Harrell v. City of Gilroy

PATRICIA HARRELL, Plaintiff, v. CITY OF GILROY, et al., Defendants.

Case No. 17-CV-05204-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

August 13, 2018

ORDER GRANTING MOTIONS TO DISMISS THE FIRST AMENDED COMPLAINT, DENYING REMAINING ARGUMENT FROM MOTION TO STRIKE AS MOOT

Re: Dkt. Nos. 17, 32, 34

Before the Court are Defendants Gilroy Police Chief Denise Turner, Officer Royce Heath, Captain Joseph Deras, Captain Kurt Svardal, Communications Supervisor Steven Ynzunza, and Human Resources Director/Risk Manager LeAnn McPhillips' motion to dismiss the first amended complaint; Defendants American Federation of State, County, and Municipal Employees ("AFSCME") and AFSCME Counsel 57/AFSCME Local 101 Organizing Director John Tucker's motion to dismiss the first amended complaint; and the part of Defendants City of Gilroy and Gilroy Police Department's motion to strike the first amended complaint upon which the Court previously deferred ruling. ECF Nos. 17, 32, 34. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court grants both motions to dismiss the FAC and denies as moot the argument remaining from the motion to strike.

I. FACTUAL BACKGROUND

Plaintiff Patricia Harrell ("Harrell") worked as a Public Safety Communicator for the Gilroy Police Department ("GPD") for about 26 years. First Amended Complaint ("FAC"), ECF No. 16 ¶ 19. Harrell was terminated on March 21, 2016, based on Harrell's alleged misconduct toward Harrell's trainees. Id. ¶ 68. Harrell disputes that she mistreated her trainees.

Harrell alleges that the GPD had a pervasive culture of sexual misconduct and that she was fired in retaliation for her refusal to condone or engage in the culture of sexual misconduct. Id. ¶¶ 23-26. Harrell alleges a range of sexual misconduct, including police officers having sex with members of the Gilroy Explorers, a group for 14 to 21 year olds; sexually explicit conversations between employees at work; supervisors watching pornography in front of their employees outside the workplace; and nudity at work-sponsored social events, among other things. Id. ¶ 24.

On November 20, 2005, Harrell left her shift 14 minutes early because a call came in that GPD Officer Ray Hernandez, a close friend of Harrell's, was unconscious and not breathing. Id. ¶ 28-29. Harrell left work to go to Officer Hernandez's home. Id. ¶ 30. Officer Hernandez died that night from a heart attack. Harrell was later disciplined for leaving her post early. She contends the discipline was unwarranted. Id. ¶¶ 30-31.

In about 2006, Harrell insisted that officers follow protocol in their radio communications with dispatch. Harrell alleges that in retaliation for her efforts to instill professionalism, the officers refused to acknowledge her presence, speak to her, or look at her. GPD Officer Geoff Guerin later tearfully acknowledged to Harrell that the officers had been instructed by their Sergeant to ignore Harrell. Id. ¶¶ 34-37.

Harrell alleges that in 2008 she was investigated and received a written reprimand after warning Julie Ines, a GPD employee, to be careful around GPD Officer Heath and Ms. Arthur, another GPD employee, whom Harrell alleges are frequently involved in sexual misconduct. Id. ¶¶ 43-50. Harrell alleges that her supervisors knew of and acknowledged Ms. Arthur'sinappropriate behavior but nevertheless disciplined Harrell. Id. ¶¶ 43-50.

Harrell contends that she received threatening notes in her mailbox at work and on her car. The note on her car allegedly said, "Better watch your back, bitch." Id. ¶ 72.

Harrell also alleges that she was discriminated based on her age and gender. Id. ¶ 38-42. In October 2007, GPD Captain Deras allegedly told Harrell that "You and the people who have been here a long time think your shit don't stink." Id. ¶ 38. Harrell contends that even though she was the most senior dispatcher, and thus was entitled by custom to choose which shifts to work, Officer Deras began assigning her to undesirable night and weekend shifts and allowed younger, less experienced female dispatchers to take the more favorable weekday shifts. Id. ¶ 41. Officer Deras also overloaded Harrell with dispatch duties, training duties, and overtime. Id. ¶ 42. When Harrell complained that the work was too much for one person to handle, she was subjected to discipline. Id.

Harrell alleges that she was investigated without justification again in 2015 and was terminated on March 21, 2016. Id. ¶¶ 51-68. The investigation was related to Harrell's alleged mistreatment of her trainees and an alleged discriminatory remark, in which Harrell commented to one of her Latina trainees that the trainee "might be mistaken for the cleaning lady." Id. ¶¶ 54-55. Harrell denies that she mistreated her trainees and argues that the remark was taken out of context. Harrell states that Harrell is half Salvadoran and half Native American, and had told the trainee that Harrell had been mistaken for a cleaning lady when at a public safety conference in Colorado. When the trainee commented that people "sometimes look[ed] at [her] funny" in her gated community, Harrell commented that perhaps the other residents mistook the trainee for the cleaning lady, as had happened to Harrell in Colorado. Id. ¶ 55.

Harrell alleges that she requested assistance from AFSCME, her union, in handling the 2015 investigation, but the union was not responsive. Id. ¶¶ 75-76. AFSCME Counsel 57/AFSCME Local 101 Organizing Director John Tucker then represented to Harrell between March 2016 and May 2016 that the union would take over her case challenging her termination.Id. ¶¶ 76-80. However, on July 26, 2016, without notice or warning, Tucker informed Harrell that the union no longer felt her case was winnable and thus that the union would no longer represent her. Id. ¶ 81. On August 1, 2016, Harrell requested from Tucker copies of legal analyses, notes from interviews, and other documentation related to her case. Id. ¶ 82. On August 30, 2016, Tucker responded that "there are no written documents that contain a legal analysis of your case." Id. ¶ 83.

On December 29, 2016, Harrell filed complaints with the EEOC and California's Department of Fair Employment and Housing ("DFEH") against the City of Gilroy, GPD Chief Turner, GPD Officer Heath, and GPD Captain Deras, in which she alleged discrimination based on her age and sex. Ex. A to FAC, ECF No. 16-1. On May 17, 2017, Harrell's counsel amended the DFEH complaint to add respondents Tucker, GPD Communications Supervisor Ynzunza, GPD Human Resources Director/Risk Manager McPhillips, GPD Captain Scott Smithee (not a defendant in the instant case), and AFSCME. See ECF No. 40-2 at 27. However, instead of adding AFSCME, DFEH added "Joseph Guzynski," the Western Regional Director of AFSCME International. See id. at 31; ECF No. 43 at 2. Harrell's counsel wrote to DFEH for clarification and explained that the listed respondent should be AFSCME. ECF No. 40-2 at 31. Shahmaila Khan, a DFEH employee, responded that "[t]he respondent has to be a name and Joseph was listed as a contact person for AFSCME." Id. at 30. Harrell's counsel thanked Ms. Khan for the clarification and did not press the issue further. Id. On May 24, 2017, Harrell received a right to sue notice from DFEH. Id. at 12.

II. PROCEDURAL HISTORY

On August 7, 2017, Harrell filed a complaint in state court against the City of Gilroy, GPD (which is a department of the City of Gilroy), the AFSCME, and Does 1-50. ECF No. 1-1 at 6. The state court complaint contained 13 causes of action: (1) age discrimination (Cal. Gov. Code § 12940); (2) gender discrimination (Cal. Gov. Code § 12940); (3) sexual harassment (Cal. Gov. Code § 12940); (4) failure to prevent discrimination and harassment (Cal. Gov. Code § 12940(k));(5) whistleblower retaliation (Cal. Labor Code § 1102.5); (6) retaliation (Cal. Gov. Code § 12940); (7) wrongful termination in violation of public policy; (8) breach of duty of fair representation; (9) negligent and intentional misrepresentation; (10) negligent and intentional infliction of emotional distress; (11) breach of written and implied-in-fact contract; (12) breach of the implied covenant of good faith and fair dealing; and (13) federal civil rights violation (42 U.S.C. § 1983). The first through seventh and thirteenth causes of action were against the City of Gilroy and GPD. The eighth and ninth causes of action were against AFSCME. The tenth through twelfth causes of action were against all defendants. On September 8, 2017, the City of Gilroy and GPD (collectively, "the Gilroy Defendants") removed the case to federal court. ECF No. 1.

On September 15, 2017, the Gilroy Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike portions of the complaint pursuant to Federal Rule of Civil Procedure 12(f). ECF No. 6 ("MTD"). The Gilroy Defendants argued that Harrell's seventh, eleventh, and twelfth causes of action failed as a matter of law because Harrell was a public employee. MTD at 3-4. The Gilroy Defendants also argued that Harrell's fifth, seventh, tenth, eleventh, and twelfth causes of action must be dismissed because Harrell failed to allege timely compliance with the California Tort Claims Act. Id. at 4-5. Finally, the Gilroy Defendants argued that Harrell's prayer for punitive damages should be stricken pursuant to Rule 12(f) because punitive damages cannot be recovered against a public entity as a matter of law. Id. at 5-6.

Harrell's response to the motion to dismiss and strike was due September 29, 2017. Harrell did not file a response. On October 6, 2017, the City of Gilroy and GPD filed a reply noting Harrell's failure to oppose the motion to dismiss and strike. ECF No. 13.

On November 28, 2017, Harrell's counsel wrote a letter to the Court explaining that Harrell elected not to oppose the motion to dismiss and strike because Harrell...