United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DOC. 54]
Thomas J. Whelan United States District Judge.
before the Court is a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 filed by Defendant Carmina
Duran. [Doc. 54.] Plaintiff Michael Gurrieri opposes. [Doc.
56.] The Court decides the matter on the papers submitted
without oral argument pursuant to Civil Local Rule 7.1(d)(1).
For the reasons discussed below, the Court DENIES
April of 2014, Plaintiff Michael Gurrieri began working at
the San Diego Unified School District (“SDUSD”)
on a probationary basis as an Internal Investigator,
reporting to Defendant Carmina Duran. (See FAC [Doc.
14] ¶¶ 1, 22; Gurrieri Depo. [Doc. 54-2,
Exh. 1] 47:10-12.)
thereafter, Gurrieri began investigating a complaint by
parents of a student at Green Elementary School, which
alleged that one male kindergarten student had sexually
assaulted another in a school bathroom. (See FAC
[Doc. 14] ¶¶ 27-31.) The parents' complaint
further alleged that the principal of Green Elementary, one
Bruce Ferguson, had “failed to follow district
policy/procedures in handling” the matter. (See
Citizen Compl. [Doc. 55-22, Exh. P].) As a result, it
alleged, Ferguson had created an unsafe environment that
allowed further physical harm to come to the child in
question. (See id.)
began the investigation in May of 2014 and finished a draft
investigative report about four months later, in September of
that year. (See FAC [Doc. 14] ¶¶ 31-32;
Draft Investigative Report [Doc. 55-24, Exh. R].)
The First Amended Complaint (“FAC”) alleges that
Gurrieri's draft contained “allegations pertaining
to other incidents of sexual harassment/assault and
[Principal] Ferguson's negligence and/or misconduct[,
]” which Duran directed him to delete in later versions
of the report. (FAC [Doc. 14] ¶¶ 39- 45.)
According to the FAC, Gurrieri objected to these
instructions, stated his belief that Ferguson should be
further investigated and even disciplined, and then objected
when the school district decided not to discipline Ferguson.
(Id. [Doc. 14] ¶¶ 46-48, 50, 65.) The FAC
further alleges that Gurrieri complained to Duran about the
school district's investigative and management policies
and also its past decision not to terminate an abusive high
school coach. (Id. [Doc. 14] ¶¶ 77, 80.)
Finally, the FAC alleges that Gurrieri offered his opinion
that the office where he worked within the school district
tended to disfavor certain groups of students in its
investigations. (See Id. [Doc. 14] ¶¶
either September or October of 2014,  Gurrieri and Duran met for
the first time to discuss Duran's concerns with
Gurrieri's performance at work. The FAC alleges that on
October 20 of that year, Duran told Gurrieri that he needed
to improve. (See FAC [Doc. 14] ¶ 87.) He
allegedly wrote back to her two days later, requesting
written feedback. (See Id. [Doc. 14] ¶ 88.)
Gurrieri was terminated the next day, on October 23, 2014.
(Duran Decl. [Doc. 54-3] ¶ 6; Thede
Decl. [Doc. 54-4] ¶ 4.) Gurrieri apparently never
received any written feedback prior to his termination.
(See Gurrieri Depo. [Doc. 55-5-8, Exh. E] 308.)
brought this action on July 28, 2015. (Compl. [Doc.
1].) The FAC alleges violation of Gurrieri's First
Amendment rights through retaliation pursuant to 42 U.S.C.
§ 1983. (FAC [Doc. 14] ¶¶ 98-107.)
judgment is appropriate under Rule 56 when the moving party
demonstrates the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. See
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A fact is material when, under the governing
substantive law, it could affect the outcome of the case.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute about a material fact is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this “burden of production” in two ways:
(1) by presenting evidence that negates an essential element
of the nonmoving party's case; or (2) by demonstrating
that the nonmoving party failed to make a showing sufficient
to establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See id. at 322-25; Nissan Fire & Marine Ins.
Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102-03
(9th Cir. 2000) (explaining relevant burden-shifting
terminology). “Disputes over irrelevant or unnecessary
facts will not preclude a grant of summary judgment.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
district court may limit its review to the documents
submitted for the purpose of summary judgment and those parts
of the record specifically referenced therein.”
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1030 (9th Cir. 2001). Therefore, the Court is not
obligated “to scour the record in search of a genuine
issue of triable fact . . . .” Keenan v.
Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing
Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th
moving party meets its initial burden of production on the
motion, the nonmoving party cannot defeat summary judgment
merely by demonstrating “that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp.
v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995)
(citing Anderson, 477 U.S. at 252) (“The mere
existence of a scintilla of evidence in support of the
non-moving party's position is not sufficient.”).
Rather, the nonmoving party must “go beyond the
pleadings and by her own affidavits, or by ‘the
depositions, answers to interrogatories, and admissions on
file, ' designate ‘specific facts showing that
there is a genuine issue for trial.' ”
Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56).
making this determination, the court must view all inferences
drawn from the underlying facts in the light most favorable
to the nonmoving party. See Matsushita, 475 U.S. at
587. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge” ruling
on a motion for summary judgment. Anderson, 477 U.S.
Duran Meets her Burden of Production on the Motion.
Ninth Circuit “follow[s] a sequential five-step inquiry
to determine whether an employer impermissibly retaliated
against an employee for engaging in protected speech.”
Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056
(9th Cir. 2013) (citing Eng v. Cooley, 552 F.3d
1062, 1070 (9th Cir. 2009)). “ ‘First, the
plaintiff bears the burden of showing: (1) whether the
plaintiff spoke on a matter of public concern; (2) whether
the plaintiff spoke as a private citizen or public employee;
and (3) whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse employment
action.' ” Id. (quoting Robinson v.
York, 566 F.3d 817, 822 (9th Cir. 2009)). “Next,
if the plaintiff has satisfied the first three steps, the
burden shifts to the government to show: (4) whether the
state had an adequate justification for treating the employee
differently from other members of the general public; and (5)
whether the state would have taken the adverse employment
action even absent the protected speech.” Id.
(quoting Robinson, 566 F.3d at 822). Defendant's
motion addresses only the first three steps of the foregoing
analysis. (Def.'s Mot. [Doc. 54-1].)
identifies five categories of statements she contends
constitute Gurrieri's exercise of his First Amendment
rights for which he now seeks redress against Duran. First,
Gurrieri wrote an investigative report that allegedly
contained findings of misconduct on the part of Principal
Ferguson-Duran then instructed Gurrieri to remove these
findings, instructions to which Gurrieri objected. (See
Def.'s Mot. [Doc. 54-1] 3:20-4:13, 7:2-9:7;
FAC [Doc. 14] ¶¶ 32-44.) Second, Gurrieri
offered his opinion that both Principal Ferguson and a
baseball coach should be terminated-per the FAC, the former
for negligence and being intoxicated during work hours, and
the latter for physically abusing students. (See Id.
[Doc. 54-1] 4:14-21, 9:8-10:9; FAC [Doc. 14]
¶¶ 35, 77.) Third, Gurrieri objected to the school
district's policies and procedures, apparently as to
expulsion of students. (See Id. [Doc. 54-1]
4:22-5:6, 10:10-11:10.) Fourth, Gurrieri told Duran of his
belief that people living south of Interstate 8 received
inferior treatment in investigations relative to their
counterparts living north of that freeway. (See Id.
[Doc. 54-1] 5:7-16, 11:11-12:11.) Fifth and finally, Gurrieri
told a coworker-but not Duran-that he agreed with that
coworker's belief that the school district tended to
favor minorities in its hiring practices. (See Id.
[Doc. 54-1] 5:17-22, 12:12-13:9; Gurrieri Depo.
[Doc. 55-5-8, Exh. E] 285.)
preliminary matter, Gurrieri may not seek redress for
statements about which there is no evidence Duran was aware,
as such statements logically could not have been a
substantial or motivating factor in the termination decision.
(See Gurrieri Depo. [Doc. 55-5-8, Exh. E] 285
(containing an admission on the part of Gurrieri that he
“didn't think” he actually ever told anyone
else about his agreement with his coworker's belief).)
See Ellins, 710 F.3d at 1056. Thus, without any
evidence to show that Duran knew about Gurrieri's
complaint as to the district's hiring practices, the
fifth category of speech cannot serve as a basis for a
retaliation cause of action against her. See id.
Whether Gurrieri Spoke on Matters of Public Concern
remaining four categories, Duran contends that two of them
did not relate to matters of public concern-the second type
of statement, concerning the possibility of discipline as to
the principal and the basketball coach, and the third,
regarding his objection to the district's expulsion
policies. (See Def.'s Mot. [Doc. 54-1] 9:8-10:9,
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.' ”
Johnson v. Multnomah Cty., Or., 48 F.3d 420, 422
(9th Cir. 1995) (quoting Connick v. Myers, 461 U.S.
138, 146 (1983)). “Whether an employee's speech
addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461
U.S. At 147-48.
Gurrieri's Opinions as to the Continued Employment of Dr.
Ferguson and a Baseball Coach
Duran contends that Gurrieri's opinions as to the
employment status of the school principal and the basketball
coach relate only to “a [p]rivate [p]ersonnel
[m]atter” and not any issue of concern to the public.
(See Def.'s Mot. [Doc. 54-1] 9:8-10:9.)
evidence stops well short of establishing the absence of a
genuine dispute on this point. The citations in both the
introductory and the argument section of Defendant's
motion point only to four pages in Gurrieri's deposition
and one paragraph in Duran's declaration, which together
show that he did offer his opinion that these two individuals
should be terminated. (See Def.'s Mot. [Doc.
54-1] 4:14-21, 9:8-10:9 (citing Gurrieri Depo. [Doc.
54-2, Exh. 1] 79, 80, 82, 271; Duran Decl. [Doc.
54-3] ¶ 7).) However, the cited evidence provides little
or no context for Gurrieri's opinions, nor does it offer
any hint as to what Gurrieri's investigations might have
unveiled that could have caused him to believe the
circumstances justified termination. Because Duran does not
delve beyond the most ...