Vargas v. City of Tracy

• Court: District Court, E.D. California
• Decided: February 21, 2025
• Docket: 2:22-cv-01454
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PATRICK VARGAS, No. 2:22-cv-01454 WBS CSK 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTIONS FOR 15 CITY OF TRACY; SOUTH SAN SUMMARY JUDGMENT JOAQUIN COUNTY FIRE 16 AUTHORITY; RANDALL BRADLEY, in his individual and 17 official capacities; and DOES 1 through 20, inclusive, 18 Defendants. 19 20 21 ----oo0oo---- 22 Plaintiff Patrick Vargas brought this action under 42 23 U.S.C. § 1983 and California state law against defendants City of 24 Tracy (“City”), South San Joaquin County Fire Authority (“SSJC 25 Fire Authority” or “Fire Authority”), and Randall Bradley. 26 (Third Am. Compl. (“TAC”) (Docket No. 37).) Defendants move for 27 summary judgment. (Docket Nos. 99-100 (“City MSJ”), No. 101 28 (“Bradley MSJ”), No. 102 (“Fire Authority MSJ”).) 1 I. Facts 2 Plaintiff began working as a firefighter for the Tracy 3 Rural Fire Department in 1994. (See Patrick Vargas Dep. at 4 36:17-37:1.)1 In 1999, the City of Tracy Fire Department and the 5 Tracy Rural Fire Department merged to form a “joint powers 6 authority” called the South County Fire Authority.2 (Patrick 7 Vargas Dep. at 37:9-14; Bradley Dep. at 33:18-22, 46:22-23.) As 8 a result of this merger, plaintiff became an employee of the City 9 of Tracy. (Patrick Vargas Dep. at 36:19-37:3.) Plaintiff was 10 promoted to interim Division Chief in 2015, to Battalion Chief in 11 2017, and to Division Chief later in 2017, a position he held 12 until he was terminated in 2022. (Id. at 21:17-22.) 13 Defendant Bradley was hired as Fire Chief for the City 14 of Tracy in December 2015 and then served as interim and 15 permanent City Manager for the City from approximately October 16 2017 to January 2019. (Bradley Dep. at 49:3-14, 70:9-13, 79:19- 17 21, 82:1-10.) During this time period, Bradley advocated for 18 restructuring the South County Fire Authority into a “strong” 19 joint powers authority independent of the City, and ultimately 20 convinced the City Council to adopt this proposal (hereinafter 21 “the Plan”). (See Bradley Dep. at 55:6-61:14, 67:5-12.) 22 Pursuant to the Plan, the existing South County Fire 23 Authority was dissolved and a new joint powers authority 24 independent of the City -- defendant South San Joaquin County

25 1 The depositions and accompanying exhibits cited throughout this Order were lodged with the court. 26

27 2 A joint powers authority is a partnership between two public agencies to either jointly manage an endeavor or form a 28 new public agency. (Bradley Dep. at 33:23-34:6.) 1 Fire Authority (“SSJC Fire Authority” or “Fire Authority”) -- was 2 established in 2018. (Bradley Dep. at 80:23-83:2.) Bradley left 3 his position as City Manager in 2019 to serve as Fire Chief of 4 the SSJC Fire Authority. (See Ex. 6 to Bradley Dep.) From the 5 establishment of the SSJC Fire Authority to January 1, 2022, the 6 City of Tracy remained the employer of record for plaintiff, 7 Bradley, and other SSJC Fire Authority employees. (See id. at 8 82:1-17; Murdaugh Dep. at 27:13-28:14.) On January 2, 2022, the 9 SSJC Fire Authority became the employer of record. (See id.) 10 Plaintiff’s wife, Veronica Vargas, was a member of the 11 Tracy City Council from 2014 to 2022. (See Veronica Vargas Dep. 12 at 30:20-23, 95:15-96:6.) In her role as city councilor, she was 13 involved in the discussions over restructuring the joint powers 14 authority, which began during Bradley’s tenure as City Manager. 15 (See id. at 60:13-25.) Ms. Vargas expressed concern over the 16 Plan’s feasibility and was unsatisfied with the answers she was 17 given concerning it. (Id. at 70:18-71:10, 73:16-74:7, 75:17- 18 78:6, 100:24-103:4.) Ms. Vargas continued to be involved in 19 implementation of the Plan through her role in the City Council 20 as late as September 1, 2020. (See Pl.’s Ex. A (Docket No. 104-8 21 at 5-13) at 5.) 22 Plaintiff and his wife largely avoided discussing the 23 Plan with each other to avoid causing tension in their marriage. 24 (See Patrick Vargas Dep. at 108:23-109:12, 138:6-142:23; Veronica 25 Vargas Dep. at 230:9-232:12.) Despite this, plaintiff contends, 26 Bradley confronted plaintiff about his purported discussion of 27 the Plan with Ms. Vargas in June or July 2019, telling plaintiff 28 that he was in a “precarious position” and was being 1 “marginaliz[ed]” because of Ms. Vargas. (See Patrick Vargas Dep. 2 at 105:20-106:9.) 3 Bradley brought allegations of timecard fraud to Human 4 Resources Director Kimberly Murdaugh on September 15, 2020 and 5 third-party investigators ultimately found the allegation 6 unsupported on March 23, 2021. (Murdaugh Dep. at 75:12-76:5.) 7 On March 31, 2021, Bradley contacted Ms. Murdaugh and implored 8 her to further investigate plaintiff, and harassment allegations 9 against plaintiff surfaced on April 7, 2021, prompting a second 10 investigation during which Bradley placed plaintiff on paid 11 administrative leave. (See Docket No. 104-2 at 288; Docket No. 12 104-4 at 63-67; Ex. 20 to Bradley Dep.; Murdaugh Dep. at 150:9- 13 23, 179:10-14.) Bradley allegedly pushed to expand the scope of 14 the investigation, which concerned Ms. Murdaugh because there 15 were no other specific allegations of misconduct and Bradley’s 16 suggested course of action did not align with existing City 17 policies. (Murdaugh Dep. at 133:13-134:16, 136:18-137:4.) 18 The harassment investigation -- which, according to Ms. 19 Murdaugh, ultimately exceeded the original investigatory scope 20 she established -- concluded in August 2021 and sustained 21 allegations of harassment and misconduct, but City officials had 22 concerns about the integrity of the findings and commissioned an 23 additional investigation into the harassment investigation. (See 24 Exs. 18, 20 to Murdaugh Dep.; Murdaugh Dep. at 132:18-134:22, 25 167:5-17, 180:16-181:4, 183:20-21, 195:24-197:20, 199:6-10.) 26 This additional investigation was completed in December 2021 and 27 found that the harassment investigation used unreliable 28 methodologies and was biased because “Bradley’s participation in 1 the investigation as both the decisionmaker and a witness 2 evidences the investigation was not conducted in an impartial 3 manner.” (See Ex. 22 to Murdaugh Dep.) City officials concluded 4 that the harassment investigation did not provide a basis to 5 terminate plaintiff and directed that plaintiff be removed from 6 administrative leave and return to work, but Bradley terminated 7 plaintiff on January 12, 2022. (See Ex. 21 to Murdaugh Dep.; 8 Murdaugh Dep. at 203:22-207:25; Bradley Dep. at 386:10-24, 9 395:13-396:24.) 10 II. Discussion 11 Plaintiff brings three claims under § 1983: the first 12 claim alleging First Amendment retaliation based on speech, the 13 second claim alleging First Amendment retaliation based on 14 association, and the third claim alleging deprivation of 15 procedural due process. (TAC ¶¶ 127-52.) Plaintiff also brings 16 two state law claims: the fourth claim alleging violation of the 17 California Firefighters Procedural Bill of Rights Act, Cal. Gov’t 18 Code § 3252 et seq.; and the fifth claim alleging violation of 19 California Labor Code § 98.6. (Id. ¶¶ 153-74.) 20 On their motions for summary judgment, defendants bear 21 the burden of persuasion to show that there is no genuine dispute 22 of material fact on plaintiff’s claims. See Nissan Fire & Marine 23 Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 24 2000). 25 A. Bradley and the SSJC Fire Authority 26 1. Section 1983 27 a. Monell Liability 28 Plaintiff brings all three constitutional claims 1 against the SSJC Fire Authority, which is a municipal entity. 2 Because § 1983 does not provide for vicarious liability, local 3 governments “may not be sued under § 1983 for an injury inflicted 4 solely by its employees or agents.” Monell v. Dep’t of Soc. 5 Servs. of N.Y., 436 U.S. 658, 693 (1978). “Instead, it is when 6 execution of a government’s policy or custom, whether made by its 7 lawmakers or by those whose edicts or acts may fairly be said to 8 represent official policy, inflicts the injury that the 9 government as an entity is responsible under § 1983.” Id. 10 Plaintiff bases his claims against the SSJC Fire 11 Authority on the theory that Bradley was a “final policymaker.” 12 “[W]here action is directed by those who establish governmental 13 policy, the municipality is equally responsible whether that 14 action is to be taken only once or to be taken repeatedly.” 15 Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). 16 In support of its argument that Bradley was not a final 17 policymaker, the SSJC Fire Authority cites only Bradley’s 18 Employment Agreement, which states that Bradley was under the 19 authority of the Fire Authority’s Board. However, the cited 20 document undercuts rather than supports the Fire Authority’s 21 position, as it states that Bradley “[i]mplements and oversees 22 all aspects of personnel and labor relations with [Fire] 23 Authority employees, including personnel management, discipline, 24 handling grievances, negotiating labor agreements, and meeting 25 and conferring with the [Fire] Authority’s recognized bargaining 26 units.” (Ex. 6 to Bradley Dep. at 10.) That document gives no 27 indication that Bradley’s authority over employment matters was 28 subject to Board control or approval. (See generally id.) 1 The absence of Board oversight tends to be supported by 2 the evidence before the court concerning plaintiff’s termination, 3 which Bradley apparently decided upon and effectuated without any 4 Board input. (See Bradley Dep. at 393:11-22, 395:13-398:3.) 5 Accordingly, because there is a genuine dispute of material fact 6 as to whether Bradley possessed final policymaking authority over 7 employment decisions, the SSJC Fire Authority’s motion for 8 summary judgment will not be granted based upon Monell. 9 b. First Amendment Retaliation Based on Speech 10 Plaintiff contends that Bradley, on behalf of the Fire 11 Authority, took adverse employment actions against him based on 12 Bradley’s perception that plaintiff spoke negatively of the Plan 13 to his wife, Ms. Vargas, who was a city councilor and was 14 involved in the adoption and implementation of the Plan. 15 Regardless of whether plaintiff actually spoke to his wife about 16 the Plan, a retaliation claim based on “perceived speech” -- 17 i.e., speech that the plaintiff was incorrectly thought to have 18 made -- is cognizable under the First Amendment. See Heffernan 19 v. City of Paterson, 578 U.S. 266, 268 (2016) (government 20 employee could maintain a First Amendment retaliation claim where 21 he was demoted because “the official believed, but incorrectly 22 believed, that the employee had supported a particular candidate 23 for mayor”) (emphasis in original); DeCrane v. Eckart, 12 F.4th 24 586, 594 (6th Cir. 2021) (recognizing First Amendment retaliation 25 claim premised on erroneously “perceived speech” based on 26 Heffernan). 27 “‘[T]he First Amendment prohibits government officials 28 from subjecting individuals to retaliatory actions after the fact 1 for having engaged in protected speech.’” Adams v. County of 2 Sacramento, 116 F.4th 1004, 1010 (9th Cir. 2024) (quoting Houston 3 Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022)). Under the 4 test established by Pickering v. Board of Education, 391 U.S. 563 5 (1968), “it is the plaintiff’s burden to establish that (1) [he] 6 spoke on a matter of public concern; (2) [he] spoke as a private 7 citizen rather than a public employee; and (3) the relevant 8 speech was a substantial or motivating factor in the adverse 9 employment action.” Adams, 116 F.4th at 1010 (cleaned up).3 “If 10 a plaintiff establishes such a prima facie case, the burden 11 shifts to the government to demonstrate that (4) it had an 12 adequate justification for treating the employee differently than 13 other members of the general public; or (5) it would have taken 14 the adverse employment action even absent the protected speech.” 15 Id. (cleaned up). 16 To demonstrate that retaliation was a “substantial or 17 motivating factor behind an adverse employment action,” a 18 plaintiff can “(1) introduce evidence that the speech and adverse 19 action were proximate in time, such that a jury could infer that 20 the action took place in retaliation for the speech; (2) 21 introduce evidence that the employer expressed opposition to the 22 speech; or (3) introduce evidence that the proffered explanations 23 for the adverse action were false and pretextual.” Anthoine v. 24 N. Cent. Ctys. Consortium, 605 F.3d 740, 750 (9th Cir. 2010). 25 “As with proof of motive in other contexts, this element of a 26 First Amendment retaliation suit . . . involves questions of fact 27 3 Defendants do not meaningfully address the first or 28 second Pickering factors. 1 that normally should be left for trial.” Ulrich v. City & County 2 of San Francisco, 308 F.3d 968, 979–80 (9th Cir. 2002) (internal 3 citations omitted). 4 Here, plaintiff has presented sufficient evidence of 5 retaliatory motive to survive summary judgment. As laid out in 6 detail above, there is evidence indicating that Bradley expressed 7 opposition to plaintiff’s perceived communication with Ms. Vargas 8 concerning the Plan (see Patrick Vargas Dep. at 105:20-106:9) and 9 that there was a close proximity in time between Ms. Vargas’ 10 actions on the City Council regarding the Plan and the chain of 11 events beginning with Bradley’s allegation of timecard fraud (see 12 Pl.’s Ex. A at 5; Murdaugh Dep. at 75:12-76:5). 13 There is also evidence tending to show that Bradley’s 14 proffered reason for plaintiff’s termination was pretextual. 15 After an independent investigation found that the harassment 16 investigation into plaintiff was biased by Bradley’s involvement, 17 City officials concluded that the harassment investigation’s 18 findings did not warrant termination and instructed Bradley to 19 remove plaintiff from administrative leave, but Bradley 20 terminated plaintiff regardless. (See Murdaugh Dep. at 203:22- 21 207:25, 213:19-214:23; Ex. 22 to Murdaugh Dep. at 3; Bradley Dep. 22 at 386:10-387:16, 395:13-396:24.) This evidence plainly 23 establishes a genuine dispute of material fact as to whether 24 plaintiff’s termination was based on Bradley’s retaliatory animus 25 for plaintiff’s perceived speech and connection with Ms. Vargas. 26 See Anthoine, 605 F.3d at 750. 27 Further, Bradley and the Fire Authority have not 28 pointed to any evidence that taking adverse employment action in 1 response to plaintiff’s speech served legitimate operational 2 purposes. See Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 3 900, 908–09 (9th Cir. 2021) (“mere speculation that an employee’s 4 speech will cause disruption” was insufficient to demonstrate the 5 government had a legitimate interest under Pickering). 6 Accordingly, Bradley and the SSJC Fire Authority’s 7 motions for summary judgment on the first claim for First 8 Amendment retaliation based on plaintiff’s speech must be denied.

9 c. First Amendment Retaliation Based on Association 10 11 Plaintiff alleges that Bradley and the SSJC Fire 12 Authority retaliated against him based on his association with 13 his wife. Though the Ninth Circuit has not squarely addressed 14 this type of claim, the Second Circuit has held that “a spouse’s 15 claim that adverse action was taken solely against that spouse in 16 retaliation for conduct of the other spouse should be analyzed as 17 a claimed violation of a First Amendment right of intimate 18 association.” See Adler v. Pataki, 185 F.3d 35, 44 (2d Cir. 19 1999); see also Freeman v. County of Riverside, No. 18-cv-2171 20 JFW KKX, 2019 WL 7905733, at *6 (C.D. Cal. Apr. 5, 2019) (quoting 21 Lewis v. Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291, 1302 22 (M.D. Ala. 2012)) (“[T]he First Amendment may also be violated 23 where the speech that invoked the government’s retaliatory 24 response was not made by the plaintiff herself, but rather by a 25 person in a close relationship with the plaintiff, and the 26 government retaliated against the plaintiff for her perceived 27 association with the other person and that person’s speech.”); 28 Isakhanova v. Muniz, No. 15-cv-03759 TEH, 2016 WL 1640649, at *4 1 (N.D. Cal. Apr. 26, 2016) (same). 2 This holding aligns with Ninth Circuit and Supreme 3 Court case law explaining that a claim for “expressive 4 association” via a close family relationship such as marriage is 5 cognizable under the First Amendment. See, e.g., Board of Dir. 6 v. Rotary Club, 481 U.S. 537, 545 (1987); Erotic Serv. Provider 7 Legal Educ. & Rsch. Project v. Gascon, 880 F.3d 450, 458 (9th 8 Cir.), amended, 881 F.3d 792 (9th Cir. 2018); Lee v. City of Los 9 Angeles, 250 F.3d 668, 685 (9th Cir. 2001); IDK, Inc. v. Clark 10 County, 836 F.2d 1185, 1194 (9th Cir. 1988). 11 Bradley and the Fire Authority’s arguments concerning 12 this claim are essentially the same as those discussed above with 13 respect to the First Amendment retaliation claim based on 14 plaintiff’s speech -- i.e., the third, fourth, and fifth elements 15 of the Pickering analysis. (See Fire Authority Reply at 10-12; 16 Bradley Reply at 8-12.) See also Adler, 185 F.3d at 44 (applying 17 Pickering test to First Amendment retaliation claim based on 18 association with spouse). Based on the evidence discussed above, 19 there are genuine disputes of material fact concerning whether 20 Bradley took retaliatory employment actions in response to 21 plaintiff’s association with his wife, whether those adverse 22 actions were otherwise justified, and whether those adverse 23 actions would have been taken absent retaliatory intent. 24 Accordingly, Bradley and the SSJC Fire Authority’s motions for 25 summary judgment must also be denied on the second claim for 26 First Amendment retaliation based on association. 27 d. Procedural Due Process 28 Plaintiff does not oppose defendants’ request for 1 summary judgment on the procedural due process claim. (See 2 Bradley Opp’n (Docket No. 105) at 32; Fire Authority Opp’n 3 (Docket No. 106) at 31-32.) Accordingly, Bradley and the SSJC 4 Fire Authority’s motions for summary judgment will be granted as 5 to the third claim for deprivation of procedural due process. 6 e. Qualified Immunity 7 “Qualified immunity is applicable unless the official’s 8 conduct violated a clearly established constitutional right.” 9 Pearson v. Callahan, 555 U.S. 223, 232 (2009). “The relevant, 10 dispositive inquiry in determining whether a right is clearly 11 established is whether it would be clear to a reasonable officer 12 that his conduct was unlawful in the situation he confronted.” 13 Saucier v. Katz, 533 U.S. 194, 202 (2001). 14 Bradley argues perfunctorily that he is entitled to 15 qualified immunity but fails to present any argument concerning 16 why the rights at issue here were not “clearly established” under 17 the applicable standard. Accordingly, he has not met his burden 18 of persuasion and qualified immunity will be denied. 19 2. State Law Claims 20 a. Firefighters Procedural Bill of Rights Act 21 Plaintiff’s fourth claim alleges violation of several 22 provisions of the California Firefighters Procedural Bill of 23 Rights Act, Cal. Gov’t Code § 3252 et seq. This statute sets 24 forth a hodgepodge of procedural rights, which for unexplained 25 reasons apply only to firefighters.4 Needless to say, if this 26 4 For example, plaintiff pleads the provisions of the Act 27 which provide (1) that “no firefighter shall be prohibited from engaging, or be coerced or required to engage, in political 28 activity,” Cal. Gov’t Code § 3252(a); (2) that “[a] firefighter 1 claim in its entirety remains in the case it will ultimately 2 convert the trial from an inquiry into whether defendants 3 deprived plaintiff of his constitutional rights under the First 4 Amendment into an exposition of whether plaintiff was accorded 5 all of the procedural amenities the California legislature has 6 conferred upon him as a firefighter. 7 Bradley and the Fire Authority do not address all 8 statutory provisions relied upon by plaintiff. In particular, 9 they do not appear to address the requirement under § 3254(f) to 10 provide written notice within 30 days of any decision to impose 11 discipline. (See Bradley MSJ at 28-32; Fire Authority MSJ at 28- 12 32.) 13 With respect to the administrative appeal process 14 requirement under § 3254(b), defendants argue that because 15 plaintiff was an at-will employee, he possessed no administrative 16 shall not be subjected to punitive action, or denied promotion, 17 or be threatened with that treatment, because of the lawful 18 exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative 19 grievance procedure,” Cal. Gov’t Code § 3254(a); (3) that “[p]unitive action . . . shall not be undertaken by any employing 20 department or licensing or certifying agency against any firefighter who has successfully completed the probationary 21 period without providing the firefighter with an opportunity for 22 administrative appeal,” Cal. Gov’t Code § 3254(b); and (4) that “[i]f, after investigation and any predisciplinary response or 23 procedure, the employing department or licensing or certifying agency decides to impose discipline, that agency shall notify the 24 firefighter in writing of its decision to impose discipline within 30 days of its decision, but not less than 48 hours prior 25 to imposing the discipline,” Cal. Gov’t Code § 3254(f). In opposition to the motions, plaintiff also argues that he 26 maintains a claim under a separate provision of the Firefighters 27 Procedural Bill of Rights Act, Cal. Gov’t Code § 3254(d). However, plaintiff did not plead his claim under that section. 28 (See TAC ¶ 153.) 1 appeal rights. However, defendants have not cited, nor is the 2 court aware of, any evidence or authority indicating that 3 plaintiff’s at-will status terminated his statutory rights under 4 the Firefighters Procedural Bill of Rights Act. See County of 5 Riverside v. Superior Ct., 27 Cal. 4th 793, 806–07 (2002) 6 (analogous Public Safety Officers Procedural Bill of Rights Act 7 “is, like many other statutory schemes enacted for the protection 8 of a class of employees, not subject to blanket waiver,” and 9 therefore waiver of rights under Bill of Rights Act must be “a 10 voluntary and knowing act done with sufficient awareness of the 11 relevant circumstances and likely consequences”); Vincent v. City 12 of Cal. City, No. 1:18-cv-00549 LJO JLT, 2018 WL 3524621, at *5 13 (E.D. Cal. July 20, 2018) (assuming Firefighters Procedural Bill 14 of Rights Act applied to “at-will management employee”). 15 Further, with respect to the requirement under § 16 3252(a) that firefighters not be prohibited from or coerced into 17 engaging in political activity, there is a genuine dispute of 18 material fact precluding summary judgment. For instance, there 19 is evidence suggesting that Bradley pressured plaintiff into 20 trying to convince Ms. Vargas to stop questioning Bradley’s plan 21 in her role as city councilor. (See Patrick Vargas Dep. at 22 105:20-108:12, 140:11-22.) 23 The court will not, and need not, address all of the 24 portions of the Act pled by plaintiff, but for the reasons 25 discussed above, Bradley and the SSJC Fire Authority’s motions 26 for summary judgment on the fourth claim under the Firefighters 27 Procedural Bill of Rights Act will be denied. 28 1 b. Cal. Labor Code § 98.6 2 Bradley and the SSJC Fire Authority argue that they are 3 entitled to statutory immunity under California Government Code § 4 820.2, which provides that “a public employee is not liable for 5 an injury resulting from his act or omission where the act or 6 omission was the result of the exercise of the discretion vested 7 in him, whether or not such discretion be abused”; and California 8 Government Code § 815.2(b), which provides immunity to a public 9 entity for the actions of an employee who is himself immune from 10 liability. “[T]he burden rests with government defendants to 11 demonstrate that they are entitled to § 820.2 immunity for a 12 specific policy decision made by an employee who consciously 13 balanced the decision’s risks and benefits.” Hernandez v. County 14 of Tulare, 666 F.3d 631, 640 (9th Cir. 2012) (citing Johnson v. 15 State, 69 Cal. 2d 782, 795 n.8 (1968)). Bradley and the Fire 16 Authority have entirely failed to satisfy this burden. They 17 merely state in conclusory fashion that they are entitled to 18 statutory immunity, but do not engage in any analysis. 19 Accordingly, immunity under § 820.2 (and derivative immunity 20 under § 815.2(b)) will not be granted. 21 Plaintiff’s claim under § 98.6 is premised upon the 22 alleged retaliation for plaintiff’s exercise of his First 23 Amendment rights. (See TAC ¶ 169; Fire Authority Opp’n at 31.) 24 See also Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 25 86 (2004) (discussing claim under § 98.6 premised on violation of 26 a constitutional right); Napear v. Bonneville Int’l Corp., 669 F. 27 Supp. 3d 948, 966 n.7 (E.D. Cal. 2023) (Drozd, J.) (same). As 28 explained above, plaintiff’s First Amendment claims survive 1 summary judgment. Thus, plaintiff’s § 98.6 claim, premised on 2 the alleged violation of his First Amendment rights, similarly 3 survives summary judgment, and the court will deny Bradley and 4 the Fire Authority’s motions as to that claim. 5 B. The City 6 Plaintiff does not oppose the City’s request for 7 summary judgment on the third claim for procedural due process 8 and fifth claim under Labor Code § 98.6. (See City Opp’n (Docket 9 No. 104) at 45.) Accordingly, summary judgment in the City’s 10 favor will be granted on the third and fifth claims. 11 In contrast to Bradley and the SSJC Fire Authority, the 12 City clearly cannot be held liable on any of plaintiff’s 13 remaining claims. With respect to the § 1983 claims, Bradley was 14 not a final policymaker for the City under Monell. The City of 15 Tracy Municipal Code establishes that the City Manager has “the 16 power to control, order, and give directions to all heads of 17 departments and to subordinate officers and employees of the 18 City.” City of Tracy Mun. Code § 2.08.060. The City’s Personnel 19 Rules designate the City Manager and Human Resources Director as 20 the officials ultimately responsible for various personnel 21 matters, including disciplinary action. (See Ex. 31 to Murdaugh 22 Dep. at 1-3, 35-39.) Bradley therefore was not a final 23 policymaker for the City. See Ellins v. City of Sierra Madre, 24 710 F.3d 1049, 1066 (9th Cir. 2013) (municipal code provision and 25 personnel rules delegating employment decisions to city manager 26 established that city manager was final policymaker with respect 27 to employment decisions). 28 Further, Bradley’s employment agreement was with the 1 SSJC Fire Authority and he reported to the Fire Authority’s 2 Board, not to the City. (See Bradley Dep. at 363:3-9; Ex. 6 to 3 Bradley Dep.) And based on the evidence already discussed above, 4 Bradley -- not any City official -- was responsible for the 5 alleged violations. Bradley allegedly expressed opposition to 6 plaintiff’s perceived speech. (See Patrick Vargas Dep. at 7 105:20-106:9.) Bradley allegedly defied the limitations put in 8 place by City policy and the City’s Human Resources Director in 9 order to influence the harassment investigation. (See Murdaugh 10 Dep. at 132:18-134:22, 180:16-181:4; Ex. 22 to Murdaugh Dep. at 11 3.) Bradley chose to place plaintiff on administrative leave 12 during that investigation, only informing the City after deciding 13 on that course of action. (See Ex. 20 to Bradley Dep.; Murdaugh 14 Dep. at 150:9-151:23.) 15 City officials apparently tried to stymie Bradley’s 16 influence and ensure plaintiff was treated fairly by 17 commissioning an independent investigation into the harassment 18 investigation and, based on the results thereof, ordered Bradley 19 to remove plaintiff from administrative leave and allow him to 20 return to work. (See Exs. 20-22 to Murdaugh Dep.; Murdaugh Dep. 21 at 132:19-134:22, 167:5-17, 195:24-199:10, 203:22-207:25, 213:19- 22 214:23; Bradley Dep. at 386:10-24.) Bradley disregarded the 23 City’s instructions and terminated plaintiff shortly after the 24 Fire Authority became plaintiff’s employer of record. (See 25 Bradley Dep. at 386:10-387:16, 395:13-396:24; Murdaugh Dep. at 26 27:13-28:14.) 27 While the City did initiate the investigations in 28 response to fraud and harassment allegations and made a tne nnn nn TE OS IEE III OIE EIEIO ED eee

1 recommendation for a written reprimand following the conclusion 2 of the final investigation (see Ex. 21 to Murdaugh Dep.), there 3 is no indication that the City did so in a biased manner or 4 violated applicable procedural protections. The City cannot be 5 held responsible for Bradley’s actions, which often appeared to 6 contradict City policy and orders, merely because Bradley for a 7 short period of time nominally remained an employee for purposes 8 of the transition process for the newly autonomous SSJC Fire 9 | Authority. Accordingly, the City’s motion for summary judgment 10 | will be granted in its entirety. 11 IT IS THEREFORE ORDERED that the City of Tracy’s motion 12 for summary judgment (Docket No. 99) be, and the same hereby is, 13 GRANTED. 14 IT IS FURTHER ORDERED that Randall Bradley’s motion for 15 summary judgment (Docket No. 101) and the South San Joaquin 16 County Fire Authority’s motion for summary judgment (Docket No. 17 102) be, and the same hereby are, GRANTED as to the third claim 18 for deprivation of procedural due process under § 1983. The 19 | motions are DENIED in all other respects. 20 | Dated: February 21, 2025 bette 2d. □□ 21 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 18