Opinion
No. C 97-2320 VRW
May 3, 2002
ORDER
Defendant Marsha Gaddini moves for summary judgment. Doc #61. For the reasons set forth below, defendant's motion (Doc #61) is GRANTED.
I
On June 20, 1997, plaintiff, a parole agent for the California Department of Corrections, filed a complaint against defendant claiming that defendant took retaliatory measures against him in violation of Title VII and 42 U.S.C. § 1983. Doc #1. On November 5, 1997, defendant moved to dismiss plaintiff's complaint pursuant to FRCP 12 (b)(6). Doc #5. The court granted defendant's motion to dismiss plaintiff's Title VII claim, finding that plaintiff had failed to allege that he had pursued or exhausted the appropriate administrative remedies. Doc #9. The court dismissed plaintiff's Title VII claim without prejudice. See id. The court, however, denied defendant's motion to dismiss plaintiff's section 1983 claim. See id. Plaintiff did not thereafter amend to pursue further a Title VII claim.
On April 4, 1999, defendant filed a motion for summary judgment on the remaining section 1983 claim. Doc #26. Ruling from the bench, the court found that the speech that allegedly caused defendant to retaliate against plaintiff did not pertain to a matter of public concern and, therefore, that the speech could not support a section 1983 claim. Docs ##41 and 45.
Plaintiff appealed. Doc #47. On May 29, 2001, the Ninth Circuit reversed the court's grant of summary judgment, Doc #49, holding that, "for purposes of summary judgment, (plaintiff's] complaints relate to a matter of public concern." See id at 3. The court of appeals determined that plaintiff's speech, which involved criticism of the work of another parol agent, constituted speech on a matter of public concern for the purposes of summary judgment, because the comments were motivated by a concern for public safety. See id at 2. The court instructed the district court to consider on remand whether the protected speech caused the allegedly retaliatory actions. See id at 3.
In the instant motion, defendant contends that plaintiff has not produced evidence creating a triable issue of material fact whether the speech at issue caused the allegedly retaliatory actions. Doc #61.
II
Prior to April 1995, plaintiff worked in the San Leandro unit of the Parole and Community Services Division of the California Department of Corrections. See Bonomi Decl (Doc #32) at ¶ 1. On April 5, 1995, plaintiff was transferred out of the San Leandro office and began working in San Francisco. See Doc #62, Exh C at 1. At the time of plaintiff's transfer, defendant worked in San Francisco as a parole administrator. See Gaddini Decl (Doc #62, Exh E) at ¶ 1. Defendant's job involved supervising various parole units. Defendant was not plaintiff's immediate supervisor. See id.
On plaintiff's first day in the San Francisco office, defendant brought plaintiff into her office and asked him why the region had such a poor opinion of him. See Bonomi Decl (Doc #32) at ¶ 5. Plaintiff explained that he had reported a supervisor for fraudulent overtime and the charges had been sustained. See id.
Later, in April 1995, defendant conducted a review of plaintiff's caseload roster. See id at ¶ 5. Other agents in the San Francisco office were also subjected to a caseload roster review during the same time period. See Pl Depo (Doc #62, Exh A) at 499:12-500:6. On or about May 16, 1995, regional administrator Ron Chun prepared a memorandum that informed plaintiff that plaintiff would be removed from various special assignments because a review of his work in San Leandro and San Francisco showed that he was not meeting his caseload requirements. See Chun Memo (Doc #64, Exh C). After receiving the memorandum from Chun, plaintiff privately expressed alarm to defendant about how his predecessor, Agent Roberto Levario, had failed to maintain adequate records of the parolees he was supervising. See Doc #62, Exh C at 2. It is this complaint that plaintiff urges, and the court of appeals accepted for the purposes of summary judgment, was a matter of "public concern." See Bonomi Decl (Doc #32) at ¶¶ 4 et seq. In his declaration, plaintiff relates two episodes in which inadequate or poor record keeping by parol agents resulted in violence by parolees. Id at ¶¶ 6-7. One of these involved the slaying of a 70 year-old woman in San Francisco's "Western Edition (sic]". Id at ¶ 7. In any event, according to plaintiff a variety of retaliatory actions resulted from his complaints. See Pl Op (Doc #63) at 12.
In addition to defendant's caseload roaster review in April 1995 and the May 16, 1995, memorandum from Chun, plaintiff mentions a variety of other incidents that he alleges constitute retaliation for his criticism of his predecessor's work. See id at 5-7 and 11-15. These incidents include: (1) denial on December 18, 1995, of plaintiff's grievance requesting overtime compensation; (2) issuance of a letter of counseling on August 6, 1996; (3) denial in late 1996 of his application for assignment to the Parolee at Large Team; (4) an investigation of a complaint made against plaintiff by parolee Kelly Whipple in 1997; (5) an attack on May 12, 1997, by a parolee who plaintiff was transporting to San Francisco county jail; (6) an interview by defendant of plaintiff regarding parolee Derol Robie on October 23, 1998; and (7) a handwritten memo by Anthony Raya, plaintiff's direct supervisor, discussing the possibility of in depth counseling and a fitness for duty evaluation that was mailed to plaintiff's house.
In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmoving party would bear the burden of proof at trial, the moving party may meet its burden by pointing out — not by a conclusory statement but by demonstration — the absence of evidence to support the nonmoving party's case. Id at 325-26. Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).
The proper approach for considering a summary judgment motion by a defendant in cases in which "a government employee alleges that he has been punished in retaliation for exercising his First Amendment rights" was recently clarified in the Ninth Circuit in Keyser v. Sacramento City Unified School District, 265 F.3d 741, 750 (9th Cir 2001). In Keyser, the court of appeals held that when a government employee levies such allegations, district courts should engage in a three part inquiry.
To prevail, an employee must prove (1) that the conduct at issue is constitutionally protected, and (2) that it was a substantial or motivating factor in the [punishment]. If the employee discharges that burden, (3) the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct.
Id, quoting Board of Bounty Commissioners v. Umbehr, 518 U.S. 668, 675 (1996), enumeration added by court of appeals.
Summary judgment motions brought by defendants in such cases are often directed, as in Keyser and the instant matter, at the second part of this inquiry: whether the protected speech was a substantial or motivating factor in the adverse employment action. In Keyser, the court of appeals determined that a plaintiff could not establish the existence of a triable issue of fact whether the speech was a substantial or motivating factor in the adverse employment action simply by producing evidence indicating that those taking the adverse employment action were aware of the speech in question. Rather, in order to survive summary judgment a plaintiff must make some further showing, by pointing to direct or circumstantial evidence indicating that the speech was a substantial or motivating factor in the adverse employment action. The Keyser court further noted that, in the absence of direct evidence, plaintiffs that have provided circumstantial evidence sufficient to preclude summary judgment have "produced evidence of at least one of the following three types." Id at 751.
First, the Ninth Circuit has determined that, in such cases, a plaintiff created a triable issue of fact when the plaintiff "produced the additional evidence that the `proximity in time between the protected action and the allegedly retaliatory employment decision' was one in which a `jury logically could infer [that the plaintiff] was terminated in retaliation for speech.'" Id, quoting Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir 1988). Second, the Ninth Circuit has determined that a plaintiff created a triable issue of fact when the plaintiff "produced the additional evidence that his employer expressed opposition to his speech, either to him or to others." Id. In Schwartzman, for example, the Ninth Circuit affirmed a denial of summary judgment because plaintiff produced a memorandum from his employer "warning him that he was not authorized to speak out." Schwartzman, 846 F.2d at 1212. Third, and finally, the Ninth Circuit has determined that a plaintiff created a triable issue of fact when the plaintiff "produced the additional evidence that his employer's proffered explanations for the adverse employment action were false and pretextual." Id.
As noted, the Keyser opinion provides a clear guide to the district court's analysis of summary judgment motions directed at claims of retaliation by government employees. If a plaintiff provides any of the additional circumstantial evidence outlined above, summary judgment for a defendant is generally inappropriate. In this case, on the other hand, the court concludes that plaintiff has "not produced any such additional evidence." Keyser, 265 F.3d at 752. Accordingly, summary judgment is appropriate.
III
The relationship between the speech and the adverse employment action must be sufficiently proximate so that a "jury could logically infer [that the plaintiff] was terminated in retaliation for his speech." Schwartzman, 846 F.2d at 1212. Two of the incidents in this case, defendant's April 1995 caseload roster review and Chun's May 16, 1995, memorandum, appear to have occurred before the relevant speech. The remaining allegedly retaliatory incidents occurred seven months to two years after the protected speech.
Plaintiff's papers are ambiguous about the timing of his comments; in fact, plaintiff seems to be studiously vague on this point. Before the hearing on defendant's motion, there did not appear to be any dispute that defendant's comments to Gaddini occurred on May 17, 1995, after plaintiff received Chun's memo. See Pl Rep to Sp Int (Doc #62, Exh C) at 2. At the hearing, plaintiff's counsel stated for the first time, although plaintiff had every opportunity to contest this point in his opposition papers, that plaintiff's statement that these comments were made in May 1995 may have been a "typo" and that the comments actually were made in April 1995, before the caseload roster review. This point is somewhat significant. After May 1995, the next adverse employment action identified by plaintiff did not occur until December 1995, almost seven months after the protected speech.
As noted, plaintiff's opposition papers do not specify the date of plaintiff's comments about Levario to defendant, although plaintiff does clarify that the speech in question involved "plaintiff's statements to defendant Gaddini." Doc #63 at 1, emphasis added. Nevertheless, the record is clear that plaintiff's comments to defendant occurred after plaintiff received the Chun memorandum and there is no reasonable possibility that the court has been misled in reaching this determination by the presence of a "typo." Defendant's special interrogatories were obviously intended to clarify plaintiff's allegations and plaintiff's responses must be construed in light of that quite proper objective. Plaintiff responded:
On May 17, 1995, I received a confidential memorandum with the subject Roster Review from Ron Chun. * * * The same date, May 17, 1995, Marsha Gaddini, the Acting Administrator came into my office to discuss the memo, I informed her that the prior agent did not use a field book * * *
See Pl Rep to Sp Int (Doc #62, Exh C) at 2.
If any further support for the May 17 date of the protected speech is required, plaintiff provided it at his deposition. Plaintiff's theory of this case has evolved considerably. At his deposition, plaintiff was still making the claim, which has since been abandoned, that the Chun memo was adverse employment action in retaliation for speech made prior to his transfer to San Francisco. Plaintiff was asked: "What other wrongdoing, other than your reporting retaliation to Mr Meeks and Mr Snipes' inappropriate behavior, did you report which motivated the actions set forth in Ron Chun's memo of May 16th, 1995?" Pl Depo (Doc #39, Exh B) at 444:21-25. Plaintiff replied "None that I can recall right now." Id at 445:5.
In short, there can be no reasonable dispute that the alleged protected speech in question occurred on May 17, 1995, after the April caseload roster review and the Chun memo. As noted, the next allegedly retaliatory action, the denial of plaintiff's overtime grievance, did not occur until December 1995, seven months after the comments to Gaddini that plaintiff has identified as the protected speech at issue. The next action, the August 6, 1996, issuance of a letter of counseling, did not occur for yet another eight months.
In Keyser, the Ninth Circuit noted that in an earlier decision, Erickson v. Pierce County, 960 F.2d 801, 805 (9th Cir 1992), the appeals court had granted judgment for the employer notwithstanding the verdict, because the appeals court determined that plaintiff failed to produce sufficient circumstantial evidence, even though the adverse employment action occurred within three months of the protected speech. See Keyser, 265 F.3d at 752, citing Erickson, 960 F.2d at 803. After noting that the proximity in Keyser was considerably longer than three months, the Keyser court held that "[g]iven that the proximity in this case was much longer than the period held insufficient in Erickson, (the plaintiffs'] claims fail a fortiori." Keyser, 265 F.3d at 752.
It is not clear exactly how to interpret this analysis. Clearly, as the proximity in this case is also much longer than that held insufficient in Erickson, plaintiff cannot rely on circumstantial evidence of proximity to create a triable issue of material fact. A fair reading of the Keyser opinion, however, is that when a plaintiff is relying on circumstantial evidence, there must be some showing of a close proximity between the protected action and the allegedly retaliatory actions, before the court will consider plaintiff's other proffered circumstantial evidence. Noting the dissent's suggestion that the plaintiff had, in fact, produced other evidence, the Keyser court stated that much of this evidence simply amounted to evidence of the adverse employment actions themselves and that such actions "are probative of motivation only if one can read something from the proximity between the actions and the protected activity. And as noted above, the proximity in this case is far too long to survive summary judgment." Id at 753 n6.
Yet the Keyser court also considered, albeit briefly, evidence in the record of the two other types of circumstantial evidence that courts have found precluded summary judgment for defendants. Similarly, this court will also consider plaintiff's attempt to present other types of circumstantial evidence. The court notes, however, if the proximity in this case, of seven months to two years, does not make plaintiff's claims fail a fortiori, it poses an obstacle to creation of a triable issue.
Plaintiff has not provided sufficient evidence that the reasons given for the adverse employment actions were false and pretextual. Plaintiff does allege that defendant was romantically involved with Levario, which defendant denies. See Gaddini Depo (Doc #64, Exh P) at 15. Such colorful but unsupported allegations are insufficient at the summary judgment stage. In this case, such allegations are rank speculation about others' motivation unbuttressed by facts that would allow a jury to draw an inference that the motivation exists. Such petty suspicions do not create a triable issue of fact. The Ninth Circuit has determined that, at a minimum, circumstantial evidence that the reasons given for adverse actions were false and pretextual must be "specific" and "substantial" in order to create a genuine issue of material fact on the issue of pretext. Keyser, 265 F.3d at 753 n5, citing Blue v Widnall, 162 F.3d 541, 546 (9th Cir 1998). Plaintiff has not provided specific and substantial evidence that defendant was, in fact, romantically involved with Levario, much less that any romantic relationship was the real reason for any adverse employment actions.
Finally, plaintiff has essentially conceded that the allegedly retaliatory actions were justifiable on independent grounds. Plaintiff, to provide but one example, admitted in his deposition that his overtime grievance, which was denied for untimeliness, was untimely. See Pl Depo (Doc #62, Exh A) at 498:6-12.
Neither has plaintiff produced evidence that defendant expressed opposition to his speech. The only allegation plaintiff presents that could be so interpreted is the claim that, after plaintiff made the protected comments about Levario to defendant, defendant "retorted to him that `Agent Levario was so organized that he didn't need a Field Book.'" Pl Opp B.R. (Doc #63) at 6. This retort, however, does not qualify as the type of opposition that has been determined to be sufficient to preclude summary judgment. Rather than an expression of direct opposition to an employee's decision to speak, defendant's alleged retort, even if somewhat hot-headed, was an expression of disagreement with the substance of plaintiff's comment. Such a response does not constitute evidence of opposition so as to create a triable issue of fact of retaliation. Compare Schwartzman, 846 F.2d at 1212 (plaintiff produced memorandum from plaintiff's employer "warning him that he was not authorized to speak out"); Allen v. Scribner, 812 F.2d 426, 434-35 (9th Cir 1987) (plaintiff produced evidence that his employer told co-workers that plaintiff should be removed because he expressed his opinions).
Moreover, if such comments by an employer could ever be sufficient to create a triable issue of fact on retaliation, the court concludes that, in light of the circumstances of this case, no reasonable juror could determine that such statements were evidence of retaliation. In the instant matter, because of the length of time between the protected speech and the allegedly retaliatory actions, the innocuousness of the speech in question and, indeed, the relative innocuousness of the allegedly retaliatory actions, defendant's retort, or any other similar statements, simply does not give rise to a triable issue of fact of retaliation.
Accordingly, because plaintiff has failed to provide any direct or additional circumstantial evidence, beyond defendant's knowledge of the protected speech, summary judgment is appropriate against plaintiff on his retaliation claim.
Because of the court's determination that plaintiff's evidence is insufficient to withstand summary judgment, it is not necessary to consider defendant's alternate defense of qualified immunity. In any event, qualified immunity does not appear to be a ground upon which to base summary judgment in this case. Defendant contends that even if plaintiff suffered a violation of a constitutional right, the right was not clearly established because "plaintiff had no clearly-established constitutional right to avoid his employer's directive to repair the state of his caseload, regardless of who was at fault, even if his criticism concerned matters of public concern." Def B.R. (Doc #61) at 24. Defendant's contention, however, misidentifies the right in question.
The right plaintiff alleges was violated is not the right to ignore criticism of his work, but to not be retaliated against for expressing criticism of the work of a fellow parol officer by pretextual disciplinary actions. The court has little doubt that this right is well established. See, e g, Keyser, 265 F.3d at 747.
IV
Defendant's motion for summary judgment (Doc #61) is GRANTED. The clerk is directed to close the file and terminate all pending motions.