Opinion
NO. CIV. S-05-0740 FCD EFB.
December 19, 2006
MEMORANDUM AND ORDER
This matter is before the court on a motion for summary judgment, or alternatively, partial summary judgment brought by defendants El Dorado Irrigation District ("EID"), Ane Deister ("Deister"), David Powell ("Powell"), Thomas Cumpston ("Cumpston"), George Wheeldon ("Wheeldon") and George Osborne ("Osborne") (sometimes collectively, "defendants"). By the motion, defendants seek adjudication in their favor on plaintiff Scott Shewbridge's ("plaintiff") complaint, alleging claims for (1) violation of 42 U.S.C. § 1983 on the grounds defendants retaliated against plaintiff for exercising his First Amendment rights and terminated him without sufficient due process and (2) conspiracy to violate plaintiff's civil rights. Plaintiff opposes the motion, arguing that triable issues of fact exist as to each of his claims.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
In his complaint, filed April 15, 2005, plaintiff also alleged a claim for wrongful termination in violation of public policy under state law. Said claim, however, was dismissed on defendants' motion under Federal Rule of Civil Procedure 12(b)(6). (Mem. Order, filed Sept. 22, 2005 [dismissing claim as untimely under the California Tort Claims Act].)
For the reasons set forth below, the court GRANTS in part and DENIES in part defendants' motion.
BACKGROUND
In November 2001, EID hired plaintiff as a Senior Engineer for the Water Division. (Pl.'s Resp. to Defs.' Stmt. of Undisputed Facts ["UF"], filed Nov. 17, 2006 [Docket #36-3], ¶ s 1, 2.) At the time, and during all times relevant to this action, plaintiff resided in El Dorado County, within EID's district. (Pl.'s Stmt. of Add'l Material Facts ["AF"], filed Nov. 17, 2006 [Docket #36-3], ¶ 1.) Subsequently, plaintiff became the co-head of the Hydro Division. (UF ¶ 3.) Throughout his employment with EID, plaintiff's primary task was to lead the re-licensing of Project 184, which involved large scale water diversions, conveyances, and hydroelectric facilities. Plaintiff's job duties connected with this project included review of documentation from past interactions, including litigation, notices of violation, interactions with regulatory agencies, and studies done in support of the re-licensing efforts. (UF ¶ 5.) Plaintiff's duties also involved meeting with the re-licensing group members, including state, federal and local resource agencies, regulators, and nongovernmental organizations, managing the hydrologic data and reviewing the results from hydrologic modeling for EID's raw water supply. (UF ¶ s 6-7.) Throughout his employment, plaintiff believed he had a personal and ethical obligation as a professional engineer to report wrongdoing by the district and any potential danger to the public. (UF ¶ 8.)
Defendant Powell supervised plaintiff during his employment with EID. (UF ¶ 9.) Powell's duties as plaintiff's supervisor included preparing written performance evaluations and discussing those evaluations with plaintiff. (UF ¶ 10.) On July 21, 2002, Powell prepared a performance evaluation for plaintiff, indicating: "You can and do come on too strong at times however, and this intimidates your employees and peers. You should tone this down a bit when appropriate." (UF ¶ 11-12.) Powell discussed the contents of the evaluation with plaintiff. (UF ¶ 13.) On August 14, 2002, plaintiff signed the evaluation and indicated he understood Powell wanted him to change his style of communication. (UF ¶ 14.)
Thereafter, in September 2002, defendants assert plaintiff again began behaving inappropriately. (UF ¶ 60.) On September 26, 2002, plaintiff walked out of a staff meeting in frustration over comments made by defendant Deister, General Manager of EID. (UF ¶ s 61, 75.) On September 30, 2002, defendants claim plaintiff engaged in "attack style interactions" in a meeting with Board members and other staff. (UF ¶ 62.) Then, on October 10, 2002, defendants assert plaintiff became agitated in a meeting with Deister and was accusatory and disrepectful towards her. (UF ¶ 63.) Plaintiff disputes defendants' characterizations of these incidents and asserts he acted appropriately under the circumstances of each incident. (UF ¶ s 60, 62, 63.)
On November 15, 2002, Powell prepared another performance evaluation for plaintiff, which he discussed with plaintiff. (UF ¶ s 20, 21.) At the time of this evaluation, plaintiff was still on an initial 12-month probationary period. (UF ¶ 22.) Based on the recent incidents, plaintiff's performance was deemed unacceptable in this evaluation, and defendants assert plaintiff's probationary period was extended. (UF ¶ 23.) Plaintiff contends his probationary period was not extended. (UF ¶ 23; AF ¶ 19.)
Section 6 of EID's Personnel Policy Statement distinguishes between regular (permanent) employees and probationary employees. (UF ¶ 15.) A regular employee is an employee who was hired, has received a satisfactory evaluation of performance and has 12 months, or more, continuous employment with the district in an established position. (UF ¶ 16.) Upon completion of 12 months of continuous service with the district and upon receiving a satisfactory evaluation of performance, a probationary employee will be granted regular status. (UF ¶ 17.) Permanent employees have the right to appeal demotions and dismissals, but probationary employees do not. (UF ¶ s 18, 19.)
Also on November 15, 2002, Powell prepared and issued a Performance Improvement Plan ("PIP") to plaintiff. (UF ¶ 24.) Defendants assert the plan was intended to help plaintiff improve his behavior and give him an opportunity to change his manner of dealing with EID personnel, including his supervisors. (UF ¶ 25.) Plaintiff disputes that the PIP was warranted, in the first instance, and asserts it was never formally initiated. (UF ¶ s 25, 26.) According to plaintiff, on November 22, 2002, Deister told him the PIP "would not be issued, that there were mistakes in it, that it contained materials in it that had come from Mary Egan that were wrong and it was not going to be issued." (UF ¶ 26; AF ¶ 20.)
On February 27, 2003, plaintiff met with Deister about changes that were made to the EID Organizational Chart. (UF ¶ 27.) Defendants assert that during this meeting, plaintiff closed the door to Deister's office and argued with her in a loud voice, yelling and exhibiting aggressive behavior. (UF ¶ 28.) Three people overheard the incident. (UF ¶ 29.) Plaintiff disputes that he yelled or exhibited aggressive behavior towards Deister and maintains that he acted appropriately under the circumstances of two people having a disagreement. (UF ¶ 28.)
The following week, on March 3 or 4, 2003, plaintiff received a "Notice of Two Day Suspension for Insubordination," authored and delivered by Powell. The Notice cited several incidents of alleged misconduct and insubordination by plaintiff, from September 2002 to February 2003, and notified plaintiff that any further acts of insubordination would result in termination. (UF ¶ s 31, 32.)
In April 2003, Powell decided to terminate plaintiff and began preparing a "Notice of Intent to Terminate." (UF ¶ 40.) Also in April 2003, then Boardmember, Al Vargas, overheard a meeting between Deister, Cumpston, Powell, Wheeldon and Osborne, at which they discussed terminating plaintiff, and Vargas told plaintiff defendants intended to terminate him. (UF ¶ 56.)
Plaintiff's foundational objection to this evidence is overruled. Defendant Powell filed a declaration attesting to this fact, and moreover, plaintiff alleged this fact in his complaint and testified that he based the allegation on a draft version of the Notice of Intent to Terminate found in the Department of Labor files.
Defendant Cumpston is EID's General Counsel. (UF ¶ 77.)
Defendants Wheeldon and Osborne are members of EID's Board of Directors. (UF ¶ 78.)
In July 2003, plaintiff was given a "Skelly" hearing to contest his 2-day suspension and was allowed to have counsel present. (UF ¶ s 33.) At the hearing, plaintiff raised questions about Deister's behavior. (UF ¶ 34.) The Skelly officer upheld the suspension, and plaintiff appealed the decision to the Board of Directors, who also upheld the suspension. (UF ¶ s 35, 36.) During this appeal, plaintiff again raised questions about the management style, ethics and legality of certain decisions taken by Deister. (UF ¶ 38.)
Skelly v. State Personnel Bd., 15 Cal.3d 194 (1975) (finding that state statutory scheme regulating civil service employment confers on a permanent civil service employee a property interest in continuation of his employment and that this interest is protected by due process)
Thereafter, on August 8, 2003, plaintiff was given a Notice of Intent to Terminate prepared by Powell. (UF ¶ 39.) Said Notice set forth the factual basis for the termination noting multiple instances whereby defendants claimed plaintiff was insubordinate to his supervisor, Powell, and the General Manager, Deister, and was verbally abusive to others within EID. (UF ¶ 64.) Plaintiff was given an opportunity to respond via another Skelly hearing, and he again had counsel present. (UF ¶ 41, 43.) Steve Cascioppo, Executive Officer of El Dorado County courts, served as hearing officer. (UF ¶ 42.) Mr. Cascioppo affirmed the termination, and plaintiff appealed to the Board of Directors on March 19, 2004. (UF ¶ 44.) The Board also affirmed plaintiff's termination. (UF ¶ 45.)
Plaintiff claims that the negative performance reviews, suspension and eventual termination were all a pretext to silence him in retaliation for reporting wrongdoing by EID management. (UF ¶ 46.) Plaintiff also claims he did not receive fair Skelly hearings in that the judges were not impartial, and he was not allowed to present his side of the story. (AF ¶ 22, 24.)
Both as an EID employee and as a resident of El Dorado County, plaintiff asserts he had a direct interest in issues of water quality, water availability, water delivery and the effect of EID's management of water resources on the environment in which he lived. (AF ¶ 1.) Once employed by EID, plaintiff states he began to question EID management on these issues, often in the face of severe rebukes. (AF ¶ 2; UF ¶ 70.) Yet, plaintiff continued to advocate his position that EID was mismanaging El Dorado County's water resources in ways which could lead to environmental damage, water shortages, and the complete unavailability of water for consumption and fire suppression in El Dorado Hills. (AF ¶ 3.)
Specifically, either prior to his actual termination in August 2003 and/or prior to his receiving notice, in approximately April 2003, of defendants' intent to terminate him, plaintiff:
(1) complained to Deister and Powell about Deister's hostile treatment of other employees (AF ¶ 6);
(2) expressed concern about improper participation, in violation of the Brown Act, by three Board members, including Wheeldon and Osborne, in a participation meeting regarding access to the Crawford Ditch (UF ¶ 50);
(3) complained about Powell's misrepresentation at a pre-Board meeting and Board meeting regarding the amount of losses of water flowing through Crawford Ditch (AF ¶ 4);
(4) complained to Deister about her withholding of information from the Board in November 2002 through January 2003 (AF ¶ s 6, 18; UF ¶ 52);
(5) in May 2003, made complaints to the Department of Fish and Game, the State Water Board, the Department of Health Services and the California Attorney General's office about EID's misrepresentations and misreporting of water supply by EID and about insufficient supply to meet demand in El Dorado Hills (AF ¶ s 12, 13; UF ¶ 47);
(6) In May 2003, participated in a public water conference, as a private citizen, over the objections of Cumpston, who threatened plaintiff with loss of his job if he participated, and Deister (AF ¶ 10, 11);
(7) participated in a presentation regarding water supply, demand and diversion issues to citizens of El Dorado County through the Maidu Group of the Sierra Club (AF ¶ 14);
(8) participated at Board meetings following his being placed on administrative leave, to voice concerns regarding issues of water supply and demand (AF ¶ 15);
(9) wrote letters to the editor and had discussions with reporters regarding his concerns about water supply and demand issues (AF ¶ 16); and
(10) participated in the EID Citizen's Water Advisory Group (AF ¶ 17).
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party.See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
ANALYSIS
1. § 1983 Claim — Retaliation in Violation of First Amendment Free Speech Rights
Section 1983 does not create any substantive rights but rather provides a vehicle whereby a plaintiff can challenge actions by governmental officials. To establish a violation of § 1983, a plaintiff must demonstrate 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) (internal quotations and citations omitted). Here, it is undisputed that defendants acted under "color of state law." The only issue then is whether defendants violated plaintiff's constitutional rights, namely, his First Amendment and/or due process rights.
Defendants move for summary judgment as to plaintiff's retaliation claim arguing plaintiff cannot demonstrate he engaged in speech protected by the First Amendment and even if he could, plaintiff cannot demonstrate that his speech was a substantial or motivating factor in defendants' decision to terminate him. To establish a claim for retaliation in violation of free speech rights, a public employee plaintiff must demonstrate: (1) he engaged in constitutionally protected speech; (2) the employer took adverse employment action against the employee; and (3) the employee's speech was a "substantial or motivating" factor in the adverse action. Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir. 2006). The first and third elements are at issue on this motion as the parties do not dispute that defendants' took adverse employment action against plaintiff when they terminated him.
As to the first issue, whether plaintiff engaged in protected speech, the court must engage in a three-step analysis: First, the court must determine whether plaintiff spoke as a citizen or an employee. Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). Second, the court must determine whether, in light of the content, form and context of the speech, it touched on matters of public concern. Connick v. Meyers, 461 U.S. 138, 146 (1983). Third, the court must determine whether the value of the employee's speech outweighs "the government's interest in the effective and efficient fulfillment of its responsibilities to the public." Id. at 150. Ordinarily, these are questions of law for the court to decide. Id. at 148 n. 7. However, as set forth below, there are certain factual issues in this case that must be addressed by a jury first which preclude this court from making a conclusive determination herein. Accord Kodrea v. City of Kokomo, 2006 WL 1750071 (S.D. Ind. June 22, 2006).
Defendants contend that plaintiff's speech was not made in his capacity as a citizen but in the context of his employment. The Supreme Court, in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), recently addressed the issue of whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties. The plaintiff, Ceballos, was a deputy district attorney employed as a calendar deputy with supervisory responsibilities. Id. at 1955. Pursuant to his duties, he investigated a complaint from a defense attorney regarding inaccuracies in an affidavit used to obtain a search warrant. Id. at 1955-56. Following his investigation, Ceballos prepared a memo outlining his concerns with the affidavit and recommending that the case be dismissed.Id. Ceballos' memo prompted a meeting with his supervisors and members of the sheriff's department that allegedly became very heated. Id. at 1956. In spite of Ceballos' concerns, the district attorney's office decided to proceed with the prosecution. Id. Thereafter, during a hearing on a motion challenging the warrant, Ceballos was called by the defense to testify about his observations, but the trial court upheld the warrant. Id. Ceballos claimed that he was subsequently subjected to retaliation, including a transfer and denial of a promotion. Id.
The Court found that the controlling factor in determining whether Ceballos' speech was protected was that his expressions were made pursuant to his official duties as a calendar deputy.Id. at 1960. Part of Ceballos' responsibilities were to investigate concerns and advise his supervisors regarding pending cases, a fact that was not disputed by the parties. Id. Under these circumstances, the Supreme Court concluded "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id.
In reaching this decision, the Court made several observations applicable to this case. First, because the parties did not dispute that Ceballos wrote the memo pursuant to his employment duties, the Court observed that it did not have occasion to articulate a framework for defining the scope of an employee's duties in cases where there is room for serious debate. Id. at 1961. It did reject, however, the suggestion that an employer can restrict an employee's rights simply by creating broad job descriptions. Id. In addition, the Court was not persuaded that Ceballos' speech was unprotected merely because he had expressed his views in the office and they concerned the subject matter of his employment, explicitly noting that in some cases employees may still receive First Amendment protection for expressions made at work or related to the employee's job. Id. at 1959.
The Court stated: "The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id. at 1961-62.
Ceballos thus reveals that the "critical inquiry" in addressing whether plaintiff's speech in this case was protected is plaintiff's job responsibilities (i.e., was his speech made "pursuant to [his] official duties"). Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006). However, here, unlike the situation inCeballos, there is a factual dispute concerning whether plaintiff's speech was made pursuant to his ordinary job duties.See accord Kodrea v. City of Kokomo, 2006 WL 1750071 (S.D. Ind. June 22, 2006). Defendants proffer no evidence that it was plaintiff's job as a engineer for EID to report wrongdoing by the district, either internally (within the district) or externally (to outside agencies). Instead, defendants rely on plaintiff's testimony at his deposition that he believed, as a professional engineer, he had an obligation to report wrongdoing by the district and to respond to what he perceived as potential dangers to the public; defendants maintain plaintiff's "obligation as a professional engineer is inseparable from his obligation as an employee of EID because he was hired by EID to work as an engineer." (Mem. of P A, filed Aug. 29, 2006, 10:17-19) (emphasis in original.) Defendants' argument is not persuasive. They mischaracterize plaintiff's testimony. Plaintiff did not testify that such reporting was within his job duties for EID; rather, he testified that by law, under the California Code of Regulations governing engineers, he believed he had a professional and ethical obligation to report wrongdoing by the district and to respond to any perceived danger to the public. (UF ¶ 8 [Pl.'s Dep. at 32:11-33:24].) As set forth in his opposition to the motion, plaintiff clearly disputes that his speech in this case fell within any specific job duties he had for EID. (Id.; AF ¶ 1.)
What his job duties included is the "critical inquiry."Freitag, 468 F.3d at 545 (emphasizing the distinction between speech attendant to a public employee's official duties and speech about the subject of a public employee's employment and holding that only the former is not protected speech underCeballos); see also accord Wilcoxon v. Red Clay Consolidated Sch. Dist. Bd. of Educ., 437 F. Supp. 2d 235 (D. Del. 2006); Kodrea v. City of Kokomo, 2006 WL 1750071 (S.D. Ind. June 22, 2006). Accordingly, because there are factual issues about whether plaintiff's job responsibilities included the obligation to report wrongdoing by the district either internally to his supervisors or externally to other agencies, the court is unable to conclude that plaintiff's complaints were made simply as an employee in performance of his duties rather than a concerned citizen. The court, therefore, must resolve any doubt in favor of plaintiff for purposes of summary judgment and conclude, at this stage of the proceedings, that plaintiff may have acted as a concerned citizen. Defendants thus are not entitled to summary judgment on this issue.
As to the next inquiry, whether plaintiff's speech addressed a matter of public concern, the court finds that it is able to make, on the record presented, this legal determination.
A public employee addresses a matter of public concern when his speech relates to an issue of "political, social, or other concern to the community." Connick, 461 U.S. at 146. "Speech that concerns issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government merits the highest degree of first amendment protection." Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). In contrast, "speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public's evaluation of the performance of governmental agencies, is generally not of public concern." Id.
In defining the scope of First Amendment protection afforded to public employees' speech, the Supreme Court has distinguished between speech "as a citizen upon matters of public concern" at one end and speech "as an employee upon matters only of personal interest" on the other. Connick, 461 U.S. at 147. Thus, the relevant inquiry under Connick is the point of the speech in question — was it the employee's point to bring wrongdoing to light or was the point to further some purely private interest?Roth v. Veteran's Admin. of United States, 856 F.2d 1401, 1406 (9th Cir. 1988). It is only when it is clear that the information would be of no relevance to the public's evaluation of the performance of governmental agencies, that the public employee's speech receives no protection. Ulrich v. City County of San Francisco, 308 F.3d 968, 978 (9th Cir. 2002).
The vast majority of plaintiff's speech in this case falls squarely within the confines of speech addressing matters of public concern. (AF ¶ s 4, 10-18; UF ¶ s 47, 50, 52.) With the exception of his internal complaints about his supervisors' treatment of employees (AF ¶ 6), his speech addressed issues concerning EID's alleged misrepresentations to the public concerning water supply and demand within the district and EID's mismanagement of the district. As such, his speech sought to bring alleged wrongdoing to light, and it addressed topics which would be important to the public in evaluating the performance of EID. Coszalter, 320 F.3d at 973; Roth, 856 F.2d at 1406. The court, therefore, finds that said speech was of a matter of public concern.
However, even if speech relates to a matter of public concern, it is not constitutionally protected unless the speaker's First Amendment interests outweigh the public employer's interests "in promoting workplace efficiency and avoiding workplace disruption." Ceballos v. Garcetti, 361 F.3d 1168, 1173 (9th Cir. 2004), overruled on other grounds, 126 S.Ct. 1951 (2006). "The employer bears the burden of proving that the balance of interests weighs in its favor." Id. Defendants have not met this burden. They have not presented any evidence with regard to the Connick-Pickering balance test. (Mem. of P A at 11:4-12 [Attorney argument that plaintiff's speech impacted EID's ability to complete the re-licensing project is not evidence the court can consider.].) There is nothing in the record to suggest that plaintiff's speech was sufficiently disruptive so that the government's interest in promoting efficiency outweighed plaintiff's First Amendment rights. Moreover, the Supreme Court has recognized that speech which "seek[s] to bring to light actual or potential wrongdoing or breach of the public trust" is entitled to heightened protection, even in the face of alleged disruption to the employer. Connick, 461 U.S. at 148. Accordingly, and assuming without deciding that plaintiff spoke as a citizen, the court must conclude at this stage, that plaintiff's speech is protected. Defendants are therefore not entitled to summary judgment on this issue.
Finally, the court must address whether retaliation for plaintiff's exercise of his First Amendment rights was the substantial or motivating factor in defendants' decision to terminate plaintiff. In "mixed motive" cases like this one, where plaintiff alleges he was terminated for exercising his First Amendment rights and defendants assert plaintiff was terminated for insubordination and poor performance, the Ninth Circuit has formulated a two-part burden shifting test. Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999). First, plaintiff must show that his constitutionally protected conduct was a substantial or motivating factor in defendants' employment decision. If plaintiff makes this showing, then the burden shifts to defendants to show, by a preponderance of the evidence, that they would have reached the same decision even in the absence of plaintiff's protected conduct. Id. Plaintiff can sustain his burden by introducing evidence regarding the proximity in time between his speech and the allegedly retaliatory action. Coszalter, 320 F.3d at 977 (finding that "depending on the circumstances, three to eight months is easily within a time range that can support an inference of retaliation").
Here, defendants contend plaintiff was terminated for insubordination and poor performance. However, plaintiff presents sufficient evidence to place that rationale in dispute. Contrary to defendants' characterization of the evidence, plaintiff did not first begin to make complaints about EID management only after he found out about defendants' intent to terminate him from Vargas (in April 2003). Plaintiff presents evidence that from the inception of his employment with EID and continuing throughout his employment up until his termination in August 2003, he voiced complaints to EID management and outside agencies that EID was mismanaging El Dorado County's water resources in ways which could lead to environmental damage, water shortages, and/or the complete unavailability of water for consumption or fire suppression in El Dorado Hills. (AF ¶ s 2, 3.) All of his complaints were made prior to his actual termination in August 2003 (AF ¶ s 4, 6, 10-18; UF ¶ s 47, 50, 52), and they coincided with defendants' poor performance evaluations, suspension, and eventual termination of plaintiff. As the adverse action taken against plaintiff "took place on the heels of [his] protected activity," a jury may reasonably find that plaintiff's speech was a motivating factor in defendant's decision to terminate him. See e.g. Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994).
Contrary to defendants' argument, the court finds that this is the critical date for purposes of analyzing plaintiff's retaliation claim. While plaintiff may have learned of defendants' intent to terminate him in April 2003, it is undisputed that he was not actually terminated until August 8, 2003.
The court likewise finds based on this same evidence that plaintiff has raised a triable issue of fact that defendants' stated reasons for his termination are a mere pretext. The court cannot find as a matter of law, on the record presented, that defendants would have reached the same decision even in the absence of plaintiff's speech about the district. The underlying facts regarding plaintiff's alleged insubordination and poor performance are highly disputed. It is for the jury to determine whether plaintiff acted appropriately in his dealings with EID management; should they find that he did, defendants' stated reasons for plaintiff's termination may well be unpersuasive in light of plaintiff's evidence concerning the temporal nexus between his complaints and defendants' adverse employment actions against him.
Accordingly, for the above reasons, defendants' motion for summary judgment as to plaintiff's retaliation claim for violation of plaintiff's First Amendment rights is denied.
2. § 1983 Claim — Violation of Procedural Due Process Rights
Defendants move for summary judgment on plaintiff's procedural due process claim, arguing (1) as a probationary employee, plaintiff did not have a constitutionally-protected property interest in his employment, and thus, he was not entitled to any due process prior to his termination and (2) even if plaintiff were considered a permanent employee entitled to due process, he was afforded constitutionally adequate due process prior to his termination. The parties agree that pursuant to EID's personnel policies, only "regular" or permanent employees are constitutionally entitled to procedural due process prior to their termination. Regents v. Roth, 408 U.S. 564, 577 (1972) (property interests are not created by the Constitution but rather are "created and their dimensions are defined by existing rules or understandings that stem from an independent source"). The parties dispute, however, whether plaintiff was a probationary or permanent employee at the time of his termination. (AF ¶ s 19, 20.) Nevertheless, said dispute does not prevent a grant of summary judgment in favor of defendants because even assuming plaintiff was a permanent employee, he received adequate due process.
(UF ¶ s 15-22.)
In this context of government employment, plaintiff was entitled, at a minimum, to pre-termination notice and an opportunity to respond in a hearing appropriate to the nature of the case. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The pretermination hearing, though necessary, need not be elaborate. Id. at 545. Rather, "`[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.'" Id. (citations omitted.) "In general, `something less' than a full evidentiary hearing is sufficient prior to adverse administrative action." Id. (citation omitted.)
Here, it is undisputed that plaintiff received both notice and a hearing. He received prior notice of his termination in the "Notice of Intent to Terminate," and he was given an opportunity to respond in a Skelly hearing and appeal before the EID Board. (UF ¶ s 39, 41-45.)
Plaintiff also, at times in his briefing, makes reference to an alleged lack of due process relating to his 2-day suspension. However, plaintiff has not cited any law demonstrating he is constitutionally entitled to any process relating to such disciplinary action. As such, the court considers plaintiff's due process claim only with respect to his termination.
Plaintiff contends, nonetheless, that he has a viable due process claim because the hearing officer was not impartial, and he was not given the opportunity to present "his side of the story." (AF ¶ s 22, 23.) Other than his conclusory allegations, however, plaintiff has no evidence to support his claims. First, he has no factual basis for his assertion that hearing officer, Cascioppo, was biased against him. Indeed, the undisputed evidence is to the contrary. Cascioppo was not employed by EID; he was the Executive Officer of El Dorado County courts. (UF ¶ 42.) Moreover, Cascioppo's decision was reviewed by the EID Board, and plaintiff likewise produces no evidence that the EID Board members were biased against him in reviewing his appeal. (AF ¶ 22.) Plaintiff cannot simply rest on his allegations without any significant probative evidence tending to support his complaint. Nissan Fire Marine, 210 F.3d at 1107. As plaintiff has no such evidence here, his due process claim on this basis must be dismissed.
In his deposition, plaintiff testified he believed the due process procedures were inadequate because there was "no segregation of management from judicial in the proceedings." He stated he believed the hearing officer was "behold(ed) to the political powers in El Dorado County for his job" and that he "underst[ood] from others that [Cascioppo] and [defendant] Cumpston knew of each other when Mr. Cumpston worked at the — for the El Dorado Water Agency and that they had a friendly relationship." This latter statement is clearly inadmissible hearsay.
Second, while plaintiff concedes he was given a hearing and appeal in order to respond to the notice of termination, he complains that he was not afforded adequate due process because at those proceedings he was not allowed to "present his side of the story." Notably, plaintiff had counsel at both proceedings, and it is undisputed that he was permitted to speak and state his objections to the termination. (UF ¶ s 41-45.) This is all that due process requires. That plaintiff may have preferred to discuss his allegations of wrongdoing by EID instead of the allegations against himself does not raise a due process violation. Plaintiff was constitutionally entitled to an opportunity to respond to the termination notice, and he received it. Therefore, summary judgment in favor of defendants is also granted as to this basis for plaintiff's due process claim.
3. Conspiracy to Violate § 1983
Defendants move to dismiss plaintiff's conspiracy claim, arguing that said claim is not cognizable under § 1983. Citing Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962), defendants argue the Ninth Circuit has only recognized such a claim in dicta. Defendants are incorrect. Subsequent to Cohen, the Ninth Circuit has expressly recognized a conspiracy claim under § 1983.Gilbrook v. City of Westminster, 177 F.3d 839, 848-52 (9th Cir. 1999) (upholding jury verdict finding city mayor, city council members, the assistant city manager, the fire chief and other city officials liable under § 1983 for conspiracy to violate city firefighters' First Amendment rights); see also Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999).
To establish the defendants' liability for a conspiracy, a plaintiff must demonstrate the existence of "an agreement or meeting of the minds to violate constitutional rights." Mendocino Enivornmental Center, 192 F.3d at 1301 (internal quotations omitted). Here, for the reasons set forth above, plaintiff has raised triable issues of fact with respect to his First Amendment retaliation claim sufficient to withstand summary judgment on that claim and, correspondingly, on this claim. As to defendants' alleged "agreement" to violate plaintiff's First Amendment rights, plaintiff proffers evidence that the individual defendants met as part of an ad hoc committee to plan his termination. (AF ¶ s 8, 9.) Such evidence is sufficient to raise a triable issue as to whether defendants engaged in "some concerted action, intend[ing] to accomplish [the] unlawful objective" of terminating plaintiff for exercising his First Amendment rights. Mendocino Enivornmental Center, 192 F.3d at 1301. Indeed, whether defendants were involved in an unlawful conspiracy is generally a factual issue which should be resolved by the jury, "so long as there is a possibility that the jury can infer from the circumstances (that the alleged conspirators) had a meeting of the minds and thus reached understanding to achieve the conspiracy's objectives." Id. at 1301-02 (internal quotations omitted). Therefore, defendants' motion for summary judgment as to this claim is denied.
4. Qualified Immunity
Plaintiff sues the individual defendants in this action in both their official and individual capacities. (Compl., ¶ s 3-7.) With respect to plaintiff's claims against them in their individual capacities, the individual defendants move for summary judgment on the basis of qualified immunity. As the court dismisses plaintiff's due process claim against all defendants, it discusses herein only whether the individual defendants are entitled to qualified immunity as to plaintiff's First Amendment retaliation claim.
It is not clear from defendants' motion whether they also seek summary judgment on the ground of qualified immunity with respect to plaintiff's claims against them in their official capacities. Such relief is clearly not available as qualified immunity applies only to suits against government actors in their individual capacities. Hafer v. Melo, 502 U.S. 21, 25 (1991). Accordingly, the court construes defendants' motion as seeking relief on the ground of qualified immunity only as to plaintiff's claims against the individual defendants in their individual capacities.
Public officials are entitled to qualified immunity for acts that do not violate "clearly established . . . constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, when considering a defendant's motion for summary judgment on the ground of qualified immunity, "[t]he threshold question . . . is whether, taken in the light most favorable to the party asserting injury, the facts alleged show that the officer's conduct violated a constitutional right." Bingham v. City of Manhattan Beach, 329 F.3d 723, 729 (9th Cir. 2003), superceded by 341 F.3d 939 (citingSaucier v. Katz, 533 U.S. 194, 201 (2001)). If a violation can be made out, the next step is to determine whether the right violated or the law governing the official's conduct was clearly established such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."Id. (quoting Saucier, 533 U.S. at 202); Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).
Where a defendant's conduct violates constitutional rights and the law is clearly established, the defendant may not claim qualified immunity.
Here, the threshold inquiry is satisfied because the court has determined above that a reasonable jury could find that the individual defendants violated plaintiff's First Amendment rights. The next question is whether, at the time of plaintiff's termination, the law regarding First Amendment retaliation was clearly established such that a reasonable officer would have been on notice that such conduct was unlawful. Saucier, 533 U.S. at 205.
At the time, the law was clearly established that county officers cannot retaliate against employees for the exercise of First Amendment rights. Hyland v. Wonder, 117 F.3d 405, 410 (9th Cir. 1997).
We have held that as early as 1983 `[i]t could hardly be disputed that . . . an individual had a clearly established right to be free of intentional retaliation by government officials based upon that individual's constitutionally protected expression.' [citation omitted] When the individual is a government employee, he or she has a right to speak on issues of public importance without being fired from public employment. [citation omitted] In Hyland I, we noted that the well-established `right of public employees to speak on matters of public concern . . . is an outgrowth of the constitutional tenet that public officials may not deny or deprive a person of a governmental benefit or privilege on a basis that infringes her or his freedom of speech.' [citation omitted]Id. Thus, given the established state of the law at the time in question, the individual defendants had "fair warning" that termination of plaintiff for exercising his First Amendment rights was unconstitutional. Hope v. Pelzer, 535 U.S. 730, 741 (2002) (noting that the salient question is whether the law at the time of the disputed conduct gave the defendant "fair warning that their alleged treatment of [the plaintiff] was unconstitutional").
Accordingly, because there are triable issues of fact as to whether the individual defendants terminated plaintiff for exercising his First Amendment rights, and because the individual defendants had fair notice that their alleged conduct was unconstitutional, the court cannot find, on summary judgment, that they are entitled to qualified immunity.
5. Punitive Damages against EID
Defendants move to dismiss plaintiff's claim for punitive damages against EID on the ground that as a municipal corporation EID is absolutely immune from such damages claims. City of Newport v. Fact Concerts, 453 U.S. 247, 267 (1981) (finding municipalities immune from punitive damages claims brought under § 1983 as it would be wrong that "retribution should be visited upon the shoulders of blameless and unknowing taxpayers"). Plaintiff responds, not challenging the controlling law, but arguing that defendants have failed to proffer evidence that EID is a municipal corporation. However, it is plaintiff's burden to produce evidence that EID is not such a corporation, and plaintiff has not done so. Moreover, plaintiff alleges in his complaint that EID is a municipal corporation. (Compl., filed — [caption names the El Dorado Irrigation District, "a municipal corporation"].) Under federal law, a party is conclusively bound by the factual allegations in his pleading. American Title Ins. Co. v. Lancelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). As such, plaintiff is bound by his allegations regarding EID's corporate status, and accordingly, either under City of Newport or based on plaintiff's lack of an evidentiary showing, the court grants summary judgment in favor of defendants on this issue.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED in part and DENIED in part. The motion is granted with respect to plaintiff's claim for punitive damages against defendant EID. The motion is also granted with respect to plaintiff's § 1983 claim against all defendants for violation of plaintiff's due process rights. The motion, however, is denied with respect to plaintiff's § 1983 claim against all defendants for violation of plaintiff's First Amendment rights and conspiracy to violate said rights.IT IS SO ORDERED.