United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CALIFORNIA DEPARTMENT OF DEVELOPMENTAL SERVICES’ MOTION
FOR SUMMARY JUDGMENT (ECF No. 202)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
The
matter is before the Court on Defendant California Department
of Developmental Services’ motion for summary judgment.
For the reasons stated below, the motion will be granted in
part and denied in part.
I.
PROCEDURAL HISTORY
This
action began as an employment discrimination, harassment, and
whistle blower protection suit by five Plaintiffs against the
California Department of Developmental Services
(“DDS”) and several of its employees. (ECF No.
1.) The majority of Plaintiffs and Defendants since have been
dismissed, along with many of the claims. (ECF Nos. 62, 112,
159, 194.) The action now proceeds on the third amended
complaint brought by Plaintiff Kenneth Cook against Defendant
DDS and pro se Defendant Jeffrey Bradley. (ECF No. 95.) The
following four causes of action remain in issue: (1)
retaliation in violation of Title VII of the Civil Rights Act
of 1964 (seventh cause of action), (2) retaliation in
violation of the California Fair Employment and Housing Act
(“FEHA”) (eighth cause of action), (3) failure to
prevent retaliation in violation of FEHA (ninth cause of
action), and (4) retaliation in violation of the California
Whistle Blower Protection Act (“WBPA”) (tenth
cause of action).
On
January 28, 2016, Defendant DDS filed a motion for summary
judgment and/or summary adjudication of some of Cook’s
retaliation claims. (ECF No. 202.) Cook filed an opposition.
(ECF No. 213.) DDS filed a reply. (ECF No. 219.) Defendant
Bradley filed no joinder in or response to the motion.
The
matter was heard on March 11, 2016. Counsel Lawrence King
appeared on behalf of Cook. Deputy Attorney General Matthew
T. Besmer appeared on behalf of DDS. Defendant Bradley did
not appear and no one appeared on his behalf. At the
conclusion of the hearing, the parties were invited to
provide supplemental briefing. That briefing having been
submitted (ECF Nos. 225-233), the matter now stands ready for
adjudication.
II.
SUMMARY JUDGMENT STANDARD
Any
party may move for summary judgment, and the Court shall
grant summary judgment if the movant shows that 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);
Wash. Mut. Inc. v. United States, 636 F.3d 1207,
1216 (9th Cir. 2011). Each party’s position, whether it
be that a fact is disputed or undisputed, must be supported
by (1) citing to particular parts of materials in the record,
including but not limited to depositions, documents,
declarations, or discovery; or (2) showing that the materials
cited do not establish the presence or absence of a genuine
dispute or that the opposing party cannot produce admissible
evidence to support the fact. Fed R. Civ. P. 56(c)(1).
Plaintiff
bears the burden of proof at trial, and to prevail on summary
judgment, he must affirmatively demonstrate that no
reasonable trier of fact could find other than for him.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007). Defendants do not bear the burden of
proof at trial and, in moving for summary judgment, they need
only prove an absence of evidence to support
Plaintiff’s case. In re Oracle Corp. Secs.
Litig., 627 F.3d 376, 387 (9th Cir. 2010).
In
judging the evidence at the summary judgment stage, the Court
may not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984, and it must
draw all inferences in the light most favorable to the
nonmoving party, Comite de Jornaleros de Redondo Beach v.
City of Redondo Beach, 657 F.3d 936, 942 (9th Cir.
2011).
III.
FACTUAL BACKGROUND
Based
on the submissions of the parties, and except as otherwise
indicated, the Court finds the following facts to be
undisputed.
A.
Plaintiff Cook’s Employment History
Cook
completed the Ventura County Sheriff’s law enforcement
academy in 1986. (Defendant’s Statement of Undisputed
Material Facts (“DUF”) 1.) He served as a deputy
sheriff from July 1986 to April 1990 before leaving law
enforcement to operate a pizza franchise for approximately
ten years. (DUF 2-3.) Cook returned to law enforcement as a
tribal police officer from approximately 2000 to 2001. (DUF
4.)
Cook
joined DDS as a peace officer at the Porterville Development
Center (“PDC”) in 2001. (Joint Statement of
Undisputed Material Facts (“JUF”) 11.) DDS
provides support to individuals with developmental
disabilities in developmental centers throughout California.
(JUF 1-2.) The centers serve as homes and treatment
facilities for DDS clients. (JUF 3.) The Office of Protective
Services (“OPS”) is DDS’s law enforcement
agency. (JUF 6.)
Cook
was promoted to sergeant in November 2005, and then to
Supervising Special Investigator I in December 2006. (JUF
12.) As a Supervising Special Investigator I, Cook was
considered a “lieutenant” within DDS. (JUF 13.)
From at least December 1, 2006 to April 1, 2007, Cook was
appointed Acting Commander when the Commander was away or
unavailable. (Plaintiff’s Statem ent of Undisputed
Material Facts (“PUF”) 5, and Defendant’s
Reply thereto.) The Commander is the highest ranking peace
officer at PDC. (DUF 8.) The “Commander” title is
a civil service classification of Supervising Special
Investigator II. (DUF 8.)
B.
Acts Giving Rise to this Action [1]
In
April 2007, Defendant Bradley became the PDC Commander. (DUF
8.) At that time, there was an ongoing internal DDS Equal
Employment Opportunity (“EEO”) investigation into
claims of sexual harassment brought by Yvonne Arcure, a
former Plaintiff in this action, against Douglas Loehner and
David Corral, former Defendants. (PUF 7, 25.) Cook was
interviewed as a witness during the investigation. Other
investigations also were ongoing, and Cook was interviewed as
a witness in at least one other investigation. (PUF 9.) The
parties dispute whether and to what extent Bradley was aware
of these investigations at the time he became Commander.
On
August 28, 2007, Cook sent Bradley an email recommending that
Corral be terminated based on a DDS determination that Corral
had discriminated against a female employee other than
Arcure, as well as other conduct. (PUF 30.) Four days later,
on September 4, 2007, Bradley informed PDC lieutenants and
sergeants that Cook would be removed from his position as
Operations Lieutenant. (PUF 31.) Cook was reassigned to
Special Investigations Lieutenant, a position which,
according to Cook, involved diminished responsibility and
inferior conditions of employment. (PUF 33-36.) Thereafter,
Cook filed a formal complaint with the United States Equal
Employment Opportunity Commission (“EEOC”). (PUF
11-12.) Cook’s claims relating to this conduct are not
at issue in the instant motion for summary judgment.
In May
2008, PDC Scheduling Sergeant Justin Davin contacted Cook
regarding what he believed to be fraudulent overtime slips
for Acting Sergeant Rennie Molezzo, signed off on by
Defendant Bradley. (DUF 11.) Cook contacted several law
enforcement agencies regarding his concerns over this
possibly fraudulent overtime scheme. (PUF 13.) Meanwhile, in
July 2008, Bradley became the Chief of OPS. (JUF 8.) Cook
eventually reported his concerns of overtime fraud to the
Porterville Police Department, which initiated an
investigation. (JUF 14.)
Around
the middle of August 2008, the Porterville Police Department
arrived at PDC to investigate the allegations of fraudulent
overtime. (JUF 14.) Bradley immediately reported news of the
investigation to Deborah Meeker, DDS Deputy Director. (DUF
16.) Meeker told Bradley to stay out of the police
department’s investigation. (DUF 17.) The Porterville
Police Department did not consider Bradley a suspect. (DUF
14.) The parties dispute whether DDS considered Bradley to be
a suspect at the time of the initial investigation.
After
learning of the police investigation, Meeker initiated two
investigations. The first investigation addressed the
allegations of overtime fraud. (DUF 19.) The second
investigation concerned Cook. (DUF 20.) The parties dispute
the purpose of this second investigation. DDS claims that the
investigation concerned Cook’s handling of the overtime
allegations and possible improper disclosures of confidential
information to outside agencies. (DUF 21.) Cook claims that
the investigation was initiated in retaliation for his
engaging in protected activity and due to his disability.
Cook
was placed on administrative leave during the investigation,
but retained his pay and benefits. (DUF 22, 25a.) DDS claims
that the decision to place Cook on leave was not punitive,
and was designed to protect Cook and the integrity of the
investigation. Cook claims that the leave decision was
retaliatory and points out that neither Molezzo nor Bradley
were placed on leave. The parties dispute whether Bradley
participated in the decision to place Cook on leave. At the
conclusion of the investigation, Cook was returned to his
same position with the same title and responsibilities, and
the same pay and benefits. (JUF 21.)
On
September 12, 2008, Cook initiated two EEOC complaints. One
alleged that he had been retaliated against for filing his
initial EEOC complaint. The other alleged disability
discrimination in violation of the Americans with
Disabilities Act. (JUF 24, 26.) In both charges, Cook claimed
he was not provided with the reason he was placed on leave.
(JUF 24.)
On
September 17, 2008, Cook filed a whistle blower retaliation
complaint with the State Personnel Board (“SPB”),
claiming that being placed on paid administrative leave and
under investigation was retaliation for reporting alleged
overtime fraud to the Porterville Police Department. (JUF
26.) Cook later withdrew this complaint and filed a new
complaint on June 2, 2009. (JUF 27.) He did not file his
whistleblower complaint with his supervisor or manager before
he filed it with the State Personnel Board. (DUF 36.)
After
Cook’s EEOC and SPB complaints were filed, Bradley
imposed various changes to the conditions of Cook’s
employment, which Cook believes were retaliatory. (PUF 38.)
In October 2008, Meeker issued Cook a Letter of Instruction
regarding his report of suspected overtime fraud to the
Porterville Police Department. These specific actions by
Bradley and Meeker are not subjects of the instant motion for
summary judgment.
On
February 25, 2009 John Sawyer, the Executive Director of PDC
was interviewed by Porterville radio station KTIP as part of
a news broadcast about allegations of drug use and overtime
fraud at PDC. (JUF 46.) Sawyer did not mention Cook’s
name during the interview. (JUF 47.) The host asked Sawyer
questions which derived from an anonymous letter that was
sent to the radio station. (JUF 45.) The relevant portion of
the broadcast is as follows:
Radio Host: The letter stated that the lieutenant that had
reported about the illegal activity was placed on
administrative leave without explanation. Sawyer was asked to
comment about that for news first.
Sawyer: I don’t think that was accurate at all. Any
time we put anybody on administrative leave, they’re
given the full reason why they are placed on that. And the
putting in - mentioning the overtime fraud was not the reason
that that officer - the lieutenant - was placed on
administrative leave. There were other things that were also
involved or that he was also involved in. And they wanted to
keep him away from the facility while the investigation going
on, and he was later brought back once the investigation was
completed.
(JUF 48.)
In
April 2009, the Porterville Police Department suspected that
Bradley and an individual named Scott Gardner were committing
overtime fraud. (DUF 37-38.) These suspicions arose from
sources other than Cook. (DUF 37.) Around the same time,
Bradley stepped down from the position of OPS Chief and
requested to return to the Commander position at PDC. (DUF
40b). Patricia Flannery, Deputy Director of Developmental
Centers, placed Bradley on administrative leave on April 21,
2009, and initiated an investigation into the overtime fraud
allegations. (JUF 28.) Cook claims he was forced to be a
witness in this investigation. (JUF 49.) Bradley later was
terminated for his conduct.[2] (JUF 29.)
Around
April 2009, DDS invited applications for Bradley’s
replacement as OPS Chief. (JUF 34.) Flannery was responsible
for selecting the new Chief. (DUF 60b.) In May 2009, Corey
Smith was named acting Chief. (JUF 31.) Smith had been a fire
chief with OPS at the Sonoma Developmental Center from 1992
until 2005 and had served as Commander of the Sonoma
Developmental Center from 2005 until he became the acting
Chief in May 2009. (JUF 32-33.)
Cook
applied for the OPS Chief position. (JUF 35.) Patricia
Flannery and Mark Hutchinson reviewed the application
materials submitted by Cook and fourteen other individuals.
(DUF 60a.) Flannery and Hutchinson scored each applicant in
four separate categories based on a review of their
applications and resume materials. (DUF 61.) One applicant
scored 95% and was ranked number one. Four applicants scored
90% and were ranked second. Cook scored 85% and was in the
third rank, along with three other applicants. Four
applicants scored below Cook, and one applicant was
disqualified. (DUF 65.) According to state civil service
rules, only candidates in the top three ranks are
“reachable” or eligible to be considered for the
position. (JUF 37.)
Cook
was invited to interview with Flannery and Hutchinson. (JUF
36-37.) Both Flannery and Hutchinson state that Cook did not
perform well. (ECF Nos. 209-210.) Following the interview,
Cook emailed Flannery and Hutchison to clarify his response
to an interview question, stating, “I felt my answer
may have been taken in a way that I never intended it to be
taken, that I would word things in a way that would be
dishonest and untruthful to protect the States’
interest.” (JUF 39.)
After
interviewing the candidates, including Cook, DDS re-announced
the Chief position to obtain additional applicants. Smith
continued to serve as acting Chief during this time. (JUF
40.) Smith applied for the permanent position during the
second application round and ultimately was selected as the
permanent Chief. (JUF 41-42.) He was appointed in July 2010.
(JUF 42.)
C.
State Personnel Board Proceedings
Cook
initially filed his SPB complaint on September 17, 2008, but
later withdrew that complaint and filed a new complaint on
June 2, 2009. (JUF 26.) On January 19, 2010, the State
Personnel Board convened an informal hearing to investigate
the June 2, 2009, complaint. (DUF 43.) Therein, the
administrative law judge considered whether the allegations
contained in the complaint of being placed on leave and under
investigation and being issued a letter of instruction
constituted adverse, retaliatory employment actions. (ECF
Nos. 79-4, 214-4.) The administrative law judge also
considered allegedly adverse retaliatory actions not
contained in Cook’s complaint, such as not being asked
on an as needed basis to attend morning meetings with the
Executive Officer, failure to be invited to meetings with
special investigators, having to rush to provide a doctor
with materials after being told that the doctor would not be
available for a week, the relocation of two of his
investigators, the change of administration and personnel
leaving him feeling isolated, and rumors that his credibility
had been damaged. (Id.)
In her
April 14, 2010, Proposed Notice of Findings, the
administrative law judge found that the issuance of the
Letter of Instruction constituted retaliation for
Cook’s protected activity, but that his remaining
allegations did not affect the terms and conditions of his
employment and therefore did not constitute adverse actions.
The proposed findings were adopted on April 23, 2010.
(Id.)
On May
2, 2011, the SPB held an evidentiary hearing, at the request
of DDS, to determine whether Cook had any damages in
connection with receiving the letter of instruction and to
again consider whether the letter of instruction constituted
an adverse action. (DUF 47; ECF Nos. 79-7, 214-5.) In her
July 28, 2011 proposed decision, the ALJ noted that Cook had
been denied promotion since receiving the letter of
instruction. Although there was no evidence that the letter
had been considered in the decision to deny Cook’s
promotion, the possibility that it could be so used was
sufficient to conclude that the letter adversely affected the
terms and conditions of Cook’s employment. (ECF Nos.
79-7, 214-5.) The ALJ declined to award compensatory damages
as Cook had offered no evidence in support of such an award.
(Id.) The proposed decision was adopted on August 9,
2011. (Id.; DUF 48.)
IV.
DISCUSSION
A.
Whether Cook failed to exhaust his WBPA claim because he did
not first present his complaint to his
supervisor or manager
DDS
argues that summary judgment should be granted on
Cook’s tenth cause of action for whistleblower
retaliation because Cook did not present his whistleblower
complaint to his employer before filing it with the State
Personnel Board. According to DDS, presentation to the
employer is a condition precedent to filing with the SPB
under California Government Code Section 8547.8, and
therefore a condition precedent to proper exhaustion. In
support, DDS relies on Atashkar v. California Horse
Racing Board, C069875, 2014 LEXIS 4121 (Cal.Ct.App. Ju
ne 13, 2014).
Cook
argues that DDS misrepresents Atashkar and, in any
event, Atashkar is not citable. Cook also states
that the SPB instructed him to file his complaint with the
SPB and advised him that the SPB would provide a copy of the
complaint to the respondents. He argues that his exhaustion
was sufficient because he timely filed a complaint with the
SPB, his complaint was accepted, and DDS responded.
California
Government Code Section 8547.8(a) permits the filing of
whistleblower complaints with the State Personnel Board:
A state employee or applicant for state employment who
files a written complaint with his or her supervisor,
manager, or the appointing power alleging actual or
attempted acts of reprisal, retaliation, threats, coercion,
or similar improper acts prohibited by Section 8547.3,
may also file a copy of the written complaint with the
State Personnel Board, together with a sworn statement
that the contents of the written complaint are true, or are
believed by the affiant to be true, under penalty of perjury.
The complaint filed with the board, shall be filed within 12
months of the most recent act of reprisal complained about.
(Emphasis added.)
Complaints
for damages predicated on whistleblowing activity must be
presented to the SPB prior to bringing suit: “[A]ny
action for damages shall not be available to the injured
party unless the injured party has first filed a complaint
with the State Personnel Board pursuant to subdivision (a),
and the board has issued, or failed to issue, findings
pursuant to Section 19683.” Cal. Gov. Code §
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