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Mory v. City of Chula Vista

February 11, 2008


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court are Defendants' Motion for Summary Judgment [Doc. No. 36], Plaintiffs' Opposition [Doc. No. 89], and Defendants' Reply [Doc. No. 111]; Plaintiffs' Application for a Continuance under Rule 56(f) [Doc. No. 113] and Defendants' Opposition [Doc. No. 115]; Defendants' Motion for Sanctions [Doc. No. 53], Plaintiffs' Opposition [Doc. No. 69], and Defendants' Reply [Doc. No. 72.] For the following reasons, the Court GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiffs' 56(f) Application, and DENIES Defendants' Motion for Sanctions.


The city of Chula Vista ("Defendant") hired Plaintiff Deanne Mory ("Mory") as a police officer on April 22, 2005. [Pls.' Opp. at 1.] The Chula Vista Police Department ("CVPD" or "Department") requires all newly hired police officers to pass a probationary period of 18 months. [Defs.' Motion at 2.] During this period, Mory entered the police academy and graduated on October 7, 2005. [Id.] After graduating, she began her field training, which lasted until May 2006. [Id.] Throughout the training period, Mory met the Department's standards, but she committed errors in the areas of officer safety and prisoner control. [Id.] Mory admits that her supervisors treated her appropriately during her training. [Id.]

The CVPD has a policy of prohibiting officers from participating in outside employment activities during their 18 month probationary period. [Id.] This policy is derived from the Incompatible Activities Code ("IAC") for city employees and from California Government Code § 1126. [Defs.' Motion, Ex. L.; see infra (II)(D) (explaining Section 1126).] Mory admits that this policy was explained to her during orientation training; however, she understood that there was a process by which CVPD employees could request permission to participate in outside employment. [Id.; Defs.' Separate Statement of Uncontroverted Facts ("DUF") Nos. 8-9.]

In December 2005, Mory submitted an application to be considered for the title of Ms. California United States so that she could compete in the national Ms. United States Pageant in July 2006. [DUF No. 11.] On January 1, 2006, Mory was selected as Ms. California United States. [Id. No. 12.] After being selected Ms. California, Mory became concerned that due to her probationary status, her participation in the Ms. United States Pageant might be considered outside employment and thereby violate the CVPD's policy. [Id. Nos. 13-14.]

On January 4, 2006, Mory notified the CVPD's management of her intent to participate in the pageant. [Defs.' Motion at 2.] Thereafter, Lieutenant Roxanna Kennedy of the Professional Standards Unit spent a substantial amount of time researching the Ms. United States pageant to determine how much time and attention would be diverted from Mory's training if she were to participate and attend other related pageant events and appearances. [DUF No. 22.] Police management, including individual Defendant Captain Don Hunter, deliberated over Mory's request and consulted the City Attorney's Office. [Defs.' Motion at 2-3.] After deliberating, the management concluded that Mory's participation would be detrimental to her development as a police officer due to the time and effort she would have to commit to the pageant during her training and probationary period. [Defs.' Motion at 2-3.] As a result, Lieutenant Kennedy expressly ordered Mory not to participate in the Ms. United States pageant. However, she encouraged her to apply to participate the following year, after a successful completion of her probationary period. [Id.]

The President of the Chula Vista Police Officer's Association ("CVPOA"), Manny Mendoza, advised Mory that she could be deemed insubordinate if she violated a direct order and continued to participate.*fn1 [Id.; DUF No. 35.] President Mendoza suggested that any further participation should be done quietly. [Id.] Nonetheless, Mory requested various days off to participate, and she admits that she continued to take part in activities related to the pageant during her probationary period. [Id.; DUF Nos. 37-39.]

On July 19, 2006, Mory filed the instant action against Defendants, in large part, to challenge the order prohibiting her from participating in the pageant. [Pls.' Opp. at 4.] The next day, on July 20, 2006, CVPD Defendants Chief Richard Emerson and Captain Hunter informed Mory and her attorneys, in writing, that Mory's request to participate in the pageant was approved. [Defs.' Motion at 3.] Chief Emerson and Captain Hunter reasoned that the issue was not worth "fighting over" even though Mory's participation in the pageant would violate the Department's established policy regarding incompatible probationary activities, and even though Mory's participation was an act of clear insubordination. [Id.] Therefore, Mory participated in the Ms. United States pageant from July 21 through July 25, 2006. [DUF No. 44.]

On October 7, 2006, Mory received a written reprimand after allowing a handcuffed burglary suspect to escape while in her custody. [Defs.' Motion at 4.] Members of the CVPOA conducted an internal investigation of the incident and concluded that the written reprimand was proper. [Id.]

Nevertheless, on October 23, 2006, Mory received her second generally positive performance evaluation. [Id.] On October 27, 2006, Mory passed probation and became a regular CVPD employee notwithstanding various negative performance issues during her probationary period. [Id. at 4-5; DUF No. 52 (stating Mory failed to instruct a suspect of his Miranda rights, lost her baton, and needed to be careful to "avoid the appearance of overconfidence or lack of humility").] As of the date of Defendants' motion, Mory was still working as a police officer for the CVPD and she was once again selected as Ms. California for 2007. [Defs.' Opp. at 5.]

Plaintiffs now ask for relief from this Court for Defendants' alleged violations of federal and state gender discrimination and employment retaliation laws. Specifically, Plaintiff seeks: (1) a declaration that Mory's participation in the Ms. United States Pageant is not and cannot be considered a violation of the CVPD's policy regarding outside employment; (2) a declaration that Defendants may not take disciplinary action against Plaintiff for participation in the Ms. United States Pageant whether or not she wins prizes; (3) a declaration that Defendants' interpretation of the CVPD's policy regarding outside employment has a disparate impact on female police officers, and that any interpretation of that policy that prevents the exercise of constitutionally protected rights is invalid and unenforceable; (4) damages; (5) costs; and (6) attorneys' fees. [First Amended Complaint ("FAC"), Prayer for Relief.]


I. Plaintiffs' Declaratory Relief Claims are Non-justiciable

The federal Constitution limits the federal judicial power to designated "cases" and "controversies." U.S. Cost., Art. III, § 2. Federal courts do not have power to decide questions of law in a vacuum. They may only determine such matters as arise in the context of a genuine "case" or "controversy" within the meaning of Article III. SEC. V. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972).

A. Plaintiffs Lack Standing In Their Declaratory Relief Claims

Standing is a jurisdictional requirement, "an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The doctrine of standing is comprised both of constitutional or "Article III" requirements and of "prudential considerations." Gladstone Realtors v. Village of Bellowood, 441 U.S. 91, 99 (1979).

To establish a "case or controversy" within the meaning of Article III, a plaintiff must show each of the following as an "irreducible minimum:" (1) an "injury in fact" that is concrete and not conjectural; (2) a causal connection between the injury and a defendant's conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61.

In the present action, it is undisputed that Mory was, in fact, permitted to participate in the 2006 Ms. United States Pageant and she did so. [DUF No. 44] Mory has since received positive performance evaluations, passed probation, and has become a regular, nonprobationary employee. [DUF No. 58.] She has also been selected again as Ms. California 2007 and continues to participate in beauty pageants and related activities without opposition from the Defendants. [DUF Nos. 59-60.] Therefore, there is no "credible threat" that the CVPD will attempt to prevent Mory from participating in such pageants in the future. See Arizona Right to Life PAC v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (stating a plaintiff demonstrates an "injury-in-fact" when he or she "intends to engage in a course of conduct arguably affected with a constitutional interest and there is a credible threat that the challenged provisions will be invoked against the plaintiff").

Mory contends that declaratory relief is necessary because the CVPD's "investigations and conclusions" will remain on her record and "may well be a factor in sought after assignments, promotions, transfers, and other job benefits." [Pls.' Opp. at3, 5]. These "investigations and conclusions" refer to Lieutenant Kennedy's notes that reference Human Resource Director Marcia Raskin's conclusion that there was "sufficient grounds to terminate Mory for failing to meet [the] probationary standard." [Id.; Pls.' Exhibit 6.]

The Court finds that this argument improperly rests on hearsay evidence and fails as premature and speculative. Mory has not indicated that any specific benefit, promotion, or opportunity was denied to her or is threatened as a result of these "investigations and conclusions" or beauty pageant participation. Lujan, 504 U.S. at 559-60 (stating the "injury in fact" requirement must involve "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical").

Furthermore, Mory's, Co-Plaintiff, the CVPOA, also has no basis for standing. An organization may establish standing by showing: "(1) frustration of its organizational mission; and (2) diversion of its resources to combat the alleged wrongful conduct." Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Here, Plaintiffs have not presented any evidence that shows how any of Defendants' actions "injured" the CVPOA or "frustrated its organizational mission" to act as a collective bargaining unit. In addition, Plaintiffs admit that there are no pending requests by CVPOA members for outside employment activity and they have not demonstrated that CVPOA members have been denied the opportunity to participate in such outside activities. [DUF 70-72.] Therefore, both Mory and the CVPOA lack standing in their declaratory relief claims.

B. Plaintiffs' Claims for Declaratory Relief Are Moot

A federal court has no authority to give opinions upon moot questions. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) ("an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed"). "A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). In addition, an action becomes moot where subsequent events make clear that "the allegedly wrongful behavior could not reasonably be expected to recur" and interim relief or events have "eradicated the effects of the alleged violation." Los Angeles County v. Davis, 440 U.S. 625, 631 (1979).

Here, assuming that the Department acted improperly by initially telling Mory she could not participate in the 2006 pageant; the Department's subsequent granting of permission completely "eradicated the effects" of the initial denial. Further, Mory is no longer a probationary employee and continues to participate in beauty pageants. Therefore, there is no reasonable expectation that the Department's policy regarding probationers ...

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