Plaintiff Must Show Employer's Conduct was Substantially Motivated by Speech to State Claim for First Amendment Retaliation

On July 27, 2016, Morin I. Jacoband Lisa Charbonneauof LCW's San Francisco office secured summary judgment in favor of our clients in the Douglas Maner v. County of Stanislaus and Birgit Fladager lawsuit. The case had originally been filed in state superior court, but was removed to federal court on the basis that Maner had alleged federal claim violations in his Complaint.

Plaintiff Douglas Maner ("Maner") worked as a Deputy District Attorney for the County of Stanislaus ("County") for over twenty years. Despite Maner's career successes, he also received an unprecedented number of increasingly-serious complaints about his conduct dating back to his first year at the County. By 2005, he had been investigated, counseled, and reprimanded by numerous supervisors for misconduct. Nine of his ten annual performance evaluations noted his problems working with others. In 2006, the County elected a new DA, Birgit Fladager. After Fladager's election, Maner continued alienating, insulting, and offending his co-workers, judges, law enforcement officials, and members of the public in numerous separate incidents. In response, his supervisors continued to investigate, counsel, reprimand, and discipline him for his repeated instances of increasingly serious misconduct. In 2013, after over twenty years of his supervisors' attempts to address his problems with less severe forms of discipline, the County's Assistant DA proposed Maner's termination due to recent, egregious instances of misconduct, including significant complaints from a presiding judge and a murder victim's next of kin.

As a public employee, Maner was afforded pre-disciplinary due process rights and the County reduced the proposed discharge to a suspension. Instead of returning to work, however, Maner submitted a letter of resignation on October 7, 2013, in which he claimed he was a victim of retaliation due to first amendment activity in 2006 when he supported a particular candidate in the 2006 DA election. It was not until 2013 – seven years later – that Maner raised this claim with the County.

On April 14, 2014, Maner filed a lawsuit alleging the following claims: retaliation for exercise of first amendment rights to free political speech, retaliation for exercise of first amendment rights to free association, denial of due process, and violations of California Labor Code sections 1101 and 1102. After months of discovery, the County and Ms. Fladager filed a motion for summary judgment claiming that there was no genuine dispute as to any material fact, and thus, the Defendants were entitled to judgment as a matter of law.

The Eastern District court agreed, holding that, although Maner had engaged in free speech and that adverse employment actions were taken against Maner for misconduct, Maner could not establish that the disciplinary actions taken against him were substantially motivated by his support of an opposition candidate in a 2006 DA election. Instead, the court found that the Defendants' actions were motivated by Maner's bad behavior in the workplace.

The Court noted that "mere knowledge" that Maner supported an opponent was insufficient on its own to show retaliatory motive. Since Maner did not have any direct evidence of a retaliatory motive, the Court analyzed the circumstantial evidence provided by Maner such as Maner's deposition testimony about a meeting he had with Fladager after months of attempting to schedule the meeting in which he alleged Fladager's tone suggested she "ha[d] a grudge." Maner also attempted to compare his administrative investigation and discipline to that of other attorneys in his office. However, the Court found that the evidence that other attorneys received different discipline failed to show an inference that Maner was subject to retaliation since Maner's discipline was imposed in a proportionate manner with other misconduct within his office. The County was entitled to summary judgment in their favor on the First Amendment claims.

The court also found that the County had not violated Maner's due process rights, having given him proper notice and an opportunity to respond to the allegations of misconduct brought against him before imposing serious discipline. Lastly, the court found that Maner could not bring his alleged state Labor Code violations against the County because the provisions alleged in Maner's Complaint are not applicable to public entities.

NOTE:

Retaliation claims are becoming increasingly common due to the relative ease with which an employee can allege that they were subjected to an adverse action based upon some protected activity, like First Amendment speech. However, the employee still has to demonstrate that the adverse action was "substantially motivated" by the speech at issue. Employers can minimize the risk of a First Amendment claim by carefully documenting performance and behavior issues and ensuring that performance evaluations reflect these issues.

Maner v. County of Stanislaus and Birgit Fladager (E.D. Cal. 2010) _________ [2016 WL 4011722]