This matter comes before the court upon: 1) defendants State Compensation Insurance Fund's ("SCIF") and Christopher J. Devereux's ("Devereux") motion for summary judgment (ECF 36); and 2) defendant Tim Castle's ("Castle") motion for summary judgment. (ECF 47.) The court held a hearing on these motions on March 2, 2011, with James Ashworth appearing for plaintiff, Mark Grajski appearing for SCIF and Devereux, and Andrea Austin appearing for Castle. After considering the evidence before it and the parties' oral arguments, and good cause appearing, the court GRANTS the defense motions for summary judgment.*fn1
Plaintiff Jovita Vierria ("plaintiff") filed the original complaint in this matter on February 3, 2009. (ECF 1.) Castle, CHP, Devereux and SCIF responded with two separate motions to dismiss in lieu of answers on April 20, 2009. (ECF 8 & 9.) The motions were granted in part and denied in part on June 24, 2009. (ECF 19.)
Plaintiff filed an amended complaint, which is the operative complaint, on July 13, 2009. (ECF 20.) The amended complaint alleges six causes of action: 1) violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"); 2) violation of the right to free speech; 3) taking of property; 4) discrimination, retaliation and harassment in violation of the Americans with Disabilities Act;*fn2 5) abuse of process; and 6) intentional infliction of emotional distress ("IIED"). (Id.)
Devereux and SCIF filed their answers on August 3, 2009. (ECF 22.) Castle and CHP filed a motion to dismiss certain claims alleged in the amended complaint in lieu of an answer on August 3, 2009. (ECF 23.) The motion was granted on September 29, 2009. (ECF 27.) Castle filed his answer on October 14, 2009. (ECF 29.)
Devereux and SCIF filed their present motion for summary judgment on December 9, 2010. (ECF 36.) Plaintiff filed her opposition on January 14, 2011. (ECF 37.) Devereux and SCIF filed their reply on January 21, 2011. (ECF 44.)
Castle filed his present motion for summary judgment on January 28, 2011. (ECF 47.) Plaintiff filed her opposition on February 16, 2011. (ECF 51.) Castle filed his reply on February 23, 2011. (ECF 56.)
SCIF is CHP's workers' compensation claims adjuster. (SCIF & Devereux's Statement of Undisputed Facts ¶ 1, ECF 36-2 (hereinafter, "ECF 36-2"); Pl.'s Opp'n to ECF 36- 2 ¶ 1, ECF 37-1 (hereinafter, "ECF 37-1").) Devereux is staff counsel for SCIF. (Am. Compl. ¶ 8.) Castle is an employee of CHP, being sued in his individual capacity (id. ¶ 5), and was plaintiff's supervisor. (See Castle's Mem. P. & A. in Supp. Summ. J. ("Castle's Mem.") at 1, ECF 47-1.) During the relevant time, plaintiff was employed by the Disability and Retirement Section ("DRS") of the CHP, where she acted as a liaison between CHP and SCIF in handling the workers' compensation claims of CHP employees and assisted the relatives of deceased CHP personnel with benefits issues. (ECF 36-2 ¶¶ 3, 4; ECF 37-1 ¶¶ 3, 4.)
In September 2004, The Sacramento Bee published a series of articles regarding the alleged practice of high-ranking CHP officers claiming work injuries on the eve of retiring, dubbed "Chief's Disease." (ECF 36-2 ¶ 5; ECF 37-1 ¶ 5.) In May 2005, the Sacramento County District Attorney began an investigation into the Chief's Disease allegations. (ECF 36-2 ¶ 9; ECF 37-1 ¶ 9; Castle's Statement of Undisputed Facts ¶ 12, ECF 47-2 (hereinafter, "ECF 47-2"); Pl.'s Opp'n to ECF 47-2 ¶ 12, ECF 50 (hereinafter, "ECF 50").)
Plaintiff's relationship with some co-workers began deteriorating in late 2005. (ECF 36-2 ¶¶ 12-14, 16-20, 27-28; Grajski Decl., Ex. A, ECF 36-4.) One of these employees, Helen Dodson, reported that plaintiff was planning to leak confidential information of a high-ranking CHP employee to The Sacramento Bee and frame Dodson for the leak. (ECF 47-2 ¶ 14; ECF 50 ¶ 14.) In January 2007, CHP inspected plaintiff's computer and interrogated plaintiff as part of its investigation into Dodson's report. (ECF 36-2 ¶ 24; Grajski Decl., Ex. A, Vierria Depo. at 121:13-126-8, 231:25-232:2; Vierria Decl. ¶ 9; Am. Compl. ¶ 58.) Also in 2007, defendant Castle hired a counselor to repair morale and working relationships at DRS. (ECF 36-2 ¶ 30; Grajski Decl., Ex. A, ECF 36-4.) The counselor led a group meeting with the whole office in June 2007, at which a co-worker accused plaintiff of "'being the problem in [DRS] for the past ten years,'" leading plaintiff to become "very upset." (ECF 36-2 ¶¶ 31-33; Grajski Decl., Ex. A, ECF 36-4; ECF 47-2 ¶ 29; Grajski Decl., Ex. A, Vierria Depo. at 136:22; Am. Compl. ¶ 64.) On July 12, 2007, plaintiff met with the counselor individually where she "[broke] down" (ECF 36-2 ¶ 34, Grajski Decl., Ex. A) and commenced a leave of absence. (ECF 36-2 ¶ 35; ECF 37-1 ¶ 35.) On July 25, 2007, plaintiff "filed a workers' compensation claim for stress from cumulative trauma dating back to 2003" (id.) on the recommendations of the management consultant and her physician. (ECF 47-2 ¶ 31; ECF 50 ¶ 31.)
In or about September 2007, SCIF denied Vierria's workers' compensation claim. (ECF 36-2 ¶ 50; ECF 37-1 ¶ 50.) Plaintiff appealed to the Workers' Compensation Appeals Board and SCIF assigned Devereux to represent CHP at the appeal. (ECF 36-2 ¶ 51.) Devereux deposed Vierria over the course of seven days, from September 27, 2007 to July 22, 2008, at which time he questioned her regarding a variety of topics, including her family, employment and medical history, marriage, sources of workplace stress she identified, and the leak to The Sacramento Bee. (ECF 36-2 ¶¶ 52, 54-56; ECF 37-1 ¶¶ 52, 54-56.) Plaintiff settled her workers' compensation claim on September 14, 2009, after she no longer worked for CHP. (ECF 47-2 ¶¶ 48-49; ECF 50 ¶¶ 48-49; ECF 36-2 ¶ 75; ECF 37-1 ¶ 75.)
On September 4, 2007, CHP issued a Notice of Adverse Action to plaintiff, suspending her without pay for five days and transferring her to the Grants Management Department for a minimum of twelve months. (ECF 36-2 ¶ 36; ECF 37-1 ¶ 36; Grajski Decl., Ex. A, Vierria Depo. Ex. 3.)*fn4 The reasons given for the adverse action were inexcusable neglect of duty, insubordination, discourteous treatment of the public or other employees, willful disobedience, misuse of state property and other failure of good behavior. (Grajski Decl., Ex. A, Vierria Depo. Ex. 3 at 4-5.) Plaintiff appealed the action to the State Personnel Board ("SPB"), which issued its decision on November 24, 2008. (ECF 36-2 ¶¶ 38-39; ECF 37-1 ¶¶ 38-39.)*fn5 SPB found that plaintiff's conduct constituted "willful disobedience [and] misuse of state property" and modified the five day suspension and involuntary transfer into a letter of reprimand, ordering CHP to pay plaintiff all back pay and benefits owed. (Grajski Decl., Ex. A, Vierria Depo. Ex. 5 at 12-13.) However, although plaintiff was given the option of returning to DRS, she remained in Grants Management until November 2008, when she transferred to CalSTRS, another state agency. (ECF 36-2 ¶ 103; ECF 37-1 ¶ 103.)
A. Summary Judgment Standard
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn6
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "[cite] to particular parts of materials in the record [or show] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphases in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
To prevail on a civil RICO claim, plaintiff must prove that defendants "engaged in: 1) conduct 2) of an enterprise 3) through a pattern 4) of racketeering activity [and 5)] show that [defendants] caused injury to [plaintiff's] business or property." Fireman's Fund Ins. Co. v. Stites, 258 F.3d 1016, 1021 (9th Cir. 2001) (internal citations omitted). Plaintiff alleges two predicate acts in the amended complaint: witness tampering and retaliation. See 18 U.S.C. § 1961(1). As discussed below, the court finds there is no genuine dispute regarding the viability of plaintiff's witness tampering and retaliation allegations; thus, defendants are entitled to judgment as a matter of law on plaintiff's RICO claim. In addition, due to the lack of viable predicate acts, it is unnecessary for the court to consider the other elements necessary to state a RICO claim. Sedima v. Imrex Co., 473 U.S. 479, 496 (1985) ("The plaintiff must, of course, allege each of these elements to state a claim.").
To maintain a claim of witness tampering, plaintiff must establish there was an "official proceeding," which as relevant to this action is defined as a proceeding "involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce." 18 U.S.C. § 1515(a)(1)(D); see 18 U.S.C. § 1512.
In the amended complaint, plaintiff alleges all defendants conspired "to use the workers' compensation system 'as a tool' to deal with problem employees who could potentially reveal information about their fraudulent worker's compensation claims or who could identify the original leak." (Am. Compl. ¶ 85.) Defendants maintain there was neither an official proceeding nor evidence of criminal intimidation, threat, corrupt persuasion or misleading conduct. (SCIF & Devereux's Mem. at 4, 5; Castle's Mem. at 7, 8.)
It is unclear from the face of the amended complaint what plaintiff contends constituted an official proceeding for purposes of her allegation of witness tampering. This fact alone provides grounds for granting defendants summary judgment. See Wasco Products, Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 992 (9th Cir. 2006) (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)) ("'Summary judgment is not a procedural second chance to flesh out inadequate pleadings.'"). In her memoranda in opposition to summary judgment,*fn7 plaintiff asserts that the official proceeding on which the witness tampering allegation is based is a joint task force of the San Francisco District Attorney's Office, CHP, and the California Department of Insurance. (Pl.'s Opp'n at 14.) Plaintiff further maintains that "[t]he investigation has not been concluded and given that it has gone on for over three (3) years, it seems likely that someone will be indicted soon. However, it does not matter whether there are any charges brought, or any testimony, it is whether there is a reasonable likelihood that there may be testimony and whether the conduct of the Defendants was intended to influence that testimony." (Id. at 15.) Plaintiff relies on a CHP press release dated July 25, 2007, regarding formation of the task force, which also states that "[t]he findings of this independent examination will be released this fall." (Vierria Decl., Ex. 2.)
Plaintiff's arguments are wholly without merit. Plaintiff essentially maintains that a trier of fact could find that the elements of witness tampering are met where there is no evidence of an official proceeding or of her being asked to provide any information for such a nonexistent proceeding. (See ECF 50 ¶ 53.) Nor is there any evidence that defendants knew or believed an official proceeding had begun or was likely, or that they intended to influence her potential testimony. No rational trier of fact could conclude as much (or as little). Plaintiff also fails to assert that such a proceeding was, or could have been, foreseen. Plaintiff's mere citation to a First Circuit case does nothing to meet her evidentiary burden. (Pl.'s Opp'n at 14 (quoting United States v. Mila-Aldarondo, 478 F.3d 52, 69 (1st Cir. 2007) ("[t]here need only be 'sufficient evidence that the defendant knew that an official proceeding had begun, or that he believed one to be likely in the future, and that he intended to influence any possible testimony in the proceeding.'")).) To survive defendants' summary judgment motions, plaintiff ...