Kerr v. The City & County of San Francisco et al

Filing 76

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART 40 MOTION FOR SUMMARY JUDGMENT AND GRANTING 61 MOTION TO SEAL. (ndr, COURT STAFF) (Filed on 9/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

DEREK KERR,

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Plaintiff,

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7

No. C 10-5733 CW

v.

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THE CITY AND COUNTY OF SAN
FRANCISCO; MITCHELL H. KATZ;
MIVIC HIROSE; and COLLEEN RILEY,

9

Defendants.

10
United States District Court
For the Northern District of California

ORDER GRANTING IN
PART AND DENYING
IN PART MOTION FOR
SUMMARY JUDGMENT
(Docket No. 40)
AND GRANTING
MOTION TO SEAL
(Docket No. 61)

________________________________/

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Defendants City and County of San Francisco (the City),

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Mitchell H. Katz, Mivic Hirose and Colleen Riley move for summary

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judgment on the claims asserted against them by Plaintiff Derek

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Kerr in this action claiming termination of employment in

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retaliation.

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considered the papers filed by the parties and their arguments at

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the hearing, the Court GRANTS Defendants’ motion in part and

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DENIES it in part.

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seal.

Plaintiff opposes their motion in part.

Having

The Court also GRANTS Plaintiff’s motion to

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BACKGROUND

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The following summary presents any disputed facts in the

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light most favorable to Plaintiff, as the non-moving party.1

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25
1

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To the extent that the Court relies on any evidence to
which Defendants object, the Court rules on the objection prior to
considering the evidence. Where necessary, such rulings are
discussed below. To the extent that the Court decides the motion
without considering evidence to which Defendants have objected,
Defendants’ objections are OVERRULED as moot.

1

Plaintiff graduated from Harvard Medical School in 1975.

2

Kerr Depo. 32:20-21.

3

and senior residency at the Harlem Medical Center, Plaintiff

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completed two fellowships at Memorial Sloan-Kettering Cancer

5

Center.

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palliative care at Fairmont Hospital in San Leandro, California

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for six years.

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next twenty-one years, Plaintiff was employed by the City as a

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hospice and palliative care physician at Laguna Honda Hospital

After finishing his internship, residency

Id. at 32:22-33:17.

He then practiced oncology and

Id. at 33:18-22.

Starting in 1989 and for the

United States District Court
For the Northern District of California

10

(LHH) until he was terminated in June 2010.

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The parties agree that Plaintiff was an excellent doctor and

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brought acclaim to the hospice program at LHH during the time that

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he was there.

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his termination, he held the position of Senior Physician

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Specialist, Civil Service Classification 2232.

16

Kerr Depo. 72:16-20.

17

See, e.g.,

Id. at 33:24-34:4.

Hirose Depo. 25:3-13.

At the time of

Hirose Decl. ¶ 1;

At the time relevant to this case, Dr. Mitchell Katz was the

18

Director of Health in charge of the San Francisco Department of

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Public Health (DPH).

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Health Services for the County of Los Angeles.

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2009, Dr. Katz appointed Mivic Hirose to be Executive Director for

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LHH, and she remains in that position at the present time.

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Decl. ¶ 1; Katz Decl. ¶ 8.

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Hirose appointed Dr. Colleen Riley to the position of Medical

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Director of LHH, and she assumed that position on December 26,

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2009.

27

Dr. Riley was a Senior Physician Specialist, Civil Service

28

Classification 2232, at LHH.

Katz Decl. ¶ 1.

He is now the Director of
Id.

In March

Hirose

In consultation with Dr. Katz, Ms.

Riley Decl. ¶¶ 1, 3; Katz Decl. ¶ 8.

Prior to that time,

Riley Decl. ¶ 1.
2

1

Since about 1998, Plaintiff has been in a long-term

2

relationship with another doctor at LHH, Dr. Maria Rivero.

3

Depo. 25:1-27:3.

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Dr. Riley and Ms. Hirose were aware that Plaintiff and Dr. Rivero

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were a couple.

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Depo. 300:13-301:3.

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and Dr. Rivero often jointly raised issues at LHH, and she

8

understood that if one of them was expressing a concern, it “was

9

likely shared by the other.”

United States District Court
For the Northern District of California

10

Kerr

At all times relevant to this action, Dr. Katz,

Katz Depo. 33:14-20; Riley Depo. 65:9-66:1; Hirose
It was Ms. Hirose’s experience that Plaintiff

Hirose Depo. 44:18-45:7, 301:4-14.

In August 2009, Davis Ja & Associates, a consulting firm

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hired by the City to assess behavioral health services at LHH,

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issued a report (the Ja Report).

13

55:13-14.

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City replace some primary care physicians with mental health

15

professionals.

16

the physicians at LHH were upset by this recommendation, in part

17

because the number of physicians at the facility had been

18

gradually decreased over the years.

19

Riley Decl. ¶ 4; Kerr Depo.

The Ja Report recommended, among other things, that the

Riley Decl. ¶ 4; Kerr Depo. 274:18-22.

Many of

Riley Decl. ¶ 4.

In mid-August 2009, at a staff meeting, Plaintiff expressed

20

concerns about the Ja Report to Ms. Hirose.

21

After the meeting, Ms. Hirose issued a brochure that stated that

22

the medical executive committee at LHH had approved the Ja Report.

23

Id. at 59:5-23.

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medical executive committee and they each told him that they had

25

not voted to approve the report.

26

Thompson Depo. 138:2-24 (recalling “controversy” that “it’s true

27

that the med exec members had been involved in discussion related

Kerr Depo. 58:2-16.

Plaintiff later spoke to the members of the

Id. at 60:2-22.

28
3

See also

1

to that report,” but that “med exec committee had not acted in any

2

way on that report”).

3

After the release of the report, there were several meetings

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of medical staff members interested in drafting a resolution in

5

response to it.

6

Rivero wrote a petition based on the staff’s consensus views.

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The petition, entitled “Resolution of the LHH Medicine Service,”

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stated in part that, “because of concerns related to bias,

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inadequate data, flawed methodology, and lack of professional

Rivero Depo. 159:23-160:9.

Plaintiff and Dr.
Id.

United States District Court
For the Northern District of California

10

qualifications to assess physician services,” they disputed the Ja

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Report’s recommendation related to the replacement of physicians

12

with nurses, social workers and psychologists.

13

Ex. E.

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opinion that this recommendation is invalid, inappropriate,

15

unethical and potentially harmful to our patents, as well as to

16

their safe discharge to more integrated settings.”

17

and Dr. Rivero circulated the petition, and it was signed by

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almost all of the physicians at LHH, including Dr. Riley.

19

Depo. 160:15-25; Riley Decl. ¶ 5.

Stephenson Decl.,

Plaintiff’s petition also stated, “It is our professional

Id.

Plaintiff

Rivero

20

Plaintiff and Dr. Rivero also drafted a twenty-five page

21

critical analysis of the Ja Report, entitled “The Ja Report: A Job

22

Half Done.”

23

expressed a number of concerns about the methodology and

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recommendations of the Ja Report, including an allegation that Dr.

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Ja had not disclosed his potential biases, because he co-owned

26

property and shared a residential address with a high level

27

manager in the Community Behavioral Health Services (CBHS) of the

28

DPH, the agency that had contracted with Davis Ja & Associates to

Stephenson Decl., Ex. F.

4

In their critique, they

1

conduct the study.2

2

disclose the person’s name.

3

Plaintiff emailed a copy of his critique to a number of

4

individuals, including Dr. Riley, Dr. Katz and Ms. Hirose.

5

Stephenson Decl., Ex. G.

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that he received and “skimmed” the critique of the Ja Report

7

prepared by Plaintiff and Dr. Rivero).

8
9

Id. at 13.
Id.

Plaintiff’s critique did not
On September 15 and 16, 2009,

See also Katz Decl. ¶ 17 (acknowledging

On September 18, 2009, Plaintiff and Dr. Rivero also filed a
complaint with the City’s Ethics Commission and the Controller’s

United States District Court
For the Northern District of California

10

Whistle Blower program regarding the alleged conflict of interest,

11

and named Deborah Sherwood as the high-level CBHS manager who

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shared a personal relationship with Ja.

13

44:20-47:23; Kerr Depo., Ex. 2, PL00001-7.

14

and Ms. Hirose did not learn that Plaintiff and Dr. Rivero had

15

filed this formal complaint until late 2010 or thereafter.

16

Decl. ¶ 13; Riley Decl. ¶ 5; Kerr Decl. ¶ 18.

Compl. ¶ 9; Kerr Depo.
Dr. Riley, Dr. Katz

Hirose

17

While Plaintiff was researching the Ja Report, he also

18

learned that Dr. Katz was a paid consultant for Health Management

19

Associates (HMA).

20

September 21, 2009, Plaintiff and Dr. Rivero filed a second

21

complaint with the City’s Ethics Commission and the Controller’s

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Whistle Blower program, alleging that HMA had an ongoing contract

Kerr Depo. 84:9-85:8; Katz Decl. ¶ 22.

On

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24
25
26
27
28

2

Defendants state that Plaintiff’s critique “did not raise
any allegation of a conflict of interest relating to” this
individual, and that the allegation was first raised in the March
2010 whistleblower complaint. Reply at 4 n.5. However, Plaintiff
and Dr. Rivero alleged that this conflict of interest resulted in
potential bias in the “A Job Half Done” critique, see Stephenson
Decl., Ex. F, 13, and raised the issue in the September 18, 2009
whistleblower complaint filed by Plaintiff and Dr. Rivero, see
Kerr Depo., Ex. 2, PL00001.
5

1

with the City Controller to provide advisory services to both the

2

DPH and the City Controller, and that Dr. Katz’s financial

3

relationship with HMA created various concerns, including that HMA

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may have received favorable treatment in being awarded the

5

contract with the City.

6

did not learn of the formal complaint regarding Dr. Katz’s

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relationship with HMA until Plaintiff initiated the instant

8

lawsuit.

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Kerr Depo., Ex. 3.3

Drs. Riley and Katz

Riley Decl. ¶ 25; Kerr Decl. ¶ 22.

Several weeks before filing the complaint about HMA and Dr.

United States District Court
For the Northern District of California

10

Katz, Plaintiff discussed the purported conflict with several

11

people, including Dr. Debra Brown, who did not work at LHH, but he

12

did not discuss it with doctors at LHH, except Dr. Rivero.

13

Depo. 85:15-87:2.

14

for their respective facilities in their union, the Union of

15

American Physicians and Dentists (UAPD).

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2009, Dr. Brown sent an email that referenced the alleged conflict

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involving HMA and Dr. Katz to a number of people at LHH or

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otherwise in the UAPD, including Dr. Riley.

19

H.4

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by Plaintiff and included the text of Plaintiff’s email at the

Kerr

Dr. Brown and Plaintiff both served as stewards

Id.

On September 8,

Stephenson Decl., Ex.

Dr. Brown sent this email as a reply to an email circulated

21
22
23
24
25
26

3

Plaintiff stated in his opposition brief that the contract
between the DPH and HMA was approved by Dr. Katz. Opp. at 2.
However, he did not make this allegation in his deposition or in
the formal complaint lodged with the Ethics Commission and the
Whistle Blower program. Instead, he attached documents to that
complaint showing that the contract was signed by other city
officials and was approved by members of the Health Commission
Finance Committee, not Dr. Katz. Kerr Depo., Ex. 3.
4

27
28

In his deposition testimony, Plaintiff identifies Dr. Brown
as the sender of the email. Kerr Depo. 85:18-86:24. The email
was sent by “Doctorbeth” and was signed by “Deb.” Stephenson
Decl., Ex. H.
6

1

bottom of her email.

2

purported Ja conflict of interest and did not mention the conflict

3

of interest involving HMA and Dr. Katz.

4

Brown summarized Plaintiff’s allegations about Ja and Sherwood,

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and then stated,

6

Id.

Plaintiff’s email had discussed the

Id.

In her email, Dr.

And then Mitch Katz was taking money and travel funds in
2009 to consult for HMA, which got $300,000 from the
city in 2005 to review the medical services model at
Laguna Honda.

7
8

How much more creepy conflict of interest behavior are
we likely to uncover during all this?

9

United States District Court
For the Northern District of California

10

Id.

11

Thompson, the Chief of Staff, testified that this was the type of

12

email that he might have forwarded it to Ms. Hirose.5

13

One person who may have received this email, Dr. Steven

At around the same time, Dr. Rivero noticed that certain

14

patient activities were being cut because of a purported lack of

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funds in the LHH Gift Fund.

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trips for patients to restaurants were decreased from once per

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month to once per quarter.

Specifically, she noticed that bus

Rivero Depo. 271:6-272:24.

She also

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19
5

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21
22
23
24
25
26
27
28

There is no email address on Dr. Brown’s email itself that
appears to correspond to Dr. Thompson. Dr. Thompson did not
testify that he received it and testified instead that he
“probably” saw the e-mail before. Thompson Depo. 289:5-290:6.
Sometime in 2011, Dr. Thompson deleted all of the emails on his
personal computer related to LHH, and does not have any records of
this. Id. at 232:1-234.
Ms. Hirose testified that Dr. Thompson on occasion forwarded
her emails that he thought were inflammatory. Hirose Depo.
295:16-23. Neither party cites any testimony or other evidence
showing that Ms. Hirose did or did not receive a forward from Dr.
Thompson containing this or any other particular email from
Plaintiff or anyone else. Defendants represent that “LHH
preserved and produced all relevant LHH email files, including Dr.
Hirose’s received mail containing the e-mails Thomas [sic] sent
her.” Reply at 6 n.8. Plaintiff has not offered any emails from
Ms. Hirose’s email box that were sent by Dr. Thompson.
7

1

was denied money for tacos for patients on one occasion and was

2

told that the “gift fund was bankrupt.”

Rivero Depo. 174:15-23;

3

271:6-272:24; Kerr Depo. 118:23-119:2.

Dr. Rivero and Plaintiff

4

wanted to find out if the fund was actually bankrupt and where the

5

money had gone.

6

120:1.

7

Rivero Depo. 174:13-175:21; Kerr Depo. 118:23-

On October 31, 2009, Dr. Rivero sent a public records request

8

to LHH, asking for all documents showing, among other things, the

9

quarterly balance of the Gift Fund, each payment into the Gift

United States District Court
For the Northern District of California

10

Fund, and each withdrawal or payment from the Gift Fund.

11

Depo. 171:10-172:13, Ex. 34.

12

individuals at LHH, including Ms. Hirose’s assistant.

13

Plaintiff’s name did not appear on the records request, and he was

14

blind carbon copied on the email.

15

34.

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meeting, Tess Navarro, the Chief Financial Officer for LHH,

17

informed the committee of Dr. Rivero’s document request, because

18

it was a large request, to which a lot of staff time would be

19

required to respond.

20

between September and November 2009, Ms. Navarro had brought to

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Ms. Hirose’s attention that they needed to revise the policies for

22

the Gift Fund to match the procedures that they were practicing.

23

Hirose Depo. 81:4-82:19, 95:10-96:5.

24

Rivero

She sent the request to several
Id.

Rivero Depo. 171:10-172:25, Ex.

On November 10, 2009, at the hospital executive committee

Navarro Depo. 79:10-82:17.

At some point

In the fall of 2009, the Mayor instructed DPH and all other

25

City departments to submit proposals for mid-year budget cuts.

26

Katz Decl. ¶ 9.

27

dollars from the DPH budget that had been set in June 2009, and

28

asked that departments find savings in the current and future

The Mayor was seeking to cut thirteen million

8

1

fiscal years.

2

an upcoming move in late 2010 to a new, smaller facility.

3

Decl. ¶ 5.

4

thirty-bed units, whereas in the new facility, residents live in

5

sixty-bed “neighborhoods.”

6

the twenty-five bed hospice unit would merge with thirty-five

7

other residents requiring palliative care and enhanced support to

8

form a single neighborhood.

Id.

During this time, LHH was also preparing for
Katz

In the old facility, the residents were housed in

Riley Decl. ¶ 2.

In the transition,

Id.

Dr. Katz and Ms. Hirose discussed the proposed mid-year

10
United States District Court
For the Northern District of California

9

budget cuts for LHH shortly before DPH submitted its proposal to

11

the Mayor’s office in December 2009.

12

Decl. ¶ 7.

13

was to reduce physician staffing by a .55 full time equivalent

14

(FTE) position.

15

eliminate two Civil Service Classification 2232, Senior Physician

16

Specialists positions at 1.55 FTE and use some of the savings to

17

employ a 1.0 FTE Civil Service Classification 2230 Physician

18

Specialist, who is compensated at a lower rate than a 2232

19

position, to continue to provide enough coverage for night and

20

weekend shifts.

21

proposed eliminating the 2232 positions held by Plaintiff, funded

22

at .75 FTE, and by Dr. Denis Bouvier, funded at .80 FTE.

23

Decl. ¶ 7.

24

Mayor’s office in December 2009.

25

submitted the proposal to the Health Commission without

26

identifying the specific employees who would be affected.

27
28

Katz Decl. ¶ 11; Hirose

One way to reduce the LHH budget that they identified

Katz Decl. ¶ 11.

Under this proposal, LHH would

Hirose Decl. ¶ 7; Katz Decl. ¶ 11.

Ms. Hirose

Hirose

DPH submitted the mid-year budget cut proposal to the
Katz Decl. ¶ 15.

It also

Id.

In her declaration, Ms. Hirose states that she proposed to
eliminate Plaintiff’s position, in part because she had noted that
9

1

while many other doctors were already caring for about sixty

2

residents, Plaintiff had at all times maintained a caseload of

3

approximately twenty-five residents and insisted on providing care

4

only to residents of his hospice unit, unlike all other hospital

5

doctors, who routinely assisted in the treatment and care of

6

residents in their ward and elsewhere.6

7

Ms. Hirose believed that this made him less suited than other

8

doctors for the new sixty-resident neighborhood model, which would

9

generally require each doctor to be responsible for that number of

Hirose Decl. ¶¶ 5, 9.

United States District Court
For the Northern District of California

10

patients.

11

that Plaintiff had twenty-five patients, but did not know if he

12

would be willing to take on additional patients.

13

15:21-16:14.

14

deposition that, in certain wards with a high number of

15

admissions, such as the hospice ward on which Plaintiff worked,

16

she assigns a lower than average patient load to each doctor

17

because of the extra responsibilities associated with admissions.

18

Hirose Depo. 168:1-170:14.

19

Id. at ¶¶ 4-5, 9.

At that time, Ms. Hirose knew only

Hirose Depo.

However, Ms. Hirose also admitted during her

Dr. Katz testified that he agreed with the recommendation to

20

eliminate Plaintiff’s position “on the basis of patients and

21

hours.”

22

did not cover other wards, he was unable to state any reason for

23

this belief, and he stated that this belief was not the reason

24

that he agreed with the recommendation.

Katz Depo. 216:9-15.

While he believed that Plaintiff

Id. at 216:1-19.

25
26
6

27
28

Plaintiff asserts that Ms. Hirose admitted that she had no
personal knowledge of whether he covered his share of wards. Opp.
at 18. However, he cites no testimony or other evidence in which
Ms. Hirose made any such admission.
10

1

On December 24, 2009 and January 20, 2010, Dr. Rivero made

2

two additional public records requests for documents related to

3

the Gift Fund.

4

either of these subsequent requests.

5

Rivero did not state why she sought this information, and the LHH

6

officials did not ask her why she made these requests.

7

Depo. 173:10-175:7.

8

Exs. 112, 113.

Plaintiff’s name did not appear on
Id.

In the requests, Dr.

Rivero

After Dr. Riley assumed the Medical Director position in late
December 2009, she questioned whether Plaintiff would agree to

10
United States District Court
For the Northern District of California

9

perform new or different duties outside of the hospice unit, as

11

would be required of all doctors at the new facility.

12

¶ 10.

13

for the time she worked at LHH, the only unit regularly under

14

Plaintiff’s supervision was the hospice, which had twenty-five

15

patients, (2) documents in his personnel file that indicated that

16

he was unwilling to take on duties beyond hospice and would do so

17

reluctantly only after a great deal of prodding by previous

18

Medical Directors, (3) the fact that he did not regularly cover

19

units when another physician was on his or her regular day off,

20

and (4) conversations with other employees, including a former

21

Medical Director, about Plaintiff’s unwillingness to work outside

22

of the hospice.

23

Riley Decl.

Her concerns were based on (1) her own observation that,

Id.

Other doctors had similar experiences with Plaintiff, but did

24

not believe his preferences to be out of the ordinary for doctors

25

at LHH.

26

through the present, who was responsible for scheduling and

27

handling staff absences, testified that Plaintiff took on more

28

coverage assignments during the time that she was in that

Dr. Banchero-Hasson, the Chief of Medicine from 2006

11

1

position.

2

beginning, Plaintiff would not do coverage for other people or

3

other units.

4

coverage, and took beeper assignments that were equivalent to

5

other physicians.

6

volume of ward coverage as other physicians, because Dr. Banchero-

7

Hasson was aware that his preference was being in the hospice and

8

she used someone more willing to cover the rest of the hospital

9

than Plaintiff was.

Banchero-Hassan Depo. 17:7-21, 44:14-18.

Id. at 44:14-16.

In the

Over the years, he increased his

Id. at 44:16-45:10.

Id. at 46:3-14.

He did not do the same

When Dr. Banchero-Hasson

United States District Court
For the Northern District of California

10

asked him to cover certain things, he did not refuse her requests

11

but would sometimes negotiate and ask to do other things.

12

46:15-47:5.

13

coverage.

14

preferences, such as not working with male patients or on the

15

chronic wards.

16

accommodate what each doctor wanted to do when making their

17

assignments.

18

Id. at

In her experience, other doctors also resisted doing

Id. at 152:1-11.

Other doctors also had certain

Id. at 43:1-12.

Dr. Banchero-Hasson tried to

Id. at 45:12-19.

On February 4, 2010, to address her concerns, Dr. Riley met

19

with Plaintiff to ask him to provide regular coverage one day a

20

week for a part-time physician.

21

evidence that she told him that failure to do so would jeopardize

22

his job.

23

explaining why he could not increase his workload to cover another

24

physician.

25

“simply cannot do more clinical coverage.”

26

the hospice unit was an intensive and highly taxing unit on which

27

to work, that he regularly committed extra time to the LHH in ways

28

that were not considered “work,” such as serving as the UAPD

Riley Decl. ¶ 11.

There is no

Plaintiff declined to do so and wrote her an email

Riley Decl. ¶ 11, Ex. D.

12

Plaintiff stated that he
Id.

He explained that

1

steward, and that he often stayed late or came in on weekends on

2

unpaid time.

3

provide specialist care in the hospice, not general internal

4

medicine, and that “[r]egularly covering a General Medical ward

5

would be excessive and unprecedented in my case.”

6

regularly covering the other ward, Plaintiff offered to take on

7

other types of additional duties to save work for other

8

physicians, and suggested that Dr. Riley ask certain other doctors

9

who had expressed willingness to increase their hours to provide

United States District Court
For the Northern District of California

10

the coverage.

11

Id.

He also stated that he had been hired to

Id.

Instead of

exchange.

12

Id.

Dr. Riley subsequently told Ms. Hirose of this

Dr. Riley acknowledged that there was a policy at LHH about

13

how to address physicians who exhibited performance issues.

14

Depo. 291:1-20.

15

issue.

16

would generally have a second counseling, this time documented.

17

Id. at 291:12-15.

18

steps beyond a documented warning could happen.

19

While she acknowledged that refusal to take on other clinical

20

assignments would be a performance issue that would normally be

21

addressed first through the counseling process, Dr. Riley did not

22

counsel Plaintiff and testified that she had “no reason” for

23

failing to do so.

24

Riley

First, the physician would be counseled on the

Id. at 291:1-11.

If the issue came up a second time, they

If the issue came up a third time, further
Id. at 291:16-20.

Id. at 291:25-293:10.

On March 2, 2010, Plaintiff and Dr. Rivero sent the Ethics

25

Commission and the Controller’s Whistleblower Program a third

26

complaint, this one entitled “Statement of Concern--Laguna Honda

27

Hospital Gift Fund.”

28

document, they stated that, under the San Francisco Administrative

Kerr Depo. 121:25-122:17, Ex. 109.

13

In this

Code, the Gift Fund was established “for the general benefit and

2

comfort of patients,” and that the LHH policy on the Gift Fund

3

states that it was a “restricted” fund “available neither to

4

support the minimum obligations of the City to operate the

5

Hospital nor to fund routine City expenditures,” but rather that

6

it was to be used to “benefit residents in general to enhance the

7

quality of life of residents beyond the basic care provided by the

8

City at the Hospital.”

9

among other things, the funds were being improperly spent on

10
United States District Court
For the Northern District of California

1

catered meals, travel expenses and training for staff, while

11

amenities and activities for residents were cut.

12

88.7

13

after the filing of this lawsuit.

14

Ex. 109 at PL00080.

They alleged that,

Id. at PL00080-

Dr. Katz first learned of this formal complaint in late 2010
Katz Decl. ¶ 22.

Plaintiff was notified in a letter dated March 5, 2010 that

15

he would be terminated effective May 8, 2010.

16

Ex. M.

17

2010.

18

his layoff notice.

19

positions became available because of the retirement of other

Stephenson Decl.,

His termination date was later pushed back to June 11,
Several 2232 positions were posted after Plaintiff received
Riley Decl. ¶ 24.

Most or all of these

20
21
22
23
24
25
26
27
28

7

Plaintiff states that, during this period, Ms. Hirose also
had “been involved in correspondence and discussion about a number
of procedural and fiscal irregularities involving the Gift Fund.”
Opp. at 2. However, the single email that he cites in support of
this statement does not appear related to the allegations in his
complaints. In the email, Ms. Hirose was asked about expenditures
on the annual report for the Gift Fund, which showed that the
expenditures were larger than the amount received into the fund.
Stephenson Decl., Ex. I. Ms. Hirose explained what LHH was doing
to resolve the issue. Id. She stated that they had realized that
they were spending more than they were receiving, that they had
determined what they were spending the excess amount on and were
seeking alternative funding sources for some of those items, and
that they asked the director of therapeutic activities at LHH to
make a budget projection and reduce spending. Id.
14

1

members of the LHH medical staff, including Dr. Rivero.

2

Plaintiff was eligible to apply for these positions, but did not.

3

Id.

4

one of the vacant positions and having him perform one of those

5

jobs without an application from him, although they had the

6

authority to do so.

Id.

Drs. Katz and Riley did not consider moving Plaintiff into

Katz Depo. 247:4-23.

7

On March 13, 2010, Plaintiff filed a fourth formal complaint

8

with the Ethics Commission alleging that his termination had been

9

in retaliation for his earlier complaints related to the Gift

United States District Court
For the Northern District of California

10

Fund, the Ja Report and the HMA conflict of interest.

11

259:1-14, Ex. 110.

12

Kerr Depo.

After Plaintiff received his termination notice, other staff

13

members expressed to Dr. Riley that they were upset that he was

14

fired.

15

Dr. Riley a petition praising Plaintiff at length, expressing

16

concern that his termination would negatively impact the patients

17

and asking about the future development of the LHH hospice and

18

palliative care program.

19

2010, a number of physicians gave Dr. Riley a petition expressing

20

concerns about the proposed layoffs of Dr. Bouvier and Plaintiff

21

from the 2232 positions and stated that these actions would have

22

various adverse impacts on the provision of medical care at LHH.

23

Riley Decl. ¶ 22, Ex. G.

24

Riley Decl. ¶ 19.

In mid-March, the hospice staff gave

Riley Decl. ¶ 19, Ex. F.

On March 27,

On April 16, 2010, Drs. Thompson and Riley met with Plaintiff

25

to transition his patients to Dr. Bouvier, who was selected to

26

become the temporary hospice physician in addition to performing

27

other duties.

28

Dr. Bouvier held the other 2232 position that was to be

Riley Decl. ¶ 21; Riley Depo. 174:3-13.

15

Although

1

eliminated, he also held an alternate position as a 2230 Physician

2

Specialist at the LHH.

3

his 2232 position, Dr. Bouvier continued to work night and weekend

4

shifts at LHH in the 2230 position.

5

the meeting in order to have overlap of Plaintiff and Dr.

6

Bouvier’s care for the patients in the hospice ward.

Riley Decl. ¶ 7.

After the elimination of

Id. at ¶ 8.

Dr. Riley held

Id. at ¶ 21.

7

In late May 2010, the ABC7 News I-Team at the television

8

station KGO, the local ABC affiliate, aired multiple investigative

9

reports featuring Plaintiff and Dr. Rivero detailing their

United States District Court
For the Northern District of California

10

allegations of the mismanagement of the Gift Fund.

11

Decl., Exs. N, EE.8

12

they first learned that Plaintiff and Dr. Rivero were complaining

13

about the Gift Fund through the production and airing of these

14

news reports.

Stephenson

Ms. Hirose, Dr. Riley and Dr. Katz claim that

Hirose Decl. ¶ 15; Riley Decl. ¶ 16; Katz Decl.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

Defendants object to these exhibits, stating that “this
evidence is not relevant, lacks foundation, and is hearsay.”
Reply at 2 n.2. Defendants make identical, conclusory objections
to a number of Plaintiff’s exhibits. Defendants’ objections are
vague and provide no explanation as to why they believe any
particular exhibit is objectionable. All of their evidentiary
objections are overruled for their vagueness. See, e.g,
Californians for Disability Rights, Inc. v. Cal. DOT, 249 F.R.D.
334, 350 (N.D. Cal. 2008) (declining “to analyze objections that
defendants did not themselves bother to analyze” and overruling
their objections as unduly vague); Cmtys. Actively Living Indep. &
Free v. City of Los Angeles, 2011 U.S. Dist. LEXIS 118364, at
*27-28 (C.D. Cal.) (“It is not the Court’s responsibility to
attempt to discern the City’s grounds for objecting to evidence
submitted by Plaintiffs where the City merely repeats the same
categorical objections but provides little to no explanation as to
why the subject evidence is objectionable.”).
Further, these objections are baseless. The evidence of the
news reports is clearly relevant. Plaintiff claims in part that
Defendants terminated him because of these reports. Multiple
witnesses, including each of the individual Defendants, testified
that they saw or were aware of these reports. Further, the
reports are not offered to prove the truth of the matter asserted
therein and are therefore not hearsay.
16

1

¶ 19.

2

Rivero had filed formal complaints with the Ethics Commission and

3

the Controller’s Whistleblower Program.

4

EE.

5

The news reports did not disclose that Plaintiff and Dr.

Stephenson Decl., Exs. N,

At any point until Plaintiff’s termination was effective on

6

June 11, 2010, Dr. Katz could have revoked his termination notice.

7

Katz Depo. 124:9-14.

8

also could have moved Plaintiff into one of the open 2232

9

positions.

Until that time, Dr. Riley or Ms. Hirose

Hirose Depo. 278:10-16, 289:7-290:20.

One of those

United States District Court
For the Northern District of California

10

positions was filled by Dr. Emily Lee, who was a personal friend

11

of Ms. Hirose before she began work at the LHH.

12

291:6-292:8.

13

Id. at

On September 2, 2010, Dr. Katz issued a press release

14

responding to the ABC7 news story.

15

it, he described records requests submitted by “two former Laguna

16

Honda employees” related to the Gift Fund.

17

in reviewing documents, LHH had found two checks that should have

18

been deposited into the patient fund and were instead put into the

19

staff development fund, and that the errors had been corrected.

20

Id.

21

made and broadcast about the patient gift fund,” that he expected

22

“these false statements to continue,” and that he believed “our

23

detractors will cite these two errors as proof that their

24

allegations were correct, even though these two errors in no way

25

influenced the amount of money available for patient activities.”

26

Id.

27

to conduct an audit of the Gift Fund accounting practices.

Stephenson Decl., Ex. O.

Id.

In

He stated that,

He also asserted that “there have been inaccurate statements

Finally, he stated that LHH had asked the Controller’s Office

28
17

Id.

1

On November 12, 2010, Plaintiff initiated the instant case in

2

San Francisco Superior Court.

3

federal court.

4

Defendants thereafter removed it to

Sometime in the fall of 2010, the District Attorney’s office

5

contacted Dr. Katz regarding his relationship with HMA.

6

Decl. ¶ 22.

7

that he had a conflict of interest because he had done work for

8

HMA, which had a contract with the City.

9

did not tell him who made the allegations.

Katz

The investigator told him that someone had alleged

Id.

The investigator

Id.

Sometime after

United States District Court
For the Northern District of California

10

that, Dr. Katz also spoke with an investigator from the Ethics

11

Commission.

12

Id.

On November 22, 2010, the Controller’s Office, City Services

13

Auditor issued an audit report finding a variety of issues with

14

the LHH’s Gift Fund.

15

things, the audit found that “Laguna Honda incorrectly recorded a

16

total of $151,739 in donations, operations income, and interest to

17

the Gift Fund’s staff development subaccounts instead of to the

18

patient subaccounts and operating income.”

19

Stephenson Decl., Ex. J.9

Among other

Id. at 13.

At the time that LHH moved to the new facility in December

20

2010, the neighborhood that included the hospice was assigned to

21

two physicians, Dr. Bouvier and Dr. Williams, although the plan

22
23
24
25
26
27
28

9

As discussed above, Defendants make a conclusory objection
to this report, stating that it “is not relevant, lacks
foundation, and is hearsay.” However, this report is clearly
relevant to Plaintiff’s claims. The fact that the City’s own
Auditor found later that there had in fact been misuse of the Gift
Fund is probative of Defendants’ motives in terminating Plaintiff.
Defendants do not dispute the authenticity of this or any other
exhibit. Finally, this report was issued by the City and is a
public record, and is therefore either non-hearsay or subject to a
hearsay exception. See Federal Rules of Evidence 801(d)(2) and
803(8).
18

1

had originally been to assign only one physician to this

2

neighborhood.

3

Williams also had other duties.

4

about thirty-three palliative care residents, covered other units,

5

was on-call, did consults and was in charge of developing

6

hospital-wide palliative care and consultation programs.

7

Decl. ¶ 15; Williams Depo. 79:13-20.

8

physician for approximately twenty-seven to twenty-nine hospice

9

residents, along with thirty to sixty residents in another ward,

Riley Decl. ¶ 15.

Both Dr. Bouvier and Dr.
Id.

Dr. Williams was assigned

Dr. Bouvier was the primary

United States District Court
For the Northern District of California

10

because another physician had unexpectedly departed.

11

Williams Depo. 81:14-23; 84:2-7.

12

Bouvier was given a 2232 appointment again.

13

Riley

Id.;

At some point in late 2010, Dr.
Riley Depo. 174:8-25.

On July 29, 2011, the Controller’s Office terminated its

14

contract with the Ja firm.

15

in part, “In responding to a Sunshine request submitted by a

16

member of the public, I recently became aware of irregularities in

17

the solicitation and negotiation processes that led to the award

18

of the contract.

19

it is in the City’s interests to terminate the contract as soon as

20

possible.”

21

In the termination letter, it stated

In light of these issues, I have determined that

Stephenson Decl., Ex. P.

In Plaintiff’s complaint in the instant case, he asserts

22

claims under 42 U.S.C. § 1983 for deprivation of his First

23

Amendment freedom of speech rights and deprivation of due process

24

under the Fourteenth Amendment, and claims for violation of

25

California Government Code section 53298, California Health and

26

Safety Code section 1432 and California Labor Code section

27

1102.5(b).

28
19

1
2

Defendants filed their motion for summary judgment on May 31,
2012 on all of Plaintiff’s claims.

3

Docket No. 40.

On July 16, 2012, the parties filed a stipulation withdrawing

4

a motion to file under seal and stating that Plaintiff would not

5

be opposing the motion for summary judgment as it relates to his

6

due process claim and that he consented to the Court entering an

7

order against him in connection with that cause of action.

8

No. 55.

9

Docket No. 58.

Docket

The Court granted the stipulation on July 17, 2012.

United States District Court
For the Northern District of California

10

Plaintiff filed his opposition to Defendants’ motion for

11

summary judgment on July 19, 2012 and re-filed it on July 20,

12

2012.

13

“his second and third causes of action for deprivation of his

14

fourteenth amendment due process rights and violation of

15

California Government Code §53298.”

16

the motion as to the other three causes of action only.

In it, he stated that he does not oppose the motion as to

17
18

Opp. at 4.

Plaintiff opposed
Id.

DISCUSSION
I.

Motion for summary judgment

19

A. Legal standard

20

Summary judgment is properly granted when no genuine and

21

disputed issues of material fact remain, and when, viewing the

22

evidence most favorably to the non-moving party, the movant is

23

clearly entitled to prevail as a matter of law.

24

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

25

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

26

1987).

27
28

Fed. R. Civ. P.

The moving party bears the burden of showing that there is no
material factual dispute.

Therefore, the court must regard as
20

1

true the opposing party’s evidence, if supported by affidavits or

2

other evidentiary material.

3

815 F.2d at 1289.

4

in favor of the party against whom summary judgment is sought.

5

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

6

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

7

F.2d 1551, 1558 (9th Cir. 1991).

8
9

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the

United States District Court
For the Northern District of California

10

outcome of the case.

The substantive law will identify which

11

facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

12

242, 248 (1986).

13

Where the moving party does not bear the burden of proof on

14

an issue at trial, the moving party may discharge its burden of

15

production by either of two methods:

19

The moving party may produce evidence negating
an essential element of the nonmoving party’s
case, or, after suitable discovery, the moving
party may show that the nonmoving party does not
have enough evidence of an essential element of
its claim or defense to carry its ultimate
burden of persuasion at trial.

20

Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d

21

1099, 1106 (9th Cir. 2000).

16
17
18

22

If the moving party discharges its burden by showing an

23

absence of evidence to support an essential element of a claim or

24

defense, it is not required to produce evidence showing the

25

absence of a material fact on such issues, or to support its

26

motion with evidence negating the non-moving party’s claim.

27

see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);

28

Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
21

Id.;

If

1

the moving party shows an absence of evidence to support the non-

2

moving party’s case, the burden then shifts to the non-moving

3

party to produce “specific evidence, through affidavits or

4

admissible discovery material, to show that the dispute exists.”

5

Bhan, 929 F.2d at 1409.

6

If the moving party discharges its burden by negating an

7

essential element of the non-moving party’s claim or defense, it

8

must produce affirmative evidence of such negation.

9

F.3d at 1105.

Nissan, 210

If the moving party produces such evidence, the

United States District Court
For the Northern District of California

10

burden then shifts to the non-moving party to produce specific

11

evidence to show that a dispute of material fact exists.

12

Id.

If the moving party does not meet its initial burden of

13

production by either method, the non-moving party is under no

14

obligation to offer any evidence in support of its opposition.

15

Id.

16

ultimate burden of persuasion at trial.

This is true even though the non-moving party bears the
Id. at 1107.

17

B. Section 1983 free speech claim

18

Plaintiff asserts that his termination was in retaliation for

19

complaining about the Ja Report, expressing concerns about Dr.

20

Katz’s potential conflict of interest with HMA, inquiring into and

21

bringing attention to the Gift Fund and filing formal complaints

22

regarding these three topics.

23

“In order to state a claim against a government employer for

24

violation of the First Amendment, an employee must show (1) that

25

he or she engaged in protected speech; (2) that the employer took

26

‘adverse employment action’; and (3) that his or her speech was a

27

‘substantial or motivating’ factor for the adverse employment

28

action.”

Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.
22

1

2003) (citations omitted).

2

Plaintiff’s termination constituted an adverse employment action.

3

They contend that Plaintiff cannot show that he engaged in

4

protected speech that was a motivating factor for his termination.

5
6

1.

Defendants do not dispute that

Protected speech

Defendants do not dispute that Plaintiff’s formal complaints

7

constituted protected speech.

8

discussion of the Ja Report and the open records requests related

9

to the Gift Fund did not constitute protected speech.

However, they argue that his public

They also

United States District Court
For the Northern District of California

10

contend that, other than his formal complaints, he did not engage

11

in public speech about Dr. Katz’s purported conflict of interest

12

with HMA.

13
14

a.

The Ja Report

“An employee’s speech is protected under the First Amendment

15

if it addresses ‘a matter of legitimate public concern.’”

16

Coszalter, 320 F.3d at 973 (quoting Pickering v. Bd. of Educ., 391

17

U.S. 563, 571 (1968)).

18

information is needed or appropriate to enable the members of

19

society to make informed decisions about the operation of their

20

government merits the highest degree of first amendment

21

protection.”

22

“On the other hand, speech that deals with ‘individual personnel

23

disputes and grievances’ and that would be of ‘no relevance to the

24

public’s evaluation of the performance of governmental agencies’

25

is generally not of ‘public concern.’”

26

City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)).

27

v. City & Cnty. of San Francisco, 109 F.3d 578, 585 (9th Cir.

28

1997) (“the content of the communication must be of broader

“Speech that concerns issues about which

Id. (internal quotations and formatting omitted).

23

Id. (quoting McKinley v.
See also Roe

1

societal concern.

2

community is likely to be truly interested in the particular

3

expression, or whether it is more properly viewed as essentially a

4

private grievance.”).

5

speech deals with an issue of public concern is to be made with

6

reference to the content, form, and context of the speech.”

7

Coszalter, 320 F.3d at 973-74 (internal quotations omitted).

8
9

The focus must be upon whether the public or

“The determination of whether an employee’s

Defendants contend that the petition circulated by Plaintiff
and Dr. Rivero and the “A Job Half Done” critique of the Ja Report

United States District Court
For the Northern District of California

10

were not matters of public concern because they addressed only

11

personnel disputes and grievances.

12

Defendants knew about the petition and critique.

13

The Court disagrees.

They do not dispute that

In Ulrich v. City & County of San

14

Francisco, 308 F.3d 968 (2002), the Ninth Circuit found that the

15

district court erred when it concluded that a former doctor’s

16

speech about the layoff of physicians at LHH was not protected.

17

The Ninth Circuit concluded that, because the doctor’s speech had

18

“touched on the ability of the hospital to care adequately for

19

patients,” it involved a matter of public concern.

20

Similarly, here, in the petition, Plaintiff and the other doctors

21

expressed concern that the replacement of physicians with nursing

22

staff, social workers and psychologists would be “potentially

23

harmful to our patents, as well as to their safe discharge to more

24

integrated settings.”

25

Half Done” critique, Plaintiff and Dr. Rivero discussed at length

26

their concerns regarding the impact that the Ja Report’s

27

recommendations would have on patient care.

28

critique, Plaintiff and Dr. Rivero also highlighted the conflict

Stephenson Decl., Ex. E.

24

Id. at 978-79.

In the “A Job

Further, in that

1

of interest between Sherwood and Ja, which could have introduced

2

bias into the Ja Report.

3

Although Defendants suggest that the speech was not protected

4

because it would not reach the public at large, the fact that

5

Plaintiff brought these allegations openly within the institution

6

in multiple forums indicates “that he spoke order to bring

7

wrongdoing to light, not merely to further some purely private

8

interest.”

9

directed, the public employee does not forfeit protection against

Ulrich, 308 F.3d at 979.

“Where speech is so

United States District Court
For the Northern District of California

10

governmental retaliation because he chose to press his cause

11

internally.”

12

Id.

Defendants also argue that Plaintiff acted within his duties

13

as a City employee and union representative and that therefore his

14

speech is not protected.

15

547 U.S. 410, 421 (2006) (holding that “when public employees make

16

statements pursuant to their official duties, the employees are

17

not speaking as citizens for First Amendment purposes, and the

18

Constitution does not insulate their communications from employer

19

discipline”)).

20

as citizen if the speaker had no official duty to make the

21

questioned statements, or if the speech was not the product of

22

performing the tasks the employee was paid to perform.”

23

Rodriguez, 2012 WL 3185693, at *5 (9th Cir.) (quoting Posey v.

24

Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 (9th

25

Cir. 2008)) (formatting in original).

26

were not encompassed within his official duties as a hospice

27

physician and he was not paid to make these criticisms.

28

Defendants also offer no evidence or authority for the proposition

Mot. at 16 (citing Garcetti v. Ceballos,

“[S]tatements are made in the speaker’s capacity

25

Dahlia v.

Plaintiff’s complaints here

1

that Plaintiff’s statements in his capacity as a union

2

representative are encompassed in his official physician duties as

3

a public employee or even that Plaintiff performed the activities

4

at issue here in his role as a union representative.

5

Plaintiff and Dr. Rivero clearly stated in the “A Job Half Done”

6

critique that its content consisted of their own personal views.

7

Accordingly, the Court concludes that the petition and “A Job Half

8

Done” critique were protected speech.

9

b.

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Notably,

Dr. Katz’s alleged conflict of interest with
HMA

Defendants argue that Plaintiff can offer no evidence that he
engaged in any earlier protected speech, other than the formal
complaint, regarding Dr. Katz’s purported conflict of interest
based on his relationship with HMA.

In his response, Plaintiff

states that he “first expressed concern about Katz’ potential
conflict in early September 2009 in group emails that circulated
among all LHH physicians and other UAPD members.”

Opp. at 9.

At

the hearing, Plaintiff acknowledged that the only email that
discussed the Katz conflict of interest was a September 8, 2009
email that was sent by Dr. Brown, not Plaintiff.
Decl., Ex. H.

Stephenson

Although it was sent as a reply to a prior email

sent by Plaintiff, Plaintiff’s email did not mention this conflict
of interest and Dr. Brown did not present the suspicions about Dr.
Katz as held by Plaintiff rather than herself.

Accordingly, the

Court finds that there is no evidence that, other than through his
formal complaint, Plaintiff engaged in protected speech related to
Dr. Katz’s purported conflict of interest.

28
26

1

c.

Gift Fund

2

Defendants do not dispute that the ABC7 news report on

3

Plaintiff’s Gift Fund allegations constituted protected speech.

4

Defendants argue that the Sunshine public records requests did not

5

constitute protected speech for two reasons: first, that Dr.

6

Rivero, not Plaintiff, submitted these requests; and second, that

7

the requests were not expressive speech.

8
9

The Court finds that there is a material dispute of fact as
to both of these points.

As to the first, although Dr. Rivero

United States District Court
For the Northern District of California

10

submitted the public records requests, Plaintiff has offered

11

evidence that she did so in collaboration with him.

12

of the individual Defendants testified that, at the time of the

13

relevant events, they knew that Plaintiff and Dr. Rivero were a

14

couple, and Ms. Hirose understood that complaints submitted by one

15

of them likely came from both.

16

65:9-66:1; Hirose Depo. 44:18-45:7, 300:13-14.

17

Barrington Cmty. Unit Sch. Dist. 220, 2005 U.S. Dist. LEXIS 3065,

18

at *19-20 (N.D. Ill.) (“standing by” a spouse’s speech found to

19

constitute protected expressive conduct).

Further, each

Katz Depo. 33:14-20; Riley Depo.
See Toronyi v.

20

As to whether the requests were expressive speech, under the

21

circumstances presented here, a reasonable factfinder could infer

22

Dr. Rivero and Plaintiff intended to convey a message that they

23

suspected that the Gift Fund was being managed and used

24

improperly.

25

particularized message was present, and in the surrounding

26

circumstances the likelihood was great that the message would be

27

understood by those who viewed it.’”

28

379 F.3d 802, 810 (9th Cir. 2004) (quoting Spence v. Washington,

“Conduct is expressive when ‘an intent to convey a

27

Thomas v. City of Beaverton,

1

418 U.S. 405, 410-11 (1974)).

2

message’ is not required.”

3

(9th Cir. 2012) (quoting Hurley v. Irish-American Gay, 515 U.S.

4

557, 569 (1995)).

5

the couple was widely known within LHH to be criticizing publicly

6

other alleged misconduct and to be engaged in thorough analysis in

7

support of that criticism.

8

information requests related to the Gift Fund could reasonably

9

have inferred that Plaintiff and Dr. Rivero were similarly

United States District Court
For the Northern District of California

10
11
12

“A ‘narrow, succinctly articulable

Kaahumanu v. Hawaii, 682 F.3d 789, 798

The records requests were made at a time when

A person who received the broad

investigating the use of the Gift Fund.
2.

Substantial or motivating factor

To prove that his expressive conduct was a substantial or

13

motivating factor for his termination, a plaintiff can

14

“(1) introduce evidence that the speech and adverse action were

15

proximate in time, such that a jury could infer that the action

16

took place in retaliation for the speech; (2) introduce evidence

17

that the employer expressed opposition to the speech; or

18

(3) introduce evidence that the proffered explanations for the

19

adverse action were false and pretextual.”

20

Central Counties Consortium, 605 F.3d 740, 750 (9th Cir. 2010)

21

(citing Coszalter, 320 F.3d at 975).

22
23

a.

Anthoine v. North

The formal complaints

In order to retaliate on the basis of speech, “an employer

24

must be aware of that speech.”

25

1077 (9th Cir. 2002).

26
27

Allen v. Iranon, 283 F.3d 1070,

Plaintiff has offered no evidence that Dr. Katz, Ms. Hirose
and Dr. Riley knew of Plaintiff’s four formal complaints before

28
28

1

his final day at LHH, and the individual Defendants testified that

2

they did not.

3

Plaintiff argues that the Court should nevertheless infer
that Dr. Katz knew about the complaint involving the HMA conflict

5

of interest.

6

testified that, on November 10, 2009, he realized that he had

7

signed one of the HMA contracts and contacted the City Attorney to

8

discuss the issue, the Court should infer that Dr. Katz knew at

9

that time that someone had raised a conflict of interest issue.

10
United States District Court
For the Northern District of California

4

Plaintiff further urges the Court to infer that Dr. Katz would

11

have assumed that Plaintiff was the complainant, because he had

12

raised allegations of another unrelated conflict of interest in

13

response to the Ja Report.

14

speculation do not create a factual dispute for purposes of

15

summary judgment.”

16

1075, 1081-1082 (9th Cir. 1996) (citing Witherow v. Paff, 52 F.3d

17

264, 266 (9th Cir. 1995)).

18

Opp. at 10-11.

He contends that, because Dr. Katz

However, “mere allegation and

Nelson v. Pima Community College, 83 F.3d

Similarly, Plaintiff asks the Court to infer that the

19

Whistleblower Program contacted Dr. Katz and told him of the

20

complaint, although he offers no evidence that it did so and

21

relies on speculation.

22

from a representative of the Whistleblower Program that it did not

23

notify DPH of the complaints lodged with it by Plaintiff and Dr.

24

Rivero.

25

Further, the record includes testimony

Lediju Depo. 103:4-108:3.

Accordingly, the Court finds that there is no evidence that

26

Defendants were aware of the four formal complaints, and thus that

27

they could not have retaliated against Plaintiff based on this

28

speech.
29

1
2

b.

Ja Report

Defendants contend that Plaintiff cannot establish that his

3

responses to the Ja Report were a substantial or motivating factor

4

for his termination, because these criticisms took place “almost a

5

year before his layoff” and because others, including Defendant

6

Dr. Riley, joined his criticism of the report.

7

Mot. at 17.

The evidence establishes that Dr. Katz and Ms. Hirose first
proposed to cut Plaintiff’s position in early December 2009.

9

Plaintiff and Dr. Rivero circulated the petition and their

10
United States District Court
For the Northern District of California

8

critique of the Ja Report in August and September of 2009.

11

time frame of three to four months is close enough to support an

12

inference of causation based on temporal proximity.

13

v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).

14

This

See Yartzoff

It is true that Dr. Riley joined the petition criticizing the

15

Ja Report, although there is no evidence that she agreed with

16

Plaintiff’s longer written critique.

17

subsequently appointed to a management role by Ms. Hirose and Dr.

18

Katz, and there is evidence that Ms. Hirose publicly expressed

19

opposition to Plaintiff’s speech.

20

offered testimony that Ms. Hirose defended the Ja Report publicly

21

against his criticism by stating that the medical executive

22

committee supported the Ja Report, although members of the medical

23

executive committee denied this.

24

reasonable factfinder could conclude that Dr. Riley did in fact

25

participate in retaliation against Plaintiff for his speech,

26

despite her initial agreement with it, after she was moved into a

27

management position by higher-level managers who were openly

28

critical of the speech.

However, Dr. Riley was

Specifically, Plaintiff has

The Court finds that a

30

1

Finally, there is a material dispute of fact as to whether
the non-retaliatory reasons proffered by Defendants to select

3

Plaintiff’s position for termination were false.

4

that he was less flexible than other doctors at the facility about

5

covering other wards and that he was responsible for fewer

6

patients than other doctors were.

7

evidence that other doctors were similarly resistant to covering

8

other wards and had preferences for the type of work that they

9

did, and that he worked on an admitting ward where doctors were

10
United States District Court
For the Northern District of California

2

expected to care for fewer patients than on non-admitting wards.

11

Further, although Defendants state that they were required to

12

eliminate Plaintiff’s 2232 position in the hospice ward for

13

budgetary reasons, Dr. Bouvier, the only other doctor affected by

14

the budget cuts, was given a 2232 position in the hospice less

15

than seven months after Plaintiff was terminated and that 2232

16

position was purportedly eliminated.

17

Defendants state

However, Plaintiff has offered

Accordingly, Plaintiff has introduced evidence sufficient to

18

create a material dispute of fact as to whether his responses to

19

the Ja Report were a substantial or motivating factor for his

20

termination.

21
22

c.

ABC7 news reports

Plaintiff also contends that Defendants retaliated against

23

him for the ABC7 news reports, in which he publicly spoke out

24

against the alleged mismanagement of the Gift Fund.

25

termination went into effect just a few weeks after the airing of

26

the reports.

27

been, and he was not transferred to the other open positions.

His

His termination was not rescinded when it could have

28
31

1

It is clear that Plaintiff’s participation in these news

2

reports was protected speech.

3

that each of the individual Defendants was aware of the ABC7

4

reports and had the authority either to revoke his termination or

5

to offer him one of the several open 2232 positions within LHH at

6

the time.

7

normally use any available means not to terminate a physician.

8

Dr. Katz acknowledged that they could have put him into one of the

9

positions without the necessity of waiting for him to apply, but

Plaintiff has also offered evidence

They did not, despite their testimony that they would

United States District Court
For the Northern District of California

10

stated that he did not want to do so.

11

explanation why they did not move to the hospice ward one of the

12

2232 positions open at the time of Plaintiff’s termination in

13

order to retain him.

14

testified that, when Plaintiff was terminated, Dr. Bouvier was

15

assigned to the hospice ward in his stead in a 2230 position and

16

was ultimately given a 2232 position in the hospice, less than

17

seven months after Plaintiff’s termination.

Defendants provided no

Finally, as previously noted, Dr. Riley

18

Accordingly, the Court finds that Plaintiff has established a

19

material dispute of fact as to whether his termination was carried

20

out in retaliation for the ABC7 news reports.

21

C. Section 1983 claims against the City

22

The City contends that it is entitled to summary judgment on

23

Plaintiff’s § 1983 claim, because he has not established that Dr.

24

Katz was a “final policymaker.”

25

the City can only be brought in accordance with Monell v. Dep’t of

26

Soc. Servs., 436 U.S. 658, 690-91 (1978).

27

be held vicariously liable for the unconstitutional acts of its

28

employees on the basis of an employer-employee relationship with

Plaintiff’s § 1983 claim against

32

Although a city may not

1

the tortfeasor, it may be held liable under Monell when a

2

municipal policy or custom causes an employee to violate another’s

3

constitutional right.

Id. at 691-92.

4

The Ninth Circuit has held that municipal liability under

5

Monell may be established in one of three ways: (1) “the plaintiff

6

may prove that a city employee committed the alleged

7

constitutional violation pursuant to a formal governmental policy

8

or a longstanding practice or custom which constitutes the

9

standard operating procedure of the local governmental entity;”

United States District Court
For the Northern District of California

10

(2) “the plaintiff may establish that the individual who committed

11

the constitutional tort was an official with final policy-making

12

authority and that the challenged action itself thus constituted

13

an act of official governmental policy;” or (3) “the plaintiff may

14

prove that an official with final policy-making authority ratified

15

a subordinate’s unconstitutional decision or action and the basis

16

for it.”

17

1992).

18

1997) (“a plaintiff may show that an official policymaker either

19

delegated policymaking authority to a subordinate or ratified a

20

subordinate’s decision, approving the decision and the basis for

21

it”) (internal quotation marks omitted).

22

Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.

See also Hyland v. Wonder, 117 F.3d 405, 414 (9th Cir.

Plaintiff contends that Dr. Katz had final policymaking

23

authority over the decision to terminate him, that he delegated

24

this authority to Ms. Hirose and that he ratified her decision.

25

Although Defendants admit that Dr. Katz participated in the

26

decision to terminate Plaintiff, Defendants contend that the Civil

27

Service Commission (CSC), not Dr. Katz, is the final policymaker

28

with respect to employment and personnel matters.
33

1

To determine if Dr. Katz was acting as the final policymaker

2

for the City, the Court must first “identify the particular area

3

or issue for which the official is alleged to be the final

4

policymaker,” and second, “analyze state law to discern the

5

official’s actual function with respect to that particular area or

6

issue.”

7

Cir. 2002) (citing McMillan v. Monroe Co., 520 U.S. 781, 785-86

8

(1997)).

9

degree the municipality has control over the official’s

Cortez v. Cnty. of Los Angeles, 294 F.3d 1186, 1189 (9th

“By reviewing state law, we seek to ascertain to what

United States District Court
For the Northern District of California

10

performance of the particular function and, thus, whether the

11

municipality can be held liable for the official’s actions.”

12

The parties agree that “a city’s Charter determines municipal

13

affairs such as personnel matters.”

14

Mot. at 18; Opp. at 23.

15

Id.

Hyland, 117 F.3d at 414.

See

Here, Plaintiff contends that Dr. Katz was the final

16

policymaker regarding the termination of exempt employees within

17

the DPH.

18

City and County of San Francisco . . . , the CSC is generally ‘the

19

final policymaker with respect to employment matters.’”

20

City & Cnty. of San Francisco, 2012 U.S. Dist. LEXIS 103890, at

21

*43 (N.D. Cal.) (quoting Schiff v. City & Cnty. of San Francisco,

22

816 F. Supp. 2d 798, 812-13 (N.D. Cal. 2011); Harris v. City &

23

Cnty. of San Francisco, 2009 U.S. Dist. LEXIS 69186, at *14 (N.D.

24

Cal.)).

25

policies and procedures to carry out the civil service merit

26

system provisions of this charter and, except as otherwise

27

provided in this Charter, such rules shall govern” a specific list

28

of employment matters, including “lay-offs or reduction in force,

Defendants are correct that “under the Charter of the

Molex v.

The Charter provides that the CSC “shall adopt rules,

34

1

both permanent and temporary, due to lack of work or funds,

2

retrenchment or completion of work.”

3

S.F. Charter § 10.101.

However, the Charter also provides that certain positions

4

“shall be exempt from competitive civil service selection,

5

appointment and removal procedures, and the person serving in the

6

position shall serve at the pleasure of the appointing authority.”

7

S.F. Charter § 10.104.

8

serving in their professional capacity (except those physicians

9

and dentists whose duties are significantly administrative or

This includes “physicians and dentists

United States District Court
For the Northern District of California

10

supervisory).”

11

dispute that Plaintiff was an exempt employee.

12

Depo. 36:7-15.

S.F. Charter § 10.104(13).

Here, there is no
See, e.g., Jacobi

13

Further, Defendants admit that, pursuant to San Francisco

14

Administrative Code section 2A.30, Dr. Katz was the appointing

15

officer for employees within the DPH.

16

provision, the “department head shall act as the ‘appointing

17

officer’ under the civil service provisions of the Charter for the

18

appointing, disciplining and removal of such officers, assistants

19

and employees as may be authorized.”

20

This section also provides, “Non-civil service appointments and

21

any temporary appointments in any department or subdivision

22

thereof, and all removals therefrom shall be made by the

23

department head, bureau head or other subdivision head designated

24

as the appointing officer.”

25

Reply at 11.

Under this

S.F. Admin. Code § 2A.30.

Id.

Defendants contend that the Charter removes exempt employees

26

from supervision by the CSC only for limited purposes, and that

27

exempt employees are otherwise still subject to CSC rules.

28

However, even if this were true, the portions of the Charter and
35

1

Administrative Code cited above specifically exclude exempt

2

employees from the authority of the CSC for removal procedures,

3

state that they shall serve at the pleasure of the appointing

4

officer and allow that appointing officer to make all removals

5

from these positions.

6

(9th Cir. 1997) (rejecting an argument by San Francisco defendants

7

“that the CSC had the final policymaking authority over personnel

8

decisions” as “irrelevant, as the positions for which Hyland

9

applied were civil service exempt”).

United States District Court
For the Northern District of California

10

See Hyland v. Wonder, 117 F.3d 405, 416

Defendants also argue that the mere fact that Dr. Katz had

11

discretion to select which employee would be removed is not enough

12

to make him a final policymaker.

13

discretion by an employee could give rise to a constitutional

14

violation, the result would be indistinguishable from respondeat

15

superior liability.”

16

112, 126 (1988).

17

constrained by policies not of that official’s making, those

18

policies, rather than the subordinate’s departures from them, are

19

the act of the municipality.”

20

subordinate’s decision is subject to review by the municipality’s

21

authorized policymakers, they have retained the authority to

22

measure the official’s conduct for conformance with their

23

policies.”

24

performing certain functions does not make the official a final

25

policymaker unless the decisions are final, unreviewable, and not

26

constrained by the official policies of supervisors.”

27

City of San Francisco, 2006 U.S. Dist. LEXIS 90101, at *46 (N.D.

28

Cal.).

Id.

“If the mere exercise of

City of St. Louis v. Praprotnik, 485 U.S.

“When an official’s discretionary decisions are

Id. at 127.

“Similarly, when a

Thus, the “authority to exercise discretion while

36

Zografos v.

1

Defendants argue that there are a number of other CSC rules

2

that apply to exempt employees and that constrained Dr. Katz’s

3

ability to terminate Plaintiff.

4

103, which addresses Equal Employment Opportunity.

5

Serv. Comm’n Rule 103.

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

They point specifically to Rule
See S.F. Civ.

This provision states, in relevant part,

It is the policy of the Civil Service Commission of the
City and County of San Francisco that all persons shall
have equal opportunity in employment; that selection of
employees to positions in the City and County be made on
the basis of merit; and that continuing programs be
maintained to afford equal employment opportunities at
all levels. Vigorous enforcement of the laws against
discrimination shall be carried out at every level of
each department. All persons shall have equal access to
employment within the City and County, limited only by
their ability to do the job. . . .
No person shall be appointed, reduced, removed, or in
any way favored or discriminated against in employment
or opportunity for employment because of race, color,
sex, sexual orientation, gender identity, political
affiliation, age, religion, creed, national origin,
disability, ancestry, marital status, parental status,
domestic partner status, medical condition (cancerrelated), ethnicity or the conditions Acquired Immune
Deficiency Syndrome (AIDS), HIV, and AIDS-related
conditions or other non-merit factors or any other
category provided by ordinance.
S.F. Civ. Serv. Comm’n Rule 103.1.1-2.

The City’s Rule 30(b)(6)

witness testified that, in general, no one reviews the decision of
the director of health as to which exempt physician is subject to
a layoff and that no one has “the authority to overrule the
director of health’s decision, either himself or through his
delegated representative, the executive administrator of Laguna
Honda, who to make subject to layoff among the exempt physicians
at Laguna Honda.”

Jacobi July 11, 2012 Depo. at 45:7-23.

This

was subject only to the limitation that the director’s “decision
can’t be prohibited by law,” meaning that if someone alleges that
“it was discrimination,” the decision would be subject to review
37

1

to resolve the allegations of discrimination by the City’s Human

2

Resources Director, whose decision can be appealed to the CSC.

3

Id. at 45:23-47:1.

4

layoff decisions if the complaint is that someone was retaliated

5

against on the basis of whistle-blowing.

6

by the City’s own admission, this rule did not constrain Dr.

7

Katz’s decisionmaking or provide for review in any way applicable

8

to the case at hand.

9

The Human Resources Director does not review

Id. at 47:13-18.

Thus,

Defendants also point to San Francisco Campaign and

United States District Court
For the Northern District of California

10

Government Conduct Code section 4.115, which provides, “No City

11

officer or employee may terminate, demote, suspend or take other

12

similar adverse employment action against any City officer or

13

employee because the officer or employee has in good faith” filed

14

a complaint with the Ethics Commission, the Controller’s

15

Whistleblower Program or cooperated with any such investigation.

16

S.F. Campaign & Gov’t Conduct Code § 4.115(a).

17

Defendants also relied on a provision in the Sunshine Ordinance,

18

which provides,

19
20
21
22
23
24
25
26
27

At the hearing,

Public employees shall not be discouraged from or
disciplined for the expression of their personal
opinions on any matter of public concern while not on
duty, so long as the opinion (1) is not represented as
that of the department and does not misrepresent the
department position; and (2) does not disrupt coworker
relations, impair discipline or control by superiors,
erode a close working relationship premised on personal
loyalty and confidentiality, interfere with the
employee’s performance of his or her duties or obstruct
the routine operation of the office in a manner that
outweighs the employee’s interests in expressing that
opinion. In adopting this subdivision, the Board of
Supervisors intends merely to restate and affirm court
decisions recognizing the First Amendment rights enjoyed
by public employees. Nothing in this section shall be
construed to provide rights to City employees beyond
those recognized by courts, now or in the future, under

28
38

the First Amendment, or to create any new private cause
of action or defense to disciplinary action.

1
2

S.F. Admin. Code § 67.22(d).

3

constrained Dr. Katz’s power when deciding to terminate Plaintiff

4

here.

5

They argue that these sections

However, the Ninth Circuit has held that a “general

6

statement” that a person to whom decision-making power is

7

delegated “is not authorized to violate the law” is not sufficient

8

to insulate a governmental entity from liability “without more.”

9

Lytle v. Carl, 382 F.3d 978, 985 (9th Cir. 2004).

In that case,

United States District Court
For the Northern District of California

10

the Ninth Circuit found that a school superintendent and assistant

11

superintendent were final policymakers with respect to employee

12

discipline where their decisions were unreviewable by any school

13

district official, even though the Board of Trustees had delegated

14

them this power to be exercised in accordance with “applicable

15

negotiated agreements, laws, board policies, and regulations.”

16

Id. at 984-85.

17

Ninth Circuit case, Uhl v. Lake Havasu City, 2010 U.S. App. LEXIS

18

241 (9th Cir.), in which, like here, employees served at the

19

purported policymaker’s “pleasure,” it “is not sufficient that a

20

city personnel rule in theory” bound the decisionmaker “to comply

21

with the law,” where his or her decision was ultimately

22

unreviewable.

As explained more recently in a non-precedential

Id. at *8-9.

23

Similarly, here, the rules that Defendants cite do not

24

provide for review of the actual termination decision and instead

25

simply require that Dr. Katz comply with the law in making such

26

decisions.

27

67.22(d) of the Administrative Code is meant “merely to restate

28

and affirm court decisions recognizing the First Amendment rights

As quoted above, the City clearly states that section

39

1

enjoyed by public employees.”

2

hearing that this limitation can be reviewed and enforced through

3

CSC Rule 103, their Rule 30(b)(6) witness disclaimed that

4

whistleblower retaliation claims were subject to this process, as

5

previously discussed.

6

Government Conduct Code allows for the sanctioning of an officer

7

or employee who engages in retaliation, S.F. Campaign & Gov’t

8

Conduct Code § 4.115(c), it does not appear to provide for review

9

or reversal of the unlawful decision itself, and Defendants did

Although Defendants argued at the

Although section 4.115 of the Campaign and

United States District Court
For the Northern District of California

10

not argue to the contrary at the hearing.

11

section 4.115 only sets forth a policy against retaliation for the

12

filing of formal complaints and participating in formal

13

investigations, not retaliation for any protected First Amendment

14

speech, such as Plaintiff’s critique of the Ja Report or his

15

speaking with reporters for the ABC7 news story.

16

Gov’t Conduct Code § 4.115(a).

17

Further, by its terms,

S.F. Campaign &

Accordingly, here, Dr. Katz held final policymaking authority

18

in deciding to terminate Plaintiff.

19

Plaintiff has presented evidence of Monell liability against the

20

City, and DENIES Defendants’ motion for summary judgment on the

21

§ 1983 claim against the City.

22
23
24

Thus, the Court finds that

D. State law claims
1.

Health and Safety Code section 1432

Plaintiff brings a claim against Defendants for violation of

25

California Health and Safety Code section 1432, which, among other

26

things, prohibits retaliation against an employee at a long-term

27

health care facility “on the basis or for the reason” that the

28

employee “presented a grievance or complaint, or has initiated or
40

1

cooperated in any investigation or proceeding of any governmental

2

entity relating to care, services, or conditions at that

3

facility.”

4

Cal. Health & Safety Code § 1432(a).

Defendants argue that section 1432 does not create a private

5

cause of action for enforcement.

6

who violates this section is subject to a civil penalty of no more

7

than ten thousand dollars ($10,000), to be assessed by the

8

director and collected in the manner provided in Section 1430.”

9

Cal. Health & Safety Code § 1432(a).

United States District Court
For the Northern District of California

10

Section 1432 states, “A licensee

Plaintiff responds that California Health and Safety Code

11

section 1430(a) creates a private cause of action for a violation

12

of section 1432(a).

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Section 1430(a) states,

Except where the state department has taken action and
the violations have been corrected to its satisfaction,
a licensee who commits a class “A” or “B” violation may
be enjoined from permitting the violation to continue or
may be sued for civil damages within a court of
competent jurisdiction. An action for injunction or
civil damages, or both, may be prosecuted by the
Attorney General in the name of the people of the State
of California upon his or her own complaint or upon the
complaint of a board, officer, person, corporation, or
association, or by a person acting for the interests of
itself, its members, or the general public. The amount
of civil damages that may be recovered in an action
brought pursuant to this section may not exceed the
maximum amount of civil penalties that could be assessed
on account of the violation or violations.
Cal. Health & Safety Code § 1430(a).

This section thus creates a

private cause of action to prosecute what it describes as class A
and class B violations.

The definitions of such violations are

set forth in section 1424.

That section defines class A

violations as
violations which the state department determines present
either (1) imminent danger that death or serious harm to
the patients or residents of the long-term health care
facility would result therefrom, or (2) substantial
probability that death or serious physical harm to
41

1

patients or residents of the long-term health care
facility would result therefrom.

2

Cal. Health & Safety Code § 1424(d).

3

violations as “violations that the state department determines

4

have a direct or immediate relationship to the health, safety, or

5

security of long-term health care facility patients or residents,”

6

including “any violation of a patient’s rights as set forth in

7

Sections 72527 and 73523 of Title 22 of the California Code of

8

Regulations, that is determined by the state department to cause

9

or under circumstances likely to cause significant humiliation,

It defines class B

United States District Court
For the Northern District of California

10

indignity, anxiety, or other emotional trauma to a patient.”

11

at § 1424(e).

12

Id.

Plaintiff has presented no argument or evidence that his

13

claims qualify as either class A or class B violations, or that

14

the relevant state agency has made a determination that they do.

15

Accordingly, the Court GRANTS Defendants’ motion for summary

16

judgment on his section 1432 claim.

17

2.

Labor Code section 1102.5(b)

18

Under section 1102.5(b), an “employer may not retaliate

19

against an employee for disclosing information to a government or

20

law enforcement agency, where the employee has reasonable cause to

21

believe that the information discloses a violation of state or

22

federal statute, or a violation or noncompliance with a state or

23

federal rule or regulation.”

24

report made by an employee of a government agency to his or her

25

employer is a disclosure of information to a government or law

26

enforcement agency pursuant to subdivisions (a) and (b).”

27

Lab. Code § 1102.5(e).

Cal. Lab. Code § 1102.5(b).

28
42

“A

Cal.

1

To survive summary judgment, a plaintiff must first establish

2

a prima facie case of retaliation, which requires him or her to

3

“show (1) she engaged in a protected activity, (2) her employer

4

subjected her to an adverse employment action, and (3) there is a

5

causal link between the two.”

6

Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005).

7

establishes a prima facie case of retaliation, the burden shifts

8

to the defendant to “provide a legitimate, nonretaliatory

9

explanation for its acts.”

Patten v. Grant Joint Union High

Id. at 1384.

If a plaintiff

If the defendant does

United States District Court
For the Northern District of California

10

so, the plaintiff must “show this explanation is merely a pretext

11

for the retaliation.”

12

Id.

Defendants argue that Plaintiff did not engage in protected

13

activity, because he did not reasonably believe that his

14

complaints disclosed any alleged violation of federal or state

15

law.

16

Ja that Plaintiff described in his complaints could have violated

17

several state laws.

18

official at any level of state or local government shall make,

19

participate in making or in any way attempt to use his official

20

position to influence a governmental decision in which he knows or

21

has reason to know he has a financial interest.”); Cal. Govt. Code

22

§ 1090 (“Members of the Legislature, state, county, district,

23

judicial district, and city officers or employees shall not be

24

financially interested in any contract made by them in their

25

official capacity, or by any body or board of which they are

26

members.”).

27

mismanagement and misuse of the Gift Fund also implicated several

28

state laws.

The separate conflicts of interest involving Drs. Katz and

See Cal. Govt. Code § 87100 (“No public

His media and formal complaints about the

See, e.g., Cal. Bus. & Prof. Code §§ 17510.8
43

1

(creating a fiduciary relationship between a charity and the

2

person from whom a charitable contribution is solicited), 17510.5

3

(record keeping requirements for soliciting organizations); see

4

also People v. Orange County Charitable Services, 73 Cal. App. 4th

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1054, 1075 (1999) (fraudulent charitable solicitation).

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the public records requests related to the Gift Fund did not show

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any reasonable belief on Plaintiff’s part that he was disclosing

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alleged violations of these sections.

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Gift Fund were not complaints directed to a government or law

However,

The media reports about the

United States District Court
For the Northern District of California

10

enforcement agency, as required to come under the protection of

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section 1102.5(b).

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As discussed above, because the individual Defendants did not

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learn of Plaintiff’s formal complaints until after his last day at

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LHH, Plaintiff has not established a causal link between them and

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his termination.

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Plaintiff has not offered evidence that he made a protected

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complaint about Dr. Katz’s alleged conflict of interest.

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Plaintiff has offered sufficient evidence that he disclosed to his

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government employer possible violations of state or federal law

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based on the conflicts of interest involving Dr. Ja and Ms.

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Sherwood in the “A Job Half Done” critique, and that this was

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causally connected to his termination.

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Further, outside of his formal complaints,

However,

Accordingly, the Court GRANTS Defendants’ motion for summary

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judgment on the Labor Code section 1102.5(b) claim to the extent

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Plaintiff alleges retaliation for his four formal complaints and

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the records requests and media reports about the Gift Fund, and

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DENIES it to the extent Plaintiff alleges retaliation for the

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petition and critique of the Ja Report.
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1
2

II.

Motion to seal
Plaintiff moves to seal Exhibit W to the declaration of

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Mathew Stephenson submitted in opposition to Defendants’ motion

4

for summary judgment.

5

designated this exhibit as confidential.

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declaration in support of Plaintiff’s motion.

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Plaintiff represents that Defendants have
Defendants have filed a
See Docket No. 68.

Plaintiff’s filings are connected to a dispositive motion.

8

Because Defendants designated the document at issue as

9

confidential, they must file a declaration establishing that the

United States District Court
For the Northern District of California

10

document is sealable.

11

Defendants “must overcome a strong presumption of access by

12

showing that ‘compelling reasons supported by specific factual

13

findings . . . outweigh the general history of access and the

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public policies favoring disclosure.’”

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Ass’n, 605 F.3d 665, 679 (9th Cir. 2010) (citation omitted).

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cannot be established simply by showing that the document is

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subject to a protective order or by stating in general terms that

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the material is considered to be confidential, but rather must be

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supported by a sworn declaration demonstrating with particularity

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the need to file each document under seal.

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79-5(a).

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Civil Local Rule 79-5(d).

To do so,

Pintos v. Pac. Creditors
This

Civil Local Rule

Defendants attest that Exhibit W contains a draft policy

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document related to the City’s Whistleblower Program.

24

represent that public disclosure of this document would “divulge

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information regarding the Whistleblower Program’s investigative

26

and deliberative process.”

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that, “because it is not an official policy or procedure,

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disclosure might create the public preception [sic] that this is,

Rolnick Decl. ¶ 10.

45

They

They also state

1

in fact, the office’s policy and thereby compromise the Program’s

2

work or make it more difficult.”

3

Id.

Having reviewed the contents of Exhibit W, the Court finds

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that Defendants have established that it is sealable.

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Accordingly, Plaintiff’s motion to file under seal is GRANTED.

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CONCLUSION

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For the reasons set forth above, the Court GRANTS in part

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Defendants’ motion for summary judgment and DENIES it in part

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(Docket No. 40).

The Court grants Defendants’ motion as unopposed

United States District Court
For the Northern District of California

10

as to Plaintiff’s claims for deprivation of his Fourteenth

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Amendment due process rights and for violation of California

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Government Code section 53298.

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summary judgment on Plaintiff’s Health and Safety Code section

14

1432 claim for retaliation against a long-term health care

15

facility employee because there is no private right of action

16

given the lack of evidence that he complained of class A or class

17

B violations.

18

judgment on Plaintiff’s § 1983 free speech claim to the extent he

19

alleges retaliation based on the filing of his formal complaints

20

and otherwise expressing concern about Dr. Katz’s alleged conflict

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of interest.

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complaints and no evidence of other protected speech on that

23

subject.

24

to the extent it is based on the petition, the “A Job Half Done”

25

critique, the public records requests related to the Gift Fund and

26

participation in the ABC7 news reports.

27

Defendants summary judgment on Plaintiff’s Labor Code section

28

1102.5 claim to the extent that it is based on the formal

The Court also grants Defendants

The Court further grants Defendants summary

There is no evidence of causation as to the formal

However, the Court denies summary judgment on this claim

46

Finally, the Court grants

1

complaints, expressing concern about Dr. Katz’s alleged conflict

2

of interest, and the media reports and public records requests

3

related to the Gift Fund, but denies Defendants summary judgment

4

on this claim to the extent it is based on the petition and “A Job

5

Half Done” critique of the Ja Report.

6

The Court GRANTS Plaintiff’s motion to file Exhibit W to the

7

Stephenson declaration under seal (Docket No. 61).

8

days of the date of this Order, Plaintiff shall file this document

9

under seal.

Within four

United States District Court
For the Northern District of California

10

The final pretrial conference set for October 31, 2012 at

11

2:00 p.m. and ten-day jury trial set to begin on November 13, 2012

12

at 8:30 a.m. are MAINTAINED.

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IT IS SO ORDERED.

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Dated: 9/6/2012

CLAUDIA WILKEN
United States District Judge

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