Fuentes v. Santa Cruz, County of

• Court: District Court, D. Arizona
• Decided: March 15, 2023
• Docket: 4:21-cv-00220
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ruben F Fuentes, et al., No. CV-21-00220-TUC-DCB

10 Plaintiffs, ORDER

11 v.

12 County of Santa Cruz, et al.,

13 Defendants. 14 15 After completing discovery, both parties filed dispositive motions. The Plaintiff 16 filed a Motion for Partial Summary Judgment. The Defendants filed an Unenumerated Rule 17 12(b) Motion to Dismiss and a Rule 56 Motion for Summary Judgment. The Court denies 18 all the motions. This case is ready for trial for the reasons explained below. 19 Background: Undisputed Relevant Facts. 20 Plaintiff Ruben Fuentes served as “Captain,” working directly under former Santa 21 Cruz County Sheriff Tony Estrada and then Sheriff David Hathaway, who fired him on 22 January 4, 2021. He was the Captain continuously from 2007 until January 8, 2021. Prior 23 to Fuentes obtaining the Captain position, Major Ramon Romo was the “second-in- 24 command” to former Sheriffs Bracamonte and Estrada. Romo was the Deputy Chief, an 25 “at-will” employee. When Fuentes was promoted to Captain, he reported directly to the 26 Sheriff, was the highest-ranking deputy at the Sheriff’s Office but unlike Romo, he 27 considered himself a merit-based classified employee. 28 1 In 2021, Defendant Hathaway was the elected Sheriff. He assumed the duties as the 2 duly elected Sheriff of Santa Cruz County on January 1, 2021 – the New Year’s Day 3 holiday – and January 2 and 3, 2021 which were a Saturday and Sunday. 4 On Monday morning, January 4, 2021, Sheriff Hathaway met with Captain Fuentes, 5 Lieutenant RJ Rodriquez, and Lieutenant Gerardo Castillo, and informed Fuentes, in 6 writing, that as the newly elected Sheriff he had the right under county policy to designate 7 a second-in-command of his choosing, that the second-in-command position at the Santa 8 Cruz County Sheriff’s Office was an “at-will” position under both County and Sheriff’s 9 Policy, and that Hathaway was exercising his authority to replace Captain Fuentes with 10 another second-in-command of his choosing. The letter expressly stated that Fuentes’ 11 position was “at-will” under the written Santa Cruz County Personnel Policy. The effective 12 date of Fuentes’ dismissal from the Captain position was stated in the letter as January 8, 13 2021. (D Resp. to P MPSJ, Ex. C: Letter (Doc. 31-1) at 71.) 14 Later that same day, Defendant Sheriff Hathaway took the oath of office. Plaintiff 15 Fuentes worked until the end of the pay period, with his last day of employment being 16 January 8, 2021. 17 The Santa Cruz Personnel Policy provides that it applies “to all classified and 18 unclassified positions in the County service except as exempted in § 1.04.” (D Resp. to P 19 MPSJ, SOF, Ex. D: Personnel Policy § 1.03 (Doc. 31-1) at 75.) Section 1.04(B)(3)(a), 20 Exemptions, provides: “The following shall be exempt from Chapter 9, 12 and 13 of these 21 rules only,” and specifically lists all elected officials and various departments, including 22 the Sheriff’s Department exemptions for “one Chief Deputy or Associate who is designated 23 either by statute or the Elected Official to act for and perform duties of such elected 24 official.” Id. 25 Santa Cruz County affords procedural due process to classified employees who are 26 merit-protected including the right to appeal dismissals to an outside Merit Commission 27 that is separate from the County Board of Supervisors, Elected Officials, and other County 28 directors. Chapter 13, Appeals, provides the right to appeal to the Merit System 1 Commission for “any classified permanent employee . . . in the following cases: dismissal; 2 suspension without pay, and demotion in rank or compensation due to disciplinary action. 3 Id. at 82. “No other appeals shall be granted. Any employee otherwise aggrieved shall 4 follow the procedure stated in Chapter 12 Grievance Procedure in this manual.” Id. 5 Section 13.03(A), Method of Appeal, provides “an employee has ten calendar days 6 from the date of receipt of written notice of action taken to file a written notice of appeal 7 with the Personnel Director requesting a hearing before the Commission.” Section 8 13.03(C) provides for “the Personnel Director to determine whether an employee has a 9 right to appeal pursuant to this Policy.” Id. 10 Chapter 12, Grievance, provides for settlement of disagreements at the 11 employee/supervisor level, informally, if possible, then formally through each level of 12 supervision, if necessary, with final determination vested in the County Manager. (D MSJ, 13 SOF, Ex. M: Personnel Policy, Chapter 12 (Doc. 41-4) at 33.) 14 Section 12.02 provides: Any permanent employee of the County, within the 15 Personnel System, shall have the right to grieve any dispute concerning the interpretation 16 or application of Santa Cruz County’s Personnel Policy Manual or of written departmental 17 rules and regulations.” Id. at 33. Arguably, Plaintiff had the right to file a written grievance 18 related to his termination to be reviewed by the Personnel Office, for discussion and the 19 rendering of a decision by the Director of Personnel, and further appeal to the County 20 Manager for review and final determination. Id. at 34. However, the Court notes that the 21 Defendants’ theory of Plaintiff’s at-will employee status is based on his designation as the 22 “one” Chief Deputy or Associate who is designated by the Sheriff to act for and perform 23 duties of such elected official, and § 1.04 expressly exempts him from the grievance 24 provisions in Chapter 12. 25 Chapter 9, Discipline, requires that a merit-employee subject to dismissal for cause, 26 must be advised of their right to challenge the dismissal through the County appeal 27 process.” Id. at 28. 28 1 It is undisputed that Plaintiff was terminated as an at-will employee. He received 2 written notice of the action (termination), reason for the action (at-will employee), but was 3 not advised of his right to challenge the dismissal through any appeal procedure or to file 4 a grievance. Instead, he was offered a meeting with the Director of Personnel if he had 5 questions and referred to § 1.04(B)(3)(a) of the Personnel Policy for exempt employees. 6 Plaintiff admits that he was offered a meeting with the HR Director of Personnel and the 7 County Manager, which he declined. (D MSJ, SOF, Ex. C: Fuentes Depo. (Doc. 41-2) at 8 88, 89, 93.) 9 Due Process: the Law 10 “The Due Process Clause of the Fourteenth Amendment protects individuals against 11 governmental deprivations of “life, liberty or property,” as those words have been 12 interpreted and given meaning over the life of our republic without due process of law.” 13 (D Resp. P MPSJ (Doc. 30) at 5-6 (citing Board of Regents v. Roth, 408 U.S. 564, 570-71 14 (1972)). 15 As explained by the Plaintiff in his Motion for Partial Summary Judgment: “To 16 establish a claim for procedural due process violations, a plaintiff must establish that he 17 was not afforded notice or opportunity to be heard before a neutral decision-maker before 18 being deprived of is life, liberty, or property interests Employment is a property interest 19 subject to protection under the federal constitution.” (P MPSJ (Doc. 25) at 3 (citing Roth, 20 408 U.S. at 578; Perry v. Sindermann, 408 U.S. 593, 602 (1972)). This latter reference is 21 to the Fourteenth Amendment’s procedural due process clause as distinguished from 22 substantive due process rights. 23 “Substantive due process ‘forbids the government from depriving a person of life, 24 liberty, or property in such a way that shocks the conscience or interferes with the rights 25 implicit in the concept of ordered liberty.’” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 26 2009) (citation omitted). The Constitution protects only “fundamental” rights that are 27 “those personal activities and decisions that this Court has identified as so deeply rooted in 28 our history and traditions, or so fundamental to our concept of constitutionally ordered 1 liberty, that they are protected [ ].” United States v. Juvenile Male, 670 F.3d 999, 1012 (9th 2 Cir. 2012) (quoting Washington v. Glucksberg, 521 U.S. 702, 727 (1997)). “Those rights 3 are few, and include the right to marry, to have children, to direct the education and 4 upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, 5 to abortion, and to refuse unwanted lifesaving medical treatment.” Id. The right to 6 employment is not one of them. This is not a substantive due process case. 7 This is a procedural due process case under the Fourteenth Amendment, which 8 guards against the deprivation of property or liberty without procedural due process. Carey 9 v. Piphus, 435 U.S. 247, 259 (1978). Plaintiff has a constitutionally protected property 10 interest in continued employment, only, if he has a reasonable expectation or a legitimate 11 claim of entitlement to it; a mere “unilateral expectation” will not support a due process 12 claim. Brady v. Gebbie, 859 F.2d 1543, 1547–48 (9th Cir. 1988) (citing Roth, 408 U.S. at 13 577 (finding under Oregon law, state medical examiner did not have a property interest in 14 continued employment requiring due process before termination where position was 15 unclassified at-will civil service). 16 To state a claim under the Due Process Clause, the Plaintiff must first establish he 17 possessed a “property interest” that is deserving of the constitutional procedural protections 18 afforded under the Fourteenth Amendment. Gilbert v. Homar, 520 U.S. 924, 928 (1997). 19 “Property interests ... are not created by the Constitution. Rather they are created, and their 20 dimensions are defined, by existing rules or understandings that stem from an independent 21 source such as state law.” Roth, 408 U.S. at 577. Arizona state law dictates employment is 22 freely severable “unless both the employee and the employer have signed a written contract 23 to the contrary setting forth that the employment relationship shall remain in effect for a 24 specified duration of time or otherwise expressly restricting the right of either party to 25 terminate the employment relationship.” A.R.S. § 23-1501. A public employee in an at- 26 will position cannot establish a constitutional property interest and cannot claim any 27 Fourteenth Amendment due process protection. Andrew v. Clark, 561 F.3d 261, 269 (4th 28 Cir. 2009). 1 In Arizona it is public policy that “the employment relationship is contractual in 2 nature,” with only a specific type of employment contract being sufficient to limit 3 severability. The contract must be signed, expressly restrict the right to terminate 4 employment, or specify a duration. A.R.S. § 23-1501. Absent such a contract, employment 5 in Arizona is at-will. Id. Neither party proffers a signed employment contract to support 6 their respective assertions of at-will or protected merit-status employment. Under A.R.S. § 7 23-1501 an employee handbook may be sufficient to limit severability “if that document 8 expresses the intent that it is a contract of employment.” Because there is no assertion 9 otherwise, the Court assumes the Santa Cruz Personnel Policy is such an employee 10 handbook. 11 Simply put- to prevail, the Plaintiff must establish that he was not an at-will 12 employee; he was a classified employee protected under the Personnel Policy provisions 13 affording due process protections to merit employees, including the appeal rights before 14 the Merit Commission. In this regard, there are material issues of fact in dispute preventing 15 disposition of the case by summary judgment. 16 From January 1, 1993 to December 31, 2020, Marco Antonio Estrada was the 17 Sheriff. From 1993 to December 15, 2006, he had a Chief Deputy, Romo. It is undisputed 18 that Romo was the second-in-command at the Sheriff’s office and an at-will unclassified 19 employee. As Romo entered a retirement program precluding his future employment as a 20 peace officer, sometime around 2006, Sheriff Estrada asked the Board of Supervisors to 21 eliminate the Chief Deputy position and create a civilian position called Executive 22 Assistant to the Sheriff. This was done, and Romo became the Executive Assistant, a 23 civilian position. (D MSJ (Doc. 40) at 3.) 24 This is in keeping with the Santa Cruz Personnel Policy exempting from the merit- 25 system for the Sheriff’s Office: “one Chief Deputy or Associate who is designated either 26 by statute or the Elected Official to act for and perform duties of such elected official.” 27 “Estrada now found himself the direct supervisor of his Lieutenant/Division Command 28 staff,” and “requested the Board of Supervisors approve a Captain position, which they did 1 on January 17, 2007.” (D MSJ (Doc. 40) at 3-4.) Arguably, in 2007, when Plaintiff became 2 Captain, he could not have been an at-will, unclassified, employee, exempted from the 3 Merit-system because Romo held that “one” exempt position. As Estrada understood it, the 4 Captain position was “not at-will.” (D MSJ, SOF, Ex. A: Estrada Depo. (Doc. 41-1) at 66.) 5 Romo left around 2012. The record is not clear as to what happened at that point in time 6 but there is no documentary evidence that the Captain position was formally reclassified to 7 the “one,” Chief Deputy or Associate designated by Sheriff Estrada, to act for and perform 8 duties of such elected official. The position of Deputy Chief was not reinstated until after 9 Fuentes was terminated; Defendant Hathaway appointed a Deputy Chief, as an at-will 10 employee. Id., Ex. B: Hathaway Depo. (Doc. 41-1) at 90-91. The description of Captain 11 Fuentes as second-in-command is not dispositive because in law enforcement it can mean 12 a range of things, such as second-in-command on a crime scene, id., Ex. C: Fuentes Depo 13 (Doc. 41-2) at 6, and when Fuentes was not present, then the lieutenant was second in 14 command, id. 15 Plaintiff’s Motion for Partial Summary Judgment 16 Plaintiff proffers several cases which the Court will assume for purposes of the 17 motion to support the Plaintiff’s argument that Defendant Sheriff Hathaway lacked the 18 authority to terminate the Plaintiff’s employment on the morning of January 4, 2021, 19 because Sheriff Hathaway had not yet been sworn into office. The Court accepts the 20 position that Arizona statutes and its Constitution require officers and employees to take a 21 loyalty oath before performing the duties of the office or employment. The Plaintiff asks 22 the Court to find, “as a matter of law that Hathaway had no legal authority to terminate 23 Defendant’s employment and was acting outside the scope of his employment.” (P MPSJ 24 (Doc. 25) at 5-6.) 25 The Plaintiff seeks this declaratory relief in the context of a motion for partial 26 summary judgment, therefore, the Court assumes it is aimed at Count One, alleging the 27 Due Process Clause violation. See (Complaint ¶ 19 (Doc 1) (alleging “Plaintiff was 28 terminated illegally during an officially called meeting of employees by Defendant 1 Hathaway. He was then acting outside of the scope of his employment as the newly elected 2 Sheriff, as he had not been sworn in at the time he terminated the plaintiff. Yet he 3 represented to the assembled employees and to the Plaintiff that his decision represented 4 official policy and that he had final policymaking authority in the particular issues 5 involved.”) Plaintiff does not explain why this alleged violation of Arizona law is 6 dispositive of the due process claim. 7 Plaintiff presents no case law, and the Court finds none, to support a finding that the 8 statutory and state constitutional provisions requiring “qualification” by taking the oath of 9 office prior to undertaking official duties create a proprietary interest deserving of the 10 procedural due process protections afforded under the Fourteenth Amendment. 11 The Court agrees with the Defendant that this argument is irrelevant to disposition 12 of the Due Process claim. Plaintiff’s rebuttal falls short that this case “challeng[es] 13 Hathaway’s authority to terminate him at the time of the termination.” (Reply (Doc. 33) at 14 10.) No so, Count One challenges the termination as a violation of the Fourteenth 15 Amendment’s Due Process Clause. As noted above, there is a material question of fact 16 precluding summary judgment as to the Due Process claim.1 17 In response to the Motion for Partial Summary Judgment, Defendant Hathaway 18 seeks qualified immunity. The Plaintiff responds that “[q]ualified immunity would not 19 attach to Defendant Hathaway because he wasn’t the Sheriff when he terminated Fuente’s 20 employment because he had not yet qualified for the Office of the Santa Cruz County 21 Sheriff.” (Reply (Doc. 33) at 10.) Defendant Hathaway seeks summary judgment based on 22 qualified immunity, and the Court addresses it below. 23 ///// 24 ///// 25 ///// 26 /////+

27 1 Th7\40 -e other counts, interference with employment interest, breach of employment contract, and 28 breach of the covenant of good faith and fair dealing, were dismissed by joint motion. (Order (Doc. 35)). 1 Defendants’ Unenumerated Rule 12(b) Motion to Dismiss for Lack of Jurisdiction 2 and Rule 56 Motion for Summary Judgment. 3 Exhaustion: 4 Defendants seek dismissal of the action due to lack of jurisdiction because the 5 Plaintiff failed to exhaust administrative remedies. Defendants seek summary judgment 6 because Plaintiff was an at-will employee without any right to due process; even if he was 7 a merit-protected employee, he declined an offered pretermination opportunity to be heard 8 and an available post-termination merit appeal, thereby, precluding his due process claim. 9 Defendant Sheriff Hathaway seeks summary judgment based on qualified immunity. 10 Finally, Defendants assert damages should be limited based on after-acquired evidence 11 reflecting cause for his termination and/or damages cannot exceed a $1.00 nominal amount 12 because Defendants did not cause Plaintiff to forego post-termination process to prove his 13 claim that he was not an at-will employee and seek reinstatement and back pay. 14 Defendants present no case law, and the Court finds none, to suggest exhaustion is 15 a jurisdiction prerequisite to bringing this action. Any exhaustion requirement, here, is a 16 prudential requirement. Cf., Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001) 17 (explaining prudential requirement that habeas petitioners exhaust available judicial and 18 administrative remedies before seeking relief under § 2241). Where exhaustion 19 requitement is judicially created, a failure to exhaust does not deprive a federal court of 20 jurisdiction. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds, 21 Reno v. Koray, 515 U.S. 50, 54-55 (1995). Where exhaustion is not a “‘jurisdictional 22 prerequisite,’” it is subject to waiver. Castro-Cortez, 239 F.3d at 1047). 23 The Court rejects Plaintiff’s assertion that Defendants’ exhaustion argument was 24 waived because it was not raised as a Rule 12(b) motion prior to filing a responsive 25 pleading. Defendants timely raised it as an affirmative defense in the Answer. See (Answer 26 Para. 11 (Doc. 7) at 20.) Exhaustion is properly presented in a motion for summary 27 judgment within the framework of Federal Rules of Civil Procedure, rather than an 28 “unenumerated” rule. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2013). Defendant has the 1 burden to plead and prove the defense. Id. at 1166. If the Court decides the Plaintiff has 2 exhausted available administrative remedies, or that administrative remedies were not 3 available, or that a failure to exhaust available remedies should be excused, the case may 4 proceed to the merits. Id. at 1171. 5 |Defendants assert that Plaintiff had two avenues of administrative relief, and he 6 declined both. First, he could have disputed his dismissal before the County Human 7 Resources Director and County Manager. Second, believing he was a classified/merit- 8 protected employee, Plaintiff could have appealed his dismissal to the Merit Commission, 9 which is an independent, impartial body with the power to reinstate an employee with back 10 pay. “If the Merit Commission had accepted Fuentes’ position that he was a 11 classified/merit-protected employee even Fuentes can think of no scenario in which he 12 would lose in front of the Commission.” Id. “This is the very due process that Plaintiffs 13 now claim Ruben Fuentes was entitled to.” (D MSJ (Doc. 440) at 7.) 14 Because Plaintiff failed to exhaust the due process available to him, the Defendant 15 submits that this Court should grant summary judgment and not reach the merits of the 16 constitutional claim. Applying the burden shifting standard for testing exhaustion in this 17 case, the Defendant must show there were available administrative remedies. Then, the 18 burden shifts to Plaintiff to come forward with evidence showing that there is something 19 in his particular case that made the existing and generally available administrative remedies 20 effectively unavailable to him. The Plaintiff can rebut the assertion of failure to exhaust 21 “by showing that the local remedies were ineffective, unobtainable, unduly prolonged, 22 inadequate, or obviously futile.” Hilao v. Est. of Marcos, 103 F.3d 767, 778 (9th Cir. 1996). 23 The ultimate burden of proof remains on the Defendant, with the Court determining 24 whether to excuse the alleged faulty exhaustion and reach the merits. 25 As for the first avenue of administrative relief, the Plaintiff attests he believed it was 26 futile to meet with the Human Resource Director and County Manager because Defendant 27 Hathaway told him the determination that he was an at-will employee was made by them. 28 The second avenue of administrative relief, a grievance and appeal with the Merit 1 Commission, is clearly contrary to the Personnel Policy that expressly provides less or 2 more due process depending on whether an employee is classified or not, with only 3 classified, i.e., merit-based, employees entitled to an appeal and hearing before the non- 4 biased outside Merit Commission. This is the process sought by the Plaintiff. 5 The Court finds the Plaintiff did not fail to exhaust his administrative remedies 6 because the Defendant has not established either of the two avenues were available to him. 7 Defendant did not provide notice to the Plaintiff advising him of any appeal rights. Instead, 8 Defendants referred him to § 1.04(B)(3)(a), which expressly exempted him from coverage 9 under Chapters 9, 12 and 13 of the Personnel Policy. Under such circumstances, it is 10 arguable that Plaintiff would have understood requesting review of his dismissal, either 11 through the grievance provisions in Chapter 12 or filing an appeal to the Merit Commission 12 under Chapter 13 would have been obviously futile. 13 The Court rejects Defendants’ request to grant summary judgment for failure to 14 exhaust administrative remedies. The Court finds the due process claim will proceed on 15 the merits. The Court, accordingly, addresses Defendant Hathaway’s argument that he is 16 entitled to qualified immunity, and Defendants’ assertions to limit damages. 17 Qualified Immunity 18 Qualified immunity protects police officers from individual liability under 42 19 U.S.C. § 1983 for a constitutional violation unless the legal right was “clearly established” 20 at the time, and a reasonable person in the same position would have known that what he 21 did violated that right. Behrens v. Pelletier, 516 U.S. 299, 304 (1996); Collins v. Jordan, 22 110 F.3d 1363, 1369 (9th Cir. 1996); Trevino v. Gates, 99 F.3d 911, 916 (9th Cir. 1996); 23 Act Up/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). Qualified immunity is 24 designed to protect an officer who, reasonably, but mistakenly, acts in violation of some 25 constitutional right. Saucier v. Katz, 533 U.S. 194, 205 (2001). It “gives ample room for 26 mistaken judgments” and protects “all but the plainly incompetent or those who knowingly 27 violate the law.” Hunter v. Bryant, 502 U.S. 224 (1991); see also Ashcroft v. al–Kidd, 563 28 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 1 The doctrine bars the suit; it is not a defense to liability. Act Up/Portland, 988 F.2d 2 at 872-73. Qualified immunity is “an entitlement not to stand trial or face the other burdens 3 of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The Plaintiff bears the burden 4 to prove both the merits of his constitutional claim and that the constitutional right was 5 clearly established, Davis v. Scherer, 468 U.S. 183, 197 (1984), with this latter analysis 6 being an individualized analysis of constitutional behavior, Cunningham v. Gates, 229 F.3d 7 1271, 1282(9th Cir. 2000). To support an assertion that a right is clearly established, the 8 Plaintiff must “identify a case where an officer acting under similar circumstances as [the 9 Defendant] was held to have violated the Fourth Amendment.” Shafer v. County of Santa 10 Barbara 868 F.3d 1110, 9th Cir. 2017). Then, the Court can conclude that the right “is 11 ‘sufficiently clear that every reasonable official would have understood that what he is 12 doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. 13 Howards, 566 U.S. 658, 664 (2012) (emphasis added)). Qualified immunity is a legal 14 question, and it is addressed by the Court at the earliest possible point in the litigation. 15 Here, the Plaintiff fails in its opposition to qualified immunity for Defendant 16 Hathaway. Plaintiff argues that qualified immunity doesn’t protect Defendant Hathaway 17 because he acted outside the scope of his employment when he terminated the Plaintiff on 18 the morning of the January 4, 2021, a few hours before he took the oath of office and, 19 thereby, qualified as the Santa Cruz County Sheriff. The letter Defendant Hathaway handed 20 to the Plaintiff clearly said the termination was effective on January 8, 2023, which was 21 after the oath was administered. The record also reflects considerable back and forth 22 communications between Defendant and Plaintiff during the week regarding options that 23 Plaintiff considered and declined, resulting in his last date of service being January 8. The 24 Court finds that Defendant Hathaway was acting as the de facto Sheriff on the morning of 25 January 4, 2021, if tendering the letter has any evidentiary significance to the act of 26 terminating Plaintiff’s employment which was effective on January 8. The Plaintiff offers 27 no case law to support any assertion that qualified immunity would not support an official 28 acting de facto. 1 The Court has already found the allegation that Defendant Hathaway acted without 2 authorization on the morning of the 4th is not relevant to determining the merits of the due 3 process claim, and now finds it is not relevant to defeat qualified immunity. Instead, for 4 the purpose of deciding qualified immunity, the Court assumes that if a jury finds for 5 Plaintiff on the merits of his due process claim, the Plaintiff fails to prove that his 6 constitutional rights were clearly established. Here, “Defendant Hathaway consulted with 7 County Manager Jennifer St. John and Human Resources Manager who confirmed that 8 under SCC Personnel Policy 1.04.B.3(a) and Sheriff’s Policy 200.3.1, Plaintiff Fuentes was 9 exempt from Chapters 9, 12, and 13 of the Personnel Policies and, thus, was an “at-will” 10 employee.” (D MSJ (Doc. 40) at 5 (citing D SOF 34)). There is no evidence that Defendant 11 Hathaway knew or should have known the Plaintiff was a protected merit-employee, 12 contrary to information obtained from them. Plaintiff told Defendant Hathaway that he 13 understood his position, Captain, was a classified merit protected position. Beyond this, 14 the Plaintiff does not present evidence he proffered to Sheriff Hathaway, if any, to persuade 15 him that he was merit-protected. 16 The Plaintiff offers no cases to support a conclusion that failing to investigate or 17 establish an at-will employee’s status prior to dismissing him or her without due process 18 violates the Fourteenth Amendment when the employee disputes his or her status as an at- 19 will employee. The Court finds no case which is so similar to these facts from which it can 20 conclude that it is sufficiently clear that every reasonable official in Defendant Hathaway’s 21 circumstances would have understood that what he was doing violated the Due Process 22 Clause of the Fourteenth Amendment. The Court grants summary judgment for Defendant 23 Hathaway, individually, based on qualified immunity because it is an immunity designed 24 to protect an officer who, reasonably, but mistakenly, acts in violation of some 25 constitutional right. At most, Sheriff Hathaway was mistaken in his judgment that Plaintiff 26 was an at-will employee; there is no showing that Defendant Hathaway was plainly 27 incompetent or knowingly violated the law. Instead, he sought advice regarding the 28 Plaintiff’s employment status from those who should have known. 1 Damages 2 Defendants ask the Court to limit Plaintiff’s damages based on after-acquired 3 evidence that would have led to termination of Plaintiff’s employment for cause. “If an 4 employer can establish that it would have discharged the employee for misconduct it 5 discovered after the wrongful termination, reinstatement and front pay are not appropriate.” 6 (D MSJ (Doc. 40) at 16 (citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 7 352, 359-62 (1995)). Here, the Defendants refer to a “scheme to allow SCCSO employees 8 to collect overtime pay for work they did not perform,” i.e., SCCSO employees were paid 9 “overtime” for performing duties beyond their paygrade, such as performing duties as a 10 field training officer. The investigation commenced in 2018 when the Santa Cruz County 11 Board of Supervisors reported the alleged misconduct to the Arizona Auditor General. The 12 investigation culminated in a report issued in April 2021, and in June of 2021, the state 13 filed a civil suit against Sheriff Estrada and Plaintiff for racketeering (forgery and theft of 14 public monies illegally paid. The matter was settled with Estrada and Plaintiff each paying 15 $5,000. 16 The Defendants submit that this is “sufficient evidence that no reasonable jury could 17 conclude that Sheriff Hathaway would have had any other choice than to terminate 18 Fuentes.” Id. at 17. Because the Defendants new of the conduct by 2018 when the Board 19 of Supervisors requested the investigation by the Arizona Auditor General, a reasonable 20 jury could conclude that Defendants, Santa Cruz County and Sheriff Hathaway in his 21 official capacity, did not discover the wrongful conduct after Plaintiff’s termination. 22 For the reasons above that the Court denied summary judgment for failure to exhaust 23 administrative remedies, the Court denies Defendants’ request to limit monetary damages 24 to not exceed the nominal amount of $1.00. There is a question of fact which the jury must 25 determine as to whether Defendants caused the alleged constitutional deprivation because 26 the letter told the Plaintiff he was being terminated as an at-will employee and referred him 27 to the Personnel Policy, § 1.04(B)(3)(a), Exemptions, from coverage under Chapters 9, 12 28 1 |} and 13, which are the due process provisions the Defendants now assert he could have and 2|| should have used if he believed he was a classified employee. 3 The Court has found material issues of fact exist precluding summary judgment on 4|| the merits. 5 Accordingly, 6 IT IS ORDERED that the Plaintiffs’ Motion for Partial Summary Judgment (Doc. 7\| 25) 1s DENIED. 8 IT IS FURTHER ORDERED that the Defendants’ Motion for Summary Judgment (Doc. 40) is DENIED. 10 IT IS FURTHER ORDERED that within 30 days of the filing date of this Order, 11 || the parties shall file the joint proposed Pretrial Order. 12 Dated this 14th day of March, 2023. 13 SS Honorabje David C. But United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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