The Volokh Conspiracy
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The decision is Pham v. Apple, Inc., by Judge Socrates Peter Manoukian, handed down three weeks ago but to my knowledge largely unnoticed until now. First, the allegations from the Amended Complaint, as repeated in the opinion:
Plaintiff Trieu Pham … worked for defendant Apple, Inc. … as an iOS App Reviewer …. As an App Reviewer, plaintiff Pham was responsible for determining whether software applications ("Apps") were reliable, performed as expected, and were free of offensive materiaI. Plaintiff Pham reviewed Apps based on a pre-set of technical, content, and design criteria provided by defendant Apple; and plaintiff Pham determined whether to accept, reject, or hold each App…. Between July 2018 and September 2018, defendant Apple conducted an audit of plaintiff Pham's App Reviews, identified reviews by plaintiff Pham that were purportedly erroneous, and issued plaintiff Pham a Documented Coaching Plan [DCP] …. Following plaintiff Pham's rebuttal, defendant Apple reversed their classification of several of plaintiff Pham's purported errors.
The most serious error identified in plaintiff Pham's DCP was plaintiff Pham's approval of a Guo Media App which was forbidden from defendant Apple's China App store. The same App was reviewed and approved by a series of other Apple employees, including three Chinese App Reviewers, yet none of them were disciplined for approval of the App as plaintiff Pham was. All of the Apps identified by defendant Apple's management team as being "erroneously approved' by plaintiff Pham in the DCP remained on defendant Apple's App store following the audit and remain there to date.
Guo Media was established by Guo Wengui …, a Chinese dissident who fled China in 2014 to seek asylum in the United States. Guo remains wanted by the Chinese government for a series of alleged crimes. Guo regularly uses Guo Media to publicize claims of corruption against Chinese government officials and members of the Chinese Communist Part. After plaintiff Pham approved the Guo Media App, the Chinese government contacted defendant Apple and demanded that the Guo Media App be removed from defendant Apple's App store. Defendant Apple then performed an internal investigation and identified plaintiff Pham as the App Reviewer who approved the Guo Media App.
In or around late September 2018, shortly after defendant Apple provided plaintiff Pham with the DCP, plaintiff Pham was called to a meeting to discuss the Guo Media App with multiple defendant Apple supervisors and managers. At this meeting, defendant Apple supervisors stated that the Guo Media App is critical of the Chinese government and, therefore, should be removed from the App store. Plaintiff Pham responded stating the Guo Media App publishes valid claims of corruption against the Chinese government and Chinese Communist Party and, therefore, should not be taken down. Plaintiff Pham further told his supervisors that the Guo Media App does not contain violent content or incite violence; does not violate any of defendant Apple's policies and procedures regarding Apps; and, therefore, it should remain on the App store as a matter of free speech.
Plaintiff Pham also stated at this meeting that removing the Guo Media App under pressure from the Chinese government amounts to censorship. A few days later, plaintiff Pham met with [a supervisor] and again reiterated that the Guo Media App should not be taken down and Guo is entitled to publish his opinions. In the following weeks, plaintiff Pham discussed the Guo Media App with colleagues and relayed what transpired in his meetings with defendant Apple managers. Defendant Apple became aware of plaintiff Pham's criticism and defendant Apple's managers responded by retaliating against plaintiff Pham and ultimately terminating plaintiff Pham.
Plaintiff Pham believes the DCP was pretextual and created by defendant Apple to appease the Chinese government and to signal to China that defendant Apple did not approve an App created by Guo. The DCP was created to punish and retaliate against employees who spoke out against censorship or complained and refused to remove Apps that the Chinese government objected to on political grounds. …
Pham sued on various grounds, including national origin discrimination and discrimination based on a medical condition—claims that the court rejected—but the court allowed the case to go forward on a political discrimination claim:
[Cal.] Labor Code section 1101 states, "No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees." …
[Cal.] Labor Code section 1102 states, "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." …
[A] prima facie case for employment discrimination requires the following showing:
"Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive."
"To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action."
For both discrimination and retaliation, a plaintiff must demonstrate some discriminatory/ retaliatory intent. In other words, the alleged discrimination and retaliation (adverse action) must be because of or linked to plaintiffs engagement in some protected activity; here, plaintiff Pham's engagement or participation in political activity or affiliation.
The timing of defendant's knowledge that plaintiff engaged in a protected activity is significant. If defendant is unaware that the plaintiff has engaged in a protected activity (or is a member of a protected class) and subjects the plaintiff to some adverse employment action, there can be no causal link as a matter of law. Such is the case here where plaintiff Pham has not alleged defendant Apple's awareness that plaintiff Pham was engaging in protected political activity prior to issuance of the DCP. There can be no link between the protected activity and the adverse employment action.
However, plaintiff Pham's allegations in the [Amended Complaint] are sufficient to establish defendant Apple's awareness that plaintiff engaged in political activity prior to plaintiff Pham's termination. Plaintiff Pham must ultimately prove some causal link between his engagement in protected activity and his termination, but it is not a factual impossibility as it would be where plaintiff fails to allege defendant's knowledge and awareness that plaintiff engaged in protected activity prior to issuance of the DCP….
[P]laintiff can survive a demurrer if he can "show that he faced an adverse action because he engaged in political activity, or that he was coerced by threat of discharge to adopt or refrain from adopting a course of political activity." … [P]laintiff Pham's [has made] allegations … [about his] "approval of, and vocal support for, the Guo Media app" created by a political dissident…. Thus, there are now allegations contained in the [Complaint] that plaintiff engaged in protected activity and suffered retaliation and/or termination as a result.
Accordingly, defendant Apple's demurrer to the first and second causes of action in plaintiff Pham's [Complaint] on the ground that the pleading does not state facts sufficient to constitute a cause of action for discrimination and retaliation, respectively, is OVERRULED….
For more on Cal. Labor Code §§ 1101-02 and similar statutes in other states, see this article.