Dowell v. Contra Costa County et al

Filing 40

ORDER by Judge Joseph C. Spero granting in part and denying in part 31 Motion to Dismiss (jcslc2, COURT STAFF) (Filed on 5/20/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 EILEEN DOWELL, Plaintiff, 7 v. 8 9 COUNTY OF CONTRA COSTA, et al., Defendants. 10 Case No. 12-cv-5743-JCS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT. Dkt. No. 34 United States District Court Northern District of California 11 12 13 I. INTRODUCTION On March 23, 2013, Plaintiff Eileen Dowell (“Plaintiff”) filed her First Amended 14 Complaint against Contra Costa County, Contra Costa District Attorney Mark Peterson 15 (“Peterson”), and Contra Costa District Attorney’s Chief Inspector Paul Mulligan (“Mulligan”), 16 collectively “Defendants.” The First Amended Complaint contains five causes of action, 17 including a claim under 42 U.S.C. § 1983 against Peterson and Mulligan for the alleged 18 deprivation of Plaintiff’s First Amendment rights, two separate claims under California Labor 19 Code § 1102.5 (b) and (c) against all Defendants, as well as two state law tort claims for 20 negligence and negligent infliction of emotional distress. Defendants filed the instant Motion to 21 Dismiss (“Motion”), wherein they contend Plaintiff failed to comply with the Court’s previous 22 order describing the inadequacies in Plaintiff’s original complaint, and therefore, the First 23 Amended Complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil 24 Procedure for failure to state a claim. 25 The parties have consented to the undersigned magistrate judge pursuant to 28 U.S.C. § 26 636(c). The Court finds this Motion suitable for determination without oral argument pursuant to 27 Local Rule 7-1(b), and vacates the hearing scheduled for May 24, 2013, at 1:30 p.m. For the 28 reasons explained below, Defendants’ Motion is GRANTED in part and DENIED in part. 1 II. LEGAL STANDARD A complaint may be dismissed for failure to state a claim for which relief can be granted 2 3 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). “The 4 purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the 5 complaint.” N. Star. Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on 6 a motion to dismiss under Rule 12(b)(6), the Court takes “all allegations of material fact as true 7 and construe(s) them in the lights most favorable to the non-moving party.” Parks Sch. of Bus. v. 8 Symington, 51 F.3d 1480, 1484 (9th Cir. 1990). Generally, the plaintiff’s burden at the pleading stage is relatively light. Rule 8(a) requires 9 a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 11 United States District Court Northern District of California 10 Civ. P. 8(a)(2). The complaint need not contain “detailed factual allegations,” but must allege 12 facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 13 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). The factual 14 allegations must be definite enough to “raise a right to relief above the speculative level on the 15 assumption that all of the complaint’s allegations are true.” Twombly, 550 U.S. at 545. “[T]he 16 tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals 17 of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 18 663. 19 III. DISCUSSION1 20 There are five causes of action in Plaintiff’s First Amended Complaint, two of which the 21 Court addresses briefly. Having recognized that Plaintiff did not previously oppose dismissal of 22 her claims for negligence and negligent infliction of emotional distress when Defendants filed 23 their first motion to dismiss Plaintiff’s original complaint, the Court dismissed these claims with 24 prejudice in the previous Order. See Dkt. No. 25. Plaintiff includes these claims as the fourth and 25 fifth causes of action in her First Amendment Complaint, but nevertheless acknowledges that the 26 27 28 1 The Court described the relevant background facts in its previous Order Granting Defendants’ Motion to Dismiss and Dismissing Complaint with Leave to Amend (hereafter, “Order”), and hereby incorporates that Order. See Dkt. No. 25. 2 1 claims were included in error. See Opp. at 4, 8. Accordingly, Plaintiff’s fourth and fifth claims 2 against all Defendants for negligence and negligent infliction of emotional distress are again 3 dismissed with prejudice. 4 The remaining three causes of action arise under 42 U.S.C. § 1983 for Defendants’ alleged 5 violation of Plaintiff’s First Amendment rights, as well as California Labor Code § 1102.5 (b) and 6 (c). Defendants contend that Plaintiff has failed to state a claim for First Amendment retaliation 7 under § 1983 because Plaintiff failed to sufficiently allege facts showing that her protected speech 8 was made as a private citizen. Defendants also contend that Plaintiff has failed to state a claim 9 under both § 1983 and § 1102.5 because the First Amendment Complaint lacks any facts showing that Defendants were aware of Plaintiff’s protected speech. Further, Defendants argue that 11 United States District Court Northern District of California 10 Plaintiff does not allege other necessary factors showing that Defendants were substantially 12 motivated by the protected speech. The Court will address each argument in turn. 13 14 15 A. Allegations re Whether Speech was Made as a Private Citizen or Pursuant to Official Duties In Garcetti v. Ceballos, the Supreme Court held that “when public employees make 16 statements pursuant to their official duties, the employees are not speaking as citizens for First 17 Amendment purpose, and the Constitution does not insulate their communications from employer 18 discipline.” 547 U.S. 410, 421 (2006) (emphasis added). See also Eng v. Cooley, 552 F.3d 1062, 19 1070, 1071 (9th Cir. 2009) (“Statements are made in the speaker’s capacity as citizen if the 20 speaker ‘had no official duty’ to make the questioned statements, or if the speech was not the 21 product of ‘performing the tasks the employee was paid to perform.’”) (internal quotations 22 omitted). “While the question of the scope and content of a plaintiff’s job responsibilities is a 23 question of fact, the ultimate constitutional significance of the facts as found is a question of law.” 24 Eng, 552 F.3d at 1071 (quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 25 1126-27 (9th Cir. 2008)). 26 In the previous Order, the Court noted that Plaintiff failed to allege whether her instances 27 of protected speech were made as a private citizen or as a part of her official employment duties, 28 and granted Plaintiff leave to amend on this point. See Dkt. No. 25 at 11. In her First Amended 3 1 Complaint, Plaintiff alleges that “all protected activity for which protection is sought by way of 2 the instant Complaint, were taken in Plaintiff’s role as a private citizen, and that she was at no 3 time, under an employment duty to report wrongdoing to any agency from which the grant or 4 contract funding which she assisted in spending.” First Amended Complaint (“FAC”) ¶ 32. 5 Defendants contend this allegation is insufficient because Plaintiff has failed to allege facts 6 demonstrating that her protected speech was made as a private citizen, rather than pursuant to her 7 official duties as the Manager of the Victim Witness program. This argument is without merit. 8 9 The Court previously recognized three instances of Plaintiff’s speech which were a matter of public concern and which required an additional allegation that the speech was made as a private citizen and not pursuant to Plaintiff’s official duties. See Dkt. No. 5 at 9-10; Eng, 552 F.3d 11 United States District Court Northern District of California 10 at 1071. The first was Plaintiff’s allegation that after inquiring with Cal EMA regarding the 12 legality of a proposed action to remedy a timekeeping mistake at Defendant Mulligan’s request, 13 she informed Defendants Peterson and Mulligan that Cal EMA indicated such action was illegal 14 and she would not participate in it. See FAC ¶¶ 11-12. While Plaintiff does not dispute that her 15 report to Defendants Peterson and Mulligan that the proposed remedy was illegal was speech 16 made pursuant to her official duties, Plaintiff alleges that her additional comment that she would 17 not participate in such illegal actions was made as a private citizen. See FAC ¶ 32; Opp. at 4-5. 18 Apart from the fact that Plaintiff’s allegations must be assumed true, see Eng, 552 F.3d at 1071, 19 common sense dictates that Plaintiff’s remark that she would not participate in illegal activity was 20 not within Plaintiff’s job duties − employees are generally not paid to inform a superior that they 21 will not participate in illegal conduct proposed by that superior. 22 The second and third instances of speech were Plaintiff’s alleged report to Cal EMA that 23 Defendant Mulligan attempted to write a $900 check for an unauthorized purposed, and Plaintiff’s 24 alleged report to the California Victim’s Compensation Board regarding improper money transfers 25 from the Emergency Revolving Fund. See FAC ¶¶ 18-19, 26-27. In addition to alleging that 26 Plaintiff “was at no time, under an employment duty to report wrongdoing to any agency from 27 which the grant or contract funding which she assisted in spending,” FAC ¶ 32, Plaintiff also 28 alleges that she “had no official duty to report or certify compliance with grant or contract 4 1 expenditure guidelines, nor was she asked to perform such reporting, to any granting agency[.]” id. 2 ¶ 9. Such plausible allegations that Plaintiff’s reports to Cal-EMA and the California Victim’s 3 Compensation Board were not within her job duties, but rather speech made as a private citizen, 4 are sufficient to satisfy this element of Plaintiff’s First Amendment retaliation claim in order to 5 survive Defendant’s Motion to Dismiss. Posey, 546 F.3d at 1129 (finding a material issue of fact 6 regarding whether the plaintiff’s report of another employee’s misconduct was within his job 7 duties, precluding summary judgment). 8 B. 9 In order to state a claim both for First Amendment retaliation under 42 U.S.C. § 1983 and Allegations re Whether Defendants were Aware of the Protected Speech under California Labor Code § 1102.5, Plaintiff must allege that Defendants were at least aware of 11 United States District Court Northern District of California 10 the allegedly protected speech. See Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 924 (9th 12 Cir. 2004); Morgan v. Regents of Univ. of California, 88 Cal.App.4th 52, 69-70 (2001) (“Essential 13 to a causal link is evidence that the employer was aware that the plaintiff had engaged in the 14 protected activity.”) (internal quotations omitted). Defendants argue that Plaintiff’s First 15 Amended Complaint still fails to sufficiently allege facts to demonstrate that Defendants were 16 aware (1) that Plaintiff allegedly reported Defendant Mulligan’s attempt to write a $900 check to 17 Cal EMA, or (2) that Plaintiff allegedly reported suspected misappropriation of funds to the 18 California Victim’s Compensation Board. 19 First, with regard to Plaintiff’s report regarding Defendant Mulligan’s attempt to write a 20 $900 check to Cal EMA, Plaintiff alleges that she “is informed and believes that Defendants are 21 aware of Plaintiff’s having reported such incident.” FAC ¶ 19. Defendants argue that this 22 allegation is conclusory and void of facts demonstrating how Defendants are aware that Plaintiff 23 reported this incident. The Court disagrees. Plaintiff’s allegation is sufficient. If Defendants were 24 not aware of this report, they may indicate such in sworn affidavits at summary judgment. 25 However, with regard to Plaintiff’s report to the California Victim’s Compensation Board 26 regarding the suspected misappropriation of funds from the Emergency Revolving Fund, Plaintiff 27 makes no allegation that Defendants were aware of this separate report. In her Opposition to 28 Defendant’s Motion to Dismiss, Plaintiff contends that she “is able to allege that such an 5 1 investigation [by the California Victim’s Compensation Board] would require notification to 2 Defendants[.]” Opp. at 7. Plaintiff does not contend, however, that such an investigation would 3 require notification to Defendants that Plaintiff triggered the investigation. Nor does Plaintiff 4 explain why such an allegation was not already made in the First Amended Complaint. Having 5 previously given Plaintiff clear instructions that an allegation of Defendants’ awareness was 6 necessary for this instance of speech to support her retaliations claims under § 1983 and § 1102.5, 7 Plaintiff will not be given another opportunity to amend this point. Thus, to the extent Plaintiff’s § 8 1983 and § 1102.5 claims arise out of such “speech,” they are dismissed without leave to amend. 9 10 United States District Court Northern District of California 11 C. Allegations re Temporal Proximity in Support of Plaintiff’s First Amendment Retaliation Claim For the First Amendment retaliation claim, in addition to alleging Defendants’ awareness 12 of Plaintiff’s protected speech, Plaintiff must also plead one of the following to sufficiently allege 13 that Defendants were substantially motivated by Plaintiff’s speech to undertake the adverse 14 actions: (i) proximity in time between her expressive conduct and the allegedly retaliatory actions; 15 (ii) that the defendants expressed opposition to her protected speech; and (iii) that defendants’ 16 proffered explanations for their adverse actions were false and pretextual. Coszalter v. City of 17 Salem, 320 F.3d 968, 977 (9th Cir. 2003). The Court finds that Plaintiff satisfies this element 18 through her allegations of the timing between the speech and adverse actions. 19 Having failed to allege that Defendants were aware of Plaintiff’s report to the California 20 Victim’s Compensation Board, only two remaining instances of speech provide the basis for 21 Plaintiff’s First Amendment retaliation claim. The first is Plaintiff’s remark to Defendants 22 Mulligan and Peterson that she would not participate in the illegal proposed course of action to 23 remedy the timekeeping mistake. The second is Plaintiff’s report to Cal EMA that Defendant 24 Mulligan attempted to write a $900 check for unauthorized purposes. 25 Plaintiff’s allegations sufficiently establish that the adverse employment actions identified 26 in the Court’s previous Order were taken in close proximity to these two instances of protected 27 speech. Coszalter, 320 F.3d at 977 (“three to eight months is easily within a time range that can 28 support an inference of retaliation”). The first instance of speech occurred sometime before June 6 1 7, 2011, and a few months thereafter, Plaintiff bega experienc 2 P an cing the first adverse em t mployment 2 act tions. See FA ¶¶ 16-17 21. The se AC 7, econd instan of speech occurred in September of 2011, nce h n r 3 and further adv d verse employ yment action took place shortly afte that time a well. See FAC ¶¶ 21ns e er as e - 4 25. According Plaintiff’ First Ame . gly, ’s ended Compl laint sufficie ently alleges that Defend s dants were 5 sub bstantially motivated to undertake th adverse em m u he mployment a actions beca ause of Plaint tiff’s 6 pro otected speec ch. * 7 * As a fin matter, th Court add nal he dresses Plain ntiff’s reques in her Opp st, position to D Defendants’ 8 9 * Mo otion, for lea to amend to add furth allegatio of protec speech a adverse employment ave d her ons cted and t act tions. See Opp. at 7-8. Plaintiff con P ntends she ca allege add an ditional insta ances of spee that ech 11 United States District Court Northern District of California 10 “w not origi were inally includ in her Co ded omplaint bec cause she wa not fully a as aware that fu urther 12 adv verse employ yment action were bein taken agai her in re ns ng inst etaliation for the submiss r sion of some e 13 or all of such in nstances of protected spe p eech.” Opp. at 8. The C . Court rejects Plaintiff’s r s request for 14 lea to amend embedded in her Opposition to Def ave d fendant’s M Motion to Dismiss. If Pla aintiff seeks 15 to add allegatio of differe conduct supporting h claims, P a ons ent her Plaintiff may file a separ motion y rate 16 to amend. a 17 IV. 18 19 20 21 CONCLUSION easons, Defe endants’ Mo otion to Dism is GRAN miss NTED in pa and art For the foregoing re ENIED in pa art. DE IT IS SO ORDERE ED. Da ated: May 20 2013 0, __ ___________ __________ ____ JO OSEPH C. SP PERO Un nited States M Magistrate J Judge 22 23 24 25 26 27 28 7

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