Turner v. City & Cnty. of S.F.

• Decision Date: 19 November 2012
• Docket Number: No. C–11–1427 EMC.,C–11–1427 EMC.
• Citation: 892 F.Supp.2d 1188
• Parties: Peter TURNER, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

892 F.Supp.2d 1188

Peter TURNER, Plaintiff,

v.CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C–11–1427 EMC.

United States District Court,

N.D. California.

Aug. 29, 2012.

Order Denying Reconsideration Nov. 19, 2012.

G. Whitney Leigh, Matt Gonzalez, Gonzalez & Leigh, LLP, San Francisco, CA, for Plaintiff.

Rose–Ellen Heinz Fairgrieve, City Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Docket No. 42)

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

On December 22, 2010, Plaintiff Peter Turner filed suit against the City and County of San Francisco (“CCSF”), the San Francisco Department of Public Works (“DPW” or “SFDPW”), Director of Public Works Ed Reiskin, SFDPW Manager Bruce Storrs, DPW Manager Barbara Moy, and DPW Human Resources Representatives Tammy Wong and Doris Urbina, arising from his employment with DPW. Docket No. 1. On March 24, 2011, Defendants removed to federal court. The operative Fourth Amended Complaint (“FAC”) alleges, inter alia, retaliation and deprivation of due process, and raises claims under Cal. Code Civ. P. § 526a; Cal. Labor Code §§ 98.6, 1102.5; Cal. Govt. Code § 12653; Cal. Govt. Code § 8547; and 42 U.S.C. § 1983. FAC, Docket No. 40. Pending before the Court is Defendants' motion to dismiss Plaintiff's FAC. Docket No. 42. Having considered the parties' briefs and oral argument, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss.

II. FACTUAL & PROCEDURAL BACKGROUND

Plaintiff's FAC alleges as follows. Plaintiff began applying for a position with DPW in 2003. FAC ¶ 8. He applied for three positions with the City and County of San Francisco: (1) survey assistant or “5310,” (2) survey assistant 2 or “5312”; and (3) survey associate or “5314.” Id. Plaintiff alleges he was qualified for each position but never hired. He then applied for a survey assistant 2 position with the Millbrae office of SFPUC in 2005, for which he was also qualified but not hired. FAC ¶ 9. He again applied for two 5310 positions in 2006 with DPW, for which he was not hired. FAC ¶¶ 10–11. Instead, less qualified people favored by Defendant Storrs received the position. Id.

Another 5310 position opened up in early 2007, for which Plaintiff again applied. FAC ¶ 13. Plaintiff interviewed for the position, and then took the civil service exams for all three survey positions. FAC ¶¶ 13–14. Plaintiff received the highest score on all three exams. FAC ¶¶ 14, 35–38. Plaintiff was hired for a survey assistant position. FAC ¶ 15.

On June 19, 2007, Plaintiff began work as a survey assistant. FAC ¶ 16. However, he alleges he was not informed that he had been hired as a temporary exempt employee, rather than in a permanent civil service position, until the day he started work. FAC ¶ 17. He had interviewed and tested for a permanent position. FAC ¶ 17. Five others were also hired as temporary exempts. FAC ¶ 18. Plaintiff alleges it was illegal to hire him and others as temporary exempts because Article Ten of the City Charter requires such employees to work on only one capital improvement project; in contrast, Plaintiff worked on numerous tasks throughout the department. FAC ¶ 19. He further alleges that he worked out of class from the first day of his employment and given extra responsibility not commensurate with his low pay and temporary status. FAC ¶¶ 22–24. Plaintiff's high level of responsibility did not comport with Defendant Storrs's public acknowledgment of Plaintiff's role, and Mr. Storrs refused to officially promote him. FAC ¶¶ 24–25. Mr. Storrs and Mr. Hanley (the Chief Surveyor) also attempted to force Plaintiff to sign off on maps and surveys he had not seen, and Mr. Hanley falsely signed maps based on surveys Plaintiff had done. FAC ¶ 26.

Plaintiff continued to attempt to obtain a promotion and/or permanent status. Later in 2007, three survey associate positions opened up, but Plaintiff was told not to apply for them because Mr. Storrs had already selected people for them. FAC ¶ 21. All three new hires were for permanent positions, although two people were less qualified than Plaintiff and a third tested lower than Plaintiff. Id.

DPW's use of temporary exempt employees, and failure to use objective criteria to hire permanent employees, resulted in negligent surveying work. FAC ¶¶ 28–29. Plaintiff alleges that the temporary exempt hiring practices were part of a larger scheme, through which DPW underbid on survey work in order to “corner the market,” and made up the money by overcharging the public for “mapping fund fees.” FAC ¶¶ 30–32. Mr. Storrs acknowledged that this set-up “made the department money.” FAC ¶ 32. Plaintiff alleges it was illegal to use mapping fund fees to offset the cost of low survey bids. FAC ¶ 31.

Plaintiff “began speaking out against” Defendants' practices, including “at staff meetings; at union meetings; and in face-to-face meetings with Mr. Storrs and DPW and Human Resources officials. Plaintiff also repeatedly raised the fact that he and other temporary exempts were working out of class on a regular basis.” FAC ¶ 32. Mr. Storrs and other DPW officials knew of Plaintiff's concerns. FAC ¶ 33. At some point, “Plaintiff was assigned to map checking, a position Storrs openly acknowledged he used to punish individuals who did not ‘follow instructions.’ ” FAC ¶ 40.

Plaintiff alleges further that in 2009, the Human Resources Department sabotaged Plaintiff's efforts to apply for survey work at the airport. FAC ¶ 41. In response, “he wrote to the Human Resources agent handling the position and told her that he planned to expose these policies and report them to whatever authority would hold them responsible.” FAC ¶ 42. In the aftermath of this letter, Plaintiff was summoned to a meeting with Defendants Wong, Moy, and Storrs, in which he was “asked hostile and intimidating questions by Storrs.” FAC ¶ 43. Plaintiff again voiced his concerns about Defendants' unlawful practices in the meeting. FAC ¶ 44. Immediately thereafter, Mr. Storrs informed Plaintiff he would be fired. FAC ¶ 45. DPW Director Reiskin sent Plaintiff a letter the next day confirming his termination. Id. After he was fired, DPW refused to provide Plaintiff with information about continuing health insurance and available coverage. FAC ¶ 46.

After his termination, Plaintiff continued to seek opportunities to apply for posted survey positions with the City, but Storrs was permitted to select his choices “without regard to objective standards.” FAC ¶¶ 47–50. Defendant Urbina “ignored” his application, and informed him that his application had been rejected. FAC ¶ 49.

Plaintiff further alleges that as of June 2010, the five temporary exempts working for DPW were rendered permanent employees when their employment continued after their exempt tenure expired. FAC ¶ 51. Plaintiff alleges this practice violated Rule 18 of Article 10 of the City Charter. Id.¹ They were hired as temporary exempts “to allow for vetting and subjective selection of employees in violation of the City Charter.” Id.

Plaintiff filed a timely charge of discrimination with the Department of Fair Housing and Employment (“DFHE”), and received a right to sue letter on February 22, 2011. FAC ¶ 53.

On March 24, 2011, Plaintiff filed suit in the instant case. Docket No. 1. His FAC raises claims for illegal and wasteful expenditure of funds in violation of California Code of Civil Procedure § 526a, retaliation under §§ 98.6 and 1102.5 of the California Labor Code, retaliation under the California False Claims Act, California Government Code § 12653, retaliation under California Government Code § 8547, denial of due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and retaliation in violation of the First Amendment. Plaintiff seeks, inter alia, damages, back pay, reinstatement, statutory penalties, and injunctive and declaratory relief.

Although the operative complaint is Plaintiff's Fourth Amended Complaint, this is Defendants' first motion to dismiss to be heard by the Court. Defendants seek dismissal of all claims.

III. DISCUSSION

A. Legal Standard

Under Rule 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. “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 misconductalleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

B. Cal. Code Civ. P. § 526a

Defendants first challenge Plaintiff's cause of action under California Code of Civil Procedure § 526a, which authorizes taxpayer actions “restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county ... against any officer thereof.” Cal. Civ. Proc....