Moore v. Cnty. of Los Angeles

JEREMY A. MOORE, Plaintiff,

v. COUNTY OF LOS ANGELES, PETER BLISS, PAM BOOTH,JACQUELYN LACEY, JOHN SPILLANE, and JULIE DIXON SILVA, Defendants.

Case No. 2:10-cv-07694-ODW(SS)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

August 15, 2012

ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT [50]

I. INTRODUCTION

This Motion for Summary Judgment concerns whether Defendant County of Los Angeles can be held liable under 42 U.S.C. § 1983 for violating Plaintiff Jeremy Moore's First Amendment rights by allegedly terminating his employment for union involvement.¹ The Court holds that Plaintiff has failed to introduce sufficient evidence to create a triable issue of material fact on his claims and therefore GRANTS the County's Motion.

II. FACTUAL BACKGROUND

Plaintiff worked for the County in the District Attorney's Office from approximately March 9, 2008, through March 9, 2009. (Plaintiff's Statement of Uncontroverted Facts ("SUF") 1.) Plaintiff avers the County constructively terminated him because of his involvement in the Association of Deputy District Attorneys ("the Union"). (Opp'n 1.) On or about March 24, 2008, the Union was certified as a "full-fledged public employees union" representing the prosecutors of Los Angeles County Bargaining Unit 801. (SUF 49.)

Plaintiff seeks to offer evidence that the County—through District Attorney Steve Cooley and several other "top ranking officials"—instituted an office-wide anti-union discrimination policy against Deputy District Attorneys who supported or were members of the Union. Id. Plaintiff relies heavily on a similar lawsuit before this Court where the Court granted a preliminary injunction against the County on March 10, 2010. Unnamed Deputy Dist. Attorney v. Cnty. of L.A. ("Unnamed DDA"), No. CV 09-7931-ODW (C.D. Cal.). There, some senior DDAs were transferred to other departments or demoted allegedly based on their Union involvement. Id. In addition, a hearing officer of an administrative arm of the County of Los Angeles— the Employee Relations Commission ("ERCOM")—found that the DA's Office engaged in a "deliberate and thinly disguised campaign . . . to destroy the [Union] and, if necessary, its officers and members," and showed "a pattern of anti-union conduct." (Pl.'s Request for Judicial Notice ("RJN"), Ex. 1, at 53, ¶ 4).

Plaintiff repeatedly cites Unnamed DDA as "the backdrop" establishing the environment at the DA's Office during his employment. (Opp'n 2.) The County responds that Unnamed DDA is a distinct and ongoing case to which Plaintiff is not a party but nonetheless blatantly and improperly bootstraps to form the basis of his own action. (Mot 1.) Further, the County objects to the admissibility of the ERCOM hearing officer's findings as hearsay and improper opinion under Federal Rules of Evidence 602, 701 and 802. (Reply 11.)

The County produces evidence that Plaintiff's discharge was for good cause based on his well-documented poor performance during his one-year probationary period. (SUF 46.) Plaintiff lacks evidence, the County argues, that either Cooley or any of the "top ranking officials" who were involved in his performance evaluations or the decision to discharge him even knew of his Union activities and thus could not discriminate against him on that basis. (Mot. 11.)

Plaintiff, however, seeks to offer evidence that both Cooley and John Zajec— the Branch and Area Region 1 District Attorney's Office's Bureau Director—were aware of Plaintiff's support for the Union. (Opp'n 5.) Regarding Cooley, Plaintiff offers evidence that when asking Cooley a question about the Union during a question and answer session for newly hired DDAs, in March of 2008, Cooley did not respond but gave Plaintiff a "dirty look." Id. Regarding Zajec, on May 5, 2008, Plaintiff told him in passing that he was going to a Union meeting. (Jeremy Moore Decl. 5.)

Plaintiff also notes that at some point during his employment he "signed a document to show support" for the Union. (SUF 51.) The Union filed authorization cards and a written summary list of the contents of those cards with ERCOM, which ERCOM was supposed to maintain as confidential. (SUF 52.) However, on or about October 16, 2008, a member of the County's management team and the Union, Peter Burke, gained access to the contents of the Union authorization cards, which presumably included evidence of Plaintiff's support for the Union. (SUF 53.)

Notwithstanding Plaintiff's circumstantial evidence, the County points out that Plaintiff offers no evidence that Cooley, Zajec or any of the Supervisory Defendants were actually aware of the contents of ERCOM's inadvertent disclosure to Burke. (Mot. 11; SUF 53-54.) Moreover, it is undisputed that the County had an explicit anti-discrimination policy. (SUF 6.) For instance, the County's Board of Supervisors prescribed and adopted the Civil Service Rules, which governed Plaintiff's employment. Id. Those rules explicitly prohibit any type of employmentdiscrimination because of "political opinions" or affiliations or other non-merit factors "not substantially related to successful performance a position's duties." (SUF 6.)

The Court now assesses the merits of the Motion for Summary Judgment.

III. LEGAL STANDARD

Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts through admissible evidence that show a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill's Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is "material" where the resolution of that fact might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving and nonmoving parties' versions of events differ, courts are required to view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

IV. DISCUSSION

The County moves for summary judgment on Plaintiff's entire First Amended Complaint ("FAC"). Before the Court can assess whether a genuine issue exists concerning Plaintiff's discrimination claim, the Court must examine whether the County can be held vicariously liable for the alleged tortious conduct of its employees.Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 658 (1978). If the answer is no, then the analysis stops here and no municipal liability can attach. Id. Because the Court finds that no triable issue of material fact exists as to Monell liability, the Court GRANTS the County's Motion in its entirety.

The Civil Rights Act holds liable any person who deprives U.S. citizens, or other persons within federal jurisdiction, of their constitutional rights under color of law. 42 U.S.C. § 1983. The U.S. Supreme Court has held that "Congress intended the term 'person' to include municipalities" such as counties. Christie v. lopa, 176 F.3d 1231, 1234-35 (9th Cir. 1999). Congress did not intend, however, to create respondeat superior liability. Monell, 436 U.S. at 691. Instead, municipalities can only be held liable when official municipal policy "caused a constitutional tort." Id. The "official policy" requirement distinguishes "acts of the municipality from acts of employees of the municipality, and thereby make[s] clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (internal quotation marks omitted).

Against this backdrop, the Ninth Circuit has held that a plaintiff seeking to hold a municipality liable under § 1983 must proceed on one of three distinct theories: that a municipal employee was acting (1) "pursuant to an expressly adopted official policy"; (2) "pursuant to a longstanding practice or custom;" or (3) "as a final policymaker." Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Plaintiff seeks to establish Monell liability only on longstanding practice or custom and final policymaker theories. The Court considers Plaintiff's evidence for each theory.

A. Cooley and other DA's Office officials were not final policymakers

Plaintiff contends Cooley and other officials in the DA's Office were either final policymakers on employment decisions for Monell purposes or were delegated final policymaking authority by the Board of Supervisors. (Opp'n 2.) The County responds that officials in the DA's Office are not final policymakers because their employment decisions are "constrained by policies not of [their] making." (Reply 11.)The Court agrees, and thus finds no triable issue on whether Cooley or other DA's Office officials were final policymakers for purposes of Monell liability.

Whether an official has final policymaking authority is a question for the court to decide based on state law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (holding that district courts must identify official policymakers based on "state and local positive law" and resolve this issue "before the case is submitted to the jury"). However, official policymakers may delegate final policymaking authority to other officials, which could subject the municipality to Monell lia...