Opinion
CV-22-00177-PHX-DGC
10-14-2022
Ian Day, Plaintiff, v. City of Phoenix, an Arizona municipality, Defendant.
ORDER
David G. Campbell, Senior United States District Judge
Plaintiff Ian Day asserts a free speech retaliation claim against the City of Phoenix pursuant to 42 U.S.C. § 1983. Doc. 26. Defendant has filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 29. The motion is fully briefed. Docs. 30, 32. The Court will deny Plaintiff's request for oral argument because it rules in his favor.
I. Background.
Plaintiff has filed three versions of his complaint. The operative version is his second amended complaint, filed on June 8, 2022. See Doc. 26.
In 2015, Plaintiff was hired by Defendant as a senior water quality inspector in the environmental services division of the Defendant's water department. Doc. 26 ¶ 26. The following facts are taken from his second amended complaint.
In late 2018, while participating in an investigation of a business named Closed Loop Recovery, Plaintiff discovered blatant violations of environmental law and learned that his supervisors had disregarded the violations during prior inspections. Id. ¶¶ 29-36. In March 2019, Plaintiff discovered unlawful storage of toxic waste at Far West Supply, but he was pressured by his supervisors to shut down the inquiry and issue a false report. When he refused, he received recriminations and accusations from his supervisors. Id. ¶¶ 37-50. Over the next six months, Plaintiff continued to uncover issues within the water department involving collusion, incompetence, or improper behavior by City employees and called these to the attention of his supervisors, but he earned only criticism. Id. ¶¶ 4950, 53-58, 63-64-78, 81, 84-86, 90, 102-106.
When his supervisors failed to act, Plaintiff escalated his reports to higher City officials, including City Manager Edward Zuercher, and outside of his chain of command to the City's Office of Environmental Programs and the City of Phoenix Integrity Committee, of which Zuercher was a member and ultimate policymaker. Id. These reports resulted in no change.
As a result, Plaintiff contacted the Arizona Department of Environmental Quality in March 2019. Id. ¶ 37. Seven months later Plaintiff shared his concerns with an Arizona State Senator's office. Id. ¶ 110. In December 2019, he reported his concerns to the U.S. Environmental Protection Agency (id. ¶ 114), and in May 2020 to the Arizona Attorney General (id. ¶ 115).
Plaintiff claims that Defendant retaliated against him beginning in September 2019 for reporting to these outside individuals and entities. The retaliation included coaching sessions, disciplinary “notices of inquiry,” negative performance reviews, suspension, a cease-and-desist order directing him to end his communications, administrative leave, and his ultimate termination in April 2021. Id. ¶¶ 79, 98, 107, 116-17, 120, 122, 136-39, 150.
II. Legal Standard.
Under Rule 12(b)(6), the well-pled factual allegations of the complaint are taken as true and construed in the light most favorable to Plaintiff. See Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although the plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully!,]” it “is not akin to a ‘probability requirement!.]'” Id.
III. Discussion.
Municipalities and local government units are considered persons under § 1983 and may be liable for causing a constitutional deprivation. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). But a municipality “cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under [§ 1983] under a respondeat superior theory.” Monell, 436 U.S. at 691; see Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (same).
A. Deprivation of a Constitutional Right.
Plaintiff claims Defendant deprived him of his First Amendment right to engage in protected speech. Defendant argues, “[a]s a preliminary matter,” that Plaintiff has not alleged a deprivation of his First Amendment rights because he has not provided sufficient facts to support his claim that multiple city employees conspired against him. Docs. 29 at 4-5; 32 at 2. This argument misses the mark. To state a First Amendment retaliation claim against a government employer, a complaint must show that (1) the employee engaged in constitutionally protected speech, (2) the employer took an adverse employment action, and (3) the speech was the motivating factor for the adverse employment action. Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir. 2007). Defendant does not dispute that Plaintiff's reports were constitutionally protected or that it took disciplinary action against him.
Defendant does contend that Plaintiff fails to allege any connection between his protected activities and the discipline. Doc. 29 at ¶¶ 12-13; 32 at 3-4, 9-10. A complaint may sufficiently plead causation by showing “proximity in time between the protected speech and the alleged retaliation.” Ulrich, 308 F.3d at 980. Plaintiff alleges that Defendant's retaliatory actions started three months after his first instance of protected speech and continued as he made additional complaints. Doc. 26 ¶¶ 51, 107, 117, 129, 132. Temporal proximity between protected conduct and adverse actions can sufficiently suggest that a plaintiff's speech motivated adverse employment actions. See Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003) (finding three to eight months “easily within a time range to support an inference of retaliation and declining to adopt either a “per se too long” or “per se short enough” rule); Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002 (“[A]n eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.”); Peyton v. Smith, No. 5:19-CV-05871-EJD, 2022 WL 1215193 (N.D. Cal. Apr. 25, 2022) (finding that the plaintiff adequately pled a causal connection when the alleged adverse employment action occurred in the two months following the protected speech). Plaintiff has adequately pled a causal link between his protected conduct and his discipline.
Defendant's reply brief places considerable emphasis on the fact that Plaintiff asserted the same adverse events in a Title VII claim filed administratively after his termination, that is now time-barred. Doc. 32 at 3-4. But Defendant never explains why the adverse events cannot give rise both to Title VII discrimination and § 1983 retaliation claims.
B. Final Policymaker's Ratification.
Among other grounds, a municipality may be liable under § 1983 when a final policymaker of the municipality knowingly ratifies retaliatory actions taken by subordinates. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012); Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Plaintiff alleges that City Manager Edward Zuercher held final policymaking authority for Defendant and that he knowingly ratified the disciplinary actions of others. Defendant does not dispute that Zuercher was a final policymaker. Plaintiff alleges (1) Zuercher was a member of Defendant's Integrity Committee (Doc. 26 ¶ 49) to which Plaintiff brought his allegations of misconduct (id. ¶¶ 49, 57-58, 64, 73, 86); (2) the Committee improperly closed Plaintiff's complaint, “outed him” to his supervisors (i.e., reported to them that he had made the complaints), and assisted the very employees whom Plaintiff had accused of improper retaliation against him (id. ¶¶ 60-61, 92-93, 109, 113, 148); (3) Plaintiff reached out directly to Zuercher and asked him to intervene in the situation, advising Zuercher that he was the whistleblower who had reported to the State Senate, that his misconduct allegations had not been adequately investigated, and that he was suffering retaliation by his supervisors as a result (id. ¶ 130); (4) Zuercher assured Plaintiff that he would have an independent attorney investigate Plaintiff's claims (id. ¶ 131); and (5) the day after Plaintiff was terminated he again asked Zuercher to intervene, but Zuercher did not respond (id. ¶ 153).
These allegations, taken as true and construed in Plaintiff's favor, show that Zuercher personally knew of Plaintiff's protected conduct and the discipline imposed on him; participated in the Committee that failed to protect Plaintiff's constitutional rights; either reviewed an independent investigation that uncovered these facts or failed to institute the investigation as he promised Plaintiff; and, with all of this knowledge, knowingly permitted the retaliatory discipline to go forward. These facts sufficiently state a claim against Defendant based on its final policymaker's ratification of the violation of Plaintiff's constitutional rights.
To establish liability by ratification, Plaintiff must show that the policymaker approved a subordinate's decision and the basis for it. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). “The policymaker must have knowledge of the constitutional violation and actually approve of it.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). Ratification may be shown through the policymaker's active role in the constitutional violation. Id. (finding ratification because an assistant superintendent “actively participated in the disciplining]” of a plaintiff by requesting all related documents, acting as liaison with outside counsel, and collaborating with others on the specific sanctions); Hammond v. Cnty. of Madera, 859 F.2d 797, 803 (9th Cir. 1988), abrogated on other grounds by Wood v. Ostrander, 851 F.2d 1212 (9th Cir. 1988) (finding ratification because a municipal board “actively participated in the deprivation of [the plaintiffs'] property rights” by accepting and approving related documents). Plaintiff has adequately alleged that Zuercher was actively involved during his discipline. And as noted earlier, the temporal proximity of the discipline to Plaintiff's protected conduct is sufficient to show causation. Facts developed during discovery may cast a different light on these allegations, but for now they are sufficient for the Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Defendant relies on Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992), to argue that “the mere fact that the City Manager did not overrule the discipline cannot form the basis of municipal liability under section 1983.” Doc. 29 ¶ 10-11. But Gillette concerned a final policymaker's “overruling] the unconstitutional discretionary acts of subordinates,” not the policymaker's active role in the decision. 979 F.2d at 1348.
Plaintiff alleges other grounds for Defendant's liability and the parties make other argument in their briefs, but the foregoing discussion is sufficient to show that Plaintiff's second amended complaint must survive Defendant's motion to dismiss. The Court will address Plaintiff's claims in more detail if Defendant moves for summary judgment at the close of discovery.
IT IS ORDERED that Defendant's motion to dismiss (Doc. 29) is denied.