United States District Court, E.D. California
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. ...