Tobin v. City of S.F.

PATRICK J. TOBIN, Plaintiff, v. CITY & COUNTY OF SAN FRANCISCO, et al., Defendants.

Case No. 13-cv-01504-MEJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

June 16, 2015

ORDER RE: MOTION TO DISMISS

Re: Dkt. No. 60

INTRODUCTION

Plaintiff Patrick J. Tobin, a retired San Francisco Police Department officer, brings this retaliation case against Defendants City & County of San Francisco (the "City"), Police Chief Gregory P. Suhr, and Officers James Dudley, John Murphy, and Kevin Cashman (collectively "Defendants"). In his Second Amended Complaint ("SAC"), Plaintiff alleges three causes of action: (1) whistleblower retaliation under Cal. Lab. Code § 1102.5(b); (2) unlawful punitive action under the California Peace Officers' Bill of Rights ("POBRA"), Cal. Gov't Code §§ 3300-11; and (3) retaliation under 42 U.S.C. § 1983. Dkt. No. 59. Pending before the Court is Defendants' Motion to Dismiss the section 1102.5(b) claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Dkt. No. 60. Defendants argue that Plaintiff's section 1102.5(b) claim fails as a matter of law because Plaintiff failed to exhaust his administrative remedies prior to bringing this cause of action. Plaintiff has filed an Opposition (Dkt. No. 63), and Defendants filed a Reply (Dkt. No. 65). The Court finds this matter suitable for disposition without oral argument and VACATES the June 25, 2015 hearing. See Fed. R. Civ. P. 78(b); Civil L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court DENIES Defendants' Motion for the reasons set forth below.

BACKGROUND

A. Factual Background

Plaintiff is a former Sergeant-Inspector with the San Francisco Police Department ("SFPD"). SAC ¶ 8. Between 2002 and 2009, he was the Director of San Francisco's Safe Paths of Travel ("SPOT") program, through which police officers received overtime to monitor construction sites in San Francisco to identify and prevent unsafe work practices and encroachments into the public right of way in temporary work zones. Id. ¶¶ 10, 14. Plaintiff alleges that, prior becoming the Director of the SPOT program, the City had a "long-standing policy of looking the other way when contractors and city workers maintained unsafe work zones." Id. ¶ 13. Under Plaintiff's directorship, construction companies received sharp increases in fines, assessments, and penalties. Id. ¶ 12. Between 2006 and 2009, Plaintiff alleges he also disclosed the City's alleged unlawful practices to several entities and individuals: "California District Attorneys' Association (Environmental Crimes and Work Zone Death Division), Civil Service Commissioner Morgan Gorrono, SFMTA leadership, the Mayor's Office of Disability, the Board of Supervisors, the Department of Public Works (DPW), and all of his supervisors at Company K including Captain Corrales, Captain Casciato, Captain O'Leary, and Lieutenant Calonico." Id. ¶¶ 21-22.

During Plaintiff's tenure as Director, the City received a large number of complaints from city workers and contractors who were outraged by the large fines and frequent citations associated with the SPOT program. Id. ¶ 14. Plaintiff alleges that these various persons and entities began to complain about the program and lobbied and campaigned for his removal. Id. ¶¶ 14-19, 29-30. Plaintiff subsequently met with SFPD Deputy Chief Cashman, Captain Corrales, and Lieutenant Greeley, where he criticized the City's alleged "non-enforcement" policies and "virtual total ignorance" of federal, state, and local laws applicable to construction sites. Id. ¶ 32.

In response to his reports of these practices, Plaintiff alleges the City retaliated against him. Id. ¶ 23. Plaintiff alleges that Defendant Cashman cut his overtime in half, Plaintiff's supervisor took away the police car that he used after hours for SPOT enforcement, SFPD halted all SPOT program enforcement for up to three weeks at a time, the City issued a "stay away order"designed to stop Plaintiff from enforcing the SPOT program, individuals made disparaging remarks about Plaintiff to his direct supervisors, and former Chief of Police Heather Fong ultimately removed him from his post as SPOT Director. Id. ¶¶ 24-41.

Plaintiff also alleges that Defendants singled him out by denying him a higher salary under San Francisco's Like Work, Like Pay program ("LWLP"), through which lower-ranking officers received the rate of pay of a higher-ranking officer if the lower-ranking officer performed a higher-ranking officer's duties. Id. ¶¶ 48-53. Plaintiff contends that the City should have compensated him under this program because he performed the work of Lieutenant while holding the rank of Sergeant. Id. ¶ 49.

B. Procedural Background

On June 28, 2011, Plaintiff filed his initial Complaint in San Francisco Superior Court, asserting two causes of action: (1) violation of California Government Code section 3304(a), which prohibits punitive action based on lawful exercise of the rights belonging to a police officer; and (2) discrimination based on opposition to unlawful employment practices under 42 U.S.C. § 1983. Dkt. No. 1, Ex. A. On December 20, 2012, Plaintiff filed a First Amended Complaint in Superior Court, adding a third cause of action, also under 42 U.S.C. § 1983, for exercising a qualified right under the First Amendment to speak on matters of public concern. Dkt. No. 1, Ex. B.

On April 3, 2013, Defendants removed the matter to this Court. Dkt. No. 1. On January 8, 2015, Plaintiff filed a Motion for Leave to File a Second Amended Complaint, seeking to (1) add three claims: whistleblower retaliation under California Labor Code section 1102.5(b), retaliation for opposing illegal practices under California Labor Code section 1102.5(c), and Negligent Infliction of Emotional Distress; (2) include additional factual allegations for his previously asserted claims based on new information he learned since filing his First Amended Complaint; and (3) consolidate his 42 U.S.C. § 1983 claims into a single cause of action. Dkt. No. 45. The Court granted Plaintiff's Motion as to his claim under California Labor Code section 1102.5(b). See Order Re: Motion for Leave to File Amended Complaint at 11, Dkt. No. 58. However, the Court advised Plaintiff that he could not generally allege that some violation of state or federal lawoccurred; rather, he must specify the law, rule, or regulation that supports his claim. Id. The Court denied Plaintiff's Motion as to his section 1102.5(c) and Negligent Infliction of Emotional Distress claims, finding that amendment to add these claims would be futile. Id.

Plaintiff filed his SAC on May 6, 2015. Defendants filed the present Motion to Dismiss on May 20, 2015.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). "[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").

Even under the liberal pleading standard of Rule 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief," a "pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying factsto give fair notice and to enable the opposing party to defend itself effectively"). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

If a Rule 12(b)(6) motion is granted, the "court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted). However, the Court may deny leave to amend for a number of reasons, including "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,...