McGrory v. Applied Signal Technology: Refusing to Answer Questions In Employer's Investigation And Lying To Investigator Are Not Protected Activity

In McGrory v. Applied Signal Technology, Inc. (1/24/13) --- Cal.App.4th ---, the defendant terminated the plaintiff after an outside investigator retained by the defendant "concluded that, while Employee had not discriminated against a lesbian subordinate on the basis of her sex or sexual orientation, in other ways Employee had violated Employer's policies on sexual harassment and business and personal ethics and he had been uncooperative and deceptive during the investigation." Slip op. at 1.

The plaintiff sued for wrongful termination in violation of public policy and defamation. The trial court granted the defendant's motion for summary judgment, and the Court of Appeal affirmed, "concluding that there is no evidence warranting a reasonable inference that Employee was actually terminated for being male, that being uncooperative or deceptive in an employer's internal investigation is not a protected activity under state or federal law, and that Employer's statements to its employees about Employee's termination were conditionally privileged." Slip op. at 3. 

The most interesting issue here is whether refusing to participate in an employer's investigation of discriminatory conduct constitutes protected activity under the FEHA. The Court held that it does not. 

While refusing to participate in or cooperate with an employer's discriminatory action may be a protected activity when it amounts to opposition to a forbidden practice, refusing to participate in or cooperate with an investigation into a discrimination claim is not participation or assistance and is not a protected activity.

We find these federal decisions to be eminently reasonable, and we conclude that Government Code section 12940, subdivision (h), does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer's internal investigation of a discrimination claim. In other words, public policy does not protect deceptive activity during an internal investigation. Such conduct is a legitimate reason to terminate an at-will employee.

Slip op. at 18-19 (citations omitted).  The more interesting factual scenario would be one in which the plaintiff alleges that he or she refused to cooperate in an internal investigation because it was a sham proceeding designed to further or cover for discriminatory conduct.  The Court here found no such facts.

The opinion is available here.