John v. Douglas County School Dist.

• Decision Date: 25 November 2009
• Docket Number: No. 48101.,48101.
• Citation: 219 P.3d 1276
• Parties: Greg JOHN, Appellant, v. DOUGLAS COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada; Tom Morgan, an Individual; Katherine Milner, an Individual; Gary Diedrich, an Individual; and Marty Swisher, an Individual, Respondents.
• Court: Nevada Supreme Court

219 P.3d 1276

Greg JOHN, Appellant, v. DOUGLAS COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada; Tom Morgan, an Individual; Katherine Milner, an Individual; Gary Diedrich, an Individual; and Marty Swisher, an Individual, Respondents.

No. 48101.

Supreme Court of Nevada.

November 25, 2009.

Jeffrey A. Dickerson, Reno, for Appellant.

Erickson Thorpe & Swainston, Ltd., and Ann M. Alexander and Rebecca Bruch, Reno, for Respondents.

Before the Court En Banc.

OPINION

By the Court, GIBBONS, J.:

This case arises out of an employment discrimination lawsuit. Appellant Greg John was a security officer for the Douglas County School District (DCSD). Other staff members of the school district alleged that John engaged in both unprofessional conduct and sexual harassment. Following the school district's investigation, John was suspended. John appealed the suspension under the collective bargaining agreement between the school district and his union, but the suspension was upheld. Later, John filed an Equal Employment Opportunity Commission (EEOC) complaint against the school district, but the EEOC did not find any violations. After the EEOC dismissed John's complaint, he filed an employment discrimination lawsuit in Nevada district court against the school district and various officials alleging both federal and state causes of action.

Approximately one year later, the school district discovered that John had improperly obtained confidential student records, and he failed to cooperate with the school's investigation into that conduct. After the investigation concluded, the school district fired John because of the information obtained during the records investigation and John's previous misconduct. Following John's termination, the school district filed a special motion to dismiss under Nevada's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute. The district court granted the school district's motion, and John now appeals that order.

There are two primary issues on appeal. The threshold issue is whether Nevada's anti-SLAPP statute applies to John's federal causes of action raised in Nevada district court. John's three federal causes of action include the following: (1) religious discrimination, (2) First Amendment violations, and (3) civil rights violations. We conclude that Nevada's anti-SLAPP statute does apply to these federal causes of action because it is a neutral and procedural statute that does not undermine any federal interests.

Having concluded that Nevada's anti-SLAPP statute applies to John's federal causes of action, the next issue we consider is whether the district court erred in dismissing John's lawsuit under the statute. We conclude that the district court properly dismissed John's lawsuit for two reasons. First, the school district made a threshold showing that the communications by school employees and the DCSD regarding John's inappropriate behavior at work and the resulting investigations were protected under the anti-SLAPP statute, and this showing shifted the burden of production to John. Second, John failed to allege a genuine issue of material fact regarding the claims he filed based on the communications by school employees and the DCSD about the investigations into his conduct at work. As a result, the district court properly dismissed John's lawsuit.

RELEVANT PROCEDURAL HISTORY AND FACTS

I. The DCSD's investigations

John began working as a security officer for the DCSD in 1989. In 2003, a fellow security officer resigned due to John's unprofessional behavior. During his exit interview, the security officer stated that John engaged in various forms of unprofessional conduct, including egregious racial and sexual remarks about students and other staff members. John also videotaped special education students, made sexually explicit narrations regarding the students, and then showed the video to others.

In addition, a fellow DCSD employee accused John of sexual harassment. After an investigation into the allegations, John received a letter of discipline from the DCSD, which warned that further unprofessional conduct would result in his termination. At the same time, John received a two-week suspension without pay, mandatory sexual misconduct training, and mandatory anger management counseling. The DCSD also prohibited John from using the video surveillance equipment. John filed a grievance with his union, but the discipline was upheld at all three levels of the union's grievance process. John then filed a claim with the EEOC, but the commission concluded that there was no violation.

In 2005, John obtained confidential student disciplinary records, and he failed to cooperate with the school district's subsequent investigation into the matter. As a result, the DCSD suspended John until the conclusion of the investigation. Upon conclusion of the investigation, the DCSD fired John due to the information obtained during the records investigation and John's previous misconduct.

II. The federal employment lawsuit in Nevada district court

In 2004, prior to his termination but after exhausting the EEOC's administrative process, John filed a lawsuit against the DCSD alleging the following: (1) the DCSD engaged in religious discrimination against John, a Protestant, under Title VII; (2) John has a disability under the Americans with Disabilities Act (ADA), which the school district violated; (3) the DCSD violated John's right to free speech, under 42 U.S.C. § 1983, when it retaliated against him for his protesting the removal of his video surveillance duties; and (4) various DCSD officials made false and defamatory statements about John without privilege or justification. In the lawsuit, John also named private individuals working for the DCSD as defendants because they provided information to the DCSD during its investigations of John. For instance, John named a teacher's aid as a defendant because she reported during a DCSD investigation that John had sexually harassed her. John also named the vice principal of Douglas High School as a defendant, alleging that the vice principal discriminated against John based on his Protestant religion by assisting in the DCSD's investigations. Finally, John named a former DCSD security officer as a defendant after the security officer reported to the DCSD during an exit interview that John engaged in various forms of unprofessional conduct, including egregious racial and sexual remarks about students and other staff members.

After John filed the lawsuit, the DCSD filed a motion to dismiss, alleging that the collective bargaining agreement between the school district and John's union barred his claims. The district court dismissed John's state-based defamation claim but denied the motion with respect to the federal Title VII, ADA, and § 1983 claims.

After John's termination, he amended his complaint to include the DCSD officer who fired him, and to include a fifth count: that the DCSD wrongfully terminated him. In response, the DCSD filed a special motion to dismiss under Nevada's anti-SLAPP statute, NRS 41.660. The school district asserted that the school officials' actions related to the investigations of John constituted protected conduct under the statute, and the communications between school officials and the DCSD in furtherance of these investigations were privileged and truthful. The district court granted the DCSD's special motion to dismiss, finding that the DCSD's actions were protected activity under the anti-SLAPP statute, and that John failed to provide sufficient evidence to demonstrate a probability of success regarding his claims. Specifically, the district court found that John's supplemental declaration provided insufficient evidence to set forth a genuine issue of material fact. John now appeals the district court's order granting the DCSD's special motion to dismiss under Nevada's anti-SLAPP statute.

DISCUSSION

We first explain the purpose of Nevada's anti-SLAPP statute and the standard of review. Afterwards, we analyze and conclude that Nevada's anti-SLAPP statute applies to John's federal claims, and therefore, the district court properly dismissed his lawsuit.

I. Nevada's anti-SLAPP statute

A SLAPP lawsuit is characterized as "`a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.'" Dickens v. Provident Life and Acc. Ins. Co., 117 Cal.App.4th 705, 11 Cal.Rptr.3d 877, 882 (2004) (quoting Wilcox v. Superior Court (Peters), 27 Cal.App.4th 809, 33 Cal. Rptr.2d 446, 449 n. 2 (1994), abrogated on other grounds by Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685, 694 n. 5 (2002)). The hallmark of a SLAPP lawsuit is that it is filed to obtain a financial advantage over one's adversary by increasing litigation costs until the adversary's case is weakened or abandoned. U.S. Ex Rel. Newsham v. Lockheed Missiles, 190 F.3d 963, 970 (9th Cir. 1999). For instance, the California Court of Appeal in Dickens affirmed a trial court's grant of an anti-SLAPP motion striking a malicious prosecution count from a complaint. 11 Cal.Rptr.3d at 877-78. The Dickens case arose when the plaintiff sued an insurance company and an insurance investigator alleging they initiated an improper prosecution of the plaintiff by the federal government for insurance fraud. Id. at 878. When affirming the district court's order, the court reasoned that the defendants' communications in preparation for a government investigation were in furtherance of their constitutional rights to free speech, and therefore, they were entitled to the benefits of California's anti-SLAPP statute. Id. at 883, 885.

Nevada's anti-SLAPP statute was enacted in 1993, shortly after California adopted its statute, and both statutes are similar in purpose and language. See NRS 41.660; Cal. Civ.Proc.Code § 425.16 (West 2004 & Supp. 2009). NRS 41.660 defines the type...