Adams v. County of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 KATE ADAMS, No. 2:22-cv-01499 WBS KJN 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS 15 COUNTY OF SACRAMENTO, a political subdivision of the 16 state of California; SHERIFF SCOTT JONES in his individual 17 and official capacity as Sheriff of the County of Sacramento, and 18 DOES 1-10 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff Kate Adams brought this action against the 23 County of Sacramento, Sheriff Scott Jones, and Does 1 through 10 24 (collectively “defendants”), alleging violations of her federal 25 civil rights and of state law stemming from events surrounding 26 her resignation as Chief of Police of Rancho Cordova, California. 27 (Compl. (Docket No. 1).) She asserts claims for (1) procedural 28 due process under the Fourteenth Amendment; (2) violation of the 1 First Amendment; (3) First Amendment conspiracy; (4) false light; 2 (5) false light conspiracy; (6) violation of California’s Fair 3 Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940(h); 4 (7) violation of the California Public Safety Officer Procedural 5 Bill of Rights (“PBOR”), Cal. Gov. Code § 3300 et seq; (8) 6 intentional interference with prospective economic advantage; and 7 (9) intentional infliction of emotional distress. (Id.) 8 Defendants now move to dismiss plaintiff’s complaint in its 9 entirety. (Mot. (Docket No. 7-1).) 10 I. Factual Allegations 11 Plaintiff began working for the Sacramento County 12 Sheriff’s Office (“Department”) in 1994. (Compl. ¶ 18.) In 13 March 2020, plaintiff was selected as the Chief of Police for the 14 City of Rancho Cordova. (Id. ¶ 34.) 15 Prior to her selection for Chief of Police, plaintiff 16 was contacted in February 2019 about possible misconduct 17 involving Sheriff’s Captain LeeAnneDra Marchese. (Id. ¶ 28.) 18 Plaintiff forwarded the allegation to the Department’s Internal 19 Affairs Division. (Id. ¶ 29.) 20 In November 2019, nine months after forwarding the 21 complaint about Marchese, plaintiff alleges she received the 22 first complaint ever filed against her in her 25 years as a law 23 enforcement officer. (Id. ¶ 31.) Shortly after, two more 24 complaints were filed against plaintiff alleging similar 25 instances of misconduct.1 (Id. ¶¶ 33, 35.) The Sheriff’s 26 1 The complaints alleged that plaintiff had (1) 27 improperly used her home retention vehicle to transport her daughter to softball practice and (2) used a homophobic slur at 28 one of her daughter’s softball events. (Id. ¶¶ 32-33, 35.) All 1 Department’s Internal Affairs Office investigated all threes 2 complaints, formally concluded they were baseless, and cleared 3 plaintiff of any wrongdoing. (Id. ¶¶ 32-33, 35.) Plaintiff 4 alleges that she grew suspicious that either Marchese or 5 Assistant Commander Gail Vasquez2 were responsible for the 6 complaints.3 (Id. ¶ 38.) 7 As a result of these complaints and her growing 8 suspicions about who was responsible, plaintiff submitted a 9 formal complaint with Sacramento County’s Equal Employment 10 Opportunity (“EEO”) office against Marchese for harassment and 11 retaliatory behavior. (Id. at 42.) Plaintiff alleges that when 12 Marchese was interviewed regarding the EEO complaint, Marchese 13 disclosed that plaintiff had sent text messages which included 14 racist images4 to her and Morrissey (Vasquez’s husband) seven 15 three complaints were anonymous. (Id.) 16 2 Assistant Commander Vasquez is married to Sergeant 17 Morrissey, who is the recipient of the racist images which set 18 off the events underlying this case. (Id. ¶ 38.) 19 3 Plaintiff alleges that she was suspicious the complaints were submitted by either Marchese or Vasquez because 20 (1) they seemed to be written by someone in the Department who had known plaintiff for many years; (2) Marchese’s daughter 21 played in the same softball league as plaintiff’s daughter; and 22 (3) plaintiff had seen Marchese driving down her street when she had been assigned to work twenty-nine miles way. (Id. ¶¶ 37-41.) 23 4 Plaintiff uses the term “meme” throughout the complaint 24 to refer to these images. Merriam-Webster defines “meme” as “an amusing or interesting item (such as a captioned picture or 25 video) or genre of items that is spread widely online especially through social media.” Meme, Merriam-Webster.com Dictionary 26 (Dec. 29, 2022), https://www.merriam-webster.com/dictionary/meme. 27 The racist images at issue do not fit the definition of “meme” because they have not spread widely online nor are they amusing 28 in any way. Therefore, the court will use the term “image.” 1 years earlier.5 (Id. ¶ 43.) Marchese and Vasquez are the two 2 people plaintiff had suspected were responsible for the three 3 complaints filed against her.6 (Id. ¶ 38.) 4 When Marchese shared the details of the text messages 5 during the EEO investigation interview, she provided printed 6 screenshots. (Id. ¶ 45.) Plaintiff alleges that Marchese had 7 “miraculously” printed these screenshots, which failed to include 8 the larger context of the text message conversation, despite 9 having previously disposed of the phone on which she received the 10 text messages. (Id.) Plaintiff similarly alleges that Marchese 11 was also somehow aware that Morrisey had not only received the 12 same text messages but had also printed screenshots. (Id. ¶¶ 48- 13 49.) Plaintiff further alleges that Doe defendants “collectively 14 hid and distorted the original context and language accompanying 15 the images to suggest that [plaintiff] somehow endorsed or 16 supported the images’ racist message.”7 (Id. ¶ 51.) 17 5 Plaintiff did not provide details about the racist 18 image in her complaint. According to defendants’ motion to dismiss, the image contained a depiction of a “white man wearing 19 sunglasses and holding a beer, spraying a Black child in the back of the head with a garden hose. The caption reads: ‘Go be a 20 n[*****] somewhere else.’” (Mot. at 3.) Both defendants’ motion and the Sacramento Bee article (which, as explained later, set 21 off the chain of events leading to plaintiff’s alleged 22 constructive discharge) spell out the “N-word.” However, the court declines to do so here because the word is extremely 23 harmful and doing so is unnecessary to convey the meaning of the image’s caption. 24 6 Plaintiff does not offer an explanation as to why 25 Marchese and Vasquez continually targeted plaintiff other than they were acting in retaliation for plaintiff previously 26 forwarding the complaint regarding Marchese. (Id. ¶ 38.) 27 7 While plaintiff only asserts this allegation explicitly 28 against Doe defendants, she implies Morrisey was involved by 1 At the time of the text messages, New Year’s Eve 2013, 2 plaintiff alleges she and Morrissey had been engaged in a “casual 3 text message conversation,” wishing one another Happy New Year’s 4 and sharing videos of plaintiff’s children playing. (Id. ¶ 22.). 5 Plaintiff alleges that during this conversation she sent 6 Morrissey the racist image along with the message: “Some rude 7 racist just sent this!!” (Id. ¶ 24.) Morrissey replied: “That’s 8 not right.” (Id. ¶ 24.) Plaintiff replied back with a similar 9 image and text message stating: “Oh, and just in case u [sic] 10 think I encourage this . . . .”8 (Id. ¶ 24.) Notably, plaintiff 11 does not mention that she sent the same text messages to Marchese 12 nor who originally sent the racist images to her. 13 Upon learning about the text messages, the Department 14 shifted its EEO investigation from investigating the anonymous 15 complaints filed against plaintiff into an investigation about 16 the text messages. (Id. ¶¶ 52-53.) Defendant Sheriff Jones 17 selected John McGinnis,9 allegedly a close personal friend and 18 political endorser of Jones, to investigate. (Id. ¶ 62.) 19 Plaintiff alleges that the standard procedure, however, is for 20 the County’s inspector general to conduct these types of 21 explaining that Morrisey was a cell phone forensics specialist 22 for the Department and “possesses extensive expertise in recovering lost, deleted, or erased cell phone content.” (Id. ¶¶ 23 50-51.) 24 8 Plaintiff alleges that what was written after the ellipses remains unknown, as it was not included in the 25 screenshots of the text message conversation. (Id. ¶ 24.) 26 9 While neither plaintiff nor defendants provide any 27 information about John McGinnis, the court is aware that McGinnis is a former Sacramento County Sheriff. 28 1 investigations. (Id.) 2 At the conclusion of the investigation, plaintiff 3 alleges the Department presented her with a choice: resign and 4 avoid the racist images from becoming public or be terminated and 5 risk her reputation. (Id. ¶ 58.) Plaintiff alleges the 6 Department wanted plaintiff to resign “out of a desire to conceal 7 from the public the fact that its officers had failed to report a 8 purportedly racist communication by a fellow officer for over 9 seven years”10 and “her resignation was the best way to avoid a 10 ‘media circus’ that could harm the reputations and political 11 futures of all involved.”11 (Id. ¶¶ 59-60.) 12 On September 12, 2021, plaintiff resigned as the Chief 13 of Police for the City of Rancho Cordova. (Id. ¶ 21.) Plaintiff 14 alleges that defendants’ “threat to make the false allegations 15 public unless she resigned, and the terrifying potential 16 consequences for her family if those allegations played out in 17 the media, was paramount in her decision to retire.” (Id. ¶ 61.) 18 At the time of her resignation, the text messages were not 19 public. 20 However, on March 4, 2022, the Sacramento Bee (“Bee”) 21 22 10 Plaintiff alleges that it was department policy for 23 “‘[any] individual . . . who is aware of discrimination . . . in a [c]ounty work situation,’ to ‘immediately report such action or 24 inaction.’” (Id. ¶ 47.) 25 11 Plaintiff alleges that Jones was particularly concerned about his reputation and political future because he had 26 announced his intention to run for Congress and “was perceived by 27 many to have a negative track record on race relations.” (Id. ¶ 60.) 28 1 published an article about plaintiff’s resignation.12 (Id. ¶ 71). 2 The Bee article was based on an open letter published by the 3 President of the Sacramento chapter of the NAACP13 as well as 4 statements made by a Sacramento County spokesperson in response 5 to the Bee’s request for comment. (Id. ¶ 72.) The Bee article 6 stated: “A Sacramento County spokesperson . . . said the outside 7 investigation concluded, and that the involved employee retired 8 voluntarily before the Sheriff’s Office could formally hand down 9 discipline.” (Defs.’ Req. for Judicial Notice, Ex. A, at 6 10 (Docket No. 7-2).) 11 Six days after the Bee article was published, William 12 Jessup University requested plaintiff resign from her position as 13 adjunct professor. (Id. ¶ 78.) Roughly a month later, plaintiff 14 was informed by the California Commission on Peace Officer 15 Standards (“POST”) that she could not be hired despite passing 16 12 Defendants have requested that the court take judicial 17 notice of the Bee article. (Docket No. 7-2.) An electronic copy 18 of the article can be found online at . 19 Judicial notice may be taken of a fact “not subject to reasonable dispute in that it is capable of accurate and ready determine by 20 resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. “Courts may take judicial 21 notice of publications introduced to indicate what was in the 22 public realm at the time, not whether the contents of those articles were in fact true.” Von Saher v. Norton Simon Museum of 23 Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). Accordingly, the court will take judicial notice of the article for the fact 24 of the statements in the article, rather than the truth of these statements. 25 26 13 At the hearing, plaintiff’s counsel stated that, since the filing of the complaint, the NAACP had confirmed that it was 27 the Department who had provided the NAACP with information about the text message incident and the internal investigation against 28 plaintiff. 1 the entry exam with a score of 90 out of 100. (Id. ¶¶ 70, 79.) 2 Plaintiff alleges that she then decided to “file this lawsuit to 3 defend her reputation . . . .” (Opp’n at 5.) 4 II. Discussion 5 A. Legal Standard 6 Federal Rule of Civil Procedure 12(b)(6) allows for 7 dismissal when the plaintiff’s complaint fails to state a claim 8 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 9 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry 11 before the court is whether, accepting the allegations in the 12 complaint as true and drawing all reasonable inferences in the 13 plaintiff’s favor, the complaint has alleged “sufficient facts 14 . . . to support a cognizable legal theory,” id., and thereby 15 stated “a claim to relief that is plausible on its face,” Bell 16 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding 17 such a motion, all material allegations of the complaint are 18 accepted as true, as well as all reasonable inferences to be 19 drawn from them. Id. “Threadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements, do not 21 suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 22 B. Procedural Due Process (Claim 1) 23 To state a procedural due process claim in a § 1983 24 action, the plaintiff must establish: “(1) a liberty or property 25 interest protected by the Constitution; (2) a deprivation of the 26 interest by the government; and (3) lack of process.” Shanks v. 27 Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (citation omitted). 28 Here, defendants do not challenge that plaintiff had a property 1 interest in her public employment as chief of police for the city 2 of Rancho Cordova. Rather, defendants argue that plaintiff’s 3 procedural due process claim must fail because she voluntarily 4 resigned.14 5 Plaintiff contends that she did not voluntarily resign 6 but rather she was constructively discharged. (See Compl. ¶ 89.) 7 A resignation “may be involuntary and constitute a deprivation of 8 property for purposes of a due process claim” where “a reasonable 9 person in [that] position would feel [they] had no choice but to 10 [resign].” Knappenberger v. City of Phoenix, 566 F.3d 936, 940- 11 41 (9th Cir. 2009) (no constructive discharge where plaintiff 12 resigned to maintain his health insurance coverage because he had 13 not been informed that he would be terminated and he had the 14 ability to oppose investigation) (quoting Kalvinskas v. Cal Inst. 15 of Tech., 96 F.3d 1305, 1307-08 (9th Cir. 1996) (constructive 16 discharge where plaintiff was given “no choice but to retire” 17 18 14 Defendants also argue plaintiff’s procedural due process claim must fail because she failed to exhaust 19 administrative remedies. (See Mot. at 9-10.) However, “exhaustion of state administrative remedies should not be 20 required as a prerequisite to bringing an action pursuant to § 1983.” Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 21 516 (1982). The overwhelming majority of cases hold that, under 22 Patsy, 457 U.S. at 516, failure to exhaust does not bar a § 1983 claim. See e.g., Heck v. Humphrey, 512 U.S. 477, 480 (1994) 23 (distinguishing the lack of exhaustion requirement for § 1983 from the federal habeas corpus statute); Heath v. Cleary, 708 24 F.2d 1376, 1379 (9th Cir. 1983) (finding plaintiff did not need to exhaust under Patsy); Rios v. Cnty. of Sacramento, 562 F. 25 Supp. 3d 999, (E.D. Cal. 2021) (J. Mueller) (“Exhaustion is not a prerequisite to an action under § 1983.”) (citing Patsy, 457 U.S. 26 at 102)); Mahoney v. Hankin, 539 F. Supp. 1171, 1174 (S.D. N.Y. 27 1984) (“[P]laintiff needed to exhaust neither the state administrative remedies nor the remedies under the collective 28 bargaining agreement before the case could be heard . . . .”). 1 because employer reduced his income stream to zero by offsetting 2 his disability benefits with pension benefits that he could 3 obtain only by retiring)). 4 Plaintiff alleges she was forced to resign to protect 5 her ability to earn a living and was told that she would be 6 terminated if she did not resign. (Compl. ¶¶ 58, 66.) 7 Furthermore, she alleges she could not oppose her termination as 8 doing so would publicize the racist text messages, and avoiding 9 that publicity and inevitable backlash was driving force behind 10 her decision to resign. (Id. ¶¶ 61, 66.) However, plaintiff does 11 not state who informed her that she was to be terminated if she 12 did not resign, or whether the person who notified plaintiff even 13 had the authority to terminate her or to speak on behalf of 14 whoever did have such authority. Further, plaintiff makes no 15 allegations as to exactly what she was told regarding her alleged 16 choice to resign or be terminated, for example whether she was 17 told she would just be summarily terminated or that the 18 procedures necessary to terminate her would be initiated. 19 Plaintiff’s allegations, without more, are not sufficient to 20 allege a procedural due process violation based on a constructive 21 discharge theory. 22 C. First Amendment (Claims 2 and 3) 23 Plaintiff asserts two claims arising out of the First 24 Amendment: violation of First Amendment’s protection on freedom 25 of speech (Claim 2) and conspiracy to deprive plaintiff of her 26 First Amendment right to free speech (Claim 3). To determine 27 whether a government employer has violated the First Amendment, 28 the Ninth Circuit applies a five-part test which asks: 1 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff 2 spoke as a private citizen or public employee; (3) whether the plaintiff’s 3 protected speech was a substantial or motivating factor in the adverse employment 4 action; (4) whether the state had an adequate justification for treating the employee 5 differently from other members of the general public; and (5) whether the state would have 6 taken the adverse employment action even absent the protected speech. 7 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). 8 “Speech involves a matter of public concern when it can 9 fairly be considered to relate to ‘any matter of political, 10 social, or other concern to the community.’” Johnson v. 11 Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting 12 Connick v. Myers, 461 U.S. 138, 146 (1983)). Conversely, “speech 13 that deals with ‘individual personnel disputes and grievances’ 14 and that would be of ‘no relevance to the public’s evaluation of 15 the performance of governmental agencies’ is generally not of 16 ‘public concern.’” Coszalter v. City of Salem, 320 F.3d 968, 973 17 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 18 1114 (9th Cir. 1983). To determine “whether an employee’s speech 19 addresses a matter of public concern,” a court must consider “the 20 content, form, and context of a given statement, as revealed by 21 the whole record.” Eng, 552 F.3d at 1070 (citations and 22 quotations omitted). 23 Here, plaintiff alleges her speech -- the text messages 24 containing racist images -- was of public concern because she was 25 condemning an example of racism. (See Compl. ¶ 98.) Certainly, 26 acts of overt racism within a police force is a subject that 27 would warrant public concern. See Lamb v. Montrose Cnty. 28 1 Sheriff’s Off., No. 19-1275, 2022 WL 487105, at *8 (10th Cir. 2 2022) (“[R]acism and unprofessionalism in a public entity -- 3 particularly law enforcement -- can be matters of public concern, 4 in a general sense.”). However, “[t]he Supreme Court has warned 5 us that speech ‘not otherwise of public concern does not attain 6 that status because its subject matter could, in a different 7 circumstance, have been the topic of communication to the public 8 that might be of general interest.’” Desrochers v. City of San 9 Bernadino, 572 F.3d 703, 717 (9th Cir. 2009) (quoting Connick, 10 461 U.S. at 148, n. 8). 11 Plaintiff fails to make any allegation that either the 12 text messages or the surrounding context suggest any “conduct 13 [which] amount[s] to ‘actual or potential wrongdoing or breach of 14 public trust.’” Desrochers, 572 F.3d at 712 (quoting Connick, 15 461 U.S. at 148); see also McKinley, 705 F.2d at 1114 (“[T]he 16 competency of the police force is surely a matter of great public 17 concern.”). Plaintiff’s speech as she herself characterized -- 18 "condemning an example of racism to a friend” -- does not allege 19 racist behaviors of any individual members of the Department nor 20 the Department as a whole. Plaintiff makes no allegation that 21 the racist images were in any way related to her job as chief of 22 police. Moreover, the text messages were not intended for public 23 viewing, weighing against a finding of public concern. See Lamb, 24 2022 WL 487105, at *7 (explaining that a text message to a friend 25 which is “not intended for public dissemination . . . weigh[s] 26 against finding it involved a matter of public concern”). 27 In viewing the facts in the light most favorable to 28 plaintiff as the court must at this stage, the court finds that 1 plaintiff’s speech was not a matter of public concern because the 2 speech was intended to be private and does not relate to the 3 personnel or functioning of the Department. Because the speech 4 was not a matter of public concern, the court’s inquiry stops. 5 See Eng, 552 F.3d at 1070. Accordingly, plaintiff has failed to 6 allege facts sufficient to support a claim for violation of the 7 First Amendment. 8 Because plaintiff’s First Amendment claim fails, her 9 First Amendment conspiracy claim must also fail. See Crowe v. 10 Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (“To 11 establish liability for a conspiracy in a § 1983 case, a 12 plaintiff must ‘demonstrate the existence of an agreement or 13 meeting of the minds’ to violate constitutional rights.”). 14 Accordingly, the court finds plaintiff has failed to state a 15 claim for conspiracy to violate the First Amendment. 16 D. False Light (Claims 4 and 5) 17 Plaintiff asserts two claims based on false light: 18 false light (Claim 4) and conspiracy to place plaintiff in a 19 false light (Claim 5). “False light is a species of invasion of 20 privacy . . . .” Balla v. Hall, 59 Cal. App. 5th 652, 687 (4th 21 Dist. 2021) (quotations and citations omitted). To state a claim 22 for false light, a plaintiff must plead that “(1) the defendant 23 caused to be generated publicity of the plaintiff that was false 24 or misleading, and (2) the publicity was offensive to a 25 reasonable person.” Pacini v. Nationstar Mortg., LLC, No. C 12- 26 04606 SI, 2013 WL 2924441, at *9 (N.D. Cal. June 13, 2013) 27 (citing Fellows v. Nat’l Enquirer, Inc., 42 Cal.3d 234, 238-39 28 (1986)). “Even if they place the person in a less than 1 flattering light, the published facts are not actionable if they 2 are true or accurate.” Pacini, 2013 WL 2924441, at *9 (citing 3 Fellows, 42 Cal. 3d at 238). 4 Plaintiff’s false light claim is based on the Bee 5 article. Specifically, plaintiff contends that members of the 6 Department provided misleading comments by telling the Bee that 7 plaintiff retired to avoid discipline as opposed to explaining 8 that the Department asked her to resign to avoid negative media 9 coverage. (See Compl. ¶ 121-23.) The relevant portion of the 10 Bee article states: “A Sacramento County spokesperson . . . 11 [said] that the involved employee retired voluntarily before the 12 Sheriff’s Office could formally hand down discipline.” (Defs.’ 13 Req. for Judicial Notice, Ex. A.) However, because plaintiff 14 fails to make any allegation as to who from the Department spoke 15 to the Bee or what information about the Department’s 16 investigation was shared with the Bee plaintiff has failed to 17 allege facts sufficient to support a false light claim. 18 Because plaintiff’s false light claim fails, her false 19 light conspiracy claim also must fail.15 See Thompson v. Cal. 20 Fair Plan Assn., 2221 Cal.App.3d 760, 767 (1990) (“A civil 21 conspiracy does not give rise to a cause of action unless a civil 22 wrong has been committed resulting in damage.”). 23 E. California Fair Housing and Employment Act (Claim 6) 24 FEHA provides in part that it is unlawful “[f]or any 25 26 15 “The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to 27 plaintiff from an act or acts done in furtherance of the common design.” See Doctors’ Co. v. Super. Ct., 49 Cal. 3d 39, 44 28 (1989) (quotations and citations omitted). 1 employer, labor organization, employment agency, or person to 2 discharge, expel, or otherwise discriminate against any person 3 because the person has opposed any practices forbidden under this 4 part or because the person has filed a complaint, testified, or 5 assisted in any proceeding under this part.” Cal. Gov. Code § 6 12940(h). To state a claim of retaliation under Cal. Gov. Code § 7 12940(h), “a plaintiff must show (1) he or she engaged in a 8 ‘protected activity,’ (2) the employer subjected the employee to 9 an adverse employment action, and (3) a causal link existed 10 between the protected activity and the employer's action.” 11 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). If 12 plaintiff establishes a prima facie case, the employer is then 13 “required to offer a legitimate, nonretaliatory basis for the 14 adverse employment action in order to shift the burden back to 15 the plaintiff, who must then prove intentional retaliation.” 16 McCoy v. Pacific Mar. Ass’n, 216 Cal. App. 4th 283, 298 (2nd 17 Dist. 2013) (citing Yanowitz, 36 Cal. 4th at 1042). 18 Here, plaintiff alleges she engaged in a protected 19 activity by filing a formal complaint with Sacramento County’s 20 EEO. (Compl. ¶¶ 42, 135-36.) She further alleges that she was 21 subjected to an adverse employment action because of the “hostile 22 work environment”16 and her alleged constructive discharge.17 23 16 The hostile work environment plaintiff describes 24 relates almost entirely to the three complaints against her that were investigated and found to be baseless. Plaintiff filed a 25 formal complaint with the EEO as a result of these complaints. (Id. ¶ 42.) Nevertheless, because these complaints occurred 26 before plaintiff filed her EEO complaint, they could not have 27 been filed in retaliation to her filing of the EEO complaint. 28 17 A constructive discharge claim “is not necessary to 1 (Id. ¶ 137.) Assuming the plausibility of these allegations, 2 plaintiff’s allegations as to the causal connection between her 3 filing the EEO complaint and her constructive discharge, however, 4 are attenuated at best. Although plaintiff alleges facts showing 5 that the text messages at issue were revealed to the County by 6 Marchese when Marchese was interviewed during the EEO 7 investigation,18 that the text came to light as a result of 8 plaintiff’s EEO complaint does not mean that she was 9 “discharge[d], expel[led], or otherwise discriminate[d] against” 10 because she filed the complaint. 11 On this point, Flores v. City of Westminster is 12 instructive. See 873 F.3d 739 (9th Cir. 2017). In Flores, a 13 police officer alleged that, as a result of his filing a 14 discrimination complaint, he was removed from a list of officers 15 chosen to perform extra duties, received negative comments from a 16 supervisor in an entry log, and received his first written 17 reprimand. Id. at 749. The officer alleged that he had not 18 engaged in any other conduct which would have warranted these 19 adverse employment actions. As such, the officer was able to 20 establish a causal connection between his filing of the complaint 21 and the adverse employment actions. Id. at 750-51. 22 Here, plaintiff alleges that Marchese disclosed the 23 text messages when interviewed as part of the EEO investigation 24 in “a blatant attempt . . . to distract from the investigation 25 find unlawful retaliation.” McCoy, 216 Cal. App. 4th at 301 (citing Yanowitz, 36 Cal. 4th at 1053-54). 26 27 18 Plaintiff suggests Marchese came forward with the text messages “to distract from the investigation into her own 28 misconduct.” (Compl. ¶ 44.) 1 into her own misconduct.” (Compl. ¶ 44.) Plaintiff also alleges 2 she was constructively discharged by the County because of a 3 shared desire to keep the text messages out of the public thereby 4 avoiding a “media circus.” (Id. ¶¶ 60-61.) Thus, by plaintiff’s 5 own telling, the County did not constructively discharge 6 plaintiff in retaliation for filing the EEO complaint. Rather, 7 the text messages that came to light during the investigation 8 into the EEO complaint led to plaintiff’s eventual resignation. 9 Other than the County’s reaction to the text messages and desire 10 to keep them out of the public eye, plaintiff alleges no facts 11 sufficient to show a causal connection between the filing of her 12 EEO complaint and her constructive discharge. Accordingly, 13 plaintiff has failed to state a claim under Cal. Gov. Code § 14 12940(h). 15 F. Public Safety Officer Procedural Bill of Rights (Claim 7) 16 17 The PBOR provides in part: “No chief of police may be 18 removed by a public agency, or appointing authority, without 19 providing the chief of police with written notice and the reason 20 or reasons therefor and an opportunity for administrative 21 appeal.” Cal. Gov. Code § 3304. As explained above, plaintiff 22 resigned before the County had the opportunity to provide her due 23 process. Because she was not “removed”, there was no requirement 24 to provide her with the notice and opportunity for appeal 25 referenced in § 3304. Plaintiff cannot decline to avail herself 26 to the County’s procedures and then claim that the procedures 27 were unavailable. Accordingly, plaintiff has failed to allege 28 facts sufficient to support a PBOR claim. eee RE IERIE EOI IE IE OS IEE OE ES ESE ED eee 1 IT IS THEREFORE ORDERED that defendants’ motion to 2 dismiss the complaint (Docket No. 7-1) be, and the same hereby 3 is, GRANTED.!° Plaintiff has twenty days from the date of this 4 Order to file an amended complaint, if she can do so consistent 5 |} with this Order. 6 | Dated: January 10, 2023 be thom th Ad. 7 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 19 Plaintiff brought her eighth claim (intentional 26 interference with prospective economic advantage) and ninth claim (intentional infliction of emotional distress) only against Doe 27 defendants. (Compl. G71 151, 159.) Those claims are dismissed because plaintiff has failed to identify any specific individual 28 | responsible for the conduct alleged in them. 18