The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on a motion for summary judgment, or alternatively, partial summary judgment brought by defendants City of Rocklin (the "City"), Mark J. Siemens, Chief of Police for the City ("Siemens") and Carlos A. Urrutia, City Manager ("Urrutia") (collectively, "defendants"). By the motion, defendants seek adjudication in their favor on plaintiff's first amended complaint, alleging claims for (1) violation of plaintiff's Fourteenth Amendment equal protection rights, pursuant to 42 U.S.C. § 1983 ("Section 1983"), based on defendants' alleged class-based discriminatory treatment of a distinct group of employees, of which plaintiff was a member; (2) violation of plaintiff's Fourteenth Amendment substantive due process rights, pursuant to Section 1983, based on defendants' alleged deprivation of plaintiff's right to pursue his chosen profession; (3) violation of plaintiff's First Amendment free speech rights, pursuant to Section 1983, based on defendants' alleged retaliation against plaintiff for reporting wrongdoing by defendants; (4) violation of California Government Code §§ 1102.5 et seq. (California's so-called "Whistle-blowers" statute) based on the City's alleged retaliation against plaintiff for reporting wrongdoing by the City; and (5) violation of California's Public Safety Officers' Procedural Bill of Rights Act ("POPBR"), Cal. Gov.'t Code §§ 3303 et seq., based on alleged procedural irregularities by the City in terminating plaintiff. Plaintiff alleges his Section 1983 claims against the City, Siemens and Urrutia;*fn1 his state law claims are alleged against the City only.
With respect to these claims, defendants contend they are entitled to judgment as a matter of law because (1) as to plaintiff's equal protection claim, plaintiff cannot demonstrate that he and/or a similarly situated class of persons was arbitrarily disciplined or terminated for reporting defendants' illegal activities or refusing to participate in illegal activities; (2) as to plaintiff's free speech claim, plaintiff cannot demonstrate he was terminated based upon speech protected by the First Amendment; (3) as to plaintiff's substantive due process claim, plaintiff cannot show defendants' actions deprived him of pursuing a career in law enforcement; (4) as to all of plaintiff's claims against the City, pursuant to Monell, plaintiff has no evidence of a formal policy or long-standing practice or custom of the City to discriminate against employees for reporting violations of law or encouraging illegal activity or evidence that a final-policy maker for the City ratified any such conduct; (5) as to plaintiff's "whistle-blower" claim under California law, his claim is barred for a failure to exhaust judicial remedies, or alternatively, plaintiff cannot show he was terminated for speech protected by the statute; and finally, (6) as to plaintiff's POPBR claim, his claim is barred for a failure to exhaust judicial remedies, or alternatively, plaintiff's claims of procedural irregularities are time-barred, and/or it is undisputed that plaintiff was informed of the nature of the City's investigation prior to his internal affairs interrogation.
Plaintiff opposes the motion, arguing that triable issues of fact remain as to each of his claims for relief.*fn2 For the reasons set forth below, the court GRANTS in part and DENIES in part defendants' motion.
Plaintiff joined the City of Rocklin Police Department ("RPD") in 1984 as a Reserve Police Officer and was hired full time in 1986. He was promoted to Sergeant in 1989. (First Am. Compl. ["FAC"], filed Oct. 11, 2008, ¶ 13.)*fn4 In 2000, plaintiff and other members of the RPD testified before the Placer County Grand Jury about numerous, alleged violations of law occurring within the RPD. (RDF ¶s 6, 9.) As a result of the grand jury investigation, RPD Police Chief Prince resigned; defendant Urrutia hired defendant Siemens as Prince's replacement. (FAC ¶ 19.)
In November 2002, plaintiff received a 40-hour unpaid suspension for "verbal harassment in the form of unwanted and inappropriate sexually oriented comments." (RUF ¶ 87.) Plaintiff was charged with requesting to see a female subordinate officer's surgically enhanced breasts while he was supervising her alone in a patrol vehicle. (RUF ¶s 58, 87.) In March 2003, plaintiff filed a state lawsuit challenging the disciplinary action on procedural grounds; his writ of mandamus was ultimately denied by the Placer County Superior Court. (RUF ¶ 87.)
Also in March 2003, while plaintiff was challenging his 40-hour suspension for verbal harassment in state court, Siemens promoted then Sergeant Steve Newman ("Newman") to Acting Lieutenant. (RUF ¶ 86.) In that position, Newman became plaintiff's immediate supervisor. (RUF ¶ 163.)
Previously, in 1998, plaintiff discovered from two newspaper articles that Newman pled no contest to a misdemeanor count of petty theft while employed as a police sergeant for the City of Santa Clara. (RUF ¶s 143-153, 156.)*fn5 Notwithstanding this knowledge of Newman's criminal history, plaintiff did not object when Newman was originally hired by the City and prior to Newman's promotion, plaintiff supervised Newman and gave him two positive performance evaluations in 1998 and 1999. (RUF ¶s 90, 143, 151, 158, 168.) However, once Newman was promoted to be plaintiff's supervisor in March 2003, plaintiff went to Siemens and showed him the newspaper articles regarding Newman's misdemeanor conviction. (RUF ¶ 156.) Siemens told plaintiff that because he was not the police chief when Newman was hired, he would review Newman's employment file. That same day, Siemens informed plaintiff that a full background investigation of Newman had been done when Newman was hired, and the information regarding Newman's conviction had been fully disclosed to the department. (RUF ¶s 141-142, 162.)
Plaintiff told Siemens about Newman's history out of "loyalty" to the department and because he did not want Siemens to be "blind-sided" by the information if he was unaware of it. (RUF ¶ 158.) Siemens told plaintiff not to discuss the information within the department as it was "old news" and there was no benefit to disclosing the information. (RUF ¶ 163.)
However, plaintiff believed Newman's misdemeanor conviction for theft, of what plaintiff asserted was pornographic materials, was significant because on any case in which Newman was the arresting officer, such information would have to be disclosed to the District Attorneys' Office and any criminal defense attorneys pursuant to "Brady v. Maryland."*fn6 Plaintiff believed Newman's credibility could be attacked if he was a witness testifying in court, and that his criminal history would jeopardize the department's cases. (Pl.'s Decl., filed Aug. 24, 2009 [Docket #179], ¶s 37, 47, 51.)*fn7
Despite Siemens' warning to not discuss the matter, plaintiff discussed Newman's employment history at the Santa Clara police department in briefings and conversations with subordinate officers between October and December 2003. (RUF ¶s 212-225.) More specifically, plaintiff questioned Newman's credibility and fitness as a police officer in front of his subordinate officers, and he questioned why the City hired and promoted Newman to lieutenant in briefings to subordinate officers. (RUF ¶s 212, 213, 225.)
Also during this time, in October 2003, plaintiff had a confrontation with Newman over Newman's evaluation of plaintiff's performance. (RUF ¶s 192-94, 198.) Plaintiff believed his "needs improvement" rating from Newman was "unfair," and during a meeting to challenge Newman's evaluation, plaintiff told Newman he had information that Newman's ex-wife was a lesbian. (RUF ¶s 194-95.)
In addition, during this same time period, while on duty in November 2003, plaintiff approached an Officer Olivera, whom plaintiff supervised. He told Olivera that he could direct Olivera to Newman's 1996 arrest information, suggesting that such information could be "helpful" to Olivera in disputing the department's then pending disciplinary action against Olivera. (RUF ¶s 215-217.)
In addition to criticizing Newman, plaintiff also criticized Siemens in briefings and conversations with subordinates regarding Siemens' alleged, unethical conduct in using a police vehicle for personal use. Such use, defendants contend, was expressly sanctioned by Siemens' employment contract. (RUF ¶ 180-182.) Plaintiff never raised any concern about Siemens' use of the police vehicle to Siemens, the City Council, the City Manager or the City Attorney. (RUF ¶ 177.) However, plaintiff asserts he reported Siemens' conduct, of allegedly using the department's vehicle to transport family members and using the vehicle outside the Rocklin city limits, to his supervisor Lieutenant Johnstone. (Id.)
Plaintiff also criticized Siemens for instituting an alleged illegal incentive program for ticketing motorists for red light violations. Plaintiff claimed Siemens illegally rewarded officers with pizzas, paid for with public funds, as an incentive to ticket more motorists. (RUF ¶ 7; Pl.'s Decl., ¶s 51-64.)
Plaintiff believed he had a duty to report this wrongdoing by Newman and Siemens to his subordinates. (RUF ¶s 210, 235.) Plaintiff also asserts, however, that at other times, he was discouraged from speaking out about wrongdoing within the department because Siemens expressed contempt for such persons. (RDF ¶ 7.) Plaintiff also believed that the City's "Departmental Directive and Admonition," of January 16, 2003, discouraged officers from reporting wrongdoing within the department, including sexual harassment, racial discrimination, or misuse of public resources. (RDF ¶ 7, 10, 11, 19, 20, 38.)
On June 30, 2004, after a five-day evidentiary hearing, plaintiff's internal grievance, pursuant to his union contract, regarding his 40-hour suspension was denied by arbitrator Catherine Harris. (RUF ¶ 89.) Harris found "just cause" for the City's 40-hour suspension of plaintiff for violation of the verbal harassment policy. (Id.) Despite this finding, plaintiff told Sergeant Vizzsi that the arbitrator "slammed" Siemens. (RUF ¶ 90.) Plaintiff also told Captain Ruben during an internal affairs interview, on September 15, 2004, that the arbitrator's findings substantiate an "on going pattern" by Siemens of "making accusations that have proven to be false." (RUF ¶ 239.)
On November 1, 2004, Urrutia issued plaintiff a Notice of Termination setting forth the following charges: (1) plaintiff made malicious and threatening statements to his supervisor Newman on October 13, 2003 during a performance evaluation, including statements concerning the sexual orientation of Newman's ex-wife; (2) during October to December 2003, plaintiff made disparaging remarks about Newman during briefings and in conversations with his subordinates; (3) during that same period, plaintiff made disparaging remarks about Siemens during briefings and in conversations with subordinates; (4) during November 2003, while on duty, plaintiff offered to show a police report about Newman to Olivera to help Olivera in an internal affairs investigation; (5) in September 2004, plaintiff made inappropriate comments about the disposition of his verbal harassment grievance to Sergeant Vizzusi and Lieutenant Johnstone; and (6) plaintiff did not follow the mission of the department and the directions of the Chief of Police, and he refused to strictly adhere to the standards and policies of the department. (RUF ¶s 54-60.) The Notice indicated that all six charges described conduct violative of the Rocklin Police Department's Departmental Directive and Admonition, dated January 16, 2003. (RUF ¶ 62.)
On January 9, 2006, following a seven-day evidentiary hearing, in which 18 witnesses testified and 100 exhibits were moved into evidence, arbitrator William Riker issued a 49-page advisory decision, denying plaintiff's grievance and sustaining each of the six charges against plaintiff contained in the Notice of Termination. (RUF ¶ 71.) Riker wrote in relevant part:
As noted, the preponderance of the evidence indicates that Eaton did commit the acts outlined in the six charges. These actions also impacted a wide number of officers within the Department who were aware of his behavior. It is also credible that he did negatively impact the good order and efficiency of the organization. If he were allowed to remain as a police officer with the City of Rocklin, then his behavior would serve as a benchmark against future violations of such insubordinate and disruptive nature.
It is a recommendation that frankly would be inconsistent with the findings.
On January 11, 2006, Urrutia issued a letter accepting arbitrator Riker's advisory decision without modification and sustaining plaintiff's termination. (RUF ¶s 8-9, 68-70, 73.)
Plaintiff disputes the bases for his termination, alleging that he was terminated in retaliation for his (1) testimony before the grand jury, (2) reports and refusal to participate in the alleged, illegal ticket incentive program, (3) reports of alleged violations of Brady based on the department's failure to disclose Newman's criminal history, and (4) reports of alleged illegal use of public funds by the department; specifically, Siemens' personal use of a police vehicle and his implementation of the ticket incentive program. Plaintiff further contends that Siemens falsified documents to support terminating plaintiff and thereafter committed perjury by testifying in the arbitration proceedings that certain documents were accurate and valid. (RDF ¶s 34-36.) Plaintiff maintains that as a result of his unlawful firing by defendants, he has been unable to obtain other employment in law enforcement. (RDF ¶s 27, 30; see also generally Pl.'s Decl.)
Finally, plaintiff contends that other department employees were similarly retaliated against for reporting illegal activity by defendants and/or refusing to participate in illegal activities. In support of this contention, plaintiff proffers evidence through various former department employees' declarations.*fn8 The following are statements of such declarations:
(1) Tia Bostian ("Bostian") started working for the RPD in 1987 as a secretary and moved up from that position to a community service officer, a position she held for 16 years. Over the years, she had excellent performance evaluations. However, she attests that over the course of a ten-year period she was subjected to various forms of sexual harassment by police officer Robert Nunez ("Nunez"). She made multiple reports to her immediate supervisor as well as to Newman but nothing was remedied. Ultimately, she and another RPD employee, Freda Anderson ("Anderson"), filed a lawsuit against the City for sexual harassment. After filing the lawsuit, Bostian claims her work became heavily scrutinized and she was assigned manual tasks such as cleaning up the property and evidence rooms. After being given a notice of termination in September 2003, Bostian was terminated in October 2003 by Urrutia. She claims she was terminated in retaliation for filing a civil complaint against the City and for testifying in favor of Anderson in a sexual harassment investigation of Anderson's complaints. (RDF ¶ 1, 11, 20, 21, 24, 33; Bostian Decl., filed Aug. 21, 2009 [Docket #175].)
(2) Anderson, an Animal Control Officer for 18 years, also asserts she endured sexual harassment by Officer Nunez while working for the RPD. She claims she reported Officer Nunez' conduct to Newman, Siemens and Urrutia but they did nothing. After filing suit against the City with Bostian, Anderson reached a monetary settlement with the City. However, she asserts the retaliation continued. Thereafter, Anderson sustained a workplace injury and was taken off work. Once her doctor cleared her to return to work, Anderson claims the City would not allow her to return in retaliation for pursuing her harassment complaints. Anderson resigned. (RDF ¶s 1, 11, 20, 21, 24, 33; Anderson Decl., filed Aug. 21, 2009 [Docket #173].)
(3) Bryon Green, a RPD officer, attests that he was subjected to an internal affairs investigation regarding his alleged failure to properly handle evidence, conduct investigations and write police reports, following his provision of favorable testimony to plaintiff. Green told the City's attorney, during plaintiff's arbitration proceedings concerning his termination, that he witnessed Siemens' alleged, illegal personal use of his assigned police vehicle. Green reported that he observed Siemens in the vehicle, outside the city limits with his wife in the car. Green claims that thereafter he was subjected to false charges of misconduct by defendants and rather than go through baseless termination proceedings, he resigned. (RDF ¶ 1.)
(4) Dave Kert, the Police Officers Association President and a Dispatcher for the RPD for 17 years, asserts he endured retaliation during his employment with RPD as a result of filing grievances, as Association President, on behalf of police officers and RPD employees against the department. Kert asserts that Siemens told him that employees were not to go to human resources to report personnel problems but instead should keep such issues within the department. Kert claims Siemens tried to have him removed as President of the Association and ultimately, instituted an internal affairs investigation of Kert in February 2004. The charges asserted against him were nearly identical to the allegations brought against plaintiff. After going out on a disability leave, Kert maintains that when he returned to work he was subjected to "re-training" despite having worked in his position for 16 years. Kert believes this re-training was in retaliation for the grievances he filed as President of the Association against the department. Kert later resigned. (RDF ¶s 1, 11, 20, 21, 24, 33; Kert Decl., filed Aug. 21, 2009 [Docket #172].)
(5) Nancy Meuer, a Public Safety Dispatcher for the RPD, attests that in 2005 she found a CD in her "in-box" at work that contained pornography. She reported the incident to Siemens and an internal affairs investigation was commenced. The investigation determined that Nunez copied the CD from the evidence room and mistakenly gave it to Meuer; he had intended to give copies to two other officers. Meuer claims that Nunez was not disciplined for his conduct. Meuer asserts she was later retaliated against for complaining about the CD; she later sought to attend the police academy and told Siemens of her interest in the academy, but he told her she "wasn't going anywhere in the department." (Meuer Decl., filed Aug. 21, 2009 [Docket #174].)
On April 10, 2006, plaintiff filed a petition for writ of mandate in the Placer County Superior Court, asking the court to set aside his termination and to order his reinstatement. The petition also sought back pay with interest, attorneys' fees and costs, and punitive damages against the City, Urrutia and Siemens, who were named as respondents. Plaintiff alleged his termination was not supported by the arbitrator's findings, and the findings were not supported by the evidence in light of the entire record. Plaintiff alleged that in terminating his employment, the City violated plaintiff's constitutional free speech and procedural due process rights as well as his rights under state law under POPBR. (Mem. & Order, filed May 23, 2007, at 7 [Docket # 24].)*fn9
On February 16, 2007, plaintiff filed the instant action in this court against the same defendants, seeking the same relief and damages and asserting the similar claims set forth above.
(Docket #1.)*fn10 Plaintiff filed a first amended complaint on October 10, 2008, which is the operable pleading ...