Zertuche v. County of Santa Clara et al

Filing 110

ORDER RE:PRETRIAL CONFERENCE. Signed by Judge Yvonne Gonzalez Rogers on 11/5/13. (fs, COURT STAFF) (Filed on 11/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HOSETTA ZERTUCHE,
Plaintiff,

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Northern District of California

United States District Court

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Case No.: 11-cv-3691 YGR
ORDER RE: PRETRIAL CONFERENCE

vs.
COUNTY OF SANTA CLARA, ET AL.,
Defendants.
On Jury Instruction No. 21, the parties both propose that the third element in Instruction 21
should read:
3. the defendant took an adverse employment action against the plaintiff

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However, the proposed instruction does not take into account the theory of liability against

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Defendant Gleason here: that he set in motion an adverse action, ultimately decided by others, and is

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liable as a result. See Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir.1999) (although

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the ultimate decision maker had a legitimate reason for imposing discipline, the court found that the

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retaliatory motives of “two subordinates set in motion the chain of events that led” to the plaintiff’s

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adverse employment action); Ostad v. Oregon Health Sciences Univ., 327 F.3d 876, 883 (9th Cir.

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2003) (individual supervisor could be held liable for free speech retaliation where there was ample

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evidence of his bias and his role in plaintiff’s termination, even if the termination decision was

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ultimately made by a hearing committee acting without retaliatory motive). In this respect, the

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instruction is potentially confusing to the jury.

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At the pre-trial conference scheduled for Friday, November 8, 2013, the parties should be
prepared to discuss whether the instruction should be modified to read:
3. Plaintiff Zertuche suffered an adverse employment action

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OR

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3. Defendant Gleason’s acts caused Plaintiff Zertuche to suffer an adverse employment

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action

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Alternatively, the parties should be prepared to offer other modifications and support for their

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proposed language.

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IT IS SO ORDERED.
Dated: November 5, 2013
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Northern District of California

United States District Court

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