Heuer v. City and County of San Francisco et al

Filing 31

ORDER by Judge Charles R. Breyer granting 24 Motion for Summary Judgment. (crblc1, COURT STAFF) (Filed on 11/14/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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v.
CITY AND COUNTY OF SAN
FRANCISCO, ET AL.,
Defendants.

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ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

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No. C 09-05331 CRB

KEVIN HEUER,

/

Plaintiff Kevin Heuer, a Sergeant in the San Francisco Sheriff’s Department, has sued
the City and County of San Francisco and Sheriff Michael Hennessey (collectively,
“Defendants”) because he was passed over for a promotion to the rank of Lieutenant in 2008.
Plaintiff alleges that Sheriff Hennessey failed to promote him, not based upon merit, but as
retaliation for Plaintiff’s political activity, union activity, and protected speech. Defendants
have articulated a legitimate, nondiscriminatory reason for not promoting Plaintiff, and
Plaintiff has not demonstrated that Defendants’ reason is a pretext. Accordingly, as
explained below, the Court GRANTS Defendants’ Motion for Summary Judgment (dkt. 24).
I.

BACKGROUND
1.

Early Employment and Union History

Plaintiff was hired as a Deputy Sheriff with the San Francisco Sheriff’s Department in

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August 1999. Hennessey Decl. ¶ 2. Plaintiff joined his union, the San Francisco Deputy

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Sheriff’s Association (“SFDSA” or “DSA”), and became shop steward in 2000. Heuer

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Depo. at 25:17. In 2002 or 2003, he became Parliamentarian for the DSA. Id. at 25:15-19.1

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In 2005, Plaintiff passed both segments of the Senior Deputy civil service examination, and

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Sheriff Hennessey promoted him to that rank. Hennessey Decl. ¶ 2. Sheriff Hennessey

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again promoted him, to the position of Sergeant, in July 2006. Id. ¶ 3.

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In his capacity as Parliamentarian for the DSA, Plaintiff was attending an October

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2007 DSA meeting when Chief Arata2 came in and accused the union’s board members,

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including Plaintiff, of falsely denying having received documents relating to lawsuits

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For the Northern District of California

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between him and DSA. Heuer Depo. at 30:17-32:11; Hennessey Decl. Ex. C. Plaintiff

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recounts that he said, “‘Chief Arata, as the Parliamentarian, I have neither physical office,

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mail box or address at this facility. Do you include me, personally, when you call the Board

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liars?’ To which he responded in the affirmative.” Heuer Depo. at 32:18-22.

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Plaintiff wrote a letter to Sheriff Hennessey, relating the incident and expressing his

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desire “to file a formal complaint.” See Hennessey Decl. Ex. C. The Letter states in part:

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“On Wednesday, October 10, 2007, during the [SFDSA] general body meeting, Chief

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Deputy Arata engaged in an unprofessional attack on my character, casting aspersion on my

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reputation when he accused me of being a liar. His slanderous accusation was delivered

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aloud, with repetition, to me personally. . . .” Id. The letter characterized the “slur” as

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“character assassination” and stated “I remain highly offended by this slur” and “this slur is

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an attack on my honesty.” Id. It described both the “subsequent damage to my reputation”

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and “the immediate health damage caused to me.” Id. It then listed specific department

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policies Plaintiff believed that Arata’s conduct violated, and requested an investigation. Id.

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In 2010, the SFDSA restructured its membership so that deputies with the rank of Sergeant and
above were no longer members of the DSA, but a separate MSA, or Managers and Supervisors
Association. Opp’n (dkt. 25) at 1 n.1.
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This was prior to the split of SFDSA, and Chief Arata was a member of the union. See Heuer
Decl. at 34:16-23.
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Sheriff Hennessey responded to Plaintiff’s letter by listing numerous facts supporting

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his conclusion that “you were both off-duty and off-site” and that the “incident involved

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Union business, not SFSD operation agendas.” Hennessey Decl. Ex. D. The letter

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concluded, “this matter is exclusively within the confines of Union business” and “[a]s such,

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it is not appropriate for me to interfere with the official business of the bargaining unit.” Id.

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Plaintiff later testified that he agreed with Sheriff Hennessey that the incident involved Union

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business, and not the Sheriff Department operation agendas. Heuer Depo. at 40:15-19.

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Plaintiff did not have any discussion with Sheriff Hennessey about this matter after receiving

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his letter and believed that “this closed the door on it.” Id. at 40:24-41:1.

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For the Northern District of California

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2.

The Wong Campaign

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Sheriff Hennessey has held his position since 1980, and prevailed in eight consecutive

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elections. Hennessey Decl. ¶¶ 1, 22. Plaintiff opposed Sheriff Hennessey’s reelection in

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November 2007, when union President Dave Wong ran as a challenger. Heuer Depo. at 53:

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4-10. Plaintiff wrote and revised some of Wong’s campaign materials. Heuer Decl. ¶ 3;

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Wong Decl. ¶ 5. He also attended two events with Wong: an event at the Democratic Central

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Committee, at which Wong and Plaintiff sat on one side of the auditorium and Sheriff

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Hennessey sat on the other, and an event put on by the Harvey Milk Democratic Party, at

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which Wong and Plaintiff sat together in plain view of Sheriff Hennessey. Heuer Decl. ¶¶ 4-

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8. Wong Decl. ¶¶ 6-10. At both events, Sheriff Hennessey acknowledged Plaintiff’s

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presence.3 Heuer Decl. ¶¶ 7, 9; Wong Decl. ¶¶ 9, 11.

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Plaintiff never had any discussion with Sheriff Hennessey about the written materials

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Plaintiff drafted for Wong, or any of the underlying substantive issues, but believes that “it

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would be obvious to the Sheriff what was written by [Wong] and what was written by

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[Plaintiff].” Heuer Depo. at 56:1-22. For his part, Sheriff Hennessey states in his

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declaration: “I am aware that Sergeant Heuer worked with Deputy Wong on his campaign,

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but have no real knowledge of what that involved.” Hennessey Decl. ¶ 22.

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Wong states that “[t]he Sheriff reacted with visible surprise when he saw [Plaintiff] with
[Wong].” Wong Decl. ¶ 11. This statement does not square well with Plaintiff’s other allegations that
Sheriff Hennessey knew long before that point that Plaintiff was working on the Wong campaign.
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Dave Wong received a small fraction of the vote, and Sheriff Hennessey was
reelected. Hennessey Decl. ¶ 22.

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3.

Domestic Problems

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The backdrop to Plaintiff’s work for the Sheriff’s Department, with the union, and on

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Wong’s campaign at this time is an extremely volatile domestic life. Strangely, Plaintiff

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hardly mentions this situation at all in his Opposition brief, referencing just briefly Sheriff

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Hennessey’s “concerns about [Plaintiff] which arose out of [Plaintiff’s] relationship with his

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partner.” Opp’n at 5. Plaintiff’s relationship with his partner was no small matter.

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Sheriff Hennessey states in his declaration that “[a]t various times, the Department has

United States District Court
For the Northern District of California

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learned – either through Sergeant Heuer, his domestic partner, other Department members or

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third parties – of Sergeant Heuer’s involvement in violent or potentially violent disputes with

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his domestic partner, Todd Leichliter.” Hennessey Decl. ¶ 6. The relationship yielded a

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number of serious domestic disputes, including one in June 2008, just before Plaintiff’s

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promotional interview with Sheriff Hennessey. Heuer Depo. at 70:6-72: 16. On June 26,

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2008, the Sheriff’s office issued a Formal Notice of Investigation relating to allegations that

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Plaintiff called Leichliter and demanded that he return home, prompting Leichliter to tell his

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therapist that he was scared and afraid to file a report. See Hecimovich Decl. Ex. F.

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Leichliter further told his therapist that Plaintiff had threatened him with a gun. Heuer Depo.

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at 70:10-12. Plaintiff testified later that on the occasion when he demanded that Leichliter

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return home, he had learned that Leichliter had stolen money from him. Id. at 74:8-75:23.

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Although Leichliter apparently recanted the part of his account relating to the gun, in

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doing so he explained that he was using cocaine. Id. at 70:18-22. Plaintiff also testified that

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he put Leichliter into a drug treatment center in Sonoma, believed that it had worked, but that

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Leichliter subsequently began using methamphetamine. Id. at 71:5-22. Plaintiff stated that

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he put Leichliter in two treatment programs before realizing, “[t]he treatment is not making

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headway.” Id. at 81:8-12.

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The relationship was also violent. Plaintiff testified that “When Todd would, I later
realized, be under the influence, he would be violent and attack me.” Id. at 76:1-2. He
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described having a member of the Sheriff’s Department peer support team come to his

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apartment to speak with Leichliter, and telling Leichliter that he had to leave. Id, at 76:3-9.

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Leichliter left, but, following participation in an outpatient program, Plaintiff allowed

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Leichliter to move back in with him. Id. at 76:10-21. Over the course of the relationship,

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Leichliter “threatened [Plaintiff] on many occasions,” “made allegations that [Plaintiff]

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threatened him,” and “made a lot of threats about making complaints” to the Sheriff’s

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Department. Id. at 77:12-22. Plaintiff also stated that “There were instances where Todd –

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there was one instance where Todd called the police, and then told them, I’m making it up, or

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whatever he said to them.” Id. at 80:21-24.

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For the Northern District of California

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Plaintiff himself raised the issue of the June 2008 incident in his promotional

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interview. Id. at 72:17-20.4 Sheriff Hennessey states in his declaration that, in the interview:

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14. . . . we discussed his ongoing problems with Mr. Leichliter and their effect on
Sergeant Heuer’s role in the Department as he sought to take on managerial
responsibilities. I was aware of some of the facts surrounding the June 2008 incident.
. . and additionally knew that Undersheriff Dempsey had met with Leichliter to
discuss his allegations. . . . It was clear that Mr. Leichliter had been living with
Sergeant Heuer while actively procuring and using cocaine and/or methamphetamines.
15. During the promotional interview, Sergeant Heuer acknowledged the significance
of his problems with Leichliter to his effectiveness as a leader in the Department. He
acknowledged that, in addition to the most recent episode of mental and emotional
problems, Leichliter had a history of drug abuse, and that Sergeant Heuer had
misjudged whether the drug use had stopped.

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Hennessey Decl. ¶¶ 14-15. Plaintiff does not dispute this account.

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4.

Non-Promotion

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The promotion Plaintiff sought in this case was to the position of Lieutenant. The

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Sheriff’s Department maintains a written job description for the position of Sheriff’s

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Lieutenant, and Sheriff Hennessey maintains a document entitled What I Expect of

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Supervisors, that lists attributes he finds important, including “Leading by Example.”

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See Hennessey Decl. Exs. A, B.

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Also in that interview, Plaintiff spoke of his qualifications for the promotion, including his
three years as a background investigator, that he had experience working as an Acting Watch
Commander, as well as having performed a variety of assignments and a number of auxiliary duties.
Id. at 15:11-23:4.
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Based on the civil service exam, Plaintiff was the fourteenth candidate from the top,

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one of three candidates ranked ninth. Hecimovich Decl. Ex. J. On August 22, 2008, Sheriff

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Hennessey promoted seventeenth candidates for promotion. Hennesey Decl. ¶ 9. Id. The

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lowest rank of candidates promoted was fifteenth. Id. Plaintiff was passed over, along with

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three other candidates (ranked seventh, thirteenth, and fifteenth). Id. ¶ 11. Sheriff

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Hennessey asserts that to his knowledge, none of the other passed-over candidates held an

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office in the union, accused any officer of misconduct, or participated in any election against

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the Sheriff. Id.

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Sheriff Hennessey states in his declaration that “I concluded that [Plaintiff] was less

United States District Court
For the Northern District of California

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qualified than one or more of the competing candidates. This determination was based on the

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relative qualifications of the other deputies being considered, on Sergeant Heuer’s poor

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judgment in dealing with issues relating to Mr. Leichliter as those issues impacted his role

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with the Department, and on prior instances of poor judgment as a supervisor, including

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ongoing issues of anger management.” Id. ¶ 10.

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Sheriff Hennessey further declares that of the deputies promoted from positions below

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Plaintiff, none had received discipline of any sort, and only one, “a sergeant passed over in

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August 2008 but subsequently promoted based on improved performance, was the subject of

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a disciplinary action, the allegations of which were not sustained.” Id. ¶ 12. Plaintiff

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disagrees, asserting, “[T]hrough my work at the union and otherwise, I am aware that others

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who were promoted on the list were the subject of investigations within the Department.”

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Heuer Decl. ¶ 20.5 Sheriff Hennessey asserts without contradiction that none had

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demonstrated anger management problems, violent behavior, or conduct that might bring

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discredit to the Sheriff’s Department. Hennessey Decl. ¶ 12. Sheriff Hennessey adds that

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“During his tenure with the Department, Sergeant Heuer has been involved in a number of

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disputes with other members of the Department. While none of these incidents resulted in

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Defendants object to this paragraph of Plaintiff’s deposition, asserting that it lacks foundation
and is hearsay. Reply at 2 n.1. The Court will accept Plaintiff’s version – that others were investigated,
if not disciplined – as he is the non-moving party.
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formal discipline, one common theme I observed was Sergeant Heuer’s difficulty controlling

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his temper.” Hennessey Decl. ¶ 5.6

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In August 2008, following his non-promotion, Plaintiff initiated a meeting with

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Sheriff Hennessey. Hennessey Decl. ¶ 16. Sheriff Hennessey did not share his reasons for

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not promoting Plaintiff, but told him simply that “he was not the best choice among the

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candidates he was stacked up against.” Id. Sheriff Hennessey alleges that Plaintiff “became

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visibly upset, yelled at me and stormed out of the office.” Id. Plaintiff denies yelling at this

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meeting, see Heuer Decl. ¶ 22, and the Court accepts Plaintiff’s account.

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The August 2008 eligible list was extended to August 2011, and Sheriff Hennessey

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For the Northern District of California

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selected other candidates over Plaintiff. Hennessey Decl. ¶ 17. Sheriff Hennessey stated that

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in the interim, he learned of additional information about Plaintiff’s poor handling of

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conflicts with Leichliter: “I was apprised that [Plaintiff] accused Leichliter of felony assault

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on his person, had to drive to the Rio Vista Police Department for emergency medical

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treatment following an assault, and that Leichliter was booked and charged with five

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felonies.” Hennessey Decl. ¶ 17. Plaintiff described this incident, which took place in May

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2010, as Leichliter acting erratically, not sleeping, and eventually attacking him, opening a

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six inch gash on his head. Heuer Depo. at 79:19-80:5. Plaintiff insisted, “the most I do is

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defend myself.” Id. at 79:23-24. Having been beaten severely by Leichliter, and because

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Leichliter had destroyed the phones in the house, Plaintiff drove to the Rio Vista Police

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Department to file a complaint. Id. at 80:6-10.

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Sheriff Hennessey stated about the incident: “I was told that [Plaintiff] afterward

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professed that he had resolved, once and for all, that Leichliter was a negative force in his life

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and that he would not allow him to return. More recently, during the final rounds of

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promotional interviews, [Plaintiff] informed Undersheriff Dempsey that Leichliter had been

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released from a drug clinic and moved back in with [Plaintiff].” Hennessey Decl. ¶ 17.

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The declaration filed by Defendants cuts off in the middle of paragraph 5, apparently omitting
mention of Sheriff Hennessey suggesting that Plaintiff attend anger management classes. Compare Mot.
at 3 (citing Hennessey Decl. ¶ 5 as mentioning this issue) with Hennessey Decl. ¶ 5 (ending midsentence).
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Plaintiff brought suit in state court in October 2009, alleging violation of (1) the

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Public Safety Officers’ Procedural Bill of Rights by Prohibiting the Lawful Engagement in

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Political Activity, (2) the Meyers-Milias-Brown Act and Interference with Lawful Union

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Activity by Denying Plaintiff a Promotion for the Exercise of Lawful Actions as a

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Representative of an Employee Bargaining Unit, and (3) Plaintiff’s First Amendment and

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Fourteenth Amendment Right to Free Speech. See generally Compl. (dkt. 1 Ex. B).

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Defendants removed the case to this Court in November 2009, and now move for summary

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judgment. See dkts.1, 24.

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II.

Summary judgment is proper when “the movant shows that there is no genuine

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United States District Court
For the Northern District of California

LEGAL STANDARD

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dispute as to any material fact and the movant is entitled to a judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). An issue is “genuine” only if there is a sufficient evidentiary basis on

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which a reasonable fact finder could find for the nonmoving party, and a dispute is

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“material” only if it could affect the outcome of the suit under governing law. See Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary

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judgment procedure “is to isolate and dispose of factually unsupported claims.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “Where the record taken as a whole could not

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lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for

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trial.’” Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

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III.

DISCUSSION
Defendants move for summary judgment on Plaintiff’s three causes of action: (1)

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retaliation based on political activity, (2) retaliation based on union activity; and (3)

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retaliation based on protected speech. See generally Mot. (dkt. 24).

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1.

Retaliation Based on Political Activity

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Plaintiff’s first cause of action, for retaliation based on political activity, is brought

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under the Public Safety Officers’ Procedural Bill of Rights.7 Compl. (dkt. 1 Ex. B at 5).

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Plaintiff alleges that Sheriff Hennessey did not promote him to Lieutenant “because of his

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political activities in openly and actively supporting Defendant Hennessey’s competitor in

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the race for San Francisco Sheriff.” Id. ¶ 22. The parties agreed at the motion hearing that

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this claim should be analyzed like a Title VII claim.
In order to prevail on a Title VII disparate treatment claim, a plaintiff must first

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establish a prima facie case of discrimination. In particular, a plaintiff must show that (1) he

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For the Northern District of California

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belongs to a protected class, (2) he was performing competently, (3) he was subjected to an

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adverse employment action, and (4) he was similarly situated to individuals outside the

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protected class who were treated more favorably. See Aragon v. Republic Silver State

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Disposal Co., 292 F.3d 654, 658 (9th Cir. 2002). If a plaintiff succeeds in establishing a

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prima facie case, the burden shifts to the defendant to articulate a legitimate,

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nondiscriminatory reason for the adverse employment action. Id. (citing McDonnell Douglas

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Corp. v. Green, 411 U.S. 792, 802 (1973)). If the defendant does so, the plaintiff must

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demonstrate that the defendant’s articulated reason is a pretext for unlawful discrimination

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“by either [1] directly persuading the court that a discriminatory reason more likely

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motivated the employer or [2] indirectly by showing that the employer’s proffered

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explanation is unworthy of credence.” Id. at 658-59 (internal quotation marks and citations

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omitted). To establish pretext, “very little” direct evidence of discriminatory motive is

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required, but if circumstantial evidence is offered, such evidence has to be “specific” and

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“substantial” to create a triable issue. Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1222

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(9th Cir. 1998); Little v. Windermere Relocation, Inc., 301 F.3d 958, 971 (9th Cir. 2002).

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Here, Defendants do not dispute that (or even discuss whether) Plaintiff has

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established a prima facie case of discrimination. Instead they argue that they have articulated

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Gov’t Code § 3302(a) provides, “Except as otherwise provided by law, or whenever on duty
or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to
engage, in political activity.”
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a legitimate, nondiscriminatory reason for not promoting him, and that Plaintiff has no

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evidence of pretext. Mot. at 2. The Court agrees.

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Sheriff Hennessey’s articulated reason for not promoting Plaintiff is two-fold:

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“[Plaintiff’s] poor judgment in dealing with issues relating to Mr. Leichliter as those issues

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impacted his role with the Department,” as well as “prior instances of poor judgment as a

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supervisor, including ongoing issues of anger management.” Hennessey Decl. ¶ 10. The

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reason relating to anger management is not substantiated by the evidence, beyond Sheriff

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Hennessey’s general assertion that he “observed . . . [Plaintiff’s] difficulty controlling his

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temper.” Id. ¶ 5; see also footnote six herein. In contrast to that statement is evidence that

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For the Northern District of California

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Plaintiff received “exceeds expectations” reviews on his two evaluations prior to the

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promotional decision; his 2009 evaluation even states that he “remains calm during the most

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extreme situations.” Cullinane-Smith Decl. Ex. 4 at 5 of 59. The reason relating to Mr.

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Leichliter finds much more support in the record, however, and appears both legitimate and

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nondiscriminatory: the relationship was violent, chaotic, and reflected poorly on Plaintiff’s

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judgment8 and therefore on the Department.9 See Dible v. City of Chandler, 515 F.3d 918,

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928 (9th Cir. 2008) (“[plaintiff’s] activities, when known to the public, would be ‘detrimental

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to the mission and functions of the employer’ . . . . The public expects officers to behave with

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a high level of propriety, and, unsurprisingly, is outraged when they do not do so.”). Plaintiff

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even conceded in his deposition that the Department considers off-duty conduct if it is

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unbecoming to a Deputy, as well as off-duty conduct that reflects adversely on the

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Department. Heuer Depo. at 81:24-82:5. And he volunteered that friends of his in the

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The Court does not suggest that all victims of domestic abuse should be criticized for their
judgment in maintaining relationships with their abusers. The Court addresses only the evidence
relating to this Plaintiff, and notes that this Plaintiff does not defend his judgment in connection with
Mr. Leichliter, instead relying on having demonstrated pretext.
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Plaintiff’s argument that “Defendants admit that issues arising out of disciplinary investigations
are not considered during appointments,” Opp’n at 5 (citing Cullinane-Smith Decl. Ex. 6, Def’s
Response to Special Interrogatories, Set One, Response 5), is a red herring. Although the Department
does not consider “the fact that an investigation has occurred,” Plaintiff points to no evidence that the
Department may not consider the underlying charges, or any information relating to the subject matter
of an investigation, in order to assess a deputy’s qualifications. See Reply (dkt. 29) at 1.
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Department have suggested to him that “you know: Look, Kevin, it can’t be good for you

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that he, you know made these accusations.” Id. at 82:15-18.

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Because Defendants articulated a legitimate, nondiscriminatory reason for the

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nonpromotion, Plaintiff must demonstrate that Defendants’ articulated reason is a pretext for

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unlawful discrimination. Again, if circumstantial evidence is offered, such evidence must be

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both “specific” and “substantial.” Godwin, 150 F.3d at 1222. Plaintiff’s evidence of pretext

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on this claim consists of the following.

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First, Plaintiff points to his removal from the uniform committee as evidence that
Sheriff Hennessey resented his involvement in Wong’s campaign. Heuer Depo. at 56:23-3.

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For the Northern District of California

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This argument is weak, however, as Plaintiff himself testified of a legitimate reason for that

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removal: Undersheriff Dempsey came to the uniform committee to present a new patch

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designed by her domestic partner, Plaintiff was “very vocal in the rejection of that patch,” the

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union “became extremely active in fighting that,” and a “battle” ensued “that lasted several

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months.” Id. at 59:10-60:25. This is not substantial evidence of pretext.

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Second, Plaintiff described a frosty relationship between Sheriff Hennessey and Dave

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Wong after the election. See id. at 50:25-51:5 (“It got to the – things got so bad, [Hennessey]

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got to the point [that he] didn’t speak to the Union President,” Dave Wong). Wong also states

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that after the election but while he was still President of the SFDSA, Sheriff Hennessey

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avoided him and the relationship between the SFDSA and the Sheriff’s office “were nearly

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nonexistent.” Wong Decl. ¶ 16. But as Defendants point out, Mot. at 11, “personality

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conflicts at work” and “snubbing by supervisors and co-workers are not actionable.”

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Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation

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marks omitted); see also Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80 (1998)

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(Title VII is not “a general civility code for the American workplace”). Moreover, Plaintiff’s

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testimony was that the relationship strain with Wong started around the time of the lawsuit

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about female and male duty roles at jail, not because of Wong’s political activity. Heuer

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Depo. at 52:10-12. This is also not substantial evidence of pretext.

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Third, and most compelling, Plaintiff asserts that “[f]rom the time of his candidacy

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forward, Wong and his supporters were subject to increased investigations and discipline

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while those who supported the Sheriff were promoted (in one case, even after a felony

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arrest). Opp’n at 10. Although Plaintiff testified that he was not aware of Wong having been

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eligible for promotion, or of any personnel action having been taken against Wong, or of

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Wong being investigated for any charge of misconduct, see Heuer Depo. at 52:13-24,10

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Wong claims otherwise.11 Wong declares that he was never disciplined until he ran for

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Sheriff, but that following the election, he and his supporters were the subjects of “numerous

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investigations.” Wong Decl. ¶ 13. He claims that he knows “of at least three other

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For the Northern District of California

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[unnamed] Deputies who openly supported my campaign whom have been subjected to

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investigations or discipline which was harsher than that given to Deputies whom were not

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my supporters.” Id. ¶ 14. He gives the example of deputies who did not support Wong’s

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candidacy (although he provides no names) as having not been terminated “despite having

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beaten a prisoner until he required hospitalization.” Id. Wong further asserts that since the

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election he “was personally a target of the administration and ultimately was terminated from

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[his] position.” Id. ¶ 15. He says that he is “personally aware of at least [two] other deputies

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whom engaged in acts more severe than those [he has] been accused of and whom where not

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terminated.” Id.

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Defendants object to paragraphs 11 through 16 and 21 (that is, all of the paragraphs

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cited above) of Wong’s declaration as lacking foundation, containing hearsay and

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inadmissible opinion testimony. Reply at 2 n.1. Indeed, the Court cannot accept Wong’s

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characterization of what happened to his supporters, whom he claims were mistreated (or his

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characterization of those who did not support his candidacy, whom he claims received

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Plaintiff’s deposition was on September 2, 2010.

Wong’s declaration was prepared on September 22, 2011. Although the discrepancy between
Plaintiff’s account and Wong’s account might be partly attributable to the year that elapsed between the
two (and to Wong’s greater knowledge of his own employment), it does strike the Court as odd that
Plaintiff was unaware of any disciplinary action against Wong from the November 2007 election
through September 2010, and Wong asserts that following the election, he and his supporters were the
subjects of “numerous investigations.” See Wong Decl. ¶ 13.
12

1

favorable treatment) because he provides absolutely no foundation for, or details of, his

2

assertions. See, e.g., Cecala v. Newman, 532 F. Supp. 2d 1118, 1152 (D. Ariz. 2007)

3

(finding that testimony that lacked factual and temporal foundation and asserted

4

unsubstantiated conclusions rather than hard evidence did not create a triable issue); Express,

5

LLC v. Fetish Group, Inc., 464 F. Supp. 2d 965, 977 (C.D. Cal. 2006) (“Because Express’

6

only evidence on the issue is a declaration that lacks an adequate foundation and is not based

7

on the personal knowledge of the declarant, no triable issue of material fact has been

8

raised.”).
In addition, Defendants argue that Plaintiff “presents no evidence from which it could

10
United States District Court
For the Northern District of California

9

be inferred that Wong’s termination was wrongful or that other deputies engaged in improper

11

actions ‘more severe than those I have been accused of.” Reply at 9. That is true. The Court

12

has no information about Wong’s termination; Wong’s statement only supports an inference

13

that Wong believes that he was wrongly terminated. But Wong’s conclusory, subjective

14

belief that he was wrongly terminated cannot alone defeat the Defendants’ Motion. See, e.g.,

15

Marks v. U.S., 578 F.2d 261, 263 (9th Cir. 1978) (“Conclusory allegations unsupported by

16

factual data will not create a triable issue of fact.”); Gelin v. Geithner, No. 06-CV-10176,

17

2009 WL 804144, at *23 n.15 (S.D. N.Y. March 26, 2009) (collecting cases where courts

18

refused to find an inference of discrimination based on affidavits of other employees

19

consisting of conclusory allegations and personal opinions). Because Wong’s declaration as

20

it relates to Plaintiff presents only circumstantial evidence,12 it must be both “specific” and

21

“substantial” enough to establish pretext. See Godwin v. Hunt Wesson Inc., 150 F.3d 1217,

22

1222 (9th Cir. 1998). Although it presents some evidence that the otherwise legitimate

23

reason proffered – Heuer’s poor judgment relating to Leichliter – was pretext, it does not

24

provide substantial evidence of pretext.

25
26
27
28

12

See Coghlan v. American Seafoods Co., LLC, 413 F.3d 1090, 1095 (9th Cir. 2005) (describing
direct evidence in such cases as “clearly sexist, racist, or similarly discriminatory statements or actions
by the employer” and circumstantial evidence as evidence “that requires an additional inferential step
to demonstrate discrimination.”).
13

1
2

Accordingly, Plaintiff has failed to rebut Defendants’ legitimate, nondiscriminatory
reason, and the Court grants Defendants’ Motion as to the political activity claim.

3

2.

Retaliation Based on Union Activity

4

Plaintiff’s second cause of action, for retaliation based on union activity, is based on

5

the Meyers-Milias-Brown Act.13 See Compl. (dkt. 1 Ex. B at 5-6). Plaintiff alleges that he is

6

“a recognized representative of the SFDSA, an employee bargaining unit,” and that Sheriff

7

Hennessey “did not appoint plaintiff as a lieutenant because of plaintiff’s exercise of lawful

8

action as a recognized representative of SFDSA and because of plaintiff’s other lawful union

9

activities.” Compl. (dkt. 1 Ex. B) ¶¶ 28-29. As with his political retaliation claim, there is

United States District Court
For the Northern District of California

10

little authority interpreting the Act that Plaintiff alleges was violated, but see Ramirez v.

11

Eckert, No. B193324, 2007 WL 2258045, at *3 (Cal. App. 2007) (“The MMBA expressly

12

provides that a public employee shall not be denied a promotion for the exercise of a lawful

13

action as an employee bargaining unit representative.”), but the parties agreed at the motion

14

hearing that it should be analyzed like a Title VII claim.

15

Defendants argue again that Sheriff Hennessey based his promotion decision on

16

“legitimate performance criteria” and that Plaintiff has not demonstrated that such criteria

17

was a pretext. Mot. at 11. Plaintiff’s evidence of pretext relating to his union activity is

18

neither significant not substantial. Importantly, Sheriff Hennessey promoted Plaintiff twice

19

while he was in the union. See Hennessey Decl. ¶¶ 2, 3, 18. In Bradley v. Harcourt, Brace

20

& Co., 104 F.3d 267, 270-71 (9th Cir. 1996), the Ninth Circuit held that “where the same

21

actor is responsible for both the hiring and firing of a discrimination plaintiff, and both

22

actions occur within a short period of time, a strong inference arises that there was no

23

discriminatory action.” The “same actor” inference has also been applied where the same

24

actor had not hired but promoted the plaintiff. See Coghlan, 413 F.3d at 1096. Here, having

25

promoted Plaintiff twice while Plaintiff was in the union, it makes little sense that Sheriff

26

Hennessey would then decide not to promote Plaintiff because of his involvement in the

27
13

28

Gov’t Code § 3502.1 provides, “No public employee shall be subject to punitive action or
denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected,
appointed, or recognized representative of any employee bargaining unit.”
14

1

union. This is so even considering that Plaintiff had risen in the ranks at the union, as he was

2

already Parliamentarian when he was last promoted, in 2005. Heuer Depo. at 25:15-19;

3

Hennessey Decl. ¶ 2.14

4

In addition, Sheriff Hennessey states in his declaration that he has “promoted well

5

over a dozen deputies while they held leadership positions of one sort of another in the

6

DSA,” including two former DSA Presidents. Hennessey Decl. ¶ 19. Plaintiff also testified

7

that prior to being passed over for promotion, Sheriff Hennessey had never done anything to

8

him that he attributed to his involvement in the union. Heuer Depo. at 52:25-53:3. And he

9

testified that he does not currently hold a position with the MSA; when counsel asked him if

United States District Court
For the Northern District of California

10

that was “out of any concern that holding a position with them would have any negative

11

impact on [his employment],” he said no. Id. at 30:1-6.

12

To the extent that Plaintiff relies on his support of Wong’s candidacy in order to

13

substantiate his union retaliation claim, see Opp’n at 10, that allegation is not part of the

14

claim as pled in the Complaint, see Compl. ¶¶ 29-30, and is more properly the subject of his

15

political activity claim, discussed above.

16

Accordingly, the Court grants Defendants’ Motion as to the union activity claim.

17

3.

18

Finally, Plaintiff attributes his non-promotion to retaliation based on the exercise of

Retaliation Based on Protected Speech

19

free speech. See Compl. (dkt.1 Ex. B) ¶¶ 32-34. The Complaint frames this cause of action

20

as follows:

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23
24
25

VIOLATION OF PLAINTIFF’S FIRST AMENDMENT AND FOURTEENTH
AMENDMENT RIGHT TO FREE SPEECH
32.
Plaintiff re-alleges and incorporates paragraphs 1 through 31 as though set
forth at length in this cause of action.
33.
Plaintiff has a First Amendment right of free speech to comment on matters of
public concern. As such, plaintiff had the right to ask Chief Arata at a meeting
of the SFDSA, if Chief Arata was accusing plaintiff of lying about receiving
mailings related to a Federal Lawsuit. After Chief Arata answered that he was
accusing plaintiff of lying, plaintiff likewise had a First Amendment right to
make a formal complaint to Defendant Hennessey, asking for an investigation.

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27
14

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The same actor inference does not operate to bar the political retaliation claim, because
Plaintiff’s involvement in the Wong campaign took place after the 2005 promotion and before the
August 2008 failure to promote, and, according to Plaintiff, created animus. See Opp’n at 10 n. 5.
15

34.

1
2

Defendant Hennessey, acting in the course and scope of his employment as San
Francisco Sheriff, failed to promote plaintiff to the position of lieutenant
because of plaintiff’s exercise of his rights to free speech.

Id.
3

Defendants move for summary judgment on this cause of action, arguing chiefly that
4

Plaintiff’s letter did not constitute protected speech. Mot. at 12-13. They accurately assert
5

that “[t]o present a cognizable free speech retaliation claim, [Plaintiff] must show that he
6

engaged in speech involving a matter of public concern.” Mot. at 13 (citing Reddish v. City
7

of Tacoma, 123 F.3d 1216, 1223 (9th Cir. 1997)). And they point to the letter’s emphasis on
8

Plaintiff himself – for example, its references to “my character,” “my reputation,” “character
9

assassination,” and “an attack on my honesty” – as evidence that the letter does not involve a
United States District Court
For the Northern District of California

10

matter of public concern. See id.; Hennessey Decl. Ex. C.15 The Court agrees.

11

“When a public employee speaks not as a citizen upon matters of public concern, but
12

instead as an employee upon matters only of personal interest, absent the most unusual
13

circumstances, a federal court is not the appropriate forum in which to review the wisdom of
14

a personnel decision taken by a public agency allegedly in reaction to the employee’s
15

behavior.” Connick v. Myers, 461 U.S. 138, 147 (1983). “Whether an employee’s speech
16

addresses a matter of public concern must be determined by the content, form, and context of
17

a given statement, as revealed by the whole record.” Id. at 147-48. Where the speech at
18

issue “if released to the public, would convey no information at all other than the fact that a
19

single employee is upset with the status quo,” and only “reflect[s] one employee’s
20

dissatisfaction,” that speech is not a matter of public concern. Id. at 148. Further, “public
21

concern is something that is a subject of legitimate news interest; that is, a subject of general
22

interest and of value and concern to the public at the time of publication.” City of San Diego
23

v. Roe, 543 U.S. 77, 83-84 (2004).
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26
27
28

15

Importantly, Plaintiff argues that Defendants misconstrue his cause of action, and maintains
that it was not merely intended to challenge retaliation for his letter to Sheriff Hennessey about Arata,
but also retaliation for his political activity and union membership. Opp’n (dkt. 25) at 10-11. He asks
that, if the Court does not read the Complaint that way, he be permitted leave to amend. Id. at 11.
Despite the boilerplate language in the First Amendment cause of action incorporating the preceding
paragraphs, the Court does not find that that cause of action can fairly be read to involve any conduct
other than Plaintiff’s letter about Arata. See Hennessey Decl. Ex. C. Moreover, the Court concludes
that it is too late at this stage of the litigation to amend the Complaint.
16

Plaintiff’s letter did not address a topic of “general interest” and “value and concern to

1
2

the public.” See id. It focused not on any broader societal harm, but on damage Plaintiff’s

3

own reputation and health from being called a liar. See Hennessey Decl. Ex. C. It is

4

therefore a classic “internal workplace grievance,” as in Golt v. City of Los Angeles, 214

5

Fed. Appx. 708, 712 (9th Cir. 2006) (internal quotation marks omitted), where the speech at

6

issue “did not inform the public about any aspect of the [government body’s] functioning or

7

operation.” Although the letter referenced department policy that Arata’s speech allegedly

8

violated, see Hennessey Decl. Ex. C, the context of the letter demonstrates that it was not an

9

effort to inform the public of anything, but an effort to seek redress for a perceived personal

United States District Court
For the Northern District of California

10

affront. See also Heuer Depo. at 38:15-17 (“My aim was that I believed, and still believe,

11

that Chief Arata owed me an apology.”). That is not a matter of public concern. Nor is

12

Plaintiff’s attempt to characterize the letter as relating to Arata’s “slandering the entire Board

13

of the employee’s union” and relating to “the competency of public officials,” Opp’n at 12,

14

borne out by the content of the letter, see Hennessey Decl. Ex. C. Indeed, the main case

15

upon which Plaintiff relies, McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983),

16

holds that “speech [which] deals with individual personnel disputes and grievances . . . of no

17

relevance to the public’s evaluation of the performance of governmental agencies” is not a

18

matter of public concern.
The letter did not address a matter of public concern, and so the Court’s inquiry on

19
20

this cause of action need go no further. See Johnson v. Poway Utd. Sch. Dist., 658 F.3d 954,

21

961-62 (9th Cir. 2011) (internal quotation marks omitted) (Plaintiff’s failure to satisfy any of

22

sequential steps “necessarily concludes” court’s inquiry on this subject). The Court need not

23

engage in the Pickering balancing test. See id.; Dible, 515 F.3d at 926-27.16 Accordingly the

24

Court grants Defendants’ Motion as to Plaintiff’s First Amendment claim.

25

//

26

//

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28

16

A separate test applies where a plaintiff’s activities were unrelated to his public employment,
see id. at 927, but neither side argues that it applies here.
17

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3
4

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary

Judgment.
IT IS SO ORDERED.

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6

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: November 14, 2011

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United States District Court
For the Northern District of California

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