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November 13, 1997


The opinion of the court was delivered by: PATEL

 On October 28, 1996, plaintiff Romulo Fontanilla brought this action, naming as defendants: the City and County of San Francisco; eight individual employees of the City and County of San Francisco; Dennis J. Shusterman, MD; Service Employees International Union Local 535; and two individual union representatives, Linda Joseph and Seth Shapiro.

 In his first amended complaint, plaintiff alleged two causes of action against the City and County of San Francisco ("CCSF") and the eight individual employees of the City and County of San Francisco (collectively "CCSF defendants"): (1) violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment; and (2) violation of his civil rights. Plaintiff further alleged a violation of his First Amendment right to free speech by defendants Smith, Kuwamoto, Vera and Wald. Plaintiff also alleged municipal liability against CCSF. *fn1"

 Finally, plaintiff alleged that defendants Service Employees International Union Local 535 ("SEIU Local 535") and individuals Linda Joseph and Seth Shapiro (collectively "union defendants"): (1) breached their duty of fair representation to plaintiff; and (2) conspired to violate plaintiff's civil rights.

 Now before the court are three separate motions: (1) the CCSF defendants' motions for summary judgment and to dismiss; (2) Dr. Shusterman's motion for summary judgment; and (3) the union defendants' motion for summary judgment. *fn2"


 1. The Civil Service Commission Rules

 City and County of San Francisco Civil Service Commission Rules ("CSC Rules") 15 and 22 permit an appointing officer to authorize a medical evaluation of any employee who he or she believes is not medically or physically competent to perform assigned duties and who, if allowed to continue in employment, may represent a risk to co-workers, the public, or himself. The rules further provide that if the employee is found not competent, the appointing officer "shall place the employee on compulsory sick leave." CSC Rule 15.02(B); CSC Rule 22.02D(1), (2) and (3).

 The CSC Rules also provide that an employee shall remain on compulsory sick leave until a physician designated by the Human Resources Director finds the employee competent to return to duty. CSC Rule 22.02D(3). Generally, employees cannot remain on leave for more than one year. An official may extend the one year period if a physician advises that there is a reasonable probability that the employee can return to employment. If a physician finds that there is no reasonable probability that the employee will be able to return, the CCSF has "good cause" for discharge. CSC Rule 22.02C(3), a & b.

 2. CCSF and the Individual Defendants4

 In 1988, the CCSF transferred plaintiff Romulo Fontanilla to a position in the Department of Social Services ("Department") as a Senior Eligibility Worker, a civil service classification. On December 31, 1992, two of Fontanilla's co-workers submitted memos to defendant Dorothy Enisman complaining that Fontanilla made "gun-like" gestures at them, and that he accompanied those gestures with the sounds of a firing gun. One of the employees also reported that Fontanilla kept gun magazines around the work area.

 Enisman, Fontanilla's division manager, reported this incident to personnel officers and defendants Mary Smith, John Vera and Gail Kuwamoto. Enisman told the personnel officers that Fontanilla's co-workers reported that he had previously made remarks and gestures which the co-workers perceived as threatening. Enisman also told them that Fontanilla's immediate supervisor, defendant Glenn Wilson, received similar complaints. According to Enisman, Wilson claimed that Fontanilla's co-workers were unwilling to put their complaints in writing because they were afraid of Fontanilla.

 In response to Enisman's report, on January 7, 1993, defendant Smith requested that Fontanilla undergo a "fitness for duty" evaluation pursuant to CSC Rule 22. As a result, Fontanilla was scheduled for a series of "fitness for duty" evaluations through the City's Center for Municipal Occupational Safety and Health ("CMOSH" or "Occupational Health Services"). Fontanilla underwent one medical examination at CMOSH on January 19, 1993. The examining physician and Interim Director of CMOSH, defendant Dr. Jeffrey Newman, referred Fontanilla for a complete psychiatric evaluation to one Dr. Swoiskin.

 Before CMOSH completed the evaluations, on February 27, 1993, Fontanilla suffered a heart attack. As a result, Fontanilla was hospitalized and missed his consultation with Dr. Swoiskin which had been scheduled for March 1, 1993. Fontanilla requested a leave of absence, which was to last through May 1, 1993. The CCSF granted Fontanilla's request.

 On April 28, 1993, before his leave expired, Fontanilla filed a worker's compensation claim alleging that his heart attack was work-related. Fontanilla then requested an additional leave of absence. On July 9, 1993, defendant Gail Kuwamoto advised Fontanilla that he was on compulsory sick leave retroactive to May 3, 1993. The compulsory sick leave was imposed pursuant to Civil Service Rule 22.02D(2) because Fontanilla failed to report for the scheduled fitness for duty appointments. On August 12, 1993, Fontanilla's workers' compensation claim was denied.

 On August 26, 1993, the psychologist who examined Fontanilla in connection with his workers' compensation claim, Dr. Charles Brusman, submitted to the CCSF a release that permitted Fontanilla to return to work as of September 16, 1993 "provided that he is not returned to work as an eligibility worker." Fontanilla was not on any eligibility list for any other classification at that time.

 On September 19, 1993, Fontanilla came to CMOSH for a "fitness for duty" examination. Dr. Newman again referred Fontanilla to Dr. Swoiskin for the evaluation that was originally scheduled for March 1, 1993. Dr. Swoiskin evaluated Fontanilla on September 20, 1993, and diagnosed him as having a paranoid personality disorder. Dr. Swoiskin concluded that the disorder would disrupt Fontanilla's work and that of his co-workers, and recommended that any return to work be contingent on Fontanilla's beginning treatment with a mental health professional. Based on the evaluation report of Dr. Swoiskin, on November 18, 1993, Dr. Newman issued a diagnosis stating that Fontanilla had a medical condition that interfered with his ability to perform the duties of his job. Dr. Newman then recommended a disability transfer. *fn5"

 The CCSF extended Fontanilla's compulsory sick leave several times before terminating him in 1996. Kuwamoto and Smith advised Fontanilla many times that he had exceeded the limit for compulsory sick leave, but that they would extend his leave while he attempted to find another job. On September 28, 1994, the CCSF advised Fontanilla that he had exceeded the maximum period for compulsory sick leave status, and requested that he receive a re-evaluation to determine the likelihood of his returning to work in any capacity.

 Physicians affiliated with CMOSH again examined Fontanilla. On May 15, 1995, defendant Dr. Dennis Shusterman advised the CCSF that Fontanilla had a medical condition which interfered with his ability to perform his essential job functions. Shusterman also advised the CCSF that there was no imminent likelihood of change in Fontanilla's functional status. With that, Shusterman recommended disability status.

 In March 1996, defendant John Vera recommended that the CCSF proceed with Fontanilla's termination because Fontanilla could not perform his job. Defendant Michael Wald, the Department Director at the time, adopted that recommendation. On May 16, 1996, the CCSF sent Fontanilla notice of its intent to terminate him based upon his inability to perform the essential functions of his job. Mr. Fontanilla was then provided a hearing, at which counsel represented him. On July 18, 1996, the CCSF sent Fontanilla a notice of dismissal.

 On December 17, 1996, Dr. Sarah Jewell found Fontanilla fit to return to duty as an Eligibility Worker. The CCSF rescinded Fontanilla's termination and reinstated him on June 30, 1997. The CCSF also offered Fontanilla all backpay and benefits, less appropriate payroll deductions, for the period from December 18, 1996 through June 27, 1997.

 3. Dr. Shusterman

 As of May 3, 1993, plaintiff had been placed on compulsory sick leave from his position as a Senior Eligibility Worker in the CCSF's Department of Social Services. On September 27, 1994, Shusterman conducted a fitness for duty medical exam on Fontanilla. Based on his exam and Fontanilla's medical records, Shusterman concluded, as had Dr. Swoiskin, that Fontanilla suffered from a paranoid personality disorder.

 After Fontanilla told Shusterman that he wanted to return to work without restriction, Shusterman informed plaintiff that he would first have to undergo an updated psychiatric evaluation by Dr. Swoiskin. On April 28, 1995, plaintiff did undergo a further exam with Swoiskin, who again concluded that plaintiff suffered from a paranoid personality disorder.

 On May 15, 1995, Shusterman issued a CSC Rule 22.02D medical report stating that Fontanilla had a medical condition which interfered with his ability to perform essential functions of his job, and recommended that Fontanilla be placed on disability status. Fontanilla then requested clarification on the meaning of "disability" status. Shusterman wrote Fontanilla and informed him of three options: 1) apply for disability transfer; 2) seek professional therapeutic services and ask to be reevaluated in six months or; 3) appeal Shusterman's report to the Civil Service Commission. Fontanilla did not attempt any of these options and Shusterman had no further contact with the plaintiff.

 4. The Union

 SEIU Local 535 is the sole union representative of Senior Eligibility Workers such as Fontanilla. During part of 1993, individual defendant Seth Shapiro acted as the field representative for the Senior Eligibility Workers. Individual defendant Linda Joseph took over as field representative on November 1, 1993.

 In August 1993, in conjunction with Fontanilla's placement on compulsory sick leave, Shapiro filed a grievance on Fontanilla's behalf with the CCSF, claiming a violation by the CCSF of the collective bargaining agreement ("CBA"). In November, both Joseph and Shapiro met with a CCSF representative regarding the grievance. No resolution was reached.

 Joseph and Shapiro next met with an attorney for the union. Although the attorney recommended arbitration as an option, he also noted that the union would likely lose, particularly given the medical evidence supporting plaintiff's inability to work. Although Joseph advised Fontanilla to get another medical opinion to counteract Dr. Brusman's statement that Fontanilla could not return to work as an eligibility worker, Fontanilla refused to do so.

 In the meantime, the CCSF and the union were engaged in protracted CBA disputes which eventually ended up in state court. One of the disputed issues was whether CSC Rule 22, governing compulsory sick leave, was part of the CBA which the union had the right to enforce with the grievance procedure or whether it was merely a civil service rule. This, along with Fontanilla's failure to get a new doctor's report, was behind the union's decision not to compel arbitration of Fontanilla's grievance.

 Fontanilla remained on compulsory sick leave during 1994 and 1995. In 1996, the CCSF terminated Fontanilla. After his termination, the union filed another grievance on Fontanilla's behalf. Joseph negotiated an agreement with the CCSF whereby Fontanilla would be sent to another doctor. Fontanilla subsequently saw another doctor who concluded that Fontanilla was fit to return to duty. The union and the CCSF negotiated an additional agreement whereby the CCSF agreed to full back pay and benefits from the date of the physician's release to the date he was actually returned to work.


 1. Summary Judgment

 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function, however, is not to make credibility determinations, Anderson, 477 U.S. at 249, and the inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.

 2. Motion to Dismiss

 A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).

 On any other motion to dismiss under Rule 12(b), the court may consider matters outside the pleadings, but must accept as true all material allegations of the complaint and construe the complaint in favor of the plaintiff. See Fed. R. Civ. P. 12; Warth v. Seldin, 422 U.S. 490, 501-02, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) (considering the issue of standing). Each ground for dismissal will be considered in turn.


 A. Plaintiff's Claims Against the CCSF ...

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