Summary
noting the same, though holding that minimal process at a pre-termination hearing combined with the announced appointment of an apparently biased decisionmaker at a post-termination hearing which never occurred created a jury question about whether plaintiff received sufficient procedural protections
Summary of this case from Maner v. County of StanislausOpinion
NO. CIV. S-07-2106 LKK/DAD.
February 12, 2009
ORDER
Plaintiffs Steven and Amy Trevino have brought suit against Lassen Municipal Utility District ("LMUD"), Steven Trevino's former employer, and the individually named defendants who are employees of LMUD for alleged harms he suffered related to the termination of his employment.
Pending before the court is defendants' motion for summary judgment on plaintiffs' first, second, third, sixth and eighth causes of action. Plaintiffs cross-move for partial summary judgment against LMUD on their first cause of action to the extent that they seek injunctive relief.
The court resolves the motion on the papers and after oral argument.
I. FACTS
Defendants object to several items of evidence offered by plaintiffs as well as plaintiffs' failure to follow the Local Rules and Rules of Civil Procedure in their motion and opposition to defendants' motion. First, in violation of Local Rule 56-206, the plaintiffs failed to file a Statement of Undisputed Facts with their motion for summary judgment. The Statement of Undisputed Facts was not filed until January 15, 2009. Similarly, plaintiffs' opposition to defendants' motion and supporting documents were not timely filed and served. Although the court could disregard these untimely filings, it is inclined to resolve the motions on the merits. Plaintiffs also failed to file a response to defendants' statement of undisputed facts as required by Local Rule 56-260(b). Plaintiffs' counsel is sanctioned in the sum of $150 for each of the three violations of the court rules, for a total of $450. This sum shall be paid to the Clerk of the Court no later than thirty (30) days from the effective date of this order. Counsel shall file an affidavit accompanying the payment of these sanctions which states that it is paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client or in any way made the responsibility of the client as attorneys' fees or costs.
All facts described in this section are undisputed unless otherwise noted. Due to plaintiffs' failure to timely file a Statement of Undisputed Facts and to file a response to defendants' Statement of Undisputed Facts, the court treats as undisputed only those facts to which neither party has directed the court to evidence that tends to show a dispute.
Defendants also object to several items of evidence plaintiffs have tendered. Among them, defendants object to the minutes of the LMUD Board meeting that plaintiffs have offered. These exhibits have not been authenticated and their authentication is not apparent to the court, given that affiant Thomas Beko has not declared where he obtained the minutes nor established his knowledge of their accuracy, nor are the documents of the type that are self-authenticating. See Affidavit of Thomas Beko In Support of Plaintiffs' Motion for Partial Summary Judgment ¶¶ 16, 18, 19, 26, 28, 29, 37 (Ex. 13, 15, 16, 22, 24, 25, 33). Accordingly, the court SUSTAINS defendants' objection to these exhibits. Fed.R.Civ.P. 56(e); Fed.R.Evid. 902. Given, however, that defendants do not seem to dispute that those meetings did occur, the court treats that fact as undisputed.
Defendants also object to plaintiffs' filing on January 15, 2009 of twenty-one exhibits offered in opposition to defendants' motion. Doc. No. 106. This filing was accompanied by an affidavit by Thomas Beko that only provides foundation for one of the exhibits. See Opposition by Steven Trevino to Motion for Summary Adjudication, attached Affidavit of Thomas Beko In Opposition to Motion for Summary Adjudication ¶ 4. Most of these exhibits were properly tendered as exhibits in support of plaintiffs' motion for summary judgment or as exhibits to defendants' motion and, to the extent the court relies on them, it has relied on those instead. It appears that the only exhibit offered in document number 106 that was not authenticated and not otherwise properly tendered by either party is Exhibit 2. The court SUSTAINS defendants' objection to this exhibit.
Defendants object to several other items of evidence tendered by the plaintiffs. Many of these items are irrelevant or unnecessary to the disposition of the pending motions. To the extent that the evidence is relevant, defendants' remaining objections are OVERRULED.
A. Incident Giving Rise to Disciplinary Action Against Steven Trevino
On March 10, 2007, Steven Trevino was golfing with a friend at the Diamond Mountain Golf Course. Defendant Frank Cady was, at the time, a shareholder in the golf course as well as General Manager of LMUD. Marino Gianotti, a retired Board member of LMUD, acted as the golf course Marshall. During the off-season, the golf course had a policy that golfers paid for their round of golf by depositing ten dollars in an "honor pay" box on the course.
On March 10, 2007, Trevino and his friend began playing golf at the course without having put any money in the honor box. Gianotti approached them about it and Trevino said he would pay Cady directly on Monday. Gianotti left and called Cady, leaving a message for him at home to the effect that Trevino was there and that he refused to pay. Plaintiffs have tendered evidence that, in this message, Gianotti also relayed that Trevino intended to pay Cady directly on Monday. Affidavit of Thomas Beko In Support of Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 96) ("Beko Aff.") ¶ 4, Ex. 2. Some time thereafter, Cady called the police and drove to the golf course.
Immediately upon arrival, Cady approached Trevino and told him he was being placed on administrative leave. Trevino has testified that Cady "screamed at [him] that [he] was on administrative leave, to turn in [his] keys and [his] car on Monday." Declaration of Cassandra Ferrannini In Support of Defendants' Motion for Partial Summary Judgment ("Ferrannini Decl.") ¶ 7, Ex. F (Steven Trevino Depo. at 51:22-24). According to Trevino, he then "asked him,'what does this have to do with work?' And he responded to me, just belligerently, `That's insubordination, you're f,' and as he was saying fired, he spun around and told me to turn in my shit." Trevino Depo. at 52:1-5. In his deposition, defendant Cady testified that, when he arrived at the golf course, he got out of his vehicle and "just let Steve have a barrage of goddamn, what the hell are you doing" and was "mad and heated and yelling." Ferrannini Decl. ¶ 4 Ex. C (Cady Depo. at 170:7-12). Cady confirmed Trevino's recollection of events, which is that he started to tell Trevino he was fired but stopped and instead said he was on administrative leave. Id. at 170:16-25.
After this exchange with Cady, Trevino then said to Gianotti, who was nearby, "Buzz, you're dead. What did you say to Frank?" Gianotti reported this to the police officers who had arrived shortly prior. Neither of the officers who were present heard the threat, Ferrannini Decl. ¶ 8, Ex. G (Holman Depo. at 22:15-18), although Officer Holman confirmed that the apparent "threat" was made after Cady told Trevino he was on administrative leave. Beko Aff. ¶ 6 Ex. 4 (Holman Depo. at 47:5-9). Shortly afterwards, Trevino and his friend and Cady left the course.
B. Events Immediately Following the Incident
Plaintiffs have tendered evidence that later that day, Cady contacted defendant Luhring, LMUD Assistant General Manager and Trevino's direct supervisor, and informed him that Trevino had been placed on administrative leave and asked Luhring to go pick up Trevino's keys. Ferrannini Decl. ¶ 9, Ex. H (Luhring Depo. at 60:22-61:15); Trevino Depo. at 16:11-13. Luhring informed Cady that he couldn't do it because he was out of town. Id. at 61:24-25.
According to Trevino, later that day LMUD General Counsel Jaimee Jones called him and told him to turn in his company vehicle and his keys. Trevino Depo. at 77:18-79:1. Plaintiffs have tendered evidence that Jones had worked for Cady's law firm as an associate attorney and later a partner until Cady left the firm to be General Manager of LMUD. Cady Depo. at 18:2-22:25. Some time after Cady joined LMUD, Jones was hired as General Counsel. Id. at 23:12-24:2. When he left his firm, Cady sold it to Jones but part of the firm profits continued to be paid into a trust for Cady's children. Id. at 25:6-26:12.
Plaintiffs have tendered evidence that two days after this incident, Cady sent an email to Jones, Luhring, and the members of the LMUD Board. Affidavit of Thomas Beko In Support of Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 107) ¶ 4, Ex. 5. In it, he relayed his version of the events that had occurred on the golf course with Trevino. He then stated that "[t]he crimes committed [by Trevino and his friend] under California law include but are not limited to: 1. Defrauding an innkeeper (a misdemeanor). 2. Assault. 3. Criminal trespass. 4. Conspiracy. 5. Making a death threat," as well as several violations of LMUD's discipline policies, including acting in a way to cause discredit on LMUD, "discourteous treatment of the public, District Board Members or supervisory personnel," and conviction of a crime of moral turpitude. Id. He also stated that he had informed Trevino at the course that he was being placed on administrative leave and that "[v]arious LMUD personnel were contacted." Id. He concluded the letter stating,
This matter will come before you for an update at the Wednesday Board Meeting as a closed session information only item with no particular action requested. At a later time, when the investigation is completed, this matter will be presented to the Board for action and the proper notices, Skelly and otherwise, will be provided to Mr. Trevino as required by law.Id.
On March 14, 2007, a closed Board meeting regarding Trevino was held, which Luhring and Cady attended. Luhring Depo. at 76:13-77:11. As a result of the meeting, it was decided that Luhring would act as General Manager in the discipline matter.Id. at 70:18-24. It was the perception of Nancy Cardenas, a member of the LMUD Board of Directors at the time, that Cady "ruled the district with an iron fist" and that Luhring would not practically be able to reverse Cady's discipline decision. Ferrannini Decl. ¶ 11, Ex. J (Cardenas Depo. at 28:13-29:5).
On March 19, 2007, Luhring sent Trevino a notice that he was placed on administrative leave. Ferrannini Depo. ¶ 7 Ex. F. The next day, Luhring sent Trevino a "Notice of Intent To Terminate Employment." It advised Trevino that the grounds for termination was Trevino's violation of the LMUD rule that prohibited "any willful act of conduct undertaken in bad faith which either during or outside of duty hours is of such a nature that is causes discredit to fall upon the District." As facts supporting the discipline, the letter described the incident on the golf course, with particular emphasis on Trevino's supposed threat against Gianotti. The letter also stated that witness statements and a copy of the LMUD's discipline policy were enclosed with it, although Trevino has testified that they were not. Beko Aff. ¶ 7 Ex. 5 (Trevino Depo. 124:5-15). Finally, the letter advised that a "pre-disciplinary (Skelly)" hearing would be held on March 26, 2007. No witnesses could be called but Trevino could explain why he thought termination was not appropriate and could be represented, if he chose. There is evidence that these two letters, although apparently from Luhring and bearing his signature, had been drafted by Jones. Luhring Depo. 87:25-88:10, 100:4-16.
C. LMUD's Discipline Policy
LMUD's discipline policy is described in its "General Manager Administrative Procedure 2006-03." Ferrannini Decl. ¶ 7 Ex. F. It was created and enforced by Cady. See Defs.' SSUF ¶ 25.
Among other conduct, it prohibits employees from performing "any willful act of conduct undertaken in bad faith which either during or outside of duty hours is of such a nature that is causes discredit to fall upon the District." It provides for progressive discipline, including suspension and dismissal.
In cases where the employee was suspended for more than three working days, demoted, or terminated, the employee may request a Skelly hearing within five days of receipt of the notice of the discipline. The General Manager "shall" hold the Skelly hearing within five working days of the employee's request and shall issue a written opinion five working days thereafter. The employee may appeal an adverse decision within five working days of receiving it. "All efforts shall be made to schedule the hearing within 30 days of the Notice of Appeal."
The appeal is resolved with an appeal hearing to be conducted by a Standing Hearing Officer or a party neutral to the dispute with legal training sufficient to conduct the hearing. If there is no Standing Hearing Officer, a hearing officer is chosen by the Board at its next scheduled regular meeting. The hearing officer shall receive evidence at the appeal hearing. Upon mutual agreement of the employee and the District, or upon the hearing officer's request, the parties may submit briefs in lieu of the hearing. The hearing officer then recommends whether to affirm, modify, or overturn the disciplinary action, in a written report supported by findings of fact. The report shall be issued "as soon as possible" after the hearing. The Board shall then consider the report at its next regularly scheduled meeting and make a final decision regarding the disciplinary action.
D. Pre-termination Hearing
Trevino's pre-termination hearing was held on March 26, 2007. He was represented by counsel at the time. Counsel had requested a continuance of the hearing because witness statements and copy of the discipline policy had not been provided to Trevino, although they had been purportedly included in his Notice of Intent to Terminate Employment. Counsel also asked for all records upon which the District intended to rely at the hearing and for the hearing to be conducted by a neutral hearing officer, which, according to Trevino's counsel, Luhring was not. Counsel's request for a continuance of the hearing was denied.
Plaintiffs' counsel submitted a written response to the Notice of Intent to Terminate Employment on March 24, 2007. It contained a description of the golf course incident and legal argument. This was sent to and apparently received by Luhring.
The pre-termination hearing was held on March 26, 2007 with Luhring acting as the hearing officer. Apparently, no live testimony was offered; instead, Trevino offered only the March 24, 2007 letter prepared by his counsel. Affidavit of Steven Trevino In Support of Motion for Summary Judgment ("Trevino Aff.") ¶ 15. Luhring has testified that he conducted no independent investigation of the golf course incident and spoke to none of the people who had been present about it, including Cady and Trevino; instead, he relied on written statements by Cady and Gainotti. Luhring Depo. at 70:18-73:15.
On May 8, 2007, Luhring issued a written decision to terminate Trevino. Plaintiff has tendered evidence that Luhring knew that the decision was supposed to have issued five days after the hearing. Luhring Depo. at 119:7-120:13. Luhring testified that he did not comply with this deadline because he knew that Trevino was being paid during this time and because he wanted to have enough time to make the right decision. Id. at 119:7-120:3.
In the decision, Luhring stated that Trevino was terminated based upon a "review of the information available, the charges contained within the Notice of Intent to Terminate, [Trevino's] written response to those charges, the information presented in at the hearing on March 26, 2007, and all other supporting evidence submitted." Ferrannini Decl. ¶ 7 Ex. F. He concluded that this supported a finding that Trevino had violated LMUD's rules by acting in bad faith so as to discredit the District.
The decision also described the process that had been provided Trevino. In describing the March 26, 2007 hearing — which it identified as a Skelly hearing — it stated, "At the hearing, you had the opportunity to address the facts upon which the District relied for its intention to terminate you. You chose not to testify or present live testimony from any other witnesses at that hearing despite the opportunity to do so." Id. at 2. Finally, it advised Trevino of his right to appeal pursuant to the General Manager Administrative Procedure 2006-03 ("GMAP 2006-03").
Luhring has testified that it was Trevino's "death threat" to Gianotti that warranted his termination. Defs' SSU ¶ 47. He also testified that, in making his termination decision, he did not rely on Trevino's failure to present witnesses at the March 26, 2007 hearing. Luhring Depo. 103:20-104:16.
Luhring's decision was sent to Trevino on May 10, 2007. On May 11, 2007, Trevino filed an appeal.
E. Post-termination Events
On June 1, 2007, Trevino began working as a temporary Electrical Superintendent for the Truckee-Donner Public Utility District. He has testified that he was motivated to do so out of a need for health care benefits for his wife, who was being treated for breast cancer. Trevino Aff. ¶ 16. He was at some point contacted by "numerous individuals," including local news reporters, about his termination, although he had not previously discussed the matter with them. Id. ¶¶ 11-13.
Plaintiffs have tendered evidence that Luhring knew in 2006 that Amy Trevino had been diagnosed with breast cancer and that he spoke to her about it in December, 2006. Luhring Depo. 79:10-80:20.
Plaintiff has tendered evidence that on June 4, 2007, he drafted and faxed to defendants' counsel a letter seeking an update on the status of Trevino's appeal, including whether a hearing officer had been appointed. Beko Aff. ¶ 17, Ex. 14.
According to defendants, the next regularly scheduled Board meeting occurred on July 24, 2007. Luhring Depo. 142:12-16. At the July 24, 2007 meeting and upon Jones' recommendation, the Board appointed Truckee attorney Steven Gross as the hearing officer for Trevino's appeal. Trevino was notified of this by letter on July 26, 2007.
Prior to this, the Board had held "special," closed meetings to address pending litigation. Pls.' SSUF ¶ 173. Cady has testified that he was not present at those meetings. Cady Depo. at 245:11-21.
Plaintiffs have also tendered evidence that the Board typically held regular meetings once a month, but Luhring did not know why regular meetings were not held in May or June, 2007. Luhring Depo. at 142:17-143:7.
Trevino contended at the time — and maintains this position in the instant suit — that Gross was not impartial and neutral. It is undisputed that in 2005 Gross assisted LMUD in reviewing Cady's employment contract, among other matters. Defs.' SSUF ¶ 61. Plaintiffs have tendered evidence that in 2006, Gross was assisting in the preparation of a new contract to reappoint Cady as General Manager. Cady Depo. 42:10-14. He also represented LMUD in a matter before the Public Employees Relations Board and provided LMUD legal advice in administrative and employment matters in spring and summer of 2007. Id. at 52:5-56:22. Cady spoke with Gross several times during the course of that representation. Id. Plaintiffs have also tendered evidence that Board members knew that Gross had represented LMUD on other matters at the time that it appointed him as hearing officer. Ferrennini Decl. ¶ 5 Ex. D (Nagel Depo. at 25:21-26:13), ¶ 12 Ex. K (Langston Depo. at 41:24-42:8).
According to Gross, he had never personally represented Cady or Luhring. Ferrannini Decl. ¶ 10, Ex. I (Gross Depo. at 30:10-31:5). Gross also testified that to the best of his recollection, he was not representing LMUD on any other matters at the time he was appointed hearing officer. Id. at 56:3-7.
In any event, Gross stepped down as hearing officer on October 23, 2007. Luhring Depo. 154:22-155:18. He did so due to his perceived "conflict of interest in representing the board with Mr. Cady [and] representing the board with Mr. Trevino." Ferrannini Decl. ¶ 11 Ex. J (Cardenas Depo. at 57:13-19). During the time that he was hearing officer, he did not conduct Trevino's appeal hearing, on account of the "press of business." Gross Depo. at 53:7-16.
On October 23, 2007, the Board charged Jones with selecting a new hearing officer. She retained attorney Mike Fitzpatrick for this role on October 26, 2007. Trevino's counsel was notified of this by letter, in which defendants' counsel stated the Fitzpatrick was selected in an attempt to accommodate Trevino's request for a neutral hearing officer and his prior objections to Gross. Beko Aff. ¶ 30, Ex. 26. It informed Trevino that Fitzpatrick would be able to conduct Trevino's appeal hearing on November 15, 2007. Id. By letter dated October 29, 2007, Trevino's counsel agreed that Trevino would appear at the November 15, 2007 hearing and requested Trevino's personnel file and that certain LMUD staff be present at the hearing for questioning. Id. ¶ 32, Ex. 28. On November 7, 2007, Trevino's counsel sent a follow-up letter to LMUD's counsel, seeking confirmation of the November 15 hearing date. Id. ¶ 31, Ex. 29.
Plaintiffs have also tendered evidence that at this Board meeting, some Board members resigned their positions out of concern over Cady's behavior and treatment of employees. Cardenas Depo. 75:1-76:24; Beko Aff. ¶ 38, Ex. 34 (Sargent Depo. at 30:1-31:19). At least two Board members have testified that they were not fully informed about what was occurring in the Trevino disciplinary matter. Ferrannini Decl. ¶ 5, Ex. D (Nagel Depo. 61:4-24); Sargent Depo. at 88:24-89:15.
At some point, the LMUD Board voted to reinstate Trevino to his former position. Ferrannini Decl. ¶ 13, Ex. L (Wood Depo. at 78:25-79:2). One Board member has testified that he believed Trevino's conduct was not of the nature that would bring discredit on the District. Sargent Depo. at 40:12-22.
On November 9, 2007, defendants' counsel sent a letter to Trevino's counsel, offering to reinstate him and including a check for $41,118.30 in back pay. A copy of Trevino's personnel file was enclosed. Id. ¶ 32, Ex. 30. Trevino rejected the offer of reinstatement by letter on November 15, 2007, expressing concern about Cady's possible retaliation against him and displeasure with the Board's handling of his disciplinary action.Id. ¶ 33, Ex. 31. He stated that he would not consider returning to LMUD until Cady was no longer in a position of control over him and without assurance by the District that it would comply with LMUD's employment policies. Id.; see also Trevino Depo. at 178:1-180:3. Trevino cashed the check for back pay. Trevino Depo. at 183:2-17. LMUD has since extended reinstatement offers to Trevino twice. Ferrannini Decl. ¶ 7, Ex. F. The second time, on January 17, 2008, defendants' counsel also informed Trevino's counsel that Cady was no longer employed at LMUD. Id.
Defendants also represent that Trevino requested that the Board announce publicly that his termination had been improper, but cite no evidence substantiating this. See Defs.' SSUF ¶ 81.
F. Procedural History
Plaintiffs filed the instant suit in this court on October 5, 2007. On November 10, 2007, the defendants moved to dismiss and strike, which the court granted in part on January 29, 2008, with leave to amend. Plaintiffs have since filed a Third Amended Complaint, which is the operative complaint. In their Third Amended Complaint, plaintiffs allege six causes of action: deprivation of their procedural due process rights, deprivation of their substantive due process rights, conspiracy to deprive plaintiffs of those rights, defamation, infliction of emotional distress, and failure to produce a public record in violation of state law. They seek declaratory and injunctive relief, damages, and attorneys fees.
Their stand-alone claim for LMUD's failure to follow its policies in terminating Steven Trevino was dismissed on April 9, 2008. Plaintiffs have since dismissed their claims against Marino Gainnotti, who had been named as a defendant in the Third Amended Complaint.
II. STANDARD FOR A MOTION FOR SUMMARY JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56
Summary judgment is appropriate when there exists no genuine issue as to any material fact. Such circumstances entitle the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853. In doing so, the opposing party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); see also First Nat'l Bank, 391 U.S. at 289. In evaluating the evidence, the court draws all reasonable inferences from the facts before it in favor of the opposing party. Matsushita, 475 U.S. at 587-88 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); County of Tuolumme v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). Nevertheless, it is the opposing party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (citations omitted).
III. ANALYSIS
Defendants move for summary judgment on the following causes of action: deprivation of plaintiffs' procedural due process rights, deprivation of their substantive due process rights, conspiracy to deprive plaintiffs of those rights, infliction of emotional distress, and failure to produce a public record in violation of state law.
Plaintiffs cross-move for partial summary judgment. Although it is not altogether clear from their motion, plaintiffs appear to seek summary judgment against LMUD on their first cause of action, which allege deprivation of their procedural due process rights, to the extent that they seek injunctive relief. See Pls.' Mot. for Summ. J. at 20:16-18.
The court grants each motion in part.
A. Due Process Claims
Defendants move for summary judgment on the plaintiffs' first, second, and third causes of action, which allege violations of plaintiffs' procedural and substantive due process rights and a conspiracy to violate those rights, respectively. Defendants' motion asserts that defendants Cady and Luhring are protected by qualified immunity and that LMUD is not liable under Monell. Defendants also argue that the evidence does not show that a reasonable jury could find that either plaintiff's rights were violated.
Defendants do not seek summary judgment on the third cause of action for any reasons distinct from the reasons for which they seek summary judgment on the first and second causes of action.
Plaintiffs concede that their substantive due process claim is moot but seek attorneys fees for it. Plaintiffs also cross-move for summary judgment against LMUD on their first cause of action, for violation of their procedural due process rights, and ask the court to issue an injunction reinstating Steven Trevino in his former position and requiring that LMUD and its agents comply with LMUD policies should future disciplinary actions be taken against Steven.
The court considers each of these arguments in turn, beginning first with the allegation of Steven Trevino and then considering the allegations of Amy Trevino.
1. Violation of Steven Trevino's Procedural Due Process Rights
Defendants first dispute that a reasonable jury could find that Steven Trevino's procedural due process rights were violated by the defendants' conduct surrounding Trevino's termination. The court disagrees.
In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court established the framework for analyzing a procedural due process claim where termination of public employment was at issue. As a threshold matter, a public employee's property interest in his continued employment is defined by state law. Id. at 538-39. For example, if a statute or other independent source provides that the employee will only be terminated for cause, the employee has a property interest in his employment such that he is entitled to some measure of due process in a termination procedure. Id. Here, the parties do not dispute that Steven Trevino could only be terminated for good cause, thus establishing a property interest in his employment so as to implicate his due process rights.
The Supreme Court has also recognized an employee's liberty interest in his reputation and the due process rights attendant to that interest. See, e.g., Loudermill, 470 U.S. at 547 n. 13. Plaintiff Steven Trevino has not pled this as the basis of his claims; instead, he alleges that he possessed a Constitutionally protected property interest in continued employment. See Third Amended Complaint ¶¶ 45-69. The court disregards the arguments plaintiffs raise in their opposition brief on this issue, as they lie outside the scope of the pleadings. See Pls.' Opp'n to Defs.' Mot. for Summ. J. at 21. Defendants' references to cases discussing the due process rights that attach to this liberty interest are similarly unhelpful to the court's analysis. See,e.g., Codd v. Velger, 429 U.S. 624, 627 (1977) (per curium); see also Matthews v. Harney County, Or., Sch. Dist. No. 4, 819 F.2d 889, 894 (9th Cir. 1987) (the due process requirements attaching to a liberty interest may be more rigorous than those attaching to only a property interest).
The employee's due process interest requires, inter alia, that he not be terminated without notice and an opportunity to be heard. Id. at 542. "Some form of pre-termination hearing" is required. Id. The precise contours of the hearing rely on a balancing of the employee's interests, the government's interest in prompt personnel decisions, and the risk of erroneous termination decisions. Id. at 543, 545. Given this, the pre-termination hearing must include, at a minimum, oral or written notice to the employee of the charges against him, explanation of the employer's evidence, and an opportunity for the employee "to present his side of the story."Id. at 546. In Gilbert v. Homar, 520 U.S. 924, 927 (1997), the Court clarified that it envisioned the pre-termination hearing as "very limited," while a post-termination hearing would be "more comprehensive."
A post-termination hearing also must occur "at a meaningful time" and "the existence of post-termination procedures is relevant to the necessary scope of pre-termination procedures."Loudermill, 470 U.S. at 547 n. 12. Regarding the timing of the post-termination hearing, the Court cautioned that "at some point, a delay in the post-termination hearing would become a constitutional violation" although the nine-month delay in that case was not a per se violation. Id. at 547; see also Gilbert, 520 U.S. at 932 (suspension without pay implicates plaintiff's due process rights depending in part on the length of the deprivation, so the promptness of a post-suspension hearing is relevant). Whether a delay in a post-termination hearing constitutes a due process violation depends on "the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken."Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 242 (1988) citing Mathews v. Eldridge, 424 U.S. 319 (1976). The state's interest in the delay must be "substantial" to survive constitutional scrutiny. Id. at 243.
Courts have also emphasized the importance of the hearing officer's impartiality in the termination process. In Clements v. Airport Authority of Washoe County, 69 F.3d 321, 332 (9th Cir. 1995), the court held that plaintiff's allegations that her post-termination hearing was flawed due to administrator's bias "stated a valid due process claim." The court observed that "[a]t a minimum, Due Process requires a hearing before an impartial tribunal." Id. citing Ward v. Village of Monroeville, 409 U.S. 57, 59-60 (1972) and Marshall v. Jerrico, 446 U.S. 238, 241-42 (1980). The court clarified, however, that "the decisionmaker in a pre-termination hearing need not be impartial, so long as an impartial decisionmaker is provided at the post-termination hearing." Id. at 332 n. 15 (emphasis in original).
The Ninth Circuit has repeatedly emphasized the importance of the decisionmaker's neutrality in the due process context. See,e.g., Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991) (defendant employer failed to provide plaintiff due process at post-termination hearing because same attorney acted as adjudicator and represented the defendant in related civil suit for wrongful termination); Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988) (in the context of a reputational injury implicating plaintiff's liberty interest, evidence that hearing officer would have disregarded evidence plaintiff presented indicated that plaintiff was denied due process); see also Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 780 (9th Cir. 1982) (holding that plaintiff had tendered insufficient evidence to show that one of the decision makers in his termination decision was biased against him, such that his due process rights were violated); Coleman v. Dep't of Personnel Admin., 52 Cal. 3d 1102, 1121 (1991) (post-termination hearing must be performed by an "impartial and disinterested decision maker").
Here, plaintiffs have tendered sufficient evidence from which a reasonable jury could find that Steven Trevino did not receive the process due in the termination proceedings against him. While it is undisputed that a pre-termination hearing was held for Trevino, at which time he was able to contest the charges against him and for which he received written notice of the alleged violation and its basis, there is also evidence from which a jury could infer that the hearing was constitutionally infirm.
First, there is some evidence that Luhring, as Cady's subordinate, would likely not have reversed the discipline decision that Cady had made. See Cardenas Depo. at 28:13-29:5. There is also evidence that the Board members understood this at the time Luhring was selected as the hearing officer for the pretermination hearing. Id.
Second, the process afforded Trevino at the pretermination hearing was minimal. He was not permitted to call witnesses at it, indeed Luhring examined no witnesses at the hearing or prior to it. Luhring Depo. at 70:18-73:15. The sparseness of the process provided at this hearing is not in and of itself constitutionally problematic, but a reasonable jury could find that it was deficient in light of the delayed — and ultimately non-occurring — post-termination hearing. See Loudermill, 470 U.S. at 547 n. 12.
A reasonable jury could also find that the Board's initial selection of Gross as a hearing officer for the post-termination hearing indicates a lack of neutrality and impartiality in the process. See Clements, 69 F.3d at 332 n. 15; see also Ward, 409 U.S. at 59-60; Marshall, 446 U.S. at 241. There is evidence that Gross had, in the years before the plaintiff's discipline action, represented the District in other employment matters. See Cady Depo. at 52:5-56:22. In this context, he had often met with Cady and had been involved in some capacity with the preparation of Cady's 2006 employment contract. Id. at 42:10-14, 52:5-56:22. Gross himself testified that he stepped down from the role of hearing officer due to the perceived conflict of interest in his roles representing both Cady and Trevino. Gross Depo. at 56:3-7. Finally, it is undisputed that Gross was selected by Jones and plaintiffs have tendered some evidence of Jones' long-standing professional and financial relationship with Cady. See Cady Depo. at 18:2-22:25, 23:12-24:2, 25:6-26:12. A reasonable jury might infer from this that Jones was not impartial when recommending Gross as hearing officer. These facts, while not dispositive, would permit a reasonable jury to conclude that Board acted contrary to the requirements of due process in selecting Gross as hearing officer for the post-termination hearing. See Clements, 69 F.3d at 332; Walker, 951 F.2d at 184.
Finally, a jury could also reasonably conclude that the LMUD's delay in providing the post-termination hearing was itself a denial of due process. As the Supreme Court has explained, whether a delay in the post-termination hearing constitutes a due process violation depends on the importance of the plaintiff's interest and the harm he would suffer as result of the delay, the state's reason for the delay and the underlying interest they serve, and the likelihood that the termination decision was erroneous.Mathews, 424 U.S. 319.
The Court has long acknowledged that an employee possesses an "important interest" in his continued employment. Mallen, 486 U.S. at 242 (citations omitted). In addition to this, plaintiffs have tendered evidence that Steven Trevino had a particularly strong interest in his continued employment due to his need for medical benefits for his wife, who was undergoing cancer treatment. Trevino Aff. ¶ 16.
Such an important interest cannot be overcome without a "substantial justification" for the state's delay of the post-termination hearing. Mallen, 486 U.S. at 242. Here, the plaintiffs have tendered evidence that Gross failed to hold the post-termination hearing within the 30 days recommended by LMUD's policies because he was too busy to do so. Gross Depo. at 53:7-16. A jury could reasonably conclude that this is not a sufficiently substantial justification for the delay.
Finally, there is evidence that the initial decision to terminate Steven Trevino was erroneous. The Board eventually reversed the decision and offered to reinstate him. One Board member has testified that he disagreed with Luhring's conclusion that Trevino's conduct on the golf course was of such a nature as to discredit the District. Sargent Depo. at 40:12-22.
Accordingly, the court denies defendants' motion to the extent that they argue that a reasonable jury would be required to find that Steven Trevino received all the process he was due in his termination proceedings.
2. Plaintiffs' Cross-Motion for Summary Judgment Against LMUD
Plaintiffs seek summary judgment in their favor against LMUD on Steven Trevino's procedural due process claim, to the extent that they seek injunctive relief. The court grants this motion in part.
Defendants have offered no counter-evidence addressing theMathews factors, regarding the delay in the post-termination hearing. It therefore remains undisputed that plaintiff had a substantial interest in his continuing employment, that the only evidence of the government's justification for the delay was the business of the hearing officer, and that the termination decision was later concluded to be erroneous by the Board, as discussed above.
The court concludes, however, that plaintiffs have not shown that the evidence is so unequivocal that no reasonable jury could find in defendants' favor as to the impartiality of Luhring and Gross and the adequacy of the pre-termination hearing.
Defendants' arguments in opposition to plaintiffs' motion are unpersuasive. Defendants' sole basis for opposing plaintiffs' motion is their assertion that plaintiffs have not shown that LMUD is liable under Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691 (1978). See Defs.' Opp'n to Pls.' Mot. for Summ. J. at 11-15. This is unpersuasive. Monell's requirement that a plaintiff may only prevail against a state entity for Constitutional rights violations when the violation occurred pursuant to a state policy, does not apply when the plaintiff seeks only prospective relief. Chaloux v. Killeen, 886 F.2d 247, 250 (9th Cir. 1989). InChaloux, plaintiffs sued Idaho sheriffs in their official capacities to prevent the implementation of allegedly unconstitutional garnishment statutes. Id. Plaintiffs sought declaratory and injunctive relief. Id. The court held thatMonell's "official policy or custom" requirement applied only to actions for damages under § 1983, because the statute's purpose was to "alleviate the imposition of financial liability on local governments." Id. Because this concern was absent when injunctive and declaratory relief was sought, the court declined to apply the Monell limitation to such suits. Id. at 251. Consequently, because plaintiffs only seek summary judgment on their claims for injunctive relief, Monell is no impediment to the success of their motion.
Moreover, as explained below, there is sufficient evidence from which a jury could impose Monell liability here.
To the extent that defendants intended to incorporate the arguments in their motion for summary judgment into their opposition to plaintiffs' motion, those arguments are also unpersuasive. First, defendants argue that Trevino received back pay for this period. See Defs.' Mot. for Summ. J. at 19 (citing Defs.' SSUF ¶¶ 77-78, 88). This fact does not foreclose plaintiff's procedural due process claim, especially given that plaintiffs' motion for summary judgment seeks injunctive relief, not damages.See, e.g., Clements, 69 F.3d at 332-34 (when defendant has violated plaintiff's due process rights, plaintiff may recover damages for emotional distress and nominal damages, in addition to the compensatory damages sought).
Defendants also argue that Codd v. Velger, 429 U.S. 624, 627 (1977) (per curium) bars Trevino's recovery here. As stated in note 8, supra, that case dealt only with plaintiff's liberty interest in his reputation and the process due in that circumstance. Aside from a brief citation to Loudermill, defendants do not otherwise discuss how the delay in the post-termination hearing relates to plaintiff's property interest in his continued employment.
Accordingly, the court grants plaintiffs' motion for summary judgment on the first cause of action, to the extent that it alleges that Steven Trevino's procedural due process rights were violated.
The court grants in part Steven Trevino's request for injunctive relief. Plaintiffs seek an order reinstating Trevino and requiring defendants to "strictly comply with the General Managers Administrative Procedure (2006-03) should any future disciplinary action be taken against Mr. Trevino." Generally speaking, the Ninth Circuit has held that reinstatement is an appropriate form of injunctive relief only where plaintiff has shown that "another substantive right coexists with the right to procedural due process." Brady, 859 F.2d at 1552. Relying on prior Ninth Circuit and Supreme Court precedent, the Brady court concluded that in general the proper remedy for a procedural due process violation is to give the plaintiff the process he was due and attendant damages. Id. (collecting cases). The court noted that it had only ordered reinstatement in a few cases where there was an underlying violation of plaintiff's First Amendment rights as well as a due process violation. Id. (citing Burton v. Cascade Sch. Dist. Union High Sch. No. 5, 512 F.2d 850 (9th Cir. 1975) and Cain v. McQueen, 580 F.2d 1001 (9th Cir. 1978)).
Here, LMUD has offered reinstatement and informed plaintiff that defendant Cady is no longer General Manager there. In this situation, the Brady court's concerns appear absent and reinstatement appears to be an appropriate remedy. Although plaintiff also requests that the court order the defendants to comply strictly with GMAP 2006-03 during the entirety of his employment, the court disfavors injunctions that would require supervision from the court for many years or for an indefinite period. See Natural Resources Def. Council v. United States Envtl. Prot. Agency, 966 F.2d 1292, 1300 (9th Cir. 1992). Instead, the court cautions the defendants that by reinstating plaintiff Steven Trevino they have implicitly agreed to adhere to the due process requirements imposed on them by law and described herein. Future violations of these requirements, the court expects, may give rise to another suit by plaintiffs.
3. Qualified Immunity of the Individual Defendants
Defendants Cady and Luhring assert that they are entitled to qualified immunity on plaintiffs' procedural due process claims. The court grants defendant Cady's motion and denies defendant Luhring's.
i. Defendant Cady
Preliminarily, defendant Cady argues that he is not liable for the deprivation of Steven Trevino's procedural due process rights because he was not sufficiently involved in the discipline proceedings so as to reasonably be found to have caused the deprivation.
A government official is immune from liability for discretionary functions, so long as the official's conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, plaintiffs appear not to dispute that Cady's conduct at issue implicated a discretionary function. In conducting a qualified immunity analysis, the court must determine whether the facts, taken in the light most favorable to the injured party, show that the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Even viewing the evidence in the light most favorable to plaintiffs here, there is insufficient evidence from which a jury could conclude that Cady caused the deprivation of the plaintiffs' procedural due process rights. The evidence tendered to the court shows that Cady initially placed Steven Trevino on administrative leave; that immediately after the golf course incident, he discussed it with Luhring and Jones; two days later he emailed Jones, Luhring, and the Board relating his version of events and opining that Steven Trevino was guilty of various crimes and LMUD rule infractions; and that four days after the incident, he was present at a closed personnel meeting with Jones and Luhring, the result of which was Luhring being given the authority to act as General Manager for the matter of Trevino's discipline.
As the court explained above, the evidence of the procedural due process violations against Steven Trevino encompass the adequacy of the pre-termination hearing, the impartiality of the hearing officers, and the delay in the post-termination hearing. Plaintiffs have not tendered any evidence establishing a causal link between these possible violations and Cady's actions. Simply because Cady set the discipline proceedings in motion initially does not render him liable for the process that was eventually provided. Even Cady's March 12, 2007 e-mail appears at most to suggest what result Cady believed the discipline process should have, but did not implicate the process provided. Nor is there any evidence tendered that could lead a reasonable jury to conclude that Cady was involved in the selection of Luhring or Gross as hearing officers. Put plainly, plaintiffs have not borne their burden to produce evidence permitting a reasonable jury to conclude that Cady caused Steven Trevino's procedural due process violations. Accordingly, Cady's motion for summary judgment is granted as to that cause of action.
ii. Defendant Luhring
Defendant Luhring is not entitled to qualified immunity. First, there is evidence from which a reasonable jury could conclude that Luhring caused Steven Trevino's due process violations. It is undisputed that as of March 14, 2007, Luhring was charged with acting as General Manager for the purposes of Trevino's discipline proceedings, which were governed not only by constitutional requirements but also by LMUD's policies as stated in GMAP 2006-03. Luhring conducted the pre-termination hearing on March 26, 2007, which, as discussed above, a jury could find to be constitutionally deficient. Additionally, although the evidence indicates that the delay in holding the post-termination hearing appeared to be most directly the result of Gross's actions, a reasonable jury could conclude that as acting General Manager for the purposes of the discipline matter, Luhring also bore some responsibility. As acting General Manager, he was charged with enforcing GMAP 2006-03, which provides that "[a]ll efforts shall be made to schedule the [posttermination] hearing within 30 days of the Notice of Appeal." Accordingly, a reasonable jury could find that Luhring caused Steven Trevino's procedural due process deprivations.
Second, the law governing Luhring's actions was clearly established at the time. Saucier, 533 U.S. at 201-202 (the second step of the qualified immunity analysis is whether the constitutional right was "clearly established" at the time of the violation, such that a reasonable official would have understood that his actions violated that right). The law regarding an employee's procedural due process rights surrounding termination is long settled. In Loudermill, the Court expressed the constitutional importance of there being held both a pre-termination and prompt post-termination hearing. 470 U.S. at 546-47. This principle has been reaffirmed over the last three decades by both the Supreme Court and the Ninth Circuit. Mathews, 424 U.S. 319; Gilbert, 520 U.S. at 932; Mallen, 486 U.S. at 242;Vanelli, 667 F.2d at 778-79; see also Bd. of Regents v. Roth, 408 U.S. 564 (1972) (public employee has a property interest in continued employment, such that his procedural due process rights attach). The Supreme Court and the Ninth Circuit have also long held that the Constitutional adequacy of the pre-termination hearing is determined, in part, by the process provided in the post-termination hearing. Loudermill, 470 U.S. at 547 n. 12;Clements, 69 F.3d at 332. In 1988, the Ninth Circuit expressly held that the law governing procedural due process, specifically regarding the process due at a pre-termination hearing and the factors used in determining whether the delay in a post-termination hearing was Constitutional, were clearly established. Brady, 859 F.2d at 1556. Given that there has been no intervening change in law on these issues, the law remained clearly established at the time of Steven Trevino's disciplinary proceedings.
Given this, it appears clear that a reasonable official in Luhring's position should have known that the process provided at the pre-termination hearing and the delay in the post-termination hearing violated Steven Trevino's rights. Defendant Luhring's motion is therefore denied on the issue of qualified immunity for the first cause of action.
4. Liability of LMUD
As discussed above, summary judgment is granted to plaintiffs against defendant LMUD to the extent that plaintiffs' first cause of action seeks injunctive relief. Defendant argues that LMUD cannot be liable for damages under Monell. The court denies defendants' motion on this issue.
Municipal liability may be established in one of three ways.See Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). A plaintiff may prove that the actions in question were conducted pursuant to an official custom, policy, or practice; that the individual who committed the act was an official with final policymaking authority; or that such an official ratified a subordinate's unconstitutional act. Id.; accord Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 691 (1978); Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). An agency may not be liable on a respondeat superior theory, but only if there is evidence that there is "an affirmative link between the policy and the specific constitutional violation alleged." City of Oklahoma v. Tuttle, 471 U.S. 808, 821 (1985).
In explaining the second route to municipal liability — that a municipal policymaker committed the harm to plaintiff — the Supreme Court has explained that a policymaker is one who has been granted final authority to enact the policy in question by the legislature or had that authority delegated to him by an official who possesses such authority. Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986). In Pembaur, the Court explained this rule in a city employment context. Using the example of a county sheriff, the Court held that the county would not be liable for employment decisions by the sheriff, even if the sheriff possessed the authority to unilaterally hire and fire. Id. at 483 n. 12. This did not constitute a "delegation" of county authority for Monell purposes. Id. Instead, the county would only be liable if it had delegated to the sheriff the final authority to "establish final employment policy." Id.
Here, the policy governing employee discipline was set forth in GMAP 2006-03. It was implemented pursuant to California Public Utility Code § 11926 and § 11937. Ferrannini Decl. ¶ 4, Ex. C. Section 11926 provides that the Board shall appoint the General Manager, who has "full charge and control of . . . the administration of business affairs of the district." Section 11937 provides that the powers of the General Manager include "administer[ing] the civil service system of the district and . . . to remove such employees, in accordance with the provisions of the civil service system." The statute does not provide that these decisions are subject to the Board's review. The civil service system is set forth in Public Utility Code §§ 12161-12167. It provides that the General Manager is the person responsible for setting a discipline hearing, appointing a committee to conduct the hearing, and review the committee's decision. Cal. Pub. Util. Code §§ 12164- 12166.
By statute, therefore, the General Manager is vested with the final decision-making authority over termination decisions. California statute grants this to the General Manager directly and provides for no review by the Board of the General Manager's discipline decisions. This is in accord with GMAP 2006-03, which provides that it is made effective only upon approval by the General Manager. The parties do not dispute that the authority of the General Manager was delegated by the Board to Luhring on March 14, 2007 with respect to Trevino's discipline proceedings. Accordingly, as of that date Luhring acted as the final policy maker for the District. See Pembaur, 475 U.S. at 482-83. LMUD may therefore be liable for damages on plaintiffs' first cause of action.
Moreover, even if one were to find that the Board rather than the General Manager possessed final policymaking authority over employment decisions, there is evidence from which a reasonable jury could find that the Board's own acts caused the plaintiffs' Constitutional deprivations. These acts include choosing Luhring to conduct the discipline proceedings despite the evidence that Luhring would not have reversed Cady's decision, choosing Gross as hearing officer for the post-termination hearing despite his possible conflict of interest, and possibly delaying the scheduling of regular Board meetings in May and June 2007, which a factfinder might infer was done for the purpose of delaying the post-termination hearing. See Cardenas Depo. at 28:13-29:5; Nagel Depo. at 25:21-26:13; Langston Depo. at 41:24-42:8; Luhring Depo. at 142:17-143:7.
5. Violation of Amy Trevino's Due Process Rights
Amy Trevino's procedural due process claims allege that the defendants violated her procedural and substantive due process rights by depriving her of her "constitutionally-protected right to be free from unconstitutional government-imposed impact to her marital relationship with her husband" and the "care, companionship, society, and guidance of her husband." Third Amended Complaint ¶¶ 45, 48, 69. As the court explained in its April 9, 2008 order, there is a recognized liberty interest in a person's companionship with a family member, such that the state's interference with it may constitute a violation of that person's substantive or procedural due process rights. See Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) (overruled on other grounds by Hodger-Durgin v. De La Fina, 199 F.3d 1037 (9th Cir. 1999)); see also Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985). This is cognizable as the basis of a § 1983 claim. Smith, 818 F.2d at 1420.
As they did in their motion to dismiss, the defendants again rely on Trujillo v. Bd. of County Commissioners, 768 F.2d 1168, 1190 (10th Cir. 1985) for the proposition that Amy Trevino's claim can only succeed if the defendants intended to interfere with her marital relationship. This holding has been expressly rejected by the Ninth Circuit. Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991). The court explained as much in its April 9, 2008 order. See Order, April 9, 2008 at 9. As the court explained, "[t]he plaintiff need not show that the actor acted with malice in order to succeed in this claim; a showing of deliberate indifference or "more than mere[] negligen[ce]" is sufficient."Id. (citations omitted)).
Defendants' counsel are reminded of their ethical duty to not knowingly make false representations of the law to the court. See Local Rule 83-180(e) (requiring counsel to comply with the American Bar Association's Model Rules of Professional Conduct where applicable); ABA Model Rules of Prof'l Conduct R. 3.3 Comment 4 ("Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.").
Amy Trevino's alleged due process violation appears to stem entirely from defendants' conduct in the termination of Steven Trevino. See Third Amended Complaint ¶¶ 45-75. As discussed above, there is insufficient evidence that defendant Cady caused any of the improprieties in the procedural due process afforded Steven Trevino. As such, he similarly could not reasonably be found to have caused any violation of Amy Trevino's liberty interest that may have resulted from the Constitutionally infirm termination proceedings.
Defendant Luhring argues that he are protected by qualified immunity because a reasonable official in his positions would not have known that his conduct violated Amy Trevino's constitutional rights. The court agrees.
Even if defendant Luhring's actions violated Amy Trevino's procedural due process rights, that she possessed such a right is not clearly established such that a reasonable official in Luhring's position would have known that his conduct violated those rights. See Saucier, 533 U.S. at 201-202. In order to be clearly established, "the contours of the right must be sufficiently clear" so as to be obvious to a reasonable official.Anderson v. Creighton, 483 U.S. 635, 640 (1978). To meet this standard, the right alleged to be violated cannot be only the "general constitutional guarantee (e.g., the Fourth Amendment freedom from unreasonable searches and seizures), but its application in a particular context." Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989) (citing Anderson, 483 U.S. at 639-40 and Todd v. United States, 849 F.2d 365, 370 (9th Cir. 1988)).
In Pearson v. Callahan, ___ U.S. ___, 2009 WL 128768 (Jan. 21, 2009), the Court held that the qualified immunity analysis need not proceed in the sequential manner set forth in Saucier.
There need not be case law directly on point in order for a right to be considered clearly established, but the extant law must make the right "apparent." Anderson, 483 U.S. at 640; Hope v. Pelzer, 536 U.S. 122 (2002).
Here, Amy Trevino's due process interest was not clearly established at the time of Luhring's actions. The court recognized in its April 9, 2008 order that there was no in-circuit precedent for the proposition that a person possesses a liberty interest in the companionship of her spouse. Order, April 9, 2008 at 10-12. While previous cases had dealt with this interest in the context of the parent-child relationship, the court concluded that the reasoning behind the recognition of this interest seemed to apply in equal force to a marital relationship, particularly given the purpose of the Klu Klux Klan Act and the Court's longstanding recognition of the importance of the marital relationship. Id.
The court cannot conclude that its understanding of this liberty interest is such an inevitable extension of the Circuit's precedent as to render Amy Trevino's liberty interest apparent to a reasonable state official. Although the analogy between the parent-child and marital relationship seems appropriate in the due process context, at the time of alleged deprivation no court in this circuit had held that the liberty interest extends to any relationship beyond that of natural parent and child. See, e.g.,Ward, 967 F.2d 280 (declining to extend it to a sibling relationship); Santos v. County of Los Angeles Dep't of Children and Family Servs., 299 F. Supp. 2d 1070, 1081 (C.D. Cal. 2004) (declining to extend to aunt-nephew relationship). In light of this, it would not have been apparent to a reasonable official in Luhring's position that Amy Trevino's liberty interests may have been violated as a result of the termination process provided to Steven Trevino.
Although Luhring is entitled to qualified immunity, that offers no defense to LMUD. Owen v. City of Independence, Missouri, 445 U.S. 662 (1980). As previously explained, there are facts from which a reasonable jury could conclude that LMUD is liable underMonell. Defendant LMUD's motion is therefore denied as to plaintiffs' first cause of action to the extent that it alleges violations of Amy Trevino's rights.
6. Plaintiffs' Causes of Action Based on Violations of Their Substantive Due Process Rights
In plaintiffs' second cause of action, they allege that defendants' conduct in terminating Steven Trevino violated plaintiffs' substantive due process rights. Their third cause of action alleges defendants conspired to commit these deprivations. In their opposition to defendants' motion, plaintiffs abandon their causes of action premised on violations of their substantive due process rights, conceding that they are moot. Pls.' Opp'n to Defs.' Mot. for Summ. J. at 27-28. Nevertheless, they contend that they are entitled to attorney's fees if they are found to be the prevailing parties on this claim, if plaintiffs' filing suit brought about the result they sought. See Clark v. City of Los Angeles, 803 F.2d 989, 990 (9th Cir. 1986). Plaintiffs do not themselves seek summary judgment on the issue of whether they are the prevailing parties on this claim and, in any event, whether a party is a prevailing party under § 1988 is not an issue for summary judgment. Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990).
Accordingly, defendants' motion for summary judgment is granted as to plaintiffs' second and third causes of action to the extent that they allege deprivations of plaintiffs' substantive due process rights. This grant of summary judgment does not preclude plaintiffs from presenting evidence at the appropriate time that they are entitled to attorneys' fees for these causes of action.
B. Intentional Infliction of Emotional Distress Claim
In their sixth cause of action, plaintiffs allege that defendants' conduct surrounding Steven Trevino's termination was extreme and outrageous and intended to cause plaintiffs emotional distress. Plaintiffs allege that it did cause them severe emotional distress. Third Amended Complaint ¶ 87.
Defendants seek summary judgment on two grounds. First, they contend that there is insufficient evidence from which a jury could conclude that defendants' conduct was "outrageous," which is an element of the cause of action. See Christensen v. Sup. Court, 54 Cal. 3d 868, 903 (1991). Second, they argue that there is insufficient evidence that the defendants acted with the intent to cause emotional distress. The court denies defendants' motion on this cause of action.
First, there is sufficient evidence of outrageous conduct such that a reasonable jury could find in plaintiffs' favor. California courts have held that employer conduct may be extreme and outrageous for the purpose of this tort. See, e.g., Rojo v. Kliger, 52 Cal. 3d 65 (1990). Here, defendants describe their conduct as "a quintessential personnel management decision." Defs.' Mot. for Summ. J. at 23. Reasonable minds could differ, however, as to whether this is an appropriate characterization. Viewing the evidence in the light most favorable to the plaintiffs, a jury could find that defendants' conduct, beginning with Cady's conduct on March 10, 2007 and through the period after Trevino was terminated and awaiting a post-termination hearing, was so outside the bounds of civilized behavior as to be outrageous.
Second, there is sufficient evidence of intent to permit a reasonable jury to find that this element has been met. As the California Supreme Court explained in Christensen, intentionality can be met with evidence that the defendant acted with reckless disregard to the plaintiffs' rights or that defendant's conduct was directed at plaintiffs. 54 Cal. 3d at 903-905 (collecting cases). Here, there is no dispute that defendants' conduct was directed at Steven Trevino, in the sense that his claim is premised on defendants' conduct in his termination proceedings. In other words, defendants were not acting as mere bystanders to Steven Trevino's injury. See id. at 904 (holding that where the defendants failed to intervene to stop the injury to another or where plaintiff was a bystander observing injury to another, there was insufficient evidence of intentionality).
Defendants' argument that plaintiffs' claim fails because plaintiffs failed to comply with the presentment requirement is not persuasive. As the court explained in its January 29, 2008 order, a plaintiff need not comply with the presentment requirement if he has pled that defendant committed an intentional tort and names the state agency and individual state actor as co-defendants. See Cal. Gov't Code § 815.3. Those elements were pled here.
There is also sufficient evidence from which a reasonable jury could find that defendants acted with reckless disregard to Amy Trevino's rights. In a similar case, the California Court of Appeals has held that an employer can be liable for intentional infliction of emotional distress to an employee's spouse resulting from the employee's wrongful termination and loss of medical benefits. Waye v. Rollins Int'l, Inc., 169 Cal. App. 3d 1, 17 (1985). Given that there is evidence that defendants knew that Steven Trevino was married and that Amy Trevino was receiving treatment for a serious health condition, see Luhring Depo. at 79:10-80:20, per Waye, this appears to suffice to permit a jury to conclude that defendants acted with reckless disregard to the emotional distress their conduct would cause her.
C. Claim for Failure to Provide Public Records
In their eighth cause of action, plaintiffs allege that defendant LMUD violated California Government Code § 53060.3 and Labor Code § 1198.5 by failing to provide Steven Trevino with his personnel file when he requested it. The parties agree that Steven Trevino requested his personnel file, through his counsel, on August 14, 2007 and that LMUD provided it to him on November 9, 2007. Defendant argues that there is no private right of action for these statutes.
California Government Code § 53060.6 provides that "[e]very employee of a local agency has the right to inspect personnel records pursuant to Section 1198.5 of the Labor Code." Labor Code § 1198.5 provides that, "[e]very employee has the right to inspect the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." The employer "shall" make the contents of the personnel records available to the employee "at reasonable intervals and at reasonable times." Cal. Labor Code § 1198.5(b). The statute also provides that the requirements therein are "minimum standards" for an employee's inspection of his personnel file. Id. § 1198.5(g).
Preliminarily, plaintiffs have tendered no facts from which a jury could find that Amy Trevino's statutory rights were violated. Plaintiffs do not allege, let alone tender facts that show, that Amy Trevino requested Steven Trevino's personnel file. Nor has she alleged or shown that she was damaged by LMUD's failure to timely provide the file. The plaintiffs apparently acknowledge as much, as they do not oppose defendants' motion as to Amy Trevino. Accordingly, defendants' motion is granted on plaintiffs' eighth cause of action as to Amy Trevino.
The court disagrees with defendants' contention that there is no private right of action for violations of these statutes. Under California law, a public entity is liable for injuries proximately caused by its failure to discharge a mandatory duty created by an enactment and designed to protect against the particular injury alleged, unless the public entity has been reasonably diligent in attempting to discharge its duty. Cal. Gov't Code § 815.6. Whether a statute imposes a mandatory duty is determined by considering the legislative intent, as evinced by the language of the statute as well as other factors. Nunn v. State of Cal., 35 Cal. 3d 616, 624-25 (1984).
Here, the language of the statutes at issue and other evidence of legislative intent indicate that LMUD had a mandatory duty to provide Steven Trevino access to his personnel file. Both Government Code § 53060.6 and Labor Code § 1198.5 frame the employer's duty in terms of the employee's right to view his personnel record. In light of this construction, it seems antithetical to the purpose of either statute that the legislature intended to suggest that that right could be disregarded by the employer. The court's interpretation is supported by the legislature's express intent in passing Government Code § 53060.6, where it found and declared that, "the right of employees to inspect personnel files is a fundamental right of employment. . . ." S.B. 1327 § 12 (2000). Finally, Labor Code § 1198.5 clarifies that the requirements contained therein were minimum standards, suggesting that the employer has a mandatory duty to adhere to them but discretion to create additional access to personnel files if it so chose.
The court is similarly unpersuaded that Steven Trevino does not fall under the ambit of the statutes and that the injury of which he complains is not the type of injury the statutes were meant to address. Although Steven Trevino had been terminated prior to his request for his personnel file, his request was made in advance of his post-termination hearing. Given the importance of the post-termination hearing both by due process standards, as discussed above, and within the procedures set forth in GMAP 2006-03, his interest in his file related to a key element of his discipline proceedings. Because the statutes were enacted for the purpose of protecting employees' employment rights and because the post-termination hearing is an essential component of those rights, Steven Trevino was undoubtedly in the class of persons the statute was designed to protect.
His injury was also the type that the statutes were intended to avoid. Defendants characterize plaintiff's injury simply as the incurrence of attorneys' fees. This seems to miss the point. Labor Code § 1198.5 expressly requires that employers make personnel files available "at reasonable intervals and at reasonable times." Cal. Labor Code § 1198.5(b). In other words, timely inspection of the file is an interest acknowledged and protected by the statute. Necessarily, then, the harm the legislature sought to avoid was the employee having to expend time and resources to convince or cajole his employer into providing him access to his personnel file. That is essentially the harm Steven Trevino has presented evidence of here. Defendants' motion is therefore denied on plaintiff's eighth cause of action as to Steven Trevino.
IV. CONCLUSION
For the reasons stated herein, defendants' motion for summary judgment (Doc. No. 84) is GRANTED IN PART AND DENIED IN PART. Plaintiffs' motion for partial summary judgment (Doc. No. 88) is GRANTED IN PART AND DENIED IN PART.
Defendant LMUD is ORDERED to reinstate plaintiff Steven Trevino to the position he held at the time of his termination.
IT IS SO ORDERED.