Fitzgerald v. El Dorado Cnty., 2:12–cv–02932–MCE–KJN.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: MORRISON C. ENGLAND, JR., Chief Judge.
• Citation: 94 F.Supp.3d 1155
• Parties: Richard FITZGERALD, Plaintiff, v. EL DORADO COUNTY, Sheriff John D'Agostini, Undersheriff Rich Williams and Does 1 through 20, inclusive, Defendants.
• Docket Number: No. 2:12–cv–02932–MCE–KJN.,2:12–cv–02932–MCE–KJN.
• Decision Date: 03 March 2015

94 F.Supp.3d 1155

Richard FITZGERALD, Plaintiff
v.
EL DORADO COUNTY, Sheriff John D'Agostini, Undersheriff Rich Williams and Does 1 through 20, inclusive, Defendants.

No. 2:12–cv–02932–MCE–KJN.

United States District Court, E.D. California.

Signed March 3, 2015.
Filed March 4, 2015.

94 F.Supp.3d 1159

Jill P. Telfer, Law Offices of Jill P. Telfer, Sacramento, CA, for Plaintiff.

C. Christine Maloney, Foster Employment Law, Oakland, CA, Michael William Pott, Nancy Joan Sheehan, Porter Scott, PC, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., Chief Judge.

This action proceeds on Plaintiff Richard Fitzgerald's (“Plaintiff”) First Amended Complaint (“FAC”), which seeks to recover damages against Defendants Sheriff John D'Agostini (“D'Agostini”), Undersheriff Rich Williams (“Williams”), and El Dorado County (“County”) (collectively “Defendants”) on various legal theories.

94 F.Supp.3d 1160

Plaintiff asserts three claims against all Defendants: (1) retaliation in violation of the First Amendment; (2) violation of his due process rights; and (3) violation of his equal protection rights. Plaintiff asserts additional claims against the County alone: (4) retaliation under state law; and (5) age discrimination under both state and federal law.¹ Presently before the Court are Defendants' motions for summary judgment, or alternatively partial summary judgment, pursuant to Federal Rule of Civil Procedure 56 (ECF No. 31–32), and Defendants' Motion to Strike Errata Sheet (ECF No. 33), both of which Plaintiff timely opposed.² ECF Nos. 31–32, 43. For the following reasons, Defendants' motions for summary judgment are GRANTED in part and DENIED in part.³

BACKGROUND⁴

In 1991, Plaintiff was hired by the El Dorado County Sheriff's Department (“Sheriff's Department”) to work in the patrol unit. Pl.'s Resp. to Defs.' Joint Statement of Undisputed Facts (“SUF”), ECF No. 31–2, at ¶ 1. Subsequently, in 1994, Plaintiff became a detective. Id. at ¶ 2. He held that position until 2012, for a total of 18 years. Id. In 2010, D'Agostini was elected Sheriff of El Dorado County, and, shortly thereafter, he appointed Williams as Undersheriff. Id. at ¶¶ 4–5. This dispute arises out of oral and written statements made by Plaintiff in opposition to two changes Williams and/or D'Agostini proposed or instituted with respect to the investigations unit between 2011 and 2012.

First, D'Agostini proposed recruiting retired police officers to volunteer in the property crime investigation division. SUF ¶ 9. He made his proposal at a meeting attended by all of the detectives and several command staff personnel. Id. at ¶ 7. D'Agostini explained that he had met the retired officers during his campaign and thought that they could help with the heavy workload of the property crime detectives. Id. at ¶ 9. He then asked for the officers' input regarding his plan. Id. at ¶ 10. Plaintiff told D'Agostini that he did not think the plan would work because of issues affecting the chain of custody for evidence, as well as the need to safeguard against leaked information. Id. Several other officers related their concerns with D'Agostini's proposal as well. Id. at ¶ 11. From Plaintiff's account, D'Agostini then became upset and left the meeting. DF ¶ 97; Strasser Depo. Pl.'s Ex. I, ECF No. 40–2, at 72:14–74:3.

Second, D'Agostini and Williams proposed and later implemented a policy to rotate detectives out of the investigations unit and into other roles within the department. SUF ¶ 18. Williams assigned Lieutenant Dale Spear (“Spear”) to draft the

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rotation policy. Id. At Williams' direction, Spear shared a copy of the rotation policy with the detectives at a meeting on November 16, 2011. Id. at ¶ 21. At that meeting, Spear asked for the detectives' feedback before the policy was to go into effect on January 1, 2012. Id.; Sheriff's New Policy Directive Pl.'s Ex. L, ECF No. 31–8, at 35–36. All of the detectives at the meeting, including Plaintiff, expressed strong opposition to the rotation policy. Id. at ¶ 22. Plaintiff presents evidence that he was one of the most vocal opponents at the meeting, along with detectives Rich Strasser (“Strasser”) and John Yaws (“Yaws”). Strasser Depo. at 99:13–15. According to Strasser's deposition, Plaintiff argued at that meeting that implementing a rotation policy for detectives would hurt the department and that the majority of unsolved homicides in their jurisdiction were a direct result of inexperienced investigators. Id. at 101:3–9. In Plaintiff's deposition, he states that he met privately with Spear after the meeting and voiced his concerns that the rotation policy would jeopardize the departments' ability to solve crimes and could lead to age discrimination. Fitzgerald Depo. Pl.'s Ex. C, ECF No. 31–8, at 232:14–233:8.

According to Plaintiff, he, Strasser, and the El Dorado County Deputy Sheriff's Association (“DSA”) filed a grievance shortly after the meeting to oppose the rotation policy. Strasser Decl. Pl.'s Ex. H, ECF No. 40–2, at ¶ 5. Plaintiff presents further evidence that he attempted to obtain the signature of Sergeant Tom Hoagland (“Hoagland”) on the grievance, but that Hoagland declined to endorse the grievance in front of a room filled with other detectives. Strasser Decl. Pl.'s Ex. H, ECF No. 40–2, at ¶¶ 5–6; Hoagland Depo. Pl.'s Ex. E, ECF No. 40–1, at 176:4–24. Plaintiff also presents evidence that he took the lead in drafting proposed amendments to the policy, that he presented the proposal to Hoagland, Spear, and Sergeant Dreher, and that he was told the document would be presented to D'Agostini. Strasser Decl. at ¶ 8; Strasser Depo. at 123:14–16; Proposed Changes and Justifications Pl.'s Ex. 18, ECF No. 38.

On or about November 30, 2011, D'Agostini and Williams withdrew the rotation policy after receiving a “cease and desist” letter from the attorney for the DSA. SUF ¶¶ 24–25; DSA Letter Ex. M, ECF No. 31–8, at 39–41. Despite withdrawing the rotation policy, D'Agostini and Williams continued to discuss reassigning detectives out of the investigations unit. SUF ¶ 26. They eventually determined that either Plaintiff or Strasser should be one of the detectives reassigned. Id. at ¶ 31. Defendants allege that D'Agostini and Williams made this decision because Plaintiff and Strasser had been in the detective position for the longest period of time. Id.

On March 29, 2012, Plaintiff was informed that he was being reassigned to the patrol unit as of April 21, 2012. SUF ¶ 35. Plaintiff was 56 years old at that time. Id. at ¶ 36. There were three other detectives reassigned to the patrol unit: two were 43 years old and one was 34 years old. Id.

On behalf of Plaintiff and the other reassigned detectives, the DSA initiated the employee grievance process outlined in the Memorandum of Understanding (“MOU”) between the DSA and the County. SUF ¶¶ 48–49. Initially, on April 16, 2012, the DSA filed a grievance with Hoagland (Plaintiff's immediate supervisor). Id. at ¶ 49. That grievance was denied in a letter from Williams on April 25, 2012. Id. at ¶ 50. Then, on or about May 2, 2012, the DSA filed an appeal with D'Agostini, which was also ultimately denied. Id. at ¶ 51. Additionally, on May 22, 2012, the DSA filed an appeal with the County's human

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resources director. Id. at ¶ 52. The director ruled that the Sheriff had the managerial right to determine assignments and found insufficient evidence that Plaintiff's reassignment was retaliatory. Id. at ¶ 53. At the same time, however, the director also recognized the DSA's right to negotiate the impact of any reassignments prior to their implementation. On that basis, the director found that the sheriff needed to restore Plaintiff and the other reassigned deputies back to their detective positions. Id. at ¶ 53. D'Agostini and Williams believed that the director exceeded his authority in ordering the deputies be reinstated as detectives, and consequently refused to comply with his decision. SUF ¶ 54. Instead of filing an appeal with the Civil Service Commission or proceeding to arbitration (as outlined in the MOU), the DSA filed a writ of mandate in superior court challenging D'Agostini's failure to implement the director's remedy. D'Agostini and the County filed demurrers, which the court sustained without leave to amend. Id. at ¶ 55.

After receiving notice of his reassignment, Defendants allege that Plaintiff went on medical leave and never returned to work. SUF ¶¶ 37, 44. On July 31, 2012, Plaintiff submitted written notice of his intent to retire from the Sheriff's Department as of September 8, 2012. Id. at ¶ 47.

In his operative FAC, Plaintiff alleges that D'Agostini and Williams violated his constitutional rights by reassigning him to the patrol unit and forcing him into retirement in retaliation for exercising his free speech rights. FAC at ¶ 4. Defendants bring the instant motions seeking summary judgment, or, in the alternative, partial summary judgment. ECF No. 31; ECF No. 32. Those motions are GRANTED in part and DENIED in part.

STANDARD

The Federal Rules of Civil Procedure provide for summary judgment when “the pleadings,...