United States District Court, E.D. California
ROBERT E. LEVY, Plaintiff,
COUNTY OF ALPINE, et al., Defendants.
ORDER DIRECTING VERDICT
H. WHALEY Senior United States District Judge
April 17, 2017, this matter began in a jury trial. Plaintiff
Robert E. Levy rested his case-in-chief on April 20, 2017,
and at that time, Defendant County of Alpine moved for a
directed verdict pursuant to Fed.R.Civ.P. 50. This Order
memorializes the Court's oral ruling granting
Defendant's Motion for Directed Verdict.
Levy, former Undersheriff of Alpine County, brought this case
against Alpine County, charging it with violations of his
First Amendment right to free speech, age discrimination,
retaliation, and defamation. ECF No. 1. On March 10, 2016,
the Court dismissed all claims except the claim under 42
U.S.C. § 1983 for deprivation of First Amendment rights.
ECF No. 44.
surviving claims were divided into two separate jury
instructions seeking recovery against the County on two
theories. The first sought recovery against the County for
the retaliatory acts of its County Administrative Officer as
a final policymaker. The second sought recovery from the
County itself as a final policymaker for ratifying the
retaliatory acts of its County Administrative Officer.
2012, at the recommendation of County Administrative Officer
Pamela Knorr, the Board of Supervisors authorized an
independent investigation into a telecommunications project
at Leviathan Peak in Alpine County, in which Mr. Levy was
involved. The investigation, conducted by a third-party law
firm, resulted in a report of the findings that demonstrated
significant financial shortfalls in the project. The report
was published on the County's website.
Levy alleges the report's publication irreparably damaged
his reputation in the community. This, he asserts, forced him
to retire earlier than planned and made it impossible for him
to be elected Sheriff. Mr. Levy further alleges that the
recommendation by Ms. Knorr was made to the Board of
Supervisors in retaliation for complaints Mr. Levy claims he
made about age discrimination.
elements of each theory of liability, as a practical matter,
were factually and legally the same. Both required the Court
to determine as a matter of law that the actors were final
policymakers, that they acted with retaliatory intent, that
Mr. Levy's speech was protected, and that an adverse
employment action was taken against Mr. Levy. See Eng v.
Cooley, 552 F.3d 1062, 1070-74 (9th Cir. 2009) (test for
First Amendment retaliation)
Motion for Directed Verdict challenged that Ms. Knorr was, as
a matter of law, a final policymaker, and also challenged the
evidentiary basis presented to show liability through
ratification by the Board of Supervisors.
directed verdict is appropriate when a party has been fully
heard on an issue in a jury trial and the trial court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis for finding for the party on that issue.
The Board of Supervisors did not approve the recommendation
for the investigation with a retaliatory motive.
§ 1983 suit, the plaintiff must establish the state of
mind required to prove the underlying violation. Bd. of
Cnty. Comm'rs of Bryan County, Okla. v.
Brown, 520 U.S. 397, 405 (1997); see also TSAO v.
Desert Palace, Inc., 698 F.3d 1128, 1144 (9th Cir.
2012). To demonstrate ratification of a subordinate's
unconstitutional action, thus holding the municipality
liable, the plaintiff must prove that the final policymakers
approved a subordinate's decision and the
unconstitutional basis for it. City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (emphasis added).
Alpine County Board of Supervisors is a final policymaker
under state law, as it is the governing body of the County.
See Cal. Gov. Code § 25000. To succeed in his
claim, Mr. Levy would have needed to prove that the Board of
Supervisors approved an underlying retaliatory motive against
Mr. Levy when the Board chose to approve Ms. Knorr's
recommendation for the independent investigation into the
project. Mr. Levy ...