ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Philip D. Evans ("Evans") brought a state court action against his former employer Benicia Housing Authority ("BHA") and Julie Peterson ("Peterson") alleging civil rights violations and various state law claims arising out of his termination. BHA and Peterson (collectively "Defendants") removed the case to this Court on the basis of federal question jurisdiction. Defendants now move for summary judgment or, in the alternative, summary adjudication pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Evans opposes the motion. For the reasons set forth below, Defendants' motion as to Peterson is DENIED and GRANTED as to BHA.*fn1
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant BHA is an independent public agency created to provide low-cost housing to the city of Benicia. Its powers are exercised through a Board of Commissioners ("Board") consisting of members appointed by the Mayor of Benicia and confirmed by the Benicia City Council. Defendant Peterson is a former manager and Executive Director of BHA. Peterson was promoted to Acting Executive Director in August 2004 and then to Executive Director in December 2005. As Executive Director, Peterson was supervised by the Board of Commissioners, which is comprised of seven Commissioners, five public Commissioners and two tenant Commissioners whom reside in BHA's housing developments.
Plaintiff Evans is a former employee of BHA hired in October 2002 as a bookkeeper. In June 2003 Evans was promoted to accountant and then to senior accountant in July 2004. As an accountant for BHA, Evans was responsible for various bookkeeping and accounting functions. In particular, Evans was responsible for preparing monthly financial statements of all BHA accounts, including the tenants' accounts receivables, collecting and organizing data for audits in compliance with the United States Department of Housing and Urban Development ("HUD") regulation, and preparing BHA's year-end financial statements. Evans' duties also included updating the Executive Director on financial issues, including the status of tenant rent accounts.
From October 2002 to August 2004, Evans was supervised by Mike Flo, the Executive Director of BHA. From August 2004 to June 2005, Evans was supervised by Peterson. During the later time period, Evans allegedly observed Peterson working reduced hours. Evans also discovered that certain past due rents were not being collected and that late fees were not being assessed to these accounts. On several occasions from October 2004 to December 2004, Evans expressed his concerns about the tenant rent account irregularities to Peterson. In particular, in December 2004, Evans sent an e-mail to Peterson alerting her that BHA was near the fiscal year-end audit and that he needed to explain the status of past due rents and adjustments owed by tenants. In this e-mail, Evans mentioned a situation that might be viewed as a "related party transaction" which would have to be disclosed to auditors, namely that a tenant Commissioner had an outstanding rent balance.
In November 2004, Evans met with Phyllis McKeever ("McKeever"), the Chairperson of the BHA Board for lunch at a restaurant in Benicia. During this meeting, Evans informed McKeever about the tenant rent account irregularities, including BHA's failure to collect on certain past due rents and to assess late fees to these accounts. According to Evans, he also informed McKeever that Peterson was working reduced hours. In autumn 2004, a Grand Jury investigation was commenced into the activities of BHA. In late October 2004, Peterson received a letter from the Foreperson of the Solano County Grand Jury advising her that the Grand Jury had elected to review the methods and/or systems of the BHA as they relate to performing the duties and providing the services of the agency. On November 19, 2004, Peterson went before the Grand Jury and testified about the general business operations of BHA. On November 23, 2004, Evans went before the Grand Jury and testified about the tenant rent account irregularities and Peterson's reduced work hours. Thereafter, Peterson asked Evans about his meeting with the Grand Jury, but he refused to reveal the substance of his testimony. In January 2005, Evans met with Eric Huhtala ("Huhtala"), special agent with the HUD Office of the Inspector General ("OIG") and expressed his concerns about the tenant rent account irregularities and Peterson's reduced work hours.
Following his appearance before the Grand Jury, Evans claims that Peterson retaliated against him in various ways. Specifically, Evans claims that Peterson retaliated against him in the form of: (1) giving him unwarranted criticism, including placing several notes in his personnel file in December 2004 stating that an outside auditor was upset about Evans' attitude concerning an audit deadline; (2) refusing to approve a raise he was scheduled to receive starting in January 2005; (3) giving him a counseling memo reprimanding him for seeking overtime compensation after he attended the April 27, 2005 BHA Board meeting;*fn2 (4) preventing him from meeting with McKeever and another BHA Board member in early May 2005 to discuss the counseling memo he received from Peterson; and (5) placing him on administrative leave and eventually terminating him.
On June 2, 2005, Peterson allegedly observed Evans attempting to remove BHA files from the workplace and directed him to leave the files in his office. On June 3, 2005, Evans received a memo from Peterson stating that he was being placed on administrative leave pending an investigation into the propriety of his actions regarding his attempt to remove BHA files from the workplace. On June 7, 2005, Evans received a Notice of Proposed Action advising him that Peterson intended to terminate his employment effective June 15, 2005, and that he would be placed on paid administrative leave until that time. On June 16, 2005, Evans received a letter from Peterson terminating his employment. Among the reasons cited for Evans' termination were acts of insubordination in the form of disregarding Peterson's directives and BHA procedures; namely, not to remove BHA files from the workplace and not to work overtime without prior approval. The letter noted that Evans was dishonest with Peterson when she asked him if he had taken the BHA files home. The termination letter also stated that Evans had been terminated for poor job performance and for behaving in a rude and uncooperative manner toward HUD staff, two auditors and Peterson.
On December 28, 2006, Evans filed the instant action in Solano County Superior Court against Defendants alleging civil rights violations pursuant to 28 U.S.C. § 1983 and various state law claims. On February 26, 2007, Defendants removed the action to this Court on the basis of federal question jurisdiction. On September 21, 2007, Defendants moved to dismiss the first, second, third, fourth, fifth, seventh, eighth and ninth claims for relief alleged in the Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On December 11, 2007, this Court granted Defendants' motion, dismissing each of these claims with prejudice. As a result, the only actionable claim remaining is Evans' sixth claim for relief, violation of First Amendment freedom of speech and association rights under § 1983. On July 3, 2008, Defendants moved for summary judgment on this claim. On July 23, 2008, Evans filed an opposition.
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will have the burden of proof on an issue at trial, the movant's burden may be discharged by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. See id. at 325; Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). "Summary judgment for a defendant is appropriate when the plaintiff fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial." Miller, 454 F.3d at 987 (internal quotation marks omitted).
If the moving party sustains its burden, the burden then shifts to the nonmoving party to go beyond the pleadings and by his or 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. See Celotex, 477 U.S. at 324 (citing Fed.R.Civ.P. 56(e)); Miller, 454 F.3d at 987. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). Summary judgment is appropriate if, viewing the evidence and the inferences therefrom in the light most favorable to the nonmoving ...