Zertuche v. Cnty. of Santa Clara
| Decision Date | 17 April 2013 |
| Docket Number | Case No.: 11-CV-3691 YGR |
| Court | U.S. District Court — Northern District of California |
| Parties | HOSETTA ZERTUCHE, Plaintiff, v. COUNTY OF SANTA CLARA, et al., Defendants. |
Plaintiff Hosetta Zertuche ("Zertuche") brought this action under 42 U.S.C. § 1983, alleging that she suffered adverse action by Defendants County of Santa Clara ("the County" or "County Counsel"), James Gleason ("Gleason"), Sandra Eovino ("Eovino"), and Kimberly Maruffi ("Maruffi") (collectively, "Defendants") in retaliation for protected speech in violation of her First Amendment rights. Defendants moved for summary judgment on the grounds that Zertuche cannot establish a First Amendment violation. (Dkt. No. 19, Defendants' Motion for Summary Judgment and Memorandum of Points and Authorities in Support thereof ["Motion"] at 1.) Zertuche has conceded summary judgment and withdrawn her claims against all defendants except her supervisor, Gleason. (Dkt. No. 30, Plaintiff's Memorandum of Points and Authorities in Opposition to Motionfor Summary Judgment or, In the Alternative, Partial Summary Judgment ["Oppo."] at 1.) The Court heard the parties' arguments on October 9, 2012.
Having carefully considered the papers submitted, the admissible evidence, and the pleadings in this action, and for the reasons set forth below, the Court:
(1) GRANTS Defendants' motion as to the County, Eovino, and Maruffi on the grounds that Zertuche has withdrawn her claims against them, and
(2) DENIES the motion as to Gleason on the grounds that: (a) there are triable issues of fact as to whether his conduct violated Zertuche's First Amendment rights; and (b) taking the evidence in the light most favorable to Zertuche, as the Court must do on summary judgment, Gleason is not entitled to qualified immunity.
Zertuche brings this action for retaliation in violation of her First Amendment free speech rights under 42 U.S.C. § 1983. She alleges that Gleason retaliated against her for speech made outside the scope of her job duties on a matter of public concern, "namely whether the County was operating the [Independent Defense Counsel Office] in a proper and ethical manner." (Dkt. 1, Complaint, ¶ 17.) Zertuche alleges that, following her complaints to management concerning a breach of County ethics policies, she was treated harshly by Gleason, given a poor performance rating, and reassigned to a different unit within the County Counsel's office. (Id. at ¶ 14, 15.)
A. The Independent Defense Counsel's Office
Zertuche is a legal secretary in the Office of the County Counsel, County of Santa Clara. Between 2008 and December 22, 2010, she was assigned to the Independent Defense Counsel Office ("IDO"). (Id.) IDO serves as a criminal defense attorney referral agency. Matters are referred to IDO when the Office of the Public Defender or the Office of theAlternate Defender has a conflict of interest. (Id.) IDO then reviews the cases and, with the exception of representing parents charged with contempt in child support matters, refers cases to private defense attorneys through its panel network program. (Id.) On most matters, IDO plays a limited role, providing recommendations for experts or other specialists, as well as reviewing and approving invoices for payment submitted by panel attorneys.
Although the Office of the County Counsel oversees IDO, because IDO is a conflicts referral program, it is required to operate autonomously from County Counsel. Two policies ensure that IDO maintains an autonomous operation to protect attorney-client confidences: (1) the County of Santa Clara, Office of the County Counsel, Office Administrative Policies, 6.14 ("Administrative Ethical Wall Policy"), and (2) the Office of County Counsel's Ethical Wall Policy Statement for the Independent Defense Counsel Office ("IDO Ethical Wall Policy Statement"). The IDO Ethical Wall Policy Statement includes the following:
Every attorney, paralegal, and staff member working for County Counsel and IDO will be instructed on this policy and shall be expected to strictly adhere to the policy to ensure that client confidences are maintained at all times and to ensure the absolute separation between County Counsel and IDO.
(Id., Exh. B ¶13.) The Administrative Ethical Wall Policy provides, in relevant part, "[a]ll staff will be trained on this policy and shall be expected to ensure client confidences are maintained." (Id., Exh.A, p. 3.)1
In 2010, Gleason was the Director of IDO. (Gleason Aff. ¶ 1-2.) The IDO was also staffed by two full-time attorneys, one part-time attorney, one paralegal, Ngoc Lam ("Lam"), and a legalsecretary, Zertuche. (Id. at ¶3.) Zertuche provided administrative support to Gleason and IDO staff attorneys. Although not specifically included in her job duties, Gleason and Zertuche also established a practice whereby she was permitted to select which panel attorneys would be assigned to Level 1 and Level 2 cases,2 after reviewing the information she received from counsel or from the court, without needing Gleason's approval. On higher level cases, if Gleason was not in the office to take the referral personally, Zertuche would speak with the attorney or court staff, briefing Gleason and recommending the appropriate match when he returned. (Id. at 106:3-20.) Gleason acknowledged that selecting attorneys for referrals and recommending referrals to him was one of Zertuche's favorite aspects of the job. (Adams Dec., Exh. 4 at 45:8-11.)
While Gleason assigned work to Zertuche, Zertuche officially reported to her administrative manager. Until May 24, 2010, that administrative manager was Barbara Stimac ("Stimac"), and thereafter it was Maruffi. (Affidavit of Kimberly Maruffi ("Maruffi Aff.") ¶ 2.)
Sometime in April or May of 2010, Lam, the paralegal, was transferred from IDO to County Counsel's Probate Department. (Zertuche Dec. ¶ 3.) Although Lam was no longer working for IDO Zertuche observed that Lam returned to the IDO offices almost daily to visit Gleason and others, and performed some work on IDO administrative matters. (Id. ¶¶ 3-4.)3 On one occasion in mid-2010, Zertuche entered Gleason's office to find Lam handling invoices submitted by IDO panel attorneys. (Id. ¶ 3.) Invoices occasionally include information such as the names of criminal defendants beingrepresented by panel attorneys, the criminal charges against the defendants, and information regarding how panel attorneys are approaching representation of their clients. (Id.) On another occasion, unbeknownst to Zertuche, Lam was standing in the doorway to Gleason's office while Zertuche was briefing Gleason on criminal cases that had been referred to the IDO. (Id.) Zertuche noticed other instances in which Lam was nearby and within earshot while she was in the midst of discussing confidential information about new or existing IDO clients on the phone with Gleason or other IDO staff. (Id.)
Zertuche believed that Lam's visits to IDO and work on IDO matters after she had transferred to a different department constituted a breach of the Ethical Wall Policy. (Zertuche Dec. ¶¶ 4, 10.) Zertuche approached Gleason and expressed her concern that Lam's visits to IDO likely violated the Ethical Wall Policy. (Id. ¶ 4.) Gleason indicated there was no reason for concern. (Id.)
Zertuche then expressed her concerns to Stimac (now Lam's administrative manager) and Maruffi. (Zertuche Dec. ¶ 4.) On October 28, 2010, Zertuche sent an email to Stimac and Maruffi regarding Lam's presence in the IDO office area. (Zertuche Dec., Exh. 1.) In early November, Zertuche met with Maruffi to discuss her concerns that Lam's visits violated the Ethical Wall Policy. (Id. ¶ 4.)
Sometime shortly after that meeting, Maruffi and Stimac met with Gleason to inform him that Zertuche had complained about Lam's frequent visits to IDO. They told Gleason that Lam was going to be restricted from visiting other than at break times. (Adams Dec., Exh. 4 at 106:24-107:8.) Maruffi testified that during this meeting, she and Stimac told Gleason that Zertuche's complaints were based on the Ethical Wall Policy. (Adams Dec., Exh. 2 ["Maruffi Depo."] at 60:24-61:4, 62:12-20.) Maruffi thereafter conveyed to Zertuche that Lam had been told to limit her IDO visits to break time only. (Adams Dec., Exh. 4 at 23:10-14, 106:24-107:8.)
Around this same time period, Sandra Eovino, County Counsel's Administrative Services Manager, became aware of Zertuche's complaints and began to investigate Lam's presence in the IDO offices. Stimac showed Zertuche's email to Eovino around October 29, 2010. (Adams Dec., Exh. 3 at 24:11-26:2.) On or about November 4, 2010, Eovino met with Gleason about Lam's frequent visits to IDO. (Id. at 26:1-27:10; Adam Dec., Exh. 4 at 107:22-108:10.) Gleason indicated that Lam was performing work for IDO. Eovino asked if Lam had signed a confidentiality agreement pursuant to the Ethical Wall Policy. (Adams Dec., Exh. 3 at 27:16-28:11.) Eovino then informed Gleason that Lam was barred from all further visits to IDO, and that Lam needed to sign a confidentiality agreement in order to continue the work that she had been conducting for IDO panel attorneys. (Adams Dec., Exh. 4 at 108:2-10, 123:12-124:33.)
Beginning shortly after his meeting with Eovino, Gleason began treating Zertuche "in a consistently angry and harsh manner that contrasted starkly with the consistently genial manner" he had shown her before. Within a week of the meeting with...
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