FEHA/Wrongful Termination

McGrory v. Applied Signal Technology (CA6 H036597 1/24/13) FEHA/Wrongful Termination

Defendant Applied Signal Technology, Inc. (Employer) terminated its four-year employment of plaintiff John McGrory (Employee) in June 2009 after an outside investigator retained by Employer concluded that, while Employee had not discriminated against a lesbian subordinate on the basis of her sex or sexual orientation, in other ways Employee had violated Employer's policies on sexual harassment and business and personal ethics and he had been uncooperative and deceptive during the investigation.

As an at-will employee, Employee was subject to termination by Employer for no reason or almost any reason (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 335 (Guz)), except for a reason that violates a fundamental public policy recognized in a constitutional or statutory provision.(Tameny v. Atlantic Richfield Co.(1980) 27 Cal.3d 167, 170, 172-174;Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79.)Public policy, expressed in part in California's Fair Employment and Housing Act (FEHA), prohibits employment discrimination on the basis of sex.(Gov. Code, § 12940 ;Rojo v. Kliger(1990) 52 Cal.3d 65, 91; seeLyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).)

In this case, Employee alleged that his termination violated four public policies.An employee cannot be terminated for (1) being male, (2) participating in an employer's internal investigation, or (3) trying to protect the confidentiality and privacy of coworkers.(4) A termination for misconduct must be preceded by notice and a hearing and honest findings of misconduct.As we will explain, he has abandoned these latter two claims on appeal.He further alleged that he was defamed when Employer's Vice-President of Human Resources told another employee why Employee was terminated.

Employer filed an alternative motion for summary judgment or summary adjudication (Code Civ. Proc., § 437c),asserting that there was no evidence that Employee was terminated for an impermissible reason and that Employer could not be liable in defamation for privileged statements of opinion on a topic of mutual interest.Over Employee's opposition, the trial court granted summary judgment, concluding that Employer's motion had established "a legitimate, non-discriminatory reason for terminating" Employee, Employee had "failed to meet his burden of showing substantial evidence that [Employer's] stated reasons for the adverse action were untrue or pretextual, such that a reasonable trier of fact could conclude that [Employer] engaged in discrimination," and Employer had established "that the allegedly slanderous statements are privileged."

On appeal, Employee claims that he has presented triable issues of fact regarding Employer's true motivation for terminating him and that Employer's statements about him to coworkers were not conditionally privileged because they lacked reasonable grounds.For the reasons stated below, we will affirm the judgment after concluding that there is no evidence warranting a reasonable inference that Employee was actually terminated for being male, that being uncooperative or deceptive in an employer's internal investigation is not a protected activity under state or federal law, and that Employer's statements to its employees about Employee's termination were conditionally privileged.

http://www.courts.ca.gov/opinions/documents/H036597.PDF