Golt v. City of Los Angeles , 214 F. App'x 704 ( 2006 )

MEMORANDUM ^**

Appellant Teresa Lynn Golt appeals the district court’s summary judgment in favor of appellees the City of Los Angeles and former Chief of Police Bernard Parks. Golt served for ten years as a member of the Los Angeles Police Department (“LAPD”) until she was granted a disability retirement in 2002 (made retroactive to 2000) for psychological problems allegedly brought on by the appellees’ retaliatory actions against her in response to her criticism of Chief Parks.

Golt asserts three claims under 42 U.S.C. § 1983—violation of her First Amendment rights, denial of equal protection, and denial of procedural due process—and one claim under the California Whistleblower Statute, California Labor Code section 1102.5. Golt additionally appeals the district court’s evidentiary ruling excluding five of her proffered declarations.

We grant Golt’s motion for judicial notice of a class action, filed in Los Angeles Superior Court and removed to the Central District of California, in which Golt was a named plaintiff. Jones v. City of Los Angeles, No. BC235706 (filed in Los Angeles Superior Court Aug. 24, 2000).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s summary judgment in favor of the appellees.

We review de novo a district court’s summary judgment, Gammoh v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005), to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). We review the district court’s evidentiary rulings in this case for abuse of discretion. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004).

Appellees contend that Golt’s § 1983 claims are barred by the applicable one-year statute of limitations under California law. See Wilson v. Garcia, 471 U.S. 261, 266, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993). However, the appellees waived the statute of limitations defense by failing to raise it in the district court “sufficiently for the trial court to rule on it.” In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989); see also Fed.R.Civ.P. 8(c); Perry v. O’Donnell, 749 F.2d 1346, 1353 (9th Cir. 1984).

Golt erroneously contends that she may use as evidence of retaliation her arrests and convictions in Los Angeles County and Orange County for undertaking bail enforcement without a license in violation of California Insurance Code section 1800(a). We decline to permit her to do so. Any determination by this court that Golt’s arrests and convictions were effected only for retaliatory purposes would “necessarily imply the invalidity of [her] eonviction[s],” and that would be contrary to Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

The district court did not abuse its discretion in excluding Golt’s five proffered declarations because the declarations were not grounded in the declarants’ personal knowledge and lacked foundation, were outside the scope of permissible opinion testimony by a lay witness, and were not relevant. See Fed.R.Evid. 402; Fed. R.Evid. 701; United States v. Pang, 362 F.3d 1187, 1191-92 (9th Cir.2004); Alvarez, 358 F.3d at 1205.

In her first § 1983 claim, Golt contends she was constructively discharged in violation of her First Amendment rights, and claims that the discharge was caused by a psychologically damaging campaign of retaliation appellees launched against her in response to her critiques of Chief Parks. Golt’s critiques, however, do not touch any issue of public concern, and thus do not support a cognizable First Amendment retaliation claim. See City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir.2004).

Golt’s distribution of funeral request cards requesting that Chief Parks not attend the funerals of LAPD officers killed in the line of duty did not “plant the seed of a constitutional case” because that conduct pertained only to an internal workplace grievance. Connick, 461 U.S. at 149, 103 S.Ct. 1684. “[T]he First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Id. The funeral protest did not “inform the public about any aspect of the [government body’s] functioning or operation,” Roe, 543 U.S. at 84, 125 S.Ct. 521, nor did it reveal any failure to discharge governmental responsibilities, illegal conduct, breach of the public trust, or misuse of public funds. Connick, 461 U.S. at 148, 103 S.Ct. 1684; cf. Hufford v. McEnaney, 249 F.3d 1142, 1149 (9th Cir.2001); Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995).

Golt’s testimony at her fellow officer’s individual disciplinary hearing concerned only a specific issue of sexual harassment and did not contribute to the “resolution of a[n] ... administrative proceeding in which discrimination or other significant government misconduct is at issue.” Alpha Energy Savers, 381 F.3d at 927.

In her second § 1983 claim, Golt contends she was denied equal protection because she was subjected to heightened scrutiny after she openly criticized Chief Parks and failed to abide by the LAPD’s “Code of Silence.” The record does not support this assertion. Golt’s equal protection claim cannot survive summary judgment because she failed to present evidence that the LAPD “acted in a discriminatory manner and that the discrimination was intentional.” Bingham v. City of Manhattan Beach, 341 F.3d 939, 948 (9th Cir.2003) (internal quotation marks omitted). Golt failed to link the adverse employment action to her speech; the LAPD sought Golt’s final suspension and relief from duty only after the internal investigation into her unauthorized computer use and bail enforcement activities resulted in a recommendation sustaining the allegations against her, and after Golt had been arrested on felony charges in Los Angeles County and Orange County. See Gilbert v. Homar, 520 U.S. 924, 932, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997).

In her final claim under § 1983, Golt alleges she was deprived of a protected property interest in her employment without constitutionally sufficient due process. The process due to Golt, however, after felony charges had been filed against her, was minimal under the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The LAPD did not have to grant Golt a presuspension hearing in this matter because the LAPD had a “significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers.” Gilbert, 520 U.S. at 932, 117 S.Ct. 1807.

Moreover, the Board of Rights hearing process that was available to Golt was constitutionally adequate because it gave her “oral or written notice of the charges against [her], an explanation of the employer’s evidence, and an opportunity to present [her] side of the story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); see also Los Angeles City Charter, Art. X, § 1070(b), (c), (f). In addition, had Golt elected to appear before the Board of Rights, she could have pursued the post-deprivation remedy of appealing the Board’s decision through the California courts. See Cleveland Bd. of Educ., 470 U.S. at 547 & n. 12, 105 S.Ct. 1487; see also Cal.Civ.Proc.Code § 1094.5.

Finally, Golt fails to establish that her speech is protected under the California Whistleblower statute, California Labor Code section 1102.5(b), because the conduct her speech disclosed—Chief Parks’s alleged unfair enforcement of discipline—did not violate any federal or state statute, rule, or regulation. See Love v. Motion Indus., Inc., 309 F.Supp.2d 1128, 1134 (N.D.Cal.2004) (citing Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52, 69, 105 Cal.Rptr.2d 652 (2000)). Golt also fails to establish a causal relationship between the adverse employment action and her disclosure. To the contrary, her arrests and convictions are “substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action.” Morgan, 88 Cal.App.4th at 68, 105 Cal.Rptr.2d 652.

Because Golt has not sufficiently asserted any cognizable primary constitutional violation, we do not reach the question whether Chief Parks is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). For the same reason, we do not decide the question of municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), or City of Canton v. Harris, 489 U.S. 378, 380, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

The district court’s summary judgment in favor of the appellees is AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.