ORDER ON MOTION TO STRIKE AND MOTION TO FILE UNDER SEAL

(Docket Nos. 13 & 18)

CLAUDIA WILKEN, District Judge.

Defendant City and County of San Francisco1 filed a motion to strike Plaintiff Willie Crawford's state law causes of action under California's anti-SLAPP statute, California Code of Civil Procedure section 425.16. As explained below, the Court grants the motion in part and denies it in part.

BACKGROUND

I. Factual Background

Crawford, an African-American man, has worked for the San Francisco Department of Public Health for thirty years. He has been a Facilities Manager since approximately 2002.

Crawford's Second Amended Complaint (2AC) describes a pattern of discrimination culminating in a biased investigation. Crawford alleges that he outperforms his current classification, but was denied a classification elevation on April 23, 2015. Crawford also alleges that Department personnel spread untrue rumors about him, which the City failed to stop. In particular, it is rumored that he "has a temper," and that people "should be careful if they ever see" his son, a "gangster rapper." 2AC ¶¶ 12-15. Most recently, on January 26, 2016, Crawford's attorney received an email stating that there was a rumor in the Department that Crawford had passed away.

Next, Crawford describes several problematic elements of the City's investigation. The investigation began in late August 2015, after Crawford had filed the original complaint in this case.2 Crawford alleges that the "true purpose . . . was to manufacture reasons for firing" him. Id. ¶ 18. Crawford alleges that the City Attorney investigator's witness summaries were broad and biased. He also alleges that the investigator "questioned witnesses while his tape-recorder was turned off; telling witnesses what he wanted them to talk about." Id. ¶ 20. Crawford states that the witness statement production to him was incomplete; at least two witnesses whose statements were missing from the production said positive things about Crawford. Later, on or about October 9, 2015, Crawford was placed on paid administrative leave for misconduct, but was not given any specifics on the alleged misconduct.

On December 1, 2015, the Director of Human Resources notified Crawford that he was to report for an interview with the investigator on December 8th.3 Id. ¶ 23. On December 2, Crawford's then-attorney stated that he was not available on December 8, but offered two alternative dates. Id. ¶ 24. The Director responded that the investigators were available on the 7th, that the interview could not take place later than the 7th, and that the interview would take place on the 7th. Id. Crawford then agreed to the 8th even though his attorney could not attend. Crawford's attorney argued that it would be unethical to proceed in the absence of an attorney in light of this pending lawsuit, to no avail.

Crawford arrived at the interview to find that there was a court reporter, although he had not been notified of this. Crawford alleges that the scope of the questioning "clearly showed that there was nothing specific. This was a fishing expedition designed to uncover some kind of misconduct or impropriety." Id. ¶ 27. There were many questions about Crawford's assets and financial situation, including the financial situation of his nephew who lives in China. In January 2016, Crawford's attorney filed a motion to disqualify the City Attorney from representing Defendants. The City Attorney voluntarily withdrew without filing an opposition.

The 2AC contains other allegations that do not relate to the investigation of Crawford. Although Crawford was granted medical leave from December 9, 2015 through February 29, 2016, the City served him with a notice of intent to dismiss and notice of a Skelly4 hearing to be conducted in early January 2016. This hearing occurred as scheduled without Crawford, in spite of Crawford's attorney's objections. Id. ¶ 32. The main participants were allegedly "tainted by bias." Id. ¶ 33.

Further, the Human Resources Director allegedly "took the extraordinary step of intervening and protecting" certain employees whom Crawford supervised and whom Crawford was planning on disciplining. Id. ¶¶ 36-38. Crawford also cites the City's investigation of a man who made the following statement about Crawford: "I wish he was dead, I hate this guy." Id. ¶ 40. In that investigation, the City interviewed Crawford first, even though he had not heard the comment, and then did not discipline the man who made the statement.

Finally, Crawford cites two incidents that he also attributes to the alleged discrimination and harassment against him. In November 2014, Crawford discovered he had not been paid his salary, which the Human Resources Director attributed to a "payroll glitch" although it did not impact anyone else's salary. Id. ¶¶ 43-44. Additionally, three months of Crawford's emails were deleted from the department servers but had been sent to "one Arlena Winn, purportedly by him." Thus, he claims, his emails are "being read by others and forwarded to others." Id. ¶¶ 45-46.

II. Procedural History

In 2012, Crawford filed an official complaint with the California Department of Fair Employment and Housing (DFEH) alleging racial discrimination; in 2014, he amended the complaint to include harassment and retaliation. The DFEH issued him a right to sue letter.

On March 3, 2015, Crawford filed a complaint in San Francisco Superior Court.5 At that point, he alleged only state law claims. The City answered his subsequent 2AC and removed the action to federal court because it contains a federal Family Medical Leave Act claim. The 2AC also contains five state law claims, including discrimination, harassment and retaliation claims under California's Fair Employment and Housing Act, an intentional infliction of emotional distress claim, and a claim for wrongful termination in violation of public policy.

DISCUSSION

California's anti-SLAPP statute provides,

Cal. Civ. Proc. Code § 425.16(b)(1). California anti-SLAPP motions to strike are available to litigants proceeding in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206 (9th Cir. 2005).

Courts analyze these motions in two steps. "First, the defendant must make a prima facie showing that the plaintiff's suit arises from an act in furtherance of the defendant's rights of petition or free speech." Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010) (citation and internal quotation marks omitted). "Second, once the defendant has made a prima facie showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims." Id.

"At [the] second step of the anti-SLAPP inquiry, the required probability that [a party] will prevail need not be high." Hilton v. Hallmark Cards, 599 F.3d 894, 908 (9th Cir. 2009). A plaintiff must show "only a `minimum level of legal sufficiency and triability.'" Mindys, 611 F.3d at 598 (quoting Linder v. Thrifty Oil Co., 23 Cal.4th 429, 438 n.5 (2000)). The plaintiff need only "state and substantiate a legally sufficient claim." Id. at 598-99 (citation and internal quotation marks omitted). In conducting its analysis, the "court `does not weigh the credibility or comparative probative strength of competing evidence,' but `should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.'" Id. at 599 (quoting Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821 (2002)). At this stage, the court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Id. at 598 (quoting Cal. Civ. Proc. Code § 425.16(b)(2)).

I. Protected Activity

Under the anti-SLAPP statute, the phrase "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:

Cal. Civ. Proc. Code § 425.16(e). Written or oral statements "preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16." Hansen v. Cal. Dep't of Corr. & Rehab., 171 Cal.App.4th 1537, 1544 (2008). This category includes communications seeking official investigations. Salma v. Capon, 161 Cal.App.4th 1275, 1286 (2008).

An internal proceeding may constitute an "official proceeding." Hansen, 171 Cal. App. 4th at 1544. Specifically, a city's investigation into an employee's conduct and its determination that he had engaged in misconduct on the job may satisfy the first prong of section 425.16. See Miller v. City of L.A., 169 Cal.App.4th 1373, 1383 (2008).

Here, many of Crawford's allegations relate to statements made in connection with an official proceeding authorized by law. For example, under the Charter of the City and County of San Francisco, the Civil Service Commission adopted a policy on workplace safety requiring investigation of "any reported incidents of threats or acts of violence by any employees." Docket No. 16-1, Request for Judicial Notice Ex. A.6 The City's investigation of the co-worker who wished he were dead falls under this umbrella. Similarly, statements connected to the City's investigation of Crawford's acts constitute protected activity.

Further, the Charter grants the City Controller authority to receive complaints concerning "misuse of City government funds, and improper activities by City government officers and employees." Id. Ex. E, Charter § F1.107. It also requires the Controller to refer complaints that may constitute violations of criminal law to the District Attorney and violations of governmental ethics laws to the Ethics Commission and the City Attorney. Id. The Controller must "investigate and otherwise attempt to resolve such individual complaints," with exceptions not applicable here. Id. According to the City, the investigation of Crawford was a "legally-required investigation of a whistleblower allegation against Crawford, regarding abuse of authority and misuse of City resources." Docket No. 13, Opening Br. at 10.

In addition, the Charter directs that the Human Resources Director "shall review and resolve allegations of discrimination" and "shall investigate all employee complaints concerning job-related conduct of City and County employees." Charter § 10.103. The City argues that it followed these procedures in response to Crawford's discrimination complaints. The City's investigation into Crawford's and Aquino's complaints constitutes the City's protected activity.

Crawford argues that the investigation of him is not protected because it was unlawful or done for an unlawful purpose. He argues that it was a pretext for retaliation. He claims that the alleged unlawfulness of the investigation removes his allegations from the ambit of an anti-SLAPP motion. However, the California Supreme Court has concluded that an activity's alleged unlawfulness renders the activity unprotected where "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." Flatley v. Mauro, 39 Cal.4th 299, 320 (2006). As the Ninth Circuit has clarified, California courts have concluded that defendants may show that activity is protected "even when their conduct was allegedly unlawful." Doe v. Gangland Prods., Inc., 730 F.3d 946, 954 (9th Cir. 2013). Flatley presents an "exception" to that rule. Id. n.2 Here, the City has not conceded that the investigation was illegal, and the Court cannot conclude as a matter of law that it was.

Notably, several of Crawford's allegations regarding the City's actions do not constitute protected activity, including the City's failure to elevate his classification, the failure to stop rumors spread about him and his son, the "payroll glitch," the deletion of his emails and the transfer of employees he supervised. The Court must decide whether the causes of actions at issue are "mixed" and therefore subject to anti-SLAPP protection, or based on so few protected allegations that the causes of action are not protected. "A mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." Salma, 161 Cal. App. 4th at 1287. Here, the allegations related to official investigations authorized under law are not "merely incidental" to the other allegations at issue. Thus, the allegations satisfy the first step of the anti-SLAPP inquiry; they comprise mixed causes of action and are subject to protection.

II. Probability of success

There are two main approaches to the second step on mixed causes of action. Under the first approach, "if any part of a mixed cause of action satisfies the second prong of anti-SLAPP, the entire cause of action continues." Liberi v. Taitz, 2016 WL 1382398, at *1 n.2 (9th Cir.) (following Wallace v. McCubbin, 196 Cal.App.4th 1169, 1212 (2011)); see also Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal.App.4th 1539, 1554 (2010); Burrill v. Nair, 217 Cal.App.4th 357, 382 (2013). That is, if the plaintiff has a probability of success on either the allegations of protected activity or the allegations of unprotected activity, the entire cause of action continues. Under the second approach, where a plaintiff has established a probability of prevailing on allegations of unprotected activity but not on allegations of protected activity, the protected activity allegations may be parsed from the causes of action and stricken, while the allegations related to unprotected activity may remain part of the complaint. See City of Colton v. Singletary, 206 Cal.App.4th 751, 774 (2012); Cho v. Chang, 219 Cal.App.4th 521, 527 (2013). Although the California Supreme Court is expected to answer this question within the next few months,7 the Court follows the first approach in an abundance of caution.

The City argues that, due to California's litigation privilege, Crawford's state law claims have no probability of prevailing and thus cannot meet the second prong of the anti-SLAPP test. See Flatley, 39 Cal. 4th at 323 ("The litigation privilege. . . may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing."). A publication or broadcast made "in any . . . official proceeding authorized by law" is privileged. Cal. Civ. Code § 47(b). The privilege "grants absolute immunity from tort liability." Flatley, 39 Cal. 4th at 324; see also Ribas v. Clark, 38 Cal.3d 355, 364 (1985) (applying the privilege to statutory causes of action). Although the litigation privilege is similar to the description of protected activity in the anti-SLAPP statute, the two are not coterminous in all respects. See Flatley, 39 Cal. 4th at 320-25. Rather, the privilege applies to communications made (1) in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve objects of the litigation; and (4) that have some connection or logical relation to the action. Silberg v. Anderson, 50 Cal.3d 205, 212 (1990); Feldman v. 1100 Park Lane Assocs., 160 Cal.App.4th 1467, 1485 (2008).

Here, the statements made in connection with the protected investigation are subject to the litigation privilege. The litigation privilege encompasses "a communication concerning possible wrongdoing, made to an official governmental agency . . . and which communication is designed to prompt action by that entity." Williams v. Taylor, 129 Cal.App.3d 745, 753 (1982). It also encompasses statements made in or about many different types of governmental investigations. Braun v. Bureau of State Audits, 67 Cal.App.4th 1382, 1389 (1998) (collecting cases). Further, the privilege is not limited to statements made during the proceeding, but may extend to steps taken prior to or after the proceeding. Feldman, 160 Cal. App. 4th at 1485. Therefore, the City cannot be held liable based on statements made to initiate proceedings, statements within the proceedings, statements regarding the proceedings or statements that are the result of the proceedings unless an exception applies. Notably, non-communicative acts, such as the fact of an investigation or the fact of the appearance of a court reporter, would not fall under this privilege.

As explained above, many of Crawford's allegations fall outside of official proceedings. The Court examines each claim for viability, without considering the allegations of communications that are subject to the litigation privilege.

a. Racial discrimination (FEHA)

The City argues that Crawford's racial discrimination claim should be stricken. In employment discrimination cases, courts typically use the burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). Although this framework was originally created to evaluate Title VII claims, California courts have since adopted it to analyze FEHA claims, as well. Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317, 354 (2000); Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). The plaintiff must generally provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action and (4) some other circumstance suggests discriminatory motive. Guz, 24 Cal. 4th at 355.

The allegations in the 2AC are insufficient to suggest a discriminatory motive. While the rumor that people should be careful of Crawford because his son was a rapper could be considered racially charged, Crawford does not allege that the City knew of this rumor. There is no inference of race discrimination to be drawn from the City's failure to discipline Crawford's co-worker following an investigation into a report that he wished Crawford were dead. The Court GRANTS the City's motion on this claim, with leave to amend. Cf. Verizon Del., Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) ("granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend would directly collide with Fed. R. Civ. P. 15(a)'s policy favoring liberal amendment").

b. Harassment (FEHA)

To evaluate a plaintiff's claims of racial harassment under FEHA, California courts rely on federal case law interpreting Title VII. Etter v. Veriflo, 67 Cal.App.4th 457, 464 (1998). Crawford must prove that (1) he was subjected to verbal or physical conduct related to his membership in a protected class; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. Vasquez v. Cty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)).

This claim qualifies for anti-SLAPP protection at the first step because Crawford alleges that the City's investigation of him constituted racial harassment. But again, the only allegations related to Crawford's race pertain to failure to stop rumors that his son was a rapper. This alleged conduct is not sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment. Thus, no part of the claim is triable. The Court GRANTS the City's motion to strike Crawford's harassment claim, with leave to amend.

c. Retaliation (FEHA)

It is unlawful for "any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint. . . ." Cal. Gov. Code § 12940(h). Claims for retaliation under FEHA are analyzed under the burden-shifting framework established in McDonnell Douglas, 411 U.S. 792. Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005). To establish a prima facie case of retaliation, a plaintiff must "show (1) he or she engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Id. at 1042. Once a plaintiff establishes a prima facie case, a presumption of retaliatory intent arises. See id. To overcome this presumption, the defendant must come forward with a legitimate, non-retaliatory reason for the employment decision. Id. If the defendant provides that explanation, the presumption disappears and the plaintiff must demonstrate that the defendant acted with retaliatory intent. See id.

Here, the 2AC states that filing formal complaints and filing this lawsuit constitute Crawford's protected activity. Allegations that the City retaliated against Crawford by pursuing the investigation against him squarely implicate anti-SLAPP protection. The litigation privilege applies to the allegedly retaliatory investigation and report. See Gallanis-Politis v. Medina, 152 Cal.App.4th 600, 617 (2007). However, the privilege would not protect the City from suit based on an allegedly retaliatory termination if Crawford is fired.

Nonetheless, Crawford has demonstrated that his retaliation claim is triable. The City served Crawford with a Skelly notice after he filed his lawsuit, which alone demonstrates a possibility of success. Further, the timing of the investigation demonstrates possible retaliatory intent. For these reasons, the Court DENIES the City's motion to strike Crawford's retaliation claim.

d. Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege (1) extreme or outrageous conduct with intent to cause, or with reckless disregard for the probability of causing, emotional distress, (2) that he actually suffered severe emotional distress, and (3) actual and proximate causation. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993).

To illustrate, "mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation" do not constitute extreme or outrageous conduct. Yurick v. Super. Ct., 209 Cal.App.3d 1116, 1128 (1989). Outrageous conduct is "that which is the most extremely offensive." Id. at 1129. It cannot be said that Crawford's allegations listed here, even including the protected activity, constitute such extremely offensive conduct. Therefore, the Court STRIKES this cause of action, but grants leave to amend.

e. Wrongful Termination in Violation of Public Policy

California Government Code section 815 bars Tameny8 actions against public entities. Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 900 (2008); see also Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 754 (9th Cir. 2010) (same). Because Crawford conceded at oral argument that this claim is not viable, the Court GRANTS the City's motion to strike this cause of action.

CONCLUSION

For the foregoing reasons, the Court GRANTS the City's motion to strike Crawford's claims of discrimination, harassment, and intentional infliction of emotional distress, with leave to amend, and dismisses his claim for wrongful termination without leave to amend. It DENIES the City's motion as to Crawford's claim of retaliation (Docket No. 13).

The Court GRANTS the City's motion to file certain documents under seal (Docket No. 18).

IT IS SO ORDERED.