Van Pena v. Timothy Meeker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 27 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
VAN A. PENA, No. 10-15326
Plaintiff - Appellant, D.C. No. 4:00-cv-04009-CW
v.
MEMORANDUM *
TIMOTHY MEEKER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted April 15, 2011
Pasadena, California
Before: REINHARDT and GOULD, Circuit Judges, and TIMLIN, Senior District
Judge.**
Pena alleges that he was terminated in retaliation for a February 2001 memo
in which he reported suspected mistreatment of a Sonoma Developmental Center
(SDC) patient to the defendant, SDC Medical Director Judith Bjorndal. “[W]hen
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for Central California, sitting by designation.
public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.” Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006). SDC Policy Section 400, “Abuse,
Mistreatment or Neglect Prevention,” requires any SDC staff having knowledge of
patient mistreatment or neglect to “report the events in question to appropriate
authorities.” The reporting requirements direct staff members to report such
incidents to their supervisors, or “[i]f a staff [member] is uncomfortable with
reporting to his/her supervisor, a staff person may report through another channel,
such as program director, program assistant, nursing coordinator, department head,
SDC police, special investigator, quality assurance staff, or a facility
administrator.” Because Pena’s reporting of mistreatment to an SDC superior thus
fell squarely within his official duties as an SDC physician, he was not entitled to
First Amendment protection for that action, and the district court’s grant of
summary judgment to Bjorndal on Pena’s claims arising from the February 2001
memo is affirmed.
Pena further appeals the district court’s grant of summary judgment to
Bjorndal on his claim that he was fired in retaliation for a confidential complaint
that he submitted to the California Department of Health Services (DHS) regarding
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removal of patient photographs from files at SDC. As a result of Pena’s DHS
complaint, DHS issued a Statement of Deficiencies to SDC, requiring SDC
Executive Director Timothy Meeker to implement a Plan of Correction modifying
SDC policies for removal of patient photographs. Exactly one week after SDC
implemented the Plan of Correction, Pena’s habit of taking patient photographs
was raised as a “big issue” at a meeting of senior SDC officials attended by both
Bjorndal and Meeker, and later that day Bjorndal met with Pena and instructed him
to cease taking such photos without patient consent. Additionally, Pena presented
evidence in opposition to Bjorndal’s motion for summary judgment indicating that
he had a reputation among his superiors at SDC, including Meeker, as a repeat
whistleblower whose complaints of patient mistreatment threatened to subject SDC
to legal liability.
The district court granted summary judgment against Pena based upon its
conclusion that Pena had failed to raise a genuine issue of material fact as to
whether Bjorndal knew he was the individual responsible for the DHS complaint.
However, “[a]s with all states of mind, knowledge must normally be proven by
circumstantial evidence.” United States v. Jewell, 532 F.2d 697, 708 (9th Cir.
1976) (Kennedy, J., dissenting). That SDC supervisory personnel viewed Pena as
a troublesome whistleblower and that his taking of patient photographs was raised
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at both an executive committee meeting and in a meeting between Bjorndal and
Pena only one week after the SDC had been compelled by DHS to implement a
Plan of Correction on the subject of patient photographs provides strong
circumstantial evidence from which a reasonable factfinder could infer that SDC
leadership, including Bjorndal, suspected Pena of having filed the DHS complaint
and retaliated against him on that basis. Accordingly, the district court’s grant of
summary judgment to Bjorndal on this claim is reversed.
Because Pena’s various retaliation claims relative to the exercise of his First
Amendment rights were extremely closely related, the district court’s erroneous
grant of summary judgment regarding the DHS claim requires vacation of the jury
verdict on those of Pena’s retaliation claims that went to trial, so that the related
claims can be heard jointly and the evidence evaluated in its totality. See Lies v.
Farrell Lines, Inc., 641 F.2d 765, 774 (9th Cir. 1981) (“[A]lthough partial new
trials are permitted, the device ‘may not properly be resorted to unless it clearly
appears that the issue to be retried is so distinct and separable from the others that a
trial of it alone may be had without injustice.’” (quoting Gasoline Prods. Co. v.
Champlin Ref. Co., 283 U.S. 494, 500 (1931)).
Moreover, at trial the district court excluded SDC Police Chief Ed
Contreras’s testimony that Meeker and SDC Clinical Director Patty Rees ordered
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him to “find dirt” on Pena because they were concerned that Pena’s whistleblowing
activities could subject the SDC to liability. Because a retaliation suit “requires a
showing of an employer’s improper motive and ‘an employer’s true motivations
are particularly difficult to ascertain,” see Casumpang v. Int’l Longshoremen’s and
Warehousemen’s Union, Local 142, 269 F.3d 1042, 1059 (9th Cir. 2001),
retaliation cases often turn upon circumstantial evidence. Here, the fact that SDC
leaders, including Bjorndal’s direct superior, desired Pena’s termination so
strongly that they were willing to engage the SDC Police Chief in a cloak-and-
dagger investigation of Pena would allow a jury to infer that those leaders would
have communicated that desire to Bjorndal. Because Contreras’s evidence is
highly probative and because any undue prejudice could be addressed through
testimony by Bjorndal, Meeker, and Rees, the district court abused its discretion in
excluding Contreras’s testimony.
Pena further appeals the district court’s refusal to provide the jury with his
proposed response to a note it sent to the court during its deliberations. Because
we vacate the verdict against Pena and remand for retrial for the reasons discussed
above, we do not reach this issue on appeal.
Costs on appeal are awarded to the plaintiff.
AFFIRMED in part, REVERSED in part, and REMANDED.
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