right to free speech." Complaint, P 102. It is unclear whether Fontanilla intends to state a claim for racial discrimination, retaliation in violation of his First Amendment rights for complaining of racial discrimination, or both. It is also possible that Fontanilla did not intend to state a claim for racial discrimination or retaliation in violation of the First Amendment but, rather, intended to assert a conspiracy on the part of the defendants for a "violation of civil rights." The court addresses each of the possible claims in turn.
a. Racial Discrimination
In order to prove racial discrimination, the plaintiff must show that the CCSF defendants acted with the intent to discriminate. See Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1113 (9th Cir. 1991). Fontanilla, however, makes a mere conclusory allegation that defendants retaliated against him for complaining of racial discrimination. Fontanilla fails to set forth any facts that would support a finding of intentional discrimination under the heightened pleading standard employed in evaluating a motion to dismiss where a defendant's subjective intent is at issue. See Branch I, 937 F.2d at 1383. As a result, a racial discrimination claim does not survive the defendant's motion to dismiss.
If Fontanilla intends to state a retaliation claim in violation of his First Amendment rights against the CCSF defendants, that claim constitutes a claim for retaliation in violation of the First Amendment under section 1983. As discussed supra, that claim also fails because it does not meet the heightened pleading standard required under Branch-I.
c. Conspiracy for a "Violation of Civil Rights"
Finally, if Fontanilla does not intend to assert a claim of "racial discrimination" or "retaliation," but rather, intends to assert a claim of "a violation of civil rights," then Fontanilla's third cause of action presumably goes to a theory that the defendants "conspired" to retaliate against him and deprive him of his "constitutional right to free speech."
As the defendants point out, section 1983 does not create a diffuse "violation of civil rights" cause of action. Rather, in order to state a claim under section 1983, Fontanilla must show that the defendants acted under color of state law, and that their conduct deprived him of a specific constitutional right. See, e.g., Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996). The diffuse claim of a "violation of civil rights" that Fontanilla asserts is not one of the rights protected under section 1983.
Furthermore, although Fontanilla alleges that the "defendants and each of them entered into an agreement to retaliate against the Plaintiff" and that "in furtherance of the conspiracy, said defendants encouraged, authorized, ratified, and/or condoned the acts of others," Fontanilla again fails to make the showing required to establish a conspiracy to retaliate under Branch I. Complaint, PP 102-03. Like Fontanilla's claim for retaliation in violation of his First Amendment rights, Fontanilla must again make some sort of nonconclusory allegations which contain evidence of unlawful intent. Branch-I, 937 F.2d at 1386. Because Fontanilla does not make such allegations, a claim under section 1983 for conspiracy to violate his civil rights also fails.
5. Statute of Limitations
Defendants assert that the claims against Enisman, Wilson, and Newman are time-barred since the factual events occurred in December 1992 for Wilson and Enisman, and in November 1993 for Newman. Fontanilla filed his complaint in October 1996.
Fontanilla asserts that his claim is based on a conspiracy between the defendants to injure his person and property, and that the statute of limitations for conspiracies under section 1983 should apply. However, it is not clear that Fontanilla has sufficiently pled a claim for a conspiracy under section 1983. In order to properly assert that the statute of limitations for a conspiracy should apply in this case, Fontanilla must include in his complaint some nonconclusory allegations containing evidence of a conspiracy under section 1983. See Branch I, 937 F.2d at 1383.
Even if Fontanilla were to sufficiently state a section 1983 conspiracy claim, the statute of limitations has expired. For section 1983 actions, federal courts apply the statute of limitations for personal injury actions in the state in which the claim arises. Wilson v. Garcia, 471 U.S. 261, 269, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). In California, the applicable statute provides for a limitations period of one year from the date the cause of action accrues. See Cal.Civ.Proc.Code § 340(3); Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). When a section 1983 action is based on a claim of conspiracy, the limitations period begins to run from the date of the last overt act. See Gibson v. United States, 781 F.2d at 1340. Because each of the acts relevant to Enisman, Wilson, and Newman occurred more than one year before Fontanilla filed his complaint, the claims against those defendants are time barred.
6. Municipal Liability
Fontanilla's fourth cause of action is against the CCSF for municipal liability. Fontanilla makes a conclusory allegation that the CCSF's customs and policies resulted in the deprivation of his right to due process, as well as his right not to be retaliated against for exercising his First Amendment rights. The CCSF argues that Fontanilla fails to identify a specific right violated by the defendants, and therefore the court should dismiss that cause of action for failing to state a claim for relief.
A local governmental entity may be sued under section 1983 where the alleged constitutional deprivation was inflicted in the execution of an official policy or custom. Monell v. New York Department of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978). It is improper to dismiss a section 1983 complaint alleging municipal liability on the pleadings alone, even if the claim is based on nothing more than a bare allegation that the conduct at issue conformed to official policy and, in turn, violated a constitutional right. See Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 624 (9th Cir. 1988); Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986).
As a preliminary matter, the disposal of the Fourteenth Amendment claim on summary judgment grounds reflects Fontanilla's inability to hold the CCSF liable for a due process violation based on the carrying out of the CSC Rules. Because municipal liability is based upon the alleged violation of a constitutional right, Fontanilla cannot state a claim for municipal liability against the CCSF for a due process deprivation.
Moreover, although Fontanilla's complaint alleges that the City "authorized, approved, or ratified the customs, policy, and/or practices of arbitrarily and capriciously depriving civil service employees of rights and benefits secured to them by the Civil Service Rules," he fails to point to any official policy stating that an the CCSF may deprive an employee of due process Complaint at 106. He also fails to point to any official policy that permits the CCSF to retaliate against an employee for exercising a right to free speech. Not only does Fontanilla fail to point to such a Rule or Rules, but the court's examination of the CSC Rules does not produce any such finding. As a result, Fontanilla's municipality claim must be dismissed for failure to state a cause of action.
7. Equal Protection Violation
Plaintiff alleges that the CCSF defendants violated his equal protection rights "by refusing to afford him due process before taking his property, a right afforded to all other civil servants." Complaint at P 92. Fontanilla contends that by virtue of being a civil servant, he is a member of a class that possesses constitutionally protected property interests. Plaintiff's Opp. at 23. In applying the Equal Protection Clause, the Supreme Court has treated as "presumptively invidious" those classifications that disadvantage a suspect class, or that impinge upon the exercise of a fundamental right. Plyler v. Doe, 457 U.S. 202, 216-17, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982) (stating that undocumented aliens are not a suspect class).
No court, however, has ever held that "civil servants" constitute a suspect class. See, e.g., Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1972) (gender is a suspect class); McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964) (race based classifications are suspect); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) (age based classifications are a suspect class). Moreover, there is no burden on Fontanilla's exercise of any fundamental right. See San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). Fontanilla does not possess a fundamental right to government employment. The asserted right of due process constitutes a separate claim, which has already been discussed above.
B. Claims Against Dr. Shusterman
1. Conspiracy Claim
Fontanilla's conspiracy claim against Dr. Shusterman has no merit. In order to proceed with a conspiracy claim, Fontanilla must show an agreement among defendants to violate his civil rights and the actual deprivation of his rights as a result of the conspiracy. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). In addition, allegations of conspiracy must be supported by material facts, not merely conclusory statements. Id.
Fontanilla cites a string of apparent misdeeds that he has referenced in his complaint. He fails, however, to point to any evidence that an agreement between Shusterman and the other defendants to violate his civil rights ever existed. Nor does Fontanilla submit evidentiary facts from which a reasonable jury could infer a conspiracy. Without such evidence, Fontanilla's claim must fail as a matter of law.
2. Section 1983 Claims
a. State Actor
Shusterman argues that Fontanilla's section 1983 claims against him fail because Shusterman was not acting under color of state law when he concluded that plaintiff suffered from a psychiatric disorder and should be placed on disability status. Although it is undisputed that Shusterman was an employee of the Regents of the University of California and performing staff division functions for the CCSF's Division of Occupational Health Services, Fontanilla cannot show that Shusterman was functioning as a state actor for purposes of this claim. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). Instead, Fontanilla assumes that because the Regents employed Shusterman, Shusterman was functioning as a state actor at all times and for all purposes.
There are four tests which a court may utilize in order to determine whether a person was acting under color of state law Id. at 939.
Shusterman does not qualify as a state actor under any of these tests.
1. Public Function Test
Under the public function test, a defendant may be considered a state actor if he or she engages in a traditionally exclusive government function. Rendell-Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982). The issue in this case is whether Dr. Shusterman performed a traditionally exclusive government function when he diagnosed Fontanilla with a medical condition that interfered with his ability to do his job and recommended that he be classified as disabled.
Shusterman was not "functioning as the government" when he acted as a diagnostic physician and made a recommendation based upon that diagnosis. See, e.g., George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir.1996) (holding that one may be a state actor for some purposes and not for others). Fontanilla cannot, and does not, convincingly argue that the diagnostic tasks of doctors are the type of actions which are traditionally reserved to the state. Thus, Shusterman does not qualify as a state actor under this test.
Under the nexus test, a plaintiff must show that there is a sufficiently close relationship between the defendant and the state, such that the actions of the defendants may be justifiably attributed to the state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). Here, Shusterman was an employee of the Regents and, as part of that employment, performed staff physician duties for the CCSF's Division of Occupational Health Services.
Although Shusterman acted as an Occupational Health Services staff physician, Fontanilla has not shown that there was a nexus between Shusterman and the CCSF in terms of Shusterman's diagnosis and recommendation. The CCSF did not instruct staff physicians as to the manner in which the physicians should examine employees. The CCSF may have based some of its employment decisions on the doctors' diagnoses, but this does not automatically transform all doctors who may have examined the CCSF employees into state actors for purposes of section 1983 liability.
The Supreme Court has held that no nexus was established where a private school treating students with drug and alcohol problems received 90 percent of its funding from the state and operated pursuant to a state contract. Rendell-Baker v. Kohn, 457 U.S. at 841-42 (1982). The Court also noted that contractors performing services for the government do not automatically become state actors for constitutional purposes. Id. at 843. By analogy, then, the nexus test also fails to establish Shusterman as a state actor.
3. Joint Action
A person may be considered a state actor if he or she is a "willful participant in joint action with the state or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980). Joint action may be found where the private party conspired with the state in order to deprive someone of his or her constitutional rights. Fonda v. Gray, 707 F.2d 435, 437 (9th Cir. 1983).
Again, Fontanilla has not properly alleged the existence of a conspiracy between Shusterman and state actors such as the CCSF. In addition, there are no other allegations supporting any joint action between Shusterman and the state in terms of Shusterman's diagnostic decision. The mere fact that Shusterman at times acted as a staff physician at Occupational Health Services does not mean that he engaged in joint action with the CCSF to render an adverse medical diagnosis. Absent the proper allegations, Shusterman cannot be deemed a state actor under the joint action test.
4. State Compulsion
Under the state compulsion test, Fontanilla must demonstrate that the state encouraged or coerced the private actor to take a certain action, thus transforming the action into one of the state. See, e.g., George, 91 F.3d at 1232. Fontanilla does not even attempt to show that there are any facts supporting an inference that Shusterman was in any way coerced or compelled by the state to diagnose plaintiff with a medical condition. As a result, Shusterman does not qualify as a state actor under the fourth and final test, and his motion for summary judgment is granted.
C. Claims Against the Union Defendants
Fontanilla's claims against the union defendants are two-fold. First, Fontanilla claims that the union breached its duty of fair representation to him. Second, Fontanilla claims that the union, and its agents Seth Shapiro and Linda Joseph entered into an agreement or conspiracy to unlawfully interfere with Fontanilla's ability to work in violation of 42 U.S.C. section 1983.
1. Duty of Fair Representation
Fontanilla claims that the union defendants breached their fair duty of representation because they failed to seek redress for his meritorious grievances under the CBA provisions, and/or processed his grievance in a perfunctory manner. The union defendants counter that Fontanilla's claims cannot withstand a summary judgment analysis.
A union has a duty of fair representation to its members. A union, however, has a wide range of discretion in how it discharges its duty. A union breaches its duty of fair representation only if its actions are either "arbitrary, discriminatory, or in bad faith." Airline Pilots v. O'Neill, 499 U.S. 65, 67, 113 L. Ed. 2d 51, 111 S. Ct. 1127 (1991). "[A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness' . . . as to be irrational." Id. (citations omitted).
Recognizing that "unions must retain wide discretion to act in what they perceive to be their members' best interests," the Ninth Circuit has stressed "the importance of preserving union discretion by narrowly construing the unfair representation doctrine." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985) (citations omitted). Representation need not be error free and "mere negligent conduct on the part of a union does not constitute a breach of the union's duty of fair representation." Id.
Fontanilla's opposition absolutely fails to address the relevant case law. In fact, plaintiff assumes that he may survive summary judgment merely by continually asserting that material disputes exist. The union actions Fontanilla attacks, however, fall within the "wide range of reasonableness" that the applicable case law establishes.
1. Decision Not to Arbitrate
The union chose not to take Fontanilla's case to arbitration. Prior to termination, Fontanilla received a medical decision declaring him unfit for duty. In addition, the union received legal advice that arbitration would most likely be unsuccessful. The Ninth Circuit has unequivocally stated that "a union's conduct may not be deemed arbitrary simply because of an error in evaluating the merits of a grievance, in interpreting particular provisions of a collective bargaining agreement, or in presenting the grievance at an arbitration hearing." Peterson, 771 F.2d at 1254; see also Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir. 1995) (holding, in case affirming district court's grant of summary judgment, that a union's decision regarding grievance is arbitrary only if "it lacks a rational basis"). Given the undisputed facts in this case, as well as Ninth Circuit precedent, it was not a breach of the union's duty of fair representation to decide not to arbitrate Fontanilla's grievance.
2. Failure to Sue to Compel Arbitration
It is true that the union's attorney suggested a petition to compel arbitration as an option. However, given the union's reasoned decision not to pursue arbitration, petitioning to compel arbitration would have been a senseless maneuver.
3. Failure to Enforce Supplemental Agreement
Fontanilla argues that CSC Rule 22, regarding procedures for compulsory sick leave, was incorporated into the CBA. However, as previously noted, whether CSC Rule 22 was properly part of the CBA was the subject of a drawn-out lawsuit. Given this undisputed fact, Fontanilla cannot show that the union's failure to enforce the supplemental agreement as to him was arbitrary, discriminatory, or in bad faith.
In Conkle, the Ninth Circuit concluded that a union's choice of litigation tactics, as well as its decision to concede certain issues, fell within the wide range of acceptable behavior by a union. 771 F.2d at 1255. The same applies here. The union reasonably chose to resolve the issue of the supplemental agreement in court. By the time it was conclusively resolved, it was too late for the court's decision to materially affect Fontanilla's individual case.
4. Plaintiff's Placement on Sick Leave
Fontanilla also seems to argue that the union breached its duty of fair representation when it failed to prevent him from being placed on compulsory sick leave. The union counters that the issues arising in Fontanilla's case, such as his duty to submit to a doctor's examination and the possibility of his receiving a disability transfer, were issues arising under the civil service rules promulgated by the CCSF and not the CBA.
In California, a union's representation of its members relates only to wages, hours and working conditions. Cal. Gov't Code § 3504. Civil service rules promulgated by municipalities and local public agencies dealing with other issues remain intact. Cal. Gov't Code § 3500. As a result, the grievance procedures in the CBA deal solely with problems arising under the CBA; there is no duty of fair representation over matters arising pursuant to the civil service rules. See, e.g., Andrews v. Board of Supervisors, 134 Cal. App. 3d 274, 283, 184 Cal. Rptr. 542 (1982).
The union argues that Fontanilla was ordered to undergo a physical examination pursuant to the civil service rules, not the CBA. It further maintains that, although it filed a grievance on plaintiff's behalf, it had grave doubts whether the CBA was applicable to Fontanilla's predicament. The union argues the same is true for any disability transfer desired by plaintiff since such transfers are not covered by the CBA but by the civil service rules.
Fontanilla does not counter this argument. In any event, it is unnecessary for the court to reach a decision on the question of whether the union had a duty of fair representation over these issues. Even if the union did have such a duty, given Fontanilla's adverse medical results, the union's actions were not arbitrary, discriminatory, or in bad faith.
5. Enforcement of Supplemental Agreement
The union's 1994 supplemental agreement would have included the issue of compulsory sick leave in the CBA, had it been ratified and adopted. However, Fontanilla does not appear to contest the fact that approval and ratification did not occur until June 1997. Therefore, the union did not have any duty or right to require the CCSF to medically re-test Fontanilla while he was on compulsory sick leave. For these reasons, Fontanilla's claim of breach of the duty of fair representation against the union must fail.
b. Seth Shapiro
There is no support for Fontanilla's allegation that Shapiro violated his duty of fair representation towards Fontanilla.
After inheriting Fontanilla's file in August 1993, Shapiro filed a grievance on Fontanilla's behalf. Shapiro attended two grievance meetings with the CCSF and subsequently turned over the case to Joseph in November 1993.
To begin with, Fontanilla does not support any allegation that Shapiro, as an individual, had a duty of fair representation to him. If he had, the allegations against Shapiro, which involve his alleged failure to advise Fontanilla of his legal remedies through the CSC Rules, are at best negligence. As such, his actions do not rise to the level of a breach of the duty of fair representation. See Peterson, 771 F.2d at 1253.
c. Linda Joseph
As with Shapiro, Fontanilla cannot state a claim against Joseph as an individual for breach of the duty of fair representation. Even if he could, however, there is no evidence that indicates that Joseph ever acted in a manner demonstrating arbitrariness, discrimination or bad faith. Her conclusion not to arbitrate, which Fontanilla argues shows de facto bad faith, was undisputedly based upon legal advice and her reasoned opinion of the merits of the case. Thus, it falls within the sphere of behavior found acceptable in Peterson. Id.
2. Conspiracy Claim
Fontanilla's conspiracy claim is without merit. Apart from Fontanilla's conclusory allegations, he does not point to any evidence tending to show that any of the union defendants, either individually or collectively, conspired with the other defendants to violate Fontanilla's civil rights.
In fact, as the union defendants point out, the evidence gathered thus far in the form of depositions indicates that the relationship of the CCSF and the union defendants was arms-length and adversarial. As a result, Fontanilla's conspiracy claim against the union also fails.
For the foregoing reasons, IT IS HEREBY ORDERED that the CCSF defendants' motion for summary judgment is GRANTED and the CCSF defendants' motion to dismiss is GRANTED; defendant Dr. Shusterman's motion for summary judgment is GRANTED; and the union defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.
Dated: Nov. 13, 1997
MARILYN HALL PATEL
United States District Judge