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Kaye v. Board of Trustees of the San Diego County Law Library

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 10, 2008

MICHAEL KAYE, PLAINTIFF,
v.
BOARD OF TRUSTEES OF THE SAN DIEGO COUNTY LAW LIBRARY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion for Summary Judgment (Doc. # 26) filed by Defendant Board of Trustees of the San Diego County Public Law Library, the Ex Parte Motion for Leave to File Pretrial Cross-Motion for Abstention and Remand (Doc. # 35) filed by Plaintiff Michael Kaye, and the Cross-Motion for Abstention and Remand (Doc. # 36) filed by Plaintiff Michael Kaye.

Statement of Undisputed Facts

Plaintiff Michael Kaye served as a reference librarian at the San Diego County Public Law Library ("Library") for more than 20 years.

In May 2005, then-Library Director Charles R. Dyer issued a written reprimand to Plaintiff ("2005 Reprimand"). The 2005 Reprimand addressed an incident between Plaintiff and a Library patron who Plaintiff believed was stealing. The 2005 Reprimand was based, in part, on an incident report ("Confidential Incident Report") issued by an undisclosed employee.

Plaintiff requested a copy of the Confidential Incident Report, but his request was denied on grounds that the reporting employee requested that the Report be kept confidential.

Plaintiff submitted a grievance appeal to the Board of Trustees of the Library ("Board of Trustees") which challenged the merits of the 2005 Reprimand and also complained that refusal to permit Plaintiff to review the Confidential Incident Report violated section 1198.5 of the California Labor Code. Plaintiff was never permitted to review the actual Confidential Incident Report, but the Board of Trustees did provide Plaintiff with a document entitled "Comprehensive Summary of Substance of Employee Incident Report." Pltf's Mot. for Abstention, Exhibit 6.

On March 5, 2006, Plaintiff sent a nine-page email to Joan Allen-Hart, the Assistant Director of Public Relations of the Library, and all reference librarians. The email criticized library management, characterizing management's conduct as "disgusting, degrading, and utterly unprofessional," and stating that management had a history of "pettiness, animosity and jealousy." Dft's Mot. for Summary Judgment, Exhibit 6.

On March 6, 2006, Plaintiff was placed on administrative leave. In a letter dated March 21, 2006, Allen-Hart sent Plaintiff a written notice of proposed termination. The letter stated: "After further review of the content of your [March 5, 2006] email communication, this is to notify you that you are being terminated for insubordination and serious misconduct." Pltf's Mot. for Abstention, Exhibit 7.

In or about April 2006, Plaintiff received a letter from Robert Riger, the Chief Executive Officer and Director of the Library, which rescinded the March 21, 2006 notice of proposed termination and stated that "[t]his is a new letter of proposed termination." Dft's Mot. for Summary Judgment, Exhibit 9. The letter stated that "[a]fter further review of the content of your email communication, this is to notify you that you are being terminated for insubordination and serious misconduct." Id. The letter also provided that Plaintiff was entitled to administrative review of the proposed termination. Id.

Plaintiff sought administrative review of his termination. Cyndy Day-Wilson, Esq., a former member of the Board of Trustees, served as the administrative hearing officer. In a letter dated August 1, 2006, Day-Wilson issued an opinion upholding the decision to terminate Plaintiff's employment at the Library. Day-Wilson listed Plaintiff's March 5, 2006 email and the 2005 Reprimand among the documents she relied on in determining that Plaintiff's termination was appropriate. Id., Exhibit 11.

Plaintiff began post-termination procedures by requesting an appeal and evidentiary hearing by the Board of Trustees. In a letter dated October 12, 2006, William Songer, an attorney at the County Counsel's office, stated that despite the proceedings to date, the Library was not required to comply with Plaintiff's request for a post-termination evidentiary hearing because Plaintiff's employment at the Library had been at-will under section 6345 of the California Business and Professions Code. Pltf's Opposition to Mot. for Summary Judgment, Exhibit I. Songer's letter stated that Plaintiff was entitled to further administrative recourse through Library's Grievance Procedure, which affords administrative review of personnel actions. On November 29, 2006, Plaintiff presented his grievance of his termination at a regular meeting of the Board of Trustees pursuant to the Library's Grievance Procedure. Pltf's Mot. for Abstention, Exhibit 13. In a letter dated December 18, 2006, the Board of Trustees issued a written decision upholding Plaintiff's termination, and terminating Plaintiff's employment with the Library effective December 4, 2006. Id., Exhibit 16.

Procedural History

On April 18, 2007, Plaintiff filed a Complaint (Doc. # 1) in the Superior Court of California against the Library, the Board of Trustees, Robert Riger, individually and in his official capacity as Director of the Law Library, and Joan Allen-Hart, individually and in her official capacity as Assistant Director of the Law Library (collectively "Defendants"). Notice of Removal, p. 1-2. The Complaint alleges the following causes of action: (1) Defendants terminated Plaintiff without providing a pre-termination or post-termination evidentiary hearing, which deprived Plaintiff of his constitutionally protected employment without due process of law, in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, sections 7 and 15 of the California Constitution, and (2) Defendants did not permit Plaintiff to inspect his personnel file, which violated section 1198.5 of the California Labor Code and the disciplinary due process requirements in the California and United States Constitutions.*fn1

On April 1, 2008, Defendants filed the Motion for Summary Judgment (Doc. # 24). On April 17, 2008, Plaintiff filed the Ex Parte Motion for Leave to file the Cross-Motion for Abstention and Remand (Doc. # 35). On April 17, 2008, Plaintiff also filed the Cross-Motion for Abstention and Remand (Doc. # 36). On May 5, 2008, Defendants filed a Response in Opposition to the Cross-Motion for Abstention and Remand (Doc. # 42). On May 5, 2008, Plaintiff filed a Response in Opposition to the Motion for Summary Judgment (Doc. # 45). On May 12, 2008, Defendants filed a Reply to the Motion for Summary Judgment (Doc. # 49). On May 12, 2008, Plaintiff filed a Reply to the Cross-Motion for Abstention (Doc. # 54). On May 19, 2008, the Court heard oral argument on both the Motion for Summary Judgment and the Cross-Motion for Abstention and Remand (Doc. # 55).

Standard of Review

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party satisfies its initial burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

In ruling on a motion for summary judgment, the Court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.

Analysis

I. Defendants' Motion for Summary Judgment on the Complaint's First Cause of Action for Deprivation of Constitutionally Protected Employment without Due Process of Law

Defendants contend that a required element of Plaintiff's first cause of action for violation of due process of law is a property interest in his continued employment at the Library. Defendants contend that a public employee does not have a property interest in his employment if his employment is subject to a statutory provision providing that the employment is at-will. Defendants contend that if the employment is subject to a statute providing that the employee is terminable "at the pleasure" of the appointing authority, then the employment is at-will. Defendants contend that Plaintiff did not have a property interest in his employment at the Library because Plaintiff's employment was subject to section 6345 of the California Business and Professions Code, and section 6345 provides for termination at the pleasure of the appointing authority. Defendants contend that the Complaint's first cause of action fails because Plaintiff was not entitled to pre-termination and post-termination due process.

Plaintiff contends that his case falls within an exception to the general rule that an employee does not have a property interest in his employment when his employment is subject to a statute providing that the employment is at-will. Opposition to Mot. for Summary Judgment, p. 8. Plaintiff contends that "[p]ersonnel rules that permit discharge of nonprobationary employees only for cause override the doctrine of at-will termination, even in the face of a statute that ostensibly conditions continued employment on the 'pleasure' of the governing body." Id. at 10. Plaintiff contends that the Library classified his employment status as "permanent" pursuant to the Library's Personnel Manual and the Library's Membership Form for the Public Employee's Retirement System. Id. at 14. Plaintiff contends that his "permanent" employment status created a property interest in his employment at the Library, and therefore created an entitlement to pre-termination and post-termination due process proceedings.

To establish a claim pursuant to 42 U.S.C. section 1983 for violations of a claimant's Fifth and Fourteenth Amendment rights, the claimant must show: (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the deprivation was committed under the "color of state law." American Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S. 410 (1999). For a public employee to establish a claim under section 1983 that he was terminated from his employment in violation of his due process rights, the employee must have a property interest in his employment. Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir. 1988). Property interests that are subject to due process protections are created by "existing rules or understandings that stem from an independent source such as state law. Thus, state law defines what is and what is not property that is subject to" federal due process protections. Id. at 1548 (internal quotations omitted).

Under California law, a public employee whose employment is at-will does not have a protected property interest in continued employment. Binkley v. Long Beach, 6 Cal. App. 4th 1795, 1808 (1993). In California, the terms and conditions of public employment are fixed by statute, not by contract. Miller v. California, 18 Cal. 3d 808, 813 (1977). "[I]t is well settled in California that . . . no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law." Id. Section 6345 of the California Business and Professions Code governs the employment of public library personnel, and provides that "[a] board may appoint a librarian and define the powers and prescribe the duties of any officers, determine the number, and elect all necessary subordinate officers and assistants, and at its pleasure remove any officer or assistant." Cal. Bus. & Prof. Code § 6345. A "public employee serving at the pleasure of the appointing authority," whether he be a "permanent" employee or "provisional" employee, is "by the terms of his employment subject to removal without judicially cognizable good cause." Bogacki v. Board of Supervisors, 5 Cal. 3d 771, 783 (1971). "Serving at the pleasure means one is an at-will employee who can be fired without cause." Hill v. City of Long Beach, 33 Cal. App. 4th 1684, 1694 (1995). "[P]ermanent employment is interpreted as a contract for an indefinite period and in the absence of statutory provisions or public policy considerations is terminable at the will of either party for any reason whatsoever." Newfield v. Ins. Co. of W., 156 Cal. App. 3d 440 (1984).

Plaintiff asserts that he had a protected property interest in his employment at the Library such that he could not be terminated without being afforded due process protections on grounds that his employment status was termed "permanent." Plaintiff relies on a copy of a Membership Form for the Public Employee's Retirement System, which provides that Plaintiff's term of appointment with the Library was "permanent" as opposed to "temporary," and a copy of the new hires section of the Library Personnel Manual, which states that upon successful completion of a six-month probationary period, "the new hire will be considered permanent." Pltf's Opposition to Mot. for Summary Judgment, Exhibits A, B. Plaintiff, however, does not dispute that he wasemployed pursuant to section 6345 of the California Business and Professions Code, which provides that the Board of Trustees may remove library officers or assistants employed under this section "at its pleasure." Cal. Bus. & Prof. Code § 6345. Plaintiff does not dispute that a statutory provision stating that an employee is serving at the pleasure of the appointing authority means that the employee is terminable at-will.

The Court concludes that section 6345 of the California Business and Professions Code governs Plaintiff's employment. The Court concludes that Plaintiff was an at-will employee because he was serving at the pleasure of the Board of Trustees pursuant to section 6345. As an at-will employee, Plaintiff had no protected property interest in his employment at the Library, and "by the terms of his employment [was] subject to removal without judicially cognizable good cause." Bogacki v. Board of Supervisors, 5 Cal. 3d 771, 783 (1971). Viewing the facts in the light most favorable to Plaintiff, the Court concludes that Plaintiff's federal due process claims in the first cause of action fail because Plaintiff was not entitled to pre-termination and post-termination procedural due process under the United States Constitution. The Court grants summary judgment for Defendants on Plaintiff's federal due process claims in the Complaint's first cause of action.*fn2 *fn3

The Complaint's first cause of action states that Plaintiff "seeks parallel relief under article I, sections 7 and 15 of the California Constitution," Complaint, ¶ 79. However, Plaintiff does not address his entitlement to relief under the California Constitution in his Opposition to the Motion for Summary Judgment. As discussed in more detail below, the Court declines to exercise supplemental jurisdiction over the first cause of action to the extent it asserts claims arising under California law.

II. Defendants' Motion for Summary Judgment on the Complaint's Second Cause Action for Violations of Section 1198.5 of the California Labor Code, and the Due Process Requirements in the California and United States Constitutions

Defendants contend that Plaintiff admits he never triggered section 1198.5 of the California Labor Code because he never asked to inspect his personnel file. Defendants contend that Plaintiff only asked for a copy of the Confidential Incident Report, which was not subject to disclosure because it constitutes a "letter of reference" within the meaning of section 1198.5. Defendants also contend that the privacy interest in the Confidential Incident Report outweighs any interest in its production. Defendants contend that Plaintiff was provided with a summary of the Confidential Incident Report, which was sufficient under section 1198.5.

Plaintiff's Opposition to the Motion for Summary Judgment states: "Please refer to plaintiff's cross-motion for abstention and remand to find plaintiff's main response to defendants' summary judgment attack on the Second cause of action." Pltf's Opposition to Mot. for Summary Judgment, p. 4.

Pursuant to 28 U.S.C. section 1367(c), a federal court may decline to exercise supplemental jurisdiction over a pendant state law claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C.A. § 1367(c); Executive Software N. Am. v. United States, 24 F.3d, 1545 1557 (9th Cir. 1994). If the exercise of supplemental jurisdiction does not advance considerations of "judicial economy, fairness and comity," a federal court "should hesitate to exercise jurisdiction over state law claims." Id.

In support of the second cause of action, the Complaint alleges that Defendants refused to provide Plaintiff with a copy of the Confidential Incident Report in violation of Plaintiff's rights as protected by the California Labor Code, the California Constitution and the United States Constitution. Specifically, the Complaint alleges that Plaintiff has a right "under Labor Code section 1198.5, subdivision (2), and under the California and Federal constitutional requirements of preremoval due process, to inspect all accusatory documents used for any disciplinary purpose against him prior to the imposition of disciplinary action based in whole or in part on those documents." Complaint, ¶ 138. As previously discussed, Plaintiff was an at-will employee, subject to termination without cause, and therefore failed to establish a claim for violation of his federal due process rights on grounds that he had a protected property interest in his employment at the Library. Plaintiff does not assert another basis to support his claim in the second cause of action that he is entitled to relief for violations of his federal due process rights. Viewing the facts in the light most favorable to the Plaintiff, the Court concludes that Plaintiff's second cause of action fails insofar as it asserts violations of Plaintiff's federal due process rights. The Court grants summary judgment for Defendants with respect to any federal due process claims in the second cause of action.

The only claims remaining before the Court are for violations of section 1198.5 of the California Labor Code and Plaintiff's due process rights as protected by the California Constitution. The Court has dismissed all of Plaintiff's claims over which it had original jurisdiction. The Court concludes that exercising jurisdiction over Plaintiff's remaining state law claims would not advance considerations of "judicial economy, fairness and comity." Executive Software, 24 F.3d at 1557. The Court declines to exercise supplemental jurisdiction over the second cause of action with respect to Plaintiff's state law claims for violations of the California Labor Code and the California Constitution.*fn4

Conclusion

IT IS HEREBY ORDERED that the Motion for Summary Judgment (Doc. # 26) is GRANTED in part. The Court GRANTS summary judgment for Defendants and against Plaintiff on the federal claims Complaint's first and second causes of action. The Court declines to exercise supplemental jurisdiction over the state law claims in the Complaint's first and second causes of action.

IT IS FURTHER ORDERED that the Cross-Motion for Abstention and Remand (Doc. # 36) and Ex Parte Motion for Leave to File Pretrial Cross-Motion for Abstention and Remand (Doc. # 35) are DENIED as moot.

WILLIAM Q. HAYES United States District Judge


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