Maner v. County of Stanislaus

          ORDER GRANTING SUMMARY JUDGMENT AND DIRECTING CLERK OF COURT TO CLOSE CASE (DOC. NOS. 26, 27)

         This case was originally filed in Stanislaus County Superior Court on April 10, 2014, and was removed here pursuant to federal question jurisdiction under 28 U.S.C. § 1441(a) and (c) on June 26, 2014. (Doc. No. 1.) The complaint alleges two causes of action for First Amendment retaliation under 42 U.S.C. § 1983 against all defendants under two separate theories, essentially claiming plaintiff was retaliated against both for the exercise of his free speech rights and his associational rights. (Id. at 12-13.) The complaint also alleges a cause of action under 42 U.S.C. § 1983 claiming plaintiff was denied due process because he possessed a property interest in his job and was given constitutionally deficient process prior to being demoted or disciplined. (Id. at 13-14.) The complaint also contains a fourth cause of action based on California Labor Code §§ 1101 and 1102. (Id. at 14-15.) On February 24, 2016, each defendant filed a motion for summary judgment in their favor as to all of plaintiff’s claims. (Doc. Nos. 26-1, 27-1.) Plaintiff filed an opposition to these motions^[1] on March 29, 2016. (Doc. No. 40.) Defendants filed replies. (Doc. Nos. 45, 46.) On May 3, 2016, the motion came on for hearing before the court. At that hearing attorney Peter Bradley appeared for plaintiff and attorney Morin Jacob appeared on behalf of the defendants.

         BACKGROUND

         In his complaint, plaintiff alleges as follows. Plaintiff is a former deputy district attorney for Stanislaus County and was retaliated against for exercising his First Amendment right to support a political candidate for the office of district attorney. Plaintiff alleges that, leading up to the June 2006 district attorney’s election in Stanislaus County, he supported Judge Michael Cummins against the current district attorney and defendant here, Birgit Fladager, who at the time was another prosecutor in the Stanislaus County District Attorney’s Office. According to plaintiff, when Fladager was elected district attorney she retaliated against him for his support of Cummins, by disciplining him unnecessarily and demoting him, ultimately causing him to quit his job.

         Most of the facts are not seriously disputed by the parties. Rather, the parties’ dispute centers around the reasonable inferences to be drawn from those facts. Plaintiff began working at the Stanislaus County District Attorney’s Office in 1991, and worked there until October 2013. During that time, he was a deputy district attorney, and was promoted to the deputy district attorney V position, or the highest level of non-management attorney. Despite receiving praise and commendations for his trial skills throughout much of his tenure with the office (he was regularly given an overall rating of either “exceptional” or “satisfactory” on annual performance evaluations), he also received regular complaints concerning his behavior. Initially, most of these complaints focused on plaintiff’s treatment of the clerical staff.^[2] These complaints resulted in numerous instances of plaintiff being counseled about his behavior prior to June 2006. While most of these complaints came from clerical staff, not all did, and complaints about plaintiff are evident in his personnel file coming from members of the bench, witnesses, the defense bar, and law enforcement at various times during his career prior to June 2006.

         While the parties dispute various aspects of plaintiff’s involvement in Cummins’s campaign prior to the June 2006 election, it is clear plaintiff was to some extent involved in the race. Plaintiff wrote a letter to the editor which was published in the Modesto Bee supporting one of Cummins’s positions in the election. Plaintiff donated money to Cummins’s campaign and was featured on his campaign website. Further, plaintiff has presented evidence in connection with the pending motion that numerous members of management at the district attorney’s office, including Fladager herself, were aware that he supported Cummins by the time of the election. (See Doc. No. 31 at 155-56.)

         Following the June 2006 election, an increasing number of complaints were received by the district attorney’s office about plaintiff, originating from sources both inside and outside that office. Between September 2006 and January 2007, complaints were received that, among other instances of misconduct, plaintiff had: 1) entered a men’s restroom and urinated near a female employee who was painting the room’s interior; 2) abruptly shut the door to a copy room while two clerical employees were conversing on either side of the door; 3) refused orders to evacuate the office during a fire drill; 4) was rude to a judge on the record; and 5) read another attorney’s confidential case notes to a third party.^[3] Most notably during this period, the District Attorney’s Office also received a complaint from the local gang task force with which plaintiff was working in conjunction with his assignment prosecuting gang-related cases. Because of this last complaint, defendant Fladager and other managerial-level officials in the District Attorney’s Office decided to move plaintiff out of his position prosecuting gang-related cases in March 2007, and into one in the issuance department, where he would draft criminal complaints. They also initiated an administrative investigation into plaintiff’s behavior, ultimately resulting in a recommendation from human resources to suspend him for five days, a punishment leveled in August 2007. Plaintiff appealed that suspension throughout 2008 and 2009 and it was ultimately downgraded to a letter of reprimand in March 2009.

         Following this investigation, from 2007 to 2011, plaintiff was not subjected to any new disciplinary proceedings or administrative investigations. In the spring of 2011, plaintiff was again the subject of complaints about his behavior from two separate law enforcement officers arising from separate incidents. Following an administrative investigation into these complaints, plaintiff was issued a letter of reprimand, ordered to write an apology to one of the officers, and ordered to attend counseling.

         Subsequently, during 2012 and 2013, numerous additional complaints were received by the District Attorney’s Office regarding plaintiff. Many of them stemmed from his interactions with a crime victim’s next of kin, who felt she was being treated rudely or alternatively was being ignored. Also included in this spate of complaints were several serious criticisms of plaintiff from several judges in the Juvenile Division of the Stanislaus County Superior Court, to which he had been assigned in spring 2012. These complaints included allegations that plaintiff was routinely late to court, had made disparaging comments about a judge in her courtroom, and had made disparaging comments about a court clerk’s appearance. Again, while plaintiff disputes some elements of these complaints, such as whether he was really late to court with any frequency and whether the comments he made were taken out of context and/or misunderstood, he does not deny the complaints were made.

         Following the receipts of these latter complaints, another administrative investigation was conducted, and Fladager and the other managers of the office sought to terminate defendant. During a June 2013 Skelly conference^[4] about this investigation and proposed discipline and at which Fladager served as the Skelly officer, plaintiff raised for the first time his concern that he was being retaliated against for his support of Cummins in the 2006 election for the office of District Attorney. This Skelly conference was therefore postponed, and a separate Skelly conference was conducted later by Sheriff Adam Christianson. Sheriff Christianson reduced plaintiff’s termination to a thirty-day suspension, a written reprimand, and an order to be placed on a performance improvement plan. While plaintiff was serving his thirty-day suspension, he learned he would be transferred upon his return to a position doing “collateral support, ” work which he contends is non-legal. After learning of this, plaintiff voluntarily withdrew the appeal of his suspension, submitted a letter of resignation, opened his own law firm, and filed this suit.

         LEGAL STANDARDS

         Summary judgment is appropriate when the moving party “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).

         In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . 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 (citation omitted).

         ANALYSIS

         1.First Amendment Retaliation Claims

         Since both of plaintiff’s First Amendment theories rely on essentially the same legal principle-i.e., that he was retaliated against by his employer for engaging in protected First Amendment conduct-they will be analyzed together.

         When analyzing a claim of First Amendment retaliation against an employee, the Ninth Circuit has said a plaintiff must initially show the following: “(1) he was subjected to an adverse employment action . . ., (2) he engaged in speech that was constitutionally protected because it touched on a matter of public concern and (3) the protected expression was a substantial motivating factor for the adverse action.” Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 976 (9th Cir. 2002) (citing Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000)). If this initial showing is made, the burden then switches to defendant to demonstrate either of the following: (1) under the balancing test established by Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), defendant’s legitimate administrative analysis outweighed plaintiff’s First Amendment rights; or (2) under the mixed motive analysis in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), defendant would have reached the same decision even in the absence of the plaintiff’s protected conduct. Id. at 976-77. The most recent formulation of this test by the Ninth Circuit has been stated as follows:

First, we consider whether the plaintiff has engaged in protected speech activities, which requires the plaintiff to show that the plaintiff: (1) spoke on a matter of public concern; and (2) spoke as a private citizen and not within the scope of her official duties as a public employee. If the plaintiff makes these two showings, we ask whether the plaintiff has further shown that she (3) suffered an adverse employment action, for which the plaintiff’s protected speech was a substantial or motivating factor. If the plaintiff meets her burden on these first three steps, thereby stating a prima facie claim of First Amendment retaliation, then the burden shifts to the government to escape liability by establishing either that: (4) the state’s legitimate administrative interests outweigh the employee’s First Amendment rights; or (5) the state would have taken the adverse employment action even absent the protected speech.

Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012).

         a. Plaintiff Engaged in Protected Speech

         The First Amendment protects government employees against their employer’s retaliation when they discuss matters which can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). The employee must be speaking both as a citizen and on a matter of public concern in order to state a First Amendment retaliation cause of action. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Concerning whether a government employee speaks as a citizen or in their official capacity, what is dispositive is whether the speech at issue was made in part because it was what the employee “was employed to do.” Id. at 421-22 (“When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.”). If the speech in question is part of how the employee routinely discharges her job duties, then there is no protection for the speech under the First Amendment. Id.

         Second, in determining whether the employee is discussing a matter of public concern, the Supreme Court has stated courts must look at “the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48. See also Rankin v. McPherson, 483 U.S. 378, 384-85 (1987). “Public employee speech is ‘of public concern’ if it helps citizens ‘to make informed decisions about the operation of their government.’” Roe v. City & Cty. of San Francisco, 109 F.3d 578, 585 (9th Cir. 1997) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). See also Eng v. Colley, 552 F.3d 1062, 1071 (9th Cir. 2009) (“Speech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community.”) Certain subjects are seen as inherently being of public concern. See Roth v. Veteran’s Admin. of Gov’t of U.S., 856 F.2d 1401, 1405 (9th Cir. 1988) (noting the Supreme Court in Connick characterized allegations of racial discrimination as a “matter inherently of public concern”) overruled on other grounds as stated in Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 925 (9th Cir. 2013). The court is to look toward “the point of the speech” in assessing whether it addresses a matter of public concern. Id. at 1405-06. “An employee’s motivation and the audience chosen for the speech also are relevant to the public-concern inquiry.” Gilbrook v. City of Westminster, 177 F.3d 839, 866 (9th Cir. 1999). Ultimately, “the content of the communication must be of broader societal concern, ” and the court’s “focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” Roe, 109 F.3d at 585 (citing Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985)). See also Desrochers v. City of San Bernardino, 572 F.3d 703, 713-16 (9th Cir. 2009). It is plaintiff’s burden to show the speech addressed an issue of public concern, and this inquiry is a matter of law, not fact. Desrochers v. City of San Bernardino, 572 F.3d 703, 713-16 (9th Cir. 2009).

         Defendants assert that any speech plaintiff engaged in was not conducted as a private citizen, did not relate to a matter of public concern, and therefore does not fall under the protection of the First Amendment. Plaintiff primarily relies on one explicit act of speech, a 2006 letter to the editor published in the Modesto Bee, and his known association with a political candidate, Judge Michael Cummins, as the basis for the alleged retaliation.^[5] The parties do not dispute the text of plaintiff’s letter to the Modesto Bee. (Doc. No. 26-4 at ¶ 4.) Defendants, however, note the letter’s byline identifies plaintiff as a prosecutor from Oakdale (a city within Stanislaus County), and state the letter “addresses highly-technical, inner-workings of a DA’s office and contains information only an employee of the DA’s office would know.” (Doc. No. 27-1 at 20.) According to defendants, this “necessarily indicates he [plaintiff] is writing as a prosecutor for County [sic], not as a private citizen.” (Doc. ...