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Cauble v. County of San Diego Dept. of Animal Services

United States District Court, S.D. California

July 7, 2017

BRUCE W. CAUBLE, Plaintiff,
v.
COUNTY OF SAN DIEGO DEPT. OF ANIMAL SERVICES, et al., Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          Honorable Larry Alan Burns United States District Judge

         Six months after veterinarian Bruce Cauble complained about unlicensed x-ray machines at San Diego's three animal shelters, the Department of Animal Services assigned him to the busiest shelter farthest from his home. Animal Services says they needed Cauble, the only full-time veterinarian working at the shelter, where his surgical skills were needed most. Cauble says it was retaliation in violation of his First Amendment rights. But allegations aren't enough at the summary judgment stage. Cauble had to “present affirmative evidence” “from which a jury might return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). He didn't.

         The Court grants Animal Services' motion for summary judgment for three reasons: (i) Cauble's assignment to the busiest shelter wasn't an adverse action; (ii) Cauble voiced his complaints pursuant to his job duties; and (iii) Animal Services would have assigned Cauble to the same shelter despite his complaints.

         Background

         After 30 years of private veterinary practice, Bruce Cauble accepted a position with San Diego County's Department of Animal Services. For the next 10 years, Cauble rotated between San Diego's three animal shelters: North Shelter in Carlsbad, Central Shelter in Mission Valley, and South Shelter in Bonita. During the first half of 2013, Cauble was the only full-time veterinarian and one of the few on staff who could perform surgeries.[1]

         Until May 2013, Cauble also served as the Licensee Manager-the person responsible for signing premise permits that certify the shelters comply with state regulations. Cal. Code Regs. § 2030.05. As Licensee Manager, Cauble voiced concerns about uninspected x-ray machines at the shelters. Specifically, he provided evidence of three key complaints: In April, Cauble emailed Deputy Director David Johnson; in May, he emailed Director Dawn Danielson; and in June, he emailed the California Veterinary Medical Board (“Board”).[2]

         In the April email, Cauble wrote that the x-ray machines needed inspection and the staff needed badges to monitor radiation levels. Johnson thanked Cauble for raising the concerns and promised to address the issues. A few weeks later, Cauble sent the May email to Danielson voicing similar concerns and alerting her that he had notified the Board that his “license [was] no longer to be used” for the premise permits at the shelters. Around this time, Cauble told Johnson he didn't want to be the Licensee Manager responsible for signing the premise permits. A month later, Cauble sent the June email to the Board complaining about Johnson and Danielson's handling of the x-ray compliance issues.[3]

         In September, after consulting with other managers, Johnson took Cauble off his rotational duties between the three shelters and assigned him exclusively to South Shelter. Cauble says his commute increased and his “workload dramatically increased due to the large volume of surgery and medical care needed there.” About six months later, Cauble took disability leave. He remained on leave for the next two years before going on disability retirement. Cauble sued Animal Services in California state court for retaliating against him in violation of his First Amendment rights and for state law discrimination claims. Animal Services removed the case and now moves for summary judgment.[4]

         Standard

         “The court shall grant summary judgment if the movant 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. Although the Court views the evidence in the light most favorable to Cauble, “bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009).

         Analysis

         To establish First Amendment retaliation, Cauble must show that Animal Services took an adverse employment action against him because he spoke about a matter of public concern as a private citizen. If Cauble provides evidence supporting those elements, then the burden shifts to Animal Services to show either that it had an adequate justification for treating Cauble differently, or that it would have taken the same action despite his complaints. Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013).[5]

         The Court grants Animal Services' motion for summary judgment on three independent bases: (1) Cauble's assignment to South Shelter wasn't an adverse action motivated by his complaints; (2) Cauble's speech wasn't protected because he spoke as a public employee pursuant to his job duties; and (3) Animal Services would have assigned Cauble to South Shelter despite Cauble's complaints.

         1. Adverse Action

         “To succeed on a wrongful-retaliation claim, a plaintiff must show, in the first instance, that he has suffered an adverse employment action. Only then do we address whether the statement which motivated the retaliation is one of public concern.” Nunez v. City of Los Angeles, 147 F.3d 867, 874-75 (9th Cir. 1998) (citations omitted) (affirming summary judgment because plaintiff failed to show adverse action as threshold issue).

         To decide if an employer took an adverse action, “the proper inquiry is whether the action is reasonably likely to deter employees from engaging in protected activity.” Dahlia, 735 F.3d at 1078 (9th Cir. 2013). Cauble argues that his assignment to South Shelter constitutes an adverse action because Animal Services knew that assignment would create extra work that “aggravated his wrist problems, ” along with a longer commute that “greatly aggravated Dr. Cauble's back condition.”[6] The Court disagrees.

         Animal Services offered unrebutted evidence that Cauble's assignment to South Shelter wasn't an adverse action at all, let alone an action motivated by Cauble's complaints. Animal Services assigned Cauble to South Shelter because he asked to step-down from the Managing Licensee position. Since Cauble was no longer responsible for certifying the permits at all three shelters, there was no need for him to rotate to all three. Animal Services then ...


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