The Volokh Conspiracy

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Free Speech

Private Employee's Claim That He Was Fired for Political Tweet Can Proceed Under California Statutes


In Surdak v. DXC Technology (decided Dec. 20 by Judge Stanley Blumenfeld, Jr. (C.D. Cal.), but just posted a few days ago on Westlaw), plaintiff claimed he was fired (1) because of his "complaints … that he was not being paid all his wages" and (2) "in retaliation for posting a tweet on his personal Twitter account and complaining that DXC's request that he remove the tweet constituted illegal censorship"; "Plaintiff's colleague filed an internal complaint about the tweet, posted by Plaintiff, which stated, 'I'll have those niggers voting Democrat for the next 200 years,' and attributed the quote to Lyndon B. Johnson."

I'll skip the wage complaint question here, and turn to the Tweet issue, which arises under California's employee free speech statutes; opinions applying such statutes are fairly rare, though this one struck me as noteworthy:

However, Plaintiff also alleges that he was terminated in violation of Cal. Labor Code §§ 1101 and 1102. "Sections 1101 and 1102 of the California Labor Code prohibit employers from interfering with the fundamental right of employees in general to engage in political activity." Couch v. Morgan Stanley & Co. Inc., 656 F. App'x 841, 842 (9th Cir. 2016) (internal quotation omitted). "Liability … is triggered only if an employer fires an employee based on a political motive." A political motive might include "punishing him for expressing political views contrary to [the employer's] or, by discharging plaintiff, attempting to discourage other employees from expressing political views different from [the employer's]." Nava v. Safeway Inc., No. F063775, 2013 WL 3961328, at *8 (Cal. Ct. App. July 31, 2013).

Plaintiff has offered evidence that his tweet was politically motivated speech: it is undisputed that "[t]he only reason Surdak shared the tweet was to educate people about Lyndon Johnson"—a political figure expressing a highly political, albeit a highly offensive, statement. Moreover, DXC concedes that it fired Plaintiff at least in part because of the tweet, and a reasonable jury could conclude that DXC disagreed with the political views expressed in or suggested by the tweet and wanted to punish Plaintiff for, or discourage other employees from, expressing similar speech.

Because genuine issues of material fact exist as to whether Plaintiff was terminated for expressing his political beliefs, summary judgment on Count 4 is inappropriate. See Nava, 2013 WL 3961328, at *8 ("If plaintiff was fired for his particular political perspective, affiliation or cause … so that it may be inferred that (as plaintiff alleged) [the employer] was in effect declaring that the espousal or advocacy of such political views will not be tolerated—then [the employer's] action constituted a violation of Labor Code sections 1101 and 1102.").