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Gurrieri v. Duran

United States District Court, S.D. California

April 9, 2017



          Hon. Thomas J. Whelan United States District Judge.

         Pending 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 Defendant's motion.

         I. Background

         In 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.)

         Shortly 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.)

         Gurrieri 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] ¶¶ 77-79.)

         In either September or October of 2014, [1] 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.)

         Gurrieri 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.)

         II. Legal Standard

         Summary 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.

         A party 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).

         “[T]he 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 Cir. 1995)).

         If the 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).

         When 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. at 255.

         III. Discussion

         A. Duran Meets her Burden of Production on the Motion.

         The 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].)

         Duran 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.)

         As a 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.

         1. Whether Gurrieri Spoke on Matters of Public Concern

         Of the 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, 10:10-11:10.)

         “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.' ” 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.

         a) Gurrieri's Opinions as to the Continued Employment of Dr. Ferguson and a Baseball Coach

         First, 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.)

         Her 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] ΒΆ 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 ...

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