Merino et al v. El Dorado Hills County Water District

Filing 39

ORDER signed by Judge Lawrence K. Karlton on 10/26/11 GRANTING 27 Motion for Summary Judgment on the procedural due process claim and DENYING 27 Motion to Dismiss the First Amendment retaliation claim. At the hearing on this motion, plaintiffs i ndicated that they would like to amend their First Amendment claim to clarify that they were not speaking in their official capacities. Given the courts ruling, such an amendment does not appear to be necessary. Nevertheless, if plaintiffs choose to amend their First Amendment claim, they may do so no later than 14 days from the date of this order. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID MERINO; STEVE
MARANVILLE; KARA MERINO;
BRENDA MARANVILLE,

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NO. CIV. S-10-2152 LKK/DAD
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Plaintiffs,

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v.
O R D E R

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EL DORADO HILLS COUNTY
WATER DISTRICT; and
DOES 1-50,

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Defendants.
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/

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Plaintiffs complain that they suffered adverse employment

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actions – one was terminated, one was demoted – in violation of

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their

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exercising their First Amendment rights. For the reasons set forth

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below, the court will grant defendant’s converted Motion for

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Summary Judgment on the procedural Due Process claim, and deny its

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Motion To Dismiss the First Amendment claim.

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procedural

Due

Process

rights,

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and

in

retaliation

for

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I.

BACKGROUND

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A.

Underlying Facts

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Before the incidents alleged in the Complaint, plaintiffs

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Maranville and Merino were Captains with defendant El Dorado

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Hills Fire Department (a/k/a El Dorado Hills County Water

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District) (the “Department”).

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firefighter filed a complaint alleging that plaintiff Maranville

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had created a hostile work environment.

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(October 6, 2011) (Dkt. No. 37-1).

On April 16, 2009, a female

The Department investigated

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the complaint.

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was presented to Fire Chief Veerkamp, who reviewed it and

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determined that Maranville, as well as Merino, should be

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terminated.

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Veerkamp Decl. ¶ 4.

Veerkamp Decl. ¶ 3

The investigative report

Veerkamp Decl. ¶ 5.1

On August 21, 2009, Maranville and Merino were placed on

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paid administrative leave, Maranville Decl. ¶ 5;2 Merino Decl. ¶

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5 & Exh. 2, and notified in a memo from Veerkamp that the

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Department intended to terminate their employment.

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Decl. ¶ 6 & Exhs. 2 & 3.

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leave, both plaintiffs were placed on 40-hour work weeks, rather

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than the 56-hour work weeks they had been on before.

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Suppl. Decl. (October 6, 2011) ¶¶ 2 & 6 (Dkt. No. 37-2);

Veerkamp

As part of their paid administrative

Blair

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Plaintiffs allege that the hostile work environment claim
was concocted by Veerkamp in retaliation for plaintiffs’ complaints
about Veerkamp’s alleged homophobia. Complaint ¶ 17.
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The memo placing Maranville on paid administrative leave is
not included in the submitted materials, but no party disputes its
existence, date or contents.
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Maranville Decl. ¶¶ 5 & 7; Merino Decl. ¶¶ 5 & 7.

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reduction in hours, both plaintiffs were paid the same gross

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salary – excluding any type of overtime – through an adjustment

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in their hourly pay rate.

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Decl. Exhs. F-H; Merino Decl. Exhs. A-C.3

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paid administrative leave, plaintiffs were not eligible for the

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overtime payments they had previously received, as they were

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permitted to work only 40 hours per week, not enough (53 or

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56 hours) to earn overtime.

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Despite the

Blair Suppl. Decl. ¶ 6; Maranville
However, during the

Maranville Decl. ¶¶ 3-5; Merino ¶¶

3-5; Blair Suppl. Decl. ¶ 4-6.
On September 2, 2009, Veerkamp conducted a Skelly hearing

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on the charges against plaintiffs.4

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Merino Decl. ¶ 8; Veerkamp Decl. ¶ 8.

Both plaintiffs were

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represented by counsel at the hearing.

Veerkamp Decl. ¶ 8.

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Maranville Decl. ¶ 8;

On October 1, 2009, Veerkamp: (i) notified Maranville in

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writing that the Department had decided to terminate him

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effective that same day; and (ii) notified Merino in writing

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that the Department had decided to demote him, effective that

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Plaintiffs’ declaration exhibits show that during their paid
administrative leave, they received the same pay and benefits, but
no overtime pay.

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In Skelly v. State Personnel Bd., 15 Cal.3d 194 (1975), the
California Supreme Court held that a permanent employee was
entitled to a hearing prior to termination. At a minimum, “these
preremoval safeguards must include notice of the proposed action,
the reasons therefor, a copy of the charges and materials upon
which the action is based, and the right to respond, either orally
or in writing, to the authority initially imposing discipline.”
Skelly, 15 Cal.3d at 215.
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same day.5

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Decl. ¶ 8; Merino Decl. ¶ 8.

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Officer, who conducted an arbitration.

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Both plaintiffs appealed the decisions.

Maranville

The appeal was heard by a Hearing

On May 7, 2011, the arbitration decision was issued.6

Bair

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Decl. ¶ 2 & Exh. 1 (Dkt. No. 27-2).

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“the evidence fails to prove proper cause” for the termination

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and demotion.

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plaintiffs be “retroactively reinstated” to their positions as

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Captain, and “made whole” for all lost wages and related

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benefits ....”

The arbitrator found that

Bair Decl. Exh. 1 at 29.

It recommends that both

Id.

On May 19, 2011, the Department adopted the arbitration

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decision in its entirety.

Bair Decl. Exh. 2 (Dkt. No. 27-2 at

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34 & 36).

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both were “reinstated” to the rank of Captain “effective

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immediately.”

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their respective jobs and positions back.”

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2 (August 13, 2011) (Dkt. No. 30); Defendant’s Opposition at 1

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(July 15, 2011) (Dkt. No. 27-1).

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because both plaintiffs had been on paid administrative leave,

The termination and demotion were “rescinded,” and

Id.

In other words, both defendants “were given
Plaintiffs’ Reply at

The Department determined that

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It is not clear whether it is relevant to this lawsuit, but
at some unspecified time prior to the termination letter,
Maranville allegedly “asked the Board for protection,” and filed
a “Retaliation grievance with the Board.” Complaint ¶ 25 & n.1.
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Plaintiff filed this lawsuit in August 2010, while the
arbitration was still under way. Plaintiffs accordingly sought,
and were granted, stays of this litigation until the arbitration
could be completed. See Stay Orders, Dkt. Nos. 8, 10, 13, 16 & 18.
The litigation in this court resumed once the arbitration process
was completed.

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“all benefits ... continued to accrue,” they had “no lost wages

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or deprivation of benefits,” their seniority “has not been

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affected,” and the whole affair would be removed from

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plaintiffs’ personnel files.

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at 35 & 37).

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B.

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On July 15, 2011, defendant El Dorado Hills filed a Motion

Bair Decl. Exh. 2 (Dkt. No. 27-2

Procedings in the District Court

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To Dismiss.

(Dkt. No. 27-1).

In support of the motion to

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dismiss the Due Process claim, defendant submitted a Declaration

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by Connie L. Bair, the Department’s Chief Financial Officer.

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(Dkt. No. 27-2).

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decision, the letters adopting the decisions as to both

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plaintiffs, and other documents.

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submission of the Declaration and its documents, but in their

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Reply, they recite facts that are consistent with the attached

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documents. (Dkt. No. 27-2).

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The Declaration attached the arbitration

Plaintiffs were silent on the

The court determined that the documents were relevant to

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the motion and should be considered, but that they could not be

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considered on the dismissal motion.

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reference doctrine” did not apply, since the documents were not

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referenced in the complaint.7

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“incorporation by reference doctrine” did not apply, because

The “incorporation by

The “extended” version of the

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The “incorporation by reference” doctrine permits the court
to take into account documents “whose contents are alleged in a
complaint and whose authenticity no party questions, but which are
not physically attached” to the complaint. Knievel v. ESPN, 393
F.3d 1068, 1076 (9th Cir. 2005) (citations and internal quotation
marks omitted).
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plaintiff’s claim did not depend upon the contents of the

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documents.8

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the documents, and it is not clear that all the attached

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documents, particularly Exhibit 2 (letters from defendant to

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plaintiffs), are subject to sua sponte judicial notice.

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Finally, defendant did not seek judicial notice of

The court accordingly converted the Due Process dismissal

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motion into a summary judgment motion.

See Fed. R. Civ.

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P. 12(d) (conversion of 12(b)(6) motion to Rule 56 summary

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judgment motion).

The parties were granted additional time to

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respond and reply to the converted summary judgment motion.

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II.

STANDARDS

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A.

Summary Judgment Standard

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Summary judgment is appropriate “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. ___, 129 S.

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Ct. 2658, 2677 (2009) (it is the movant’s burden “to demonstrate

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that there is ‘no genuine issue as to any material fact’ and

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that they are ‘entitled to judgment as a matter of law’”); Walls

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v. Central Contra Costa Transit Authority, 653 F.3d 963, 966

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(9th Cir. 2011) (same).

Fed. R.

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“We have extended the ‘incorporation by reference’ doctrine
to situations in which the plaintiff's claim depends on the
contents of a document, the defendant attaches the document to its
motion to dismiss, and the parties do not dispute the authenticity
of the document, even though the plaintiff does not explicitly
allege the contents of that document in the complaint.” Knievel,
393 F.3d at 1076.
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Consequently, “[s]ummary judgment must be denied” if the

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court “determines that a ‘genuine dispute as to [a] material

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fact’ precludes immediate entry of judgment as a matter of law.”

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Ortiz v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011),

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quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo

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Beach v. City of Redondo Beach, ___ F.3d ___, 2011 WL 4336667

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at 3 (9th Cir. September 16, 2011) (same).

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the

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basis for its motion, and “citing to particular parts of the

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materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show

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“that a fact cannot be ... disputed.”

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In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th

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Cir. 2010) (“The moving party initially bears the burden of

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proving the absence of a genuine issue of material fact”),

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citing Celotex v. Catrett, 477 U.S. 317, 323 (1986).

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Fed. R. Civ. P. 56(c)(1);

If the moving party meets its initial responsibility, the

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burden then shifts to the non-moving party to establish the

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existence of a genuine issue of material fact.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

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Oracle Corp., 627 F.3d at 387 (where the moving party meets its

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burden, “the burden then shifts to the non-moving party to

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designate specific facts demonstrating the existence of genuine

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issues for trial”).

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rely upon the denials of its pleadings, but must tender evidence

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of specific facts in the form of affidavits and/or other

Matsushita Elec.

In doing so, the non-moving party may not

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admissible materials in support of its contention that the

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dispute exists.

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Fed. R. Civ. P. 56(c)(1)(A).

“In evaluating the evidence to determine whether there is a

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genuine issue of fact,” the court draws “all reasonable

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inferences supported by the evidence in favor of the non-moving

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party.”

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considers inferences “supported by the evidence,” it is the non-

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moving party’s obligation to produce a factual predicate as a

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basis for such inferences.

Walls, 65.3 F.3d at 966.

Because the court only

See Richards v. Nielsen Freight

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Lines, 810 F.2d 898, 902 (9th Cir. 1987).

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“must do more than simply show that there is some metaphysical

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doubt as to the material facts ....

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whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’”

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Matsushita, 475 U.S. at 586-87 (citations omitted).

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B.

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The opposing party

Where the record taken as a

Dismissal Standard
A dismissal motion under Fed. R. Civ. P. 12(b)(6)

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challenges a complaint's compliance with the federal pleading

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requirements.

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contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.”

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defendant “‘fair notice of what the ... claim is and the grounds

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upon which it rests.’”

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555 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

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Under Fed. R. Civ. P. 8(a)(2), a pleading must

The complaint must give the

Bell Atlantic v. Twombly, 550 U.S. 544,

To meet this requirement, the complaint must be supported
by factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, ___,
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129 S. Ct. 1937 (2009).

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true all of the factual allegations contained in the complaint.”

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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).9

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Moreover, this court “must accept as

“While legal conclusions can provide the framework of a

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complaint,” neither legal conclusions nor conclusory statements

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are themselves sufficient, and such statements are not entitled

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to a presumption of truth.

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at 1949–50.

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process for evaluation of motions to dismiss.

Iqbal, 556 U.S. at ___, 129 S. Ct.

Iqbal and Twombly therefore prescribe a two step
The court first

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identifies the non-conclusory factual allegations, and then

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determines whether these allegations, taken as true and

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construed in the light most favorable to the plaintiff,

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“plausibly give rise to an entitlement to relief.”

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U.S. at ___, 129 S. Ct. at 1949–50.

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Iqbal, 556

“Plausibility,” as it is used in Twombly and Iqbal, does

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not refer to the likelihood that a pleader will succeed in

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proving the allegations. Instead, it refers to whether the

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non-conclusory factual allegations, when assumed to be true,

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“allow[ ] the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”

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U.S. at ___, 129 S. Ct. at 1949.

Iqbal, 556

“The plausibility standard is

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Citing Twombly, 556 U.S. at 555-56, Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“[w]hat Rule 12(b)(6) does not countenance
are dismissals based on a judge’s disbelief of a complaint’s
factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“it may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test” under
Rule 12(b)(6)).
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not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.”

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Id. (quoting Twombly, 550 U.S. at 557).10

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to show a right to relief either by lacking a cognizable legal

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theory or by lacking sufficient facts alleged under a cognizable

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legal theory.

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696, 699 (9th Cir. 1990).

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III. ANALYSIS - DUE PROCESS CLAIM

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A.

A complaint may fail

Balistreri v. Pacifica Police Dep't, 901 F.2d

Due Process Standards under Section 1983.

“A procedural due process claim has two distinct elements:

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(1) a deprivation of a constitutionally protected liberty or

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property interest, and (2) a denial of adequate procedural

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protections.”

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School Dist., 149 F.3d 971, 982 (9th Cir. 1998), cert. denied,

Brewster v. Board of Educ. of Lynwood Unified

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Twombly imposed an apparently new “plausibility” gloss on
the previously well-known Rule 8(a) standard, and retired the
long-established “no set of facts” standard of Conley v. Gibson,
355 U.S. 41 (1957), although it did not overrule that case
outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th
Cir. 2009) (the Twombly Court “cautioned that it was not outright
overruling Conley ...,” although it was retiring the “no set of
facts” language from Conley). The Ninth Circuit has acknowledged
the difficulty of applying the resulting standard, given the
“perplexing” mix of standards the Supreme Court has applied in
recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th
Cir. 2011) (comparing the Court's application of the “original,
more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per
curiam), with the seemingly “higher pleading standard” in Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and
Iqbal), rehearing en banc denied, ___ F.3d ___, 2011 WL 4582500
(October 5, 2011). See also Cook v. Brewer, 637 F.3d 1002, 1004
(9th Cir. 2011) (applying the “no set of facts” standard to a
Section 1983 case).
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526 U.S. 1018 (1999).11

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1.

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Summary of the arguments

Defendant asserts that the procedural Due Process claim is

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predicated solely upon plaintiffs’ allegations that their Skelly

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hearing was flawed.

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Skelly hearing process was “cured” by the arbitration and board

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review process that followed, citing Walker v. City of Berkeley,

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951 F.2d 182 (9th Cir. 1991).

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subsequent process did not “cure” the violation because it did

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Defendant argues that any defect in the

Plaintiffs respond that

not compensate them for lost overtime opportunities.
2.

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Resolution of the Due Process Claim

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“[T]he Due Process Clause provides that certain substantive

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rights - life, liberty, and property - cannot be deprived except

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pursuant to constitutionally adequate procedures.”

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Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

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“property” interests protected by the Due Process Clause “‘are

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created and their dimensions are defined by existing rules or

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understandings that stem from an independent source such as

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state law ....’”

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Regents v. Roth, 408 U.S.564, 577 (1972).

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Cleveland
The

Id., 470 U.S. at 538, quoting, Board of

The undisputed materials submitted on this summary judgment

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“To bring a § 1983 claim against a local government entity,
a plaintiff must plead that a municipality's policy or custom
caused a violation of the plaintiff's constitutional rights.”
Association for Los Angeles Deputy Sheriffs v. County of Los
Angeles, 2011 WL 3524129 at 3 (9th Cir. 2011), citing Monell v.
Dep't of Soc. Servs., 436 U.S. 658 (1978). Defendant does not
dispute that the Department’s conduct arose out of its policy or
custom.
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motion show that both plaintiffs were California public

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employees when they filed this lawsuit.

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plaintiffs therefore had a property interest in continued

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employment.

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(1975).

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paid administrative leave.

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deprived of their protected interest on October 1, 2009, when

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the Department terminated Maranville and demoted Merino.12

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Under California law,

Skelly v. State Personnel Bd., 15 Cal.3d 194

Both plaintiffs were relieved of duty and placed on
Ultimately, both parties were

The court next turns to what process was due the plaintiffs

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in connection with the deprivation of this property interest.

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It is well settled that “the root requirement of the

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Due Process Clause [is] that an individual be given an

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opportunity for a hearing before he is deprived of any

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significant property interest.”

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pre-termination hearing need not be elaborate, “some

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kind of hearing” must be afforded the employee prior

Although the

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Defendant does not deny that plaintiffs were thereby
deprived of their constitutionally protected interest in continued
employment with the state.
The court notes, however, that
materials both sides have submitted tend to create doubt about
whether any constitutional deprivation occurred here in the first
place. It is not clear that plaintiffs really ever lost their jobs
(notwithstanding letters saying that they had), and they never lost
income (other than lost overtime opportunities), since they were
on full paid administrative leave up until the decision to
discipline them was rescinded by the Department.
Indeed, the
materials show that plaintiffs’ hourly pay rate was increased
during their administrative leave to ensure that they would receive
the same base base despite the loss in hours from 53 (or 56) to 40.
On the other hand, it is undisputed that both plaintiffs lost
overtime opportunities that they appear to have taken full
advantage of prior to their administrative leave, and which, they
say, they and their families had come to depend upon.
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to termination.

The essential requirements of this

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pre-termination process are notice and an opportunity

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to respond.

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Clements v. Airport Authority, 69 F.3d 321, 331-32 (9th

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Cir. 1995) (citations omitted).

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plaintiffs received the required pre-deprivation hearing,

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namely, the Skelly hearing presided over by Fire Chief Veerkamp.

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It is undisputed that plaintiffs received notice of the hearing

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and had an opportunity to respond to the charges against them.

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Indeed, it is undisputed that both plaintiffs were represented

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by counsel at that hearing.

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plaintiffs appealed the decisions of the Skelly hearing, and

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were provided a separate post-termination arbitration

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proceeding.

It is undisputed that

Finally, it is undisputed that both

Maranville Decl. ¶ 12; Merino Decl. ¶ 12.

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Plaintiffs assert that their due process rights were

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violated because the pre-termination hearing was presided over

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by Veerkamp, who, they say, was biased against them.

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Ninth Circuit, however, the pre-termination hearing need not be

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conducted by an impartial hearing officer, so long the post-

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termination proceeding is conducted by an impartial

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decisionmaker:

In the

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A pre-termination hearing involves only notice and an

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opportunity to respond, and does not constitute an

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"adjudication."

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pre-termination hearing need not be impartial, so long

Thus, the decisionmaker in a

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as an impartial decisionmaker is provided at the

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post-termination hearing.

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Clements v. Airport Authority of Washoe County, 69 F.3d 321,

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333 n.15 (9th Cir. 1995), quoting Walker v. City of Berkeley,

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951 F.3d 182, 184 (9th Cir. 1991); Trevino v. Lassen Mun.

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Utility Dist., 2009 WL 385792 at 9 (E.D. Cal. February 13, 2009)

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(Karlton, J.) (Clements clarified “that ‘the decisionmaker in a

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pre-termination hearing need not be impartial, so long as an

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impartial decisionmaker is provided at the post-termination

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hearing’”).13
Plaintiffs have not asserted that the post-deprivation

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hearing officer – the arbitrator – was biased or otherwise not

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impartial.

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the summary judgment motion indicate that the arbitrator was

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selected jointly by plaintiffs’ union and the defendant pursuant

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to the Memorandum of Understanding between them.

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of any other indication – from either party – that the

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arbitrator was biased or unbiased, the court draws the

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reasonable inference that as a result of this joint selection

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process, an impartial arbitrator was used in the post-

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termination hearing.

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drawing an inference in favor of plaintiffs – for example, that

Indeed, the materials submitted in connection with

In the absence

In this case, there is no basis for

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It is key to the Ninth Circuit rule that the pretermination hearing is not an “adjudication.” The court does not
find that a biased adjudication can be cured with a subsequent
unbiased adjudication.
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the post-termination proceeding was biased also – because they

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have presented no evidence to support such an inference.

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Accordingly, the undisputed evidence shows that plaintiffs

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received all the process they were due in connection with the

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deprivation of their protected interest in continued employment

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– (i) a pre-deprivation hearing with notice and an opportunity

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to be heard; and (ii) a post-deprivation hearing by an impartial

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decision-maker.

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Plaintiffs nevertheless argue that the original hearing

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bias was not “cured,” because they were not compensated for lost

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overtime opportunities.

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that plaintiffs received all the process that was due, that is

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the end of that claim.

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for the proposition that the court may award them damages for a

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Due Process claim in the absence of a Due Process violation.14

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B.

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Plaintiffs have identified no authority

First Amendment
1.

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However, once the court has determined

The Allegations of the Complaint

Plaintiff alleges that the adverse employment actions were

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taken as retaliation against them, after they attempted “to

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report what they perceived as abuses of government funds as well

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as safety concerns.”

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occurred when plaintiffs allegedly discovered that Veerkamp was

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submitting false financial documents to the Department’s Board

Complaint ¶ 50.

The speech at issue

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The court does not rule on whether plaintiffs can seek
retroactive overtime opportunities through some other means, such
as their First Amendment claim.

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of Directors.15

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(i) arranged to have “a more substantiated report” submitted to

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a Board Director, Complaint ¶ 16(a); and (ii) “alerted a second

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Board Director” of Veerkamp’s alleged shenanigans.

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16(b).

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Complaint ¶ 16(a).

Plaintiffs then:

Complaint ¶

Defendant correctly points out that plaintiffs allege that

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they made these reports “in their capacity as Captains of the

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Department.”

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upon this allegation, defendant argues that plaintiffs are

Complaint ¶ 50; Opposition at 13.

Based solely

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therefore barred by Garcetti v. Ceballos, 547 U.S. 410 (2006),

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since their speech activities were undertaken in their official

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capacities as public employees.

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Opposition at 13.

It is true that plaintiffs inartfully state under their

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“Fourth Cause of Action,” that they “utilized their first

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amendment rights” “in their capacity as Captains of the

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Department, and members of the finance committee.”

17

¶ 50.

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that plaintiffs were not speaking in their official capacities

19

after all, at least not in the Garcetti sense.

However, in the fact section of the complaint, it emerges

2.

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21

Complaint

Discussion

The question therefore, is whether these two communications

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are protected by the First Amendment or not.

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////

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25
26

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The court takes the allegations of the complaint as true
solely for purposes of this dismissal motion. The court takes no
position on the actual truth or falsity of the allegations.
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1

The First Amendment drastically limits government's

2

ability to punish or prohibit speech when government

3

acts as a sovereign.

4

government's actions as a sovereign, however, are

5

distinct from government's actions “as proprietor,”

6

with the latter including management of its own

7

employees.

The Supreme Court has held that

8

Webb v. County of Trinity, 734 F. Supp.2d 1018, 1027 (E.D.

9

Cal. 2010) (Karlton, J.) (citations omitted).

Even in its

10

proprietary role however, “‘the state may not abuse its position

11

as employer to stifle ‘the First Amendment rights [its

12

employees] would otherwise enjoy as citizens to comment on

13

matters of public interest.’”

14

632 F.3d 1091, 1102-03 (9th Cir. 2011) (quoting Eng v. Cooley,

15

552 F.3d 1062, 1070 (9th Cir. 2009), cert. denied, 558 U.S. ___

16

(2010)).

17

Clairmont v. Sound Mental Health,

Here, plaintiffs have alleged that they are public

18

employees.

Accordingly, under Garcetti, plaintiffs’ claim that

19

they suffered an adverse employment action in retaliation for

20

their First Amendment speech will fail, if their speech was

21

“made pursuant to [their] duties as” Captains of the Department.

22

See Garcetti, 547 U.S. at 421-22 (“The controlling factor in

23

Ceballos' case is that his expressions were made pursuant to his

24

duties as a calendar deputy”).

25

Circuit, the question is whether plaintiffs spoke as “private

26

////

As formulated in the Ninth

17

1

citizen[s] or public employee[s].”

2

1102-03.16

3

Clairmont, 632 F.2d at

“[F]or purposes of the official duties test ... Garcetti

4

and the Ninth Circuit cases interpreting it have looked to

5

whether the employee had a duty to make the speech in question.”

6

Webb, 734 F. Supp.2d at 1029.

7

complaint to indicate that plaintiffs had a duty to submit an

8

additional financial report to the Board Director, or to alert

9

another Board Director of the asserted financial shenanigans of

There is no allegation in the

10

the Fire Chief, their superior officer.

11

Dismiss and its Reply do not direct the court to any cognizable

12

source for such a duty, and indeed, defendant makes no mention

13

of the issue at all.

14

inartful pleading of the complaint.

15

Defendant’s Motion To

Instead, defendant relies entirely on the

Because there is no basis for the court to conclude that

16

plaintiffs had a duty to engage in the speech, the motion to

17

dismiss – to the degree it is based upon the assertion that

18

plaintiffs spoke as public employees – will be denied.

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16

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21
22
23
24
25
26

In fact, there are five factors that must be considered:
(1) whether the plaintiff spoke on a matter of public concern; (2)
whether the plaintiff spoke as a private citizen or public
employee; (3) whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse employment action;
(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. Anthoine v. North Central
Counties Consortium, 605 F.3d 740, 748 (9th Cir. 2010), citing Eng
v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009); Webb v. County of
Trinity, 734 F. Supp.2d 1018, 1027-28 (E.D. Cal. 2010) (Karlton,
J.). However, the Garcetti factor is the only one challenged by
defendant in this motion.
18

1

IV.

CONCLUSION

2

For the reasons set forth above:

3

1.

4
5
6
7

Defendant’s converted motion for summary judgment on

the procedural Due Process claim is GRANTED; and
2.

Defendant’s Motion To Dismiss the First Amendment

retaliation claim is DENIED.
3.

At the hearing on this motion, plaintiffs indicated

8

that they would like to amend their First Amendment claim to

9

clarify that they were not speaking in their official

10

capacities.

Given the court’s ruling, such an amendment does

11

not appear to be necessary.

12

to amend their First Amendment claim, they may do so no later

13

than 14 days from the date of this order.

14

IT IS SO ORDERED.

15

DATED:

Nevertheless, if plaintiffs choose

October 26, 2011.

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