Hauschild v. City of Richmond

          ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this wrongful-termination action brought by a police officer under the California Public Safety Officers Bill of Rights, his motion for partial summary judgment is Denied and defendants' motion for summary judgment is Granted in Part.

         STATEMENT

         The undisputed facts are as follows. Plaintiff Thomas Hauschild began working as a police officer for defendant City of Richmond in 2005. Plaintiff, who is Asian, served as a detective, a member of the SWAT team, and as a firearms instructor.^[1] Between 2006 and 2012, plaintiff's former spouse, who also worked for the City of Richmond, made several domestic abuse complaints against plaintiff. In response, plaintiff notified the City of these complaints (Hauschild Decl ¶ 3). The Police Department investigated one of these incidents, an incident that took place at a 2007 Christmas party, and concluded that the complaint was unfounded (Poore Decl., Exh. B).

         On September 23, 2012, plaintiff and his wife fought. Both suffered physical injuries to their faces and bodies (Hauschild Decl. ¶ 4; Poore Decl., Exh. A). The City initiated an internal affairs investigation of plaintiff covering past abuse incidents occurring between 2006 and 2012. Investigators questioned plaintiff about them. The investigation concluded on September 18, 2013 (almost one year after the fight). The investigator, Sergeant Albert Walle, made the following four findings: (1) plaintiff was the "primary aggressor" in the September 2012 domestic violence incident; (2) plaintiff placed a condom on his wife's door the day after the incident; (3) plaintiff illegally purchased eight firearms and stored them in his workspace; and (4) plaintiff made false statements to a supervisor during the investigation (Poore Decl., Exh. A).

         On September 24, 2013, plaintiff received a Skelly hearing notice regarding the termination of his employment. Defendant Police Chief Christopher Magnus became the hearing officer (id. at ¶ 6; Dickerson Decl., Exh. E). After the hearing, Magnus recommended termination of plaintiff. Magnus' recommendation stated that each of the charges, standing alone, warranted dismissal. Moreover, his conclusion stated (Dickerson Decl., Exh. E at 3):

the evidence collected regarding the September 23, 2012 incident, six years of domestic abuse of [plaintiff's wife] leading up to this incident, and Officer Hauschild's defacement of [plaintiff's wife's] property after the incident, conclusively proved that Officer Hauschild was the primary aggressor on September 23, 2012, and battered [plaintiff's wife] in a jealous rage after finding text messages from another officer on her mobile phone.

         The recommendation also stated that the evidence showed plaintiff to be the primary aggressor during the September 2012 incident, "even without any consideration of the prior allegations of domestic abuse" (id. at 7). The Richmond City Manager, Bill Lindsay, reviewed the Skelly recommendations from Magnus, and made his own determination to terminate Officer Hauschild. The City then terminated plaintiff's employment. (Lindsay Decl., Exh. B)

         The parties disagree about the following facts. Plaintiff submits a declaration that Magnus "began inappropriately touching" plaintiff's body on one occasion in 2009 and that plaintiff later reported the incident to his supervisor, Lieutenant Arnold Threets (Hauschild Decl. ¶ 8). Defendants submit declarations that no sexual advance ever took place and that plaintiff also never reported any incident to Threets (Magnus Decl. ¶¶ 6-7; Threets Decl. ¶¶ 3).

         Plaintiff submits testimony that Magnus has made discriminatory remarks towards African-Americans and Latinos. Lieutenant Arnold Threets, former supervisor to plaintiff, testified that, on a first-hand basis, he heard Magnus refer to African-American officers as "jigaboos, " and say "dance, jigaboo, dance" when referring to an African-American (Threets Dep. at 71-81). He also heard Magnus refer to Latinos as "Joses" (ibid.) and say that, "If you're going to try to take me out, you better succeed, because a wounded animal is more dangerous than a dead one" (id. at 78-79). He also heard Magnus say, "I'm more comfortable around people who look like, act like, and talk like me, so I might as well just be a racist" (id. at 79-81). Another officer heard Magnus say that the Juneteenth holiday was a holiday for shooting people (Gagan Dep. at 58-60). Plaintiff also submits testimony that Magnus demanded that he lie in connection with an investigation into a racial discrimination complaint in 2011 (Hauschild Decl. ¶ 10). In a declaration, Magnus denies ever asking plaintiff to make an untrue statement (Magnus Decl. ¶ 12).

         Plaintiff filed his first amended complaint in May of 2015, alleging six separate claims related to the termination of his employment: (1) violation of the First, Fifth, and Fourteenth Amendments under Section 1983; (2) discrimination in violation of Fair Employment and Housing Act (FEHA); (3) retaliation in violation of FEHA; (4) harassment in violation of FEHA; (5) violation of the California Constitution; and (6) violation of the Public Safety Officers Procedural Bill of Rights (POBR). Plaintiff later dropped claim four (harassment) and claim five (violation of the California Constitution). A prior order denied defendants' motion for partial summary judgment, concluding that a reasonable trier of fact could conclude that defendants violated POBR's one-year statute of limitations (Dkt. 50).

         Plaintiff filed for partial summary judgment as to his POBR claim and Section 1983 due process claim. Defendants filed for summary judgment on all claims.

         ANALYSIS

         1. Motion for Summary Judgment.

         Summary judgment is proper where the pleadings, discovery, and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A. POBR Claim.

         The California Public Safety Officers Procedural Bill of Rights provides that "no punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery." Cal. Govt. Code Section 3304(d)(1). Section 3304(d)(2)(A) tolls the one-year statute of limitations during the pendency of a criminal investigation. The California Supreme Court has held that the purpose of this statute is "to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency's discovery of the officer's act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline." Mays v. City of Los Angeles, 43 Cal.4th 313, 322 (2008).

         During the investigative interview of plaintiff, internal affairs investigator Walle asked numerous questions about incidents that occurred well beyond the one-year statute of limitations. These included inquiries into domestic incidents which occurred in 2007, 2009, 2010, and 2011 (Wilkinson Decl., Exh. A at 29-48). Moreover, defendant Magnus' recommendation following the Skelly hearing made several references to these previous incidents. Specifically, Magnus' memorandum stated that, among other things, plaintiff's "six years of domestic abuse of [plaintiff's wife] . . . conclusively proved that Officer Hauschild was the primary aggressor on September 23, 2012" (Dickerson Decl., Exh. E at 3). Magnus also considered that plaintiff "was able to provide detailed accounts" regarding the incident on September 23, 2012 and other domestic violence incidents dating back several years (ibid).

         Defendants argue that all evidence points to the conclusion that the punitive action against plaintiff arose solely from the incident on September 23, 2012. Defendants contend that the above quoted passages from the Magnus memorandum were contained in the "Summary of Charges" section and were not mentioned in the "Discussion" section, which supposedly contained the analysis and recommendation. ...