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Nichols v. County of Sacramento

May 3, 2010

JOHN NICHOLS, AKA JACK NICHOLS, PLAINTIFF,
v.
COUNTY OF SACRAMENTO, CHERYL CRESON, STEVEN PEDRETTI, KEITH FLOYD, GEORGIA COCHRAN, CARL MOSHER, THOR LUDE, HAROLD BIXLER, AND JOHN HALLIMORE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

On December 23, 2009, Defendants filed a motion for summary judgment on all of Plaintiff's claims, or in the alternative, seek summary adjudication of Plaintiff's claims. Instead of filing an opposition, Plaintiff filed an ex parte motion to continue the hearing on Defendants' motion, essentially requesting an extension to file his opposition, which was granted. (See Docket No. 49-56.) Plaintiff subsequently filed his opposition to Defendants' motion on February 22 and 23, 2010. This opposition does not comply with the local rule requiring Plaintiff to include a response to Defendants' statement of undisputed facts, and contains unauthenticated exhibits and argument that does not cite facts. Plaintiff subsequently filed a request on February 26, 2010, for a 4-day extension of time to file an untimely separate statement of disputed facts, another affidavit, and Plaintiff's amended declaration. (See Docket Nos. 70-73.) Defendants countered arguing the request should be denied, but that "[i]f the court... allow[ed] another late filing by Plaintiff,... that the court issue a further briefing schedule to permit Defendants to file a Reply brief to the new material." (Id. 1:24-26.) Plaintiffs' second untimely filing has been considered. Further briefing by Defendants is unnecessary since Plaintiff has failed to controvert Defendants' evidence with specific facts.

I. BACKGROUND

a. Plaintiff's Allegations

Plaintiff alleges four claims in his Complaint, all of which arise from termination of his employment with the County of Sacramento Building Inspection Division. Plaintiff alleges in his first claim that Defendants County of Sacramento ("County"), Cheryl Creson ("Creson"), Steven Pedretti ("Pedretti"), and Keith Floyd ("Floyd") violated his First Amendment rights by "terminating Plaintiff's employment with the County" for "report[ing] the [D]efendants' illegal activities... to the Sacramento County Grand Jury, as well as to other County representatives and law enforcement officials." (Compl. ¶ 26.) Plaintiff alleges in his second claim that Defendants County, Creson, Pedretti, and Floyd conspired to violate Plaintiff's First Amendment rights. (Id. ¶ 32.) Plaintiff alleges in his third claim that all Defendants knew of the conspiracy to deprive Plaintiff of his First Amendment rights and neglected to prevent deprivation of Plaintiff's rights. (Id. ¶ 38.) Lastly, Plaintiff alleges Defendants violated California Labor Code Section 1102.5 by "retaliat[ing] [against] [P]laintiff's reporting of illegal and corrupt activities...." (Id. ¶ 44.)

b. Summary Judgment Factual Record

"Near the end of 2003, [Pedretti], Director of the Department of County Engineering and Administration, contacted management consultant, Pamela Hurt-Hobday ("Hobday"), to work with the Building Inspection Division to improve communication amongst the employees, and to create more collegial working environment. (Statement of Undisputed Fact ("SUF") ¶ 1.) "As part of her work, Hobday met with and interviewed employees of all levels within Building Inspection." (Id. ¶ 2.) "Sometime at the end of 2003 or beginning of 2004, Hobday reported to Pedretti concerns that there were various improprieties and potentially illegal activity occurring within the Division regarding relations between building inspectors and contractors and developers." (Id. ¶ 3.) "In an effort to uncover the truth, Hobday was encouraged to continue meeting with staff and conducting interviews." (Id. ¶ 4.) "Around the same period, Plaintiff contacted [Floyd], Deputy Counsel for Sacramento County, with concerns he had related to the personnel reviews occurring in the Municipal Services Agency at that time." (Id. ¶ 5.) "In December of 2003, [Plaintiff] went to Floyd with concerns regarding the workplace practices of then Principal Building Inspectors, Barry Hutchens ["Hutchens"] and Doug Ladd ["Ladd"], specifically related to alleged special considerations being given to contractors that might be contributors to a charitable organization run by them known as 'The Red Tag Breakfast Club.'" (Id. ¶ 6.) Plaintiff "also informed Floyd that during this time with the Building Inspection Division he had received gifts from contractors." (Id. ¶ 7.) "Specifically, Nichols admitted to three incidents of accepting gifts from contractors: one involved receipt of a new washing machine and dryer; another involved receipt of the cost of a vacation to Hawaii for he and his family; and the third involved the installation of a new concrete driveway at his residence." (Id. ¶ 8.) Plaintiff counters what he received were loans, not gifts. (Pl's Response to SUF ¶ 8; Forncrook Aff. ¶¶ 2, 3, 4, 5; Saca Aff. ¶¶ 2, 3, 4, Silva Aff. ¶ 3).

"On January 2, 2004,... Pedretti and Floyd met with Plaintiff at County Counsel's office to discuss Plaintiff's concerns relating to Hutchens and Ladd, and his receipt of gifts from contractors." (Id. ¶ 9.) "At this time, Plaintiff revealed he had not included the received gifts in the required Statement of Economic Interest in violation of County policy." (Id. ¶ 10.) "Upon Plaintiff informing... Pedretti of the violations of his job duties and improprieties with various contractors, Pedretti actually encouraged Plaintiff to come forward and tell what he knew." (Id. ¶ 56.) "Although Plaintiff inquired as to the status of his employment after making the report, Pedretti could not guarantee what action would be taken in response." (Id. ¶ 11.) "The manager of Human Resources, defendant Georgia Cochran [("Cochran")] was contacted to pursue a further investigation of the issues reported by Plaintiff." "Upon further review, it was determined that none of the gifts Plaintiff receive[d] from contractors appeared on any Statement of Economic Interest Form." (Id. ¶ 13.)

Further, "[i]n March 2004, Plaintiff directed a subordinate employee to issue a building permit in violation of Building Inspection Division procedures, without getting proper approvals and without collecting the required fees." (Id. ¶ 14.) "Also in March 2004, Plaintiff directed a subordinate to issue a permit for a project in the city of Rancho Cordova without proper approval, in violation of a directive from management." (Id. ¶ 15.)

"Based on the foregoing actions of Plaintiff, [Creson], Administrator of the Sacramento County Municipal Services Agency approved a six (6) month demotion of plaintiff from Supervising Building Inspector to Building Inspector II." (Id. ¶ 16.) "A Notice of Proposed Disciplinary Action for demotion was prepared, issued and served on Plaintiff on July 14, 2004." (Id. ¶ 17.) "An Order of Disciplinary Action for a six (6) month demotion was effective September 1, 2004." (Id. ¶ 18.) "Plaintiff does not dispute that some type of discipline was justified following his admittance of violating county policy regarding reporting gifts on his conflict of interest statement, but merely felt the discipline was too harsh." (Id. ¶ 49.) "Plaintiff appealed the discipline to the Civil Service Commission, which upheld the demotion." (Id. ¶ 19.) As a result, [Plaintiff] was demoted to the position of Building Inspector II, and assigned to work at the Building Inspection Division office at 827 9th Street." (Id. ¶ 20.) "Due to leave taken by Plaintiff the terms of the demotion had to be amended twice resulting in Plaintiff's demotion lasting until September 2005." (Id. ¶ 21.)

It was later learned that "[i]n August 2004, Plaintiff [also] attempted to renew an existing permit for work at his personal residence without undergoing the proper procedure or paying the proper fees." (Id. ¶ 22.) "The request for renewal was submitted to the Chief Building Inspector,... Bixler... with a written note indicating that a manager in the Building Inspection Division had approved and signed off on the renewal." (Id. ¶ 23.) "Upon further investigation, Bixler discovered that the wrong type of permit was issued for the work done, and that Plaintiff's subordinate, John Richardson, issued this improper permit in July 2003." (Id. ¶ 24.) "The issue was reported to the Human Resources department for further investigation." (Id. ¶ 25.) "The investigation confirmed the improper action and use of his position by Plaintiff." (Id. ¶ 26.)

"Plaintiff returned to his position as Supervising Building Inspector in September 2005" and was "provided a new duty statement which eliminated the managerial responsibilities that were previously part of the position prior to Plaintiff's demotion," but Plaintiff's position "maintained the same title, pay and benefits." (Id. ¶¶ 27-29.) "In September 2005, Defendant Mosher started as Director of County Engineering." (Id. ¶ 30.) "After learning of Plaintiff's various transgressions and his employment history, Mosher determined that Plaintiff should be terminated from his position." (Id. ¶ 32.) Defendant Mosher made the decision to terminate Plaintiff." (Id. ¶ 46.) "Defendants Pedretti and Lude, who had been employed....with the Building Inspection Division longer than Mosher, agreed that termination was the proper discipline." (Id. ¶ 33.) "Defendant Creson approved the decision to demote Plaintiff." (Id. ¶ 45.) Defendants Creson, Pedretti, Floyd, Bixler, and Hallimore did not "ha[ve] the authority, nor made the decision, to terminate Plaintiff." (Id. ¶ 47.)

"Human Resources prepared a Notice of Proposed Disciplinary Action for the dismissal of Plaintiff based upon the improper issuance and renewal of the permit for work on his residence in addition to his prior employment history." (Id. ¶ 34.) "Plaintiff was served with the Notice on November 15, 2005, and was immediately placed on administrative leave." (Id. ¶ 35.) "The Order for Disciplinary Action for dismissal was issued on January 9, 2006." (Id. ¶ 37.) "Plaintiff appealed the decision but then dismissed the appeal." (Id. ¶ 38.)

"Plaintiff claims that he was terminated as a consequence for disclosing corruption to the Grand Jury." (Id. ¶ 39.) "However, [Defendants Pedretti, Mosher, Cochran, and Floyd] were not aware that Plaintiff filed a complaint with the Grand Jury or that he testified before the Grand Jury at the time that any employment decision or disciplinary action was taken." (Id. ¶ 40.) Further, Bixler and Hallimore declare they "have never been made aware of the specific content of any testimony by [Plaintiff] before the Grand Jury." (Id.; Ex. 14, 9, Ex. 15, 7.) Plaintiff counters that "Bixler was aware of the Grand Jury Testimony." (Pl's Response to SUF ¶ 40.) Plaintiff supports this assertion with a declaration from Bill McDowell ("McDowell"), a "supervising building ...


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