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

November 10, 2009

MICHAEL KAYE, PLAINTIFF AND APPELLANT,
v.
BOARD OF TRUSTEES OF THE SAN DIEGO COUNTY PUBLIC LAW LIBRARY, DEFENDANT AND RESPONDENT;
SAN DIEGO COUNTY PUBLIC LAW LIBRARY ET AL. REAL PARTIES IN INTEREST AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of San Diego County, Barry Hammer, Judge. (Retired judge of the San Luis Obispo Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super. Ct. No. 37-2007-00065212-CU-WT-CTL).

The opinion of the court was delivered by: Mcconnell, P. J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

A former law librarian whose employer discharged him after he sent a scathing e-mail criticizing his superiors appeals the trial court's decision to grant summary adjudication as to the state law causes of action in his wrongful termination action. We conclude the granting of summary adjudication was proper under the circumstances and affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In late February 2006*fn1, a representative from the Administrative Office of the Courts (AOC) contacted the San Diego County Public Law Library (Library) seeking a panel member for a program about helping self-represented litigants with appeals. The program was part of an AOC conference on self-represented litigants. A Library staff member referred the representative to Kaye, a reference librarian who taught the Library's appellate course for self-represented litigants. The AOC representative asked Kaye to be a panel member. Because Kaye's supervisor, Joan Allen-Hart, was on sick leave that week, Kaye requested permission to participate in the program from Robert Riger, the Library's director and Allen-Hart's supervisor. Riger immediately approved Kaye's request. Riger was also attending the conference, but planned to leave mid-morning on the last day.

When Allen-Hart learned of the invitation, she questioned its genesis and why, as a matter of protocol, it had not been routed through her or Riger first. Riger directed Gail Lawrence, the Library's financial officer, to inquire further into the matter. Upset by the inquiry, Kaye rescinded his acceptance.

Around this same time, Allen-Hart sent an e-mail to Kaye and the other full-time reference librarians announcing an upcoming staff meeting and listing several anticipated discussion topics. In addition, she requested each of them provide her with a list of three projects they thought should be a priority for the reference department. The responses were due by the end of the day on February 28.

On March 5, Kaye sent Allen-Hart a lengthy response e-mail, which he copied to his co-workers. Rather than discuss project prioritization as Allen-Hart had requested, Kaye opted to discuss the "governance" of the reference department and his perception that the Library's management regards the full-time reference librarians as "fungible and disposable peons who are not genuinely valued." Among the reasons for his perception were recent schedule changes implemented by Allen-Hart. He considered the changes to be unwise and personally disadvantageous. Moreover, because he was not given an opportunity to discuss the changes beforehand, he regarded Allen-Hart's implementation of them as a "hypocritical," "hand-down-the-law approach" that "smacks of autocracy."

Another reason for his perception was what he characterized as his involuntary and arbitrary assignment to the Serra Cooperative Library System's ethnic diversity committee. In his view, the assignment did not suit his skills and interests and, therefore, "represents an administrative determination to deliberately squander law library funds and human resources on a relatively useless outside extravagance."

However, the chief reason for his perception was the inquiry into his invitation to speak at the AOC conference, which he regarded as humiliating and vindictive. He did not understand why Allen-Hart and Riger questioned the invitation since he was "possibly the only person in California who has any experience teaching appellate classes to pro per litigants" and had "unique experience and insights to contribute" to the conference. Although he acknowledged Allen-Hart and Riger were concerned about a breach of protocol, he suggested their concern "was really a pretext for some other hidden agenda." He speculated as to several possible ulterior motives, including that Allen-Hart and Riger were looking for a reason to discipline him or harass him into early retirement. Kaye did not explain why Allen-Hart and Riger might have such a motive; however, he accused them of "creating a hostile and insulting work environment for everyone" using methods "calculated to destroy any culture of professionalism in [the Library]." He further characterized the inquiry as a "vindictive, retaliatory, accusatory investigation[]" and their conduct as "disgusting, degrading, and utterly unprofessional."

Kaye also speculated that Allen-Hart and Riger may have wanted to usurp the invitation for themselves even though he was the only person on the Library's staff qualified to speak on the particular topic. In this regard, he opined the inquiry "smacks of petty, spiteful jealousy." He further warned "[i]t bodes badly for the future of our efforts [to create and conduct classes for self-represented litigants] if people are more concerned about who gets credit than about providing genuinely useful service to the public."

The last possibility Kaye suggested was that Riger feared Kaye's presence at the conference would interfere with Riger's plans to lobby court officials rather than actually attend the conference. Kaye questioned whether Riger was "equipped to network and lobby intelligently for our future" at a conference on self-represented litigants. Kaye also questioned whether Riger was eligible to attend the conference as it was for judicial officers and court employees. For this reason and because Riger planned to leave the conference early, Kaye also questioned whether Riger was eligible to have his expenses reimbursed by the AOC. Kaye opined that, if Riger attempted to submit an expense reimbursement application to the AOC, the application would be a false claim under the California False Claims Act (CFCA) (Gov. Code, § 12650 et seq.). He then suggested an investigation should be conducted to determine "who invited or acquiesced in designating [Riger] to travel to [the conference] at AOC expense as a representative of the San Diego Superior Court." He further suggested the inquiry into his own invitation was "just a self-righteous tactic to divert attention from that more serious misconduct." He went on to characterize the inquiry as "small-minded and inexcusable," and stated, because of it, "the library's managers have forfeited much of their credibility and goodwill in my eyes."

He concluded the e-mail by asserting his belief the reference librarians "work under an autocratic command structure and that reference staff meetings do not really serve much purpose." Therefore, he proclaimed, "Let the managers make their decisions without any pretense of collaboration and hand down their fiats from on high."

The day after Kaye sent the e-mail, Allen-Hart and Lawrence hand delivered a letter notifying him he was being placed on administrative leave pending an investigation of his e-mail. Approximately two weeks later, Allen-Hart sent him a letter notifying him she was proposing he be discharged for "insubordination and serious misconduct." The notice was subsequently rescinded and reissued under Riger's signature.

Cyndy Day-Wilson, an attorney and former member of the Library's Board of Trustees (Board), conducted a pre-termination administrative hearing. After reviewing the evidence submitted by the parties, Day-Wilson concluded Kaye's "conduct constituted serious misconduct and ...


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