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Tracy Carter et al v. County of Los Angeles et al

February 22, 2011

TRACY CARTER ET AL., PLAINTIFF,
v.
COUNTY OF LOS ANGELES ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING MOTION IN PART; AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

[Motions filed on November 22, 2010]

This matter comes before the court on the County of Los Angeles and the Department of Public Work's (collectively "Defendants'") motion for summary judgment and Tracy Carter, Enma DeLeon, Jackie Gentry, Grace Leriget, Glenda Medlock, Miriam Mendoza, Nicole Mercier, Michelle Minjarez, Pablo Sanchez, (the "Carter Plaintiffs") and Amber Richards and John Lopez (the "Richards Plaintiffs") cross motions for summary judgment.

After reviewing the materials submitted by the parties, considering the arguments therein, and hearing oral argument, the court GRANTS the Carter and Richards Plaintiffs' motions for summary judgment in part and DENIES them in part; the court DENIES Defendants' motion for summary judgment.

I. BACKGROUND

The Carter Plaintiffs and Amber Richards are dispatchers who work for the County of Los Angeles Department of Public Works ("DPW").

In August 2008, Angelica Cobian of the DPW's Internal Audit Division received an anonymous complaint alleging possible employee misconduct by government employee Richards. (Carter Pl's Statement of Uncontroverted Facts ("SUF") ¶ 67.) The complaint alleged that, among other misconduct, Richards had engaged in sexual activity with a visitor in the dispatch room while she was on duty at night. (Id. ¶ 68.)

Richards's supervisor, DWP Assistant Director Chuck Adams, considered the allegation of misconduct to be credible. (Adams Dep. 86: 6--13; Celles Dep. 39:18--40:22.) Adams, however, did not interview potential witnesses because, he stated, he worried that word of the investigation would spread thereby compromising the investigation. (Adams Dep. 118:13--18.) In September 2008, Adams installed a hidden camera inside of a fake smoke detector in the dispatch room. (Id. 93: 2--8.) Adams received the DWP Director's approval to do so. (Carter Pl's Statement of Genuine Issues("SGI")

¶ 16.) Adams assigned Rhea Celles of Internal Audit to review the video tapes for any inappropriate conduct. (Cholakian Dep. 93:15--20; Adams Dep. 93:2--8; 139:7--14.) Although it was possible to program the camera to record for limited intervals - for example, during Richards's shifts - no attempt was made to restrict the covert videotaping. (Cholakian Dep. 138:12--145:1.)

Surveillance began on October 8, 2008. (Carter Pl's SGI ¶ 75.) Adams directed Cholakian to set the camera to record continuously, which it did, until it was discovered on December 10, 2008. (Cholakian Dep. 74:1--4; Celles Dep. 57:20--58:10.) According to Celles, the objective of the investigation was to ascertain whether Richards was in fact engaging in the alleged misconduct, and thus she would typically only view the portions of the tape where Richards worked alone and fast-forward the rest. (Celles Dep. 70:3--19.) Ultimately, Celles discovered several acts of inappropriate employee conduct by Richards, including inappropriate touching with visitors. (Carter Pl's SGI ¶ 18.)

However, Jeanine Thomas, the Head Departmental Civil Service Representative in the Human Resource Division of the DPW, instructed Celles to check if there were any other violations of policy by other staff. (Thomas Dep. 33:1--23.) Celles admits to watching other employees on the tape. (Celles Dep. 198:19--199:2.)

Plaintiffs each declared that they worked in the dispatch room and believed the dispatch room was private. (See, e.g., Carter Decl. ¶ 2; De Leon Decl. ¶ 2; Gentry Decl. ¶ 2.) The dispatch room is a secured space separated by restricted access. (Cholakian Dep. 64:17--65:4, 66:18--21.) It is located on the second floor of the DPW's headquarters building, with a window that is generally covered and, even if it were not covered, is too high up for a pedestrian to see inside. (Carter Pl's SUF ¶ 35.) There are two ways to enter the dispatch room: through the adjacent room, the Disaster Operations Center ("DOC") door, or through the door that leads into the hallway. (Cholakian Dep. 63:15--64:12.) The door that leads into the DOC and the door from the dispatch room to the hallway are both equipped with an OMNI lock system, which automatically lock outside of normal business hours. (Cholakian Dep. 65:1--17, 66:18--67:6; Carter Dep. 19:1--22.) Non-dispatcher County employees rarely enter the dispatch room, and when they do they typically knock to announce their presence before entering. (Mendoza Decl. ¶ 4; Cholakian Dep. 58:2--59:2, 69:1--10.)

While on duty in the dispatch room, Plaintiffs often worked long shifts alone and generally did not leave their post except for brief bathroom breaks. (Carter Dep. 24:11--25:11; e.g. Carter Decl.

¶ 6.) Plaintiffs were required to take their meal and rest breaks in the dispatch room. (Richards Dep. 85:21--86:5.) It was not uncommon during the "after hours" shifts for the entire building to be empty with the exception of the dispatcher on duty and the security personnel. (Cholakian Dep. 54:12--56:17.) The DWP furnished the employees with personal lockers in the dispatch room, as well as with a television, food cooking items, and storage items. (Carter Pl's SGI ¶ 58.) Plaintiffs engaged in a number of private acts in the dispatch room, which are not disputed. For example, Plaintiffs admit that on occasion in the dispatch room they changed into or out of work-out clothes, pumped breast milk, adjusted or undid their bras, applied deodorant, picked zits, removed or adjusted their sanitary napkins, picked their nose, stretched, cleaned body piercings, and engaged in other acts normally reserved for private spaces. (Carter Pls.' SUF ¶ 61.)

There is a dispute as to whether there was a sign in the public lobby by the main entrance of DPW Headquarters indicating that the building is under surveillance. (Carter Pl's SGI ¶ 68.) None of the cameras in the other areas of the building are hidden.

(Cholakian Dep. 76:11--15.) After a security incident in 2005, there was discussion of installing security cameras in the dispatch room, but at that time DWP decided against installing cameras. (Mendoza Dep. 15:6--12; 17:1--19:9.) Plaintiffs state that it was their understanding at that time that DWP decided not to install cameras in the dispatch room to protect the employees' privacy. (See, e.g., Mendoza Dep. 17:23--18:18, 22:21--23:10.) Plaintiffs were under the impression cameras would never be installed in the dispatch room. (Id.)

On December 10, 2008, Richards discovered that she was being covertly videotaped at work. She filed suit against Defendants. At the same time, the Carter Plaintiffs, who had also been subjected to covert video surveillance on the job, sued Defendants. Collectively, the Carter and Richards Plaintiffs assert that Defendants violated their Fourth Amendment right to be free from unreasonable searches and seizures. (Compl. ¶ 30.) Plaintiffs also bring suit under the California Constitution for a violation of their privacy. (Id. ¶ 38.) On November 22, 2010, Defendants moved for summary judgment. On the same day, the Carter Plaintiffs and Richards Plaintiffs each also for summary judgment.

II. Legal Standards

A. Summary ...


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