Linder v. Golden Gate Bridge, Highway & Transportation District et al

Filing 55

ORDER by Judge Samuel Conti granting 46 Motion to Dismiss. (sclc1, COURT STAFF) (Filed on 8/3/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL LINDER, an individual,

United States District Court

For the Northern District of California

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Plaintiff,

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v.

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GOLDEN GATE BRIDGE, HIGHWAY &
TRANSPORTATION DISTRICT, a
Special District; LISA LOCATI,
individually and as Bridge
Captain of the District, and DOES
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Defendants.

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) Case No. 4:14-cv-03861 SC
)
) ORDER GRANTING DEFENDANTS'
) MOTION TO DISMISS
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I.

INTRODUCTION
Now before the Court is Defendants Golden Gate Bridge, Highway

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& Transportation District and Lisa Locati's (collectively

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"Defendants" or "the District") motion to dismiss.

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("MTD").

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District for (1) retaliation in violation of California Labor Code

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Section 1102.5(b), (2) violation of 42 U.S.C. § 1983 for infringing

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Linder's First Amendment freedom of speech, and (3) violation of 42

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U.S.C. § 1983 for infringing Linder's Fourteenth Amendment due

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process rights.

ECF No. 46

Plaintiff Paul Linder brings this action against the

The motion is fully briefed.

ECF Nos. 50

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("Opp'n"); 52 ("Reply").

Pursuant to Civil Local Rule 7-1(b), the

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Court finds this matter appropriate for disposition without oral

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argument.

For the reasons set forth below, Defendants' motion is

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GRANTED.

Some of Plaintiff's claims are DISMISSED WITH PREJUDICE,

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while others are DISMISSED WITH LEAVE TO AMEND, as specified below.

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II.

BACKGROUND
At the motion to dismiss stage, the Court assumes the truth of

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United States District Court

Plaintiff's well-pleaded factual allegations, so these facts come

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For the Northern District of California

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from Plaintiff's First Amended Complaint ("FAC").

ECF No. 45.

Linder was employed by the District in various roles for 21

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years.

At the relevant times he served as a Bridge Lieutenant, and

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from 2004 to 2012 he was also the Assistant Rangemaster and (later)

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Rangemaster.

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responsible for firearms training and certification for District

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employees.

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Linder as Rangemaster as a result of complaints made by Operating

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Engineers Local 3 concerning the District's firearms certification

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processes.

As Assistant Rangemaster and Rangemaster, he was

In January or February of 2012, Golden Gate removed

Several months later, Locati told Linder he would be

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interviewed by an outside investigator who was looking into

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complaints concerning the District's compliance with regulations

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governing weapons permitting and licensing.

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subsequent investigation by the California Bureau of Security and

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Investigative Services ("the Bureau") and California Department of

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Justice ("CDOJ") concluded that the District paid a retired former

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employee to sign off on District firearms certifications without

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knowledge of whether the individuals in question were actually

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That interview and

investigation, Linder also revealed that Locati misrepresented the

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retired former employee's date of retirement to conceal that the

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District lacked an active Rangemaster (as is apparently required)

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from March 2003 until 2004.

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Linder was a cause of the Bureau's decision to revoke permits

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allowing the District to qualify and re-qualify its personnel to

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carry firearms.

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United States District Court

qualified for certification.

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For the Northern District of California

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permits, the District was required to use private range services to

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Over the course of that

This and other information provided by

As a result of the revocation of the District's

comply with firearm regulations.
On July 9, 2012, Linder was given a letter of intent to

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terminate his employment by Locati and Bridge Manager Kary Witt

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based on Linder's submission of two allegedly incorrect dates on

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documents submitted to the Bureau.

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escorted from the premises and told not to return, and he continued

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on unpaid leave until September 2012, when his termination was

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overturned.

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retaliatory conduct by Locati, who assigned him to an unprecedented

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and undesirable schedule, excessively scrutinized his conduct, and

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placed unique conditions on his return.

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complaining about this alleged conduct; however, the District's

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human resources department rejected the grievance and refused

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Linder's parallel request for an investigation of allegations of

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wrongdoing leveled by Locati.

After that meeting, Linder was

His return was mired by incidents of allegedly

Linder filed a grievance

On March 9, 2013, Linder responded to a car accident near the

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Golden Gate Bridge, after which Locati accused him of wrongdoing

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based on purported allegations from an unnamed California Highway

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the validity of the CHP claims against him, but Human Resources

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rejected his grievance.

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"Final Written Warning" based on three incidents (unspecified in

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the complaint) that Linder argues are without merit.

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2013, Mr. Linder received additional threats of termination

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concerning alleged damage to vehicles with ergonomic

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accommodations.

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United States District Court

Patrol (CHP) Officer.

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For the Northern District of California

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Linder asked Human Resources to investigate

to Locati.

In June 2013, Mr. Linder was placed on a

In September

In October 2013, Linder reported a security issue

Two months later, Locati ordered Linder undergo a

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"fitness for duty" examination.

Despite being cleared to return to

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duty, Linder was placed on administrative leave, and in late

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December 2013, Locati initiated an "Intent to Terminate memorandum"

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for Linder, citing various alleged instances of Linder's failure to

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perform certain job duties.
On February 19, 2014, Linder was terminated.

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In terminating

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Linder, the District cited four issues: (1) an incident with an

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individual who attempted to climb a cable on the Golden Gate

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Bridge, (2) a written warning regarding a complaint from the

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California Highway Patrol about Linder's response to a car

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accident, (3) Linder's response to a potential suicide, and (4)

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Linder's allegedly aggressive behavior toward a trespassing jogger.

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FAC ¶ 49.
Linder filed this suit alleging five claims against Locati and

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the District.

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three of those claims: (1) retaliation in violation of California

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Labor Code Section 1102.5(b), (2) violations of Linder's First

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Amendment rights under 42 U.S.C. Section 1983, and (3) violations

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ECF No. 1 ("Compl.").

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Linder's FAC retains only

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of Linder's Fourteenth Amendment due process rights under 42 U.S.C.

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Section 1983.
This is Defendants' second motion to dismiss.

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The Court

1983 claims, in part, because Linder failed to allege facts

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establishing (1) that he had a property interest in his job (ECF

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No. 44 ("MTD Order") at 12-13); (2) that the District intended to

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inhibit Linder's free speech (Id. at 14); and (3) that Locati was a

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United States District Court

granted Defendants' first motion and dismissed Linder's Section

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For the Northern District of California

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final policymaker or that a final policymaker ratified her actions

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(Id. at 16).

The Court dismissed Linder's retaliation claim under

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California Labor Code Section 1102.5(b) because the Complaint

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failed to identify any federal or state law, rule, or regulation

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that the District violated.

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to amend, and filed his FAC on May 18, 2015.

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III. LEGAL STANDARD

Id. at 17.

Linder was granted leave

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A.

Motion to Dismiss

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A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory."

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 556 U.S. 662, 679 (2009).

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must accept as true all of the allegations contained in a complaint

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Navarro v.

"Dismissal can be based

"When there are well-pleaded factual allegations, a court

Ashcroft v.

However, "the tenet that a court

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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United States District Court

is inapplicable to legal conclusions.

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For the Northern District of California

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subjected to the expense of discovery."

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Threadbare recitals of the

Id. (citing Bell Atl. Corp. v.
The allegations made in a

Starr v. Baca, 652 F.3d

1202, 1216 (9th Cir. 2011).
When granting a motion to dismiss, a court is generally

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required to grant the plaintiff leave to amend.

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Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246–47

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(9th Cir. 1990).

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faith, repeated failure to cure deficiencies by previous amendments

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allowed, futility of the amendment, or prejudice.

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371 US 178, 182 (1962); Abagninin v. AMVAC Chem. Corp., 545 F3d

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733, 742 (9th Cir. 2008).

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be futile, the court examines whether the complaint could be

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amended to cure the defect requiring dismissal "without

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contradicting any of the allegations of [the] original complaint."

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

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To avoid dismissal after an opportunity to amend has been granted,

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plaintiff must disclose the specific facts that would cure the

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deficiency.

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thereby gain a license for further amendment when prior opportunity

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Leave to amend may be denied for undue delay, bad

Foman v. Davis,

In determining whether amendment would

"A plaintiff may not in substance say ‘trust me,’ and

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Cook, Perkiss &

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to amend has been given."

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Salameh v. Tarsadia Hotel, 726 F3d 1124,

1133 (9th Cir. 2013).

3 IV.

DISCUSSION

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Defendants move to dismiss each of Plaintiff's remaining three

Section 1102.5(b), (2) violation of 42 U.S.C. § 1983 for infringing

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Linder's First Amendment freedom of speech, and (3) violation of 42

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U.S.C. § 1983 for infringing Linder's due process rights under the

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United States District Court

claims: (1) retaliation in violation of California Labor Code

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For the Northern District of California

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Fourteenth Amendment.

The Court addresses each in turn.

Labor Code Section 1102.5(b)

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A.

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California Labor Code Section 1102.5(b) states that "[a]n

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employer . . . shall not retaliate against an employee for

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disclosing information . . . to a government or law enforcement

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agency . . . if the employee has reasonable cause to believe that

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the information discloses a violation of state or federal statute,

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or a violation or noncompliance with a state or federal rule or

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regulation."

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(1) that he was terminated after reporting a violation of or

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noncompliance with state or federal law, and (2) a causal

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connection between the termination and reporting the violation.

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Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1199 (Cal. Ct.

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App. 2012).

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causal connection.

To state a claim under this section, Linder must show

Defendants argue that Linder has failed to establish a

Plaintiff's FAC alleges that "[b]oth Defendant Locati and Mr.

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Witt were aware of Plaintiff's protected speech . . . after July 9,

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2012 . . . ."

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allegation fails to establish causation because

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FAC ¶ 108.

Defendants argue that Plaintiff's

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[a]s pleaded, the FAC only suggests the Defendants became
aware of the allegedly protected speech at some point
between
July
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2012
and
today.
Without
more
specificity, Plaintiff fails to allege that the District
was aware of the content of the allegedly protected
speech before it took any adverse employment actions.

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opposition brief.

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issue.

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802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (quotation

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omitted)("[I]n most circumstances, failure to respond in an

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United States District Court

Mot. at 7-8.

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For the Northern District of California

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Linder does not address this point at all in his

opposition brief to an argument put forward in an opening brief

As a result, the Court need not address the

See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp.,

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constitutes waiver or abandonment in regard to the uncontested

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issue.").

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Code claim for retaliation is GRANTED WITHOUT PREJUDICE.

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amend is GRANTED to address the issue of causation.

Defendants' motion to dismiss Linder's California Labor
Leave to

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B.

Section 1983 Claims

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To state a claim under Section 1983, Linder must show that "an

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individual acting under the color of state law deprived him of a

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right, privilege, or immunity protected by the United States

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Constitution or federal law."

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903, 905 (9th Cir. 2008) (citing Lopez v. Dep't of Health Servs.,

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939 F.2d 881, 883 (9th Cir. 1991).

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and the District, acting under color of state law, deprived him of

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his Fourteenth Amendment due process rights and his First Amendment

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free speech rights.

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Levine v. City of Alameda, 525 F.3d

Linder alleges that both Locati

First Amendment

"It is well settled that the state may not abuse its position

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as employer to stifle 'the First Amendment rights its employees

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would otherwise enjoy as citizens to comment on matters of public

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2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009))

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(internal alteration omitted).

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public employees, the Court must seek "a balance between the

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interests of the [employee], as a citizen, in commenting on matters

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of public concern and the interest of the State, as an employer, in

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promoting the efficiency of the public services it performs through

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its employees."

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United States District Court

interest.'"

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For the Northern District of California

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(1968).

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Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir.

In First Amendment cases involving

Pickering v. Bd. of Educ., 391 U.S. 563, 568

This balancing test has been refined into five steps

querying:

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(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private
citizen or public employee; (3) whether the plaintiff's
protected speech was a substantial or motivating factor
in the adverse employment action; (4) whether the state
had an adequate justification for treating the employee
differently from other members of the general public; and
(5) whether the state would have taken the adverse
employment action even absent the protected speech.

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Eng, 552 F.3d at 1070.

Failure to meet any one of these steps is

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fatal to a plaintiff's case.

See Dahlia, 735 F.3d at 1067 n.4.

Defendants argue that because they did not intend to inhibit

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Linder's free speech, his claim must be dismissed.

See

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Mendocino Envt'l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th

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Cir. 1999) (holding that intent to inhibit speech "is an element of

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the claim").

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allegations that Locati and the District directed him to speak with

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investigators as evidence that they lacked intent to chill Linder's

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speech.

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dismiss, and the Court dismissed Plaintiff's claim because Linder

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failed to respond to Defendants' argument.

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More concretely, Defendants point to Linder's

Defendants made the same argument in their first motion to

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MTD Order at 14-15.

Plaintiff's opposition once again fails to address Defendants'

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argument.

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argument put forward in an opening brief constitutes waiver or

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abandonment . . . ."

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1132.

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respond, the Court concludes that further opportunities to amend

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would be futile.

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retaliation claim is DISMISSED WITH PREJUDICE.

United States District Court

Stichting Pensioenfonds ABP, 802 F. Supp. at

Because this is the second time that Plaintiff has failed to

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For the Northern District of California

"[F]ailure to respond in an opposition brief to an

2.

Accordingly, Plaintiff's First Amendment

Fourteenth Amendment

Due process claims are analyzed in two steps.

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See Walls v.

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Cent. Contra Costa Transit Auth., 653 F.3d 963, 967-68 (9th Cir.

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2011).

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property interest in continued employment.

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Second, and only if the Court determines that Linder did, in fact,

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have a "property interest" in continued employment does the Court

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determine whether Linder received all the process he was due.

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id.

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due process protections.

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48 (9th Cir. 1988).

First, the Court must determine whether Linder had a
See id. at 968.

See

State law defines the property interests subject to federal
See Brady v. Gebbie, 859 F.2d 1543, 1547-

Linder has not adequately alleged a property interest in

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continued employment.

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are employed at-will do not have property interests in continued

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employment.

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(Cal. Ct. App. 1993); see also Kaye v. Bd. of Trs. of the San Diego

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Cnty. Law Library, No. 07-cv-921 WQH (WMC), 2008 U.S. Dist. LEXIS

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45604, at *12 (S.D. Cal. June 10, 2008).

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the District's enabling legislation provides for "employ[ment] and

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Under California law, public employees that

See Binkley v. Long Beach, 16 Cal. App. 4th 1795, 1808

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As Defendants point out,

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discharge at pleasure [of] all subordinate officers, employees and

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assistants."

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pleasure" "means one is an at-will employee who can be fired

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without cause."

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1694 (Cal. Ct. App. 1996) (citing Bogacki v. Bd. of Supervisors, 5

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Cal. 3d 771, 783 (Cal. 1971)).

Cal. Sts. & Hwy. Code § 27151.

The phrase "at

Hill v. City of Long Beach, 33 Cal. App. 4th 1684,

F.2d 384, 389 (9th Cir. 1989) to claim that he gained a property

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United States District Court

Plaintiff relies on McGraw v. City of Huntington Beach, 882

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For the Northern District of California

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interest in continued employment the moment he was removed from

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probationary status.

McGraw does not stand for that proposition.

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The McGraw court held that the plaintiff had a property interest in

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her job because her employer's Personnel Rules "severely

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restricted" the employer's ability to fire her.

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at 389.

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disciplinary dismissal "could have been accomplished only upon a

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finding of 'just cause.'"

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restricting the District's ability to terminate him.

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McGraw is inapposite.

McGraw, 882 F.2d

Specifically, the Personnel Rules required that a

Id.

Linder does not cite to any rules
As a result,

This is the second time that Plaintiff has failed to plead

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facts establishing that he is not an at-will employee.

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Order at 13.

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amend would be futile.

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Amendment claim is DISMISSED WITH PREJUDICE.

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V.

See MTD

The Court concludes that further opportunities to
Accordingly, Plaintiff's Fourteenth

CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss

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is GRANTED, and the First Amended Complaint is DISMISSED WITHOUT

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PREJUDICE.

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Leave to amend is GRANTED only as to Plaintiff's

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retaliation claim under California Labor Code Section 1102.5(b).

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Plaintiff may file a second amended complaint within thirty (30)

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days.

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allotted may result in dismissal with prejudice.

Failure to file a second amended complaint within the time

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IT IS SO ORDERED.

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United States District Court

For the Northern District of California

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Dated:

August 3, 2015
UNITED STATES DISTRICT JUDGE

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