Fitzgerald v. El Dorado County
94 F. Supp. 3d 1155
E.D. Cal.2015Background
- Fitzgerald was a long‑time El Dorado County detective (hired 1991; detective 1994–2012). In 2010 D’Agostini became Sheriff and Williams Undersheriff.
- Fitzgerald vocally opposed two changes: (1) use of retired police volunteers in property crimes (concerns about chain of custody/leaks), and (2) a rotation policy to move detectives out of investigations (expressed public‑safety and age‑discrimination concerns; helped draft a grievance and proposed amendments).
- The formal rotation policy was withdrawn after a union cease‑and‑desist, but defendants later reassigned Fitzgerald (age 56) to patrol effective April 21, 2012; this reassignment reduced pay ~5%.
- The union (DSA) pursued grievance/appeals and a human‑resources director ordered reinstatement, which the Sheriff refused; subsequent writ proceedings were dismissed.
- Fitzgerald went on medical leave after notice of reassignment and retired September 2012; he sued the Sheriff, Undersheriff, and County asserting First Amendment retaliation, due process, equal protection, age discrimination (federal/state), Cal. Lab. Code § 1102.5 and FEHA retaliation.
- On summary judgment the court denied defendants’ motions in part and granted in part: key claims survived (First Amendment retaliation, due‑process as to constructive discharge only, equal protection, age discrimination, §1102.5 re rotation policy, and FEHA retaliation), while due‑process as to mere reassignment and §1102.5 re volunteers were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation (speech on volunteers & rotation policy) | Fitzgerald spoke on matters of public concern (public‑safety, integrity, age discrimination), acted as a private citizen (participated in grievance/union activity), and speech was a substantial/motivating factor in reassignment/constructive discharge. | Defendants say speech was private self‑interest or within official duties; no adverse action/causation; qualified immunity applies. | Denied summary judgment: triable issues on public concern, citizen status, adverse action/causation; qualified immunity rejected at this stage. |
| Due process — reassignment v. constructive discharge | Fitzgerald claims property interest in detective post and due‑process violation via both reassignment and constructive discharge. | Defendants: no property interest in a particular assignment; process provided; plaintiff voluntarily retired. | Grant for reassignment claim (no protected property interest in specific assignment). Deny for constructive‑discharge theory (triable issues and due process claim survives). |
| Equal protection (age) | Reassignment was intentional discrimination based on age and not rationally related to legitimate interest. | County defends rotation as rationally related to legitimate management needs and surveys/grand jury concerns. | Denied summary judgment: genuine issue whether rotation/reassignment was rational or pretextual. |
| Age discrimination (federal/state) | Fitzgerald (over 40) suffered an adverse action (reassignment/pay cut/constructive discharge) and was replaced by younger employees. | Defendants say mere transfer is not materially adverse. | Denied summary judgment: material fact disputes on adverse action/constructive discharge preclude judgment for County. |
| Cal. Lab. Code § 1102.5 (whistleblower) | Opposing rotation policy as potentially age‑discriminatory qualifies as protected disclosure; retaliation followed. | County contends plaintiff did not disclose reasonable suspicion of illegality. | Partial grant/denial: §1102.5 claim dismissed as to volunteer opposition (not alleging illegality), but survives as to opposition to rotation policy (FEHA/age discrimination basis). |
| FEHA retaliation (Gov. Code § 12940(h)) | Opposing practices forbidden under FEHA (age discrimination); reprisal followed. | Defendants deny causation/adverse action. | Denied summary judgment: triable issues on protected activity, adverse action, and causation. |
Key Cases Cited
- Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir.) (framework for public‑employee First Amendment analysis)
- Eng v. Cooley, 552 F.3d 1062 (9th Cir.) (distinguishing citizen speech from job‑duties speech)
- Connick v. Myers, 461 U.S. 138 (U.S.) (public‑concern test: content, form, context)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S.) (speech pursuant to official duties not First Amendment protected)
- McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.) (police competency is public concern)
- Coszalter v. City of Salem, 320 F.3d 968 (9th Cir.) (adverse action standard: likely to deter protected speech; causation timing analysis)
- Harlow v. Fitzgerald, 457 U.S. 800 (U.S.) (qualified immunity standard)
- Pearson v. Callahan, 555 U.S. 223 (U.S.) (qualified immunity two‑step)
- Board of Regents v. Roth, 408 U.S. 564 (U.S.) (property interest requires state law or rules)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (U.S.) (due process required for property interest in public employment)