Arcure v. California Department of Developmental Services

          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 § ...