Webb v. Cnty. of El Dorado

• Decision Date: 25 July 2016
• Docket Number: No. 2:15-cv-01189-KJM-EFB,2:15-cv-01189-KJM-EFB
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Parties: KELLY WEBB, Plaintiff, v. COUNTY OF EL DORADO; PAMELA KNORR; VERNON PIERSON; JOSEPH HARN; and DOES 1 through 50 inclusive, Defendants.

KELLY WEBB, Plaintiff,
v.
COUNTY OF EL DORADO; PAMELA KNORR; VERNON PIERSON;
JOSEPH HARN; and DOES 1 through 50 inclusive, Defendants.

No. 2:15-cv-01189-KJM-EFB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 25, 2016

ORDER

In this case asserting age and gender-based discrimination, the court previously granted motions to dismiss brought by the County of El Dorado (the County), Pamela Knorr and Vernon Pierson (collectively, "defendants"), with leave to amend. ECF No. 23. Plaintiff Kelly Webb filed her first amended complaint on January 18, 2016 as ordered. First Amended Complaint (FAC), ECF No. 26. Defendants now move to dismiss her amended federal claims. ECF Nos. 28-1, 29-1, 31-1. Plaintiff opposed. ECF No. 32. Defendants each replied. ECF Nos. 33, 34, 35. The court held a hearing on March 11, 2016. Douglas Watts appeared for plaintiff, C. Christine Maloney appeared for the County, Kristin Blocher appeared for Knorr, and John Bridges appeared for Vernon Pierson.

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As explained below, the motions are granted in full with leave to amend plaintiff's §§ 1985 and 1986 claims.

I. PROCEDURAL HISTORY

Plaintiff filed the original complaint against defendants Joseph Harn, Knorr, Pierson, and the County on June 2, 2015, alleging four state claims, which are not at issue here, and three federal claims: (1) a First Amendment claim against the County based on 42 U.S.C. § 1983, (2) conspiracy to violate her rights based on age and gender based on U.S.C. § 1985, and (3) neglecting to prevent the violation of her civil rights based on age and gender against all defendants. See generally ECF No. 1. Plaintiff subsequently voluntarily dismissed Harn a month later. ECF No. 7. Defendants Knorr, Pierson, and the County each moved to dismiss the federal claims. ECF Nos. 9, 10, 12. As noted, on December 23, 2015, the court granted the motion to dismiss in full with leave to amend. Order, ECF No. 23. Plaintiff's first amended complaint sets forth seven claims: (1) violations of civil rights law, 42 U.S.C. § 1983 against defendant County; (2) conspiracy to violate plaintiff's civil rights based on her gender, 42 U.S.C. § 1985 against all defendants; (3) neglect to prevent violation of civil rights law, 42 U.S.C. § 1986 against all defendants; (4) age discrimination under Fair Employment and Housing Act (FEHA), California Government Code section 12940, et seq. against defendant County; (5) gender-based discrimination under FEHA against defendant County; (6) retaliation under FEHA against defendant County; and (7) failure to prevent discrimination and retaliation under FEHA against defendant County. At issue here are the first three federal claims.

II. JUDICIAL NOTICE

In support of its pending motion, the County requests the court to take judicial notice of the following exhibits:

(1) Exhibits A-E: Minutes of the County's Board of Supervisors (the Board) meetings;

(2) Exhibit F: Resolution No. 127-2011 adopted by the Board to assign responsibility for the role of County Chief Technology Officer to Vern Pierson;

(3) Exhibit G: A staff memo by Terri Daly in support of Resolution No. 127-2011;

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(4) Exhibit H: Excerpt of Resolution No. 015-2014 adopted by the Board to update the language in the County of El Dorado Personnel Rules;

(5) Exhibit I: Resolution No. 199-2014 adopted by the Board on November 21, 2014, to specify the number and classification of all authorized positions for each department of the County;

(6) Exhibit J: A staff memo by Pierson in support of Resolution No. 199-2014; and

(7) Exhibit K: Excerpts of the County's salary schedule.

ECF No. 30, Exs. A-K. Plaintiff does not oppose the request for judicial notice. The documents, other than the salary schedule, are all available to the public online at the County's Board of Supervisors' website. See https://www.edcgov.us/BOS/.

Minutes of a government agency's board meeting may be judicially noticed as public records. Sumner Peck Ranch, Inc. v. Bureau of Reclamation, 823 F. Supp. 715, 724 (E.D. Cal. 1993). This court previously has found a County's Board of Supervisors' resolutions and administrative decisions are judicially noticeable. Sacramento Cty. Retired Employees Ass'n v. Cty. of Sacramento, 975 F. Supp. 2d 1150, 1154 (E.D. Cal. 2013) (citations omitted). Staff memoranda are also judicially noticeable. Comm. for Reasonable Regulation of Lake Tahoe v. Tahoe Reg'l Planning Agency, 311 F. Supp. 2d 972, 1000 (D. Nev. 2004). Lastly, information on government agency websites is also frequently a proper subject for judicial notice. Paralyzed Veterans of Am. v. McPherson, No. 06-4670, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008). The court takes judicial notice of the fact these documents, including the one excerpt, exist.

III. FACTUAL ALLEGATIONS

Plaintiff is a 53-year-old woman without a college degree. FAC ¶¶ 1, 39. She worked for the County full-time from May 11, 1985 until her premature retirement in 2015. Id. ¶ 11. Plaintiff was chosen by then-Chief Administrative Officer (CAO) Terri Daly to oversee the County's Information Technologies (IT) Department on February 15, 2011, and was formally appointed as acting IT Director in March 2011, and provided with a substantial pay raise by the County. Id.

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In July 2013, the Board unanimously voted to approve plaintiff as the permanent IT Director. Id. ¶ 13. A month later, the Board reversed its decision, and plaintiff became the interim IT Director, allegedly because of disparaging comments made by the County's Auditor Joseph Harn regarding plaintiff's professional abilities. Id. ¶ 14. In the same month, former County HR Director Knobelauch resigned and Knorr was appointed the new HR Director, effective September 7, 2013. Not long after defendant Pierson, the County's District Attorney (DA) and Chief Technology Officer (CTO), asked plaintiff about her retirement plans. Id. ¶ 17. Plaintiff told Pierson she had no intention of retiring. Id.

Subsequently, Pierson and Knorr met on several occasions without plaintiff to discuss changing the IT Department's management structure. Id. ¶ 18. Plaintiff learned from David Russell, who was the Assistant IT Director at the time, that the meeting was part of a plan to remove plaintiff from her interim IT Director position. Id.

Pierson asked plaintiff about her retirement plans again some time later. He told plaintiff there were "political issues brewing" within the County, and her employment future was thus "not safe." Id. ¶ 19. Specifically, there was "a very good chance" Joe Harn would win the re-election and remain County Auditor for another four years, and, if Harn were re-elected, Pierson said plaintiff would likely lose her job. Id. Pierson urged plaintiff to "think about [her] options" and move out of IT into another department, because "sometimes bad things happen to good people." Id.

On the same day, plaintiff met with Daly and, later on February 12, 2014, with Knorr to complain about Pierson's comments, because she believed Pierson's comments were discriminatory and motivated by plaintiff's age and gender. Id. ¶¶ 20-21. Knorr brushed her concerns aside and instead asked plaintiff if there were any positions plaintiff would be interested in, other than the IT Department Director. Id. ¶¶ 21, 30.

On or about February 13, 2014, Daly informed plaintiff she had followed up with Pierson regarding plaintiff's complaint. Id. ¶ 22. Pierson later apologized in light of the fact that plaintiff's father had recently passed away when he made his comments to her. Id. However, Pierson continued to pressure plaintiff to leave the IT Department. Id.

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Daly later spoke up for the County's employees who had been subject to workplace treatment such as favoritism, ageism, sexism, harassment, and retaliation, at a public Board meeting on May 13, 2014. Id. ¶¶ 23-24. Prior to that meeting, Daly had also drafted and circulated a memorandum to the Board members. Id. ¶ 24. The memorandum stated many County employees worked in fear of bullying, retaliation, and losing their jobs. Id. At the meeting, plaintiff, and another County employee Mike Applegarth, spoke as well about the culture of bullying, harassment and retaliation in the County that they perceived. Id. ¶ 25.

Meanwhile, also in May 2014, Daly informed plaintiff that Knorr would be recruiting applicants for the IT Director position, and plaintiff would need to compete for the position with others. Id. ¶ 26. In June 2014, Pierson told plaintiff the same. Both Knorr and Pierson told plaintiff she did not "have what it takes to take the team to the Super Bowl." Id. ¶¶ 26-27. The County's decision to recruit competitively was a reversal from its previous decision, which had allowed plaintiff to waive a "competitive recruitment process" given plaintiff's abilities and performance demonstrated over the years. Id. ¶ 15.

Meanwhile, the Board removed Daly from her role in implementing the County's "Cultural Assessment" and "Respectful Workplace" projects, and, with Knorr and Pierson, pressured Daly to reprimand Assistant County CAO Kim Kerr in an effort to terminate Kerr. Id. ¶ 28. Daly refused to reprimand Kerr as Daly believed Kerr had done nothing wrong. Id. Daly resigned in November 2014. Id. Applegarth went out on state disability due to stress soon after, allegedly because Harn had retaliated against and threatened him. Id. ¶ 29.

Between June 16, 2014 and July 31, 2014, the County's "Respectful Workplace Special Master" complaint and review process opened. Id. ¶ 30. Plaintiff met with Knorr and Mary Egan from MRG Consulting, the County's Cultural Assessment vendor. Id. Rather than discussing the work culture, Egan asked plaintiff questions about the IT Director recruitment and plaintiff's qualifications with respect to the position. Id. At the conclusion of the meeting, Knorr asked plaintiff to let her know whether there were any other positions plaintiff would be interested in. Id.

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