San Bernardino Public Employees Ass'n v. Stout, EDCV 96-0136 RT (VAPx).
| Decision Date | 13 November 1996 |
| Docket Number | No. EDCV 96-0136 RT (VAPx).,EDCV 96-0136 RT (VAPx). |
| Citation | 946 F.Supp. 790 |
| Court | U.S. District Court — Central District of California |
| Parties | SAN BERNARDINO PUBLIC EMPLOYEES ASSOCIATION, Margaret Flynn and Verna Carey, Plaintiffs, v. Dennis STOUT, Clyde Boyd, Daniel Lough, and the County of San Bernardino, Defendants. |
Paul Crost, a Member of Reich, Adell, Crost & Cvitan, Los Angeles, CA, for Plaintiff.
Dennis J. Mahoney, MacLachlan, Burford & Arias, San Bernardino, CA, Dennis E. Wagner, Deputy County Counsel, Alan K. Marks, County Counsel, San Bernardino, CA, for Defendant.
ORDER DENYING THE MOTION OF DEFENDANTS DENNIS R. STOUT, CLYDE BOYD, AND DANIEL LOUGH TO DISMISS PLAINTIFFS' FIRST CLAIM FOR FAILURE TO STATE A CLAIM; GRANTING THE MOTION TO DISMISS PLAINTIFFS' SECOND CLAIM; DENYING THE ALTERNATIVE MOTION TO STRIKE, AND DENYING THE ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT
Defendants Dennis R. Stout's (Stout's), Clyde Boyd's (Boyd's) and Daniel Lough's (Lough's) (collectively defendants') motion to dismiss the complaint of San Bernardino Public Employees Association (SBPEA), Margaret Flynn (Flynn) and Verna Carey (Carey) (collectively plaintiffs) for failure to state a claim, or alternatively to strike or for a more definite statement, was submitted for decision. The court, the Honorable Robert J. Timlin, has read and considered the moving, opposing and reply papers.
Joseph Arias and Dennis Mahoney of MacLachlan, Burford & Arias appeared for defendants.
Paul Crost, Paul E. Harris III and Jennifer Orff of Reich, Adell, Crost & Cvitan appeared for plaintiffs.
The court concludes as follows:
I.
On April 9, 1996, plaintiffs filed against defendants County of San Bernardino (County), Stout, Boyd, and Lough a complaint for injunctive and declaratory relief and for damages pursuant to 42 U.S.C. section 1983, 28 U.S.C. section 2201 and the First and Fourteenth Amendment. The complaint contains in part the following allegations:
SBPEA is a California non-profit corporation, and the recognized exclusive bargaining representative of all non-management County employees who are not peace officers, including all non-managerial employees of the Office of the District Attorney who are not peace officers.
Flynn and Carey are both currently employed as deputy district attorneys, and each has been a County employee for many years.
Stout is the elected District Attorney, and as such is the head of the department in which Flynn and Carey work.
Boyd is an assistant district attorney with the responsibility of supervising the Child Support Division (CSD) of the Office of the District Attorney.
Lough is also an assistant district attorney with the responsibility of supervising the Criminal Division of the Office of the District Attorney.
On or about September 23, 1995, a letter with the typed language "signed Child Support Division Employees" was sent to Stout, County's Board of Supervisors, the San Bernardino Sun newspaper, and SBPEA (the letter). This letter, attached as Exhibit A to plaintiffs' complaint, referred to previous letters sent to Stout and to Stout's alleged failure to correct work-related situations apparently complained of in those earlier letters. The letter accused Stout of (1) mismanaging the CSD, (2) granting special dispositions on cases involving his friends and political allies with the resulting reduction of County's collections of child support arrearages by at least $250,000, (3) misappropriating federal and state funds earmarked for the CSD to the Criminal Division, (4) misusing other such funds for inappropriate purposes, and (5) condoning Boyd's alleged sexual harassment of CSD employees.
The letter also (1) accused Boyd of engaging in unspecified sexual conduct with the CSD branch manager within the view of other employees, (2) noted that it was inappropriate that Boyd had been named as the person in the CSD to whom complaints of sexual misconduct should be directed, and (3) indicated that the sender(s) of the letter had videotaped Boyd and the branch manager's alleged sexual conduct occurring "on County time and on County property."
The letter concluded by threatening (1) to release the videotape if the "cover-up" continued, (2) file a suit in federal court, and/or (3) stage lunch-time demonstrations on Hospitality Lane in the City of San Bernardino if Stout did not take action to resolve the above-described problems.
On or about October 12, 1995, Valley Wide Newspapers, the publisher of five weekly newspapers serving the mountain, desert and Apple Valley areas of San Bernardino County, published an article dealing with the allegations in the letter in each of its newspapers, a copy of which article is attached to the complaint as Exhibit B. Thereafter, the San Bernardino Sun and other newspapers published in San Bernardino County also published stories based on the allegations contained in the letter.
After the publication of these articles, Stout began an investigation ostensibly about the incidents described in the letter, but in reality to determine who had written the letter. Stout apparently believed that Flynn and Carey were the authors, and the investigation was designed to determine if they were, and, if not, who was.
On or about November 2, 1995, Stout issued a memorandum to Flynn and Carey, placing them on administrative leave for an indefinite period of time pending the outcome of "an investigation." The memoranda, copies of which are attached to the complaint as Exhibit C, stated, in relevant part:
This effectively placed Flynn and Carey under "house arrest" and imposed a gag order on them which precluded them from protesting Stout's action, inquiring about the reason for the leave, or gathering any information which they could use to rebut any charges against them. This caused Flynn and Carey shock and humiliation, prevented them from communicating with their families, friends and colleagues about their sudden absence from work, and made them the subject of substantial press coverage, including statements in news stories which described them as being under "house arrest."
Flynn and Carey's humiliation, embarrassment and emotional distress were significant because the public was led to believe that they were charged with misconduct of a serious nature because administrative leave is usually a personnel action used to deal with employees suspected of gross misconduct or who present an immediate threat of harm to other employees and/or the public.
The primary purpose and effect of placing them on administrative leave and imposing a gag order was to chill their and other employees' exercise of their First Amendment rights to speak, assemble, and petition the government for redress of grievances. In addition, the gag orders also precluded Flynn and Carey from responding to allegations of misconduct made by others and from protecting their reputation in the community. Plaintiffs allege that neither the administrative leave nor the gag orders were necessary for the achievement of any legitimate governmental objective.
In addition to placing Flynn and Carey on administrative leave and issuing the gag orders, Stout also directed and oversaw an investigation of the CSD which involved the coercive interrogation of numerous CSD employees in an attempt to discover if Flynn and Carey had written the letter and, if not, who had. Employees were threatened with discipline if they withheld information related to the identity of the letter's author or authors. When these interrogation techniques were coupled with the harsh action taken against Flynn and Carey, both of whom were respected, long-term deputy district attorneys, the effect was to instill great fear in the CSD employees and to deter them from speaking about matters of public concern, including reporting improper conduct by Stout, Boyd, and others.
Flynn and Carey were directed to return to work on November 30, 1995, at the conclusion of the investigation. On or about November 29, 1995, a letter of reprimand was issued to each of them by Lough, allegedly at the behest of Stout, accusing each of them of various acts of misconduct, and referring to specific incidents in support of such charges. A copy of the letter issued to each of them is attached to the complaint as Exhibits D and E.2 These letters ordered them to, among other things, to "cease any derogatory . . . remarks about or to, any other County employee," to "not make any inaccurate statement," to stay away from work areas other than her own assigned area except on official business, to "not engage in any gossip, rumormongering, or discussion of any personnel matter," to "not engage in any conduct that is prejudicial to good order and discipline, good morale or effectiveness of any work unit," and to "not defy authority or demonstrate the same in any manner."
The charges of misconduct contained in the letters of reprimand were false and pretextual, that Stout and Lough knew them to be false or made them with reckless disregard for their truth, and that the purpose of the reprimand was to punish Flynn and Carey and to bar them from speaking about matters of public concern which Stout, Lough, and Boyd did not want disclosed to the public or any governmental agencies, including the Board of Supervisors of the County. Although plaintiffs demanded that the letters of reprimand be withdrawn, defendants have refused to do so.
On December 4, 1995, Boyd, allegedly at the direction of Stout, issued an interoffice memorandum to all CSD employees notifying them of a new...
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