Monday, December 14, 2009

Supreme Court Reviews Text Messaging Case

On Monday the U.S. Supreme Court granted review in a matter entitled Quon v. Arch Wireless Operating Co., Inc. 529 F.3d 892 (9th Cir. 2008); review granted City of Ontario, Cal. v. Quon, --- S.Ct. ----, 2009 WL 1146443, (U.S. Dec 14, 2009) (NO. 08-1332). A key issue there is whether an employer has a right to review an employee's text messages. Collecting the briefing, the decisions of the trial court and the holding of the 9th Circuit would result in a huge pile of paper on your desk. But, we'll try to distill this down for blog consumption as follows.

In 2002, Quon and several others employed by the Ontario Police Dept. ("OPD") had their text messages, sent and received on OPD owned/provided pagers, reviewed by their supervisors. Arch wireless had provided transcripts of those text messages. In reviewing those texts (some of which were salacious or sexual in nature), the Dept. claimed to have unearthed wrongdoing on the part of the officers. The officers sued both the dept. and Arch, claiming violation of their 4th Amendment rights, and violation of the Stored Communications Act ("SCA").

By way of some background, the pagers and/or other electronic devices were provided by OPD. OPD also had a written “Computer Usage, Internet and E-mail Policy” that provded that personal use of such resources violated City policy. The department deemed use of the pagers and text messaging to be included within this policy. However, despite the policy, for at least 8 motnhs, the plaintiffs' supervisors apparently decided not to monitor the pager usage, policing the use only so far as to have the employees reimburse the City for any "overage" charges incurred by OPD as a rsult of going over the text limits. Later, when OPD became concerned with the number and frequency of overages, it ordered an audit of the text mesages to determine how much of the texting was done for police business versus personal use. It obtained the content of those texts from Arch, and review of those texts revealed, for example, that Quon sent and received hundreds of personal messages, including many that were sexually explicit.

The 9th Circuit ultimately held that the OPD officers had a "reasonable expectation of privacy" in the text messages, and that the Ontario PD's search of those texts was unreasonable under the circumstances. It also found that Arch Wireless had violated the SCA by turning over the content of the text messages without the prior consent of the officers.

What appears to have been the key in making this determination is the fact that OPD's policy regarding personal use of the pagers was not enforced. Although the Ontario PD had a written policy that said users "should have no expectation of privacy or confidentiality when using" the City's e-mail or other provided resources, it had made it clear that it would only enforce the personal use provisions to the extent that it would ask for reimbursement of the "overage" charges. Thus, this "unwritten policy" of not enforcing this provision, is what gave the employees the "reasonable expectation of privacy".

Wednesday, December 2, 2009

Do "Stray Remarks" Equal Harassment or Discrimination?

A case of interest presently pending before the California Supreme Court is that of Reid v. Google, Inc. (2007) 155 Cal. App. 4th 1342,66 Cal.Rptr.3d 744, review granted, 72 Cal.Rptr.3d 112. One issue to be addressed in Reid is whether California law should recognize the so-called "stray remarks" doctrine when ruling on summery judgment. The “stray remarks” rule allows courts to deem racist or sexist remarks insufficient to support denial of summary judgment if the remarks are considered “stray.” [Reid v. Google, Inc., 66 Cal.Rptr.3d 744, 759]

To understand this issue, let's back up a moment to understand the shifting burdens in harassment and discrimination cases. It has long been reconized that the plaintiff in such cases must meet an initial burden (establish a "prima facie" case) that the employer harassed or discriminated against him/her based on a protected classification (i.e. race, gender, etc.). The burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the adverse employment action. If the defense is successful there, the burden then shifts back to the plaintiff to “produce ‘substantial responsive evidence’ that the employer's showing was untrue or pretextual. (Citation.)” [Martin v . Lockheed Missiles & Space Co., 29 Cal.App.4th at p. 1735, 35 Cal.Rptr.2d 181; see also University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1035-1036, 272 Cal.Rptr. 264.) “To avoid summary judgment, [a plaintiff] 'must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses.’ (Citation.) [He] must produce ‘specific, substantial evidence of pretext.’ (Citation.)” [Bradley v. Harcourt, Brace and Co. (9th Cir.1996) 104 F.3d 267, 270; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807, 85 Cal.Rptr.2d 459, 466]

In Reid, supra, the plaintiff (age 54) alleged that he was discriminated against by Google because of his age, met his prima facie burden given his age, and the employer then brought a summary judgment motion, presenting evidence that it had legitimate nondiscriminatory reasons for terminating plaintiff's employment.

When an employer brings a motion for summary judgment in an age discrimination case, and the employer “presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” [Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, 48 Cal.Rptr.2d 448.) Once the employer meets its burden in the summary judgment motion, “the employee must demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” [Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, 128 Cal.Rptr.2d 660]

The plainitff in Reid sought to defeat Google's summary judgment by presenting (disputed) expert testimony that found a "highly statistically significant negative correlation between age and performance rating." In addition, Reid presented evidence that his supervisors had made remarks that reflected an "age-ist" attitude on their part; the so-called "stray remarks."

Several federal courts have recognized that "stray" remarks are insufficient to establish discrimination. [Gagne v. Northwestern Nat. Ins. Co. (6th Cir.1989) 881 F.2d 309, 314-316 [“single, isolated discriminatory comment” by plaintiff's immediate supervisor was insufficient to trigger burden shift or to avoid summary judgment for defendant]; Smith v. Firestone Tire and Rubber Co. (7th Cir.1989) 875 F.2d 1325, 1330 [stray “remarks, ... when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue”].)[Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 810, 85 Cal.Rptr.2d 459, 467 - 468]

The Court of Appeal in Reid did not agree with the suggestion that a “single, isolated discriminatory comment,” or comments that are “unrelated to the decisional process” are “stray” and therefore, insufficient to avoid summary judgment. [Reid, supra, 66 Cal.Rptr.3d 744, 759] It then found that the alleged "stray remarks", in conjunction with the statistical analysis that Reid presented (described above), presented triable issues of fact as to pretext.

Thus, it does not appear that the "stray remarks" doctrine, though discussed in Reid and other cases (see above), has been expressly recognized in California. However, since the California Supreme Court has granted review in the Reid case (finding that "stray remarks" evidence could form a basis for denial of summary judgment), this may change depending upon the ruling there.

Monday, November 30, 2009

As part of our firm's newly revamped web-site, my partner John & I will periodically be posting items on our blogs. We will tread into these new blog waters carefully at first while we get used to this new (for us) territory. We hope that you find the information in this blog, and on our site, helpful.