The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on December 15, 2008]
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Defendants' Amended Motion for Summary Judgment or in the Alternative for Summary Adjudication ("Mot.") came before the Court for hearing on January 12, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearings, the Court DENIES the Motion.
Plaintiff Michael Aguilar ("Plaintiff") named Steve Okamura ("Okamura") and Omnitrans (collectively, "Defendants") in a complaint filed August 10, 2007 asserting claims stemming from events in October 2006. In December 2007, the Court denied Defendants' Motion to Dismiss or for a More Definite Statement and struck the prayer for punitive damages. In June 2008, the Court denied Plaintiff's Motion to Stay and granted in part and denied in part Defendants' Motion for Judgment on the Pleadings. The only claims now remaining allege violations of 28 U.S.C. section 1983 based on violations of the First and Fourth Amendments to the U.S. Constitution.
Defendants filed their Motion on December 15, 2008 with supporting documents. Plaintiff filed his Opposition on December 23, 2008 with supporting documents. Defendants filed their Reply on December 30, 2008.
B. Evidentiary Objections
Defendants filed two sets of evidentiary objections: Defendants' objections to the Declaration of William J. Flynn ("Flynn Decl.") and Defendants' Objections to the Declaration of Michael T. Aguilar ("Pl.'s Decl.").
The Court overrules all objections to the Flynn Declaration as they pertain to materials on which the Court did not rely.
The Court overrules both objections to Plaintiff's Declaration; Plaintiff established he has personal knowledge of the attached flyer and the defense's accusation of discovery violation lacks merit.
Omnitrans, a public entity, has employed Plaintiff as a bus driver since approximately 2002. (Defendants' Statement of Uncontroverted Material Facts ("DSUF") 1; Declaration of Paul Scott Graham ("Graham Decl.") ¶ 4.) Plaintiff is a member of the executive board of Amalgamated Transit Union Local 1704 ("the union").
Plaintiff's suit names Omnitrans as well as Okamura, an Omnitrans employee.
Since February 2006, Paul Scott Graham ("Graham") has been the Director of Operations of Omnitrans. (Graham Decl. ¶ 4.) As of October 23, 2006, Graham was Plaintiff's supervisor. (See DSUF 68.)
Doug Stanley ("Stanley") is Omnitrans manager of transportation. (Graham Decl. ¶ 17.)
Okamura is the safety and regulatory compliance manager for Omnitrans. (Deposition of Steven Okamura ("Okamura Dep.") 5, at Defs.' Ex. M.) His duties are to "[o]versee all safety, security, regulatory compliance and emergency preparedness" for Omnitrans. (Okamura Dep. 5.)
2. Events of October 23, 2006
a. Plaintiff's union activity
On October 23, 2006, Plaintiff was not in uniform, was off-duty, and was on Workers' Compensation leave. (DSUF 74-75.) Plaintiff and union president Dale Moore ("Moore") went to drivers' rooms at Omnitrans' East Valley and West Valley facilities, respectively. (DSUF 2, 35; Opp'n 2.) They did not ask permission before they arrived and entered.
The East Valley facility has a television room, quiet room, lunch room, outside patio, and drivers' assembly room ("drivers' room"). (DSUF 27.) The drivers' room is closed to the public and one must have a key badge to gain entry to it. (DSUF 13.) Drivers prepare for their routes, do paperwork, and do other activities in the drivers' room. It does not contain a kitchen sink, microwave, refrigerator, vending machine, or place to store food. Reflecting its various uses, however, it contains magazines or reading materials for employees. (DSUF 23, Deposition of Michael Aguilar ("Pl.'s Dep.") 104:13-14 at Flynn Decl. Ex. I.)
Plaintiff went to the East Valley drivers' room to inform union members the union was increasing dues. (See DSUF 3, Pl.'s Dep. 102-03, 201 at Defs.' Ex. I.) He spoke to about ten employees and did not discuss any appeals or grievances as defined by Article 18 of the Memorandum of Understanding ("MOU") between Omnitrans and the union, which governs union access to on-duty employees.*fn1 (DSUF 3; Pl.'s Dep. 103, at Ex. I; Defs.' Ex. D.) He brought a flyer to distribute; a copy of which he did not retain but which he described at his deposition as "an explanation of the increase in union dues . . . anything to do with any laws or information that our members needed." (Pl.'s Dep. 201:8-12.) The flyer Plaintiff later identified as the one he distributed states the union was increasing dues because of a series of disputes with Omnitrans. (See Pl.'s Decl. Ex. A.) For example, the flyer stated management in the past treated the union "[u]nfair[ly] and unjust[ly]. . . ." (Pl.'s Decl. Ex. A.)
Plaintiff spoke two to four times that day with David Patton ("Patton"), a bus driver on standby duty and a union member. (Deposition of David Patton ("Patton Dep.") 8, 10, 14, 18 at Defs.' Ex. J.) At some time after Patton's first conversation with Plaintiff, Patton forgot to pick up a mail bag from a bus. (Patton Dep. 21:4-20.) Patton did not realize he had forgotten to pick up the mail bag until more than a half hour passed. (Patton Dep. 21.) The next opportunity to perform this task occurred 15 minutes later, and Patton was not reprimanded for the delay. (Statement of Genuine Issues in Opposition to Motion for Summary Judgment ("SGI") (E)(1)-(2).)
b. Defendants Ask Plaintiff to Speak with Graham or Leave
Stanley, a supervisor, saw Plaintiff in the drivers' room and believed Plaintiff was doing union business. He went to Graham and told him an off-duty employee was in the drivers' room talking about meal and rest periods, and being disruptive. (SGI (F)(1); see Graham Decl. ¶ 17.) Graham did not want Plaintiff to discuss meal and rest breaks because he thought it was too controversial. (See Flynn Decl. Ex. B. 121:11-28, 128:18-24.)
Stanley went to the drivers' room to speak with Plaintiff and brought with him a copy of Article 18, which he asked Plaintiff to read. (DSUF 77.) He then asked Plaintiff to leave; Plaintiff simply sat, giving the impression he was going stay. (DSUF 79, 80; Pl. Dep. 193.)
Next, Stanley reported back to Graham Plaintiff's refusal to leave. (DSUF 83.) Graham telephoned Okamura for assistance, telling Okamura that Plaintiff "was off duty, violating company policy, and that he was not leaving after being requested to do so by Mr. Stanley." (Graham Decl. ¶ 18; DSUF 83; Okamura Dep. 9 at Defs.' Ex. M.)
After Graham called Okamura, Graham received a call from Moore, the union president who was at the West Valley facility doing union business. (DSUF 84.) Moore had been approached by a management representative who asked him to leave. He refused but was not arrested. (Flynn Decl. Ex. A 42-45.) Moore told Graham that Plaintiff "was in the East Valley Division to talk to employees about an increase in union dues . . . ." (Graham Decl. ¶ 18.) Graham told Moore that he "did not have a problem" with the union talking to members about union dues but that he had conflicting information about what Plaintiff was talking about and he wanted to speak with Plaintiff. (DSUF 84; Graham Decl. ¶ 18.)
Okamura arrived at East Valley at about 1:00 p.m. (Okamura Dep. 8 at Defs.' Ex. M; DSUF 129.) Graham instructed Okamura to ask Plaintiff to come speak with Graham in his office. (Graham Decl. ¶ 19, DSUF 72, 87.) Okamura "was not advised" Plaintiff had come to the drivers' room to speak with other drivers. (DSUF 155.) According to Okamura, Graham told him that if Plaintiff refused to leave, "based off of the MOU" he should contact the police. (Okamura Dep. 28:8-12.)
Okamura told Ronda Rithmire ("Rithmire"), safety specialist, to speak with Plaintiff. (DSUF 130.) Plaintiff ignored Rithmire. (DSUF 130.) Okamura then went to the drivers' room and told Plaintiff Graham wanted to speak to him in his office, which was close to the drivers' room. (DSUF 88, 90.) Plaintiff replied Graham could come to the drivers' room. (DSUF 72, 88; Okamura Dep. 12-13 at Defs.' Ex. M.) According to Okamura, he told Plaintiff to leave if he would not speak with Graham. (Graham Decl. ¶ 19 and Okamura Dep. 13:18-20.)
Okamura reported back to Graham and then arranged for the San Bernardino police to be called. (Graham Decl. ¶ 21; DSUF 92; Okamura Dep. 15-16 at Defs.' Ex. M.) Approximately two hours elapsed before their arrival. (Graham Decl. ¶ 22; Okamura Dep. 16:18-20 at Defs.' Ex. M.) During that time, Plaintiff left the drivers' room and put his laptop in his car because he believed he might be arrested. He returned to the drivers' room. (DSUF 154, 156.)
c. San Bernardino Police Department Arrives
When the police arrived, Okamura and Rithmire brought one of the officers, Shaun Jarvis ("Jarvis"), to the drivers' room. (Okamura Dep. 21:17-25 at Defs.' Ex. M.) Jarvis went inside and approached Plaintiff, asking him if they could talk in the hallway. (Deposition of Shaun Jarvis ("Jarvis Dep.") 12:11-15 at Defs.' Ex. J; Okamura ...