398 Order Bench Trial

Case 1:07-cv-00026-OWW-DLB

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Filed 08/06/2009

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1 2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF CALIFORNIA

4

DAVID F. JADWIN, D.O.,

5

Plaintiff,

6 7

1:07-CV-00026-OWW-DLB FINDINGS OF FACT CONCLUSIONS OF LAW

AND

v. COUNTY OF KERN,

8

Defendant.

9 I.

10

INTRODUCTION

11

This matter is before the court pursuant to the parties’

12

stipulation to submit certain claims asserted by Plaintiff David F.

13

Jadwin, D.O. (“Plaintiff”) to the court for decision, each party

14

having voluntarily waived trial by jury. The other claims asserted

15

by Plaintiff were tried to and decided by a jury.

16

The jury returned verdicts, entered on June 8, 2009, in favor

17

of Plaintiff. (Doc. 384)

18

Kern (“County”): (1) retaliated against Plaintiff for engaging in

19

certain activities in violation of the Family and Medical Leave Act

20

(“FMLA”)

21

(“FEHA”); (2) retaliated against Plaintiff for taking medical leave

22

under the FMLA and the California Family Rights Act (“CFRA”); (3)

23

discriminated

24

disability in violation of the FEHA; (4) failed to reasonably

25

accommodate Plaintiff’s mental disability in violation of the FEHA;

26

and (5) failed to engage in an interactive process with Plaintiff

27

in violation of the FEHA.

28

defense that Plaintiff’s employment contract was not renewed by

and

the

The jury found that Defendant County of

California

against

Fair

Plaintiff

on

Employment

the

basis

and

of

Housing

his

Act

mental

The jury found against the County on its

1

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1

reason of his conduct and alleged violation of the employer’s rules

2

and contract requirements and/or that Plaintiff’s behavior was the

3

cause of the nonrenewal of his contract.

4

The jury awarded damages as follows:

5

Mental and emotional distress and suffering.

$0.00

Reasonable value of necessary medical care, treatment, and service received to the present time.

$30,192.00

Reasonable value of necessary medical care, treatment and services which with reasonable probability will be required in the future.

$0.00

Reasonable value of earnings and professional fees lost to the present time.

$321,285.00

$154,080.00

14

Reasonable value of earnings and professional fees with which reasonable probability will be lost in the future.

15

Total damages.

$505,457.00

6 7 8 9 10 11 12 13

16 17 18 19 20 21 22 23 24 25 26 27

Certain claims were not submitted to the jury.

The parties

stipulated that these claims shall be tried by the court sitting without a jury, and each party, pursuant to Federal Rule of Civil Procedure 38(d), voluntarily and knowingly waived on the record in open court any right they had to try these claims to a jury.

The

stipulation was accepted on the twelfth day of jury trial, June 6, 2009, and an order entered thereon. On the final day of jury trial, the parties were instructed to submit briefing on the claims submitted for trial by court; namely, their legal positions, proposed findings of fact and proposed conclusions of law by June 19, 2006. submissions.

28 2

The parties timely made their

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II. THE CLAIMS SUBJECT TO BENCH TRIAL DETERMINATION

1 2

The claims to be decided by the court without a jury included

3

Plaintiff’s claim for interference with his rights under the

4

FMLA/CFRA and a deprivation of Plaintiff’s due process rights under

5

the Fourteenth Amendment (made actionable via 42 U.S.C. § 1983).

6

The parties submitted the testimony of witnesses and exhibits from

7

the jury trial, and legal briefing.

8

bench trial briefing exceeds the scope of the claims, and attendant

9

issues, jointly submitted for bench trial determination.

10 11

A.

In some respects, Plaintiff’s

“Miscellaneous Relief” In

a

section

entitled

“Miscellaneous

Relief”

Plaintiff

12

requests when a final judgment is entered in this case that: (1)

13

the amount of economic damages awarded by the jury be doubled on

14

the ground that the jury found that Defendant’s violations of the

15

FMLA were “willful”; (2) Plaintiff be awarded pre-judgment and

16

post-judgment interest; (3) Plaintiff be awarded the costs of

17

litigation

18

Plaintiff’s Bill of Costs; (4) Plaintiff be awarded attorney’s fees

19

pursuant to the FEHA/CFRA/FMLA, and, if Plaintiff prevails on his

20

due process claim, attorney’s fees under 42 U.S.C. § 1988, all

21

according to proof per Plaintiff’s forthcoming application for

22

attorney’s fees.

as

the

prevailing

party

according

to

proof

per

23

Plaintiff’s items of “Miscellaneous Relief” exceed the scope

24

of the issues reserved for the bench trial portion of the case and

25

have not been briefed.

26

decision at this time and will not be addressed herein. The issues

27

of enhanced damages, interest, costs, and attorney’s fees must be

28

addressed in accordance with the Federal Rules of Civil Procedure

They are not properly before the court for

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1

and other applicable law.

These findings of fact and conclusions

2

of law deal exclusively with Plaintiff’s remaining claims for

3

relief submitted for decision as agreed at the close of the jury

4

trial.

5

B.

The Claims

6

With respect to his FMLA/CFRA claim, Plaintiff contends that

7

the County interfered with (or violated) his rights under the

8

FMLA/CFRA by: (i) requiring him to take more FMLA/CFRA leave than

9

medically necessary to address the circumstance that precipitated

10

his need for leave (i.e., that the County required Plaintiff to

11

take full-time leave instead of extending Plaintiff’s reduced work

12

schedule leave); and (ii) mislabeling some of his medical leave as

13

“personal necessity leave” instead of properly designating it

14

FMLA/CFRA

leave.1

With

respect

to

the

Fourteenth

Amendment,

15 16 17 18 19 20 21 22 23 24 25 26 27 28

1

In Plaintiff's bench trial briefing, Plaintiff has advanced another claim under the CFRA. Plaintiff quotes California Government Code § 12945.2(a) which provides in pertinent part: "Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave." Plaintiff argues that, in connection with his request for an extension of his medical leave, which ultimately lead to Plaintiff taking full-time medical leave, the County failed to guarantee employment in the same or a comparable position upon its conclusion. According to Plaintiff, the result of this failure is that Plaintiff's requested extension of leave is "deemed DENIED by operation of law." This theory of CFRA liability, regardless of whether it has any merit, is not encompassed within the Final Pretrial Order (Doc. 328), entered May 6, 2009. "A pretrial order generally supersedes the pleadings, and the parties are bound by its contents." Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993). The Final Pretrial Order did not encompass Plaintiff's claim that by operation of law, the County's purported failure to guarantee employment in the same 4

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Plaintiff claims that his placement on administrative leave with

2

pay deprived him of property without due process in violation of

3

the Fourteenth Amendment.

4

relief with respect to his FMLA/CFRA claim and damages ($116,501)

5

with respect to his due process claim.

6

encompassed in the Final Pretrial Order.

Plaintiff has requested injunctive

All of these claims are

7

The Court has considered all the submissions of the parties

8

and enters the following Findings of Fact and Conclusions of Law.

9

To the extent that any finding of fact may be interpreted as a

10

conclusion of law, or the converse, the finding is so intended. III.

11 12

1.

Findings Of Fact

Pursuant to contract, Defendant County employed Plaintiff

13

from October 24, 2000, to October 4, 2007.

14

the County as a core physician, specifically a pathologist, at Kern

15

Medical Center.

16 17 18 19

2.

Plaintiff worked for

Kern Medical Center (“KMC”) is a hospital owned and

operated by the County. 3.

On October 24, 2000, Plaintiff and the County executed a

term employment contract.

(Pl. Ex. 120.)

Attached to this term

20 21 22 23 24 25 26 27 28

or comparable position constituted a denial of his request for an extension of his medical leave. Not only is this claim absent from the Final Pretrial Order, it also does not appear in Plaintiff's Second Amended Complaint (Doc. 241) or in Plaintiff's Trial Brief (Doc. 325). More importantly no evidence was adduced at trial on this claim. The County would be manifestly prejudiced by introduction of a new claim at this late stage after the trial evidence is closed. The parties did not stipulate to submit this particular claim to a bench trial, and no motion was made to include this claim within the confines of the case. Accordingly, Plaintiff cannot assert this claim and it is not a proper subject of the bench trial portion of this case. 5

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1

employment contract is Exhibit “A” which is part of the agreement.

2

Exhibit

3

proceeds for any professional services performed by Core Physician

4

[Plaintiff] at [Kern] Medical Center until such time as this

5

Agreement is amended . . . .” The agreement further provides that

6

“KMC shall bill and retain all professional fees for professional

7

services performed at [Kern] Medical Center.”

8 9

A

4.

provides

that

Plaintiff

“shall

not

bill

or

retain

Plaintiff and the County executed another term employment

contract effective October 5, 2002 (Pl. Ex. 139), which terminated

10

the prior contract.

11

October 5, 2002, to October 4, 2007.

12

this agreement granted Plaintiff the right to earn and receive

13

professional fees.

14 15

5.

The

This new contract provided for a term of

employment

contract

Unlike the prior agreement,

contains

no

provision

about

renewal.

16

6.

17

County.

18

7.

At all relevant times, the FMLA/CFRA applied to the

The

County

provided

Plaintiff

with

a

reduced

work

19

schedule medical leave under the FMLA/CFRA from December 16, 2005,

20

to April 16, 2006.

21

8.

In April 2006, Plaintiff submitted a request to extend

22

his medical leave. (Pl. Ex. 250). In connection with his request,

23

Plaintiff submitted a form entitled Certification of Health Care

24

Provider, Medical Leave Of Absence. (Pl. Ex. 249).

25

signed by Paul Riskin, M.D., a psychiatrist, and dated April 26,

26

2006.

27

medically necessary for employee/patient to be off work on an

28

intermittent basis or to work less than the employee’s normal work

This form is

On the form, there is a question which asks whether “it is

6

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1

schedule in order to be treated for [a] serious health condition.”

2

This question is answered “yes” followed by the statement: “[t]his

3

employee is unable to work full time and requires part-time or less

4

to avoid worsening of his serious medical condition.” Another part

5

of the form asks Dr. Riskin to provide the estimated number of

6

hours per day the employee (Plaintiff) is able to work and the

7

written response indicates “1-2” days per week.

8

9.

On April 28, 2006, Plaintiff attended a meeting regarding

9

his medical leave situation. Those present at the meeting included

10

Plaintiff and three other individuals: Peter Bryan, then CEO of

11

KMC, Karen Barnes, the County Counsel, and Steve O’Connor from

12

Human Resources.

13

10.

After the April 28 meeting, Plaintiff went on full-time

14

medical leave under the FMLA/CFRA until June 16, 2006.

15

parties stipulated, Plaintiff took medical leave from December 16,

16

2005, to June 16, 2006.

17

11.

As the

In connection with the April 28 meeting, Bryan composed

18

a memorandum (Pl. Ex. 251) summarizing the meeting in his words. In

19

the memorandum, Bryan states: “I also mentioned that after Monday

20

[May 1, 2006], it would be preferable for you not to have an

21

intermittent work schedule and it would be easier on the department

22

to just have you on leave until your status is resolved.”

23

testified that it was Plaintiff’s idea to go on full-time medical

24

leave.

25

testimony, which counsel read in open court, that Bryan did not

26

recollect Plaintiff saying, either way, whether he (Plaintiff)

27

wanted to go on full-time leave or not.

28

12.

Bryan

This trial testimony conflicts with Bryan’s deposition

Plaintiff testified that he requested an extension of 7

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his modified work schedule and that, during the meeting, Bryan

2

conveyed a desire to have a full-time department chair.

3

described Bryan’s communication as one-way.

4

that he really had no choice to refuse full-time leave and he did

5

not believe raising an objection to the full-time leave would do

6

any good. 13.

7

Plaintiff

Plaintiff testified

Bryan required Plaintiff to inform him (Bryan) by June

8

16, 2006, whether Plaintiff would resign or return to work full-

9

time. Prior to that date, Plaintiff sent a correspondence to Bryan

10

(Pl. Ex. 256) in which Plaintiff explained that he underwent nasal

11

surgery

12

correspondence, Plaintiff asked for an extension on the June 16

13

deadline.

14

mail dated June 13 (Pl. Ex. 267 at 0001526) followed up by a letter

15

dated June 14 (Pl. Ex. 267 at 0001525).

16

that he would grant Plaintiff a Personal Necessity Leave for ninety

17

(90) days.

18

testified, the Personal Necessity Leave started June 16, 2006.

in

May

subsequently

fractured

his

foot.

In

the

Bryan responded to Plaintiff’s correspondence in an e-

Bryan informed Plaintiff

Plaintiff took that Personal Necessity Leave. As Bryan

14.

19

and

After going on Personal Necessity Leave, Plaintiff and

20

the

21

agreement effective October 3, 2006. (Pl. Ex. 283.) The amendment

22

reduced Plaintiff’s base salary and altered his job duties.

23

amendment changed Section 1 of Article II (Compensation) in the

24

employment

25

employment agreement with Exhibit “A” of the amendment.

26

amendment

27

agreement, which remained in full force and effect.

28

County

15.

executed

agreement

did

not

an

and

change

amendment

also

the

to

replaced

Plaintiff’s

other

Exhibit

terms

of

employment

“A”

the

to

The

the The

employment

Plaintiff resumed working for the County at KMC under the 8

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employment agreement as amended. 16.

Defendant County subsequently placed Plaintiff on paid

administrative leave on December 7, 2006. 17.

David Culberson, the Interim Chief Executive Officer,

5

decided to place Plaintiff on paid administrative leave.

6

the decision with the input and participation of Steve O’Connor

7

from Human Resources, Dr. Dutt (Chair of the Pathology Department),

8

Karen Barnes (County Counsel), and Margo Raison (Labor Counsel).

9

18.

He made

The County placed Plaintiff on paid administrative leave

10

via letter dated December 7, 2006, signed by Steve O’Connor on

11

behalf of Culberson. (Pl. Ex. 317.) The letter reads:

12 13 14 15 16 17 18 19 20 21

This is to notify you that you are being placed on administrative leave with pay effective immediately. You will remain in this status pending resolution of a personnel matter. Pursuant to Kern County Policy and Administrative Procedures Manual section 124.3, during this period of paid administrative leave, you are to remain at home and available by telephone during normal business hours, specifically, Monday through Friday between the hours of 8 a.m. and 5 p.m. Further, during this leave period, you are not to come to Kern Medical Center (KMC) or its satellite facilities or contact any employee or faculty member of KMC for any reason other than seeking medical attention. In accordance with KMC policy, access to and usage of any and all equipment or systems has been suspended. Failure to comply with the instructions of this letter is grounds for disciplinary action up to and including termination of your employment with the County of Kern.

23

Please bring to my attention any request you may have to access hospital premises or personnel during this time. I may be reached through my assistant . . . .

24

19.

25

Administrative

26

“Disciplinary

27

124.2, 124.3).

28

Pay” provides:

22

Then-existing section 124 of the Kern County Policy and Procedures Actions”

and

Manual

(Pl.

contains

Ex.

three

104)

is

subsections

entitled (124.1,

Section 124.3 entitled “Administrative Leave with

9

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A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee's alleged misconduct or will severely disrupt the business of the department. During the administrative leave, the employee shall be ordered to remain at home and available by telephone during the normally assigned work day. A department head may, if necessary, adjust the employee's work schedule to provide availability during normal business hours, Monday through Friday, 8:00 AM to 5:00 PM. A department head may not order an administrative leave with pay for a period in excess of five assigned workdays within a single pay period without the written authorization of the Employee Relations Officer in the County Administrative Office. Changes in duty status following the issuance of a notice of proposed action are as provided in Civil Service Rule 1700 st. seq., not this section. 20.

Plaintiff’s operative employment agreement provides that

Plaintiff is subject to “all applicable KMC and County policies and procedures.” (Pl. Ex. 139 at 139.014.) 21.

Plaintiff remained on paid administrative leave until his

employment agreement expired on October 4, 2007. 22.

Plaintiff continued to receive his base salary while on

administrative leave. Culberson acknowledged, however, that he was aware that by placing Plaintiff on administrative leave, Plaintiff would not be able to earn professional fees (which Plaintiff could earn in accordance with his employment agreement).

Plaintiff's

expert witness, Stephanie Rizzardi, testified that Plaintiff lost professional fees while on paid administrative leave. 23.

The jury awarded damages for lost professional fees and

earnings. 24.

In

connection

with

Plaintiff’s

placement

on

paid

administrative leave, the County did not provide Plaintiff with a

28 10

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1

hearing, whether before or after his paid administrative leave

2

commenced, and did not provide him with an explanation of the

3

“personnel matter” or reason for the leave. IV.

4 5

A.

FMLA/CFRA Claim 1.

6

CONCLUSIONS OF LAW

“Article III, § 2, of the Constitution confines federal

7

courts to the decision of ‘Cases’ or ‘Controversies.’” Arizonans

8

for Official English v. Arizona, 520 U.S. 43, 64 (1997).

9

and mootness are aspects of the case-or-controversy requirement.

10

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

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).

13

2.

14

‘controversy’

15

minimum of standing for all federal court plaintiffs.” M-S-R Pub.

16

Power Agency v. Bonneville Power Admin., 297 F.3d 833, 843 (9th

17

Cir. 2002) (internal quotation marks omitted). Whether a plaintiff

18

has standing is evaluated as of time the operative complaint is

19

filed. See County of Riverside v. McLaughlin, 500 U.S. 44, 51

20

(1991) (analyzing standing as of the time the “second amended

21

complaint was filed”); Thomas v. Mundell, __ F.3d __, 2009 WL

22

2032335, at *4 (9th Cir. July 15, 2009).

23

Article

24

restriction, “at all stages of [litigation], not merely at the time

25

the complaint is filed,” as to which cases are “fit for federal-

26

court adjudication.” Arizonans for Official English, 520 U.S. at

27

67.

28

3.

In

III’s

terms

of

provision

standing, creates

an

case-or-controversy

“Article

III's

Standing

irreducible

‘case’

or

constitutional

In terms of mootness,

provision

also

creates

a

“The federal courts are under an independent obligation 11

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1

to examine their own jurisdiction, and standing is perhaps the most

2

important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City

3

of Dallas, 493 U.S. 215, 231 (1990) (alteration in original)

4

(internal quotation marks omitted).

5

examine jurisdiction extends to mootness. Lomax, 471 F.3d at 1015-

6

16. 4.

7

The independent obligation to

A plaintiff in federal court “must demonstrate standing

8

separately for each form of relief sought,” Friends of the Earth,

9

Inc., 528 U.S. at 185, “whether it be injunctive relief, damages or

10

civil penalties,” Bates v. United Parcel Service, Inc., 511 F.3d

11

974, 985 (9th Cir. 2007).

12

to

13

Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d

14

1157, 1170 (9th Cir. 2007).

15

determine

5.

whether

Likewise, such claims must be analyzed

they

are

moot.

See,

e.g.,

Consejo

de

Standing requires that “(1) the plaintiff suffered an

16

injury in fact, i.e., one that is sufficiently ‘concrete and

17

particularized’

18

hypothetical,’

19

challenged conduct, and (3) the injury is ‘likely’ to be ‘redressed

20

by a favorable decision.’” Bates, 511 F.3d at 985 (quoting Lujan v.

21

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

22

6.

23

relief,”

24

plaintiff

25 26 27 28

and (2)

“[F]or such

as

‘actual the

a

or

imminent,

injury

plaintiff

Plaintiff

is

‘fairly

seeking

here,

for

not

conjectural

traceable’

prospective standing

to

to

the

injunctive exist,

“must demonstrate that he has suffered or is threatened with a concrete and particularized legal harm coupled with a sufficient likelihood that he will again be wronged in a similar way. As to the second inquiry, he must establish a real and immediate threat of repeated injury. . . . In addition, the claimed threat of injury must be likely to be redressed by the prospective 12

or

the

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injunctive relief.”

1 2

Bates, 511 F.3d at 985 (citations and internal quotation marks

3

omitted).

4

power exists only to redress or otherwise to protect against injury

5

to the complaining party.” Vermont Agency of Natural Resources v.

6

United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (emphasis

7

in original) (internal quotation marks omitted).2 7.

8 9

for

With respect to the last inquiry, “Art. III judicial

Even if a plaintiff has standing with respect to a claim

relief

at

the

time

the

complaint

is

filed,

mootness

10

considerations “require courts to look to changing circumstances

11

that

12

controversy no longer exists, the claim is moot.” Lomax, 471 F.3d

13

at

14

case-or-controversy requirement demands that, through all stages of

15

federal judicial proceedings, the parties continue to have a

16

personal stake in the outcome of the lawsuit.” Carty v. Nelson, 426

17

F.3d 1064, 1071 (9th Cir. 2005).

18

arise

1016

8.

after

the

(internal

complaint

is

quotation

filed,”

marks

and

“[i]f

omitted).

a

live

“The

With respect to his FMLA/CFRA claim, Plaintiff does not

19 2

20 21 22 23 24 25 26 27 28

Without citing any authority, Plaintiff argues that the federal concern for standing is “ameliorated where state law specifically authorizes injunctive relief.” The case-orcontroversy requirement, mandated by the United States Constitution and applicable in federal court, is not “ameliorated” by state law. In federal court, Article III standing requirements are equally applicable to state law claims. See Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1180 (9th Cir. 2006); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir. 2004) (reversing district court’s conclusion that plaintiff had standing to pursue an injunctive relief claim under state law); Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1001-02 (9th Cir. 2001); 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 exempt from Article III standing requirements. 13

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1

seek damages; rather he seeks “prospective injunctive relief in the

2

form of an order requiring [Kern County] to train its staff to

3

proficiency regarding compliance” with “reduced work schedule leave

4

rights” under the FMLA/CFRA. 9.

5

In Walsh v. Nevada Department of Human Resources, the

6

Ninth Circuit concluded that the plaintiff, Nancy Walsh, “lacked

7

standing to request injunctive relief to force the Department to

8

adopt and enforce lawful policies regarding discrimination based on

9

disability.” 471 F.3d 1033, 1036 (9th Cir. 2006).

The court

10

determined that the plaintiff failed to satisfy the redressability

11

requirement of standing that she “is likely to be redressed by the

12

relief she seeks.”

13

plaintiff “is no longer an employee of the Department” and “there

14

is no indication in the complaint that [she] has any interest in

15

returning to work” for the defendant. Id. “Therefore, she would not

16

stand

17

discriminatory policies she requests at her former place of work.”

18

Id.

19

which she would not likely benefit.”

20

Official English, 520 U.S. at 67 (concluding that a plaintiff’s

21

claim

22

provision, Article XXVIII, was moot; provision applied only to

23

public

24

plaintiff “left her state job in April 1990 to take up employment

25

in the private sector, where her speech was not governed by Article

26

XXVIII” at which “point, it became plain that she lacked a still

27

vital claim for prospective relief.”).

28

to

benefit

Id. at 1037.

from

an

The court noted that the

injunction

requiring

the

anti-

She thus “lacked standing to sue for injunctive relief from

for

10.

injunctive

employees,

and

relief

after

as

to

the

Id.; cf. Arizonans for

an

Arizona

commencement

constitutional

of

litigation

Judicial notice of the Second Amended Complaint, filed 14

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October 7, 2008, is taken. 11.

2

Plaintiff’s employment relationship with the County ended

3

on October 4, 2007, well before he filed his Second Amended

4

Complaint.

5

Plaintiff’s reinstatement or allege any intent to resume employment

6

with the County. 12.

7

The

Second

Amended

Complaint

does

not

request

The evidence at trial did not demonstrate that Plaintiff

8

sought re-employment with the County at or around the time he filed

9

the Second Amended Complaint (or thereafter). The County had no

10

interest

11

expired in October 2007 or in retaining him as an employee at or

12

around

13

thereafter).

the

13.

14

in

renewing

time

he

Plaintiff’s

filed

the

employment

Second

contract

Amended

when

Complaint

it

(or

Viewing the circumstances as they existed at the time of

15

the

operative

16

likelihood that [Plaintiff] will again be wronged [by the County]

17

in a similar way,” Bates, 511 F.3d at 985 (internal quotation marks

18

omitted), as the County no longer employs him and there is no

19

reasonable prospect that Plaintiff will resume employment with the

20

County. 14.

21

pleading,

the

evidence

shows

no

“sufficient

In addition, just as in Walsh, Plaintiff “would not stand

22

to benefit from an injunction,” 471 F.3d at 1037, that requires the

23

County to train its staff regarding reduced work schedule leave

24

rights under the FMLA/CFRA.

25

to

26

complaining party." Vermont Agency of Natural Resources, 529 U.S.

27

at 771 (emphasis in original) (internal quotation marks omitted).

28

Plaintiff’s

redress

or

otherwise

requested

"Art. III judicial power exists only to

protect

injunction 15

would

against

not

injury

provide

to

him,

the

the

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1

complaining party, any redress or protection against a future

2

violation of the FMLA/CFRA as he is no longer employed, and not

3

likely to be employed, by the County and subject to the staff whom

4

he requests be “trained.”3 15.

5

Plaintiff lacks standing to request injunctive relief to

6

require the staff of the County to be trained on reduced work

7

schedule leave rights under the FMLA/CFRA. 16.

8 9

the

time

Even assuming, arguendo, that Plaintiff had standing at of

the

operative

pleading,

Plaintiff’s

claim

for

10

injunctive relief is moot.

He is not an employee of the County, is

11

not seeking reinstatement, and there is no reasonable likelihood

12

that he will resume employment with the County.

13

stake in an injunction which requires staff of the County to be

14

trained.

15

(“Mootness has been described as the doctrine of standing set in a

16

time frame: The requisite personal interest that must exist at the

17

commencement of the litigation (standing) must continue throughout

18

its existence (mootness).”) (internal quotation marks omitted).

He has no personal

See Arizonans for Official English, 520 U.S. at 68 n.22

19 3

20 21 22 23 24 25 26 27 28

Plaintiff argues that Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) supports the conclusion that Plaintiff has standing. In Armstrong, however, it was clear that the plaintiffs (there disabled prisoners and parolees) faced the prospect of further discrimination by the State of California during the parole and parole revocation hearing process. Here, by contrast, Plaintiff does not face the prospect of further FMLA/CFRA-proscribed activity by the County. Moreover, consistent with the Ninth Circuit’s later decision in Bates, Armstrong expressly recognized that, for standing purposes, where a “plaintiff seeks injunctive relief, he must demonstrate that he is realistically threatened by a repetition of [the violation].” Armstrong, 275 F.3d at 860-861 (emphasis added) (alteration in original) (internal quotation marks omitted). Plaintiff does not face a realistic threat of repetition of the alleged FMLA/CFRA violations. 16

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Plaintiff lacks standing to pursue his injunctive relief

2

claim under the FMLA/CFRA or, if arguendo standing exists, the

3

claim is moot.

4

B.

5

Accordingly, the claim is dismissed.4

§ 1983 Claim – Procedural Due Process 18.

Section 1983 creates a federal cause of action for the

6

deprivation, under color of state law, of rights guaranteed by the

7

United States Constitution. San Bernardino Physicians' Servs. Med.

8

Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1407 (9th

9

Cir. 1987).

10

under

11

placement on paid administrative leave deprived him of a property

12

interest without due process and he requests damages.

13

has standing to assert this claim for relief, and it is not moot.

14

the

At issue here is the right to procedural due process

19.

Fourteenth

Amendment.

Plaintiff

claims

that

his

Plaintiff

“The Fourteenth Amendment protects individuals against

15

deprivation of liberty or property by the government without due

16

process.” Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th

17

Cir. 1993). In this case, Plaintiff claims a deprivation of a

18

property interest (and not a liberty interest).

To prevail on his

19 4

20 21 22 23 24 25 26 27 28

In his briefing, Plaintiff also requests an injunction requiring the County to train its staff to proficiency regarding “compliance with disability rights under FEHA” and “protection against retaliation under” the FMLA/CFRA. The parties did not stipulate to submit the FEHA disability claims or the FMLA/CFRA retaliation claims, or the associated relief, to a bench trial. Plaintiff’s requested injunctive relief – to train County staff to proficiency regarding compliance with disability rights under FEHA and protection against FMLA/CFRA retaliation – goes beyond the confines of the stipulated bench trial and cannot be considered. Plaintiff also lacks standing with respect to these claims for injunctive relief (and even assuming he had standing, these claims are moot). Nonetheless, as a practical matter, it is inconceivable that the County is not knowledgeable of its employment law duties placed in issue by the entirety of this case. 17

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1

constitutional claim, Plaintiff must establish: “(1) a property

2

interest protected by the Constitution; (2) a deprivation of the

3

interest by the government; and a (3) lack of required process.”

4

Ulrich v. City & County of San Francisco, 308 F.3d 968, 974 (9th

5

Cir. 2002).

6

i.

Property Interest

7

20.

“Property interests, of course, are not created by the

8

Constitution. Rather they are created and their dimensions are

9

defined by existing rules or understandings that stem from an

10

independent source such as state law-rules or understandings that

11

secure certain benefits and that support claims of entitlement to

12

those benefits.” Bd of Regents of State Colls. v. Roth, 408 U.S.

13

564,

14

determine “whether that interest rises to the level of ‘legitimate

15

claim of entitlement,’” i.e., a cognizable property interest, for

16

Fourteenth Amendment purposes. Loehr v. Ventura County Cmty. Coll.

17

Dist., 743 F.2d 1310, 1314 (9th Cir. 1984) (internal quotation

18

marks omitted); see also Town of Castle Rock, Colo. v. Gonzales,

19

545 U.S. 748, 756-57 (2005).

20

577

21.

(1972).

Federal

constitutional

law,

however,

helps

No cognizable property interest “can exist in the outcome

21

of a decision unmistakably committed . . . to the discretion of the

22

[public entity].” Ulrich, 308 F.3d at 976 (alteration in original)

23

(internal

24

legitimate claim of entitlement to something, such as a benefit,

25

the decision to grant or take it away must be removed from agency

26

discretion. See Peacock v. Bd. of Regents of the Univs. & State

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.

quotation

marks

omitted).

18

Accordingly,

to

have

a

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1

422, 430 (1982).

2

which an employee may be discharged, such as conditioning dismissal

3

on

4

property interest” in continued employment.

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

a

finding

22.

Thus, “a state law which limits the grounds upon

of

cause,

creates

a

constitutionally

protected

Dyack v. Commonwealth

Independent sources from which property interests or

14

individual

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). a.

20 21

entitlements

23.

can

arise

include,

among

others,

a

Property Interest At Stake

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.

24

written

25

consent on October 5, 2002.

26

24.

agreement

was

voluntarily

terminated

by

the

This

parties’

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

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1

placement on paid administrative leave (with the amendments as

2

noted above).

According to the terms of this agreement (paragraph

3

10),

testified

4

Plaintiff was not a civil service employee.

5

and

25.

as

to

by

Karen

Barnes

(County

Counsel),

Pursuant to California Government Code Section 31000

6

(which

is

specifically

referenced

in

Plaintiff’s

employment

7

agreement) the County is expressly authorized to “contract” with

8

individuals for the provision of “special services” including

9

“medical” services.5 See Cal. Gov’t Code § 31000.

Plaintiff’s

10

contract with the County was one for special services as authorized

11

by § 31000.

12

County Code provides that “[a]ll county employees shall be included

13

in the civil service system . . . except,” among others, “[a]ll

In turn, Section 3.04.020 of Title 3 of the Kern

14 5

15 16 17 18 19 20 21 22 23 24 25 26 27 28

California Government Code § 31000 reads as follows: “The board of supervisors may contract for special services on behalf of the following public entities: the county, any county officer or department, or any district or court in the county. Such contracts shall be with persons specially trained, experienced, expert and competent to perform the special services. The special services shall consist of services, advice, education or training for such public entities or the employees thereof. The special services shall be in financial, economic, accounting (including the preparation and issuance of payroll checks or warrants), engineering, legal, medical, therapeutic, administrative, architectural, airport or building security matters, laundry services or linen services. They may include maintenance or custodial matters if the board finds that the site is remote from available county employee resources and that the county's economic interests are served by such a contract rather than by paying additional travel and subsistence expenses to existing county employees. The board may pay from any available funds such compensation as it deems proper for these special services. The board of supervisors may, by ordinance, direct the purchasing agent to enter into contracts authorized by this section within the monetary limit specified in Section 25502.5 of the Government Code.” 20

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1

persons providing services to the county under contract . . . .” §

2

3.04.020.6

3

contract and was not governed by the civil service rules.

4

property interest Plaintiff had is not confined by, and must arise

5

from an authority other than, the civil service rules.

6

26.

Plaintiff

provided

services

to

the

County

under Any

Plaintiff’s written employment agreement gave Plaintiff

7

a right to be employed as a core physician for five years (from

8

October 5, 2002 to October 4, 2007).

9

agreement,

the

County

could

According to the terms of his

“terminate”

the

term

employment

10

agreement “at any time for cause.” (Emphasis added.) No other part

11

of the agreement gave the County the right to terminate his

12

employment relationship without cause.

13

a protected property interest in his continued employment through

14

October 4, 2007.

15

27.

Accordingly, Plaintiff had

The County continuously employed Plaintiff at full pay,

16

albeit on leave, through the remainder of his term.

17

Plaintiff can establish a due process violation based on his

18

placement on administrative leave if Plaintiff’s property interest

19

in continued employment included a property interest in

20

duty,” Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005), or a

21

“property interest in avoiding placement on administrative leave

22

with pay,” Qualls v. Cook, 245 F. App’x 624, 625 (9th Cir. 2007).”7

23 24

28.

Nonetheless,

“active

Plaintiff’s employment contract specified that he was

subject to “all applicable KMC and County policies and procedures.”

25 26 27 28

6

The Kern County Code is available on LexisNexis.

7

The facts in Deen are distinguishable but the terminology “active duty” is borrowed as a useful alternative label for the interest referred to in Qualls as the “property interest in avoiding placement on administrative leave with pay.” 21

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1

One such policy was the “Kern County Policy and Administrative

2

Procedures Manual.”

3

was being placed on administrative leave on December 7, 2006.

4

letter invoked Kern County Policy and Administrative Procedures

5

Manual section 124.3.

6

29.

Culberson’s letter notified Plaintiff that he The

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 11 12 13

A department head may place an employee on administrative leave with pay if the department head determines that the employee is engaged in conduct posing a danger to County property, the public or other employees, or the continued presence of the employee at the work site will hinder an investigation of the employee's alleged misconduct or 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

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1

administrative leave.

2

section 124.3 as the source of its authority to place Plaintiff on

3

paid administrative leave.

4

accordance

5

Administrative Procedures Manual, the County had the ability to

6

place employees on paid administrative leave, that he and those who

7

aided his decision made sure the policy was followed, and he, in

8

fact, followed the policy in placing Plaintiff on administrative

9

leave. 32.

10

with

This confirms that the County considered

section

Culberson

Culberson further testified that, in

123.4

testified

of

the

that

Kern

he

County

determined

Policy

and

Plaintiff's

11

continued presence would "severely disrupt the business of the

12

department" as stated in section 124.3. Culberson’s acknowledgment

13

that

14

administrative leave, and Culberson’s claimed faithful adherence to

15

that policy, supports the conclusion that the County limited its

16

authority to place Plaintiff on administrative leave to the reasons

17

specified in section 124.3.

124.3

provided

the

ability

to

place

employees

on

paid

18

33. Testimony from County Counsel, Karen Barnes, does not

19

alter the conclusion. Barnes testified that, according to her

20

interpretation and that of the County Counsel’s office, section

21

124.3 provides “guidance” to the County as the employer for the

22

placement of an employee on paid administrative leave, which

23

includes placement of the employee at home.

24

briefing,

25

“guidance” testimony demonstrates that the County is not limited to

26

the grounds specified in section 124.3 when deciding whether to

27

place an employee on administrative leave.

the

County

does

not

28 23

squarely

In its bench trial argue

that

Barnes’s

Any such argument

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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.

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.

9

in the sense that it tells the County when it may place an employee

Moreover, Barnes’s testimony is consistent with the

On its face, section 124.3 does provide “guidance”

10

on paid administrative leave.

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.

14

concrete set of grounds on which an employee may be placed on paid

15

administrative leave.

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.

Finally, if the County wanted to

However, section 124.3 sets forth a

Barnes’s testimony does not negate the

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.

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

This

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The evidence preponderates to show that by delineating

2

the

3

administrative leave and by not providing for any additional

4

grounds, the County limited its authority to place Plaintiff on

5

paid administrative leave to the grounds specified. The County did

6

not

7

administrative leave.

8

grounds

have

36.

on

which

unfettered

Plaintiff

discretion

could

to

place

be

placed

Plaintiff

on

on

paid

paid

The presence of some limitation on a decision-maker’s

9

authority does not necessarily mean a property interest has been

10

created. Compare Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir.

11

1980) (concluding that a Nevada statute did not create a legitimate

12

claim of entitlement to a license where “[t]he only substantive

13

restriction

14

authority [was] the requirement that the basis for its decision be

15

reasonable”) with Parks v. Watson, 716 F.2d 646, 657 (9th Cir.

16

1983)

17

statutory scheme placed “significant substantive restrictions” on

18

the decision-maker’s authority to “vacate” city streets despite the

19

fact that the decision-maker was directed to consider “the public

20

interest;” and noting that “a determination as to whether the

21

public interest will be prejudiced, while obviously giving a

22

certain amount of play in the decisional process, defines an

23

articulable standard.”).

24

decision-making helps determine whether the limitation creates a

25

property interest. See Ressler v. Pierce, 692 F.2d 1212, 1215 (9th

26

Cir. 1982); see also Stiesberg v. California, 80 F.3d 353, 357 (9th

27

Cir. 1996) (recognizing that a “significant substantive restriction

imposed

(concluding

upon

that

a

the

[decision-maker’s]

property

interest

exercise

existed

where

of

a

The degree of the limitation on the

28 25

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1

on decision making” can create a property interest) (internal

2

quotation marks omitted). 37.

3

In Cleveland Board of Education v. Loudermill, 470 U.S.

4

532,

5

employees had a property interest in continued employment.

6

limitation on decision-making authority in Loudermill provided that

7

employees

8

inefficiency,

9

insubordination, discourteous treatment of the public, neglect of

10

duty, violation of such sections or rules of the director of

11

administrator services or the commission, or any other failure of

12

good behavior, or any other acts of misfeasance, malfeasance, or

13

nonfeasance in office.” Id. at 539 n.4.

14

539 (1985), the Supreme Court concluded that certain public

38.

could

not

be

dismissed

dishonesty,

except

drunkenness,

“for

The

incompetency,

immoral

conduct,

In Federal Deposit Insurance Corp. v. Henderson, 940 F.2d

15

465 (9th Cir. 1991), the court concluded that an employee had a

16

property interest in continued employment. The employment contract

17

provided that the decision-maker could terminate the employee

18

without cause upon ninety days advance notice; otherwise the

19

decision-maker could terminate the employee immediately for “cause”

20

and cause was defined in the agreement as including a “breach of

21

the Agreement, illegal activity, and misconduct injurious to the

22

Bank’s

23

contract provisions, the Ninth Circuit determined that the employee

24

had a property interest in continued employment for ninety days.

25

Id. at 476.

26 27

interest.” Id.

39. 1991),

at

470

(emphasis

added).

Based

on

the

In Wheaton v. Webb-Petett, 931 F.2d 613, 616-17 (9th Cir.

the

court

concluded

that

28 26

a

management

employee

had

a

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1

property interest in continued employment.

2

decision-making authority in Wheaton provided that employees could

3

be removed if “unable or unwilling to fully and faithfully perform

4

the duties of the position satisfactorily.” Id.

5

40.

The limitation on the

Finally, in Williams v. County of Los Angeles, 22 Cal. 3d

6

731, 736 (1978) the court concluded that a public employee had a

7

property interest in employment where his discharge could occur

8

upon “a showing of unsatisfactory service.”

9

41.

Here, the substantive grounds on which Plaintiff could be

10

placed on paid administrative leave set forth in section 124.3 were

11

just as limiting on decision-making authority as, if not more

12

restrictive

13

Henderson, Wheaton and Williams.

14

preponderance of the evidence, that the County’s authority to place

15

Plaintiff on administrative leave was constrained to a significant

16

degree.

17

cause standard,’” Logan, 455 U.S. at 431, for placing an employee

18

on paid administrative leave.

19

the types of interests protected as ‘property’ are varied and, as

20

often as not, intangible, relating to the whole domain of social

21

and economic fact.” Id. at 430 (internal quotation marks omitted).

22

42.

than,

the

grounds

for

dismissal

in

Loudermill,

Plaintiff has proved, by a

Section 124.3 sets forth “what is, in essence, a ‘for

“Once that characteristic is found,

The evidence preponderates to show that Plaintiff had a

23

cognizable property interest, or a legitimate claim of entitlement

24

to, active duty (or in avoiding placement on administrative leave

25

with pay).

26

Plaintiff’s employment agreement.

27

43.

This conclusion is supported by express language in

Plaintiff’s term employment agreement with the County

28 27

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1

could not be terminated by the County except “for cause.”

2

the agreement included Plaintiff’s remuneration, which is referred

3

to

4

“compensation” plan consists of “base salary,” “professional fee

5

payments” and “other income.”

6

“purpose of the [compensation] plan is to provide market-based,

7

performance-driven compensation.”

8

in

the

44.

agreement

as

his

“compensation”

plan.

Part of

The

total

The agreement recognizes that the

Given that his agreement expressly provided that he could

9

earn professional fees and that these fees were part of his

10

“performance-driven compensation,” the parties mutually understood

11

that Plaintiff’s compensation was tied to performance, and that

12

Plaintiff would be in a position to perform, i.e., on active duty.

13

Plaintiff’s

14

professional fees as part of his total compensation naturally

15

included an ancillary entitlement to not be thwarted from actively

16

performing his services so that he could obtain the fruits of his

17

bargain.

18

45.

express

contractual

right

to

earn

and

receive

Plaintiff has proved, by a preponderance of the evidence,

19

that Plaintiff had a cognizable property interest in active duty or

20

in avoiding placement on administrative leave with pay.

21

ii.

Deprivation Of A Property Interest

22

46.

The County placed Plaintiff on paid administrative leave

23

for several months and, in so doing, deprived him of his property

24

interest in active duty employment.

25

Final Pretrial Order that any acts or omissions of the County were

26

under color of law.

27

47.

The parties stipulated in the

Plaintiff has proved, by a preponderance of the evidence,

28 28

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1

that he was deprived of his property interest in active duty under

2

color of state law.

3

was more than de minimis.

4

Trs., 233 F.3d 524, 530 (7th Cir. 2000) (recognizing that, to be

5

actionable, a deprivation of a property interest must have more

6

than de minimis impact).

This deprivation had an economic effect that

7

iii. The Process Due

8

48.

9

Bordelon v. Chi. Sch. Reform Bd. of

“[O]nce it is determined that the Due Process Clause

applies, the question remains what process is due.” See Loudermill,

10

470 U.S. at 541 (internal quotation marks omitted).

Notice and an

11

opportunity to be heard are required fundamental aspects of due

12

process.

13

(“[W]e have determined that individuals whose property interests

14

are at stake are entitled to notice and an opportunity to be

15

heard.”) (internal quotation marks omitted); United States v. James

16

Daniel Good Real Property, 510 U.S. 43, 53 (1993) (“The right to

17

prior notice and a hearing is central to the Constitution's command

18

of due process” and some exceptions “to the general rule requiring

19

predeprivation

20

“extraordinary situations”) (internal quotation marks omitted);

21

Loudermill, 470 U.S. at 546 (“The essential requirements of due

22

process . . . are notice and an opportunity to respond. The

23

opportunity to present reasons, either in person or in writing, why

24

proposed action should not be taken is a fundamental due process

25

requirement.”); Matthews v. Eldrige, 424 U.S. 319, 333 (1976) (“The

26

fundamental requirement of due process is the opportunity to be

27

heard at a meaningful time and in a meaningful manner.”) (internal

See Dusenbery v. United States, 534 U.S. 161, 167 (2002)

notice

and

hearing”

28 29

are

“tolerat[ed]”

in

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1

quotation marks omitted); United States v. Alisal Water Corp., 431

2

F.3d 643, 657 (9th Cir. 2005) (“At its core, due process requires

3

that a party have adequate notice and opportunity to be heard.”). 49.

4

The full scope or precise contours of what process was

5

due need not be determined.

6

administrative leave summarily without any pre-deprivation or post-

7

deprivation opportunity to be heard.

8

the bare minimum of due process. 50.

9

The County placed Plaintiff on paid

Plaintiff was not afforded

Plaintiff has proved, by a preponderance of the evidence,

10

that he was deprived of a property interest in active duty without

11

due process. iv.

12

Damages a.

13 51.

14

Monell Liability

In a § 1983 case, a municipality cannot be liable for a

15

constitutional tort on the basis of respondeat superior. Monell v.

16

Dep't

17

"[l]iability

18

municipality itself causes the constitutional violation."

19

308

20

"[M]unicipalities may be held liable under § 1983 only for acts for

21

which the municipality itself is actually responsible, that is,

22

acts which the municipality has officially sanctioned or ordered."

23

Eggar v. City of Livingston, 40 F.3d 312, 314 (9th Cir. 1994)

24

(internal quotation marks omitted).

25

of

F.3d

Soc.

52.

Servs.,

may

at

436

attach

984

to

U.S. a

658,

691

municipality

(internal

quotation

(1978). only

marks

Rather, where

the

Ulrich,

omitted).

To impose liability on a municipality under § 1983, a

26

plaintiff must identify a municipal "policy" or "custom" that

27

caused the alleged constitutional deprivation.

28 30

Bd. of the County

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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.

5

by showing: (1) an express policy that, when enforced, causes a

6

constitutional

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).

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.

"A plaintiff can establish a ‘policy or custom'

deprivation;

(2)

a

widespread

practice

that,

In addition, a decision by the municipal entity’s

The mere existence of a municipal policy or custom is not

21

enough to establish liability.

22

"moving force" behind the alleged constitutional violation.

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.

The policy or custom must be the Galen

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.)

28 31

The County’s admission that

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1

the "County" placed Plaintiff on paid administrative leave supports

2

a finding that the County ordered or ratified the placement of

3

Plaintiff on paid administrative leave, which occurred without any

4

attendant

5

preponderates to show that section 124.3 of the Kern County Policy

6

and Procedure Manual constitutes an express policy of the County,

7

and that Culberson, the Chief Executive Officer, relied upon that

8

County policy to place Plaintiff on paid administrative leave.

9

56.

due

process.

In

addition,

the

evidence

also

County Counsel, Karen Barnes, referred to the Kern County

10

Policy and Administrative Procedures Manual as the "County Policy"

11

and stated that it provided guidance to the County as the employer

12

with respect to placement of an employee on paid administrative

13

leave.

14

Administrative

15

constitutes County policy.

16

underscores this point.

17

placed on administrative leave by a letter dated December 7, 2006,

18

issued by Culberson (and signed by Steven O’Connor).

19

cited Kern County Policy and Administrative Procedures Manual

20

section 124.3.

21

accordance with 123.4 of the Kern County Policy and Administrative

22

Procedures Manual, to place any employee on administrative leave,

23

"we follow the policy," and the Manual was followed in placing

24

Plaintiff on paid administrative leave.

25

he concluded that Plaintiff's continued presence would "severely

26

disrupt the business of the department" as stated in section 124.3.

27

This testimony establishes that the Kern County Policy and

57.

Procedures

Manual,

including

section

124.3,

Culberson’s reliance on the Manual

Plaintiff was notified that he was being

The letter

Culberson testified that he had the authority, in

Culberson testified that

The evidence preponderates to show that section 124.3 of

28 32

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1

the Kern County Policy and Administrative Procedural Manual is an

2

express County policy and that it was the moving force behind

3

Plaintiff’s placement on administrative leave without due process.

4

Section

5

placement of Plaintiff on paid administrative leave without notice

6

or a hearing, and Culberson testified that Plaintiff’s placement on

7

administrative leave was proper under section 124.3.

8

v. King, 728 F.2d 428, 433 (10th Cir. 1984) (municipal hospital

9

liable

124.3,

for

which

Culberson

deprivation

of

a

relied

property

upon,

authorized

interest

the

See Vinyard

in

continued

10

employment without due process where it authorized the employee’s

11

termination without affording due process protections); Kay v. N.

12

Lincoln Hosp. Dist., 555. F. Supp. 527, 529 (D. Or. 1982) (denying

13

summary

14

entity’s written policy authorized the “immediate discharge” of the

15

plaintiff without due process protections); see also Lalvani v.

16

Cook County, No. 98 C 2847, 2000 WL 198459, at *7 n.6 (N.D. Ill.

17

Feb. 14, 2000).

18

58.

judgment

as

to

Monell

liability

where

the

municipal

Plaintiff has proved, by a preponderance of the evidence,

19

that a County policy was actually responsible for the deprivation

20

of his property interest in active duty without due process, i.e.,

21

that a policy of the County was the moving force behind the

22

constitutional deprivation. b.

23 24

59.

Amount Of Damages

Based on the evidence, the deprivation of Plaintiff’s

25

property interest in active duty had an economic impact on his

26

professional fees. Plaintiff requests a damages award in an amount

27

that represents the professional fees that he claims to have lost

28 33

Case 1:07-cv-00026-OWW-DLB

the

he

was

on

paid

Page 34 of 36

during

2

Compensatory damages can be awarded for procedural due process

3

violations.

4

1988). Plaintiff cannot be awarded additional amounts for his

5

claimed loss of professional fees as a result of his placement on

6

administrative leave. 60.

that

Filed 08/06/2009

1

7

period

Document 398

administrative

leave.

See Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir.

In

the

jury

trial

portion

of

this

case,

the

jury

8

concluded that Plaintiff’s placement on paid administrative leave

9

was unlawful under the FMLA and the FEHA because it was effected in

10

retaliation for engaging in certain activities.

11

determined that Plaintiff was harmed by such retaliation, and the

12

jury awarded damages which included lost earnings and “professional

13

fees.”

14

procedural due process claim, the underlying act which Plaintiff

15

claims damaged him is the same, i.e., his placement on paid

16

administrative leave.

17

that the deprivation of Plaintiff’s property interest in active

18

duty caused any identifiable harm separate and apart from the harm

19

caused by the County’s unlawful conduct under the FMLA/FEHA in

20

placing Plaintiff on paid administrative leave for retaliatory

21

reasons. Accordingly, to avoid double recovery, a damages award on

22

the procedural due process violation is inappropriate. Kassman v.

23

Am. Univ., 546 F.2d 1029, 1034 (D.C. Cir. 1967) (“Where there has

24

been

25

irrespective of the multiplicity of parties whom or theories which

26

the plaintiff pursues.”).

27

In

only

61.

both

one

his

FMLA/FEHA

retaliation

The jury also

claim

and

in

his

At this juncture, it cannot be concluded

injury,

the

law

confers

only

one

recovery,

Due regard for the jury verdict requires a denial of

28 34

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1

damages on Plaintiff’s due process claim.

2

Plaintiff’s placement on paid administrative leave was unlawful and

3

retaliatory under the FMLA/FEHA and that Plaintiff was harmed

4

thereby. The jury awarded damages on Plaintiff’s claims, including

5

his FMLA/FEHA retaliation claim, and this award included lost

6

professional fees.

7

was damaged by his placement on administrative leave and fully

8

compensated him to the extent he was damaged thereby.

9

must respect this jury determination as to the extent of the

The jury has already determined that Plaintiff

damages

11

different damages as a result of Plaintiff’s placement on paid

12

administrative leave.

13

F.3d 726, 732 (10th Cir. 2000) (“The true test is whether the jury

14

verdict by necessary implication reflects the resolution of a

15

common factual issue.

16

that determination, and it is immaterial whether, as here, the

17

district

18

different from those of the legal claims which the jury had decided

19

(as may often be the case).”); Wade v. Orange County Sheriff’s

20

Office, 844 F.2d 951, 954 (2nd Cir. 1988) (“[W]hen the jury has

21

decided a factual issue, its determination has the effect of

22

precluding the court from deciding the same fact issue in a

23

different way.”). 62.

cannot

court

is

depart

from

it

by

awarding

The court

10

24

and

The jury found that

additional

or

See Ag Servs. of Am., Inc. v. Nielsen, 231

If so, the district court may not ignore

considering

equitable

claims

with

elements

Courts “should take all necessary steps to ensure that

25

the

plaintiff

is

not

permitted

26

essentially two different claims for the same injury.” California

27

v. Chevron Corp, 872 F.2d 1410, 1414 (9th Cir. 1989); see also EEOC

28 35

double

recovery

for

what

are

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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).

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. 63.

7

To prevent

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”).

13

on his procedural due process claim. 64.

14 15

Plaintiff is entitled to an award of nominal damages

Pursuant

to

Rule

58,

a

judgment

will

be

entered

consistent with these Findings of Fact and Conclusions of Law. 65.

16

Plaintiff shall lodge with the court a form of judgment

17

consistent with these Findings of Fact and Conclusions of Law

18

within

19

findings.

five

(5)

days

following

electronic

service

20 21

IT IS SO ORDERED.

22

Dated: 9i274f

August 5, 2009

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

23 24 25 26 27 28 36

of

these