Bustos v. City of Fresno

• Decision Date: 15 August 2020
• Docket Number: No. 1:20-cv-00066-DAD-BAM,1:20-cv-00066-DAD-BAM
• Court: U.S. District Court — Eastern District of California
• Parties: TEMUJIN BUSTOS, Plaintiff, v. CITY OF FRESNO, et al., Defendants.

TEMUJIN BUSTOS, Plaintiff, v. CITY OF FRESNO, et al., Defendants.

No. 1:20-cv-00066-DAD-BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 15, 2020

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS, DENYING DEFENDANTS' MOTION FOR A MORE DEFINITE STATEMENT, AND GRANTING DEFENDANTS' MOTION TO STRIKE

(Doc. No. 11)

INTRODUCTION

This matter is before the court on motions to dismiss, for a more definite statement, and to strike filed by defendants the City of Fresno (the "City"); Jerry Dyer, individually and in his former capacity as Chief of the Fresno Police Department ("FPD"); and Andrew Hall, individually and in his current capacity as Chief of FPD (collectively, the "defendants"). (Doc. No. 11.) The court reviewed the briefing and deemed the matter suitable for decision on the papers pursuant to Local Rule 230(g). (Doc. No. 14.) For the reasons discussed below, the court will grant defendants' motion to dismiss in part, deny their motion for a more definite statement, and grant their motion to strike.

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BACKGROUND

Plaintiff Temujin Bustos is currently employed by FPD as a sergeant. (Doc. No. 1 ("Compl.") at ¶ 3.) According to plaintiff, he was repeatedly passed over for promotion to lieutenant as a result of racial discrimination and in retaliation for engaging in protected speech. (Id. at ¶¶ 35-83.) In his complaint, plaintiff alleges as follows.

In or around January 2017, the FPD created a new "corporal" position, intermediate in rank to officers and sergeants. (Id. at ¶ 15.) According to plaintiff, the program

was hastily implemented. Without yet receiving proper training, numerous officers were effectively instantaneously transformed into corporals. The new corporals were immediately placed on patrol shifts tasked with the supervision of many officers. For example, a corporal with little to no training in that capacity was thrust into supervising 40 officers on a patrol shift. This officer-to-supervisor ratio greatly exceeds what is typically considered acceptable for even a seasoned sergeant. . . . [T]his situation resulted in a safety hazard for officers who were being supervised by untrained staff[] and created safety concerns for the public and a general diminution in service.

(Id. at ¶¶ 15, 17.) Plaintiff raised his concerns about the corporal program to his supervisors at the FPD and to the leadership of the Fresno Police Officer's Association ("FPOA"), the union entity that represents FPD officers, corporals, and sergeants. (Id. at ¶¶ 14, 17, 18.) These concerns were relayed to FPD management, and then-Chief Dyer and then-Deputy Chief Hall eventually learned that they had originated with plaintiff. (Id. at ¶ 19.) Chief Dyer thereafter "reluctantly" made changes in the corporals' training program and set limits on their supervisory responsibilities. (Id.)

In or around November 2017, plaintiff sat for the exam for promotion to lieutenant and scored highly, ranking third on the promotion list. (Id. at ¶ 20.) Later that year, Chief Dyer promoted the two individuals who had ranked ahead of plaintiff on the list. (Id.) In or around September 2018, Dyer interviewed plaintiff along with several other sergeants for promotion to lieutenant. During that interview, Dyer "expressed frustration" with plaintiff for his communications with the FPOA regarding the corporal program. (Id. at ¶ 21.) In or around November 2018, Chief Dyer passed plaintiff over and promoted three other sergeants to lieutenant, those ranking fourth, fifth, and sixth on the promotion list. (Id. at ¶ 22.)

Plaintiff subsequently met with Dyer to discuss how to increase his chances of being promoted, and Dyer advised him to consult with various deputy chiefs. (Id. at ¶ 23.) Plaintiff then spoke with four deputy chiefs, five captains, and five to six lieutenants, where he learned that although he had "[n]o serious or specific performance issues," he had apparently upset Chief Dyer by "express[ing] concerns regarding unsafe working conditions and diminished public safety to his union and supervisors." (Id.)

In or around March 2019, plaintiff again interviewed with Dyer for an open lieutenant position. (Id. at ¶ 25.) On April 1, 2019, Dyer informed plaintiff that he would instead promote a sergeant ranked seventh on the promotion list, even though that sergeant had been the subject of recent and serious discipline, unlike plaintiff. (Id.)

Plaintiff then lodged an internal complaint about being passed over for promotion. (Id. at ¶ 26.) In a subsequent meeting in May 2019, plaintiff informed Chief Dyer that he did not want to have a public dispute. (Id.) Dyer then allegedly made a veiled threat of retaliation against plaintiff. (Id.) In this regard, Dyer first replied that "he had been sued before by other employees, and some of those employees had expressed regret over suing." (Id.) He then observed that "people who had sued him in the past had not fared well," and that "he did not want a lawsuit to damage" plaintiff's career, citing plaintiff's "filing of a grievance [as] an example of him being too rigid or stubborn." (Id.)

In addition, plaintiff believes that he has been the victim of racial discrimination. On information and belief, he alleges that "white personnel who have had previous disciplinary issues or who have for some other reason fallen out of favor with the Chief are readily and frequently given second chances[] and [are] generally not delayed in their career advancement." (Id. at ¶ 27.) However, "Hispanic employees" like plaintiff "frequently are relegated to career purgatory for minor and major issues, whether legitimate or illegitimate, real or just perceived." (Id.)

On August 26, 2019, plaintiff presented a claim for damages (the "tort claim") to the City, alleging claims under 42 U.S.C. § 1983, the California Labor Code, and the California Government Code. (Id. at ¶ 28.) Plaintiff also complained of disparate treatment on the basis ofrace in violation of the California Fair Employment and Housing Act ("FEHA"). (Id.) On September 3, 2019, four days after the City confirmed receipt of plaintiff's claim, he was removed from the list of candidates for promotion to lieutenant. (Id. at ¶ 29.) After plaintiff grieved this action, he was placed back on the promotion list. (Id.)

In October 2019, Chief Dyer retired from the FPD¹ and hand-selected defendant Hall as his replacement, though, according to plaintiff, Dyer continues to "wield[] considerable influence over department decision-making." (Id. at ¶ 31.) Hall and plaintiff knew each other prior to the former's elevation to Chief of Police. During a period in which Chief Hall was a captain and plaintiff was a motor sergeant, the former "openly referred" to plaintiff as a "zika baby," referring to a virus that caused an epidemic in the Americas in 2015-16. (Id. at ¶ 32.) The virus became particularly well-known because it causes birth defects such as microcephaly, a condition where a baby is born with a head much smaller than normal. (Id.)

Thereafter, on or around December 5, 2019, Hall and the other defendants again passed over plaintiff and promoted another sergeant who had scored lower on the lieutenant's exam. (Id. at ¶ 33.) In addition to himself, two other Hispanic officers were also passed over for promotion in favor of lower-scoring white officers. (Id.) On information and belief, plaintiff alleges that defendants refused to promote him because he: (1) had "exercised his right to petition the government," (2) had "engaged in speech as a private citizen on a matter of public concern," and (3) was discriminated against for being Hispanic. (Id.)

Plaintiff then filed this action on January 13, 2020, alleging various causes of action for retaliation in violation of both federal and state law and race discrimination in violation of state law. (Id. at ¶¶ 35-83.) On March 16, 2020, defendants filed a motion to dismiss several of plaintiff's claims. (Doc. No. 11.) Defendants also moved in the alternative for a more definite statement and to strike plaintiff's official capacity claims against Dyer and Hall. (Id.) Plaintiff

/////filed his opposition to the motion on April 7, 2020, and defendants filed their reply on April 14, 2020. (Doc. Nos. 12, 13.)

LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (citation omitted). A plaintiff is required 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 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In resolving a Rule 12(b)(6) motion, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). However, the court need not accept as true allegations that are "merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell, 266 F.3d at 988. Neither must the court "assume the truth of legal conclusions cast in the form of factual allegations." Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008) (citation omitted).

While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements...