Oyarzo v. Tuolumne Fire Dist. (

• Decision Date: 01 July 2013
• Docket Number: No. 1:11–CV–01271 LJO SAB.,1:11–CV–01271 LJO SAB.
• Citation: 955 F.Supp.2d 1038
• Parties: Benjamin C. OYARZO and Nicholas Hart, Plaintiffs, v. TUOLUMNE FIRE DISTRICT (a.k.a. “Tuolumne Fire Protection District”), Joseph Turner, in his individual and official capacities, Darlene Hutchins, in her individual and official capacities, Kenneth Hockett, in his individual and official capacities, Brian Machado, in his individual and official capacities, Toney Powers, in his individual and official capacities, and Does 1 Through 20, Inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

955 F.Supp.2d 1038

Benjamin C. OYARZO and Nicholas Hart, Plaintiffs,

v.TUOLUMNE FIRE DISTRICT (a.k.a. “Tuolumne Fire Protection District”), Joseph Turner, in his individual and official capacities, Darlene Hutchins, in her individual and official capacities, Kenneth Hockett, in his individual and official capacities, Brian Machado, in his individual and official capacities, Toney Powers, in his individual and official capacities, and Does 1 Through 20, Inclusive, Defendants.

No. 1:11–CV–01271 LJO SAB.

United States District Court, E.D. California.

July 1, 2013.

Shannon Michele Seibert, Joseph Issac Bautista, Nina Cristina Montoya, Seibert & Bautista, Twain Harte, CA, for Plaintiffs.

J. Anthony Abbott, Mayall Hurley Knutsen Smith & Green, Stockton, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOCS. 66, 67, 69, 70, 71 & 72).

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

This case concerns events that took place within the Tuolumne Fire Department (“TFD”) in 2010. Plaintiffs Benjamin Oyarzo and Nicholas Hart, former employees of TFD, allege that certain of their superiors, both within TFD and on TFD's Board of Directors, retaliated against them for and took steps to deter them from exercising their First Amendment rights, retaliated against them for complaining about workplace safety issues, and violated their rights under the Firefighters Procedural Bill of Rights. (Second Amended Complaint (“SAC”), Doc. 25.)

Before the Court for decision are six motions for summary judgment. The Court first addresses four sets of motions for summary judgment filed by the four remaining Individual Defendants: Joseph Turner (Doc. 69), Darlene Hutchins (Doc. 70), Kenneth Hockett (Doc. 67), and Toney Powers (Doc. 66). Along with these motions, Defendants filed a joint statement of facts, independent statements of undisputed fact for each Individual Defendants' motion, and voluminous supporting documents. Plaintiffs filed an opposition to Defendant Powers' motion (Doc. 78) and a consolidated opposition to the remaining Individual Defendants' motions (Doc. 82), along with responses to Defendants' statements of fact and equally voluminous supporting documents. Defendants replied (Docs. 81 & 90) and filed objections to evidence (Docs. 81–1 & 90–1). Upon preliminary review of the pleadings, the Court requested and received supplemental briefing on two issues related to Plaintiff Oyarzo's First Amendment claims. ( See Docs. 96 & 98–101, 103.)

Next, the Court addresses two motions for summary judgment filed by Defendant TFD, one against Plaintiff Oyarzo's claims (Doc. 72), the other against Plaintiff Hart's claims (Doc. 71). Plaintiffs filed a consolidated opposition to TFD's motions along with a consolidated response to TFD's Statement of Undisputed Fact. (Docs. 88 & 91.) TFD filed a consolidated reply, along with 56 pages of objections to evidence.¹ (Docs. 95 & 95–1.)

The motions were originally set for hearing in late May and early June 2013, but the hearings were vacated to permit extended filing deadlines; the matters were then submitted for decision on the papers pursuant to Local Rule 230(g). (Doc. 75.) The Court finds that the extensive briefing thoroughly addresses the relevant issues, obviating the need to re-set oral argument.²

II. BACKGROUND³

A. The Defendants.

TFD is a public agency and fire district composed of approximately 1,200 acres in Tuolumne County, California. (Joint Statement of Undisputed Fact (“JSUF”), Doc. 67–2 ⁴, # A). TFD is governed by a five-member board of directors. (Master Statement of Undisputed Fact for Individual Defendants' Motions (“MSUF”), Doc. 83,⁵ # 1.)

Defendant Hutchins became a member of TFD's Board in 2005 and served continuously as director until her resignation on August 31, 2010. (MSUF # 19.) She served as Secretary from 2009 to August 31, 2010. (MSUF # 20.) In November 2010, she was re-elected to the Board and remained on the Board at least through the filing of the motions addressed in this Memorandum Decision and Order. (MSUF # 21.)

Defendant Turner was elected Chair of TFD's board in December 2007 and served until his resignation on August 3, 2010.⁶ (MSUF # 3.)

On August 17, 2010, Defendant Hockett was appointed to TFD's Board. (MSUF # 14.) He was appointed Chair of the Board on August 30, 2010, and served as Chair until November 8, 2011. (MSUF # 13.)

Defendant Powers started as a Relief Engineer with TFD in August 2008; he was hired as a full time Engineer in November 2008. (Powers' Statement of Undisputed Fact (“PSUF”), reflected in Plaintiffs' response thereto at Doc. 78–1, 5–6.) Throughout all of the relevant events in this case, Oyarzo was Powers' superior, while Powers was Hart's superior. (PSUF 7–8.)

B. Plaintiff Oyarzo's Employment History & Asserted Protected Activities.

Plaintiff Oyarzo first began working for TFD in 2006. (MSUF # 2.) He was promoted to Captain in 2007. (Oyarzo Decl. ¶ 3.) The TFD Board voted to appoint Oyarzo as TFD's Fire Chief in May 2008.⁷ (MSUF # 4.) In February 2009, Oyarzo was given a favorable performance evaluation. (MSUF # 5.)

In 2009, Oyarzo, with the assistance of Plaintiff Hart, began working to annex land from the County of Tuolumne into the jurisdiction of the Tuolumne Fire District. ( See MSUF # 27; Oyarzo Decl. ¶ 9; JSUF # J.) The Parties dispute whether Oyarzo held himself out as a representative of TFD during his work on this annexation project and/or whether his work on annexation fell within his job description.

It is undisputed that, at first, Oyarzo's work on annexation was fully supported by the TFD Board. (MSUF # 28.) It is also undisputed that, later, Tuolumne County and other fire protection organizations expressed displeasure with TFD's attempt to annex territory. ( See MSUF 28–29.) In February 2010, after a meeting with these other entities, TFD's annexation effort was placed on hold until June 2010. (MSUF # 29.) The hold was put in place at the request of Tuolumne County, so that the County could complete a County-wide first responder study. (MSUF # 30.) TFD stopped pursuing annexation in February 2010, and the effort never resumed during Oyarzo's employment with TFD. (MSUF # 31.)

In March 2010, Oyarzo claims that he “discovered that two self-contained breathing apparatuses [ ] had not been properly tested by the firefighting staff and posed a safety risk to the firefighters.” (Oyarzo TFD Decl., Doc. 89–4, ¶ 36.) ⁸ After discovering that the units had not been inspectedas required by the firefighters, Oyarzo “verbally admonished the firefighting staff and reported the safety violation to the TFD Board.” ( Id.)

In mid-April 2010, Oyarzo claims that he visited Defendant Turner's house and spoke with Turner about annexation. During that conversation, Oyarzo expressed his intent to continue with annexation after June 30, 2010, in part because he had a personal interest in seeing the additional territory (which included his personal residence) annexed into TFD's jurisdiction. According to Oyarzo, Turner informed Oyarzo that he no longer supported annexation and became angry with Oyarzo when Oyarzo stated his intent to continue pursuing annexation. ( See Oyarzo Decl. ¶¶ 12–13.) ⁹

In early June 2010, certain TFD firefighters and interns submitted written complaints to the Board regarding Oyarzo. (PSUF # 31.) Plaintiffs assert that Defendant Powers worked with Defendants Turner and Hutchins to solicit these complaints in retaliation for Oyarzo's First Amendment activities. Defendant Powers testified at his deposition that numerous interns had been complaining about Oyarzo. (Powers Depo. 59–7:9.) Powers informed Defendant Turner of the complaints. ( Id. at 59:9–10.) First, Turner told Powers to inform Oyarzo of the complaints to “give him a chance to correct them.” ( Id. at 50:12–15.) ¹⁰ Later, Turner directed Powers to have the complainants document their concerns in writing. ( Id. at 50:20–22.) After Powers collected a number of written complaints, Turner met privately with several board members, including Hutchins, to convince them to terminate Oyarzo. ( See Hutchins Depo. 77:4–84:10 ¹¹; Burns Depo. 83:30–85:8, 92:16–24, 204:11–206:22.¹²) On June 8, 2010, Turner threatened to resign if the Board did not terminate Oyarzo. (Burns Depo. 85:2–4, 90:1–6, 207:16–20.) Finally, when the Board refused to vote to immediately terminate Oyarzo, Turner placed Oyarzo on a three-week forced vacation and told Oyarzo not to contact anyone at TFD. (Burns Depo. 225:15–227:12; Hart Depo. 126:18–127:8; Pltf. Ex. D7.) On June 28, 2010, TFD's Board voted to place Oyarzo on paid administrative leave. (MSUF # 6.)

Meanwhile, in July 2010, Oyarzo filed a reverse validation action challenging several Board members, including Joe Turner. (JSF O; Pltf. Ex. A4.) The action also requested invalidation of all votes taken since on or about May 2008 in which Joe Turner participated as part of a three-person majority. ( Id.) Joe Turner resigned from the Board on August 3, 2010. (JSF O; Turner Depo. 126:20–127:1.) On August 30, 2010, the TFD Board reconsidered all of the prior votes called into question by Oyarzo's validation action, including the previous vote “appointing Ben Oyarzo Fire Chief effective May 12, 2008.” (Pltf. Ex. A2 (TFD 836).) Although many of the confirming votes passed, the motion to retroactively confirm Oyarzo's appointment to the position of “Chief” in May 2008 did not pass. ( Id.)

On September 6, 2010, Oyarzo returned to work at the rank of Captain. (MSUF # 9.)

On September 14, 2010, the Board appointed Hockett and fellow Board member Ben Orr to handle TFD's day-to-day operations, with some limitations as to their authority over employees. (MSUF # 15.) Hockett served in this capacity until April 11, 2011. ( Id.)

On September 27, 2010, Oyarzo went on medical leave. (MSUF # 11.)

At the October 11, 2010 Board meeting, TFD was informed that it was approximately $50,000 “in the...