United States District Court, N.D. California
ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Re: Dkt. No.
R. LLOYD United States Magistrate Judge
Micaela Ochoa (“Ochoa”), the former Chief
Business Officer at Defendant Santa Clara County Office of
Education (“SCCOE”), sues her former employer and
Defendant Jon Gundry (“Gundry”), the
Superintendent, for retaliatory termination in violation of
her First Amendment rights and a California whistleblower
statute. Dkt. No. 1. She asserts that she engaged in
protected speech on two occasions-first, in reporting a
perceived violation of law related to the preparation of
Gundry's W-2 in February 2015, and second, in speaking
out about potential non-compliance with the California Public
Records Act (“CPRA”) in June 2015-and that this
speech was a substantial or motivating factor in her
termination. Defendants move for summary judgment, or, in the
alternative, partial summary judgment, and assert various
legitimate and non-retaliatory reasons for Ochoa's
termination. Dkt. No. 38.
parties have consented to magistrate judge jurisdiction. Dkt.
Nos. 7, 11. For the reasons explained below, the court
grants-in-part Defendants' motion for partial summary
judgment only as to Ochoa's damages for lost wages for
the time remaining on her employment contract. The court
denies Defendants' motion for summary judgment, or, in
the alternative, partial summary judgment, in all other
hired Ochoa to serve as its Chief Business Officer in August
2012. Dkt. No. 41, Ochoa Decl., ¶ 4. Her contract,
originally for a two-year term, was extended in late 2013 and
expired June 30, 2016. Dkt. No. 38, Gordillo Decl., Ex. 2.
Ochoa's employment could be terminated without cause; but
if this provision were exercised prior to the end of the
term, her contract provided for a cash settlement not to
exceed her monthly salary multiplied by the number of months
remaining on the contract (up to 12 months). Id.
Ochoa's annual salary in 2012-2013 was $205, 000, not
including deferred compensation and other benefits.
SCCOE employees report to the Superintendent. Dkt. No. 38,
Gundry Decl., ¶ 7. To manage the large agency, the
Superintendent hires a cabinet of officers. Id.,
¶ 8. He or she may terminate these cabinet officers with
or without cause. Id., ¶¶ 10, 11. This is
meant to ensure that the Superintendent has a cabinet of
advisors he or she trusts. Id. The Superintendent
reports to the Board of Education, but the Board does not
employ any other employees of SCCOE. Id., ¶ 7.
SCCOE hired Gundry to serve as Superintendent in the summer
of 2014. Id., ¶ 2.
accounts, SCCOE in 2014 and 2015 was not a fun place to work.
In their declarations and depositions, current and former
Board and cabinet members were all too willing to criticize
each other. Chief Human Resources Officer Phillip Gordillo
and Gundry both asserted that Ochoa did not get along with at
least two of her colleagues. Dkt. No. 38, Gordillo Decl.,
¶ 4, Gundry Decl., ¶ 17. Chief Strategy Officer
Toni Cordova reported that two of her co-workers argued, and
that another “constantly complained about
everything.” Dkt. No. 43, Cordova Decl., ¶¶
31, 34. Gundry testified that cabinet member Kelly Calhoun
and General Counsel Maribel Medina had a contentious
relationship. Dkt. No. 40, Mehta Decl., Ex. D, Gundry Dep.
[“Gundry Dep.”], 26:18-24. Medina accused Gundry
of harassment and racial discrimination. Dkt. No. 44, Medina
Decl., ¶ 11. Gundry described the cabinet environment as
“toxic, ” stating, “I thought every person
in the room brought conflict to the cabinet.” Gundry
story of Gundry and Ochoa's relationship dates back to
2013, when Ochoa lost “more than half” of her
payroll staff. Dkt. No. 41, Ochoa Decl., ¶ 78.
Suspecting problems in that department, Ochoa recommended
hiring a new auditing firm to review the payroll.
Id., ¶ 79. The auditors found various issues.
Id., ¶ 81. Gundry learned of the 2013 payroll
errors in fall 2014.
No. 38, Gundry Decl., ¶ 18. He recalled concluding that
the payroll errors occurred “due to Plaintiff's
poor oversight.” Dkt. No. 38, Gundry Decl., ¶ 20;
Gundry Dep., 21:22-25. Gundry testified that he never spoke
to Ochoa about the payroll audit or issued any written
discipline to her related to the 2013 payroll problems.
Gundry Dep., 15:15-24, 20:20-23, 21:22-25.
payroll investigation spawned another inquiry, this one into
misrepresentations an SCCOE staff member made to the IRS.
Though Gundry suspected that Ochoa may have been involved,
Gundry ultimately testified that the misrepresentations
“had nothing to do with Ms. Ochoa.” Dkt. No. 38,
Gundry Decl., ¶¶ 27-29; Gundry Dep., 28:7-25.
events related to Ochoa's first instance of alleged
protected speech concern Gundry's compensation, which
included moving expenses. Ochoa states that she first told
Gundry that his moving expenses were taxable in August 2014.
Dkt. No. 41, Ochoa Decl., ¶ 13. Gundry disputed this
account when the issue came to a head in February 2015,
claiming in an e-mail that Medina said his moving expenses
would not be taxed. Id., Ex. A. Medina denies having
said this. Dkt. No. 44, Medina Decl., ¶ 6.
of what Gundry had previously been told, he was “very
irritated” to receive a revised W-2 in February 2015
listing his moving expenses as taxable income. Dkt. No. 41,
Ochoa Decl., Ex. A. After exchanging e-mails with Ochoa about
the issue, and questioning why Ochoa and not Ted
O-SCCOE's Director of Business Services, who worked
directly for Ochoa and handled W-2s-had responded to his
concerns, Gundry went to Ted O's office and yelled at
him. Dkt. No. 42, O Decl., ¶¶ 7-21; Dkt. No. 38,
Gundry Decl., ¶ 35 (explaining that he was angry about
O's unresponsiveness). According to O, Gundry said
“if he could not trust Ochoa and [O], we had ‘to
go, ' and [Gundry] made a hand gesture with his thumb,
like ‘you're out of here.'” Dkt. No. 42,
O Decl., ¶ 21, 22. O reports being so frightened by the
confrontation that he purchased pepper spray in case Gundry
became violent. Dkt. No. 42, O Decl., ¶ 23.
the record does not contain any direct evidence that Gundry
asked Ochoa or O to change his W-2, both Ochoa and O
understood Gundry's comments as an attempt to bully them
into doing so. Dkt. No. 42, O Decl., ¶¶ 24, 25, 28;
Dkt. No. 41, Ochoa Decl., ¶¶ 29, 42-46, 57.
Further, both believed that intentionally preparing an
incorrect W-2 would be tax fraud, and that Gundry's
bullying behavior was itself harassment in violation of state
or federal law. Id. Fearing retaliation, Ochoa
reported these events to Darcie Green, the President of the
Board of Education. Dkt. No. 41, Ochoa Decl., ¶¶
49, 51; Dkt. No. 39, Mehta Decl., Ex. B, Green Dep.
[“Green Dep.”], 42:8-11, 49:16-24, Ex. 2. Gundry
denies ever being aware of Ochoa's complaint to Green,
Dkt. No. 38, Gundry Decl., ¶ 55, and states that he did
not know that Ochoa was involved in O's complaint,
id., ¶ 36. Nevertheless, Gundry testified that
Green told him to “watch [his] tone.” Gundry
Dep., 84:2-9. And Green recalled speaking with Gundry about
the complaint from Ochoa and O multiple times. Green Dep.,
this episode, Ochoa reports that she observed a change in
Gundry's demeanor towards her, which she describes as a
“distinct chilling” in his behavior. Dkt. No. 41,
Ochoa Decl., ¶ 70. She also states that Gundry ceased
his regular meetings with her in March 2015. Id.,
¶ 69. At around the same time, Gundry informed Gordillo
in Human Resources that he intended to terminate
Plaintiff's employment and asked him to draft a
termination letter and separation agreement. Gordillo Decl.,
second instance of alleged protected speech relates to a
California Public Records Act (“CPRA”) request
concerning contracts promoted by Gundry. Though there were
other contracts involved, one set involved Mark Skvarna, a
consultant Gundry hired to assist with various tax and
payroll problems. Dkt. No. 38, Gundry Decl., ¶ 40.
Gundry came to trust Skvarna, ultimately concluding by the
end of the 2014-2015 academic year that he could replace
Ochoa. Id., ¶ 41. Not everyone felt as
comfortable with Skvarna: both Cordova and Medina complained
about his racist and sexist comments. Dkt. No. 43, Cordova
Decl., ¶ 15; Dkt. No. 44, Medina Decl., ¶ 9. Medina
also notified Gundry that Skvarna's business was not
registered with the California Secretary of State. Gundry
2015, reporter Josh Koehn of San Jose Inside
submitted a CPRA request for various SCCOE contracts.
Communications Director Kenneth Blackstone fielded the
request. Dkt. No. 38, Blackstone Decl., ¶¶ 1, 2.
After speaking to Gundry, Blackstone produced the documents
deemed responsive on June 15, 2015. Id., ¶ 3.
The next day, Ochoa e-mailed Blackstone and Gundry,
expressing her concern that Blackstone's June 15 e-mail
¶¶ 4, 5, Ex. 3. She also forwarded additional
documents she considered responsive. Id. Blackstone
met with Gundry to discuss Ochoa's e-mails, and Gundry
directed Blackstone to “get a legal opinion”
about whether the new documents were responsive.
Id., ¶ 6. SCCOE produced the additional
contracts to Koehn, and, after Ochoa e-mailed Blackstone with
another potentially responsive document, SCCOE produced that
document, as well. Id., ¶¶ 6, 7, 8.
Ochoa's e-mails expressed her concerns that SCCOE was
violating the CPRA. Id., Exs. 5, 6.
asserts that Gundry “never suggested that any
responsive documents should be withheld” and
“didn't seem to care that the documents had been
requested by a reporter.” Id., ¶ 10.
Gundry echoes Blackstone's remarks, stating that he
initially disagreed with Ochoa that the documents were
responsive, but that he “had no interest in not
complying with the law.” Gundry Dep., 247:13-19.
points out several inconsistencies in Gundry and
Blackstone's accounts of this incident. First, Gundry
testified that Medina refused to discuss the CPRA requests
and that outside counsel was not involved, and he denies
instructing Blackstone to speak to outside counsel. Gundry
Dep., 190:5-21. But Blackstone testified that Gundry had
directed him to speak to outside counsel. Dkt. No. 40, Mehta
Decl., Ex. C., Blackstone Dep., 96:5-9. Medina denied ever
refusing to help Blackstone with Koehn's CPRA request.
Dkt. No. 44, Medina Decl., ¶ 7. And Cordova recalls
Medina and Blackstone arguing over CPRA requests
“because [Blackstone] would exclude her from the CPRA
process.” Dkt. No. 31, Cordova Decl., ¶
31. Medina's employment was terminated shortly
after this episode. Dkt. No. 44, Medina Decl., ¶ 15.
reports several additional grievances related to Ochoa's
performance. First, he asserts that Ochoa “almost never
attend[ed] meetings of the Business Administration Steering
Committee (“BASC”), which he expected her to
attend. Dkt. No. 38, Gundry Decl., ¶¶ 37-39. Ochoa
states that the only time Gundry asked her about BASC
attendance was in December 2014. Dkt. No. 41, Ochoa Decl.,
¶ 90. Second, Gundry expressed his dissatisfaction with
Ochoa's presentations to the Board, which he found
shallow. Dkt. No. 38, Gundry Decl., ¶ 33. But Gundry
testified that the Board appeared satisfied with Ochoa's
presentations, Gundry Dep., 45:24-47:22, and Green testified
that he found the presentations satisfactory, Green Dep.,
39:13- 15. Gundry did not discuss his concerns about the
presentations with Ochoa. Gundry Dep., 47:9-12. Finally,
Gundry asserts that Ochoa's micromanagement of her
employees created inefficiencies. Dkt. No. 38, Gundry Decl.,
¶ 30. The only time Ochoa recalled Gundry complaining to
her about micromanagement was during the W-2 episode, when he
accused her of micromanaging Ted O. Dkt. No. 41, Ochoa Decl.,
met with the Board in closed session on June 29, 2015. Dkt.
No. 38, Gundry Decl., ¶ 53. On July 2, 2015, Gundry
terminated Ochoa's employment. Id., ¶ 54.
As part of her separation, SCCOE paid Ochoa $271, 242.76,
covering her monthly compensation for the months remaining on
the contract and her travel, cell phone, deferred
compensation, and vacation pay. Dkt. No. 38, Gordillo Decl.,
filed her complaint in this lawsuit in June 2016. She alleges
two claims: retaliatory termination in violation of her First
Amendment Rights pursuant to 42 U.S.C. Section 1983, and
retaliatory termination in violation of California Labor Code
Section 1102.5 (a whistleblower statute). Dkt. No. 1. Ochoa
seeks damages for lost compensation and employment-related
benefits, emotional distress, and out-of-pocket expenses for
health care; punitive damages; injunctive relief requiring
her reinstatement; and attorney fees and costs. Id.
present motion, Defendants move for summary judgment, or,
alternatively partial summary judgment. Defendants assert
that they are entitled to summary judgment on Ochoa's
First Amendment claim because (1) Ochoa's speech was not
a substantial or motivating factor in the adverse employment
action, and (2) Gundry would have terminated Ochoa's
employment even absent Ochoa's speech. Defendants assert
that Ochoa's termination was the result of the payroll
problems, conflict with other cabinet members,
micromanagement, failures to attend BASC meetings, shallow
board presentations, and misrepresentations to the IRS.
Defendants next challenge Ochoa's Section 1102.5 claim,
asserting that (1) Ochoa did not engage in a protected
activity, (2) there was no causal link between Ochoa's
alleged protected activity and the adverse employment
decision, and (3) Defendants had legitimate, non-retaliatory
reasons for the termination. In the alternative, Defendants
move for partial summary judgment as to the February 2015
speech, arguing that (1) it did not address a matter of
public concern; (2) Gundry did not know about Ochoa's
report to Green, so it could not have been a motivating
factor in his decision; (3) Ochoa's statements were not
protected speech under Section 1102.5; (4) there was no
causal link between Ochoa's statements to Green and the
employment decision; and (5) the February 2015 statements did
not occur within a ...