Lawsuit Over Firing of Sports Show Host for Tweeting "ALL LIVES MATTER…EVERY SINGLE ONE" Can Go Forward

So says a federal judge in California, applying statutes that protect private employees from firing based on their "political activities."

Though the First Amendment generally limits only actions by the government, many states have statutes that limit even private employers' ability to fire employees for their political activities (see this article for more details); some of them broadly cover ideological advocacy, and not just election-related activities:

In particular, two California statutes, enacted in 1937, provide:

[Cal. Labor Code § 1101:] No 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.

[§ 1102:] 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.

And Napear v. Bonneville Int'l Corp., decided yesterday by Judge Dale A. Drozd (E.D. Cal.), allowed claims under these statutes to go forward:

Plaintiff was an on-air talk show host for a popular sports radio talk show in the Sacramento region for approximately 25 years…. On the evening of May 31, 2020, plaintiff was at his home watching regional and national news broadcasts that were televising events involving protests over the death of George Floyd in Minnesota. At approximately 8:30 p.m., DeMarcus Cousins, a former Sacramento Kings player, posted a tweet on his Twitter account that was directed at plaintiff and asked him: "What's your take on BLM [Black Lives Matter]?" Plaintiff responded to Mr. Cousins' tweet with a tweet of his own: "Hey!!! How are you? Thought you forgot about me. Haven't heard from you in years. ALL LIVES MATTER…EVERY SINGLE ONE."

The following day, on June 1, 2020, defendant's representative … informed plaintiff that he was suspended from his radio show. The day after that, on June 2, 2020, defendant informed plaintiff that he was being terminated for cause as defined in his employment contract. Specifically, defendant maintained that plaintiff was terminated pursuant to paragraph 6(c)(vii), 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 material dishonesty, misconduct, or other conduct that might discredit the goodwill, good name, or reputation of the Company." …

For purposes of §§ 1101 and 1102, the California Supreme Court has defined "political activity" "as extending beyond 'partisan activity' to include 'the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.'"

[T]he court finds that plaintiff has sufficiently alleged a "rule, regulation, or policy" under § 1101 by alleging in the SAC that defendant used his 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." Surdak v. DXC Tech. (C.D. Cal. 2022) (finding that "a reasonable jury could conclude that [the employer] disagreed with the political views expressed in or suggested by the tweet [concerning Lyndon Baines Johnson] and wanted to punish Plaintiff for, or discourage other employees from, expressing similar speech"); Nava v. Safeway, Inc. (Cal. Ct. App. 2013) (explaining that if plaintiff alleged that he "was fired for his particular political perspective … [of] being against same-sex marriage … it may be inferred that … [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")….

[T]he court [also] finds that plaintiff's tweet at issue in this case can be considered facially political in nature when construed in the light most favorable to plaintiff: it contained the phrase "All Lives Matter" in response to the question "What's your take on BLM?"; was published by public figures—plaintiff, a popular sports radio host, in response to, Mr. Cousins, a well-known professional basketball player; and the tweet was made just days after George Floyd's death. The foregoing allegations, particularly when construed in the light most favorable to plaintiff, are sufficient to allege that plaintiff's tweet was political speech regarding a specific cause, and that plausibly constitutes political activity under §§ 1101 and 1102. See Gay L. Students Assn. v. Pac. Tel. & Tel. Co. (Cal. 1979) (explaining that "political activity" "connotes the espousal of … a cause, and some degree of action to promote acceptance thereof by other persons," such as "participation in litigation," "the wearing of symbolic armbands," and "the association with others for the advancement of beliefs and ideas")….

Defendant argues plaintiff's termination was for a "legitimate, apolitical reason," specifically, that plaintiff's "'social media use is inseparably connected with the Company's public image and reputation' and his 'statements are likely to discredit the goodwill, good name, and reputation of Bonneville.'" Defendant also argues in its pending motion that "negative responses and reactions to the Tweet on Twitter support Bonneville's stated reason for the termination." …

[D]efendant has presented an argument that is more appropriate for consideration on summary judgment. The facts that defendant has drawn from in order to assert its alternative narrative regarding plaintiff's termination are not before the court on this motion to dismiss….

[T]he allegations of plaintiff's [Second Amended Complaint] address the pleading deficiencies that this court previously identified and include newly alleged facts plausibly indicating that plaintiff's termination was politically motivated. To begin with, plaintiff alleges that his termination occurred less than 48 hours after the tweet was published by plaintiff. Following plaintiff's swift termination, defendant issued a public statement explaining that plaintiff's "recent comments about the Black Lives Matter movement do not reflect the views or values of Bonneville International Corporation" and noting that the tweet's timing of occurring days after George Floyd's death "was particularly insensitive."

Moreover, plaintiff alleges that defendant used his termination "as an example" and "implicit warning" to those that "dared to speak out publicly and criticize the politics of the Black Lives Matter movement," which allegedly caused "several employees" to register "internal complaints" to defendant based on a concern that defendant was sending its employees this exact message. Finally, plaintiff alleged that there were seven individuals involved in his termination on behalf of defendant, and that each of them "objected to Plaintiff's May 31, 2020 tweet because of the political and/or religious nature of Plaintiff's six-word public message" and "expressed negative emotion … based on Plaintiff's public political message that 'ALL LIVES MATTER…EVERY SINGLE ONE.'"

Collectively, these allegations are sufficient to plausibly suggest that plaintiff's termination was motivated by plaintiff's political activity of posting a tweet containing a certain message. See Ross v. Indep. Living Res. of Contra Costa Cnty. (N.D. Cal. 2010) (finding that the plaintiff sufficiently stated a claim under § 1101 by alleging that his employer terminated him days after learning he brought a disability access lawsuit against a recreational facility, causing it to temporarily close, which generated news and internet coverage). In light of these new allegations, defendant's proffered reason for plaintiff's termination—that it was an apolitical business decision—is not so convincing such that it renders plaintiff's version of events implausible.

{In addition, contrary to defendant's contention, the court does not view plaintiff's current allegations as being contradicted by other allegations that defendant believed the tweet was "anti-BLM" or that defendant terminated plaintiff to "curry favor with the power Black Lives Matter political movement."} …

As a matter of California common law, "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." … [P]laintiff's wrongful termination claim may proceed [under this theory] to the extent it relies on his California Labor Code §§ 1101 and 1102 claim.

Matthew J. Ruggles represents Napear. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.