Lawsuit Over Firing Based on Employee’s Removal of Employer’s “Gay/Lesbian Pride Month” Poster

From Nava v. Safeway, Inc. (Cal. Ct. App. July 31, 2013), an interesting illustration of what can happen under statutes protecting private employees against employer retaliation based on the employees’ political speech or beliefs:

Defendant Safeway, Inc. …, a large supermarket chain, frequently displayed thematic posters in its stores and distribution centers as a way of promoting a corporate policy of diversity. In June 2009, a new poster entitled “GAY/LESBIAN PRIDE MONTH” was displayed by Safeway in the employee break room of its distribution center in Merced, California, where plaintiff Juan Nava was employed.

Plaintiff was offended by the poster and removed it. When his supervisors confronted him about removing the company poster, plaintiff explained that he disagreed with the poster’s political message. It appeared to plaintiff that Safeway was taking sides in the statewide political debate over same-sex marriage, a matter on which plaintiff had strong convictions. One week after this conversation took place, Safeway terminated plaintiff’s employment….

In 1937, “the California Legislature, recognizing that employers could misuse their economic power to interfere with the political activities of their employees, enacted Labor Code sections 1101 and 1102 to protect the employees’ rights.” Labor Code section 1101 provides: “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.” Labor Code section 1102 provides: “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.” These sections are designed to protect “ ‘the fundamental right of employees in general to engage in political activity without interference by employers.’ ”

What constitutes political activity under these provisions was described by the California Supreme Court in its Gay Law Students decision as follows: “These statutes cannot be narrowly confined to partisan activity…. ‘The term “political activity” connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.’ …” …

Following these principles in the present appeal, it would seem that plaintiff’s personal political views and advocacy relating to a cause or issue such as same-sex marriage would come within the definition of political activity protected under the statutes. The key question in this case is: was that the reason he was fired? Or, on the other hand, was plaintiff fired for removing and disposing of Safeway’s poster? If it was the latter, we agree with the trial court that Safeway was within its rights in terminating plaintiff’s employment. We briefly elaborate why that is so….

As the trial court correctly pointed out, Safeway had a right of free speech and was clearly entitled to display the subject poster in this case. Additionally, we agree with the trial court that merely displaying a poster with a political message was not a violation of Labor Code sections 1101 and 1102….

Consequently, when plaintiff removed the poster and discarded it into the wash room, he was, in effect, interfering with Safeway’s right to free expression. Obviously, the mere fact that he disagreed with Safeway’s real or apparent political views did not give him a right to remove Safeway’s property or censor its free speech.

Additionally, plaintiff’s conduct could be construed by Safeway as a form of insubordination — that is, of tampering with or disposing of company property. These are obviously valid grounds on which the employer may take action that are not based on the employee’s political activity or affiliation. While terminating a 10-year employee for removing a poster may seem severe, such is an employer’s broad prerogative. The important thing here is that if that was the reason for plaintiff’s termination, it would not constitute a violation of Labor Code sections 1101 or 1102.

[Footnote: Our opinion is not based on the particular message involved. Hypothetically, if an employer displayed a poster with a different emphasis — say, promoting the value of traditional marriage between a man and a woman — and an employee who did not like the poster tore it down, our opinion would be the same.] …

On the other hand, it is possible under the allegations that the poster incident was not the real reason for plaintiff’s termination. According to plaintiff’s first amended complaint, when plaintiff was confronted about his removal of the poster, he explained to two Safeway managers that he took down the poster because he was “extremely bothered” by the political agenda Safeway was apparently promoting by displaying the poster (e.g., same — sex marriage). Allegedly, when the managers heard plaintiff’s explanation, they reacted by expressing “disapproval of [p]laintiff’s position.” One week later, plaintiff was fired.

Under these allegations, construed liberally, one theory of plaintiff’s case was that he was fired because of the political perspective or cause that he identified with and espoused in his discussion with Safeway’s managers. If plaintiff was fired for his particular political perspective, affiliation or cause of favoring Proposition 8 or being against same — sex marriage, so that it may be inferred that (as plaintiff alleged) Safeway was in effect declaring that the espousal or advocacy of such political views will not be tolerated — then Safeway’s action constituted a violation of Labor Code sections 1101 and 1102. [Footnote: We are not saying an employee is entitled to get away with malicious words or disruptive or offensive conduct in the workplace by calling it political.] …

[P]laintiff’s declaration averred that when he met with Safeway’s managers about the poster incident, he expressed to them his disagreement with “the political message” of the poster and explained that there were others who stood with him and shared this same political perspective. The fact that plaintiff was abruptly terminated after making such disclosures to Safeway regarding his political beliefs during a time period in this state when issues such as Proposition 8 and same — sex marriage were “hotly contested political issue[s],” combined with other circumstances, permits a reasonable inference that his termination was based on the political views he expressed.

Those other circumstances include: plaintiff’s employment longevity; his coemployees’ observation that he was a thorough and conscientious worker; receiving the ultimate sanction of termination for discarding a company poster without receiving any verbal or written warning, or lesser sanction; Mr. Davis and Mr. Fuentes were suspended rather than terminated after being confronted by Mr. Bullard, who told Mr. Davis he didn’t agree with the poster’s message either; and, while plaintiff told management he “did not wish to have the poster back in the break room,” Mr. Fuentes was only suspended for three days even though he threatened management that “if they were going to put the poster up again, that [he] would do that again to the poster.”

This evidence and all reasonable inferences derived therefrom tend to support plaintiff’s contention that he was terminated for reasons other than simply taking down and discarding the poster. Such reasons could include punishing him for expressing political views contrary to Safeway’s or, by discharging plaintiff, attempting to discourage other employees from expressing political views different from Safeway’s in violation of Labor Code sections 1101 and 1102.

The plaintiff need only show a minimum level of legal sufficiency and triability to defeat an anti-SLAPP motion. We accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law….

The trial court was of the opinion that it was precluded from considering the issue of Safeway’s motive in terminating plaintiff’s employment. To the contrary, as we have made clear, Safeway’s motive or reason for terminating plaintiff’s employment is the dispositive factual issue in this case….