Simpson v. County of Contra Costa et al

Filing 19

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 15 Motion to Dismiss. (fs, COURT STAFF) (Filed on 3/26/2013)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 LUCINDA SIMPSON, 10 Plaintiff, Northern District of California United States District Court 11 Case No.: 12-CV-05303 YGR ORDER ON DEFENDANTS’ MOTION TO DISMISS vs. 12 COUNTY OF CONTRA COSTA et al., 13 Defendant(s). 14 15 Plaintiff Lucinda Simpson (“Plaintiff” or “Simpson”) claims the dispositive reason she was 16 not hired by the Contra Costa County District Attorney’s Office is because she campaigned for the 17 candidate who lost the election for District Attorney. Plaintiff’s First Amended Complaint (“FAC”) 18 brings three claims for “Retaliatory Failure to Hire” under the First and Fourteenth Amendments to 19 the United States Constitution pursuant to 42 U.S.C. § 1983 (Count I), and California Constitution, 20 Article I, Section 2(a) (Count II), and Section 3(a) (Count III). 21 Defendants Contra Costa County (the “County”), District Attorney Mark Peterson 22 (“Peterson”), and the Director of Human Resources Ted Cwiek (“Cwiek”) (collectively 23 “Defendants”) have filed a Motion to Dismiss on the grounds that: (1) under the “policymaking 24 exception” to the First Amendment, political loyalty is a legitimate matter to be considered when 25 hiring a Deputy District Attorney; (2) Count I fails to allege that any defendant took an adverse 26 employment action against her or that her political activity was a substantial or motivating factor for 27 any adverse action; and (3) Counts II and III fail because there is no private right of action for 28 damages under Cal. Const. Article I, §§ 2 & 3. The Court heard oral argument on March 26, 2013. 1 Having carefully considered the papers submitted, the amended complaint, and the argument 2 of counsel, for the reasons set forth below, the Court hereby DENIES IN PART and GRANTS IN PART 3 the Motion to Dismiss WITHOUT LEAVE TO AMEND. Whether a particular position falls under the 4 “policymaking exception” to the First Amendment cannot be determined on the basis of a job title 5 alone. Plaintiff has pled sufficient facts to state a plausible claim for First Amendment Retaliation. 6 Therefore, the motion is DENIED as to Count I. The Motion is GRANTED as to Counts II and III 7 because California courts do not recognize a private right of action for damages under California 8 Constitution, Art. I, §§ 2 & 3. At oral argument Plaintiff’s counsel agreed to withdraw both claims. 9 Therefore, Counts II and III are DISMISSED WITHOUT LEAVE TO AMEND. 10 11 I. BACKGROUND This case arises from allegations of political patronage. Plaintiff Lucinda Simpson alleges Northern District of California United States District Court 12 that Defendants denied her right to reemployment in retaliation for supporting an unsuccessful 13 candidate for District Attorney. (FAC ¶ 1.) Simpson worked as a Deputy District Attorney at the 14 Contra Costa County District Attorney’s Office from 1999 through August 2010, when she left to 15 pursue another employment opportunity. (Id. ¶ 15.) Simpson later reapplied to work for the County, 16 interviewed for an entry level position but was not hired because the Defendants opposed her political 17 activity. 18 Throughout 2009 and 2010, Simpson publicly campaigned for Dan O’Malley for the position 19 of Contra Costa County District Attorney in both the primary and general elections of 2010. (Id. ¶ 20 14.) Defendant Peterson was O’Malley’s opponent. (Id. ¶ 14.) In November 2010, Peterson won the 21 election. (Id. ¶ 20.) 22 In October 2010, Simpson formally requested to be placed on the County’s reemployment list 23 but due to her political affiliation with and support for candidate O’Malley, Defendants Peterson and 24 Cwiek did not place Simpson on the reemployment list until December 2011. (Id. ¶¶ 18-30.) In 25 October 2010, Simpson first submitted a written request to Cwiek to be placed on the County’s 26 reemployment list. (Id. ¶ 18.) In April and May of 2011, Simpson inquired into whether her name 27 was placed on the reemployment list, and in May 2011 was informed by the County the Peterson 28 intentionally withheld Simpson’s name from the list. (Id. ¶¶ 21-22.) In June and August of 2011, 2 1 Simpson appealed the decision not to place her name on the reemployment list, but Peterson and 2 Cwiek continued to deny Simpson placement on the reemployment list. (Id. ¶¶ 23-27.) Finally, in 3 December 2011, Simpson was added to the reemployment list for the entry level position of Deputy 4 District Attorney – Basic Level III. (Id. ¶¶ 29-30.) In December 2011, Simpson interviewed for the entry level position of Deputy District 5 6 Attorney – Basic Level III but Peterson and Cwiek made the decision not to hire Simpson because 7 she had supported O’Malley in the race for District Attorney. (Id. ¶¶ 31-35.) Simpson was the most 8 qualified candidate for the position and interviewed better than the other candidates. (Id. ¶ 32.) 9 Another applicant who had campaigned for Peterson, Laura Delehunt, was ineligible for the position, 10 far less experienced and far less qualified than Simpson, but was hired. (Id. ¶¶ 33-35.) 11 II. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the Northern District of California 12 United States District Court LEGAL STANDARD 13 complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). “Dismissal can be based 14 on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 15 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). All allegations 16 of material fact are taken as true and construed in the light most favorable to the plaintiff. Johnson v. 17 Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To withstand a motion to dismiss, “a 18 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 19 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 20 Twombly, 550 U.S. 544, 557 (2007)). 21 III. 22 DISCUSSION The First Amendment protects the rights of citizens to criticize a government official and to 23 support a candidate opposing that official, and “[a] citizen does not check these rights at the door 24 when [she applies for] a government job.” Bardzik v. County of Orange, 635 F.3d 1138, 1144 (9th 25 Cir. 2011) (citing Branti v. Finkel, 445 U.S. 507, 513-17 (1980)). Although the government may 26 deny a person the benefit of employment for any number of valid reasons, it may not deny the benefit 27 of employment on a basis that infringes on a person’s constitutionally protected interest in freedom of 28 speech. Rutan v. Republican Party of Illinois, 497 U.S. 62, 69 (1990) (extending constitutional ban 3 1 on patronage dismissals to employment decisions concerning promotions, transfers, recalls, and 2 hiring). Conditioning hiring decisions based on political belief and association constitutes a 3 significant impairment of First Amendment rights that can be justified only if narrowly tailored to a 4 compelling governmental interest. Id. FIRST AMENDMENT RETALIATION CLAIM1 5 A. 6 A threshold inquiry is whether the entry level position of Deputy District Attorney – Basic 7 Level III for which Simpson interviewed is a policymaking position. 1. 8 Plaintiff’s Status as a Policymaker Under the “policymaker exception” to this First Amendment protection, it may be permissible 9 Choosing or dismissing employees on the basis of their political views may be necessary to advance 12 Northern District of California for public employers to make political patronage the dispositive reason for an employment action. 11 United States District Court 10 the government’s interest in securing employees who will loyally implement its policies where the 13 employees act as confidential advisors or formulate plans to implement policy. Bardzik, supra, 635 14 F.3d at 1148 (citing Elrod v. Burns, 427 U.S. 347, 367-68 (1976)) (patronage may be necessary to 15 ensure that “representative government [is] not … undercut by tactics obstructing the implementation 16 of policies of the new administration.”). This “policymaker exception” recognizes that an elected 17 official must be able to appoint some high-level, personally and politically loyal officials who will 18 help implement the policies for which the public voted. Id.2 In this context, the term “policymaker” 19 does not mean “one who makes policy,” but rather the term refers to whether the position is one in 20 which political affiliation is a legitimate matter to be considered. Hobler v. Brueher, 325 F.3d 1145, 21 1149 (9th Cir. 2003). “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ 22 fits a particular position,” but whether the hiring authority can demonstrate that political affiliation is 23 24 25 26 27 28 1 The First Amendment is made applicable to the States through the Fourteenth Amendment. Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114 (9th Cir. 2013) (citing Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947). In their Motion to Dismiss, Defendants’ argument that they “do not know what Plaintiff alleges under the Fourteenth Amendment” strains credulity. (Mot. at 12-13.) 2 By contrast, with rank-and-file employees, who “have only limited responsibility and are therefore not in a position to thwart the goals of the in-party,” a government’s interest in securing effective and efficient employees can be achieved through the less drastic means of discharging, transferring, or demoting those whose work is inadequate. Rutan, supra, 497 U.S. 62. 4 1 “an appropriate requirement for the effective performance of the public office involved.” Branti, 2 supra, 445 U.S. at 518.3 is a mixed question of law and fact. Hobler, supra, 325 F.3d at 1150. “[D]etermining the particular 5 duties of a position is a factual question, while determining whether those duties ultimately make that 6 position a policymaking or confidential position is a question of law.” Id. (citing Walker v. City of 7 Lakewood, 272 F.3d 1114, 1131 (9th Cir. 2001)). A job title is not determinative of whether a public 8 employee is a “confidential employee” or “policymaker.” Id. at 1151 (“the question cannot properly 9 be answered by determining whether their titles fit into the pigeonhole”). The question is whether 10 political loyalty is an appropriate requirement for the effective performance of the job based on the 11 actual, not the possible, duties performed by the employee. DiRuzza v. County of Tehama, 206 F.3d 12 Northern District of California The determination of whether a particular position falls under the “policymaking exception” 4 United States District Court 3 1304, 1310 (9th Cir. 2000). 13 Here, the FAC does not contain any description of the duties and responsibilities for the entry 14 level Deputy District Attorney – Basic Level III position for which Simpson interviewed.4 While it is 15 possible that a Deputy District Attorney – Basic Level III is a “policymaker,” there are no facts in the 16 record regarding the duties actually performed from which to determine whether political loyalty is a 17 legitimate requirement for the job.5 Defendants may be able to prove at trial, or perhaps even on 18 summary judgment, that political loyalty in a Deputy District Attorney – Basic Level III is needed for 19 20 21 3 22 23 24 25 26 27 28 The Supreme Court provides the following illustration: a football coach at a state university may formulate policy, but no one could seriously claim that a coach affiliated with the Republican party could not effectively perform his job if a Democrat was Governor, or vice versa. Branti, supra, 445 U.S. at 518. 4 The FAC describes the position of Deputy District Attorney – Basic Level III as an entry level, civil service position without managerial responsibilities. (FAC ¶ 30.) The FAC further alleges that these entry level attorneys do not act as advisors or implement policy. Id. 5 In decisions finding city attorneys, and assistant and deputy city attorneys, to be policymaking officials, the courts have considered several factors: if the position requires technical expertise, and often involves performing discretionary functions, advising city officials, representing the city, planning to implement city goals, drafting ordinances, negotiating contracts, and rendering legal opinions. Biggs v. Best, Best & Krieger, 189 F.3d 989, 995 (9th Cir. 1999). 5 1 the effective implementation of general departmental policy. However, such a factual determination 2 is not appropriate in this procedural context.6 Based on the foregoing analysis, the Court concludes that Defendants cannot demonstrate, 3 4 based solely on the allegations in the FAC, that the Deputy District Attorney – Basic Level III 5 position falls under the “policymaker exception.” 2. 6 Individual Defendants To make a prima facie showing of First Amendment retaliation, a plaintiff must establish that: 7 8 (1) she engaged in protected political activity; (2) the defendants took an “adverse employment 9 action” against her; and (3) her political activity was a “substantial or motivating” factor for the 10 adverse employment action. Nichols v. Dancer, 567 F.3d 423, 426 (9th Cir. 2009) (quoting Thomas 11 v. City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004)). Defendants Peterson and Cwiek argue that Plaintiff fails to allege that they took any adverse Northern District of California United States District Court 12 13 action against Plaintiff or that her support for Dan O’Malley was a substantial or motivating factor 14 for any adverse action. This argument either ignores the factual allegations in the FAC or 15 mischaracterizes those allegations as “conclusory” and not entitled to the assumption of truth.7 Under 16 Iqbal/Twombly, “to be entitled to the presumption of truth, allegations in a complaint … may not 17 simply recite the elements of a cause of action, but must contain sufficient allegations of underlying 18 facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 19 652 F.3d 1202, 1216 (9th Cir. 2011). The Court finds that the allegations in the FAC meet this 20 standard. 21 6 22 23 24 25 26 27 28 Defendants have cited to a number of cases holding that certain deputy district attorneys in other cities and other counties are policymakers who may be terminated for partisan reasons. In each case the court’s holding was based not simply on the job title of “deputy district attorney,” but rather on an analysis of the actual job performed under that title. Insofar as the duties of the particular job position are not genuinely at issue, the question of whether a public employee is in policymaking or confidential position, can be determined on a motion to dismiss. See Hobler, supra, 325 F.3d at 1150. 7 For example, Defendants specifically identify this paragraph as “conclusory”: In late July 2011, Association President, Barry Grove, asked Cwiek about the County’s failure to place Simpson on the reemployment list. Cwiek informed Grove that Simpson had made a sufficient case to warrant placing her on the reemployment list; however, Cwiek told Grove that Peterson had no intention of hiring back Simpson. (FAC ¶ 25.) 6 Based on the foregoing analysis, the Court DENIES the Motion to Dismiss Count I against the 1 2 individual Defendants. 3. 3 Monell Liability To state a Section 1983 claim against the County, Plaintiff must allege two elements: (1) a 4 5 violation of a constitutional right; (2) that is attributable to enforcement of a policy, practice, or 6 custom of the County. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Defendants 7 argue that Simpson has not pled a causal link between her support of O’Malley, the County’s policy 8 of not hiring people who supported O’Malley, and the decision not to hire Simpson because she 9 supported O’Malley.8 Simpson seeks to hold the County liable for the individual Defendants’ unconstitutional acts 10 Northern District of California on the basis that “the acts were done as policymakers for the County.” (FAC ¶ 10.) “As policy- 12 United States District Court 11 makers, Peterson and/or Cwiek, among other things, demoted, disciplined, and/or refused to hire 13 individuals … who supported O’Malley in the race for District Attorney.” (Id. ¶ 38.) According to 14 the FAC, these acts were carried out pursuant to a policy “to retaliate against current and prospective 15 employees by taking politically motivated adverse employment action against them for exercising 16 their First Amendment rights to free speech.” (Id. ¶ 37.) These allegations are sufficient to plausibly 17 allege that a County policy was the moving force behind the alleged constitutional violation. Based on the foregoing analysis, the Court DENIES the Motion to Dismiss Count I against the 18 19 County. STATE CONSTITUTIONAL CLAIMS 20 B. 21 Defendants move to dismiss Counts II and III of the FAC, both of which seek monetary 22 damages for violation of California Constitution, Article I, Sections 2 & 3, because California courts 23 do not recognize a private right of action for damages. Plaintiff concedes that there is no recognized 24 damages remedy under these provisions of the California Constitution. Additionally, at oral 25 26 27 28 8 Defendants also argue for a third element, that the employee intended to violate a specific right. Nothing in Monell or its progeny supports this specific intent pleading requirement. The Supreme Court in Collins v. City of Harker Heights, stated that the “proper analysis requires us to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” 503 U.S. 115, 120 (1992). 7 1 argument, Plaintiff’s counsel stated that she would withdraw these claims and proceed on Count I, 2 only. Based on the foregoing, the Court GRANTS the Motion to Dismiss Counts II and III WITHOUT 3 4 LEAVE TO AMEND. 5 IV. CONCLUSION 6 For the reasons set forth above, the Motion to Dismiss is DENIED IN PART and GRANTED IN 7 PART. The motion is DENIED as to Count I and GRANTED as to Counts II and III. Counts II and III 8 of the First Amended Complaint are DISMISSED WITHOUT LEAVE TO AMEND. This action shall proceed on Count I for Retaliatory Failure to Hire under the First and 9 Defendants shall file their answer(s) within 14 days of the date this Order is filed. 12 Northern District of California Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983. 11 United States District Court 10 This Order Terminates Docket Number 15.9 13 IT IS SO ORDERED. 14 Date: March 26, 2013 15 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The parties are Ordered to review the Court’s Standing Order in Employment Cases. 8

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