ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant City of Orange Cove (“Defendant” or the “City”) filed the instant motion for summary judgment, or summary adjudication in the alternative, on November 13, 2009. The matter was heard on January 15, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. H. Ty Kharazi appeared on behalf of Plaintiff Odilon Ortiz (“Plaintiff’). James McBrearty appeared on behalf of Defendant.
*1076 BACKGROUND
Plaintiff filed this wrongful termination action against Defendants Victor Lopez and the City of Orange Cove on January 25, 2008, in the Fresno County Superior Court. Defendants removed the action to this Court on March 12, 2008, on the basis of this Court’s federal question jurisdiction.
On March 6, 2009, the Court granted the parties’ stipulation to dismiss Victor Lopez with prejudice.
Defendant filed the instant motion for summary judgment, or summary adjudication in the alternative, on November 13, 2009. Plaintiff opposed the motion on December 31, 2009, and Defendant filed a reply on January 11, 2010. 1
FACTUAL ALLEGATIONS IN THE COMPLAINT
In his verified complaint, Plaintiff alleges that he was hired by Defendants as an interim finance director in August 2005. On November 15, 2005, the position became permanent. Throughout his employment, he received no criticism and his work was often praised.
After finding evidence of embezzlement by a city employee, Plaintiff began an internal audit of the City. The audit resulted in the discovery of many discrepancies, including discrepancies related to Defendant Lopez, who was the Mayor during all relevant times, and his sons, as well as issues with Defendant Lopez’s compensation. Plaintiff also discovered issues related to bidding for supplies and services, noncompliance of independent contractors and the City’s failure to bill certain individuals for utility services. When Plaintiff informed his supervisor, William Little, of the issues, he was generally told not to take any action.
In February 2007, Defendant Lopez spoke to Plaintiff and objected to Plaintiffs request for a revenue/expense projection for a Cinco de Mayo celebration. Defendant Lopez questioned Plaintiffs contacts with Counsel Member Glenda Hill and “reminded” Plaintiff that he only needed two votes from the City Council to dismiss Plaintiff. Defendant Lopez denied that his statement was a threat and confirmed that Plaintiff was doing a good job.
While continuing to perform his job, Plaintiff discovered evidence of key employees incorrectly charging the City for personal expenses and failing to refund money spent. Some of the identified employees were relatives of Defendant Lopez, including his two sons. Plaintiff was told not to take any corrective action and alleges that Defendants prevented him from investigating individuals who were stealing money from the City.
Plaintiff began to set up meetings with various vendors to investigate the improper return of merchandise. On June 27, 2007, prior to conducting his meetings, Plaintiff was terminated. He alleges that he was terminated in retaliation for reporting illegal activities.
On November 26, 2007, he filed a tort claim with the City pursuant to California *1077 Government Code section 950, et seq. The claim was rejected on December 12, 2007.
Based on these facts, Plaintiff alleges causes of action for (1) 'wrongful termination in violation of public policy; (2) wrongful termination for whistleblowing, in violation of California Labor Code section 1102.5; (3) misrepresentation; (4) violation of 42 U.S.C. section 1983; (5) defamation; (6) breach of the implied covenant of good faith and fair dealing; (7) negligenсe and (8) intentional infliction of emotional distress.
As Defendant Lopez has been dismissed, the parties agree that the causes of action for misrepresentation, defamation and intentional infliction of emotional distress are moot.
UNDISPUTED MATERIAL FACTS
Plaintiff was employed by the City, a public entity, as Finance Director beginning in August 2005. Verified Complaint, ¶¶ 2, 4 and 11. When he was hired, he was hired as “interim” Finance Director. Declaration of Odilon Ortiz (“Ortiz Dec”), ¶4. Months later, he was promoted to “permanent” Finance Director. Ortiz Dec., ¶ 4. He did not have an employment contract with the City. Deposition of Odilon Ortiz (“Ortiz Dep.”), p. 56 at 3-5.
City Ordinance 2.08.090(B) providеs that the City Treasurer “shall hold office at and during the pleasure of the City Council.” Declaration of Alan Bengyel (“Bengyel Dec.”), ¶ 4. City Ordinance 2.40.040(C) provides that the office of City Treasurer is exempt from the civil service system and serves at the Council’s pleasure. Bengyel Dec., ¶ 6.
Plaintiff was terminated from his position on June 27, 2007. Verified Complaint, ¶ 29. Prior to the Council vote on his termination, he was afforded a public hearing. Ortiz Dep., p. 61. Plaintiff spoke at the hearing on his own behalf, as did some members of the public. Ortiz Dep., p. 61. The City voted 3-1 to terminate Plaintiff. Ortiz Dep., p. 62. Plaintiff was told he was terminated as a result of his perceived bad attitude and negative leadership. Ortiz Dep., p. 382.
Plaintiffs complaint does not allege that he made any complaint under California Labor Code section 1102.5 with the California Labor Commissioner. Verified Complaint, ¶ 33.
LEGAL STANDARD
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477
U.S. 317,
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its plead
*1078
ings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e);
Matsushita,
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
T.W. Elec. Serv.,
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.
Rule 56(c).
The evidence of the opposing party is to be believed,
Anderson,
Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ”
Matsushita,
DISCUSSION
A. First Cause of Action — Wrongful Termination in Violation of Public Policy
In Plaintiffs first cause of action, he alleges that he was terminated “for trying to protect the residents of the City of Orange Cove by exposing and attempting to have the City correct illegal acts.” Verified Complaint, ¶ 38. He contends that this was a violation of the public policy of the State of California, as codified in California Labor Code section 1102.5, 2 He also contends that at all times relevant, “42 U.S.C. § 1981 (guaranteeing equal rights under the law) and the Fourteenth Amendment (guaranteeing equal protection of the laws) were in full force and effect and binding on defendants.” Verified Complaint, ¶ 37.
An employer’s broad authority to terminate at-will employees can be lim
*1079
ited by statute or considerations of public policy.
Tameny v. Atlantic Richfield Co.,
Defendant argues that Plaintiff cannot maintain a
Tameny
claim against a public entity.
Miklosy v. Regents of the Univ. of Cal.,
The Court finds
Miklosy
controlling. Plaintiff attempts to avoid this result by characterizing his claim as not one under common law, but one brought under
42 U.S.C. § 1981
in conjunction with
Labor Code section 1102.5.
He therefore argues that it can be asserted against a public entity because it is a statutory claim. That Plaintiff cites these sections in his cause of action, however, does not change the nature of the claim as a common law tort. Instead, relating the common law claim to a statute is a necessity of the tort itself.
Gantt,
Plaintiffs first cause of action for wrongful termination in violation of public policy against Defendant, a public entity, is barred by Miklosy. Summary judgment is therefore GRANTED.
B. Second Cause of Action — Violation of California Labor Code Section 1102.5
Plaintiffs second cause of action is brought under Labor Code section 1102.5(b), which provides:
(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 noncomplianee with a state or federal rule or regulation.
Prior to bringing an action under section 1102.5, a plaintiff is required to exhaust all administrative remedies.
Campbell v. Regents of the Univ. of Cal.,
Pursuant to Creighton, Defendant contends that Plaintiffs allegation that he filed a tort claim with the City is not sufficient to satisfy the exhaustion requirement under section 1102.5.
In opposition, Plaintiff argues that his claim under section 1102.5(b) is based on the underlying alleged termination in violation of public policy. As such, Plaintiff contends that it is not subject to exhaustion requirements. Contrary to his characterization, this is a statutory claim for retaliatory discharge. Although the statute “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation,” it remains a statutory, not common law, claim.
Colores v. Board of Trustees,
Plaintiff next argues that Labor Code section 98.7, which sets out the procedure for filing a complaint with the Labor Commissioner, does not apply to his action. Specifically, he argues that exhaustion under section 98.7 is only mandatory in discrimination claims, not whistleblowing claims. Both the statutory language and case law, however, prohibit such a reading.
Section 98.7(a) specifically states, “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months аfter the occurrence of the violation.” Plaintiff suggests that the Labor Commissioner is ill-equipped to investigate issues of financial impropriety, but the allegations of financial impropriety are secondary to the core issue of retaliatory discharge, an issue that falls squarely within the Labor Commissioner’s jurisdiction and expertise. See Cal. Labor Code § 98.6(a) (claims pursuant to section 1102.5 are brought under the jurisdiction of the Labor Commissioner).
Case law also renders Plaintiffs interpretation unpersuasive. Courts in this District have repeatedly required exhaustion under section 98.7 in section 1102.5 retaliatory discharge actions. For example,
Creighton
involved a Public Works Director who alleged retaliatory discharge under section 1102.5 based on his belief that he was terminated for raising issues related to pollution of the city’s water supply. Defendant moved to dismiss the section 1102.5 claim based on failure to sufficiently allege exhaustion under section 98.7. The Court concluded that the plaintiff was required to exhaust administrative
*1081
remedies pursuant to section 98.7 prior to bringing an action under section 1102.5. Plaintiffs allegation that he exhausted “all applicable administrative remedies” was a “conclusory allegation” insufficient to satisfy the exhaustion requirement.
Creighton,
Creighton is not an anomaly. In
Neveu v. City of Fresno,
the Court held thаt a police officer who alleged retaliatory discharge under section 1102.5 was required to bring a complaint before the Labor Commissioner prior to bringing suit. Although the Court noted that neither section 98.7 nor 98.6 provided the Labor Commissioner with exclusive jurisdiction, it relied on
Campbell, supra,
in holding that a litigant seeking damages under section 1102.5 is required to exhaust administrative remedies before the Labor Commissioner prior to filing a judicial action.
Neveu v. City of Fresno,
Similarly,
Bowman v. Yolo County
involved plaintiffs who filed suit under section 1102.5, contending that they were terminated after disclosing purported illegal activity at the Yolo County Housing Authority. In opposing a motion to dismiss, plaintiffs argued thаt they were not required to exhaust under section 1102.5, or alternatively, that their tort claim satisfied exhaustion. The Court granted the motion to dismiss, finding that exhaustion under section 98.7 was required and that a tort claim was a separate, additional prerequisite.
Bowman v. Yolo County,
Insofar as Plaintiff contends that his tort claim was sufficient because he merely has to exhaust in
some
manner, his argument is without merit.
Creighton
and
Bowman
specifically found that a tort claim was insufficient to satisfy the exhaustion requirement under section 98.7.
Creighton,
at 1221;
Bowman,
at *2. Plaintiffs citation to
Paterson v. California Dept. of General Serv.
does not change this result. There, the Court determined that the plaintiffs filing with the DFEH and EEOC sufficed to satisfy exhaustion under 1102.5. Although the Court disagreed with
Neveu’s
interpretation of
Campbell
as requiring that remedies before the Labor Commissioner specifically be exhausted, it nonetheless emphasized that the plaintiff had resorted to some form of administrative remedies by filing with the DFEH and EEOC.
Paterson v. California Dept. of General Serv.,
Plaintiffs second cause of action under section 1102.5 is barred for failure to exhaust administrative remedies. Summary adjudication is therefore GRANTED.
C. Fourth Cause of Action-42 U.S.C. § 1983
In Plaintiffs fourth cause of action, he alleges that:
60. Defendant Victor Lopez, acting as Mayor of Orange Cove, cаused Plaintiff to be deprived of his right to due process and right to employment by wrongfully terminating Plaintiffs employment.
61. Defendant Victor Lopez, acting as Mayor of Orange Cove, made false and misleading statements about *1082 Plaintiff that were published to the public at large.
The City contends that it is entitled to judgment on the section 1983 claim because (1) Plaintiff had no entitlement to support a claim for procedural due process; and (2) Plaintiff has not sufficiently alleged facts to support municipal liability.
To establish a due process violation, a plaintiff must show that he has a protected property interest under the Due Process Clause and that he was deprivеd of the property without receiving the process that he was constitutionally due.
Levine v. City of Alameda,
In the instant case, it is undisputed that Plaintiff was terminated by a 3 to 1 vote of the City Council. It is also undisputed that he had no contract of employment with the City. Plaintiff was therefore an at will employee who served at the discretion of the City Council. Indeed, City Ordinance 2.08.090(B) provides that the City Treasurer “shall hold office at and during the pleasure of the City Council.” Bengyel Dec., ¶ 4. City Ordinance 2.40.040(C) provides that the office of City Treasurer is exempt from the civil service system and serves at the Council’s pleasure. Bengyel Dec., ¶ 6.
Plaintiff disputes whether the terms Financial Director and City Treasurer are used interchangeably and contends that he was the Financial Director. While it appears that Plaintiff is attempting to establish that he was a civil service employee and therefore may have had a protected property interest in continued employment, there is no evidence to suggest such a finding. Whether the titles are interchangeable or not, then, is a distinction without a difference.
The Court also notes that although Plaintiff was an at will employee who was terminated at the discretion of the City Council, he was afforded a public hearing and an opportunity to be heard nonetheless. Plaintiff was represented by counsel at the hearing and spoke on his own behalf. He was also permitted to have witnesses speak in his favor.
To the extent Plaintiff attempts to avoid summary adjudication on the section 1983 claim by suggesting it is a freedom of speech issue, he cannot do so. Plaintiffs First Amendment argument fails for a number of reasons, the most obvious of which is a basic procedural tenet. The issues on summary judgment are framed by the complaint. Indeed, the issues in the complaint guide the parties during discovery and put the defendant on notice of what evidence is necessary to defend against the allegations. For these reasons, a plaintiff cannot oppose summary judgment based on a new theory of liability because it would essentially blind side the defendant with a new legal issue after the bulk of discovery has likely been completed. See e.g.
Coleman v. Quaker Oats Co.,
Plaintiffs complaint does not assert a First Amendment freedom of speech theory. There is no indication that Plaintiff raised a First Amendment issue during discovery or communicated the theory to the City in any way. Accordingly, Plaintiffs’ First Amendment issue is not properly before the Court.
See Klein v. Boeing Co.,
Even if this Court could consider Plaintiffs First Amendment argument, it is baseless. It is well settled that the state may not abuse its position as employer to stifle “the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.”
Eng v. Cooley,
“Statements are made in the speaker’s capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform.” Eng, at 1071 (internal citations omitted).
Here, Plaintiff was the Finance Director for the City and was responsible for the day-to-day financial operations. It is undisputed that he voiced his concerns in his capacity as a public employee, not as a private citizen, and Plaintiff presents no evidence to the contrary. He contends that his speech is protected because it addressed a matter of public concern, but as noted above, that is only one factor in the analysis.
The Court therefore finds that Plaintiff did not have a protected property right to continued employment. 4 The City’s motion for summary judgment is GRANTED.
D. Sixth Cause of Actioru-Breach of the Implied Covenant of Good Faith and Fair Dealing
In his sixth cause of action, Plaintiff alleges that as a result of the “employment relationship, the expressed and implied promises made in connection with that relationship and the acts, conduct and communications resulting in these implied promises,” Defendant promised to act in good faith toward, and deal fairly with, *1084 Plaintiff. This included Defendant’s promise not to terminate Plaintiff without a “fair and honest cause, regulated by good faith on the defendant employer’s part.” Verified Complaint, ¶ 80.
The implied covenant is designed to protect the reasonable expectations of the parties based on their mutual promises. “The covenant of good faith is read into contraсts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purposes.”
Foley v. Interactive Data Corp.,
Defendant contends, and the Court agrees, that Plaintiff did not have a contract of employment and therefore has no rights under an implied covenant of good faith and fair dealing.
Miller v. State of California,
Plaintiffs only ‘evidence’ of a contract is his statement that he was “told as long as [he does] a good job, [he] would remain employed ...” Declaration of Odilon, ¶ 3. Plaintiffs vague statement is insufficient to create a genuine issue of material fact.
The City is therefore entitled to summary judgment on the sixth cause of action for breach of the implied covenant of good faith аnd fair dealing.
E. Seventh Cause of Actioiv-Negligence
Plaintiffs seventh cause of action alleges that Defendant negligently supervised him by failing to advise him of deficiencies in his performance, failing to adequately warn him before termination, and failing to give him constructive criticism and assistance to improvement his performance. He also alleges that Defendant negligently hired and retained supervisors who improperly supervised Plaintiff, negligently terminated his employment by negligently evaluating his performance, failing to conduct an adequate investigation of his performance, and failing to consider their duties towards Plaintiff.
The City seeks summary judgment on this issuе because (1) Plaintiffs tort claim was insufficient; and (2) his claim is barred by the exclusivity provisions of Workers’ Compensation.
1. Tort Claim Sufficiency
California Government Code section 910
requires, among other things, that the claim show a “general description of the indebtedness, obligation, injury,
*1085
damage or loss incurred so far as it maybe known at the time of presentation of the claim.” The complaint must disclose sufficient information to enable the public entity adequately to investigate the merits of the claim so as to settle the claim, if appropriate.
County of Los Angeles v. Superior Court,
As the City contends, Plaintiffs tort claim contained only allegations of intentional acts taken because of Plaintiffs investigations. For example, it describes Lopez’s acts as “implorable, unconscionable and unethical.” The tort claim doеs not allege any acts of negligence, nor does it contain any allegations related to the City’s duty to supervise its employees and/or help Plaintiff succeed. The tort claim therefore offered the City no information upon which to investigate a negligent hiring and/or negligent supervision claim.
See Fall River Joint Unified School Dist. v. Superior Court,
Plaintiff opposes summary judgment by first suggesting that the City waived the sufficiency defense by failing to issue a notice of insufficiency in resрonse to his tort claim. A notice of insufficiency, however, is related to procedural insufficiencies. It is inconceivable that Plaintiff could expect the City to somehow anticipate the substantive issues that Plaintiff could have raised.
Alternatively, Plaintiff argues that his tort claim was sufficient because the negligence claim is simply an elaboration of the details contained in the tort claim. The claim does not, however, suggest any facts related to the City’s alleged negligent supervision of Plaintiff or his supervisors.
Plaintiff also asks the Court to find that he substantially complied with
Government Code section 910.
“The test for substantial compliance is whether the face of the filed claim discloses sufficient information to enable the public entity to make an adequate investigation of the claim’s merits and settle it without the expense of litigation.”
Connelly v. County of Fresno,
Plaintiff points to the following portions as sufficient to notify the City of his claims: “Please accept this letter as a tort claim against the City of Orange Cove and its officers, in their official capacity,” and “we are positioned for the City to decline it and we are prepared to litigate this ease.” Despite Plaintiffs characterization of this language as sufficiently detailed, it is nothing more than general language without a hint of a legal claim or supporting facts. Certainly, Plaintiff cannot have expected the City to adequately investigate the claim he now purports to assert.
2. Workers’ Compensation Exclusivity
Defendant further argues that Plaintiffs negligence claims related to how he was supervised by the City are subject to workers’ compensation exclusivity.
*1086
Claims for acts occurring in the normal course of the employer-employee relationship, are barred by workers’ compensation exclusivity principles.
Livitsanos v. Superior Court,
Plaintiff contends that his claims are not subject to workers’ compensation exclusivity because the City’s actions were in contravention to public policy and outside the compensation bargain. He suggests that intimidation to keep quiet regarding the employer’s crimes cannot be said to be a normal part of the employment relationship. His negligence claim, however, sets forth allegations related tо how he was supervised in terms of his performance. His allegations do not involve issues outside of the normal employment relationship and his claim is therefore subject to workers’s compensation exclusivity.
For these reasons, the City is entitled to summary judgment on the seventh cause of action for negligence.
ORDER
Based on the above, the Court GRANTS Defendant’s motion for summary judgment.
IT IS SO ORDERED.
Notes
. In his opposition, Plaintiff contends that the notice of motion does not meet the requirements of Rule 7(b) because it "does not specify with requisite specificity which claim should be dismissed. Contrary to Plaintiff’s belief, the notice of motion is sufficient.
2. Plaintiff also requests that the Court not consider Defendant’s reply, which was filed a day late. At the hearing, Plaintiff indicated that he did not need additional time to prepare for argument. In the interests of deciding motions on the merits and because of the lack of prejudice, the Court will consider Defendant’s reply.
. Section 1102.5 prohibits employers from making any rule preventing an employee from disclosing illegal activity and prohibits retaliation for reporting illegal activity.
. The Court notes that in citing Stevenson, Plaintiff includes certain language in a block quote that does not appear in the original quote. Plaintiff is strongly cautioned against misrepresenting authority to the Court.
. Given this finding, the Court need not reach the issue of whether Plaintiff sufficiently alleged facts to support municipal liability under
Monell
v.
Dep’t Soc. Serv.,