Dowell v. Contra Costa Cnty.

• Citation: 928 F.Supp.2d 1137
• Decision Date: 01 March 2013
• Docket Number: Case No. 3:12–cv–05743–JCS.
• Parties: Eileen DOWELL, Plaintiff, v. CONTRA COSTA COUNTY, et al., Defendant.
• Court: U.S. District Court — Eastern District of California

928 F.Supp.2d 1137

Eileen DOWELL, Plaintiff,

v.CONTRA COSTA COUNTY, et al., Defendant.

Case No. 3:12–cv–05743–JCS.

United States District Court, N.D. California.

March 1, 2013.

Che Lewellyn Hashim, San Francisco, CA, for Plaintiff.

Nancy E. Pritikin, John C. Fish, Jr., Lisa K. Horgan, Littler Mendelson PC, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND [Docket No. 11].

JOSEPH C. SPERO, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Eileen Dowell (“Plaintiff”) brings this action against Contra Costa County (“Defendant County”) and two Contra Costa County employees, District Attorney Mark Peterson (“Defendant Peterson”) and District Attorney Chief Inspector Paul Mulligan (“Defendant Mulligan”), collectively “Defendants.” Plaintiff asserts a claim under 42 U.S.C. § 1983, contending Defendants violated her First Amendment rights. Plaintiff also asserts state law claims for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, as well as whistleblower claim under California Labor Code § 1102.5. Defendants filed a Motion to Dismiss (“Motion”) Plaintiff's Complaint in its entirety, contending Plaintiff failed to comply with the California Tort Claims Act prior to initiating suit, failed to state a claim upon which relief may be granted for each asserted cause of action, and failed to exhaust administrative remedies before asserting her whistleblower claim under § 1102.5. The Motion came on for hearing February 22, 2013. For the reasons stated below, the Court GRANTS Defendants' Motion to Dismiss and DISMISSES the Complaint WITH LEAVE TO AMEND.¹

II. BACKGROUNDA. Factual Allegations

Plaintiff has worked as the Manager of the Victim Witness Program for Defendant Contra Costa County District Attorney's office since November 2004. Complaint (“Compl.”) ¶ 9. Her job responsibilities include securing funding from state and federal authorities to provide financial assistance to crime victims and witnesses who testify in criminal proceedings. Id. Defendant Mark Peterson became the newly-elected District Attorney in Contra Costa County in 2011 and named Defendant Paul Mulligan Chief Inspector of the District Attorney's Office in June 2011. Id. ¶ 10.

On June 2, 2011, Plaintiff was in a meeting with Defendants Peterson and Mulligan when Defendant Mulligan instructed Plaintiff to charge an employee's hours to a grant Plaintiff managed in order to remedy a timekeeping mistake by another manager. Id. ¶ 11. Plaintiff responded that this action was likely illegal because the employee's hours should have been charged to the Underserved Victims Grant, not the Victim/Witness grant. Id. Defendant Peterson instructed Plaintiff to contact the state granting agency, Cal EMA, to inquire whether the action was permissible. Id. Plaintiff spoke with Cal EMA chief Sally Henchen and program analyst Diana Mazuka, both of whom stated that changing the timesheets in the manner proposed was illegal. Id. ¶ 12. Plaintiff informed Defendant Peterson via email that the action was illegal and she would not participate in it. Id.

Five days later, Defendant Peterson, who was upset about the content of Plaintiff's email and Cal EMA's response, called Plaintiff into his office with Defendant Mulligan. Id. ¶ 13. Defendant Peterson directed Defendant Mulligan to contact Cal EMA with the same inquiry. Id. Defendant Mulligan emailed Cal EMA, stating that an internal audit had brought to light an accounting error he needed to correct and that his office agreed that changing the timesheets was the best course of action. Id. ¶ 14. Cal EMA again responded that such an action would be illegal. Id.

Plaintiff has since experienced a pattern of events that she alleges constitute retaliation. Id. ¶ 15. In support of her claim, Plaintiff asserts that Defendant Mulligan, despite being her direct supervisor, refused to meet with her for over seven months to support her work managing two grants, two contracts, and eight full-time staff. Id. ¶ 15. She also asserts that when she emailed a colleague in June 2011 requesting updated spending figures from the Victim/Witness Grant, Defendant Mulligan instructed Plaintiff to do the research herself, even though he knew she did not have access to the information necessary to complete the task and it was outside her job responsibilities. Id. ¶ 16. On July 25, 2011, Plaintiff approached Defendant Mulligan about extending a temporary position for an employee. He said he would look into it, but never responded. Id. ¶ 17. Plaintiff lost this support staff due to Defendant Mulligan's inaction. Id.

Plaintiff relates a series of events that began when she missed work due to illness on September 7, 2011. Id. ¶ 18. Defendant Mulligan called Plaintiff to ask the location of the Underserved Victims Grant checkbook because he wanted to write a $900 check for a purpose not approved by the grant. Id. Though Defendant Mulligan said he would pay the money back later, Plaintiff declined to tell him where to find the checkbook. Id. The same day, Plaintiff heard from a co-worker that Defendant Mulligan and another employee had searched Plaintiff's office for the checkbook. Id. Plaintiff reported this incident to Cal EMA, which is investigating the matter. Id. ¶ 19. Plaintiff does not allege whether Defendants are aware that she reported this incident to Cal EMA. See id.

A week after the checkbook incident, Plaintiff approached the other employee who searched Plaintiff's office with Defendant Mulligan. Id. ¶ 20. Plaintiff maintains that the employee became very agitated and yelled at her. Id. Plaintiff reported this incident to Defendant Mulligan and requested that he investigate it and pursue appropriate discipline because the employee was creating a hostile work environment. Id. Defendant Mulligan proposed that the three of them meet, to which Plaintiff agreed if she could first meet with Defendant Mulligan to discuss the incident. Id. Defendant Mulligan refused and instead threatened Plaintiff with insubordination for refusing to meet. Id. Defendant Mulligan never investigated the incident nor disciplined the employee. Id.

On a separate matter that began on September 19, 2011, Plaintiff learned that Defendant Peterson had hired a consultant to conduct a study on the strengths and weaknesses of the office and recommend how to improve office communications. Id. ¶ 21. The study was to include all members of the management team, which includes Plaintiff. Id. At a staff meeting two months later, Plaintiff learned from Defendant Peterson that the report was complete. Id. Plaintiff professes that she informed Defendant Peterson she had not been interviewed even though she should have been included as a member of the management team. Id. Defendant Peterson seemed uncomfortable and stated that her interview would come later, though Plaintiff was never interviewed. Id.

Between May and November 2011, Plaintiff and two of her subordinates made a total of three complaints of hostile work environments to Defendant Mulligan. Id. ¶ 22. The complaints all named another employee as creating a hostile work environment. Id. Defendants Peterson and Mulligan never investigated the complaints and thus created a difficult work environment for Plaintiff and her employees. Id.

Plaintiff met with Defendant Mulligan on December 9, 2011, for the first time in many months and in the presence of another colleague, to discuss hiring a new employee. Id. ¶ 23. At the meeting, Defendant Mulligan had a verbal outburst at Plaintiff, proclaiming “[w]hy are you so negative all the time!” Id. Plaintiff called Defendant Mulligan later that day to inquire about his comment and his refusal to meet with her. Id. Defendant Mulligan purportedly responded “[i]t's because I can't meet with you without a third person being present.” Id.

On January 13, 2012, Plaintiff was called to Defendant Mulligan's office under the pretense of discussing how to retain an employee who was considering leaving. Id. ¶ 24. Plaintiff was, instead, confronted by an accusatory investigation concerning an incident of alleged sexual harassment by another employee that had occurred five years ago. Id. In the meeting, Plaintiff stated that she had handled the situation in an appropriate manner. Id. ¶ 24. Defendant Paul Mulligan then insinuated that Plaintiff was retaliating against others in the office. Id. On January 20, 2012, Plaintiff emailed Defendant Mulligan about several issues, including a report of mold in the office and a staff member disregarding the chain of command, at which time she responded to the allegation made against her at the January 13 meeting. Id. ¶ 25. Plaintiff wrote, “I do not appreciate the character slander that is occurring that now has led you to make decisions to limit my ability to make management decisions in the program.” Id. Defendant Mulligan then demanded she write a memo about the sexual harassment allegation and address specific elements, which was due in one week. Compl. ¶ 26. Defendant Mulligan advised Plaintiff to seek advice from her union or legal counsel. Id. Defendant Mulligan's advice caused Plaintiff to fear for her job security. Id.

Plaintiff also relates events regarding a new employee who began working for her on January 17, 2012. Id. ¶ 27. Plaintiff put in a request to have a telephone line installed in the employee's office. Id. When almost a month had elapsed without the line being installed, Plaintiff contacted the office manager to inquire about the delay. Id. Plaintiff was told that Defendant Mulligan had cancelled her request. Id.

On February 14, 2012, Plaintiff checked the account statements of the Emergency Revolving Fund, which is used exclusively to pay emergency funeral burial expenses to family members of homicide victims. Id. ¶ 24. The statements showed two transfers in early November 2011, each for $1,500,...