Weisbuch v. County of Los Angeles

• Decision Date: 11 July 1997
• Docket Number: No. 94-56497,94-56497
• Citation: 119 F.3d 778
• Parties: 97 Cal. Daily Op. Serv. 5500, 97 Daily Journal D.A.R. 8912 Jonathan WEISBUCH, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES, a Public Entity and Political Subdivision of the State of California; Robert C. Gates; Yvonne B. Burke; Gloria Molina; Edward D. Edelman; Michael D. Antonovich; Deane Dana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 778

119 F.3d 778

97 Cal. Daily Op. Serv. 5500, 97 Daily Journal

D.A.R. 8912

Jonathan WEISBUCH, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES, a Public Entity and Political Subdivision of the State of California; Robert C. Gates Yvonne B. Burke; Gloria Molina; Edward D. Edelman Michael D. Antonovich; Deane Dana, Defendants-Appellees.

No. 94-56497.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1996.

Decided July 11, 1997.

Laurence B. Labovitz, Los Angeles, CA, for plaintiff-appellant.

Kevin C. Brazile, Deputy Counsel, County of Los Angeles, Los Angeles, CA, for defendants-appellees.

Appeals from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-94-04149-MLR.

Before: FLETCHER, BEEZER and KLEINFELD, Circuit Judges.

Opinion by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge FLETCHER.

KLEINFELD, Circuit Judge.

We affirm the dismissal of a claim by a demoted medical director that his change in rank was unconstitutional retaliation for protected speech.

FACTS

The complaint was dismissed for failure to state a claim upon which relief could be granted, under Federal Rule of Civil Procedure 12(b)(6). We therefore determine whether, if the factual averments of the complaint were proved, they would establish a cause of action. National Wildlife Federation v. Espy, 45 F.3d 1337, 1340 (9th Cir.1995); Argabright v. United States, 35 F.3d 472, 474 (9th Cir.1994). The description of events below is a summary of the averments of the complaint.

Dr. Weisbuch was employed by the County of Los Angeles as Medical Director, within the Department of Health Services. Robert C. Gates, the Director of Health Services, was his supervisor and acted as appointing authority of personnel within the department. In 1993, Dr. Weisbuch told Mr. Gates that a number of people felt that the leadership of Mr. Gates's department "was not adequately listening to 'medical opinion' before decisions being made in the Department of Health Services." Dr. Weisbuch said that the medical leadership group wanted to write a letter to the County Board of Supervisors telling them that Mr. Gates's departmental leadership was not listening to them as it should, and that this had implications for a managed care program.

Mr. Gates responded by changing Dr. Weisbuch's position from Medical Director to Associate Medical Director. Mr. Gates told Dr. Weisbuch that he would be demoted from Medical Director to Associate Medical Director "because of his efforts to inform the Board of Supervisors of the opposition to Department of Health Services management in failing to consider qualified medical opinion in the decision-making process."

Dr. Weisbuch asserted a claim under 42 U.S.C. § 1983, as well as a California state claim, on the theory that he had not been given due process when his "property interest in his employment as Medical Director" was taken away from him. Additionally, Dr. Weisbuch claimed that his right to free speech was abridged by his demotion for expressing his opinion and proposing to express it to the Board of Supervisors. Additional state law claims were asserted as well. The members of the County Board of Supervisors, as well as Mr. Gates, were named as defendants, on the theory that they subsequently became aware of what Mr. Gates had done, should have responded by ordering Mr. Gates to reinstate Dr. Weisbuch as Medical Director, and did not.

Because our task is limited to deciding whether the averments of the complaint states a cause of action, we have no occasion to decide whether the averments are true. We also intimate no judgment about whether Dr. Weisbuch or Mr. Gates was right about the degree of deference given or which should be given to medical opinion in the department. Dr. Weisbuch's arguments on appeal are limited to his federal constitutional due process and free speech claims, so those are the only issues before us.

I. Due Process.

Dr. Weisbuch's due process claim was correctly dismissed, because, as a matter of law, Dr. Weisbuch had no property right in his position as Medical Director. A government employee is not entitled to due process based on deprivation of property, when removed from a position, unless the employee has "a legitimate claim of entitlement" to the position. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The position holder needs "an individual entitlement grounded in state law, which cannot be removed except 'for cause,' " Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982), in order to establish a deprivation of due process. Under California law, county charters, rules and regulations generally determine whether there is such an entitlement. Cal. Const. art. 11, § 4(f); American Fed'n of State, County & Mun. Employees Local 685 v. Los Angeles County, 146 Cal.App.3d 879, 194 Cal.Rptr. 540, 546 (1983).

The governing regulations establish that Dr. Weisbuch can claim no entitlement to his position. Los Angeles County Civil Service Rule 15.01 provides that the assignment of an employee to a "position" or "from one position to another," "is a matter of departmental administration." Under Rule 15.03(A), some employees, in carefully designated classes, are entitled to hold onto the "same rank" and the same "grade" when their classification is changed. Under Rule 15.03(B), other employees are entitled to retain their "grade," but do not enjoy the "same rank" proviso of Rule 15.03(A) employees:

15.03 Change of classification. A. Whenever it is found necessary to change the classification of an employee from a nonsupervisory class ... to any other class, such change may be made administratively by the appointing power or powers, provided both classes are of the same rank, there is no increase or decrease in grade, and the employee has demonstrated the possession of the skills and aptitudes required in the position to which the employee is to be changed. Such change of classification may be made only with the approval of the director of personnel.

B. Whenever it is found necessary to change the classification of an employee from a supervisory class not in a bargaining unit ... or a managerial class ... to any other class, such change may be made administratively by the appointing power or powers, provided there is no increase or decrease in grade, and the employee has demonstrated the skills and aptitudes required in the position to which the employee is to be changed.

Civil Service Rule 15.03 (emphasis added).

Dr. Weisbuch concedes that he was a Rule 15.03(B), not a 15.03(A), employee. Under Rule 15.03(B), Dr. Weisbuch's position and rank could be changed so long as he maintained his "grade." Unlike employees covered by Rule 15.03(A), he was not entitled to retain his "rank."

The County changed Dr. Weisbuch's position from Medical Director to Associate Medical Director. Whether this was a reduction in rank does not matter, because he was not covered by the rule entitling him to keep his rank. Dr. Weisbuch does not allege that the County reduced his "grade," and his grade was his only entitlement under the rules. He concedes that he kept the same grade and the same pay.

The above analysis is well established by California law. See Shoemaker v. County of Los Angeles, 37 Cal.App.4th 618, 43 Cal.Rptr.2d 774, 783 (1995) (doctor removed from supervisory position and transferred to a non-supervisory position had no "legitimate claim of entitlement to a specific position at the Medical Center" under the Civil Service Rules where his compensation and grade were not reduced); Allen v. City of Beverly Hills, 911 F.2d 367, 370 (9th Cir.1990).

II. Claim Against The County Board of Supervisors.

Dr. Weisbuch's claim against the members of the County Board of Supervisors was also properly dismissed, because he did not allege any personal participation by them in violating his constitutional rights. As he described how and when his position was changed, none of the members of the Board of Supervisors had any personal participation. Members of a governing board cannot be vicariously liable under section 1983 for conduct by employees. See Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir.1993).

Dr. Weisbuch attempts to aver personal conduct--that the members of the Board of Supervisors found out he had been removed from his position and refused to overrule the chief of his department and reinstate him. That argument must be rejected, because it would always permit an "end run" around Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978):

To hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983 law under the guise of Pembaur 's [Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ], "single decision" rule. We decline to endorse this end run around Monell.

Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir.1992).

III. First Amendment Claim.

Dr. Weisbuch argues that his First Amendment right to free speech was violated by his demotion. We affirm dismissal of the claim, because Dr. Weisbuch had no right to remain as medical director while insisting on a mode of administering his department contrary to his supervisor's policies.

Dr. Weisbuch did not speak to the Board of Supervisors of the County as a citizen upon matters of public concern. He did not speak to them at all. He spoke to his supervisor, expressing disagreement about the way his supervisor was running the department and threatening to go over his supervisor's head to the Board if the supervisor did not do what Dr. Weisbuch thought he should. He thought his supervisor should defer more to the opinions of physicians in the department.

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