398 ORDER Bench Trial
398 ORDER Bench Trial
1
2 UNITED STATES DISTRICT COURT
3 EASTERN DISTRICT OF CALIFORNIA
4 DAVID F. JADWIN, D.O., 1:07-CV-00026-OWW-DLB
5 Plaintiff, FINDINGS OF FACT AND
6 CONCLUSIONS OF LAW
v.
7 COUNTY OF KERN,
8 Defendant.
9
10 I. INTRODUCTION
22 under the FMLA and the California Family Rights Act (“CFRA”); (3)
27 in violation of the FEHA. The jury found against the County on its
1
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 2 of 36
2
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 3 of 36
3
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 4 of 36
4
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 5 of 36
5
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 6 of 36
6
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 7 of 36
7
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 8 of 36
1 his modified work schedule and that, during the meeting, Bryan
6 any good.
22 reduced Plaintiff’s base salary and altered his job duties. The
28 15. Plaintiff resumed working for the County at KMC under the
8
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 9 of 36
28 Pay” provides:
9
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 10 of 36
12
20. Plaintiff’s operative employment agreement provides that
13
Plaintiff is subject to “all applicable KMC and County policies and
14
procedures.” (Pl. Ex. 139 at 139.014.)
15
21. Plaintiff remained on paid administrative leave until his
16
employment agreement expired on October 4, 2007.
17
22. Plaintiff continued to receive his base salary while on
18
administrative leave. Culberson acknowledged, however, that he was
19
aware that by placing Plaintiff on administrative leave, Plaintiff
20
would not be able to earn professional fees (which Plaintiff could
21
earn in accordance with his employment agreement). Plaintiff's
22
expert witness, Stephanie Rizzardi, testified that Plaintiff lost
23
professional fees while on paid administrative leave.
24
23. The jury awarded damages for lost professional fees and
25
earnings.
26
24. In connection with Plaintiff’s placement on paid
27
administrative leave, the County did not provide Plaintiff with a
28
10
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 11 of 36
5 A. FMLA/CFRA Claim
11 528 U.S. 167, 180 (2000); Arizonans for Official English, 520 U.S.
12 at 64, 67; ACLU v. Lomax, 471 F.3d 1010, 1015-16 (9th Cir. 2009).
16 Power Agency v. Bonneville Power Admin., 297 F.3d 833, 843 (9th
27 67.
11
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 12 of 36
6 16.
11 974, 985 (9th Cir. 2007). Likewise, such claims must be analyzed
24 plaintiff
12
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 13 of 36
1 injunctive relief.”
6 United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (emphasis
19
2
Without citing any authority, Plaintiff argues that the
20 federal concern for standing is “ameliorated where state law
21 specifically authorizes injunctive relief.” The case-or-
controversy requirement, mandated by the United States Constitution
22 and applicable in federal court, is not “ameliorated” by state law.
In federal court, Article III standing requirements are equally
23 applicable to state law claims. See Qwest Corp. v. City of
24 Surprise, 434 F.3d 1176, 1180 (9th Cir. 2006); Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir.
25 2004) (reversing district court’s conclusion that plaintiff had
standing to pursue an injunctive relief claim under state law); Lee
26 v. Am. Nat’l Ins. Co., 260 F.3d 997, 1001-02 (9th Cir. 2001);
27 Cantrell v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001).
Plaintiff’s claim for injunctive relief under the CFRA is not
28 exempt from Article III standing requirements.
13
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 14 of 36
9 disability.” 471 F.3d 1033, 1036 (9th Cir. 2006). The court
12 relief she seeks.” Id. at 1037. The court noted that the
15 returning to work” for the defendant. Id. “Therefore, she would not
18 Id. She thus “lacked standing to sue for injunctive relief from
19 which she would not likely benefit.” Id.; cf. Arizonans for
25 in the private sector, where her speech was not governed by Article
14
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 15 of 36
13 thereafter).
20 County.
24 rights under the FMLA/CFRA. "Art. III judicial power exists only
15
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 16 of 36
4 he requests be “trained.”3
16 time frame: The requisite personal interest that must exist at the
19
3
Plaintiff argues that Armstrong v. Davis, 275 F.3d 849, 861
20 (9th Cir. 2001) supports the conclusion that Plaintiff has
21 standing. In Armstrong, however, it was clear that the plaintiffs
(there disabled prisoners and parolees) faced the prospect of
22 further discrimination by the State of California during the parole
and parole revocation hearing process. Here, by contrast, Plaintiff
23 does not face the prospect of further FMLA/CFRA-proscribed activity
24 by the County. Moreover, consistent with the Ninth Circuit’s later
decision in Bates, Armstrong expressly recognized that, for
25 standing purposes, where a “plaintiff seeks injunctive relief, he
must demonstrate that he is realistically threatened by a
26 repetition of [the violation].” Armstrong, 275 F.3d at 860-861
27 (emphasis added) (alteration in original) (internal quotation marks
omitted). Plaintiff does not face a realistic threat of repetition
28 of the alleged FMLA/CFRA violations.
16
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 17 of 36
8 Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1407 (9th
13 has standing to assert this claim for relief, and it is not moot.
16 process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th
19
4
In his briefing, Plaintiff also requests an injunction
20 requiring the County to train its staff to proficiency regarding
21 “compliance with disability rights under FEHA” and “protection
against retaliation under” the FMLA/CFRA. The parties did not
22 stipulate to submit the FEHA disability claims or the FMLA/CFRA
retaliation claims, or the associated relief, to a bench trial.
23 Plaintiff’s requested injunctive relief – to train County staff to
24 proficiency regarding compliance with disability rights under FEHA
and protection against FMLA/CFRA retaliation – goes beyond the
25 confines of the stipulated bench trial and cannot be considered.
Plaintiff also lacks standing with respect to these claims for
26 injunctive relief (and even assuming he had standing, these claims
27 are moot). Nonetheless, as a practical matter, it is inconceivable
that the County is not knowledgeable of its employment law duties
28 placed in issue by the entirety of this case.
17
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 18 of 36
4 Ulrich v. City & County of San Francisco, 308 F.3d 968, 974 (9th
5 Cir. 2002).
6 i. Property Interest
17 Dist., 743 F.2d 1310, 1314 (9th Cir. 1984) (internal quotation
27 Colls. of Ariz., 510 F.2d 1324, 1327 (9th Cir. 1975); see also
28 Gonzales, 545 U.S. at 756; Logan v. Zimmerman Brush Co., 455 U.S.
18
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 19 of 36
1 422, 430 (1982). Thus, “a state law which limits the grounds upon
2 which an employee may be discharged, such as conditioning dismissal
3 on a finding of cause, creates a constitutionally protected
4 property interest” in continued employment. Dyack v. Commonwealth
5 of the Northern Mariana Islands, 317 F.3d 1030, 1033 (9th Cir.
6 2003) (internal quotation marks omitted). On the other hand, where
7 “a state employee serves at will, he or she has no reasonable
8 expectation of continued employment, and thus no property right.”
9 Id. at 1033; see also Clements v. Airport Auth. Of Washoe County,
10 69 F.3d 321, 331 (9th Cir. 1995). “The hallmark of property . . .
11 is an individual entitlement” “which cannot be removed except ‘for
12 cause.’” Logan, 455 U.S. at 430.
13 22. Independent sources from which property interests or
14 individual entitlements can arise include, among others, a
15 municipality’s personnel rules, McGraw v. City of Huntington Beach,
16 882 F.2d 384, 390 (9th Cir. 1989), or the terms of an employment
17 contract, San Bernardino Physicians’ Services Medical Group, Inc.,
18 825 F.2d at 1407-08; Walker v. Northern San Diego County Hospital
19 District, 135 Cal. App. 3d 896, 901 (1982).
20 a. Property Interest At Stake
21 23. Plaintiff entered into a written employment agreement
22 with the County in October 2000 (Pl. Ex. 120) setting a term of
23 employment from October 24, 2000, to November 30, 2006. This
24 written agreement was voluntarily terminated by the parties’
25 consent on October 5, 2002.
26 24. Plaintiff entered into a subsequent written employment
27 agreement with the County effective October 5, 2002 through October
28 4, 2007. This agreement was in effect at the time of Plaintiff’s
19
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 20 of 36
20
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 21 of 36
21
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 22 of 36
1 One such policy was the “Kern County Policy and Administrative
2 Procedures Manual.” Culberson’s letter notified Plaintiff that he
3 was being placed on administrative leave on December 7, 2006. The
4 letter invoked Kern County Policy and Administrative Procedures
5 Manual section 124.3.
6 29. The general heading of section 124 is “Disciplinary
7 Actions.” Section 124.3, entitled “Administrative Leave with Pay,”
8 specifies grounds on which an employee can be placed on paid
9 administrative leave:
10 A department head may place an employee on administrative
leave with pay if the department head determines that the
11 employee is engaged in conduct posing a danger to County
property, the public or other employees, or the continued
12 presence of the employee at the work site will hinder an
investigation of the employee's alleged misconduct or
13 will severely disrupt the business of the department.
14
30. No other provision of or governing Plaintiff's term
15
employment agreement granted the County the right to place
16
Plaintiff on paid administrative leave. By specifying the grounds
17
on which Plaintiff could be placed on paid administrative leave,
18
and by not contractually providing for any other right to place
19
Plaintiff on paid administrative leave, the County implicitly
20
limited its authority to place Plaintiff on paid leave to the
21
specified reasons. See Sanchez v. City of Santa Ana, 915 F.2d 424,
22
429 (9th Cir. 1990).
23
31. This conclusion – that the County limited its authority
24
to place Plaintiff on paid leave to the specified reasons - is also
25
bolstered by Culberson’s testimony. Mr. Culberson testified that
26
he, in conjunction with others, came upon section 124.3 when
27
determining whether there were grounds for placing someone on paid
28
22
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 23 of 36
1 would, for several reasons, lack merit. Barnes did not testify
2 that there are additional grounds, besides those listed in section
3 124.3, on which an employee can be placed on paid administrative
4 leave or that the grounds listed in section 124.3 are otherwise not
5 exhaustive. Moreover, Barnes’s testimony is consistent with the
6 conclusion that the County’s authority to place Plaintiff on
7 administrative leave was limited to the grounds specified in
8 section 124.3. On its face, section 124.3 does provide “guidance”
9 in the sense that it tells the County when it may place an employee
10 on paid administrative leave. Finally, if the County wanted to
11 provide itself with broad discretion to place an employee on paid
12 administrative leave whenever the County saw fit, it could have
13 easily drafted such language. However, section 124.3 sets forth a
14 concrete set of grounds on which an employee may be placed on paid
15 administrative leave. Barnes’s testimony does not negate the
16 conclusion that the County limited its authority to place Plaintiff
17 on paid administrative leave to the reasons specified in section
18 124.3.
19 34. In its bench trial briefing, the County argues that no
20 language in section 124.3 grants rights to employees, and this
21 interpretation is consistent with Barnes’s testimony that the
22 section provides “guidance” to the County as the employer. This
23 argument misses the mark: the issue is not whether the provision,
24 on its face, grants an employee the right to due process; rather
25 the issue is whether section 124.3 creates a property right because
26 it limits the discretion of the County to place an employee on paid
27 administrative leave.
28
24
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 25 of 36
1 Comm’r of Bryan County v. Brown, 520 U.S. 397, 403 (1997); see also
2 Ulrich, 308 F.3d at 984.
3 53. A plaintiff can establish a municipal policy or custom in
4 a number of ways. "A plaintiff can establish a ‘policy or custom'
5 by showing: (1) an express policy that, when enforced, causes a
6 constitutional deprivation; (2) a widespread practice that,
7 although not authorized by written law or express municipal policy,
8 is so permanent and well settled as to constitute a custom or usage
9 with force of law; or (3) . . . that the constitutional injury was
10 caused by a person with final policymaking authority." Megargee v.
11 Wittman, 550 F. Supp. 2d 1190, 1205 (E.D. Cal. 2008). A plaintiff
12 can establish a municipal policy also by "showing that an official
13 with final policymaking authority either delegated that authority
14 to, or ratified the decision of, a subordinate." Menotti v. City of
15 Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal quotation
16 marks omitted). In addition, a decision by the municipal entity’s
17 governing body constitutes a policy for Monell purposes. See Brown,
18 520 U.S. at 403; Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir.
19 1988); Evers v. Custer County, 745 F.2d 1196, 1203 (9th Cir. 1984).
20 54. The mere existence of a municipal policy or custom is not
21 enough to establish liability. The policy or custom must be the
22 "moving force" behind the alleged constitutional violation. Galen
23 v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007)
24 (quoting Monell, 436 U.S. at 694-95).
25 55. In the Final Pretrial Order, the parties stipulated that
26 "Defendant County placed Plaintiff on paid administrative leave on
27 December 7, 2006." (Emphasis added.) The County’s admission that
28
31
Case 1:07-cv-00026-OWW-DLB Document 398 Filed 08/06/2009 Page 32 of 36
1 v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“[I]t goes without
2 saying that the courts can and should preclude double recovery by
3 an individual.”) (internal quotation marks omitted). To prevent
4 double recovery for the same injury – the wrongful placement of
5 Plaintiff on paid administrative – compensatory damages should not
6 be awarded on Plaintiff’s due process claim.
7 63. For these reasons, compensatory damages are not awarded
8 on Plaintiff’s procedural due process claim. Plaintiff is, by law,
9 fully compensated except for nominal damages. See Floyd v. Laws,
10 929 F.2d 1390, 1402 (9th Cir. 1991) (concluding that upon a finding
11 of a “constitutional violation, an award of nominal damages is
12 mandatory”). Plaintiff is entitled to an award of nominal damages
13 on his procedural due process claim.
14 64. Pursuant to Rule 58, a judgment will be entered
15 consistent with these Findings of Fact and Conclusions of Law.
16 65. Plaintiff shall lodge with the court a form of judgment
17 consistent with these Findings of Fact and Conclusions of Law
18 within five (5) days following electronic service of these
19 findings.
20
21 IT IS SO ORDERED.
22 Dated: August 5, 2009 /s/ Oliver W. Wanger
9i274f UNITED STATES DISTRICT JUDGE
23
24
25
26
27
28
36