Black & LoBello

On November 25, 2009, the Nevada Supreme Court addressed an appeal on a lawsuit which was dismissed under Nevada’s anti-SLAPP statute.  Nevada adopted a statute similar to several other states, which protects against a meritless suit filed primarily to chill the defendant’s exercise of First Amendment Rights, such as when a citizen makes a report or request to a government agency and someone else takes offense and sues them in retaliation.  Thus, Nevada seeks to protect the free speech rights of its citizens.  The Court found that Nevada’s anti-SLAPP statute can be applied to a cause of action based upon a federal statute, and that the district court was correct in dismissing the lawsuit under the terms of that statute.

In this employment discrimination lawsuit, commonly known as John v. Douglas County School District, a security officer at a school district had been disciplined and suspended for unprofessional conduct and sexual harassment.  His appeal through his labor union went through three layers of appeals, and on each level the discipline was held.  He then filed an Equal Employment Opportunity Commission (EEOC) complaint in Nevada district court, claiming both state and federal causes of action.

A year later, the school district found that he had improperly obtained confidential student records, and he refused to cooperate in their investigation.  He was suspended during the investigation and at the end, was fired based upon information found during the investigation and his prior misconduct.  He modified his lawsuit to assert numerous new claims against all parties involved.  The district court dismissed his state law-based causes of action, as those claims were barred under the union’s collective bargaining agreement.  The court then granted a special motion to dismiss, based upon application of Nevada’s anti-SLAPP statute and the security officer’s failure to show sufficient evidence that he would probably prevail on his claim.

The Nevada Supreme Court found that a state court can apply federal law, using the state civil procedures which are neutral and procedural and do not obstruct federal substantive law.   The Court found that the defendants’ communications concerning his conduct were protected free speech and were truthful or made without knowledge of falsehood.  The communications were important to the school district, as they addressed the school environment and impacted the possible legal liability of the school district.  Once the school district had established that threshold, the burden of proof shifted to the claimant to establish a genuine issue of material fact regarding the relevant communications.  Since the security guard did not raise such an issue, the lawsuit was properly dismissed. 

This case was heard and decided by the entire panel of the Nevada Supreme Court.

Steven R. Bartell, Esq.