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December 12, 2005.

EVA M. KEISER, Plaintiff,

The opinion of the court was delivered by: MARTIN JENKINS, District Judge


Pending before the Court are: (1) Defendants Wiley Price & Radulovich, LLP ("WPR") and Barbara Armanino's Motion to Dismiss (Doc. #11); (2) Defendant County of Lakes's "Rule 12(b)(6) Motion for Failure to State a Claim" (Doc. #17); and (3) Defendants William Jaynes and the Superior Court of California's Motion to Dismiss (Doc. #20). Plaintiff pro per Eva Keiser has filed Oppositions in response to each of the pending Motions (Docs. ##23, 24, 25), and Defendants have filed Replies*fn1 (Docs. #26 (County Reply), #27 (Mr. James and Superior Court), #28 (WPR and Ms. Armanino).) The Court now rules as follows.

I. Legal Standard — Motion to Dismiss

  A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because the focus of a 12(b)(6) motion is on the legal sufficiency, rather than the substantive merits of a claim, the Court ordinarily limits its review to the face of the complaint. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Generally, dismissal is proper only when the plaintiff has failed to assert a cognizable legal theory or failed to allege sufficient facts under a cognizable legal theory. See SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 782 (9th Cir. 1996); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Further, dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of a claim. See Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). In considering a 12(b)(6) motion, the Court accepts the plaintiff's material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).

  II. Plaintiff's Allegations

  Plaintiff filed her Complaint against Defendants on June 7, 2005. (Doc. #1.) The material allegations, taken as true and construed in the light most favorable to Plaintiff, are summarized as follows.*fn2

  In October 1994, Plaintiff was hired on a 900-hour contract basis with the Superior Court of California, County of Lake. Later, in February 2005, Plaintiff obtained a permanent position as a County Court Clerk. In 2000, Plaintiff applied for a competitive selection position offered by the County's Local Agency Merit System, and was selected for the position of judicial secretary. In early 2001, in addition to her judicial secretary position, Plaintiff was appointed to a Courthouse Safety Officer position. Additionally, beginning in 2001, and again in 2002, Plaintiff was appointed as Grand Jury Commissioner for the Superior Court, County of Lake.

  Plaintiff alleges that in 2002, Court Manager, Barbara Mallinen, informed Plaintiff that her office area would be used as an office lounge/break area for court staff. Plaintiff opposed the change, claiming it was intrusive and disruptive to her work area. Ms. Mallinen responded that the change was necessary to monitor all conversations. Plaintiff, however, avers that the change was "an attempt to `spy' on the activities of Plaintiff and the Grand Jury."

  Plaintiff alleges that in January 2002, she "began experiencing and documenting an escalation of harassment directed at [her], namely a probate secretary, Doe." Plaintiff claims that the probate secretary challenged Plaintiff's "by the book" procedures and called Plaintiff profanities. As a result, Plaintiff complained to Mr. William Jaynes, the Court Executive Officer,*fn3 and Ms. Mallinen. Neither took any action. Plaintiff alleges that, "[d]uring the next four months harassment against Plaintiff escalated in the form of work procedure sabotage (changing procedures without cause or necessity), increase in work load (from coworker's backlog by order of court manager), name calling, subordinates without any authority giving Plaintiff orders, ultimatums over requested sick leave, pointed emails, and disparate treatment by manager in front of coworkers." (Id. at ¶ 22.)

  In 2002, following the September 11 terrorist attacks, the County Safety Council appointed Plaintiff to the position of Courthouse Building Evacuation Coordinator. Plaintiff alleges that around that time the courthouse was under alert status and, pursuant to orders from the State Office of Emergency Services, she had to evacuate the courthouse as part of emergency preparation drills. According to Plaintiff, "[t]hese drills were highly resented by Court Management [] as it gave access and authority to Plaintiff to order anyone from the building and search without prior notice, as well as, cite anyone refusing to cooperate." In particular, Plaintiff claims that Ms. Mallinen "let Plaintiff know, in no uncertain terms, how much she resented having to take orders from Plaintiff." She also alleges that court management failed or refused to report safety incidents and would delay notifying Plaintiff about emergency situations.

  Subsequently, in May 2003, Plaintiff was assigned the responsibility of coordinating court reporters and interpreters in five departments. She alleges that Ms. Mallinen repeatedly told her to conceal unequal wages, treatment, and reimbursement rates of overtime and mileage among the court reporters. Because Plaintiff suspected that these procedures were illegal and violated wage and labor laws, she refused to comply. Plaintiff further alleges that she "believed that these unfair labor practices were wide spread within the rank of the non[-]merit system employees and began to organize these employees in an effort to standardize their pay under equal pay for equal work standards." In response to these efforts, Plaintiff alleges that the court management*fn4 advised employees that they should "be careful with whom they had lunch." According to Plaintiff, her efforts "to standardize the wages of court reporters was protected and presented an obstacle to the ensuing labor negotiation of the Defendants."

  In June 2003, Plaintiff continued to advocate on behalf of the court employees, and in anticipation of the implementation of the Trial Court Employment Protection and Governance Act ("TCEPGA"), assisted in establishing a non-profit 501(c)(3) charitable organization, pursuant to California Government Code § 71632.

  On September 23, 2003, Plaintiff received a disciplinary notice seeking her termination on the ground that she was one day late in scheduling a second fingerprinting for a background check. On September 26, 2003, Plaintiff filed a grievance with Lake County, but the Lake County Personnel Director informed Plaintiff that she had no right to grievance through the County. Plaintiff then retained counsel to defend against the disciplinary action. "Plaintiff alleges that Defendants' act in serving notice of adverse action five days before the mandated implementation of the TCEPGA was a pretext to prevent Plaintiff from utilizing the protection provision of retained rights and status upon implementation of the TCEPGA."

  On September 28, 2003, the TCEPGA went into effect. Plaintiff alleges that, "[i]t was in and about this time that Plaintiff became aware of the efforts by Defendants to reclassify Plaintiff to make her status in the confidential unit an excluded position, and suspected a plan to combine that unit with the management bargaining unit." Plaintiff opposed the reclassification, but was not offered a transfer because she was facing a disciplinary charge.

  On November 12, 2003, Plaintiff claims that the Defendants attempted to use the disciplinary proceedings to convince her that she had no protection under the TCEPGA because she was an excluded employee under the TCEPGA. On November 25, 2003, Plaintiff prevailed at the disciplinary hearing, and all charges against her were dismissed.

  Thereafter, on December 4, 2003, Plaintiff alleges that a union representative approached her and asked her to sign a document. Plaintiff signed the document, but after realizing that it was a loyalty oath for labor relations, withdrew her signature. She alleges that her refusal to sign was a protected activity.

  Plaintiff alleges that throughout December 2003 and January 2004, she continued to experience further acts of hostility and harassment from court management and other subordinate workers. She claims that this hostility and harassment escalated every time she expressed her dissatisfaction over her suspected placement. At the end of 2004, Plaintiff began to inquire about transferring to another position.

  On February 3, 2004, Plaintiff received a disciplinary notice indicating that she had allegedly committed fraud in securing employment with the court. At this time, security escorted Plaintiff out of the building and took her keys. Plaintiff believes that Defendants "conspired and violated Labor Code § 432.7 to bring this action against Plaintiff in an effort to prevent her defecting from the newly formed management bargaining group that was being used to exclude Plaintiff from her retained rights through [the court's] implementation of the TCEPGA." Thereafter, a disciplinary hearing was held, which resulted in Plaintiff's discharge. After Plaintiff appealed, her employment was reinstated, and she returned to work on May 25, 2004. However, Plaintiff did not receive her back wages of approximately $6,000; she therefore appealed. Plaintiff alleges that Defendants held these wages as a penalty for engaging in the protected activity of advocating that an agency shop fee of unrepresented objectors should be allowed to paid to a 501(c)(3) non-profit organization of an employee's choice.

  On May 5, 2004, Plaintiff accepted Defendant's*fn5 reinstatement benefits package. She states that, as an act of good faith, she did not file any claim against Defendants, but did appeal the wage taking by writ. On May 25, 2004, Plaintiff returned to work in accordance with the reinstatement order.*fn6 At that time, she received another disciplinary notice terminating her employment based on job performance. It was at this point that Plaintiff discovered that Ms. Mallinen and the probate secretary had raided Plaintiff's office, and that Defendants had no intention of allowing her to return to work. Security then escorted Plaintiff out of the building and took her keys. Plaintiff asserts that the motivation for this action "was based on bias and prejudice against Plaintiff's gender and esteemed career status."

  On May 28, 2004, June 15, 2004, and June 18, 2004, Plaintiff wrote former presiding Judge David Herrick, and requested that he remove Mr. Jaynes from his position as CEO. Plaintiff alleges that, on July 1, 2004, Mr. Jaynes "stepped aside rather than defend against Plaintiff's charge of bias and prejudice."*fn7 In an effort to appeal her termination, Plaintiff contacted the court to obtain the procedures for the selection of an impartial hearing officer under the court policies and the TCEPGA. On July 1, 2004, Plaintiff received a letter from the court indicating that, based on her classification, she was not entitled to a evidentiary hearing. On July 30, 2004, Plaintiff appealed the decision of discharge. The court referred Plaintiff's appeal to WPR,*fn8 which the court previously retained as counsel in Plaintiff's wage appeal.

  On August 30, 2004, Plaintiff filed an unfair practice charge with the Public Employment Relations Board ("PERB"). Plaintiff claims that after she filed her charge, WPR contacted her to propose submitting her claim to arbitration. Plaintiff rejected WPR's proposal, and submitted requests for discovery. On February 14, 2005, Plaintiff claims that WPR wrote her, stating that "Defendants" would make no further effort to provide a hearing.

  On February 28, 2005, Plaintiff requested reinstatement to a court position that was being advertised. On March 2, 2005, Mr. Jaynes rejected Plaintiff's request, citing the third adverse employment action. Plaintiff thereafter filed an appeal with the PERB for an evidentiary hearing, which Plaintiff states is under review by an administrative law judge.

  Based on the foregoing events, Plaintiff alleges that "[f]rom January 2003 to present, [she] has suffered retaliation and deprivation of her fundamentally vested right of employment." (Compl. at ¶ 50.) She states that, "[s]he has been harassed, perjured, conspired against, humiliated, deceived, defrauded, insulted, defamed, libeled, slandered, exposed to emotional and physical distress, ridiculed, suffered bias and prejudice against her gender, privacy invaded, [experienced] disparate treatment, and held against her will in a pattern of perpetual disciplinary discharge procedures which ultimately amount[ed] to [the] constructive discharge of her employment on September 23, 2003, February 3, 2004, May 25, 2004, and July 30, 2004." (Id.)

  As a result, Plaintiff asserts the following claims against Defendants: (1) violation of her constitutional rights (42 U.S.C. § 1983); (2) refusal to prevent interference with deprivation of constitutional rights (42 U.S.C. § 1986); (3) age discrimination (29 U.S.C. § 623); (4) retaliation for political activity (Labor Code § 1101 and § 1105); (5) intentional misrepresentation; (6) breach of contract; (7) breach of covenant of good faith and fair dealing; (8) defamation; (9) discharge in violation of public policy; and (10) intentional infliction of emotional distress. Each of the Defendants has moved to dismiss Plaintiff's Complaint on the ground that Plaintiff has failed to state any claim upon which this Court may grant relief.

  III. Discussion

  A. Preemption under the Trial Court Employment Protection and Governance Act

  Defendants first urge the Court to dismiss Plaintiff's claims because under the TCEPGA,*fn9 the PERB has exclusive jurisdiction over disputes regarding wages, hours, and terms and conditions of employment. Particularly, Defendants argue that Article 3 of the Act provides:
A complaint alleging any violation of this article or of any rules and regulation adopted by a trial court pursuant to Section 71636 shall be processed as an unfair practice charge by the [PERB]. The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this article, shall be a matter within the exclusive jurisdiction of the board.
Cal. Gov't Code § 71639.1(c). Based on this provision, Defendants argue that "the Act requires that complaints by trial court employees alleging unfair labor practices must be presented only to PERB." Thus, Defendants advance that, to the extent Plaintiff alleges she was treated unfairly because she engaged in protected labor-related and/or union-related activities, this Court lacks jurisdiction to adjudicate those matters because such claims are within PERB's exclusive jurisdiction.

  In support, Defendants cite El Rancho Unified School District v. National Education Association, 33 Cal. 3d 946 (Cal. 1983). In that case, the California Supreme Court addressed whether the PERB had exclusive jurisdiction over a school district's state court tort action for damages resulting from a teachers' strike led by four employee organizations — none of which had been recognized as the exclusive representative of the district's teachers under the Education Employment Relations Act ("EERA"). Id. at 948. To determine whether the district's claims were preempted, the court first assessed whether the activity complained of arguably constituted an unfair practice under the EERA. On this factor, the court found that at least two theories supported the conclusion that the unions' strike was prohibited under EERA's unfair practice provisions. The court then proceeded to analyze whether the controversy presented to the state court was identical to or different from that which the district could have brought before the PERB. The court found that, if presented to the PERB, the issue would have been whether the strike was unlawful because it violated a section of the EERA. Similarly, in the state trial court action, the district was challenging the legality of the strike, which required the Court to examine the strike under the EERA. The court therefore concluded that the controversy presented in both forums was the same. Accordingly, the court held that the EERA divested the trial court of jurisdiction to adjudicate the district's complaint, and the district was restricted to litigating its claims before the PERB.

  Here, Defendants argue that Plaintiff's claims are based on essentially the same underlying conduct as that which she alleged in her PERB charge, or which she could have alleged in a PERB charge, and are therefore preempted. Defendants proffer that Plaintiff has alleged: (1) that her "activity to standardize the wages of court reporters was protected" (Compl. at ¶ 23); (2) that she engaged in "protected activity regarding working conditions and right to choice of representation" by Superior Court employees (Id. at ¶ 24); (3) that Defendants' act of serving her with a disciplinary notice was a "pretext to prevent" her from the protections to which she was purportedly entitled under the Act (Id. at ¶ 27); (4) that she complained about her placement in the management bargaining unit (Id.); (5) that her refusal to sign a union "signature document" was a "protected activity" (Id. at ¶ 30); (6) that she suffered "hostility and harassment" by Superior Court employees because her concerns about her "placement in management" (Id. at ¶ 31); (7) that she was subjected to discipline "in an effort to prevent her from defecting from the newly formed management bargaining group" (Id. at ¶ 32); (8) that she suffered wage loss during her disciplinary suspension "as a form of penalty for engaging in protected activity" (Id. at ¶¶ 33-34); (9) that because she was allegedly denied an "evidentiary due process hearing" following her termination, she filed an unfair practice charge with PERB (Id. at ¶¶ 40-41); and (10) that her challenge of the Superior Court's policies "adopted in plaintiff's absence" resulted in adverse employment action (i.e., her termination) (Id. at ¶ 43). (Doc. #20 at 5.)

  While the Court agrees with Defendants that Plaintiff previously asserted similar claims to the PERB, Defendants have failed to cite any authority indicating that the TCEPGA precludes Plaintiff from concurrently or subsequently bringing federal claims based on the same conduct underlying her PERB charge. In El Rancho School District, the Supreme Court held that the plaintiffs could not seek damages in state court based on state law tort claims because the claims fell within the scope of the EERA, and were therefore within the PERB's exclusive jurisdiction. Here, in contrast, Plaintiff is asserting claims alleging that the various Defendants acted to deprive her of her federally-protected constitutional rights and discriminated against her in violation of federal law. While the conduct supporting her claims is the same as that alleged in her charge filed with the PERB, Defendants have failed to cite any authority, and the Court has found none, indicating that the TCEPGA or any similar statute preempts an individual's civil rights claims under federal law. Absent citation to such authority, the Court declines to find that Plaintiff is precluded from bringing her federal claims in this lawsuit.

  Nor does it appear that any of Plaintiff's state law claims, at least as currently plead, fall within the ambit of the TCEPGA. As indicated above, the TCEPGA vests exclusive jurisdiction over disputes concerning wages, hours, and terms and conditions of employment in the PERB. While Plaintiff's allegations surely rest, in part, on her union-related activities, her claims for retaliation, intentional misrepresentation, breach of contract, breach of covenant of good faith and fair dealing, defamation, discharge in violation of public policy, and intentional infliction of emotional distress claims are premised on conduct and theories which exceed the wages, hours, and terms and conditions of Plaintiff's employment. However, because Plaintiff's Complaint is difficult to decipher, and the true nature of Plaintiff's claims may only be distilled after discovery, the Court will deny Defendants' Motion to Dismiss Plaintiff's state law claims based on TCEPGA-preemption without prejudice. Accordingly, the Court turns to Defendants' alternate arguments. B. Plaintiff's Federal Claims

  As detailed above, Plaintiff has alleged three claims arising under federal law: a § 1983 claim; a § 1986 claim; and a claim under the Age Discrimination in Employment Act ("ADEA"). Because the Court's subject matter jurisdiction hinges ...

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