Dowell v. Contra Costa County
928 F. Supp. 2d 1137
N.D. Cal.2013Background
- Dowell, manager of the Victim Witness Program for Contra Costa County District Attorney’s Office, sues the County and two DA employees alleging §1983 First Amendment retaliation and state-law claims including whistleblower under Cal. Labor Code §1102.5 and IIED.
- Defendants Peterson (District Attorney) and Mulligan (Chief Inspector) allegedly directed actions and inquiries in 2011–2012 that Dowell argues retaliated against her for reporting potential illegality and concerns about grant management and misconduct.
- Key disputed incidents include proposing to reallocate grant funds/timesheet entries, Dowell’s refusals after Cal EMA advised improperness, and Mulligan’s alleged investigations, harassment, and blocked staffing actions.
- Dowell reported alleged misappropriations and improper conduct to Cal EMA and the California Victim Compensation Board, which investigated and found issues with grant management and protocol violations by Mulligan.
- Dowell alleges a pattern of retaliation, culminating in job stress, medical leave, and various adverse administrative actions affecting her role and authority.
- Defendants moved to dismiss arguing CTCA compliance, failure to state claims under Rule 12(b)(6), and failure to exhaust whistleblower remedies; Dowell opposed only certain First Amendment and §1102.5 aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation viability | Dowell alleges protected speech about illegal acts and whistleblowing; actions against her were retaliatory. | Speech relates to internal personnel disputes or does not show a retaliatory adverse action meeting standards. | Survival on public-concern and adverse-action elements; motive/causation require amendment. |
| Scope of speech: public concern vs. private duty | Some statements addressed public concerns about government functioning. | Some speech framed as internal personnel disputes not of public concern. | Public-concern finding limited to certain instances; private-duty speech not protected may require amendment. |
| California Tort Claims Act compliance | CTCA compliance pled but not decided; exhaustion not necessarily required in federal court. | CTCA applies; plaintiff must plead written claim and board action or rejection. | CTCA applies; amendment required to allege board action/rejection. |
| California Labor Code § 1102.5 whistleblower claim | Dowell engaged in protected disclosure about statutory violations by defendants. | Plaintiff failed to plead protected activity or a causal link; or exhausted remedies. | Exhaustion not required, but whistleblower claim dismissed with leave to amend for lack of protected disclosures and causation. |
| Intentional infliction of emotional distress | Defendants’ conduct was outrageous and caused severe distress. | Actions do not meet the high threshold for IIED. | Dismissed with prejudice. |
Key Cases Cited
- Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (five-step test for First Amendment retaliation by public employers)
- Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917 (9th Cir. 2004) (public-concern speech protection and public accountability in government)
- Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) (deterrence standard for First Amendment retaliation; cumulative conduct considered)
- Beagle v. Rite Aid Corp., 2009 WL 3112098 (N.D. Cal. 2009) (materiality standard for §1102.5 adverse action)
- Yanowitz v. L’Oreal USA Inc., 36 Cal.4th 1028 (Cal. 2005) (Cal. Supreme Court on materiality test for IIED/employee retaliation)