2002) 99 Cal.App.4th 1179, 1189. see also Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1424 (referring to the SLAPP procedure as “a swift” remedy).)

“In enacting the anti-SLAPP statute, the Legislature set up a mechanism through which complaints that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the litigation process and resolved expeditiously.’” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) “‘Section 425.16 was intended to address those features by providing a fast and inexpensive unmasking and dismissal of SLAPP’s.’” (Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1161.)

The discovery “limitation is only to further the purposes of the special motion to strike, i.e., to minimize the costs and burdens of unmeritorious litigation directed at free speech rights.” (Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1021.) “[N]ot only did the Legislature desire early resolution to minimize the potential costs of protracted litigation, it also sought to protect defendants from the burden of traditional discovery pending resolution of the motion.” (Mattel, supra, 99 Cal.App.4th at 1190.)

When an anti-SLAPP motion is filed, “[d]iscovery is . . . stayed . . . unless the court ‘on noticed motion and for good cause shown . . . order[s] that specified discovery be conducted.’” (Id. at 1189- 90.) Although discovery is theoretically possible in the anti-SLAPP setting, it is by no means assured, and in all likelihood inadequate to enable a discrimination plaintiff to show a probability of success by circumstantial evidence. It is hard to imagine a defendant who, given the broad language of the statutes and cases interpreting Section 425.16, would not vigorously oppose a plaintiff’s motion for discovery. On top of the unwilling defendant, there is strong chance, if not a likelihood given the tenor of the anti-SLAPP statute and cases, that a trial court faced with a discrimination plaintiff’s motion or ex parte application for discovery would either (1) deny a discovery motion outright, or (2) grant inadequate discovery to the plaintiff.

McDonnell Douglas requires the court to weigh evidence

In Guz, supra, 24 Cal.4th 317, the California Supreme Court discussed the application and evolution of the McDonnell- Douglas test. Pursuant to Guz, California courts applying the McDonnell-Douglas test weigh evidence when considering the issue of pretext.

Guz held that “even where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer’s proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff’s favor.” (24 Cal.4th at 362.) The Supreme Court went on to illustrate the considerable extent to which the third (pretext) prong of the McDonnell-Douglas test involves weighing evidence: “For instance, an employer would be entitled to judgment as a matter of law . . . if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [Citations.].... [¶] Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case.” (Ibid.)

When a court assesses such things as the “strength of the plaintiff’s prima facie case,” whether the plaintiff created only a “weak issue of fact,” when there is only “some evidence” of falsity in the employer’s explanation, and the “probative value of the proof that the employer’s explanation is false” in connection with the employer’s stated reason for adverse action, it is clear that the court is weighing evidence. As will be shown, that is precisely what a court is not supposed to do in the anti-SLAPP setting.

No weighing of evidence in anti-SLAPP setting

In deciding an anti-SLAPP motion, courts “neither ‘weigh credibility, [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; see also Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336 (for purposes of the “probability of success” prong, the “court does not weigh the credibility or compare the strength of competing evidence, but merely determines if there is sufficient evidence to show plaintiffs can satisfy each element of their claim.”); HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (“In considering the anti-SLAPP motion, the court’s function is not to weigh the evidence . . . the ‘trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward’”).)

McDonnell Douglas, discrimination claims and circumstantial evidence

Federal and California courts have acknowledged the difficulty of proving intentional discrimination: “Proving intentional discrimination can be difficult because “[t]here will seldom be “eyewitness” testimony as to the employer’s mental processes.” (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 822-23.) In Guz, supra, the California Supreme Court specifically held that a plaintiff must . . . have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (24 Cal.4th at 356.)

It is difficult for a discrimination plaintiff who relies upon circumstantial evidence to meet his factual burden of stating and substantiating a prima facie case of discrimination under ordinary summary judgment circumstances. Section 425.16 increases that difficulty by imposing a factual burden upon a plaintiff who must proceed without discovery (or with extremely limited discovery). Consider, for example, the burden a plaintiff faces in demonstrating the element of pretext in an anti-SLAPP setting. The following formulation of that burden is from Decambre, and consists of language lifted verbatim from the summary judgment discussion in Hersant: “If defendants make this showing, the plaintiff must then establish that the ‘defendant’s proffered explanation is merely a pretext for the illegal termination....’ “The [employee] cannot simply show that the employer’s decision was wrong or mistaken.... Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,”..., and hence infer ‘that the employer did not act for the [the asserted] non-discriminatory reasons.’” (Decambre, supra, 235 Cal.App.4th at 23-24.)

Even if a discrimination plaintiff were able, in such constrained circumstances, to show that the employer’s reasons were lies, application of McDonnell Douglas in the anti-SLAPP setting might still compel a finding in favor of the employer. “Moreover, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. (Citation omitted) . . . Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. (Citation omitted.) Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at 360-61.)


Any increase in a FEHA plaintiff’s burden is contrary to the policy of the law to construe FEHA liberally. “The FEHA advances the fundamental public policy of eliminating discrimination in the workplace, and the provisions of the act are to be construed broadly and liberally in order to accomplish its purposes. (§ 12933, subd. (a)). Indeed, as we have stated, a ‘policy that promotes the right to seek and hold employment free of prejudice is fundamental. Job discrimination “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.” [(Quoting § 12920).] The statute’s aim is to provide effective remedies against this evil.’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)

Decambre conflicts with the law relating to a plaintiff’s factual burden in the context of the anti-SLAPP statute. That conflict is important because, in the final analysis, it vastly increases the likelihood of meritorious FEHA (i.e., public policy-based) claims being lost via anti-SLAPP motions. For now, though, Decambre is the law of this state.

Entertainers, broadcasters, journalists, hospital doctors, lawyers and others whose jobs involve or depend (at least arguably) upon protected activity should take note before filing FEHA-based lawsuits. It will be crucial for such plaintiffs to plan for as much evidence of pretext as possible. Under Decambre, the anti-SLAPP statute will discriminate against them.

John Steven West John Steven West

John Steven West is a partner in the law firm of Allred, Maroko & Goldberg. Since 1983, he has specialized in representing plaintiffs primarily in the area of employment law and in tort and business claims. His clients range from assembly-line workers to high-earning senior executives. Mr. West’s practice ranges from pre-litigation negotiations to all aspects of litigation, including appeals. He recently represented clients successfully before the California Supreme Court in a case involving the special employment doctrine, obtaining a reversal of a prior published decision by the Court of Appeal. Mr. West is a frequent speaker before various attorney and business groups on issues in employment law. He has served as a court-appointed arbitrator in numerous civil disputes and is a regular contributor to Advocate on employment-law issues.

Copyright © 2023 by the author.
For reprint permission, contact the publisher: Advocate Magazine