1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TEMUJIN BUSTOS, No. 1:20-cv-00066-DAD-BAM 12 Plaintiff, 13 v. ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS, 14 CITY OF FRESNO, et al., DENYING DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT, AND 15 Defendants. GRANTING DEFENDANTS’ MOTION TO STRIKE 16 (Doc. No. 11) 17
18 19 INTRODUCTION 20 This matter is before the court on motions to dismiss, for a more definite statement, and to 21 strike filed by defendants the City of Fresno (the “City”); Jerry Dyer, individually and in his 22 former capacity as Chief of the Fresno Police Department (“FPD”); and Andrew Hall, 23 individually and in his current capacity as Chief of FPD (collectively, the “defendants”). (Doc. 24 No. 11.) The court reviewed the briefing and deemed the matter suitable for decision on the 25 papers pursuant to Local Rule 230(g). (Doc. No. 14.) For the reasons discussed below, the court 26 will grant defendants’ motion to dismiss in part, deny their motion for a more definite statement, 27 and grant their motion to strike. 28 ///// 1 BACKGROUND 2 Plaintiff Temujin Bustos is currently employed by FPD as a sergeant. (Doc. No. 1 3 (“Compl.”) at ¶ 3.) According to plaintiff, he was repeatedly passed over for promotion to 4 lieutenant as a result of racial discrimination and in retaliation for engaging in protected speech. 5 (Id. at ¶¶ 35–83.) In his complaint, plaintiff alleges as follows. 6 In or around January 2017, the FPD created a new “corporal” position, intermediate in 7 rank to officers and sergeants. (Id. at ¶ 15.) According to plaintiff, the program 8 was hastily implemented. Without yet receiving proper training, numerous officers were effectively instantaneously transformed into 9 corporals. The new corporals were immediately placed on patrol shifts tasked with the supervision of many officers. For example, a 10 corporal with little to no training in that capacity was thrust into supervising 40 officers on a patrol shift. This officer-to-supervisor 11 ratio greatly exceeds what is typically considered acceptable for even a seasoned sergeant. . . . [T]his situation resulted in a safety hazard 12 for officers who were being supervised by untrained staff[] and created safety concerns for the public and a general diminution in 13 service. 14 (Id. at ¶¶ 15, 17.) Plaintiff raised his concerns about the corporal program to his supervisors at 15 the FPD and to the leadership of the Fresno Police Officer’s Association (“FPOA”), the union 16 entity that represents FPD officers, corporals, and sergeants. (Id. at ¶¶ 14, 17, 18.) These 17 concerns were relayed to FPD management, and then-Chief Dyer and then-Deputy Chief Hall 18 eventually learned that they had originated with plaintiff. (Id. at ¶ 19.) Chief Dyer thereafter 19 “reluctantly” made changes in the corporals’ training program and set limits on their supervisory 20 responsibilities. (Id.) 21 In or around November 2017, plaintiff sat for the exam for promotion to lieutenant and 22 scored highly, ranking third on the promotion list. (Id. at ¶ 20.) Later that year, Chief Dyer 23 promoted the two individuals who had ranked ahead of plaintiff on the list. (Id.) In or around 24 September 2018, Dyer interviewed plaintiff along with several other sergeants for promotion to 25 lieutenant. During that interview, Dyer “expressed frustration” with plaintiff for his 26 communications with the FPOA regarding the corporal program. (Id. at ¶ 21.) In or around 27 November 2018, Chief Dyer passed plaintiff over and promoted three other sergeants to 28 lieutenant, those ranking fourth, fifth, and sixth on the promotion list. (Id. at ¶ 22.) 1 Plaintiff subsequently met with Dyer to discuss how to increase his chances of being 2 promoted, and Dyer advised him to consult with various deputy chiefs. (Id. at ¶ 23.) Plaintiff 3 then spoke with four deputy chiefs, five captains, and five to six lieutenants, where he learned that 4 although he had “[n]o serious or specific performance issues,” he had apparently upset Chief 5 Dyer by “express[ing] concerns regarding unsafe working conditions and diminished public 6 safety to his union and supervisors.” (Id.) 7 In or around March 2019, plaintiff again interviewed with Dyer for an open lieutenant 8 position. (Id. at ¶ 25.) On April 1, 2019, Dyer informed plaintiff that he would instead promote a 9 sergeant ranked seventh on the promotion list, even though that sergeant had been the subject of 10 recent and serious discipline, unlike plaintiff. (Id.) 11 Plaintiff then lodged an internal complaint about being passed over for promotion. (Id. at 12 ¶ 26.) In a subsequent meeting in May 2019, plaintiff informed Chief Dyer that he did not want 13 to have a public dispute. (Id.) Dyer then allegedly made a veiled threat of retaliation against 14 plaintiff. (Id.) In this regard, Dyer first replied that “he had been sued before by other 15 employees, and some of those employees had expressed regret over suing.” (Id.) He then 16 observed that “people who had sued him in the past had not fared well,” and that “he did not want 17 a lawsuit to damage” plaintiff’s career, citing plaintiff’s “filing of a grievance [as] an example of 18 him being too rigid or stubborn.” (Id.) 19 In addition, plaintiff believes that he has been the victim of racial discrimination. On 20 information and belief, he alleges that “white personnel who have had previous disciplinary 21 issues or who have for some other reason fallen out of favor with the Chief are readily and 22 frequently given second chances[] and [are] generally not delayed in their career advancement.” 23 (Id. at ¶ 27.) However, “Hispanic employees” like plaintiff “frequently are relegated to career 24 purgatory for minor and major issues, whether legitimate or illegitimate, real or just perceived.” 25 (Id.) 26 On August 26, 2019, plaintiff presented a claim for damages (the “tort claim”) to the City, 27 alleging claims under 42 U.S.C. § 1983, the California Labor Code, and the California 28 Government Code. (Id. at ¶ 28.) Plaintiff also complained of disparate treatment on the basis of 1 race in violation of the California Fair Employment and Housing Act (“FEHA”). (Id.) On 2 September 3, 2019, four days after the City confirmed receipt of plaintiff’s claim, he was 3 removed from the list of candidates for promotion to lieutenant. (Id. at ¶ 29.) After plaintiff 4 grieved this action, he was placed back on the promotion list. (Id.) 5 In October 2019, Chief Dyer retired from the FPD1 and hand-selected defendant Hall as 6 his replacement, though, according to plaintiff, Dyer continues to “wield[] considerable influence 7 over department decision-making.” (Id. at ¶ 31.) Hall and plaintiff knew each other prior to the 8 former’s elevation to Chief of Police. During a period in which Chief Hall was a captain and 9 plaintiff was a motor sergeant, the former “openly referred” to plaintiff as a “zika baby,” referring 10 to a virus that caused an epidemic in the Americas in 2015–16. (Id. at ¶ 32.) The virus became 11 particularly well-known because it causes birth defects such as microcephaly, a condition where a 12 baby is born with a head much smaller than normal. (Id.) 13 Thereafter, on or around December 5, 2019, Hall and the other defendants again passed 14 over plaintiff and promoted another sergeant who had scored lower on the lieutenant’s exam. (Id. 15 at ¶ 33.) In addition to himself, two other Hispanic officers were also passed over for promotion 16 in favor of lower-scoring white officers. (Id.) On information and belief, plaintiff alleges that 17 defendants refused to promote him because he: (1) had “exercised his right to petition the 18 government,” (2) had “engaged in speech as a private citizen on a matter of public concern,” and 19 (3) was discriminated against for being Hispanic. (Id.) 20 Plaintiff then filed this action on January 13, 2020, alleging various causes of action for 21 retaliation in violation of both federal and state law and race discrimination in violation of state 22 law. (Id. at ¶¶ 35–83.) On March 16, 2020, defendants filed a motion to dismiss several of 23 plaintiff’s claims. (Doc. No. 11.) Defendants also moved in the alternative for a more definite 24 statement and to strike plaintiff’s official capacity claims against Dyer and Hall. (Id.) Plaintiff 25 ///// 26
27 1 Chief Dyer has since been elected the Mayor of Fresno. See Tim Sheehan, Jerry Dyer Will Be 28 Fresno’s Next Mayor, He’ll Start Work Quickly on Transition Process, FRESNO BEE (Mar. 11, 1 filed his opposition to the motion on April 7, 2020, and defendants filed their reply on April 14, 2 2020. (Doc. Nos. 12, 13.) 3 LEGAL STANDARD 4 The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of 5 the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal “can be based on 6 the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 7 legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (citation 8 omitted). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible 9 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). 13 In resolving a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true 14 and construed in the light most favorable to the nonmoving party.” Naruto v. Slater, 888 F.3d 15 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 16 2001)). However, the court need not accept as true allegations that are “merely conclusory, 17 unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988. Neither 18 must the court “assume the truth of legal conclusions cast in the form of factual allegations.” 19 Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation omitted). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). It is also inappropriate to assume that the plaintiff “can prove facts 26 which it has not alleged or that the defendants have violated the . . . laws in ways that have not 27 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 28 U.S. 519, 526 (1983). 1 DISCUSSION 2 A. Request for Judicial Notice 3 Defendants request that the court take judicial notice of the following documents: (1) a 4 Side Letter of Agreement between the City and the FPOA (the “Side Letter”); (2) an Amended 5 Memorandum of Understanding between the City and the FPOA (the “MOU”); (3) the job 6 description for a FPD police sergeant, as listed on the City’s website; and (4) the tort claim 7 presented by plaintiff to the City, dated August 20, 2019. (See Doc. No. 11-2.) 8 Although courts generally cannot consider material beyond the complaint in ruling on a 9 Rule 12(b)(6) motion, there are two exceptions to this rule: “the incorporation-by-reference 10 doctrine, and judicial notice under Federal Rule of Evidence 201.” Khoja v. Orexigen 11 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). 12 Incorporation-by-reference 13 is a judicially created doctrine that treats certain documents as though they are part of the complaint itself. The doctrine prevents plaintiffs 14 from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or 15 doom—their claims. 16 Id. at 1002. Even if not directly attached to a complaint, a document may be incorporated by 17 reference “if: (1) the complaint refers to the document; (2) the document is central to the 18 plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) 19 motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); see also United States v. Ritchie, 20 342 F.3d 903, 908 (9th Cir. 2003) (permitting incorporation by reference “if the plaintiff refers 21 extensively to the document or the document forms the basis of the plaintiff’s claim”). However, 22 a complaint’s “mere mention of the existence of a document is insufficient to incorporate the 23 contents of a document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); see 24 also Khoja, 899 F.3d at 1002 (“[I]f the document merely creates a defense to the well-pled 25 allegations in the complaint, then that document did not necessarily form the basis of the 26 complaint. Otherwise, defendants could use the doctrine to insert their own version of events into 27 the complaint to defeat otherwise cognizable claims.”). 28 1 In addition, a court may take “judicial notice of matters of public record . . . as long as the 2 facts noticed are not subject to reasonable dispute.” Intri-Plex Techs. v. Crest Grp., Inc., 499 3 F.3d 1048, 1052 (9th Cir. 2007) (internal quotation marks omitted). Federal Rule of Evidence 4 201 specifies that a court can take judicial notice of an adjudicative fact if that fact “is not subject 5 to reasonable dispute” because it either “(1) is generally known within the trial court’s territorial 6 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot 7 reasonably be questioned.” This burden lies with the party requesting judicial notice. See 8 Newman v. San Joaquin Delta Cmty. Coll. Dist., 272 F.R.D. 505, 516 (E.D. Cal. 2011). 9 However, “[j]ust because the document itself is susceptible to judicial notice does not mean that 10 every assertion of fact within that document is judicially noticeable for its truth.” Khoja, 899 11 F.3d at 999. For this reason, courts should not take judicial notice of a fact contained within a 12 document if that fact “is subject to varying interpretations, and there is reasonable dispute as to 13 what [the document] establishes.” Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th 14 Cir. 2011). 15 First, as to the Side Letter and the MOU, the court will take judicial notice of the fact that, 16 as embodied by the documents, the City and the FPOA agreed to the creation of the rank of 17 corporal. Both documents are government contracts and are thus matters of public record. See, 18 e.g., DiRuzza v. Cty. of Tehama, 206 F.3d 1304, 1311 (9th Cir. 2000) (taking judicial notice of a 19 memorandum of understanding between a government entity and a police officer bargaining unit). 20 In addition, plaintiff does not dispute the authenticity of the documents. However, plaintiff 21 alleges in his complaint that the FPD made changes to the corporal program at some point before 22 November 2017 in response to the concerns he raised. (Compl. at ¶ 19.) As a result, the court 23 cannot ascertain whether the terms contained in the Side Letter (which was signed on November 24 22, 2016) and the MOU (which, by its terms, applied to the time period between June 26, 2017 to 25 June 23, 2019) actually governed the entire time period placed in question by this action. 26 Second, as to the sergeant’s job description, the court will take judicial notice of the 27 written job description and duties listed therein. The posting is a government document that was 28 made available online by the City and so is a public record. See, e.g., Lal v. Ogan, No. 1:18-cv- 1 00286-LJO-SAB (PC), 2019 WL 427294, at *2 (E.D. Cal. Feb. 4, 2019) (taking judicial notice of 2 “job descriptions and postings provided by [two state agencies]”). In addition, plaintiff does not 3 dispute its authenticity. However, the court notes that the document is couched in conditional 4 language—for example, it uses “may” five times in a list of eleven “examples of important and 5 essential duties.” (Doc. 11-2 at 113.) The document also has an effective date of October 8, 6 2019, which overlaps only with the latter end of the timeline of events alleged by plaintiff in his 7 complaint. (Id. at 115.) Therefore, the court cannot accept as an adjudicative fact that plaintiff 8 was actually responsible for any of the job duties listed as “examples” in the job description for 9 the time period at issue in this case. 10 Finally, the court will take judicial notice of the fact that plaintiff (1) filed a tort claim for 11 money damages with the City on August 20, 2019 and (2) alleged retaliation and racial 12 discrimination therein. (See Doc. No. 11-2 at 117–25.) However, the court cannot take judicial 13 notice of the facts alleged in the tort claim. See Lee v. City of Los Angeles, 250 F.3d 668, 689 14 (9th Cir. 2001) (holding that judicial notice is appropriate for “undisputed matters of public 15 record” but not for “disputed facts stated in public records”); see also Gong v. City of Rosemead, 16 226 Cal. App. 4th 363, 369 n.1 (2014) (“The court may take judicial notice of the filing and 17 contents of a government claim, but not the truth of the claim.”). 18 B. Motion to Dismiss 19 1. Plaintiff’s First Amendment Retaliation Claim 20 Defendants first move for dismissal of plaintiff’s § 1983 claim, which alleges retaliation 21 in violation of the First Amendment. “It is well settled that the state may not abuse its position as 22 employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens 23 to comment on matters of public interest.’” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) 24 (alteration in original) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This is so 25 in part because the public often “has a strong interest in hearing from public employees, 26 especially because ‘[g]overnment employees are often in the best position to know what ails the 27 agencies for which they work.’” Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013) (en 28 banc) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). 1 However, “[o]ut of recognition for ‘the State’s interest as an employer in regulating the 2 speech of its employees,” courts must “arrive at a balance between the interests of the [public 3 employee], as a citizen, in commenting upon matters of public concern and the interest of the 4 State, as an employer, in promoting the efficiency of the public services it performs through its 5 employees.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012) (quoting 6 Connick v. Myers, 461 U.S. 138, 140 (1983) and Pickering, 391 U.S. at 568). Otherwise, 7 “government offices could not function if every employment decision became a constitutional 8 matter.” Connick, 461 U.S. at 143. 9 The Ninth Circuit has therefore arrived at the following sequential five-step test from Eng: 10 First, the plaintiff bears the burden of showing: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff 11 spoke as a private citizen or public employee; and (3) whether the plaintiff’s protected speech was a substantial or motivating factor in 12 the adverse employment action. Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: 13 (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and 14 (5) whether the state would have taken the adverse employment action even absent the protected speech. 15 16 Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (citing Eng, 552 F.3d at 17 1070). Because “all five factors are independently necessary,” Dahlia, 735 F.3d at 1067 n.4, “a 18 reviewing court is free to address a potentially dispositive factor first rather than addressing each 19 factor sequentially.” Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1260 (9th Cir. 2016). 20 a. Plaintiff’s Communications with His Union: Speaking as a Private Citizen 21 or Public Employee? 22 Defendants argue that plaintiff cannot maintain his First Amendment claim because 23 “[d]espite Plaintiff’s conclusory allegation that he complained about safety issues involving the 24 rank of Corporal in his individual capacity, the specific allegations make clear that such 25 statements were made in his official capacity as Sergeant of the Fresno Police Department.” 26 (Doc. No. 11-1 at 12.) In light of defendants’ arguments, (see Doc. No. 11-1 at 14–20), the court 27 will focus on the second Eng factor: whether plaintiff spoke as a private citizen or as a public 28 ///// 1 employee when he raised concerns about the corporal program to his supervisors and the 2 leadership of his union. 3 It is a given that “public employees do not surrender all their First Amendment rights by 4 reason of their employment” and retain the right, “in certain circumstances, to speak as a citizen 5 addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also 6 Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 822 (9th Cir. 2017). The “mere fact that a 7 citizen’s speech concerns information acquired by virtue of his public employment does not 8 transform that speech into employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. 9 228, 240 (2014). Rather, “speech by public employees on subject matter related to their 10 employment holds special value precisely because those employees gain knowledge of matters of 11 public concern through their employment.” Id. However, the law is also clear that the “First 12 Amendment does not protect speech by public employees that is made pursuant to their 13 employment responsibilities—no matter how much a matter of public concern it might be.” 14 Coomes, 816 F.3d at 1260 (citing Garcetti 547 U.S. at 423–24). Thus, the “critical question 15 under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s 16 duties, not whether it merely concerns those duties.” Id. (citing Lane, 573 U.S. at 240). 17 Determining “whether the speech in question was spoken as a public employee or a 18 private citizen presents a mixed question of fact and law.” Kennedy, 869 F.3d at 823 (quoting 19 Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008)). “First, a 20 factual determination must be made as to the scope and content of a plaintiff’s job 21 responsibilities.” Id. (quoting Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 22 2011)). This inquiry is fact-intensive and defies “easy heuristics.” Dahlia, 735 F.3d at 1069. 23 Rather, “[t]he proper inquiry is a practical one,” Garcetti, 547 U.S. at 424, that is “not limited to a 24 formalistic review of [the plaintiff’s] job description.” Coomes, 816 F.3d at 1260. “Second, the 25 ultimate constitutional significance of those facts must be determined as a matter of law.” 26 Kennedy, 869 F.3d at 823 (quoting Johnson, 658 F.3d at 966). 27 As a preliminary matter, plaintiff does not contest that the complaints he made to his 28 supervisors at the FPD about the corporal program are not protected by the First Amendment. 1 (See Doc. Nos. 11-1 at 16–17; 12 at 13–30.) Thus, to the extent that plaintiff’s § 1983 claim is 2 predicated on such conduct, it will be dismissed as legally not cognizable.2 See Dahlia, 735 F.3d 3 at 1074 (“[G]enerally, ‘when a public employee raises complaints or concerns up the chain of 4 command at his workplace about his duties, that speech is undertaken in the course of performing 5 his job.’”). Thus, the court will only analyze plaintiff’s claim that “his speech to his union was 6 undertaken as a private citizen, not pursuant to his official duties as a public employee.” (Doc. 7 No. 12 at 20.) 8 Recognizing that “no single formulation of factors can encompass the full set of inquiries 9 relevant to determining the scope of a plaintiff’s job duties,” the court in Dahlia identified several 10 “guiding principles” and “factors to consider.” See Dahlia, 735 F.3d at 1074 & n.13. 11 “First, particularly in a highly hierarchical employment setting such as law enforcement, 12 whether or not the employee confined his communications to his chain of command is a relevant, 13 if not necessarily dispositive, factor in determining whether he spoke pursuant to his official 14 duties.” Dahlia, 735 F.3d at 1074; see also Cochran v. City of Los Angeles, 222 F.3d 1195, 1201 15 (9th Cir. 2000) (holding that “a wide degree of deference” is due to police departments in part 16 because “[d]iscipline and esprit de corps are vital to [their] functioning”). “If, however, a public 17 employee takes his job concerns to persons outside the workplace in addition to raising them up 18 the chain of command at his workplace, then those external communications are ordinarily not 19 made as an employee, but as a citizen.” Id. (quoting Davis v. McKinney, 518 F.3d 304, 313 (5th 20 Cir. 2008)); see also Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006) (holding that a 21 correctional officer’s communications to a state senator and to the state inspector general’s office, 22 both outside of her chain of command, were “protected under the First Amendment”). 23 Here, plaintiff raised his concerns about the corporal program to both his supervisors at 24 the FPD and to the leadership at the FPOA. The “external communications” made to the FPOA 25 thus fit squarely into the framework set out in Dahlia for speech made as a private citizen, 26 2 Alternatively, the court can also dismiss this claim because plaintiff failed to oppose 27 defendants’ motion to dismiss it. See Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1205 (N.D. Cal. 2014) (failure to oppose a motion to dismiss constitutes abandonment of a claim) (collecting 28 1 plaintiff’s communications to his supervisors at the FPD notwithstanding. See Dahlia, 735 F.3d 2 at 1074. In addition, the Ninth Circuit has clearly affirmed that reports to police unions can 3 constitute protected speech, depending on the facts of the case.3 See Dahlia, 735 F.3d at 1077 4 (“[W]e conclude that Dahlia’s report to his police union constituted protected speech.”); Ellins, 5 710 F.3d at 1059–60 (“[A] jury could reasonably conclude that Ellins’s [police] union activities 6 and related speech were undertaken in his capacity as a private citizen.”); cf. Manhattan Beach 7 Police Officers Ass’n, Inc. v. City of Manhattan Beach, 881 F.2d 816, 819 (9th Cir. 1989) 8 (suggesting that “denials of confidential, supervisory posts based on union activities do not 9 necessarily violate [F]irst [A]mendment rights”). Thus, at this juncture, the court cannot find as a 10 matter of law that plaintiff spoke as a public employee when he communicated with the FPOA. 11 Though defendants attempt to distinguish Dahlia and Ellins on the facts, (see Doc. No. 13 at 4– 12 6), plaintiff has plainly alleged a plausible claim that he spoke as a private citizen outside of the 13 scope of his job duties. To the extent that there is a dispute as to the exact scope of plaintiff’s job 14 responsibilities and the nature of his communications to the FPOA, “the court must reserve 15 judgment . . . until after the fact-finding process.” Posey, 546 F.3d at 1131; see also Dahlia, 735 16 F.3d at 1072 17 Accordingly, the court will deny defendants’ motion to dismiss as to the part of plaintiff’s 18 § 1983 claim that is based on his communications with his union without prejudice to that issue 19 being raised again by way of motion for summary judgment. 20 b. Plaintiff’s Government Tort Claim: A Matter of Public Concern? 21 Defendants also seek to dismiss plaintiffs’ § 1983 claim insofar as it is based on plaintiff’s 22 filing of a government tort claim on August 26, 2019, which plaintiff alleges led to further 23 retaliation against him. (Doc No. 11-1 at 19.) According to defendants, a government tort claim 24 “is not a matter of public concern, but a complaint to remedy a personal situation.” (Id.) 25 3 Defendants’ heavy reliance on out-of-circuit authority, (see Doc. No. 11-1 at 14–20), is 26 unavailing where, as here, the Ninth Circuit has spoken on the issue. See Entler v. Gregoire, 872 F.3d 1031, 1042 (9th Cir. 2017) (“[I]n the face of Ninth Circuit precedent, we need not resort to 27 out-of-circuit caselaw . . . .”); Farrakhan v. Gregoire, 590 F.3d 989, 1000 (9th Cir. 2010), aff’d on reh’g en banc, 623 F.3d 990 (9th Cir. 2010) (“Out-of-circuit cases are not binding on this 28 1 “Speech involves matters of public concern when it can be fairly considered as relating to 2 any matter of political, social, or other concern to the community, or when it is a subject of 3 legitimate news interest; that is, a subject of general interest and of value and concern to the 4 public.” Moonin v. Tice, 868 F.3d 853, 863 (9th Cir. 2017) (quoting Lane, 573 U.S. at 241); see 5 also Ulrich v. City & County of San Francisco, 308 F.3d 968, 978 (9th Cir. 2002) (defining 6 public interest “broadly”); Roe v. City & County of San Francisco, 109 F.3d 578, 586 (9th Cir. 7 1997) (noting the Ninth Circuit’s “liberal construction of what an issue ‘of public concern’ is 8 under the First Amendment”). On the other hand, “[s]peech that deals with ‘individual personnel 9 disputes and grievances’ that ‘would be of no relevance to the public’s evaluation of the 10 performance of governmental agencies generally is not of public concern.” Ellins, 710 F.3d at 11 1057 (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). 12 Determining whether a public employee’s speech “addresses a matter of public concern is 13 a pure question of law that must be determined ‘by the content, form, and context of a given 14 statement.’” Karl, 678 F.3d at 1069 (quoting Connick, 461 U.S. at 147–48 & n.7). Of these three 15 factors, the content of the speech is “the greatest single factor.” Desrochers v. City of San 16 Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (quoting Johnson v. Multnomah County, 48 F.3d 17 420, 424 (9th Cir. 1995)). 18 Here, plaintiff submitted a government tort claim to the City on August 26, 2019, alleging 19 “violations of 42 U.S.C. § 1983, the California Labor Code, and the California Government 20 Code,” as well as “disparate treatment on the basis of race,” in violation of FEHA. (Compl. at ¶ 21 28.) For the following reasons, the court finds that plaintiff’s tort claim speaks to a matter of 22 public concern. 23 i. The Content of Plaintiff’s Speech 24 First, the content of the speech. It is true, as defendants argue, that the tort claim “deals 25 with individual personnel disputes and grievances.” McKinley, 705 F.2d at 1114. However, the 26 fact that plaintiff’s speech is about a personnel issue does not automatically end the inquiry into 27 whether it is protected under the First Amendment. As the court in McKinley elaborated upon, 28 individual personnel grievances are not a matter of “public concern” if they involve “information 1 [that] would be of no relevance to the public’s evaluation of the performance of governmental 2 agencies.” McKinley, 705 F.2d at 1114. 3 Here, there are two layers to plaintiff’s tort claim: (1) the prima facie layer, which grieves 4 individual personnel actions allegedly taken against him by FPD as a result of both alleged 5 retaliation and racial discrimination, and (2) an underlying layer that consists of the concerns 6 plaintiff had raised about the corporal program and which allegedly led to the aforementioned 7 retaliation. (See Doc. No. 11-2 at 117–25.) 8 As a preliminary matter, the fact that plaintiff grieved his own personnel issues does not 9 categorically render his speech a private matter. To be sure, the Ninth Circuit has set a high bar 10 for an individual grieving his own employment issues to show that such speech is a matter of 11 public concern. See Ellins, 710 F.3d at 1057 (explaining that “[t]he dispositive fact in Connick” 12 was that the plaintiff’s speech originated from “an individual personnel grievance”); Thomas v. 13 City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004) (noting that the type of personnel matters 14 that the Ninth Circuit had previously “deemed unprotected under the public concern test are 15 employment grievances in which the employee is complaining about her own job treatment, not 16 personnel matters pertaining to others”). But to read those cases as an absolute bar to a First 17 Amendment retaliation claim would be contrary to Supreme Court precedent. See Connick, 461 18 U.S. at 147 (recognizing that a public employee’s speech on “matters only of personal interest” 19 may nevertheless be protected speech in “unusual circumstances”); see also Roe, 109 F.3d at 585 20 (same). Moreover, such a conclusion would also run up against at least two other important free 21 speech considerations. 22 First, deeming plaintiff’s tort claim a private matter simply because it grieved adverse 23 employment actions taken against him without considering “the whole record,” Connick, 461 24 U.S. at 148, would be overly mechanistic and inconsistent with the Ninth Circuit’s commands 25 that matters of public concern be defined “broadly,” Ulrich, 308 F.3d at 978, and be given a 26 “liberal construction,” Roe, 109 F.3d at 586. See also Clairmont v. Sound Mental Health, 632 27 F.3d 1091, 1103 (9th Cir. 2011) (emphasizing that the Ninth Circuit has “rejected ‘rigid multi- 28 part tests’ and refused to ‘articulate a precise definition of public concern’” because it favors a 1 “generalized analysis of the nature of the speech”) (quoting Desrochers, 572 F.3d at 709). 2 Second, the practical consequences of an absolute bar would be anathema to the First 3 Amendment’s protections. Imagine, for example, a public employer who retaliates against an 4 employee for speech protected by the First Amendment. When the employer is subsequently and 5 publicly accused by its employee of unlawful retaliation for protected speech, the employer could 6 simply retaliate again and claim that its second act of retaliation was in response to the 7 employee’s protest against the first act of retaliation. Thus, an absolute bar to a plaintiff bringing 8 claims on behalf of himself would allow an employer to do what it could not lawfully do under 9 the First Amendment—albeit via a more circuitous route. Such an outcome would be antithetical 10 to free speech jurisprudence. 11 Of course, First Amendment retaliation claims based on an individual’s own personnel 12 matters should be disfavored, else “every employment decision bec[o]me[s] a constitutional 13 matter.” Connick, 461 U.S. 138, 143. But that does not mean that plaintiff’s claim is foreclosed 14 solely because it arises from his own employment grievance. See Connick, 461 U.S. at 147; see 15 also Pickering, 391 U.S. at 569 (“Because of the enormous variety of fact situations in which 16 critical statements by . . . public employees may be thought by their superiors . . . to furnish 17 grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general 18 standard against which all such statements may be judged.”). 19 The court now turns to the substance of the allegations contained in plaintiff’s tort claim. 20 Although the grievances about retaliation alleged therein can be characterized as an “individual 21 personnel dispute,” McKinley, 705 F.2d at 1114, they can also be traced directly to the concerns 22 that plaintiff had raised about the corporal program, including whether the sudden promotion of 23 rank-and-file officers to supervisory positions would pose a “safety hazard” for police officers 24 and whether it would “create safety concerns for the public and a general diminution in service.” 25 (Compl. at ¶¶ 15, 17; see also Doc. No. 11-2 at 121–24.) Indeed, the tort claim itself contains a 26 description of plaintiff’s concerns that he had allegedly raised about the corporal program. (See 27 Doc. No. 11-2 at 121.) Plaintiff’s tort claim therefore implicates the performance of FPD, a 28 matter clearly of public concern. See Moonin, 868 F.3d at 864 (“As a matter of law, the 1 competency of the police force is surely a matter of great public concern.”) (quoting Robinson v. 2 York, 566 F.3d 817, 822 (9th Cir. 2009)); see also McKinley, 705 F.2d at 1114 (same); Eng, 552 3 F.3d at 1073 (“Speech that is ‘relevan[t] to the public’s evaluation of the performance of 4 governmental agencies’ also addresses matters of public concern.”) (quoting Freitag, 468 F.3d at 5 545). 6 Moreover, there is some support in the case law for the proposition that the issues 7 underlying an instance of speech may be sufficiently important as to warrant protection under the 8 First Amendment. For example, in Alpha Energy Savers, Inc. v. Hansen, the Ninth Circuit held 9 that speech can be protected so long as (1) the speech itself directly addresses a matter of public 10 concern—even if offered in a setting “that involves only purely private grievances or issues” or 11 (2) the “underlying” issue implicates a matter of public concern—“even if the speech itself would 12 not otherwise meet the Connick test were . . . [it] considered . . . in isolation.” 381 F.3d 917, 927 13 (9th Cir. 2004). Though the holding in Alpha Energy Savers came in the context of an individual 14 testifying in judicial and administrative proceedings on behalf of another individual who was 15 allegedly the target of race and age discrimination, the broader principle is that speech, in some 16 cases, may merit protection because of the public importance of an underlying issue. See id. 17 (“Either one, the testimony or the proceeding, by itself, may be sufficient. . . . So long as either 18 the public employee’s testimony or the underlying lawsuit meets the public concern test, the 19 employee may, in accord with Connick, be afforded constitutional protection against any 20 retaliation that results.”) 21 The content of plaintiff’s tort claim here touches on matters of public concern for two 22 other reasons. First, plaintiff alleges a pattern of racial discrimination against Hispanic 23 employees, including himself.4 (See Doc. No. 11-2 at 123.) “Reports pertaining to others, even if 24 they concern personnel matters including discriminatory conduct, can still be ‘protected under the 25
26 4 Plaintiff’s claim of racial discrimination appears to be inextricably linked to his concurrent claims of retaliation because he alleges that Hispanic employees suffer harsher consequences 27 when they are punished, regardless if it is for “legitimate or illegitimate” reasons. (Doc. No. 11-2 at 123.) Thus, implicit in plaintiff’s tort claim is the possibility that any retaliation that he 28 1 public concern test.’” Robinson, 566 F.3d at 823; see also Alpha Energy Savers, 381 F.3d at 2 926–27 (holding that “invidious discrimination” is inherently a matter of public concern “whether 3 it consists of a single act or a pattern of conduct”). Second, “the way in which an elected official 4 or his appointed surrogates deal with diverse and sometimes opposing viewpoints from within 5 government is an important attribute of public service about which the members of society are 6 entitled to know.” McKinley, 705 F.2d at 1115. How defendants Dyer and Hall5 responded to 7 plaintiff’s speech therefore involves a matter of public concern. 8 Weighing all of these factors together, the court concludes that the content of plaintiff’s 9 tort claim is clearly a matter of public concern. 10 ii. The Form of Plaintiff’s Speech 11 As to form, plaintiff “spoke” via a written tort claim submitted to the City.6 Claims 12 submitted under the California Tort Claims Act are considered public records under the Public 13 Records Act and are therefore subject to disclosure to the public. See Poway Unified Sch. Dist. v. 14 Superior Court (Copley Press), 62 Cal. App. 4th 1496, 1501 (1998). However, the public impact 15 of plaintiff’s speech is somewhat mitigated by the fact that he did not act to publicly disseminate 16 his claim, leaving it with a relatively limited audience. Compare Ellins, 710 F.3d at 1058 (public 17 speeches support a finding of public concern), with Desrochers, 572 F.3d at 714–15 (“Because 18 the speech at issue took the form of internal employee grievances which were not disseminated to 19 the public, this portion of the Connick test cuts against a finding of public concern.”); cf. 20 McKinley, 705 F.2d at 1115 (“[P]laintiff’s speech was specifically and purposefully directed to 21 the public both through city council meetings and a television interview.”); see also Roe, 109 22 5 Both were appointed as Chief of FPD by the Mayor of Fresno. See Brianna Calix & Bryan-Jon 23 Anteola, Andy Hall to Replace Jerry Dyer as Fresno Police Chief, FRESNO BEE (Aug. 22, 2019), https://www.fresnobee.com/news/local/article234295797.html; Jerry Dyer Biography, FRESNO 24 POLICE OFFICERS’ ASSOCIATION (Nov. 2019), https://fresnopoa.org/wp-content/uploads/2019/11/ 25 Jerry-Dyer-Biography.pdf.
26 6 To the extent that plaintiff is also proceeding under the First Amendment’s Petition Clause, the analysis is similar because “[p]etitions are a form of expression, and employees who invoke the 27 Petition Clause in most cases could invoke as well the Speech Clause of the First Amendment.” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 382 (2011) (“[T]he right to speak and the 28 1 F.3d at 585 (noting that a “limited audience weigh[s] against [a] claim of protected speech”). 2 However, whether plaintiff spoke publicly or privately is not dispositive. See Thomas, 379 F.3d 3 at 808; see also Garcetti, 547 U.S. at 420; Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 4 749 (9th Cir. 2010). It is enough that plaintiff sought to raise his concerns to an entity with the 5 power “to address and correct the problem.” Anthoine, 605 F.3d at 749. 6 iii. The Context of Plaintiff’s Speech 7 Finally, courts “examine the context of the speech, particularly the point of the speech.” 8 Desrochers, 572 F.3d at 715 (citation omitted). “In other words, why did the employee speak (as 9 best as we can tell)? Does the speech ‘seek to bring to light actual or potential wrongdoing or 10 breach of public trust,’ or is it animated instead by ‘dissatisfaction’ with one’s employment 11 situation?” Id. (quoting Connick, 461 U.S. at 148). Thus, while “[p]ublic speech is more likely to 12 serve the public values of the First Amendment,” and public employees who “are positioned 13 uniquely to contribute to the debate on matters of public concern” should be encouraged “to speak 14 out about what they think and know without fear of retribution[] so that citizens may be informed 15 about the instruments of self-governance,” Gilbrook v. City of Westminster, 177 F.3d 839, 870 16 (9th Cir. 1999), “[p]rivate speech motivated by an office grievance is less likely to convey the 17 information that is a prerequisite for an informed electorate,” Weeks v. Bayer, 246 F.3d 1231, 18 1235 (9th Cir. 2001). On its face, plaintiff’s tort claim appears essentially self-interested, because 19 it contains demands for monetary damages and for injunctive relief instating him to the rank of 20 lieutenant. (See Doc. No. 11-2 at 117, 124–25.) Such “self-interested” speech typically has “no 21 public import.” Roe, 109 F.3d at 585. However, plaintiff’s tort claim also appears to be an 22 “extension” of “[t]he ultimate source of the grievances” in this case: the discrimination and 23 retaliation that plaintiff allegedly suffered for being Hispanic and for raising concerns about 24 FPD’s corporal program. Cf. Desrochers, 572 F.3d at 716 (emphasizing that the speech at issue 25 in the case was a “mere[] extension” of “[t]he ultimate source of the grievances” between the 26 plaintiffs and their supervisor, which could be traced “to the simple fact that [they] did not get 27 along”). That plaintiff seeks to remedy adverse employment actions taken against him does not 28 ///// 1 obviate the fact that his claim ultimately arises from his attempt to shed light on matters of public 2 concern. 3 After evaluating “the content, form, and context” of plaintiff’s speech as “revealed by the 4 whole record,” Connick, 461 U.S. at 147–48, the court finds as a matter of law that plaintiff’s tort 5 claim involves a matter of public concern. Accordingly, defendants’ motion to dismiss will be 6 denied as to this claim. 7 2. Plaintiff’s Claim under California Labor Code § 6310 8 California Labor Code § 6310 prohibits an employer from terminating or discriminating 9 against an employee who has reported health and safety violations. See also Freund v. Nycomed 10 Amersham, 347 F.3d 752, 759 (9th Cir. 2003) (“The public policy behind § 6310 is . . . to prevent 11 retaliation against those who in good faith report working conditions they believe to be unsafe.”). 12 Defendants argues that this claim should be dismissed because (1) “allegations relating to 13 complaints for the public benefit are not protected under Section 6310” and (2) plaintiff’s 14 complaint about the corporal program “does not relate to any safety device or weapon” and (3) is 15 preempted by the MOU. (Doc. No. 11-1 at 22–23.) 16 Defendants’ first argument that complaints for the benefit of the public are not cognizable 17 under § 6310 is unavailing. Although plaintiff did raise concerns about how the corporal program 18 could “create[] safety concerns for the public,” he also complained that it could “result[] in a 19 safety hazard for officers.” (Compl. at ¶¶ 15, 17.) Plaintiff further alleges in his complaint that 20 he spoke out “to protect the safety of his fellow officers” and to “express[] concerns regarding 21 unsafe working conditions.” (Id. at ¶¶ 17, 21, 24.) Accordingly, plaintiff’s expressed concerns 22 about the safety of his fellow officers and his own working conditions fall squarely within the 23 ambit of § 6310’s protections. 24 Defendants’ second argument is similarly misplaced. As plaintiff points out, defendants 25 rely on language from § 6403 to argue that claims brought under § 6310 must be based on the 26 actual physical conditions of an employee’s workplace. (See Doc. Nos. 11-1 at 22; 12 at 24–25.) 27 But the language of § 6310 contains no such limitations; rather, it explicitly prohibits retaliation 28 against employees who have complained of “unsafe working conditions, or work practices, in his 1 or her employment or place of employment.” Cal. Lab. Code § 6310(b). Courts have repeatedly 2 interpreted § 6310 according to its plain meaning, which incorporates a wide swath of working 3 conditions—physical or otherwise. See, e.g., Sheridan v. Touchstone Television Prods., LLC, 241 4 Cal. App. 4th 508, 511 (2015) (complaint about an abusive showrunner); Franklin v. The 5 Monadnock Co., 151 Cal. App. 4th 252, 263 (2007) (complaint about a violent coworker); 6 Cabesuela v. Browning-Ferris Indus. of Cal., Inc., 68 Cal. App. 4th 101, 109 (1998) (complaint 7 about being forced to work long hours); Gringeri v. Lynch, No. 5:08-cv-03453-JW, 2009 WL 8 10710476, at *4 (N.D. Cal. Nov. 17, 2009) (complaint about an erratic and unstable coworker). 9 Accordingly, the court finds that plaintiff’s complaint about potentially unsafe working 10 conditions caused by the haphazard promotion of undertrained officers into supervisory roles can 11 serve as the basis of a cognizable § 6310 claim. 12 Finally, defendants’ third argument as to preemption also fails. According to defendants, 13 any disputes as to the corporal program is preempted by the MOU’s grievance procedure, which 14 consists of an “informal” and “formal” process that can lead to arbitration. (See Doc. Nos. 11-1 15 at 22–23; 11-2 at 79–83.) But defendants misconstrue plaintiff’s claims, which are not about the 16 corporal program itself, but about the retaliation allegedly inflicted on plaintiff for speaking out 17 about that program. (Doc. No. 12 at 26.) Thus, defendants’ argument in this regard simply 18 misses the mark. 19 Accordingly, defendants’ motion to dismiss will be denied as to plaintiff’s § 6310 claim. 20 C. Motion for a More Definite Statement 21 In the alternative, defendants move for a more definite statement under Federal Rule of 22 Civil Procedure 12(e). The granting of such a motion is only appropriate when a pleading is “so 23 vague or ambiguous that the [responding] party cannot reasonably prepare a response.” Fed. R. 24 Civ. P. 12(e). Thus, “such motions are disfavored . . . and ‘should not be granted unless the 25 defendant cannot frame a responsive pleading.’” Mou v. SSC San Jose Operating Co. LP, 415 F. 26 Supp. 3d 918, 924 (N.D. Cal. 2019) (quoting Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. 27 Supp. 940, 949 (E.D. Cal. 1981)). Ironically, defendants dedicate all of one sentence to their 28 motion for a more definite statement and fail to “point out the defects complained of and the wOAOe 4.2 UV EARRING RAMU Co PO FP Oye Ot VI est
1 | details desired,” as required by Rule 12(e). (Doc. No. 11 at 23.) Defendants’ motion for a more 2 | definite statement is thus facially defective and, accordingly, will be denied. 3 | D. Motion to Strike 4 Defendants also move to strike plaintiff's claims against defendants Dyer and Hall in their 5 | official capacities because “[c]ivil [rlights claims against government officials in their official 6 | capacities are really suits against the government employer because the employer must pay any 7 | damages awarded.” (Doc. No. 11 at 24.) Plaintiff filed suit against defendants Dyer and Hall 8 | both individually and in their official capacities as the former and current Chief of the FPD, 9 | respectively. However, plaintiff has now indicated his non-opposition to the motion to strike the 10 | official capacity claims. (Doc. No. 12 at 28.) Accordingly, plaintiffs claims against defendants 11 | Dyer and Hall in their official capacities will be stricken. 12 CONCLUSION 13 Accordingly: 14 1. Defendants’ motion to dismiss (Doc. No. 11) is granted in part; 15 a. To the extent that plaintiff's § 1983 claim is based on complaints that he 16 made to his supervisors at the FPD, his claim is dismissed as legally not 17 cognizable; 18 b. Defendants’ motion to dismiss is denied as to all other claims; 19 2. Defendants’ motion for a more definite statement (Doc. No. 11) is denied; and 20 3. Defendants’ motion to strike (Doc. No. 11) is granted as unopposed and □□□□□□□□□□□ 21 official capacity claims against defendants Dyer and Hall are stricken. 22 | IT IS SO ORDERED. sass - 3 Dated: _ August 15, 2020 J aL Al 7 ae 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 21