UC Davis Uses Anti-SLAPP Provisions To Kill Discrimination Lawsuit

A UC Davis professor is suing the University for racial discrimination, harassment and retaliation in relation to charges surrounding the handling of a grade dispute.  The University is taking the extraordinary measure of using anti-SLAPP legislation as a means to quash a legitimate discrimination complaint.  If successful, this could set a new precedent as a legal tool used by alleged offenders to effectively gut current anti-discrimination protections in the workplace.

Professor Branner in August of 2008 filed a lawsuit at the UC Regents and Vice Provost Horwitz alleging that their actions violated his rights and protections under California law.

“Professor Branner believes that he has been subjected to race discrimination and harassment, and also retaliation for complaining about being improperly challenged with respect to his grades for a particular student.”

BACKGROUND

Professor George Branner has taught at UC Davis in the Department of Electrical and Computer Engineering since 1972.  He is and during his tenure has been the only African American Professor in his department.  At 72, he is also the oldest tenured Professor in the Department and has the most seniority.

According to the complaint, his advancement through promotion has been relatively slow, despite the fact that he had an outstanding teaching record and a large number of publications.   Professor Branner’s colleagues, most of whom were white, promoted through the UCD faculty ladder rank step process promptly. 

He alleges that he has perceived hostility and antagonism from several of his peers. Professor Branner felt discouraged from being assertive about his failed promotional opportunities and other indignities he suffered. The complaint cites a number of prior instances where Professor Branner felt aggrieved by his department and his colleagues during the course of his tenure with the university.

The specific issue in question that led to the lawsuit began in early 2005.  A student filed complaints against Professor Branner about the grades he gave the student in two classes.  Professor Branner disagreed and subsequently resisted pressure by the Student Faculty Review Committee (SFRC) to change the student’s grade to an “A”. However, the SFRC changed the grade to an “A”.   In another course, Professor Branner gave this student a “C+”.  Against Professor Branner’s will, the SFRC changed the student’s grade to a “B”.

The student’s initial informal complaint was sustained by the Student Faculty Relations Committee (SFRC) without even interviewing Professor Branner.  The SFRC determined that the student’s grade should be improved despite university rules forbidding such regrading.  The student’s second, more formal, complaint was, in fact, investigated and Professor Branner was interviewed.  The investigation concluded that the student’s allegations were not sustained.

In response to the student’s complaints, Professor Branner would file his own grievance with the University’s Privilege and Tenure Committee (PTC), asserting that “his rights to determine his grades and to enforce his course prerequisites had been improperly usurped by other faculty.”  Professor Branner claims that these faculty members were “biased against him and partial to the student in an attempt to discredit and embarrass him.”

The Chair of the Privilege and Tenure Committee (PTC) investigated Professor Branner’s allegations and concluded that the SFRC had, indeed, exceeded its authority and had violated Professor Branner’s rights and privileges with regard to his student grading.

The Chair criticized the changing of the student’s grades, against Professor Branner’s will, from an “Incomplete” to an “A”, and from a “C+” to a “B”.  The PTC Chair’s report indicated that the SFRC seemed to have prejudged the dispute in favor of the student and against Professor Branner.

“Professor Branner was inappropriately pressured into agreeing to an illegal regrading in [his course]; the faculty and staff in the ECE Department, the College of Engineering and in the Student Faculty Relations Committee(SFRC) acted in a biased, prejudicial and pre-judgmental manner against Professor Branner and in favor of [the student] in her complaint against Professor Branner; the SFRC acted illegally in even considering [the student’s] request for grade changes in Professor Branner’s courses, and cited incorrect and illegal reasons for the change in [the other course]; and, the Grade Change Committee illegally changed [the student’s] grade in Professor Branner’s [class].”

The report concluded by supporting Professor Branner’s request for a formal reprimand of the individuals who violated his rights and privileges, and that Professor Branner deserved “tangible redress” for his injuries.

Despite the strongly-worded conclusions of the Privileges and Tenure Committee, Interim Provost Barbara Horwitz refused to take any action against the perpetrators of the “biased, prejudicial and pre-judgmental” actions against Professor Branner.

Provost Horwitz merely offered a half-hearted apology to Professor Branner for the professional and personal mistreatment he has endured.

ANTI-SLAPP STATUTE

The remarkable aspect of this case, aside from the conduct of the university is the use of California’s “anti-SLAPP” statute to attempt to strike Professor Branner’s seemingly legitimate lawsuit.

This statute arose after corporations and other groups with considerable resources would file lawsuits against individuals who used their constitutional right to free speech to claim grievance and otherwise petition their government.

Under California Code of Civil Procedure section 425.16,

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

This arose because these law suits were aimed to force the defendants to expend years of time and large quantities of money to defend themselves against otherwise baseless and frivolous lawsuits.  Even with such protections, it often takes years and huge amounts of money to get courts to utilize this legislation.

Under 425.16:

“The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.”

The problem is now that increasingly we are seeing companies and universities using this legislation in an effort to kill legitimate lawsuits brought by individuals against companies and universities.  For example, the Davis Enterprise attempted to use anti-SLAPP legislation to throw out complaints by the Buzayans that the newspaper had violated their right to privacy through the disclosure of personal information intended to embarrass.

Now the University has taken this one step further.  As the lawyers for the defendant argue:

“Essentially, the Regents of the University of California are opposing Professor Branner’s race discrimination lawsuit by arguing that, even though Professor Branner contends that the actions against him were based on racial animus, the Anti-SLAPP statute insulates UCD and Provost Horwitz from accountability and legal liability.  The Regents are arguing, further, that Professor Branner should be required to pay UCD’s attorneys fees – over $20,000 at this writing – for having to respond to Professor Branner’s racial bias lawsuit!”

Professor Branner countered, unsuccessfully, that the anti-SLAPP statute should not extend to the Regents because the proceedings complained of are not “official proceedings” and his allegations do not “arise from” protected speech.  In addition, Professor Branner argued that the heart of his complaint is race discrimination, harassment, and retaliation.  Even the Regents should not be permitted to conduct their business in violation of these fundamental legal protections. 

The very manner in which his grievances were disregarded by the University while the indefensible complaints against him were aggressively pursued are evidence themselves of the racial discrimination, harassment and retaliation of which he complains.

To date, the Yolo County Superior court has agreed with the arguments by the University and has ruled that the lawsuit should be dismissed.

Tomorrow, the court will now hear a further motion by the university that will compel the Professor Branner to pay over $20,000 to the university in legal fees incurred to defeat Professor Branner’s claim of race discrimination and harassment, and retaliation for complaining about this mistreatment.

“Professor Branner, who contends he is a victim of UCD’s ongoing and continuous racial discrimination and harassment, contends that he is being further victimized by UCD’s outrageous claim of anti-SLAPP protection and by the prospective assessment of a $20,000 penalty for asserting that racist practices exist at UCD.” 

Professor Branner is currently appealing his case.  The Vanguard will continue to monitor developments in this case.  If the University is successfully, they may succeed in effectively gutting anti-discrimination protections under California law using the very legislation meant to protect individuals from malicious lawsuits.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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12 Comments

  1. Anon

    “To date, the Yolo County Superior court has agreed with the arguments by the University and has ruled that the lawsuit should be dismissed.”

    Do you know the reasoning of the court? What was the court’s holding?

  2. Ryan Kelly

    I don’t think we should encourage students and faculty to sue the University over grading disputes, however upsetting it is. Don’t you think that the student involved was equally upset – enough to file an official complaint. Do we allow the student’s to use Yolo County Court to resolve grading disputes with instructors?????

  3. David M. Greenwald

    Ryan: I don’t know. It sounds like it was less about the grades and more about the way the grade process was handled. But for me, I’m far less concerned about the particulars of the case, not to downgrade them, than the precedent of using anti-SLAPP legislation to dismiss the suit.

  4. David M. Greenwald

    Rich: I’ll have more in the next day or two. My main concern and reason for writing this is the use of the anti-SLAPP legislation. The court has apparently ruled that this man has to pay the university 21K. We’ll have to see why they struck the case and their reasoning for using SLAPP, but as I understand it, this is unprecedented and extraordinary.

  5. Al

    Another person in Davis using the race card to cry foul. Why am I not surprised? If he had been so discriminated against, he wouldn’t be the most senior professor nor would he have made it up the ranks at all.If he were truly discriminated against, he would not have been hired in the first place and would still be on the bottom of the list so stop crying wolf. I’m glad the courts are using their discretion in tossing out these frivilous lawsuits. For too long, lawyers and bleeding heart liberals have been running this country into the ground. Now, just like the Buzayannies, he has to pay back some major $$$. Now that’s justice!

  6. supportbranner

    Professor Branner, I KNOW how racist the Davis community can be.

    Keep your head up and sue, sue, sue!

    I hope you win a huge judgment against them.
    It’s time for the UCDavis administration to face the music!

  7. Jerry Waszczuk

    Newest in SLAPP

    UN HUI NAM v. THE REGENTS OF THE UNIVESRITY OF CALIFORNIA 

    WRONGFUL  TERMINATION , SEXUAL HARRASMENT -UC DAVIS MEDICAL CENTER

    7/29/2016 3DCA Opinion Certified for publication.

    https://www.scribd.com/document/363472393/UN-HUI-NAM-v-THE-REGENTS-OF-THE-UNIVERSITY-OF-CALIFORNIA

     
    The California anti-SLAPP statute was intended to counter the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  (Code Civ. Proc., § 425.16, subd. (a).)  It has been suggested that “[t]he cure has become the disease—SLAPP motions are now just the latest form of abusive litigation.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 96 (dis. opn. of Brown, J.) (Navellier).)  And the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if we were to accept the Regents of the University of California’s (University) misguided reading of the anti-SLAPP law and reverse the trial court’s denial of its motion to strike.  We agree with plaintiff Un Hui Nam that defendant did not sustain its burden to demonstrate that the gravamen of her claims for sexual harassment and retaliation arose from defendant’s protected First Amendment activity.  The trial court’s order therefore is affirmed.
    https://www.scribd.com/document/363473895/Slapp-Anti-slapp

     

     

  8. Jerry Waszczuk

    The regents Ant-SLAPP   is pending in the Court of  Appeal 3DCA -Sacramento

    Heckman v. The Regents of the University of California  (Yolo County Superior Court  Case No. Case No. CV CV 17-160) 

    Tentative Court Ruling dated March 22,2017

     
    Defendant Regents’s special motion to strike is GRANTED. (Code Civ. Proc.,§ 425.16.) Defendant has shown that plaintiff s first cause of action for defamation arises out of protected activity, and plaintiff has failed to show a probability of prevailing on the merits. (Code Civ.Proc.,§ 425.16, subd. (e)(l );  Vergas  v. McNeal  (2007)  146 Cal.App.4th  1387; Civ. Code, § 47,subd. (b).) Plaintiff fails to show with admissible evidence that section 47(b) does not apply to defendant’s statements. Having established that section 47(b) applies, the Court need not reach defendant’s remaining arguments regarding the lack of merit of plaintiff’s first cause of action.
     

     

     

  9. Jerry Waszczuk

     

    https://www.scribd.com/document/363475839/IN-THE-SUPREME-COURT-OF-CALIFORNIA-SUNGHO-PARK-v-BOARD-OF-TRUSTEES-OF-THE-CALIFORNIA-STATE-UNIVERSITYIN SUPREME COURT OF CALIFORNIA CERTIFIED OPINION FOR PUBLICATION FILED ON MAY 4, 2017  CASE:

    S229728 ,Sungho Park v. Board of Trustees of the California State University, the Court stated  :

     
    “To combat lawsuits designed to chill the exercise of free speech and petition rights (typically known as strategic lawsuits against public participation, or SLAPPs), the Legislature has authorized a special motion to strike claims that are based on a defendant’s engagement in such protected activity. (See Code Civ. Proc., § 425.16, subd. (a).)1 We consider a question that has generated uncertainty in the Courts of Appeal: What nexus must a defendant show between a challenged claim and the defendant’s protected activity for the claim to be struck?
     
    As we explain, a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity
    itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. Because the Court of Appeal ruled to the contrary, holding a claim alleging a discriminatory decision is subject to a motion to strike so long as protected speech or petitioning activity contributed to that decision, we reverse.”
     

     

     

  10. Jerry Waszczuk

    The most recent 3DCA Opinion in anti -SLAPP

    Waszczuk v. The Regents of the University of California et,al . 

    https://www.scribd.com/document/363447530/Waszczuk-v-UC-Regents-ANTI-SLAPP

    3DCA Opinion is attached  at the end of the Appellant’s Petition for Rehearing 

     
    FREEDOM OF SPEECH IS NOT FREE FOR IMMIGRANTS IN THE SANCTUARY STATE OF CALIFORNIA
     
    On October 10, 2017, the State of California Court of Appeal Third Appellate District (3DCA) issued an unpublished opinion affirming the Sacramento County Superior Court judgement dated April 12, 2015, in the special motion to strike filed on December 1, 2014, pursuant to California Code of Civil Procedure § 425.16 (anti-SLAPP). Sacramento County Superior Court Case No. 34-2013-00155479, Jaroslaw Waszczuk v. The Regents of the University of California, 3DCA Case C097524, concerns the wrongful termination of Jaroslaw Waszczuk.
     
    The anti-SLAPP motion was filed December 1, 2014, by the five UC Davis Health System (UCDHS) employees named as defendants in the lawsuit: Danesha Nichols, JD, UCDHS Human Resources Investigator and Consultant; Brent Seifert, JD, UCDHS Human Resources Labor Relations Supervisor; Cindy Oropeza, UCDHS Human Resources Benefits and Equal Employment Opportunity Manager; Stephen Chilcott, JD, UCDHS Human Resources Executive Director and the superior of Nichols, Seifert, and Oropeza; and Mike Boyd, UCDHS Facilities Executive Director.
     
    In their anti-SLAPP motion, the defendants claimed that their activities and duties while they were investigating my first four causes of action in the lawsuit and acting as hearing officers in the employee complaints concerning various UC Davis policies and procedures were protected under the First Amendment of the United States Constitution.
     
    After this anti-SLAPP motion brought against me by these UC Davis employees was pending for three years, both the Superior Court and appellate courts grossly discriminated against me as plaintiff and appellant by deny me the same rights under the First Amendment of United States that they granted to the five defendants. As a former employee of UC Davis Medical Center (UCDMC), I was providing representation and assistance for other UCDMC employees; I participated as an official representative in hearings with compliance resolution officers (CROs). The last hearing in which I represented a UCDMC employee in a “Does not Meet Expectation” evaluation took place on December 5, 2013—exactly one year after termination of employment with the UCDMC. The presiding CRO at the hearing was UCDHS Executive Director Mike Boyd, who terminated my employment. The hearing was pleasant, and Director Boyd changed the degrading “Does not Meet Expectation” evaluation to “Meets Expectation.” My activities as representative were protected by the First Amendment; however, the judge from the Superior Court and the justice from the Court of Appeal did not appreciate my efforts. The 3DCA unpublished opinion was discriminatory, demeaning, and degrading—far more than the one my coworker’s evaluation he  received from his manager in the UC Davis HVAC Shop. In their unpublished opinion, the 3DCA used my mistake of not citing the record against me as plaintiff and appellant. The 3DCA stated that:
    Plaintiff’s most glaring and consistent violation of the rules is his failure to cite to the record, and at the outset, the Court would note that a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 944.) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) We add that plaintiff has an equal responsibility to follow the California Rules of Court applicable to appeals, no matter how sympathetic his claims may seem to himself or us.
    In fact it is not plaintiff’s by  defendant’s  brief was  completely stricken by the  court.
     
    The Court of Appeal record (Register of Action) shows that this appeal was initially declared by the Court as fully briefed on August 23, 2016 after Waszczuk filed his Appellant Reply Brief. It appears that two and half months later, after the case was fully briefed, the Court reviewed the case and issued the following order on November 9, 2016:
     
    “On the court’s own motion, the respondent’s brief filed July 25, 2016, is stricken for failure to ‘[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.’ (Cal. Rules of Court, rule 8.204(a)((1)(c).) A respondent’s brief with proper citations to the record must be filed on or before December 15, 2016.”  RAYE, P.J.”
    The Order was electronically filed on 11/9/2016 by Deputy Clerk Anita Kenner.
     
    The second 3DCA opinion praised my former attorney as diligent and transparent. I dismissed my attorney in December 2014 for gross misconduct, misrepresentation, conspiring with the defendants, and colluding against me with the judge he’d known for more than 20 years. While the 3DCA was writing the unpublished opinion in this case, my dismissed attorney was being prosecuted by the State Bar of California; his license to practice was suspended for failure to pay child support and State Bar fees. Due to the court’s three-year delay in deciding the motion and my related unemployment since December 2012, his conspiracy with the defense attorneys and collusion with the superior court judge caused me immense suffering and financial disaster.
     
    On October 25, 2017, in response to the 3DCA unpublished opinion, I filed a 50-page petition for rehearing. The petition and attached 3DCA opinion are enclosed.
     

    THE MERIT OF THE CASE
     
     
    Superior Court Judgment Affirmation by the Court of Appeal
     
     
    In the first part of the Opinion, on pages 1 & 2, the Court, by affirming the judgment which struck the Waszczuk four causes of action against the Defendants, stated: 3
    “Although Jaroslaw Waszczuk, a self-represented plaintiff, purports to appeal the trial court’s order granting five individual employees of the University of California’s special motion to strike (Code Civ. Proc., § 425.16) four causes of action arising from their involvement in his termination, he does not argue the merits of the motion but insists the judgment must be reversed because of systemic corruption including collusion between his then lawyer, defense counsel, and the trial judge. He misunderstands his burden on appeal, ignores the dispositive issues, provides no evidence of corruption or untoward collusion, and fails to demonstrate either relevance or prejudice from the shortcomings he cites. We need go no further than to answer the contentions he raises, and in finding no merit in those claims, we affirm.
     
    Waszczuk sincerely apologizes to the Court for offending the Court by misunderstanding the burden on appeal and for unintentional ignorance of the dispositive issue, of which Waszczuk still is not sure to what the Court is referring. Furthermore, Waszczuk sincerely apologizes to the Court that he brought to the appeal the issue of corruption, including collusion between his then lawyer, the Defense counsel, and the trial judge. However, if the Court felt offended and affirmed the judgment because Waszczuk insisted that the judgment should be reversed due to systemic corruption, including collusion between his then lawyer, the Defense counsel, and the trial judge, then Waszczuk feels that it was unnecessary for the Court to write another 13 pages in legal opinion to further aggrieve a person who is already aggrieved by the justice that he was served in the Sacramento County Superior Court by two judicial officers, the Hon. Judge David Brown and the Hon. Shelleyanne W.L. Chang. The Hon. Judge Chang is handling a cross- connected case, Waszczuk v. California Unemployment Insurance Appeal Board (CUIAB), Case No. C079254; Superior Court Case No: 34-2013-34- 00155479  No.  34-2013-80001699-CU-WM-GDS,  which  Waszczuk  was hoping would be resolved first by the Court of Appeal instant of slapping Waszczuk with fraudulent anti-SLAPP Unpublished Opinion
    However, even though Waszczuk disagrees with the Court Opinion, which added more pain and suffering to his devastated life, Waszczuk was somehow encouraged by the Court Opinion to look harder at where he made unintentional mistakes and errors due to his lack of proper education and experience in handling complex litigations, especially the appeals in the Appellate Courts.
    Waszczuk’s insufficient education and experiences in legal matters does not mean that Waszczuk cannot recognize what is wrong and what is right and who is wrong and who is right and who devastated Waszczuk’s and his family’s lives and livelihood at Waszczuk’s retirement age.
    Based on facts and the clear and convincing evidence, Waszczuk has little doubt and strongly believes that corruption, including collusion between his dismissed attorney Douglas Stein, Defense counsel Michael Pott, and the trial judge the Hon. David I. Brown took place, and, for this reason, the Superior Court judgment should be reversed by the Court of Appeal.

     
     
    First Cause of Action
     
     
    On page 12 of the Opinion, the Court stated:
     
     
    “Plaintiff’s first cause of action for the intentional infliction of emotional distress fails because the tort requires a showing of outrageous conduct beyond the bounds of human decency.”

  11. Jerry Waszczuk

    Received just now from 3DCA

    https://www.scribd.com/document/363979591/Petition-for-Rehearing-in-the-anti-SLAPP-Motion-Waszczuk-v-The-Regents-of-the-University-of-California-California-3DCA-Denied

    Court of Appeal of the State of California
    IN AND FOR THE
    THIRD APPELLATE DISTRICT
     
     
     
    JAROSLAW WASZCZUK,
    Plaintiff and Appellant, v.
    REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,
    Defendants and Respondents.
     
    C079524
    Sacramento County
    No.    34201300155479CUWTGDS
     
     
    BY THE COURT:
     
    Appellant’s petition for rehearing is denied.
     
     
     

     

    RAYE, P.J.
     
    ———————————
     
     
     
    cc: See Mailing List

    IN THE
    Court of Appeal of the State of California
    IN AND FOR THE
    THIRD APPELLATE DISTRICT
     
    MAILING LIST
     
    Re:      Waszczuk v. Regents of the University of California, et al.
    C079524
    Sacramento County No. 34201300155479CUWTGDS

    Copies of this document have been sent by mail to the parties checked below unless they were noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is not checked below, service was not required.
     
     
    ./ Jaroslaw Waszczuk 2216 Katzakian Way
    Lodi, CA 95242
     
     
    David P.E. Burkett Porter Scott
    350 University Avenue, Suite 200
    Sacramento, CA 95825
     
     
    ./ Sacramento County Superior Court 720 Ninth Street
     
    Sacramento, CA 95814

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