Lewis v. City and County of San Francisco

Filing 22

ORDER by Judge Hamilton granting 18 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 6/21/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JAMES LEWIS,
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Plaintiff,

No. C 11-5273 PJH

v.
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For the Northern District of California

United States District Court

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CITY AND COUNTY OF SAN
FRANCISCO,

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ORDER GRANTING MOTION
TO DISMISS

Defendant.
_______________________________/

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Defendant’s motion for an order dismissing the first amended complaint (“FAC”) for

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failure to state a claim came on for hearing before this court on June 20, 2012. Plaintiff

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James Lewis (“Lewis”) appeared by counsel identifying himself as Aldon L. Bolanos, and

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defendant City and County of San Francisco (“the City”) appeared by its counsel, Deputy

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City Attorney Lawrence Hecimovich. Having read the parties’ papers and carefully

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considered their arguments and the relevant legal authority, the court hereby GRANTS the

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motion as follows for the reasons stated at the hearing.

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Lewis filed the original complaint in this action on October 28, 2011, alleging nine

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causes of action against the City. The City moved for judgment on the pleadings, and the

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court granted the motion, with leave to amend as to three of the nine causes of action – the

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claim of retaliation in violation of Title VII, the claim of retaliation in violation of California

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Labor Code § 1102.5, and the claim of violation of the Police Officer Bill of Rights (also

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known as the Public Safety Officers Procedural Bill of Rights Act), California Government

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Code § 3303. The City now seeks an order dismissing the FAC, arguing that each of the

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three claims is time-barred, and that each of the three claims is also barred by res judicata.
A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

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alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

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Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.

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Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for

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failure to state a claim, a complaint generally must satisfy only the minimal notice pleading

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requirements of Federal Rule of Civil Procedure 8.

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Rule 8(a)(2) requires only that the complaint include a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specific
facts are unnecessary – the statement need only give the defendant “fair notice of the claim

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For the Northern District of California

United States District Court

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and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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All allegations of material fact are taken as true. Id. at 94. However, legally

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conclusory statements, not supported by actual factual allegations, need not be accepted.

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See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Rather, the allegations in the

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complaint “must be enough to raise a right to relief above the speculative level.” Twombly,

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550 U.S. at 555. “[W]here the well-pleaded facts do not permit the court to infer more than

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the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ –

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‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679.

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1.

Title VII claim

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In the first cause of action under Title VII, Lewis alleges that the City retaliated

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against him by seeking “punitive and draconian discipline” against him because he had

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previously opposed race discrimination by filing a charge of discrimination and participating

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as a plaintiff in the Harmston case. FAC ¶ 11. He also asserts that he was disciplined

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more harshly (with the year-long suspension) than were his white counterparts. FAC ¶ 12.

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The one-year suspension was imposed by the Police Commission, following a hearing on

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February 28, 2011. FAC ¶¶ 7-8.

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Lewis asserts that he has exhausted all administrative requirements, and attaches
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as exhibits to the FAC copies of the charges he filed with DFEH and the EEOC, and the

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right-to-sue letters. The EEO charge was filed on November 16, 2010, and alleges

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retaliation for having filed prior EEO charges (claiming that because Lewis filed the prior

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charges, he was “undergoing a process of discharge via a Termination Hearing,” and also

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alleges violation of a “privacy agreement” based on the release of personal information to

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the media). The EEOC issued the dismissal and right-to-sue letter on January 20, 2012.

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The court finds that this claim must be dismissed. First, it is barred by failure to

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exhaust administrative remedies. In the prior order, the court dismissed the Title VII

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retaliation claim with leave to amend to plead facts identifying the alleged adverse action –
which it stated “must necessarily have occurred prior to the filing of the administrative

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For the Northern District of California

United States District Court

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charge with the EEOC” – and also to identify the protected activity.

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Lewis asserts that the Title VII claim is based on the imposition of the one-year

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suspension by the Police Commission. However, the administrative charge was filed with

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the EEOC on November 16, 2010, but the Police Commission hearing did not go forward

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until February 2011. Thus, the EEOC charge could not have been based on the alleged

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adverse action that occurred in February 2011.

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In addition, Lewis alleged in the EEOC charge that he was “currently undergoing a

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process of discharge via a Termination hearing” in retaliation for having filed EEOC

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charges in 2007 and 2008. However, even if the conduct or fact of the hearing can

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somehow be subsumed into the retaliation charge, the Charter provides that any

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disciplinary suspension of more than 10 days, or any termination, may be appealed to the

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Police Commission. Thus, it is clear that Lewis appeared at the Police Commission

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hearing solely because he was seeking to appeal the discipline that had originated with the

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filing of disciplinary charges by the Department in October 2006 (and this is confirmed by

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the fact that the EEOC charge refers to the “process of discharge via a Termination

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hearing”).

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It was not the Police Commission that originated the disciplinary process, and the
EEOC charge was filed against the Department, not against the Commission. The claim,
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therefore, must be based on something allegedly done by the Department, not by the

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Commission. The San Francisco City Charter does not allow the Department to issue one-

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year suspensions. Lewis’ challenges to the December 2005 suspensions and the October

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2006 disciplinary charges were resolved in the prior state court action, and thus, any

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additional such challenges would be barred by res judicata.

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Because the court finds that further amendment would be futile, the dismissal of the
first cause of action is with prejudice.

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2.

Labor Code § 1102.5 claim

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In the second cause of action, Lewis asserts a claim under Labor Code § 1102.5(c),
which provides that “[a]n employer may not retaliate against an employee for refusing to

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For the Northern District of California

United States District Court

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participate in an activity that would result in a violation of state or federal statute, or a

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violation or noncompliance with a state or federal rule or regulation.” See Cal. Lab. Code

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§ 1102.5(c).

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Lewis alleges that after the City released his image to the public, in violation of the

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Police Officers’ Bill of Rights, he filed an “administrative grievance,” which was “ignored.”

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He claims that the City distributed his image in an effort to turn public opinion against him,

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and that when he opposed the distribution by filing the “grievance,” the City retaliated

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against him by seeking harsher and more draconian punishment. FAC ¶ 14.

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Lewis also asserts that the City Charter limits discipline of police officers guilty of any

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“violation of the rules” to either a “reprimand,” or a “fine” not to exceed one month’s salary,

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or “by suspension for not to exceed three months.” He then claims that the City

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demonstrated its retaliatory animus by making written representations that he wrongly

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believed his conduct was appropriate, that he showed no remorse, and that his attitude was

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troubling and reflected badly on the City. FAC ¶ 15.

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Following this, Lewis alleges that because the City retaliated against him for refusing

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to participate in unlawful activity, and for his opposition to unlawful activity, and because the

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City disciplined him in excess of the discipline permitted under the City Charter, he has

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stated a “colorable claim” for violation of Labor Code § 1102.5. FAC ¶ 16.
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The court finds that this cause of action must be dismissed. In the prior order, the

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court granted leave to amend to identify the applicable subsection of § 1102.5 and to plead

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facts showing a violation of that subsection. While Lewis now alleges violation of

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§ 1102.5(c), the FAC alleges no facts showing that the alleged adverse action (the

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imposition of the one-year suspension) was in retaliation for his having refused to

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participate in an activity that would result in a violation of state or federal law. Rather, the

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gist of the claim is that he was improperly disciplined in retaliation for having opposed the

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City’s releasing of his image (in particular, the “watermelon” video).
Moreover, as noted above, to the extent that Lewis alleges that the adverse action

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was the imposition of the one-year suspension, it is undisputed that the suspension was

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For the Northern District of California

United States District Court

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ordered by the Commission, not by the Department (which lacks authority to do so under

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the City Charter).
Because the court finds that further amendment would be futile, the dismissal of the

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second cause of action is with prejudice.

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3.

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The third cause of action for violation of the Police Officer Bill of Rights is also based

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on the City’s release of the “watermelon” video clip to local media (although Lewis refers in

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FAC ¶ 5 to “numerous video clips” as having been released without his consent). Lewis

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asserts that the City violated his rights under Government Code § 3300 by “repeatedly

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distributing [his] image to the public and by disciplining him in excess of its powers.” FAC ¶

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Police Office Bill of Rights Claim

In the prior order granting judgment on the pleadings, the court dismissed this cause

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of action, finding that the allegations were too unclear to enable the City to frame a

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response. The dismissal was “with leave to amend to identify the subsection of

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§ 3303 under which plaintiff brings this claim, and to plead facts showing a violation of this

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subsection.” In the original complaint, Lewis alleged that because he himself was then

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“under investigation,” as that term is used in California Government Code § 3303(e), the

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City had a duty “to refrain from causing [sic] photographs or media to the press without first
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obtaining the express written consent of the officer.” Here, he refers only to § 3303.
By its terms, § 3303 governs the conditions under which a police officer, who is

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“under investigation,” and is “subjected to interrogation by . . . the employing public safety

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department, that could lead to punitive action,” may be interrogated. Subsection (e)

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provides that while the officer is under interrogation, he shall not be subjected to “offensive

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language,” threats of “punitive action,” or promises of reward as an inducement for

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answering questions. It also provides that while the officer is under interrogation, the

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employer shall not subject the officer to “visits by the press or news media” without his

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consent, and shall not provide the news media with the officer’s home address or

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For the Northern District of California

United States District Court

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photograph without his consent.
The only one of these prohibitions that appears arguably relevant to Lewis’ claim is

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the last one – the release of the officer’s photograph to the press without the officer’s

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permission. In the FAC, Lewis alleges that the claim is based on the Department’s release

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of the “watermelon” video clip on August 2010. However, there are no facts alleged

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showing that Lewis was “subjected to interrogation” by the Department at the time the

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video clip was released. Indeed, the Department’s investigation had concluded almost four

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years previously, with the filing of the disciplinary charges in October 2006.

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For this reason, the court finds that the third cause of action must be dismissed for

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failure to state a claim. Because the court finds that further amendment would be futile, the

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dismissal is with prejudice.

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The remaining claims having been dismissed without leave to amend, judgment will
be entered in the City’s favor and the case will be dismissed.

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IT IS SO ORDERED.

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Dated: June 21, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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