1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 VIOLETA GRIGORESCU, Case No. 18-cv-05932-EMC
6 Plaintiffs, ORDER GRANTING DEFENDANT'S 7 v. MOTION FOR SUMMARY JUDGMENT 8 BOARD OF TRUSTEES OF THE SAN MATEO COUNTY COMMUNITY 9 COLLEGE DISTRICT, et al., Docket No. 100
10 Defendants.
11 12 I. INTRODUCTION 13 Plaintiff Violeta Grigorescu (“Ms. Grigorescu”) was a former lab technician and adjunct 14 professor at the College of San Mateo and the San Mateo Community College District (“District”). 15 Ms. Grigorescu was involved in an environmental organizing group and litigation against the 16 District that opposed the demolition of a campus garden to construct an additional parking lot 17 (“Friends litigation”). As the litigation was ongoing, the District and Ms. Grigorescu had a series 18 of employment disputes involving degree qualifications for teaching and abuse of leave 19 privileges. Defendant Eugene Whitlock (“Mr. Whitlock”) was the Vice Chancellor for Human 20 Resources for the District and General Counsel during the time many of these disputes took place. 21 Ultimately the District and Mr. Whitlock terminated Ms. Grigorescu for her work absences. 22 Plaintiff claims this was part of a retaliatory scheme against her because of her activism to 23 preserve the garden. Mr. Whitlock moves for Summary Judgment. It is currently the only motion 24 pending before the court. 25 II. FACTS AND BACKGROUND 26 A. Factual Background 27 1. Speech Activity 1 College of San Mateo (“CSM”). Docket No. 124 ¶ 20 (Grigorescu Decl.). In 2008, she became a 2 part-time, adjunct physics instructor at CSM. Id. at ¶ 28. 3 Throughout 2011, Ms. Grigorescu participated in an environmental organizing group 4 called “Friends of CSM Gardens” (“Friends”) to oppose the conversion of a campus garden into a 5 parking lot. She spoke daily about what her group was doing to oppose the destruction of the 6 gardens with Charlene Frontiera, the Dean of Math and Science (“Dean Frontiera”). Id. at ¶ 41. 7 Ms. Grigorescu created a PowerPoint, was a main organizer of a teach-in, gave updates at a union 8 meeting, and sent emails and individually communicated with campus members regarding garden 9 demolition opposition. Id. at ¶¶ 67-70. She and other leaders of Friends met with CSM President 10 Mike Claire (“President Claire”) to discuss concerns about the plan to build a parking lot. Id. at ¶ 11 47._ She made comments at a District Board of Trustees (“Board”) meeting and submitted a letter 12 to the Board expressing her appreciation of the gardens and nature. Morrison Decl. Exh. 6. pp. 13 124:21, 126:14-20. 14 In April 2011, Friends filed a lawsuit against the District opposing garden demolition. Id. 15 at ¶ 65-66. In 2016, the California Supreme Court ultimately heard the case in Friends of College 16 of San Mateo Gardens v. San Mateo County Community College District, 1 Cal.5th 937, 207 Cal. 17 Rptr. 3d 314, 378 P.3d 687 (Cal. 2016) (“Friends”). Ms. Grigorescu was also involved in a group 18 called “Citizens for a Green San Mateo” that sued the District for the destruction of trees on 19 campus in connection with multiple construction projects. Id. The case was Citizens for a Green 20 San Mateo v. San Mateo County Community College District, 226 Cal.App.4th 1572 (Cal. Ct. App. 21 2014) (“Citizens”). 22 During this time, Mr. Whitlock was a deputy attorney at the San Mateo County Counsel 23 and acted as General Counsel for various school districts and agencies in San Mateo County. 24 Docket No. 101 ¶ 3 (Whitlock Decl.). He was assigned to both Friends and Citizens. He 25 identified a firm with CEQA expertise to litigate the case, reviewed occasional pleadings, and 26 observed some court hearings. Id. at ¶ 4. Mr. Whitlock was not an attorney of record in the initial 27 Friends lawsuit in 2011, though he was an attorney of record in the California Supreme Court case 1 Chancellor of Human Resources (VCHR) at the District. Grigorescu Decl. ¶ 90-91. 2 2. First Termination Attempt 3 On March 18, 2015, Ms. Grigorescu applied for a full-time physics teaching position at 4 CSM. Id. at ¶ 97. State regulation requires that applicants for college teaching positions have a 5 Master’s degree, or apply for Equivalency. Docket No. 100-2 at 96 (Grigorescu Responses to 6 Interrogatories ¶15). Equivalency requires 24 credits of graduate level coursework and is 7 equivalent to possessing a master’s degree. Docket No. 100-2 at 51 (Grigorescu Responses to 8 Interrogatories at 4). On March 26, 2015, Mr. Whitlock informed Ms. Grigorescu that after a 9 “routine check” he found that she did not have the qualifications for the position, and that her 10 claim of a master’s degree from the University of Bucharest contradicted the district’s records. Id. 11 at ¶ 98. There is a dispute about whether she has the equivalent of a master’s degree in the U.S. as 12 she represented. 13 In 1986, Ms. Grigorescu graduated with a “Diploma de Licentia” from the University of 14 Bucharest after three years of study of physics and mathematics and an additional year of specialty 15 coursework within physics. Grigorescu Decl. ¶ 8. Mr. Whitlock hired an independent firm to 16 conduct an equivalency evaluation for Ms. Grigorescu. Docket No. 100-2 at 1726-27 (Whitlock 17 Deposition 200:24-25 to 201:1-6). The firm determined she had only a bachelor’s degree. Id. 18 Mr. Whitlock also called each of Ms. Grigorescu’s degree-granting institutions to verify the 19 degree equivalency. Id. at 201:24-25. There is also a dispute about whether those institutions 20 confirmed or denied her degree equivalency. Ms. Grigorescu provided Mr. Whitlock with a 21 document from the Minister of Education at the University of Bucharest that attested that a 22 “Diploma de Licenta” was equivalent to a master’s degree in physics. Docket No. 100-2 at 1745 23 (Whitlock Deposition Part II at 219). Mr. Whitlock contests that the document was from an 24 unknown organization which was not associated with the university where Ms. Grigorescu 25 received her degree. Docket No. 100-2 at 1746 (Whitlock Deposition Part II at 220). 26 Mr. Whitlock then required her to submit a form to apply for equivalency to be a candidate 27 for the position. Grigorescu Decl. at ¶ 103. She then submitted a form. She interviewed but 1 Also at this time in April 2015, the District banned Ms. Grigorescu from both her lab tech 2 and teaching positions on the basis of a flaring up of chronic pain as a result of excessive stress 3 from obtaining equivalency statements. Grigorescu Decl. at ¶ 110. Ms. Grigorescu was instructed 4 to take a leave of absence from both positions “based on my alleged inability to bend to unlock a 5 cabinet.” Id. at ¶ 111-12; Frontiera Deposition 161:19. As a result of a meeting with Ms. 6 Grigorescu’s union representatives, Dean Frontiera allowed Ms. Grigorescu to conduct only the 7 lecture portion of the physics class. Grigorescu Decl. ¶ 112. 8 On Thursday, May 28, 2015, Mr. Whitlock held a pre-disciplinary meeting regarding her 9 equivalency. Docket No. 100-2 ¶ 81 (Grigorescu Supplemental Amended Responses to Whitlock 10 Interrogatories) (“Grigorescu Responses”). On June 9, Mr. Whitlock served Ms. Grigorescu an 11 official notice of termination and suspension without pay, charging her with misrepresentation of 12 credentials and a pattern of lying about her degrees. Id. at ¶ 85. 13 On June 17, 2015, a Skelly hearing took place before President of CSM Mike Claire 14 (“President Claire”). Grigorescu Decl. at ¶ 124. A Skelly hearing is a pre-disciplinary procedure 15 that allows public employees to challenge proposed disciplinary actions by their employer before 16 those actions are finalized. It ensures that the employee has due process rights. Ms. Grigorescu 17 and Mr. Whitlock were present. Id. The record does not reflect the precise issues raised in the 18 hearing. At the end of the hearing, President Claire upheld Mr. Whitlock’s recommendation for 19 termination. Id. 20 In July, Ms. Grigorescu appealed. Id. at ¶ 126. An appeal hearing was held before the 21 Board of Trustees with presiding officer Kathy Meola (Grigorescu I). Whitlock Decl. ¶ 8. Ms. 22 Meola was a Chief Deputy at San Mateo County Counsel. Docket No. 101-1 at 244. Crucially, 23 between the first and second days of the hearing, the District submitted a new letter it received 24 from the University of Bucharest confirming that Ms. Grigorescu’s “Bachelor Diploma is 25 equivalent with the Master Diploma and implies all legal rights conferred by it.” Id. at 252. 26 On August 6, 2015, Meola ruled that the District did not meet its burden of proof to show 27 that Ms. Grigorescu was dishonest in stating that her degree was equivalent to a master’s degree. 1 fact:
2 3. Appellant acknowledged that while she did not receive two separate degrees from the University of Bucharest, she possessed 3 one degree, which was equivalent to a bachelor’s degree and a master’s degree from the University of Bucharest, and Appellant 4 attempted to show that equivalency on her resume by breaking the equivalency into two degrees. Id. at 246. 5 9. …In review of the evidence presented by both sides, it would 6 have been more accurate for Appellant to list one degree on her resume and explain that her degree was equivalent to a bachelor’s 7 degree and a master’s degree, but the evidence simply does not exist to show that Appellant lied or was dishonest in her representation 8 that she had both a bachelor’s degree and a master’s degree from the University of Bucharest. Id. at 248. 9 Meola also found that Ms. Grigorescu misrepresented that she had a minor in mathematics, 10 because “Appellant admitted that she has no testimonial evidence to support her claim.” Id. at 11 248. Further, Meola found that Ms. Grigorescu misrepresented that her Diploma de Baccalaureate 12 was a bachelor’s degree, as it was in fact her high-school diploma. Id. Meola rejected 13 termination, but recommended discipline. Id. The Board accepted her recommendations and 14 allowed Ms. Grigorescu to return to classified lab tech position. Id. at 253-54. She also received a 15 two-and-a-half month unpaid suspension. Docket No. 101-2 at 489. 16 3. Second Termination Attempt and Successful Termination 17 In 2016, Mr. Whitlock made a second attempt to terminate Ms. Grigorescu, which was 18 successful. 19 First, Ms. Grigorescu made several requests to take leave for doctor’s appointments and 20 vacation days. Grigorescu Decl. ¶¶ 137-39. It is disputed that those requests were not submitted 21 in a timely manner as required under her union contract. Id. 22 Next, Ms. Grigorescu then requested a four-day per week lab tech schedule so she could 23 teach at San Francisco State University on Fridays. Id. at ¶¶ 142-48. Dean Frontiera denied the 24 request. Id. at ¶ 148. Dean Frontiera also denied a second request. Id. at ¶ 153. Ms. Grigorescu 25 asserts that Dean Frontiera was “under orders” from Mr. Whitlock. Docket No. 100-2 at 127 26 (Grigorescu Responses to Interrogatories ¶134). 27 Next, Mr. Whitlock and Dean Frontiera did not give Ms. Grigorescu teaching assignments 1 for 2016, for disputed reasons. Dean Frontiera stated that Ms. Grigorescu lacked official degree 2 equivalency from an evaluation agency that confirmed her “Diploma de Licenta” from the 3 University of Bucharest was equivalent to a master’s degree in the U.S. Grigorescu Decl. at ¶150; 4 Docket No. 100-2 at 1490 (Frontiera Deposition at 274:15-17). Ms. Grigorescu states that the 5 District granted her equivalency in 2008, when she first started the adjunct professor position. Id. 6 at 99 (Grigorescu Responses to Interrogatories ¶ 23). Her 2008 equivalency was based upon her 7 completion of 33 graduate credits at San Francisco State University between 2005 and 2008, and 8 granted her equivalency to teach at CSM for life. Id. 9 Finally, a second series of disputes over Ms. Grigorescu’s leave privilege ensued. On 10 Friday February 5, 2016, Ms. Grigorescu requested and was approved 5.5 hours of “sick time” for 11 the same day, and used that time to teach at SFSU. Grigorescu Decl. ¶ 156. She then logged her 12 leave as “personal necessity” time, which unlike “sick time,” could be used at any time for any 13 reason. See id. Two weeks later on Friday, February 19, Ms. Grigorescu notified Dean Frontiera 14 she was using four hours of “personal necessity” time that same morning and would return to 15 work in the afternoon. Id. at ¶ 159. Around noon, Dean Frontiera sent her a letter of suspension 16 for missing work without permission. Id. It is disputed that Ms. Grigorescu’s leave required 17 permission. Id. at 159. 18 In March, Mr. Whitlock issued a notice of suspension and termination for “misrepresenting 19 her physical condition and abuse of leave privileges.” Id. at ¶ 164. He stated she was absent from 20 work without permission on six dates between January and March of 2016. Id. Again, a Skelly 21 hearing was held before President Claire. Id. at ¶ 166. Again, President Claire supported the 22 proposed termination, finding “there are reasonable grounds for believing that Ms. Grigorescu 23 engaged in the alleged misconduct.” Docket No. 101-2 at 76. And again, Ms. Grigorescu 24 appealed President Claire’s decision. Grigorescu Decl. ¶ 166. 25 On June 17 and July 21, 2016, her second termination appeal hearing (Grigorescu II) was 26 held before the Board of Trustees. Whitlock Decl. ¶ 9. The presiding officer was Gina M. 27 Roccanova, an attorney from an outside third party firm, Meyers Nave. Docket No. 101-2 at 475. 1 protected speech and presented evidence that she participated in several protected activities which 2 included protesting the elimination of a garden at the College. Docket No. 101-2 at 1069-1070. 3 She also asserted several other protected activities, including filing a workers’ compensation claim 4 and making a request for medical leave. Id. at 1069. She alleged that the district repeatedly 5 retaliated against her in numerous ways, including by refusing to accommodate medical 6 restrictions, proposing her termination that led to Grigorescu I, and that the second termination 7 attempt that led to Grigorescu II was the “latest in this string of actions.” Id. at 491 (Transcript of 8 Proceedings). The string of actions included other retaliatory acts, including the District’s denial 9 of her request for a flexible schedule, Id. at 491-2, and a refusal to allow her to attend regular 10 meetings of a campus committee. Id. at 1048 (CSEA Post-Hearing Closing Brief). 11 Ms. Roccanova found that while at least one of the activities was sufficiently close in time 12 to her proposed dismissal to raise an initial inference of causation, “the strength of the District’s 13 evidence of her wrongdoing is sufficient to overcome any such inference.” Docket No. 101-2 at 14 1069-1070. Ms. Roccanova recommended termination, writing: 15 The District proved that Ms. Grigorescu improperly took paid leave 16 from the District to work a second job with conflicting hours. Her intentional disregard for the work schedule set for her by the District 17 constitutes insubordination. Ms. Grigorescu also abused her leave privileges, was absent from work without authorization, and 18 improperly took leave from her District position to work at another job. Most egregiously, she was intentionally deceptive about her 19 reasons for taking time off. Given her recent lengthy suspension for dishonesty, termination is appropriate. Id. at 1061. 20 In December 2016, the Board of Trustees adopted Ms. Roccanova’s recommendation and 21 terminated Ms. Grigorescu. Whitlock Decl. ¶ 9. 22 4. Other Alleged Retaliatory Acts (“Harassment Actions”) 23 Starting from when Mr. Whitlock assumed the VCHR position in July 2014, Ms. 24 Grigorescu asserts she experienced numerous other retaliatory acts, herein “harassment actions,” 25 as follows: 26 In September 2014, Ms. Grigorescu was not permitted to participate in a mentorship 27 program for African American students because she was white. Grigorescu Decl. ¶ 90-91. Mr. 1 Whitlock contests that she could participate during non-work hours, such as her lunch break. Mot. 2 at 20; Docket No. 100-2 at 736 (Grigorescu Deposition 256:25 to 257:1-13). 3 That same month, Ms. Grigorescu raised the issue of a history of discrimination against her 4 by the District in a meeting with Dean Frontiera and a union representative. Ms. Grigorescu’s 5 meeting record states the following: “Charlene said if we’re talking about discrimination, then the 6 meeting had to end right there and be continued in the presence of Eugene Whitlock.” Docket No. 7 100-2 at 872. Ms. Grigorescu asserts that Frontiera was directed by Mr. Whitlock “to proceed as 8 she did.” Grigorescu Decl. at ¶ 93. Mr. Whitlock contests that Dean Frontiera was not acting 9 under Mr. Whitlock’s direction, and the meeting record does not show otherwise. Mot. at 22; 10 Docket No. 100-2 at 870 (Morrison Decl. Ex. 7, 390:3-23).1 There is no evidence nor allegations 11 that up until that 2014 meeting, Mr. Whitlock engaged in discrimination on his own. 12 Around the same time, Dean Frontiera banned Ms. Grigorescu from substituting for full 13 time professors. Grigorescu Decl. at ¶ 94. Dean Frontiera also filed an incorrect teaching 14 evaluation. Id. at ¶ 96. 15 Next, in 2015, Mr. Whitlock failed to provide workplace disability accommodations and 16 required her to take a leave of absence after experiencing physical health issues. Grigorescu Decl. 17 at ¶ 110-11. According to Ms. Grigorescu, she requested accommodations from him directly in a 18 face-to-face meeting. Morrison Decl. at 811. Mr. Whitlock contends that he was not involved 19 with nor did he know about workplace accommodation requests because they were handled by the 20 workers compensation employee, Ingrid Melgoza. Mot. at 21; Morrison Decl. at 811-12. 21 In 2016, Ms. Grigorescu states that “Whitlock shouted I was a bad employee, who only 22 causes problems, and that he wanted to never hear my name again.” Grigorescu Decl. at ¶ 142. 23 She also was not given teaching assignments throughout the year. Id. at ¶ ¶146, 169. 24 1 “So I may have not included those particular words in my account… they may not have 25 been uttered in this particular format, but that was the sentiment that transpired via body language, via half-word sentences, half sentences uttered that Charlene … said “I’ve done what I’ve been 26 told to do,” or “I’m taking my orders from HR.” And perhaps somebody said, “Who’s HR?” And she might have said, “vice chancellor.” 27 I did not record the meeting. I wish I did. .. so I paraphrased after the meeting, to the best 1 Lastly, the denial of her request for a four-day a week schedule request by Mr. Whitlock and Dean 2 Frontiera, which resulted in Grigorescu II, is an alleged adverse action. Id. at ¶ 148. 3 B. Procedural Background 4 In this suit, Ms. Grigorescu asserted claims against the District as well as various 5 supervisors in their individual capacity. See Docket No. 1. This Court previously dismissed the 6 claims against Dean Frontiera because Ms. Grigorescu failed to provide facts to connect Dean 7 Frontiera’s actions to Ms. Grigorescu’s involvement in the environmental lawsuit. Docket No. 38 8 (Order Granting in Part and Denying In Part D’s Mot. to Dismiss). After previously dismissing 9 Ms. Grigorescu’s first amended complaint with leave to amend, the Court permitted Ms. 10 Grigorescu to plead two claims solely against Mr. Whitlock: (1) race-based termination under 42 11 U.S.C. § 1981; and (2) retaliatory harassment for exercise of First Amendment rights claims under 12 42 U.S.C. § 1983. Docket No. 38 at 14 (Order Granting in Part and Denying in Part D’s Motion to 13 Dismiss). 14 On September 30, 2019, Ms. Grigorescu filed her TAC. Docket No. 39. In addition to 15 causing her termination, Mr. Grigorescu alleges a variety of harassment she suffered. The TAC 16 lists the following: 17 Over time, beginning in 2011, and continuously thereafter, the 18 District engaged in a continuous pattern of discriminatory and retaliatory conduct towards Violeta. Eugene Whitlock was the 19 dominant actor in efforts to undermine and retaliate against Violeta, which included, but was not limited to: (a) attempts to coerce her to 20 end her employment with the District and resign; (b) refusals to accommodate Violeta’s physical and emotional disabilities; (c) 21 engaging in a course of conduct aimed at depriving Violeta of promotional opportunity; (d) erroneously claiming Violeta was 22 ineligible for a full-time tenure track physics instructor for pretextual reasons, then retracting or recanting their assertions, then 23 going through the motion of a belated but hostile job interview; (e) despite Violeta’s superior credentials and experience, giving the 24 position to a much younger male of a different racial background or national origin; (f) on four or more occasions suspending Violeta’s 25 employment without good cause, based on false accusations of dishonesty and other false accusations; (g) numerous attempts to 26 terminate Violeta’s classified lab tech position; (h) failing to comply with Violeta’s preferential rights as a certified instructor; 27 1 TAC ¶ 5. Mr. Whitlock moved to dismiss the TAC. Docket No. 41. On December 23, 2019, this 2 Court partially granted Mr. Whitlock’s Motion to Dismiss, dismissing with prejudice Ms. 3 Grigorescu’s claim (1) race-based termination under 42 U.S.C. § 1981. Docket No. 52 at 15. The 4 only remaining claim is (2) Retaliatory Harassment for Exercise of First Amendment Rights (42 5 U.S.C. § 1983). Ms. Grigorescu alleges that Mr. Whitlock retaliated and harassed Ms. Grigorescu 6 for engaging in protected speech activity concerning CSM garden demolition to construct a 7 parking lot. TAC ¶ 97. 8 On June 14, 2023, Defendant moved for summary judgment on the only remaining claim 9 (2) Retaliatory Harassment for Exercise of First Amendment Rights (42 U.S.C. § 1983). 10 Defendant’s Motion for Summary Judgment (“Mot.”) Docket No. 100 at 1. This is the sole 11 motion currently pending before the court. For the reasons discussed below, the Court GRANTS 12 in part and DENIES in part the Defendant’s Motion for Summary Judgment. 13 III. DISCUSSION 14 A. Legal Standard 15 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 16 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 17 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 18 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving 19 party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of 20 a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 21 reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence 22 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 23 are to be drawn in the nonmovant’s favor. See id. at 255.2 24 2 Evidence may be presented in a form that is not admissible at trial so long as it could ultimately 25 be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be 26 admissible in evidence”); Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004) (“Even the declarations that do contain hearsay are admissible for summary judgment 27 purposes because they ‘could be presented in an admissible form at trial'”). An evidentiary 1 B. Where a defendant moves for summary judgment based on a claim for which the plaintiff 2 bears the burden of proof, the defendant need only point to the plaintiff’s failure “to make 3 a showing sufficient to establish the existence of an element essential to [the plaintiff's] 4 case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). First Amendment Retaliation 5 A plaintiff may assert a 42 U.S.C. § 1983 claim where they allege retaliation by state 6 actors for exercising their First Amendment rights. See Mt. Healthy City Sch. Bd. Of Educ. v. 7 Doyle, 429 U.S. 274, 283–84 (1977). In a First Amendment retaliation claim against a 8 government employer on summary judgment, courts conduct a five-step inquiry into the following 9 questions: (1) Whether the speech at issue was a matter of public concern; (2) 10 whether the plaintiff spoke as a private citizen or a public employee; (3) whether the speech was a substantial or 11 motivating factor in the adverse employment action; (4) whether the state employer had an adequate justification for treating the 12 employee differently from members of the general public; and (5) whether the state employer would have taken the adverse 13 employment action even absent the speech. Eng v. Cooley, 552 F.3d 1062, 1070 (citing Pickering v. Bd. Of Educ., 391 U.S. 563, 14 568 (1986)).
15 If the plaintiff succeeds in establishing the first three elements, the defendants bear the 16 burden of either justifying the alleged adverse action by showing that its “legitimate administrative 17 interests outweigh [plaintiff's] First Amendment rights,” or establishing it would have made the 18 same decision regardless of the protected conduct. Thomas v. City of Beaverton, 379 F.3d 802, 19 808 (9th Cir. 2004). 20 1. Speech as a Citizen on a Matter of Public Concern 21 When establishing a First Amendment retaliation claim, “the plaintiff bears the burden of 22 showing that the speech addressed an issue of public concern.” Eng v. Cooley, 552 F.3d 1062, 23 1070 (9th Cir. 2009). Further, the First Amendment protects speech made as a private citizen 24 “relating to any matter of political, social, or other concern to the community,” as opposed to 25
26 or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2) advisory committee's note to 2010 amendment; Lizarraga-Davis v. Transworld Sys. Inc., No. 18-CV-04081-BLF, 2022 27 WL 4485813, at *2 (N.D. Cal. Sept. 27, 2022) (“[O]nce [plaintiff] raised a hearsay objection, the 1 speech by an employee about matters of personal interest. See CarePartners, LLC v. Lashway, 2 545 F.3d 867, 880 (9th Cir. 2008) (citing Connick, 461 U.S. at 146–48). The inquiry is purely a 3 question of law. Eng, 552 F.3d at 1070. 4 In Pickering v. Board of Education of Township High School District 205, Will County, 5 391 U.S. 563 (1968), the Supreme Court held that a Board of Education violated a teacher’s first 6 amendment rights when they fired him after he sent a letter to the local newspaper criticizing the 7 board. Id. at 574-575. The teacher’s letter criticized the Board’s allocation of school funds, and 8 the Board and superintendent’s methods, or lack thereof, of communicating to taxpayers. Id. at 9 569-70. The Court held that a school system’s need for additional funds is a matter of legitimate 10 public concern, and that teachers are “members of a community most likely to have informed and 11 definite opinions” as to how funds for schools should be spent. Id. at 571-72. The Supreme Court 12 held that a teacher’s exercise of his right to speak on issues of public importance could not be the 13 basis for his dismissal. Id. at 574. The state may not abuse its position as employer to stifle “the 14 First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters 15 of public interest.” Id. at 568. 16 Here, Ms. Grigorescu was speaking as a citizen on a matter of public interest, as opposed 17 to as an employee on a matter of personal interest because her speech was about publicly funded 18 projects. Like the teacher in Pickering who critiqued the Board’s misuse of school funds, Ms. 19 Grigorescu critiqued the District about misused funds to demolish the only garden on campus and 20 construct a parking lot. She was involved in the “Save the CSM Garden” group and Friends 21 litigation against the District. Grigorescu Decl. ¶¶ 40, 62. Additionally, she provided updates at 22 various union meetings, organized a teach-in, and sent emails and individually communicated with 23 campus members regarding garden demolition opposition. Id. at ¶ 67-70. In May 2011, she made 24 comments at a District Board meeting and submitted a letter to the board expressing her 25 appreciation of the gardens and nature. Morrison Decl. Exh. 6. pp. 124:21, 126:14-20. Ms. 26 Grigorescu’s speech opposing the construction of a parking lot on SMC’s campus was a matter of 27 public interest because it involved public funds and public land instead of a matter of personal 1 burden to show her speech was as a citizen, as opposed to an employee, and addressed an issue of 2 public concern. 3 The Defendant contends that Ms. Grigorescu was an anonymous participant of the Friends 4 litigation and that her comments to the Board were “mild in tone.” Mot. at 11. However, Ms. 5 Grigorescu has sufficiently established evidence of her speech beyond the specific Friends 6 litigation because she was engaged in numerous organizing activities broadly related to saving the 7 CSM gardens. Further, her speech regarded a matter of public concern, regardless of her 8 tone. This is enough to establish the first element of a prima facie case for the First Amendment 9 retaliation claim. 10 As an initial matter, the Court will not consider any facts or claims relating to Ms. 11 Grigorescu’s involvement writing a letter (the “Beliz Letter”) that criticized CSM Chancellor Ron 12 Galatolo for his misuse of bond funds to build unnecessary campus projects. Opposition at 15. 13 This basis for alleged retaliation was not sufficiently asserted in her complaint and is effectively 14 raised for the first time in the context of summary judgment. At the summary judgment stage, the 15 proper procedure for plaintiff to assert new claim is to amend the complaint. Fed. R. Civ. Proc. 16 Rule 15, 28 U.S.C.A.(a). A plaintiff may not amend her complaint through argument in brief 17 opposing summary judgment. Id; Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th 18 Cir. 2006) (affirming grant of summary judgment in favor of defendant where “the complaint gave 19 the Appellees no notice of the specific factual allegations presented for the first time in [plaintiff's] 20 opposition to summary judgment.”). The TAC does not claim that her involvement in the Beliz 21 letter was part of her protected expression. Nowhere in the complaint does Ms. Grigorescu 22 mention a letter to Congresswoman Jackie Speier, nor that the letter was about Ron Holober, nor 23 any mention of any letter at all. 24 The Court will also not consider any claims relating to Galatolo for the same reason. Not 25 until her opposition of the instant motion did Ms. Grigorescu first allege that Mr. Whitlock was 26 “conspiratorial” with Galatolo, “act[ed] intentionally at the direction and orders of his boss,” and 27 was part of Galatolo’s “nefarious scheme.” Opposition at 19. The TAC did not claim that 1 Ms. Grigorescu. Ms. Grigorescu never sought to amend her complaint to assert this new theory. 2 It thus will not be considered. 3 2. Adverse Employment Action 4 Defendants now dispute that Ms. Grigorescu received adverse employment actions. Mot. 5 at 28. “In a First Amendment retaliation case, an adverse employment action is an act that is 6 reasonably likely to deter employees from engaging in constitutionally protected speech.” 7 Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2003). To show this element, courts apply 8 the “reasonably likely to deter” test. Greisen v. Hanken, 925 F.3d 1097, 1113 (9th Cir. 2019). The 9 key question is whether the retaliatory activity “would ‘chill or silence a person of ordinary 10 firmness' from continuing to speak out." Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 n.1 (9th Cir. 11 2010). Further, “Various kinds of employment actions may have an impermissible chilling effect. 12 Depending on the circumstances, even minor acts of retaliation can infringe on an employee's First 13 Amendment rights.” Coszalter, 320 F.3d at 975. 14 In Coszalter, the Ninth Circuit found that several unwarranted disciplinary investigations, a 15 reprimand containing a false accusation, a ten-day suspension from work, a threat of disciplinary 16 action, among numerous other actions, “when taken together... amounted to a severe and sustained 17 campaign” of retaliation that was “reasonably likely to deter” plaintiffs from engaging in speech 18 protected under the First Amendment. Coszalter, 320 F.3d at 977. In contrast, in Nunez v. City of 19 Los Angeles, 147 F.3d 867 (9th Cir. 1998), the plaintiff failed to prove his employer committed an 20 adverse action when they allegedly scolded and threatened to transfer or dismiss him. Id. at 874. 21 In that case, the plaintiff objected to the practice of his employer, the Los Angeles Police 22 Department, in promoting unqualified applicants over himself. Id. at 869. The court found no 23 adverse action because “all he has shown is that he was bad-mouthed and verbally threatened.” Id. 24 at 875. Further, he retained his job and did not provide any evidence that his failure to receive a 25 promotion was linked to his criticisms. Id. 26 a. First and Second Termination Attempts 27 Mr. Whitlock’s attempts to terminate Ms. Grigorescu are like the adverse actions in 1 employment twice, once in 2015 and once in 2016. The first time, he falsely accused her of 2 intentionally misrepresenting her degree equivalency. Just as the court in Coszalter found the 3 actions were likely to deter when viewed in aggregate, here, Mr. Whitlock’s two termination 4 attempts could be seen as “severe and sustained campaign” of retaliation in the aggregate that is 5 likely to deter an employee from engaging in protected speech in the future. See also Marable v. 6 Nitchman, 511 F.3d 924, 929 (9th Cir. 2007) (holding that Marable suffered adverse employment 7 action because his employer accused him of misconduct, conducted a disciplinary hearing, and 8 suspended him without pay, noting that “This is about as adverse as it gets.”). And unlike the low- 9 level threats that did not amount to adverse action in Nunez, here, Mr. Whitlock initiated notices of 10 termination and advocated for her termination at disciplinary hearings and appeal hearings. 11 In arguing that these actions are not adverse, Mr. Whitlock asserts that the purposes of his 12 actions such as the apparent lack of degree equivalency for CSM job positions were legitimate and 13 justified. See Mot. at 17. But the asserted justifications for adverse actions is not pertinent when 14 evaluating the second element of a First Amendment retaliation claim. This conflates two distinct 15 issues—whether adverse actions were taken against the employee, and, if so, whether the actions 16 were taken in retaliation against the employee’s protected speech. The only question here is 17 whether the actions taken against Ms. Grigorescu are “reasonably likely to deter” protected 18 expression. We find that Mr. Whitlock’s two attempts to terminate Ms. Grigorescu are a pattern 19 of disciplinary actions that are likely to deter an employee from engaging in constitutionally 20 protected speech. 21 b. Harassment actions 22 There is a genuine dispute of fact as to whether the numerous harassment actions, 23 particularly when viewed in the aggregate, were adverse actions, including the ban from 24 mentorship program participation, ban from substituting for full-time professors, filing of an 25 incorrect teaching evaluation, denial of disability accommodations, assertion that Ms. Grigorescu 26 was a “bad employee,” suspension from teaching positions, and denial of teaching and scheduling 27 requests. See Grigorescu Decl. ¶¶ 91, 94, 96, 110, 112, 146, 148. These harassment actions, 1 in protected activity. See Coszalter 320 F.3d at 976. See also Dahlia v. Rodriguez, 735 F.3d 2 1060, 1079 (9th Cir. 2013) (finding placement on administrative leave is an adverse employment 3 action); Brooks v. City of San Mateo, 229 F.3d 917, 928–29 (9th Cir. 2000) (noting that 4 “termination, dissemination of a negative employment reference, issuance of an undeserved 5 negative performance review and refusal to consider for promotion” constitute adverse 6 employment actions, whereas “declining to hold a job open for an employee and badmouthing an 7 employee outside the job reference context” do not); Fonseca v. Sysco Food Servs. of Ariz., Inc., 8 374 F.3d 840, 847 (9th Cir. 2004) (“an adverse employment action exists where an employer's 9 action negatively affects its employee's compensation.”); Ellins v. City of Sierra Madre, 710 F.3d 10 1049, 1060–61 (C.A.9 (Cal.), 2013) (holding that even the denial of a minor financial benefit may 11 form the basis of a First Amendment claim.). 12 To be sure, Ms. Grigorescu did remain active in the Friends litigation throughout the 13 alleged pattern of adverse actions and seemed to remain undeterred. In 2016, she attended a 14 Friends hearing before the California Supreme Court. Grigorescu Decl. ¶ 78. Then, in 2017 when 15 the case was remanded, she attended the hearing before the California Court of Appeal. Id. Both 16 Friends hearings took place after her first termination attempt, and she attended the second one 17 after her full termination from employment. However, while her continued involvement in 18 protected speech activity is probative of an adverse action determination, it is not dispositive. The 19 test is whether the adverse action is sufficient to deter “a reasonable employee” from engaging in 20 protected speech, not Ms. Grigorescu specifically. See Dahlia v. Rodriguez, 735 F.3d 1060, 1079 21 (9th Cir. 2013). There is therefore a genuine dispute of fact as to whether the harassment actions 22 are adverse employment actions. 23 3. Preclusive Effect 24 Defendants argue that preclusion bars Ms. Grigorescu from litigating her First Amendment 25 retaliation claim. Mot. at 31. An unreviewed state administrative decision may have preclusive 26 effect in federal court as a matter of federal common law, as long as they meet the fairness 27 requirements described in United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966). 1 U.S. Dist. LEXIS 206363, *5 (S.D. Cal. 2018). Furthermore, an unreviewed state administrative 2 decision has preclusive effect when a state agency is “acting in a judicial capacity” and “resolves 3 disputed issues of fact properly before it which the parties have had an adequate opportunity to 4 litigate.” University of Tennessee v. Elliot, 487 U.S. 788, 799 (1986). 5 Under Utah Construction, it is fair to give preclusive effect to an administrative decision if 6 (1) the administrative agency acted in a judicial capacity; (2) the agency "resolv[ed] disputed 7 issues of fact properly before it;" and (3) "the parties . . . had an adequate opportunity to 8 litigate." Utah Constr., 384 U.S. at 422. If an administrative proceeding is sufficiently judicial in 9 character under Utah Construction, federal courts turn to the state's rules of preclusion to define 10 the preclusive effect of the administrative decision. White v. City of Pasadena, 671 F.3d 918, 926 11 (9th Cir. 2012); Eaton v. Siemens, No. 2:07-CV-00315-MCE-CKD, 2012 U.S. Dist. LEXIS 68757, 12 2012 WL 1669680, at *5 (E.D. Cal. 2012), aff'd, 571 Fed. App'x 620 (9th Cir. 2014). 13 Here, the administrative proceeding in Grigorescu II was sufficiently judicial in character 14 to be afforded potential preclusive effect. Ms. Grigorescu agreed to the hearing officer, was 15 represented by her union counsel, made opening and closing statements, introduced evidence, 16 examined and cross-examined witnesses at the hearing, and submitted post-hearing briefs. 17 Grigorescu II has a full hearing transcript. Further, the hearing officer issued a written decision on 18 the merits denying Ms. Grigorescu’s appeal. Therefore, the administrative decision concerning 19 whether the final termination attempt was an adverse action meets the requirements in Utah 20 Construction and may be given preclusive effect. See Miller, 39 F.3d at 1032-38 (holding that an 21 unreviewed administrative determination can meet the Utah Construction fairness requirements); 22 Alarcon v. Bostic, 2018 U.S. Dist. LEXIS 206363 at *2-3, 6-7 (finding that the administrative 23 proceeding regarding the plaintiff’s appeal of the city’s termination of his employment may have 24 preclusive effect because the hearing had an agreed-upon presiding hearing officer, representation 25 by counsel, opening statements and arguments, documentary evidence, examination and cross- 26 examination of witnesses, post-hearing briefs, and a written final decision from the hearing 27 officer.). 1 Claim preclusion, or res judicata, dictates that "'a final judgment forecloses successive 2 litigation of the very same claim, whether or not relitigation of the claim raises the same issues as 3 the earlier suit.'" White, 671 F.3d at 926 (quoting Taylor v. Sturgell, 553 U.S. 880, 892, 128 S. Ct. 4 2161, 171 L. Ed. 2d 155 (2008)). In other words, "[r]es judicata bars the litigation not only of 5 issues that were actually litigated but also issues that could have been litigated." See Fed'n of 6 Hillside & Canyon Ass'ns v. City of Los Angeles, 126 Cal. App. 4th 1180, 1202, 24 Cal. Rptr. 3d 7 543 (Ct. App. 2004) (emphasis added). 8 Under California law, two proceedings address the same claim if they arise out of the same 9 "primary right," which is "the right to be free from a particular injury, regardless of the legal 10 theory on which liability for the injury is based." Id. In addition to identity of claims, in order for 11 res judicata to apply, "the decision in the prior proceeding [must be] final and on the merits" and 12 "the parties in the present proceeding or parties in privity with them were parties to the prior 13 proceeding." Id.; see Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 14 2009). 15 In Alarcon v. Bostic, the court precluded the plaintiffs from raising a first amendment 16 retaliation claim against an employer, because the same primary right of the right to employment 17 was at stake in the current case and the prior underlying administrative proceeding. 2018 U.S. 18 Dist. LEXIS 206363 at *11. In that case, the city terminated both plaintiffs, and the plaintiffs 19 exercised their rights to an administrative appeal. Id. at *9. Importantly, the hearing officer 20 specified that the issue was whether there was just cause for termination. Id. at *10. In the case 21 before the court, plaintiffs again asserted wrongful termination, but contended they were 22 terminated in retaliation for exercising their First Amendment rights. Id. at *10. The court 23 explained:
24 Specifically, in both the underlying administrative appeals and the instant action, the MSJ Plaintiffs allege that they were wrongfully 25 terminated. In other words, the harm for which the MSJ Plaintiffs seek redress for here is identical to the harm at issue in the 26 underlying administrative proceedings—loss of employment.3 27 1 Id. at *11-12. 2 In Pedrina v. Chun, 97 F.3d 1296, 1302 (9th Cir. 1996), corporate officers named in a 3 RICO action were in privity with the corporation that was party to earlier action, because officers 4 allegedly participated in the same wrongdoing that the corporation was accused of in the earlier 5 action. Id. The court noted, “The fact that certain of those defendants are being sued in their 6 individual capacities does not weigh against a finding of privity with the corporation, as the 7 allegations against them relate to actions taken in their official, rather than their individual, 8 capacities.” Id. The court affirmed dismissal of the claim after finding that the claims in the prior 9 suit were identical and reached a final judgment on the merits. Id. at 1302-03.4 Under claim 10 preclusion, plaintiffs were precluded from raising the same claim against the corporate officers. 11 Id. 12 Here, the administrative appeal hearing in Grigorescu II is substantially similar to the 13 underlying administrative proceeding that was preclusive in Alarcon. Ms. Grigorescu’s central 14 allegation in both the Skelly appeal hearing and the case at bar was wrongful retaliatory 15 termination. She seeks to address the harm of loss of employment in both cases. In addition, 16 Grigorescu II was a final decision on the merits. As noted previously, the hearing officer issued a 17 final written judgment that ruled on whether the final termination attempt was an adverse action in 18 retaliation for Ms. Grigorescu’s protected speech activity. The officer concluded that “the strength 19 of the District’s evidence of her wrongdoing is sufficient to overcome any such inference.” 20 based on the Equal Protection Clause because "[w]hile [the] [p]laintiff has presented the court 21 with a new theory for recovery by invoking the equal protection clause and [§] 1983, he has not alleged a new harm," and "[a]s such, California's doctrine of res judicata precludes [the] 22 [p]laintiff's present [§] 1983 action"); Miller, 39 F.3d at 1034-35 (finding that an agency's [*12] decision to sustain the County Sheriff's Department's termination of the plaintiff 23 precluded the plaintiff's § 1983 action because the plaintiff only restated his wrongful termination contentions in constitutional terms); Swartzendruber v. City of San Diego, 3 Cal. App. 4th 896, 24 908, 5 Cal. Rptr. 2d 64 (Ct. App. 1992) (giving preclusive effect to the unreviewed findings of an administrative agency upholding the plaintiff's termination for disobeying a direct order to appear 25 to work in a uniform because the plaintiff's allegations of federal civil rights violations only restated her cause of action for wrongful termination in constitutional terms and finding that the 26 same primary right—the right to continued employment—was at stake in both actions).” Alarcon v. Bostic, No. 15cv1606-MMA (RBM), 2018 U.S. Dist. LEXIS 206363, at *11-12 (S.D. Cal. Dec. 27 6, 2018) 1 Docket No. 101-2 at 1069-1070. 2 Lastly, to the privity element, Mr. Whitlock has privity with the District in the earlier suit. 3 While he was not a party in the earlier litigation, he was involved in his official capacity as 4 General Counsel and VCHR. Like the officer defendants in Pedrina, Mr. Whitlock is being 5 accused of the same wrongdoing that the District was charged with in the Skelly appeal hearing. 6 Also similarly, here, the allegations against Mr. Whitlock relate to actions taken in his official, 7 rather than his individual, capacity because the actions are related to Ms. Grigorescu’s 8 employment at the District. Just as the plaintiffs were precluded from raising the same claim 9 against corporate officers in Pedrina, here, Ms. Grigorescu is precluded from raising the same 10 claim against Mr. Whitlock. 11 Therefore, all of the elements of res judicata are met for Grigorescu II to have preclusive 12 effect on the claim Mr. Whitlock’s final termination attempt was in retaliation for Ms. 13 Grigorescu’s protected speech activity. 14 b. Issue Preclusion 15 Collateral estoppel, also known as issue preclusion, “bars the relitigation of issues actually 16 adjudicated in previous litigation.” Janjua v. Neufeld, 933 F.3d 1061, 1066 (9th Cir. 2019). For 17 issue preclusion to apply, four conditions must be met: “(1) the issue at stake was identical in both 18 proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was 19 a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. 20 Id. 21 Here, for the same reasons as above, the final termination appeal hearing meets all three 22 elements of issue preclusion to preclude Ms. Grigorescu’s first amendment retaliation claim. The 23 issue of first amendment retaliation is identical to that in the earlier suit. Docket No. 101-2 at 24 1069-70. Second, Grigorescu II reached a final judgment on the merits, and thus the issue was 25 actually litigated and decided. Third, there was a full and fair opportunity to litigate the issue 26 given the sufficiently judicial character of the hearing. Fourth, the issue was necessary to decide 27 the merits of the case as it was determinative of just cause for termination. 1 preclusion and issue preclusion. See University of Tennessee, 487 U.S. at 799. 2 c. First Termination Attempt and Harassment Actions 3 While Ms. Grigorescu is precluded from claiming that the second termination attempt was 4 retaliatory and wrongful, she is not precluded from claiming that the first termination attempt and 5 the other harassment actions were retaliatory. Neither of those claims were previously litigated to 6 a final judgment in the prior administrative proceedings. Therefore, the question of whether the 7 first termination attempt and the harassment actions were retaliatory proceed to an analysis of 8 causation. 9 4. Causation 10 The critical question is whether a genuine dispute of fact exists as to whether Ms. 11 Grigorescu’s protected expression was a “substantial or motivating factor” for the first termination 12 attempt and the harassment actions. See Coszalter, 320 F.3d at 973. To establish this element, the 13 plaintiff must first produce evidence that her employer knew of her speech. See Keyser v. 14 Sacramanto City Unified Sch. Dist., 265 F.3d 741, 751 (9th Cir. 2001). Without such knowledge, 15 there can be no intent to retaliate. 16 After proving knowledge, the plaintiff must demonstrate that the retaliation caused adverse 17 action. In the absence of direct evidence, circumstantial evidence can establish an inference of 18 retaliatory intent. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 752 (9th Cir. 2001). 19 The plaintiff can produce evidence of one of the following three: proximity in time of the 20 retaliation to the speech, employer opposition to the speech, or the employer’s proffered 21 explanations for adverse employment action were pretextual. Id. at 751-52. 22 a. Knowledge of protected speech 23 Mr. Whitlock states he had no knowledge of or communication with Ms. Grigorescu and 24 did not interact with her prior to his employment with the District in 2014. Docket No. 101 at 2 25 (“Whitlock Decl.”). He also states he did not know the names of the individuals involved in the 26 Friends litigation. Whitlock Deposition 197:16-23. 27 However, Ms. Grigorescu meets her burden of raising a genuine issue of fact as to whether 1 and drawing all reasonable inferences in her favor. See Liberty Lobby, 477 U.S. at 255. Since 2 2011, she was a leader of a group that opposed the demolition of the CSM gardens to build a 3 parking lot. Grigorescu Decl. at 7. She organized students, solicited faculty letters, sent mass 4 emails to the community, and made statements to public officials at public events advocating to 5 save the gardens. Id. at 7-8, 13. She updated Dean Frontiera about the organizing efforts to save 6 the gardens “almost daily.” Id. at 7. She, along with other group leaders, had meetings with 7 President Claire to discuss concerns about the parking lot construction. Id. at 9. She organized 8 and participated in a public Garden-Teach-In. Id. at 12. She made a comment at a Board of 9 Trustees meeting about the gardens. Morrison Decl. Exh. 6. pp. 124:21, 126:14-20. 10 During her activity in Friends and the Friends litigation, Mr. Whitlock acted as General 11 Counsel for the District. One could reasonably infer from his advisory role that he was aware of 12 her activism to save the gardens. Notably, the Board of Trustees did not support the group and 13 wanted to continue “over the objections of students and local activists.” Id. at 11-12. While Mr. 14 Whitlock claims that his involvement in the Friends litigation was limited, he was an advisor to 15 the District throughout the entire period of Ms. Grigorescu’s activism, even prior to the litigation 16 commencing. Ms. Grigorescu took a substantial number of public actions in support of the 17 gardens that suggests District leadership was aware of her. In particular, her near daily 18 conversations with Dean Frontiera, her meeting with President Claire, and various appearances 19 before Board members, creates a reasonable inference that Mr. Whitlock “more likely than not” 20 knew of her protected speech activity. See Grigorescu Decl. ¶ ¶ 41, 47, Morrison Decl. Exh. 6. pp. 21 124:21, 126:14-20. Furthermore, the evidence that Dean Frontiera was directed by Mr. Whitlock 22 to “proceed as she did” and that any discussion about discrimination had to be “continued in [Mr. 23 Whitlock’s] presence” suggests that they were in communication about Ms. Grigorescu shortly 24 after Mr. Whitlock became VCHR. See Docket No. 100-2 at 872; Grigorescu Decl. at ¶ 93. 25 a. Circumstantial evidence of causation 26 There is no direct evidence of Mr. Whitlock’s intent to retaliate against Ms. Grigorescu. 27 Therefore, the Court looks to circumstantial evidence showing an inference of causation under any 1 752 (9th Cir. 2001). These include (1) proximity in time of the retaliation to the speech, (2) 2 employer opposition to the speech, or (3) the employer’s proffered explanations for adverse 3 employment action were pretextual. Id. at 751-52. See e.g. Coszalter v. City of Salem, 320 F.3d 4 968, 977 (9th Cir. 2003), Walker v. Clark Cnty., 2010 WL 5437251 at *7 (D. Nev. 2010). The 5 discussion below examines whether circumstantial evidence exists to show causation as to both 6 the first termination attempt and the harassment actions. 7 i. Proximity in Time 8 The first termination attempt may not have been sufficiently proximate to Ms. 9 Grigorescu’s protected speech activity because it occurred four years later. C.f. Coszalter, 320 10 F.3d at 978 (rejecting a bright-line rule about timing of protected speech retaliation, but finding a 11 reasonable inference of retaliation in an adverse action taken between three and eight months after 12 the plaintiff’s protected speech). Ms. Grigorescu engaged in Friends activism publicly in 2011, 13 while Mr. Whitlock did not become VCHR of the District until 2014 and did not attempt to 14 terminate her until 2015 and 2016. Nor does Ms. Grigorescu offer an explanation as to why Mr. 15 Whitlock would have waited over a year after he joined the District before attempting to terminate 16 her. 17 On the other hand, the harassment actions may have been sufficiently proximate in time to 18 Ms. Grigorescu’s protected speech activity to show an inference of causation. A continuous series 19 of harassment actions ensued only two months after Mr. Whitlock joined the District as VCHR in 20 July of 2014. In September 2014, Ms. Grigorescu was denied participation in a mentorship 21 program, and had a meeting with Dean Frontiera about discrimination concerns where Dean 22 Frontiera said the conversation had to be in Mr. Whitlock’s presence. Grigorescu Decl. at ¶ 93. 23 These alleged harassment actions were frequent throughout the period between 2014 to 2016, 24 including: the ban from substituting for full-time professors, filing of an incorrect teaching 25 evaluation, denial of disability accommodations, assertion that Ms. Grigorescu was a “bad 26 employee,” suspension from teaching positions, and denial of teaching and scheduling requests. 27 See Grigorescu Decl. ¶¶ 91, 94, 96, 110, 112, 146, 148. Together, this continuous pattern of 1 Grigorescu’s termination, show proximity in time. 2 While these actions did not start to occur until three years after Mr. Grigorescu 3 commenced here protected activity in support of the garden, the delay can be explained by the fact 4 that Mr. Whitlock was not in position to initiate retaliation against her until he became VCHR of 5 the college in 2014. The fact that the alleged harassment started soon after he assumed the 6 position of VCHR arguably establishes a degree of proximity sufficient to raise an inference of 7 retaliatory motive here. While a delay of three years between the protected activity and the acts of 8 retaliation is beyond that generally recognized as proximate in retaliation cases, the sequence of 9 events here present unique circumstances. 10 ii. Opposition to protected speech 11 Secondly, there is a reasonable inference that Mr. Whitlock opposed her advocacy for the 12 garden given his role in the Friends litigation as General Counsel for the district. His client was 13 the direct adversary of Ms. Grigorescu’s advocacy group. Although there is no evidence that he 14 expressed any personal view on the merits against Ms. Grigorescu’s position regarding the 15 gardens, his adversarial role is sufficient to raise and inference which prevents summary judgment. 16 Likewise, although there is no direct evidence of Mr. Whitlock’s knowledge of Ms. Grigorescu’s 17 role in the litigation, her openly public role and leadership on the issue raise an inference of 18 knowledge, particularly when all reasonable inferences must be drawn in her favor at this juncture. 19 iii. Pretextual explanations 20 Finally, no evidence shows that the proffered explanations for the first termination attempt 21 or the other adverse actions were pretextual. In Grigorescu I the hearing officer overturned 22 termination, but did find that “there was some evidence that would support the imposition of 23 discipline on [Ms. Grigorescu] for misrepresentation of her academic qualifications.” Docket No. 24 101-1 at 245. Ms. Grigorescu then received a two-and-a-half-month unpaid suspension. Docket 25 No. 101-2 at 489. Undisputed evidence shows that Mr. Whitlock conducted a thorough 26 investigation into Ms. Grigorescu’s degree equivalency, implying that he made a good faith 27 attempt to assess her qualifications. Ms. Grigorescu does not show evidence that any of the other 1 other adverse actions were retaliatory survive summary judgment for the reasons stated above 2 concerning proximity in time and opposition to her protected activity. 3 C. Qualified Immunity 4 Because the Court grants Mr. Whitlock’s motion for summary judgment based on issue 5 preclusion, the Court declines to address qualified immunity. See Mot. at 31. 6 D. Procedural violations 7 Mr. Whitlock argues that Plaintiff’s counsel committed substantial procedural errors. 8 Docket No. 129 at 17-18 (Reply). To provide just a few examples, Ms. Grigorescu exceeded the 9 page limit for the Opposition, numerous citations are not provided in the appropriate form, 10 declarations and exhibits were untimely filed. Id. at 19-35. The Court agrees that Ms. Grigorescu 11 has committed numerous procedural violations and a significant number of inaccuracies exist 12 throughout her record. However, these violations did not prejudice the Defendants as they did not 13 affect the outcome of the pending motions. The Court rules against Ms. Grigorescu on the merits 14 rather than the procedural errors she allegedly committed. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court GRANTS in part and DENIES in part the Defendant’s 17 Motion for Summary Judgment. The Court GRANTS Defendant summary judgment on the claim 18 that the final termination was in retaliation for Ms. Grigorescu’s protected speech activity. The 19 Court DENIES summary judgment on the claims that the first termination attempt and the 20 harassment actions between 2014 and 2016 were in retaliation for protected speech activity. 21 IT IS SO ORDERED. 22 Dated: 23 24 ______________________________________ EDWARD M. CHEN 25 United States District Judge 26 27