MEMORANDUM AND ORDER
This action proceeds on Plaintiff Richard Fitzgerald’s (“Plaintiff’) First Amended Complaint (“FAC”), which seeks to recover damages against Defendants Sheriff John D’Agostini (“D’Agostini”), Under-sheriff Rich Williams (‘Williams”), and El Dorado County (“County”) (collectively “Defendants”) on various legal theories.
BACKGROUND
In 1991, Plaintiff was hired by the El Dorado County Sheriffs Department (“Sheriffs Department”) to work in the patrol unit. Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Facts (“SUF”), ECF No. 31-2, at ¶ 1. Subsequently, in 1994, Plaintiff became a detective. Id. at ¶ 2. He held that position until 2012, for a total of 18 years. Id. In 2010, D’Agostini was elected Sheriff of El Dorado County, and, shortly thereafter, he appointed Williams as Undersheriff. Id. at ¶¶ 4-5. This dispute arises out of oral and written statements made by Plaintiff in opposition to two changes Williams and/or D’Agostini proposed or instituted with respect to the investigations unit between 2011 and 2012.
First, D’Agostini proposed recruiting retired police officers to volunteer in the property crime investigation division. SUF ¶ 9. He made his proposal at a meeting attended by all of the detectives and several command staff personnel. Id. at ¶ 7. D’Agostini explained that he had met the retired officers during his campaign and thought that they could help with the heavy workload of the property crime detectives. Id. at ¶ 9. He then asked for the officers’ input regarding his plan. Id. at ¶ 10. Plaintiff told D’Agostini that he did not think the plan would work because of issues affecting the chain of custody for evidence, as well as the need to safeguard against leaked information. Id. Several other officers related their concerns with D’Agostini’s proposal as well. Id. at ¶ 11. From Plaintiffs account, D’Agostini then became upset and left the meeting. DF ¶ 97; Strasser Depo. PL’s Ex. I, ECF No. 40-2, at 72:14-74:3.
Second, D’Agostini and Williams proposed and later implemented a policy to rotate detectives out of the investigations unit and into other roles within the department. SUF ¶ 18. Williams assigned Lieutenant Dale Spear (“Spear”) to draft the
According to Plaintiff, he, Strasser, and the El Dorado County Deputy Sheriff’s Association (“DSA”) filed a grievance shortly after the meeting to oppose the rotation policy. Strasser Decl. PL’s Ex. H, ECF No. 40-2, at ¶ 5. Plaintiff presents further evidence that he attempted to obtain the signature of Sergeant Tom Hoag-land (“Hoagland”) on the grievance, but that Hoagland declined to endorse the grievance in front of a room filled with other detectives. Strasser Decl. PL’s Ex. H, ECF No. 40-2, at ¶¶5-6; Hoagland Depo. PL’s Ex. E, ECF No. 40-1, at 176:4-24. Plaintiff also presents evidence that he took the lead in drafting proposed amendments to the policy, that he presented the proposal to Hoagland, Spear, and Sergeant Dreher, and that he was told the document would be presented to D’Agosti-ni. Strasser Deck at ¶ 8; Strasser Depo. at 123:14-16; Proposed Changes and Justifications PL’s Ex. 18, ECF No. 38.
On or about November 30, 2011, D’Agos-tini and Williams withdrew the rotation policy after receiving a “cease and desist” letter from the attorney for the DSA. SUF ¶¶ 24-25; DSA Letter Ex. M, ECF No. 31-8, at 39-41. Despite withdrawing the rotation policy, D’Agostini and Williams continued to discuss reassigning detectives out of the investigations unit. SUF ¶ 26. They eventually determined that either Plaintiff or Strasser should be one of the detectives reassigned. Id. at ¶ 31. Defendants allege that D’Agostini and Williams made this decision because Plaintiff and Strasser had been in the detective position for the longest period of time. Id.
On March 29, 2012, Plaintiff was informed that he was being reassigned to the patrol unit as of April 21, 2012. SUF ¶ 35. Plaintiff was 56 years old at that time. Id. at ¶ 36. There were three other detectives reassigned to the patrol unit: two were 43 years old and one was 34 years old. Id.
On behalf of Plaintiff and the other reassigned detectives, the DSA initiated the employee grievance process outlined in the Memorandum of Understanding (“MOU”) between the DSA and the County. SUF ¶¶ 48-49. Initially, on April 16, 2012, the DSA filed a grievance with Hoagland (Plaintiffs immediate supervisor). Id. at ¶ 49. That grievance was denied in a letter from Williams on April 25, 2012. Id. at ¶ 50. Then, on or about May 2, 2012, the DSA filed an appeal with D’Agostini, which was also ultimately denied. Id. at ¶ 51. Additionally, on May 22, 2012, the DSA filed an appeal with the County’s human
After receiving notice of his reassignment, Defendants allege that Plaintiff went on medical leave and never returned to work. SUF ¶¶ 37, 44. On July 31, 2012, Plaintiff submitted written notice of his intent to retire from the Sheriffs Department as of September 8, 2012. Id. at ¶ 47.
In his operative FAC, Plaintiff alleges that D’Agostini and Williams violated his constitutional rights by reassigning him to the patrol unit and forcing him into retirement in retaliation for exercising his free speech rights. FAC at ¶ 4. Defendants bring the instant motions seeking summary judgment, or, in the alternative, partial summary judgment. ECF No. 31; ECF No. 32. Those motions are GRANTED in part and DENIED in part.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed.R.Civ.P. 56(a) (“A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.”); see also Allstate Ins. Co. v. Madan,
In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations ... or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc.,
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255,
ANALYSIS
Plaintiff alleges that Defendants discriminated against him on the basis of age and took retaliatory actions against him for opposing changes within the Sheriffs Department. Defendants seek summary judgment on each of the claims for relief alleged against them, arguing that the un disputed facts demonstrate that Defendants never engaged in the alleged discriminatory or retaliatory conduct. As explained below, summary judgment is DENIED with respect to the following claims: First Amendment retaliation; retaliation under California law; violation of Plaintiffs equal protection rights; and age discrimination under both state and federal law. Also, summary judgment is DENIED for Plaintiffs due process claim to the extent it relates to Plaintiffs alleged constructive discharge, and GRANTED to the extent it concerns his reassignment from detective to the patrol unit. Finally, summary judgment is DENIED for Plaintiffs § 1102.5 retaliation claim insofar as it relates to Plaintiffs alleged opposition to the rotation policy and GRANTED
A. First Claim for Relief: Violation of the First Amendment
Defendants first move for summary judgment as to Plaintiffs First Amendment retaliation claim. Under these circumstances, the Court evaluates five factors to determine whether a public employee’s speech rights have been violated:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken adverse employment action absent the protected speech.
Dahlia v. Rodriguez,
1. Whether Plaintiff spoke on a matter of public concern
First, whether speech addresses a matter of public concern is determined by reviewing the content, form and context of the statement. Connick v. Myers,
Defendants claim that Plaintiff did not speak out on a matter of public concern because his statements reflected his own self-interest in his job security rather than broader societal concerns. ECF No. 32-1 at 13. However, it is undisputed that Plaintiff vocally opposed the use of volunteers in the property division and cited worries about the chain of custody for evidence and controlling leaks of information. SUF ¶ 10. Based on these statements, Plaintiffs concerns appear focused on the integrity of the police force and the ability to solve crimes unimpeded by potential media scrutiny, which are issues relevant to the public’s evaluation of the government’s performance. Plaintiffs own job security was not at issue here because he was assigned to the homicide division and not the property division.
Similarly, with respect to the rotation policy, Plaintiff alleges in his deposition that when he spoke out against the policy, he expressed worries about potential age discrimination within the department and the competency of unmotivated and inexperienced rotational detectives. Fitzgerald Depo. PL’s Exh. C, ECF No. 40-1, at 228:5-230:17. “[T]he competency of the police force is surely a matter of great public concern.” McKinley v. City of Eloy,
2. Whether Plaintiff spoke as a private citizen or a public employee
Second, First Amendment protections for public employees only apply when the employee speaks as a private citizen as opposed to as a public employee. Eng,
Defendants argue that Plaintiff did not act as a private citizen because his supervisors elicited his statements regarding the volunteers and the rotation policy and because his complaints remained within the internal chain of command. ECF 32-1 at 13; ECF 31-1 at 17. However, the fact that Plaintiffs statements were confined to the chain of command is not dispositive. Dahlia,
3. Whether Plaintiffs speech was a substantial or motivating factor in an adverse employment action
Finally, for Plaintiff to succeed, his protected speech must have been a substantial or motivating factor in an adverse .employment action. Defendants argue both that Plaintiff cannot show either an adverse
a. Adverse Employment Action
Defendants first argue that Plaintiff was not subject to an adverse employment action. ECF 32-1 at 14; ECF 31-1 at 18. The Court disagrees. There are facts before the Court on which a reasonable jury could rely to find an adverse employment action based on: (1) Plaintiffs reassignment to patrol alone; or (2) Plaintiffs constructive discharge generally.
Actions are adverse when they are “reasonably likely to deter” the exercise of protected First Amendment rights. Coszalter v. City of Salem,
Moreover, a jury could also find Plaintiff suffered an adverse employment action through his constructive discharge. Constructive discharge occurs when, “looking at the totality of the circumstances, ‘a reasonable person in [the employee’s] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.’” Watson v. Nationwide Ins. Co.,
Here, there is no dispute that Plaintiff was reassigned from the investigations unit to the patrol unit and that this transfer reduced his pay by 5 percent. While the demotion and pay cut on their own would likely not be sufficient for a reasonable jury to find constructive discharge, King,
b. Substantial or Motivating Factor
Plaintiff must nonetheless still show a causal link between his protected speech and the adverse action. This circuit has set forth three ways to show causation: (1) “the proximity in time between the protected speech and the retaliatory employment decision”; (2) “evidence that his employer expressed opposition to his speech, either to him or others”; and (3) “evidence that his employer’s proffered explanations for the adverse action were false and pre-textual.” Coszalter,
As to the first factor, to be sufficient, the temporal proximity must be “very close.” Clark County School Dist. v. Breeden,
Plaintiff also points to evidence supporting the second factor, namely that Defendants’ explanation for the reassignment was pre-textual. A plaintiff can demonstrate pretext by showing “weaknesses, implausibilities, inconsistencies, incoheren-cies, or contradictions in the employer’s ... reasons for its action,” which “a reasonable fact finder could rationally find ... unworthy of credence.” Hersant v. Dep’t of Social Serv.,
However, Plaintiff provides evidence casting doubt on Defendants’ explanations. First, Plaintiff alleges that he was one of the most vocal opponents of the rotation policy. In his deposition, Plaintiff testified that he expressed his age discrimination concerns to Spears in a one-on-one meeting in his office. Plaintiff also presents evidence that he prepared amendments to the rotation policy and presented those amendments to Hoagland and Spear, and that, in his role as “patriarch” of the unit, he took the lead on opposing the rotation policy and filing the grievance against the policy. Based on this evidence, a reasonable fact finder could find that Defendants’ motivation for reassigning Plaintiff to the patrol unit was in retaliation for his protected speech regarding the rotation policy. As such, there is a genuine issue of material fact as to causation. Defendants’ Motions for Summary Judgment as to the First Amendment retaliation claim are DENIED.
4. Qualified Immunity
Defendants D’Agostini and Williams also seek summary judgment with respect to Plaintiffs First Amendment claim on the basis that they are entitled to qualified immunity. ECF 31-1 at 21. Defendants’ instant argument is rejected.
Public officials sued in their individual capacity, as here, are immune from suit if “their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
As set forth above, Plaintiff has presented sufficient evidence to demonstrate that, viewed in the light most favorable to Plaintiff, Defendants’ alleged wrongdoing violated his First Amendment rights. Accordingly, the question for the Court is whether Plaintiffs constitutional rights were clearly established such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,
“[A] district court should decide the issue of qualified immunity as a matter of law when ‘the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts.’ ” Conner v. Heiman,
Here, D’Agostini and Williams argue that it would not have been clear to a reasonable officer that Plaintiffs comments were regarding a matter of public concern. ECF No. 31-1 at 22. Yet, their position largely ignores a fairly significant
Additionally, D’Agostini and Williams argue that it would not have been clear to a reasonable officer that Plaintiff was acting as a private citizen when he made comments at staff meetings about volunteers in May 2011 and concerning the rotation policy in November 2011. Again, however, there is a dispute as to the content and extent of Plaintiff’s opposition to the volunteer proposal and the rotation policy, which precludes a finding that no reasonable officer would have known Plaintiff was acting as a private citizen. See McSherry,
B. Second Claim for Relief: Due Process Violation
Defendants next contend that a reasonable jury could not find a due process violation. They are partially correct.
The Fourteenth Amendment’s guarantee of procedural due process applies when a constitutionally protected liberty or property interest is at stake. Board of Regents v. Roth,
Plaintiff argues that he had a property interest in his position as a detective and that he was constructively discharged. ECF 43 at 19. More specifically, Plaintiff contends that he had a property interest in maintaining his detective assignment because he was orally told by all of the former sheriffs, including Hal Barker, Jeff Neves and Fred Kollar, that his assignment to investigations was a permanent lifetime position. DF ¶ 129. Plaintiff further claims that Hoagland told him that D’Agostini appreciated the value of experience and that Plaintiff would remain a detective. Id.
Defendants concede that Plaintiff had a property interest in his job with the Sheriff’s Department. ECF No. 32-1 at 14. However, they argue that Plaintiff had no
Although one’s actual job as a tenured civil servant is property, see, e.g., Cleveland Bd. of Educ. v. Loudermill,
Plaintiff does not identify any California law that creates a property interest in a particular police assignment, and instead points only to the oral assurances or promises he received from former sheriffs and Hoagland that he had a permanent detective position. These oral statements do not suffice. Absent a state law on the matter, words or conduct are insufficient to form a property interest. See Nunez,
Plaintiff also contends, however, that he was constructively discharged. Permanent state employees hold a property interest in their job which is protected by due process. Freitag,
That said, Defendants claim that even if Plaintiff were constructively discharged, his claim still fails because he received all the process he was due. The Court disagrees.
Defendants offer evidence that under the rules of the El Dorado County Personnel Management, there is an appeal process for employees who feel they have been coerced into resignation. SUF ¶ 56. These rules, however, do not set forth any process to be afforded prior to a constructive discharge. Due process generally requires “'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ ” Cleveland Bd. of Educ. v. Loudermill,
C. Second Claim for Relief: Equal Protection Violation
Defendants next seek judgment on Plaintiffs equal protection claim. To establish a § 1983 equal protection violation, a plaintiff must show “that the defendants, acting under color of state law, discriminated against [him] as [a] member! ] of an identifiable class and that the discrimination was intentional.” Flores v. Morgan Hill Unified Sch. Dist.,
Age is not a suspect classification under the Equal Protection Clause. Kimel v. Florida Bd. of Regents,
In the present case, Plaintiff alleges that he was reassigned to the patrol unit, in part, based on his age, and he argues that there was no rational basis for this decision. ECF No. 43 at 20. Defendants argue that the rotation policy was rationally related to a government interest because there were varying views on the rotation policy within the department, a survey showed some employees wanted more opportunities as detectives, and a Grand Jury report indicated there were limited investigation opportunities for female officers. ECF 32-1 at 18. Yet, Plaintiff presents evidence that the rotation policy served no legitimate purpose because there was already consistent movement in and out of the investigations unit. DF at ¶ 117. Based on this evidence, there is a genuine issue of material fact as to the rationality of the rotation policy. Defendants’ Motions for Summary Judgment on Plaintiffs claim for violation of the equal protection clause are therefore DENIED.
D. Third Claim for Relief: Age Discrimination
Plaintiff asserts a claim of age discrimination under the Federal Employment Housing Act and the federal Age Discrimination in Employment Act. FAC at ¶ 47-54. To succeed under both laws, Plaintiff must demonstrate that he was: (1) a member of the protected class (at least age 40); (2) performing his job satisfactorily; (3) subject to an adverse employment action; and (4) replaced by a substantially younger employee. Coleman v. Quaker Oats Co.,
In Plaintiffs case, it is undisputed that he was over 40 years old, and Defendants do not make an argument that he was not qualified for his position as detec
E. Fourth Claim for Relief: California Labor Code section 1102.5 Retaliation
Plaintiffs Fourth Claim for Relief arises under section 1102.5 of the California Labor Code. Section 1102.5 is a “whis-tleblower” statute that establishes liability for employers who retaliate against their employees for disclosing information to government or law enforcement agencies. Specifically, section 1102.5 provides, in relevant part:
(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
Accordingly, to establish a prima facie case of retaliation under section 1102.5(b), a plaintiff must show that: (1) he engaged in protected activity; (2) his employer thereafter subjected him to an adverse employment action; and (3) a causal link between the two. Mokler v. County of Orange,
An employee engages in protected activity when he “discloses to a governmental agency reasonably based suspicions of illegal activity.” Id. at 138,
Here, Plaintiff does not argue that using retired police officers as volunteers is an illegal activity. Instead, Plaintiff contends that section 1102.5 prevents retaliation against employees who report working conditions they believe to be unsafe, even absent a reasonable belief of illegal activity. It follows, Plaintiff reasons, that he was opposing actions that would have compromised officer and victim safety through confidential leaks. However, the case law Plaintiff cites in support of this proposition
The Court reaches a different conclusion in regard to the rotation policy. Although Plaintiff fails to raise the point in his Opposition, the Court recognizes that opposing an allegedly discriminatory rotation policy would qualify as raising a suspicion of illegal activity. See Cal. Gov’t Code § 12941 (prohibiting employment discrimination against individuals over forty). Plaintiff argues that he opposed the rotation policy because he feared it would lead to age discrimination. Taken as true, his opposition to the policy constitutes protected activity. See id. He further contends that, because of this protected activity, he was reassigned from detective to the patrol unit and, thereafter, was constructively discharged. In support of his theory, Plaintiff puts forward evidence that he vocalized his opposition to Spear, assisted in filing a grievance against the policy, and provided a written alternative rotation proposal to Hoagland. According to Plaintiff, he was one of the most vociferous opponents of the rotation policy. Based on this evidence, there is sufficient basis for a reasonable jury to infer that D’Agostini and Williams were aware that Plaintiff had engaged in protected activity and that his reassignment and alleged constructive discharge were connected to his protected activity. Thus, Defendant County’s Motion for Summary Judgment on section 1102.5 retaliation connected to Plaintiffs opposition of the rotation policy is DENIED.
F. Fifth Claim for Relief: FEHA Retaliation
Finally, under the California Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Cal. Gov’t Code § 12940(h). To establish a pri-ma facie case of retaliation under this section, Plaintiff must show: (1) he engaged in protected activity; (2) he was thereafter subject to adverse employment action; and (3) there was a causal link between the two. Yanowitz v. L’Oreal USA, Inc.,
As explained in more detail above, Plaintiff presents sufficient evidence for a reasonable jury to find that he opposed the rotation policy because he feared potential age discrimination. Because age discrimination is prohibited under FEHA, Plaintiffs allegations, taken as true, provide sufficient evidence to show he was engaged in a protected activity. See Cal. Gov’t Code § 12941. Plaintiff similarly provides enough evidence to raise a genuine issue of material fact as to whether there was an adverse employment action and whether there was a causal connection between the protected activity and the alleged adverse action. Accordingly, Defendant County’s Motion for Summary judgment as to Plaintiffs FEHA retaliation claim is DENIED.
CONCLUSION
As set forth above, Defendants’ Motion to Strike (ECF No. 33) is DENIED, and Defendants’ Motions for Summary Judgment (ECF No. 31, ECF. No. 32) are
1. Summary judgment is DENIED as to Plaintiffs First Claim for Relief for violation of his First Amendment rights and as to Defendants’ qualified immunity defense;
2. Summary judgment is DENIED as to Plaintiffs Second Claim for Relief alleging violations of his due process rights to the extent it relates to Plaintiffs alleged constructive discharge and GRANTED to the extent it concerns his • reassignment from detective to the patrol unit;
3. Summary judgment is DENIED as to Plaintiffs Second Claim for Relief alleging violations of the Equal. Protection Clause;
4. Summary judgment is DENIED as to Plaintiffs Third Claim for Relief alleging age discrimination under both federal and state law;
5. Summary judgment is DENIED as to Plaintiffs Fourth Claim for Relief arising under California Labor Code section 1102.5 to the extent it relates to Plaintiffs alleged opposition to the rotation policy and GRANTED with regard to Plaintiffs opposition of the retired police officer volunteers; and
6. Summary judgment is DENIED as to Plaintiffs Fifth Claim for Relief arising under California Government Code section 12940.
IT IS SO ORDERED.
Notes
. In discovery, Plaintiff conceded that the Third, Fourth, and Fifth Claims for Relief are not asserted against individual Defendants D’Agostini and Williams. Pl.’s Resp. to Reqs. for Admiss. Ex. B, ECF No. 31-4, at ¶¶ 6-13.
. Because the Court did not rely on Plaintiff’s Deposition Errata Sheet in reaching its decision, Defendants’ Motion to Strike Errata Sheet is DENIED as moot. Similarly, the Court did not rely on Plaintiff’s Declaration or the other evidence Defendants challenge in their additional objections (ECF No. 54), which are also overruled as moot.
. Because oral argument would not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 230(g).
. The Court notes that the bulk of Plaintiff's recitation of the facts in his opposition briefs was single-spaced in violation of Eastern District of California Local Rule 130(c). The Court declines to strike any or all of Plaintiff's current papers at this time, but admonishes the parties that failure to comply with the Local Rules in the future may result in sanctions.
. Defendants also argue that other conduct not discussed here did not by itself constitute adverse employment actions. Since Plaintiff does not argue to -the contrary, the Court assumes Plaintiff agrees and does not address those arguments. In addition, D’Agostini and William assert that they were not involved in either: (1) a decision to repossess Plaintiff's company car and keys; or (2) a decision to make late night calls to Plaintiff from dispatch. However, Plaintiff has presented sufficient evidence that the majority of decisions within the department are made from the sheriff to the undersheriff and then to the officers below them. Hoagland Depo. PL’s Ex. E, ECF No. 38, at 105:1-6. In light of this evidence, there is a triable issue of fact as to whether D’Agostini and Williams were involved in these decisions.