Preston v. City Of Oakland et al

Filing 169

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR A DIRECTED VERDICT. Signed by Judge Nathanael Cousins on 9/30/2015. (lmh, COURT STAFF) (Filed on 9/30/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DARYELLE LAWANNA PRESTON,
Plaintiff,

United States District Court
Northern District of California

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v.
CITY OF OAKLAND, DEANNA
SANTANA,

Case No.14-cv-02022-NC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION FOR A DIRECTED
VERDICT

Defendants.
Plaintiff Daryelle Lawanna Preston presented her case at trial from September 14-

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18, 2015. After Preston rested her case, defendants Deanna Santana and the City of

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Oakland moved for judgment as a matter of law under Federal Rule of Civil Procedure

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50(a). The Court heard arguments from both parties and granted Santana’s motion on the

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First Amendment claim, finding that Preston’s claim was precluded as a matter of law

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because all of her alleged protected speech owed its existence to her position as Employee

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Relations Director for the City of Oakland. The Court took the City of Oakland’s motion

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on the California Labor Code claim under submission.

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Therefore, at trial, the defense’s case was limited to the California Labor Code

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claim, and the jury was not instructed on the First Amendment claim. On September 23,

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2015, the jury returned a verdict in Preston’s favor on the California Labor Code claim and

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awarded her damages against Oakland in the amount of $613,302.

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The Court now sets forth in further detail its ruling on the First Amendment claim,
Case No. 14-cv-02022 NC

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and DENIES the City of Oakland’s motion for a directed verdict on the California Labor

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Code claim.

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I.

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BACKGROUND
A.

Claims
The general facts are set forth in detail in the Court’s order on summary judgment,

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Dkt. No. 99. In short, Preston was appointed to be the Employee Relations Director for the

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City of Oakland by defendant Deanna Santana in January 2012. On October 3, 2013,

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Santana fired Preston. Preston alleges that her termination was unlawful because (1) it was

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a violation of her right to free speech under the First Amendment; and (2) it was unlawful
retaliation for Preston’s reporting of unlawful acts under the California Labor Code §

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United States District Court
Northern District of California

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1102.5. Preston’s claims are premised on four incidents, which she alleges constituted

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protected acts and/or refusals to participate in unlawful activity:

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(1) Preston claims that she refused to add language to the Rainbow Teen Center

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report, referring Desley Brooks for prosecution, because she believed that doing

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so would be illegal racial discrimination;

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(2) Preston claims that she refused to confirm Santana’s statement to

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Councilmember Desley Brooks at the March 6, 2012, City Council meeting,

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because she believed that doing so would be committing perjury;

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(3) Preston claims that she disclosed that the City of Oakland was entering into

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contracts with Firefighters’ Local 55 without the necessary approval from City

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Council, because she believed that doing so would be a violation of the

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California Government Code; and

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(4) Preston claims that she disclosed that the City of Oakland was failing to collect

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temporary part-time employees’ union dues, because she believed that the

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failure was a violation of the California Government Code. Preston brings these

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claims under both the First Amendment, alleging that her acts were protected

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speech, and also the California Labor Code § 1102.5.

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Case No. 14-cv-02022 NC

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B.

Preston’s Relevant Testimony
Preston testified that she was hired by the City of Oakland in 2007 to clean up

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employee problems. Transcript 628. Once she was promoted in 2012 by Santana, she

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became the Employee Relations Director and headed the Employee Relations Unit.

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Transcript 633. According to Preston, “the Employee Relations Unit was responsible for

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bargaining, and the Employer Relations Unit reported and took direction from the City

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Administrator.” Transcript 638.

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As to the Rainbow Teen Center draft report, Preston testified that Santana asked her

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to investigate the Center and prepare a report for the City Council, specifically looking into
the employee hiring process. Transcript 638. Preston verified that she signed the

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United States District Court
Northern District of California

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completed report, in plaintiff’s Exhibit 8. Transcript 639.

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On the June 2013 firefighter’s union memorandum of understanding (“MOU”),

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Preston testified that she was notified that her staff member had engaged in signing an

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improper agreement. Transcript 651. Preston testified that she sent an email, Exhibit 20,

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to the City Attorney to ask for a legal opinion of whether signing the MOU to extend the

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paramedic program was proper. Transcript 653. Additionally, Preston called Santana to

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notify her of the improper labor negotiations. Transcript 656.

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On the October 1, 2013, closed session of City Council, Preston reported that the

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City was failing to collect part time temporary employee union dues. Transcript 680.

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Preston testified that she attended closed sessions when labor relations were on the agenda

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as part of her job duties. Transcript 661. Preston testified that it was part of her job duties

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to keep track of grievances filed by the unions. Transcript 667. As to that grievance,

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Preston testified that she believed it was her responsibility as Employee Relations Director

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to conduct an investigation to determine if the allegations in the grievance were true.

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Transcript 668. Preston testified that she attended the closed session City Council meeting

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and was giving a presentation on the status of bargaining the part-time SEIU MOU.

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Transcript 680.

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Case No. 14-cv-02022 NC

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II.

LEGAL STANDARD

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“If a party has been fully heard on an issue during a jury trial and the court finds

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that a reasonable jury would not have a legally sufficient evidentiary basis to find for the

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party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a

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motion for judgment as a matter of law against the party on a claim or defense that, under

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the controlling law, can be maintained or defeated only with a favorable finding on that

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issue.” Fed. R. Civ. P. 50(a). “[T]he trial judge must direct a verdict if, under the

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governing law, there can be but one reasonable conclusion as to the verdict.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

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United States District Court
Northern District of California

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III. DISCUSSION
A.

First Amendment Claim

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A claim for first amendment retaliation requires consideration of a five-factor test

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outlined in Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013). Those factors are:

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a. whether plaintiff spoke on a matter of public concern;

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b. whether the plaintiff spoke as a private citizen or public employee;

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c. whether the plaintiff’s protected speech was a substantial or motivating factor in the

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adverse employment action;
d. whether the state had adequate justification for treating the employee differently
from other members of the general public; and
e. whether the state would have taken the adverse employment action even absent the
protected speech.

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Id. The test under Dahlia is cumulative, meaning that all factors are necessary, and failure

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to meet any one of them is fatal to the plaintiff’s case. Id. at 1067 n.4. The plaintiff has

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the burden of proof as to the first three factors, while the burden shifts to the government

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to prove the last two. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103 (9th Cir.

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2011). The first two factors require the Court to analyze the content and the context of the

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speech to determine whether it constitutes protected speech, while the next three factors

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look at the causal relationship between an employee’s protected speech and her
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termination. At issue in this motion is whether Preston’s speech constitutes speech as a

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private citizen, as required under the second element of the Dahlia test.

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Generally, a public employee’s speech is not protected by the First Amendment

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when it is made pursuant to the employee’s official duties. Garcetti v. Ceballos, 547 U.S.

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410, 421 (2006); Hagen v. City of Eugene, 736 F.3d 1251 (9th Cir. 2013). To determine

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whether speech is made pursuant to the employee’s official duties, the Court in Dahlia set

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forth three guidelines but no bright line rule. First, the Court can consider whether the

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speech is made within the chain of command. Dahlia at 1074. Second, if the speech

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reflects broad concerns about corruption or systemic abuse outside professional duties,
then it is more likely private speech. Id. at 1075. Third, if the speech was made in direct

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United States District Court
Northern District of California

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contravention to a supervisor’s orders, then it is more likely private speech. Id.

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“When a public employee raises complaints or concerns up the chain of command

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at his workplace about his job duties, that speech is undertaken in the course of performing

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his job.” Id. at 1074. Whether an employee expresses her views inside the office rather

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than publicly is not dispositive. Garcetti, 547 U.S. at 421. However, “[s]peech which

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owes its existence to an employee’s professional responsibilities is not protected by the

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First Amendment.” Hagen, 736 F.3d at 1258. In Freitag v. Ayers, 468 F.3d 528, 544 (9th

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Cir. 2006), the Ninth Circuit held that where a prison official made internal reports of

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inmate sexual misconduct, she spoke as a public employee and the speech was

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unprotected. However, when she made external reports about the same circumstances to a

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state senator and the state inspector general, she acted as a citizen and the speech was

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protected. Id. “While the question of the scope and content of a plaintiff’s job

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responsibilities is a question of fact, the ultimate constitutional significance of the facts as

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found is a question of law.” Eng, 552 F.3d at 1071.

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The Court previously determined that the March 6, 2012, City Council meeting

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speech cannot be a basis for protected First Amendment speech because Preston was

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speaking as a public official, on official business. Dkt. No. 99. The Court similarly finds

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that the three other instances of alleged protected speech all owe their existence to
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Preston’s job duties. As to the Rainbow Teen Center report, Preston testified that she was

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asked to investigate and prepare the report as part of her job duties. As to the firefighter’s

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union MOU, Preston testified that it was her job to ensure that all labor negotiations were

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occurring in compliance with city regulations. As to the temporary, part-time union dues

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reporting, Preston stated that she was promoted to Employee Relations Director to help

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“clean up” the City of Oakland’s internal operations with respect to labor relations.

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Additionally, Preston attended the October 1, 2013, closed session City Council meeting in

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her official capacity as Labor Relations Director. Therefore, all Preston’s actions were

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conducted as part of her official duties.
The Court is guided by Hagen’s conclusion that when an employee has an official

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United States District Court
Northern District of California

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duty to report safety concerns, or in this case, noncompliance with local and state laws, the

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speech is not protected. Hagen, 736 F.3d at 1258. Additionally, when the speech was a

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product of “performing the tasks the employee was paid to perform,” then it is not private

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speech. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1058-59 (9th Cir. 2013).

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Therefore, construing the evidence in the light most favorable to Preston, the evidence

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presented “permits only one reasonable conclusion,” Omega, 127 F.3d at 1161, that

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Preston’s acts were performed as part of her official duties and not as a private citizen.

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B.

Labor Code Claim

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A prima facie case of employment retaliation under California Labor Code § 1102.5

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requires plaintiff to demonstrate that she was subjected to adverse employment action after

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engaging in protected activity, and that there was a causal connection between the two.

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Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1199 (2012). An employee engages

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in protected activity when he “discloses to a governmental agency reasonably based

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suspicions of illegal activity.” Mokler v. County of Orange, 157 Cal. App. 4th 121, 138

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(2007) (italics in original). The employee must “reasonably believe . . . he was disclosing

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a violation of state or federal law.” Patten v. Grant Joint Union High Sch. Dist., 134 Cal.

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App. 4th 1378, 1384 (2005). “To have a reasonably based suspicion of illegal activity, the

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employee must be able to point to some legal foundation for his suspicion—some statute,
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rule or regulation which may have been violated by the conduct he disclosed.” Fitzgerald

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v. El Dorado Cnty., 12-cv-02932 KJN, 2015 WL 966133, at *13 (E.D. Cal. Mar. 3, 2015)

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(citing Love v. Motion Indus., Inc., 209 F. Supp. 2d 1128, 1135 (N.D. Cal. 2004)).

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Under the California Labor Code claim, a disclosure is protected even though

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disclosing the information may be part of Preston’s job duties. “[I]t cannot categorically

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be stated that a report to a supervisor in the normal course of duties is not a protected

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disclosure.” Mize-Kurzman v. Marin Cmty. Coll. Dist., 202 Cal. App. 4th 832, 858 (2012).

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Therefore, the Court’s concerns above that Preston’s actions were part of her job duties is

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not applicable to this claim. In the absence of such concerns, the Court finds that there is
sufficient evidence for a jury to find for Preston on the California Labor Code claim.

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United States District Court
Northern District of California

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IV. CONCLUSION

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In conclusion, the Court GRANTS defendants’ motion for a directed verdict as to

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the First Amendment claim against Santana, finding such claim is barred as a matter of

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law. The Court DENIES defendants’ motion as to the California Labor Code claim

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because Preston’s acts can be protected even if performed pursuant to her job duties.

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IT IS SO ORDERED.

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Dated: September 30, 2015

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 14-cv-02022 NC

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