Opinion
Case No. CV 07-06575 DDP (SSx).
October 15, 2008
[Motion filed on July 28, 2008]
ORDER GRANTING IN PART AND DENYING IN PART THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
I. BACKGROUND
This case arises from Plaintiff Walter Jordan's termination by Defendant City of Beverly Hills. Plaintiff was a member of the Beverly Hills Police Department for 27 years, until his termination on July 20, 2007. (Jordan Decl. ¶ 2) Plaintiff alleges that additional Defendants Beverly Hills Risk Manager Karl Kirkman and Human Resources Director Sandra Olivencia Curtis placed him on medical disability retirement without his consent, and that he was discharged without notice. (Jordan Decl. ¶ 25; Jordan Decl., Exh. 4)
The parties dispute whether Plaintiff was "granted retirement" or "discharged." As used here, "termination" indicates that Plaintiff was placed on inactive employment status by Beverly Hills (rather than on Plaintiff's own initiative).
Plaintiff filed workers compensation claims in 2006 and 2007. (Kirkman Decl. ¶ 3) Defendant Kirkman supervises workers compensation claims filed with Beverly Hills. (Kirkman Decl. ¶ 2) However, the "administration" of these claims is done by an outside agency called Adminsure. (Id.) In July 2007, Adminsure gave Kirkman an oral summary of a medical report, which included a doctor's opinion that Plaintiff had a heart-related disability requiring a work restriction of reduced stress. (D.'s Resp. to Pl.'s Statement of Uncont. Facts and Law 8:1-10 ("D.'s RSPGI"); Kirkman Decl. ¶ 3) As a result of this information, Kirkman determined that Plaintiff was disabled. (Id.)
The parties dispute the exact nature of this medical opinion. However, there is no dispute that Kirkman relied exclusively on an oral summary of this opinion to determine Plaintiff was disabled. (D.'s RSPGI 8:1-10)
Kirkman then contacted Plaintiff to set up a meeting to discuss his disability on July 20, 2007. The parties dispute the purpose of this meeting and what exactly happened next, but Plaintiff did not attend the meeting. (RSPGI 19) Kirkman then sent Plaintiff a letter on July 20, informing him that he had been placed on "inactive status," inviting him to apply for medical disability retirement, and stating Beverly Hills was obligated by law to apply on his behalf if he did not. (Jordan Decl., Exh. 1) Using the parties' correspondence, a rough outline of what happened next is as follows.
On August 6, 2007, Plaintiff sent Kirkman a letter asking for an appeal from the disability determination, and also requesting pre-termination due process rights, an accommodation for his perceived disability, and to inspect all matters related to his personnel file. (RPSGI 26:6-15) Plaintiff sent a second, similar letter to Kirkman on August 17. (Id. 26:16-22) Kirkman apparently did not respond to these letters. Plaintiff then filed suit on October 10, 2007.
On December 5, 2007, Plaintiff sent a letter to CalPERS informing them that he did not want or qualify for disability retirement. (Jordan Decl., Exh. 5) On February 21, 2008, Plaintiff was copied on a letter from Defendant Olivencia Curtis to CalPERS, informing the agency that Plaintiff was disabled and that his disability retirement was effective as of July 20, 2007. (Jordan Decl., Exh. 4) Plaintiff responded on February 25 with a second letter to CalPERS, contesting his disability.
The City of Beverly Hills contracts with CalPERS to provide retirement services for its employees. See Beverly Hills Mun. Code 2-5-401.
Despite these letters, at no point did Plaintiff formally appeal his disability determination through CalPERS. (D.'s Addit. Decls. and Exhs. in Reply to Opp'n to Mot. for Summ. Judgment, Exhs. D, E ("D.'s Addit. Exhs.")) Additionally, Plaintiff apparently changed his mind and informed Defendants by email on March 26, 2008 that he was no longer disputing the upcoming pension benefits decision by CalPERS. (Id., Exh. F)
On April 24, 2008, Plaintiff received a letter from CalPERS confirming his medical disability retirement, and informing him that any appeal should be made through his employer. (Jordan Decl., Exh. 12)
Plaintiff pleads four causes of action: 1) against all Defendants, for violation of his due process rights, pursuant to 42 U.S.C. § 1983; 2) against Defendant Beverly Hills, for violation of California Government Codes §§ 3304(b) (right to appeal punitive actions, including termination), 3305 (inspection of personnel file), 3306 (same) and 3306.5 (same), pursuant to § 3309.5; 3) against Defendant Beverly Hills, for violation of California's FEHA regarding Plaintiff's perceived disability, Cal. Gov. Code § 12926 et. seq.; 4) against all Defendants, for declaratory relief in regard to any laws acted upon by Defendants in effecting Jordan's termination, which violated his due process rights (on their face or "as applied").
Plaintiff and Defendants now bring cross-motions for summary judgment.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining a motion for summary judgment, all reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"; and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. However, no genuine issue of fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
To state a claim under § 1983, a plaintiff must allege that "(1) the action occurred `under color of state law' and (2) the action resulted in the deprivation of a constitutional right or federal statutory right." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Defendants do not dispute that their actions occurred under color of state law. The only question is whether Plaintiff's due process rights were violated.
1. Due Process Claim
To prevail on a due process claim under the Fourteenth Amendment, a plaintiff must prove three elements: (1) a property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) a lack of required process.Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).
Property interests are not created by the Constitution, but rather by "existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Defendants do not dispute that Plaintiff was a permanent employee of Beverly Hills with a property interest in his position. (See D.'s Mot. 9:2-6; D.'s Opp. 4:24-28).
In general, the property interest for California police officers comes from California Code § 3304(b), which applies after a police officer completes his or her probationary period of employment. Cal. Gov. Code § 3304(b) (requiring an administrative appeal before a police officer may suffer a "punitive" action); Fleisher v. Signal Hill, 829 F.2d 1491, 1494-95 (9th Cir. 1987).
Next, Plaintiff must prove that he was deprived of an employment interest when he was placed on medical disability retirement. Forced disability retirement is analogous to discharge, because both result from the employer's determination that the employee has failed or is unable to comply with his or her duties. Shari v. Barberic, 669 F. Supp. 985, 990 (C.D.Cal. 1987). Because this determination may contain correctable errors and a correction could result in the employee keeping his or her job, forced retirement is also distinguishable from involuntary termination where there is no protected property interest, such as a mandatory retirement age. Id. Defendant argues at length that Plaintiff did not suffer a deprivation because the "substantive issue" for due process is whether Plaintiff was correctly granted disability retirement. (D.'s Mot. 9:17-21) This analysis is based in part on the fact that Beverly Hills was required under state law to apply for medical disability retirement on Plaintiff's behalf. Alternatively, Defendant argues Plaintiff has waived his due process rights because he is no longer contesting the determination by CalPERS that he is entitled to disability retirement. (D.'s Addit. Exhs., Exhs. F, G) This reasoning ignores the fact that Beverly Hills determined Plaintiff was disabled and then removed him from full employment. The deprivation arises from his separation from employment due to his disability, not his grant of disability retirement benefits after termination.
California law requires an employer that believes an employee is disabled to retire for disability retirement on behalf of that employee, unless the employee either waives this right or applies instead for service retirement. Cal. Gov. Code §§ 21153, 21156;Lazan v. Cty. of Riverside, 140 Cal. App. 4th 453, 464 (Cal.Ct.App. 2006). These laws operate to keep an employer from terminating an employee for a medical disability when he or she is eligible for disability retirement. Haywood v. Amer. River Fire Protection Dist., 67 Cal. App. 4th 1292, 1305 (Cal.Ct.App. 1998).
As CalPERS informed Defendant in its letter of April 24, 2008, the correct route of appeal of the benefits determination was through his employer. See Binkley v. City of Long Beach, 16 Cal App. 4th 1795, 1807 (Cal.Ct.App. 1993) (any appeal of a decision by CalPERS may be determined by the local agency). Plaintiff contested this determination with Defendants Beverly Hills and Kirkman as early as August 6, 2007. (RPSGI 26:6-15) The determination of benefits is therefore related to, but separate from, the determination of disability. Any waiver by Plaintiff on March 26, 2008 relates to his benefits determination (which may later be impacted by any decision by the Court regarding his disability).
Additionally, medical disability retirement is not equivalent to a full salary with benefits, because it negatively affects an employee's property interest, as would any other reduction in salary or benefits. See, e.g., White v. Cty. of Sacramento, 31 Cal. 3d 676, 682-83 (Cal. 1982) (comparing a mere transfer versus a transfer plus reduction in salary). This reduction also falls under § 3303. See Cal. Gov. Code § 3303 (defining "punitive" action as any action leading to "dismissal, demotion, suspension, [or] reduction in salary . . ."); see also Beverly Hills Municipal Code § 2-5-208 ("disciplinary action" against a civil employee includes a "reduction in compensation"). Involuntary disability retirement therefore constitutes a deprivation requiring procedural due process protection.
Lastly, Plaintiff must prove that the deprivation did not provide constitutionally adequate process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-42 (1985). At minimum, a governmental deprivation of life, liberty, or property must be preceded by notice and an opportunity for a hearing that is "appropriate to the nature of the case." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313 (1950). Additionally, in California, no punitive action may be taken against a police officer without providing the officer an opportunity for an "administrative appeal." § 3303(b); see Sanchez v. City of Santa Ana, 915 F.2d 424, 430 (9th Cir. 1990) (citing Baggett v. Gates, 32 Cal. 3d 128 (Cal. 1982)). Constitutional due process provides minimum standards, but the details of this appeal may be determined by the local agency. Copley Press, Inc. v. Superior Ct., 39 Cal. 4th 1272, 1288 (Cal. 2006) (citing § 3304(b) (basic rights must be accorded public safety officers by the "public agencies which employ them")). The purpose of this appeal is to give the officer subjected to a punitive action an opportunity "to attempt to convince the employing agency to reverse its decision, either by demonstrating the falsity of charges which led to punitive action, or through proof mitigating circumstances." Binkley, 16 Cal App. 4th at 1807 (internal quotation omitted).
Here, there is no dispute that Defendant Kirkman offered to meet with Plaintiff to discuss his disability on July 20, 2007, and that Plaintiff did not attend this meeting. However, the parties strongly dispute the purpose and scheduling of the meeting. Plaintiff states that Kirkman told him that Beverly Hills had already determined he would be retired based on his disability. (Jordan Decl. ¶ 9) On the other hand, Kirkman states that the meeting was merely to discuss possible accommodations for Plaintiff's disability. (D.'s Decls. and Exhs. in Support of D's Mot., Kirkman Decl. ¶ 5) The parties also dispute whether Kirkman required Plaintiff to have the meeting so suddenly that it was impossible for Plaintiff to adequately prepare for it. (Jordan Decl. ¶ 1; Kirkman Decl. ¶ 5) These issues are particularly important because Plaintiff alleges that the oral summary which Kirkman used to determine his disability was erroneous. If Plaintiff was not given the opportunity to contest Kirkman's disability determination, then his due process rights may have been violated. See Skelly v. State Personnel Bd., 15 Cal. 194, 215 (Cal. 1974) (due process requires: 1) notice and reasons for the proposed action; 2) a copy of the charges and materials on which the action is based; 3) the right to respond to the authority imposing discipline); see also Clements v. Airport Authority of Washoe County, 69 F.3d 321, 333 (9th Cir. 1995) ("A biased proceeding is not a procedurally adequate one.").
Because there is a genuine dispute of material fact as to whether Plaintiff was provided notice and an opportunity to be heard, the Court denies Plaintiff and Defendants' motions for summary judgment on this claim.
2. Qualified Immunity for Defendants Kirkman and Olivencia Curtis
Under § 1983, an individual defendant cannot be personally liable for a constitutional violation if either: 1) the constitutional or statutory rights are clearly established; or 2) a reasonable officer familiar with the law could have believed that the conduct at issue is constitutional. Galvin v. Hay, 361 F.3d 1134, 1139 (9th Cir. 2004).
A clearly established constitutional right is one which provides notice to officers that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). The act in question does not have to previously have been adjudged unlawful, but the illegality of the act must be "apparent." Id. (internal quotation omitted). Here, as noted above, the procedural due process standards required before terminating a tenured public employee are apparent and laid out in both statute and cases.
On the second prong, as to Defendant Kirkman, the parties dispute the information necessary to determine whether Kirkman behaved reasonably. Kirkman's role in investigating and granting disability retirement to Plaintiff is not clear. As such, there is a genuine dispute of material fact.
However, there is no dispute as to Defendant Olivencia Curtis' role. Olivencia Curtis' actions consisted of attempting to reschedule Plaintiff's meeting with Kirkman, and signing Plaintiff's disability determination at Kirkman's recommendation. Plaintiff does not argue or provide any evidence to dispute the fact that Olivencia Curtis had no obligation to verify Kirkman's recommendation, and that Kirkman's authority on the matter was not subject to Olivencia Curtis' approval or review. (Kirkman Decl. ¶ 2, 7, 8; Olivencia Curtis Depo 18:20-24, 32:22-33:3) As such, neither of these actions violate Plaintiff's civil rights or are unreasonable.
Specifically, Olivencia Curtis initially agreed to reschedule Kirkman's meeting with Plaintiff on July 20, 2007. Kirkman then rejected this decision and held the meeting as originally scheduled. (Kirkman Decl. ¶ 6)
The Court grants Defendant's motion as to qualified immunity for Defendant Olivencia Curtis, and denies Defendants and Plaintiff's motions (for and against qualified immunity) as to Defendant Kirkman.
B. Disability Discrimination under the FEHA § 12940
The California Fair Employment Housing Act (FEHA) prohibits discharge or discrimination in the terms or conditions of employment because of a physical or mental disability. Cal. Gov. Code § 12940(a). To state a claim under FEHA, a plaintiff must show: 1) he suffers from a disability; 2) he is otherwise qualified to do his job (with or without reasonable accommodation); and 3) he was subjected to adverse employment action because of his disability. Claudio v. Regents of U. Of Cal., 134 Cal. App. 4th 224, 242 (Cal.Ct.App. 2005). FEHA also requires an employer to "engage in a timely, good faith, interactive process with the employee" in order to determine "reasonable accommodations, if any, in response to a request for reasonable accommodation by a [disabled] employee." Cal. Gov. Code § 12940(n).
The parties strongly dispute whether Plaintiff had a disability at the time of his termination. Plaintiff submitted to the Court a doctor's report from May 13, 2006, completed at the request of the Disability Evaluation Unit of the Workers Compensation Appeals Board. (Jordan Decl., Exh. 7) It is unclear if this is the report that Adminsure summarized for Kirkman. However, the report states that Plaintiff can "continue to carry out fulltime work activities." (Id. at 9) On the other hand, the report also states that Plaintiff should "avoid excessive stress and tension." (Id. at 23) Further placing the matter in dispute, Plaintiff submitted a second doctor's report from August 9, 2006, also prepared for the Disability Evaluation Unit, which describes Plaintiff as having a "permanent disability" and apportioning "70%" of its cause to "stresses and tensions during the course of his work activities with the City of Beverly Hills Police Department." (Id., Exh. 9 at 2) The report also determines that Plaintiff's general impairment is "20% of the whole person," but that Plaintiff "plans to retire in two years" and is "capable of continuing on with fulltime work activities unless there is a worsening of his cardiac condition." (Id., Exh. 9 at 3-4) These contradictions are compounded by Defendant Kirkman's description of the oral summary he received of Plaintiff's disability, which required a "work restriction due to stress." (Kirkman Decl. ¶ 3)
Next, the parties also strongly dispute whether Defendants engaged in a good faith interactive process. As noted above in the due process analysis, the evidence submitted by the parties suggests either that Kirkman may or may not have engaged in a good faith attempt to accommodate Plaintiff's disability.
As there are genuine disputes of material fact, the Court denies Plaintiff and Defendants' motions for summary judgment on this claim.
C. POBRA Claims — Cal. Gov. Codes §§ 3304(b), 3305, 3306 and 3306.5
1. Supplemental Jurisdiction
Federal district courts may exercise supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . . ." 28 U.S.C. § 1367(a). A federal court may hear a state law claim when the court has jurisdiction over a federal claim and when the two claims derive from a "common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). The exercise of supplemental jurisdiction is also a matter of discretion, and the court may dismiss state claims at times even where it has the power to hear them. 28 U.S.C. 1367(b), (c).
Defendants argue that the Court cannot exercise supplemental jurisdiction over Plaintiff's state law claims under POBRA, because the statute grants "exclusive jurisdiction" to state courts. Section 3309.5 authorizes proceedings to remedy any violations of the Peace Officers Procedural Bill of Rights ("POBRA"). Cal. Gov. Code § 3309.5. The statute states that:
(c) The superior court shall have initial jurisdiction over any proceeding . . . for alleged violations of this chapter . . .
(d)(1) In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation . . .Id. Defendants' argument is based on the above language, which grants "initial jurisdiction" to "superior courts" to hear cases under POBRA. Id. Defendants cite to no cases which discuss the jurisdiction of this statute. The statute also contains no clear preclusion of federal court jurisdiction and, even if it did, the statute would conflict directly with 28 U.S.C. 1367(a). Fiedler v. Clark, 714 F.2d 77, 80 (9th Cir. 1983) ("[T]he states have no power directly to enlarge or contract federal jurisdiction.");Davet v. City of Cleveland, 456 F.3d 549, 554 (6th cir. 2006) (same).
Instead, Defendant analogizes to the California Tort Claims Act and a line of district court cases finding no federal jurisdiction under § 946.6 of that statute, in part based on the statute's grant of jurisdiction to the state "superior court."See Hernandez v. McClanahan, 996 F. Supp. 975, 978 (N.D.Cal. 1998) (denying jurisdiction for claims under California Gov. Code § 946.6). However, these cases are contradicted by another district court in Perez v. Escondido, which persuasively argues that the Hernandez court misapplied California Supreme Court case law. See Perez v. Escondido, 165 F. Supp. 2d 1111, 1115 (S.D.Cal. 2001) (granting jurisdiction for claims arising under § 946.6).
As such, the Court declines to adopt Defendants' interpretation of POBRA and finds that it has supplemental jurisdiction over Plaintiff's claims under POBRA.
2. Summary Judgment of POBRA Claims
a. Section 3304(b)
Section 3304(b) requires that public safety officers be provided an opportunity for administrative appeal before any punitive action is taken against him or her. Cal. Gov. Code § 3304(b). As described above, Plaintiff's argument that he was not granted an appeal is closely related to his due process claim. The above analysis also indicates a genuine dispute of material fact.
As such, the Plaintiff and Defendants' motions are denied as to this claim.
b. Sections 3305, 3306 and 3306.5
Sections 3305 and 3306 provide that a public safety officer has the right to review and sign documents with adverse comments that are placed in his or her personnel file, and to respond by filing a written response. Cal. Gov. Code § 3305, 3306. The formal label of the file is irrelevant under § 3305, as long as the document has been or potentially will be used by the employer for personnel decisions. Cty. of Riverside v. Superior Ct. of Riverside Cty., 27 Cal. 4th 793, 802 (Cal. 2002). Section 3306.5 adds a further right of inspection when records "are used or have been used" to determine "qualifications for employment, promotion, additional compensation, or termination or other disciplinary action." Cal. Gov. Code § 3306.5.
Before his termination, Plaintiff was notified by Defendant that he was the subject of an internal criminal and administrative investigation. (Jordan Decl. ¶ 4) This investigation was never completed, because Defendant Beverly Hills decided not to continue it after his termination. (Snowden Decl. ¶ 4) Beverly Hills admits that the investigative file contains adverse information relating to alleged misconduct by Plaintiff. (D.'s Resp. to Pl.'s Statem. of Uncontested Facts ¶ 16)
While no case has specifically addressed an incomplete investigative file, courts have broadly construed Section 3305 regarding what constitutes "use" of files for personnel purposes. See Cty. of Riverside, 27 Cal. 4th at 802-03 (a file's label is irrelevant where it may serve as a basis for affecting the employees' employment). Also, merely placing a negative report in a file may be considered "punitive" under Section 3304(b), and permit appeal of the decision to place it there. Hopson v. City of Los Angeles, 139 Cal. App. 3d 347 (Cal. Ct. App 1983). In light of these decisions, the fact that the investigation has not been completed does not indicate that the investigative file has not been "used" by Beverly Hills for personnel purposes with regard to Plaintiff or that it is not covered by POBRA. See also Caloca v. Cty. of San Diego, 72 Cal. App. 4th 1209 (1999) ("punitive" acts include those which only "may lead" to adverse consequences).
Finally, Defendants mention, without argument, that all the documents from the administrative and criminal investigation are privileged, because there is a pending criminal investigation.See Cty. Of Orange v. Superior Ct., 79 Cal. App. 4th 759 (Cal.Ct.App. 2000). Plaintiff does not address this argument. On the current record, the Court lacks sufficient information to decide the question of summary judgment as to these claims.
As such, the Court requests additional briefing on the issue of whether privilege due to a pending criminal investigation applies here. Defendants have also offered to show their investigative file ex parte to the Court, which the Court declines at this time.
IV. CONCLUSION
The Court GRANTS in part Defendants' motion with regard to Defendant Olivencia Curtis and DENIES the rest of its motion. The Court DENIES the portion of Plaintiff's motion that is not related to its claims under § 3305, 3306, and 3306.5. The Court ORDERS the parties to submit additional briefing, of no longer than 10 pages, as to whether any privilege based on a criminal investigation applies to Plaintiff's claims under § 3305, 3306, and 3306.5, and the duration for which Plaintiff will not be permitted to view this file. The briefing shall be due on Friday, October 17 by 5pm.
IT IS SO ORDERED.