ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (Dоcket No. 42)
I. INTRODUCTION
On December 22, 2010, Plaintiff Peter Turner filed suit against the City and County of San Francisco (“CCSF”), the San Francisco Department of Public Works (“DPW” or “SFDPW”), Director of Public Works Ed Reiskin, SFDPW Manager Bruce Storrs, DPW Manager Barbara Moy, and DPW Human Resources Representatives Tammy Wong and Doris Urbina, arising from his employment with DPW. Docket No. 1. On March 24, 2011, Defendants removed to federal court. The operative Fourth Amended Complaint (“FAC”) alleges, inter alia, retaliation and deprivation of due process, and raises claims under Cal. Code Civ. P. § 526a; Cal. Labor Code §§ 98.6, 1102.5; Cal. Govt. Code § 12653; Cal. Govt. Code § 8547; and 42 U.S.C. § 1983. FAC, Docket No. 40. Pending before the Court is Defendants’ motion to dismiss Plaintiffs FAC. Docket No. 42. Having considered the parties’ briefs and oral argument, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss.
II. FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs FAC alleges as follows. Plaintiff began applying for a position with DPW in 2003. FAC ¶ 8. He applied for three positions with the City and County of San Francisco: (1) survey assistant or “5310,” (2) survey assistant 2 or “5312”; and (3) survey associate or “5314.” Id. Plaintiff alleges he was qualified for each position but never hired. He then applied for a survey assistant 2 position with the Millbrae office of SFPUC in 2005, for which he was also qualified but not hired. FAC ¶ 9. He again applied for two 5310 positions in 2006 with DPW, for which he was not hired. FAC ¶¶ 10-11. Instead, less qualified people favored by Defendant Storrs received the position. Id.
Another 5310 position opened up in early 2007, for which Plaintiff again applied.
On June 19, 2007, Plaintiff began work as a survey assistant. FAC ¶ 16. However, he alleges he was not informed that he had been hired as a temporary exempt employee, rather than in a permanent civil service position, until the day he started work. FAC ¶ 17. He had interviewed and tested for a permanent position. FAC ¶ 17. Five others were also hired as temporary exempts. FAC ¶ 18. Plaintiff alleges it was illegal to hire him and others as temporary exempts because Article Ten of the City Charter requires such employees to work on only one capital improvement project; in contrast, Plaintiff worked on numerous tasks throughout the department. FAC ¶ 19. He further alleges that he worked out of class from the first day of his employment and given extra responsibility not commensurate with his low pay and temporary status. FAC ¶¶ 22-24. Plaintiffs high level of responsibility did not comport with Defendant Storrs’s public acknowledgment of Plaintiffs role, and Mr. Storrs refused to officially promote him. FAC ¶¶ 24-25. Mr. Storrs and Mr. Hanley (the Chief Surveyor) also attempted to force Plaintiff to sign off on maps and surveys he had not seen, and Mr. Hanley falsely signed maps based on surveys Plaintiff had done. FAC ¶ 26.
Plaintiff continued to attempt to obtain a promotion and/or permanent status. Later in 2007, three survey associate positions opened up, but Plaintiff was told not to apply for them because Mr. Storrs had already selected people for them. FAC ¶ 21. All three new hires were for permanent positions, although two people were less qualified than Plaintiff and a third tested lower than Plaintiff. Id.
DPW’s use of temporary exempt employees, and failure to use objective criteria to hire permanent employees, resulted in negligent surveying work. FAC ¶¶ 28-29. Plaintiff alleges that the temporary exempt hiring practices were part of a larger scheme, through which DPW underbid on survey work in order to “corner the market,” and made up the money by overcharging the public for “mapping fund fees.” FAC ¶¶ 30-32. Mr. Storrs acknowledged that this set-up “made the department money.” FAC ¶32. Plaintiff alleges it was illegal to use mapping fund fees to offset the cost of low survey bids. FAC ¶ 31.
Plaintiff “began speaking out against” Defendants’ practices, including “at staff meetings; at union meetings; and in face-to-face meetings with Mr. Storrs and DPW and Human Resources officials. Plaintiff also repeatedly raised the fact that he and other temporary exempts were working out of class on a regular basis.” FAC ¶ 32. Mr. Storrs and other DPW officials knew of Plaintiffs concerns. FAC ¶ 33. At some point, “Plaintiff was assigned to map checking, a position Storrs openly acknowledged he used to punish individuals who did not ‘follow instructions.’ ” FAC ¶ 40.
Plaintiff alleges further that in 2009, the Human Resources Department sabotaged Plaintiffs efforts to apply for survey work at the airport. FAC ¶41. In response, “he wrote to the Human Resources agent handling the position and told her that he planned to expose these policies and report them to whatever authority would hold them responsible.” FAC ¶ 42. In the aftermath of this letter, Plaintiff was summoned to a meeting with Defendants Wong, Moy, and Storrs, in which he was “asked hostile and intimidating questions by Storrs.” FAC ¶43. Plaintiff again
After his termination, Plaintiff continued to seek opportunities to apply for posted survey positions with the City, but Storrs was permitted to select his choices “without regard to objective standards.” FAC ¶¶ 47-50. Defendant Urbina “ignored” his application, and informed him that his application had been rejected. FAC ¶ 49.
Plaintiff further alleges that as of June 2010, the five temporary exempts working for DPW were rendered permanent employees when their employment continued after their exempt tenure expired. FAC ¶ 51. Plaintiff alleges this practice violated Rule 18 of Article 10 of the City Charter. Id.
Plaintiff filed a timely charge of discrimination with the Department of Fair Housing and Employment (“DFHE”), and received a right to sue letter on February 22, 2011. FAC ¶ 53.
On March 24, 2011, Plaintiff filed suit in the instant case. Docket No. 1. His FAC raises claims for illegal and wasteful expenditure of funds in violation of California Code of Civil Procedure § 526a, retaliation under §§ 98.6 and 1102.5 of the California Labor Code, retaliation under the California False Claims Act, California Government Code § 12653, retaliation under California Government Code § 8547, denial of due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and retaliation in violation of the First Amendment. Plaintiff seeks, inter alia, damages, back pay, reinstatement, statutory penalties, and injunctive and declaratory relief.
Although the operative complaint is Plaintiffs Fourth Amended Complaint, this is Defendants’ first motion to dismiss to be heard by the Court. Defendants seek dismissal of all claims.
III. DISCUSSION
A. Legal Standard
Under Rule 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington,
B. Cal. Code Civ. P. § 526a
Defendants first challenge Plaintiffs cause of action under California Code of Civil Procedure § 526a, which authorizes taxpayer actions “restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county ... against any officer thereof.” Cal. Civ. Proc. Code § 526a. Although the statute is subject to permissive standing requirements in state court, in federal court a plaintiff must satisfy Article III standing. Cantrell v. City of Long Beach,
In the instant case, Plaintiff lacks standing under Article III to raise a claim under § 526a because he has failed to allege any taxpayer injury. “To establish standing in a state or municipal taxpayer suit under Article III, a plaintiff must allege a direct injury caused by the expenditure of tax dollars; the pleadings of a valid taxpayer suit must set forth the relationship between taxpayer, tax dollars, and the allegedly illegal government activity.” Cantrell,
First, to the extent Plaintiffs complaint could be construed to attempt to allege taxpayer injury on the basis of DPW’s employment practices, see FAC ¶¶ 19-20, 22 (alleging that Defendants underpaid employees and unlawfully treated them as temporary exempts rather than permanent civil service employees), Plaintiffs allegations appear to suggest monetary savings to the taxpayer, or at least a net neutral cost, as a result of Defendants’ employment practices. Indeed, he would appear to be challenging a failure to expend funds, rather than a misuse of funds. Cf. Cammack,
Second, to the extent Plaintiffs complaint could be construed to attempt to allege taxpayer injury on the bаsis of Defendants’ alleged mapping fund fee scheme, see FAC ¶¶ 31-32 (alleging that Defendants underbid for survey work and then make up the difference by overcharging “the public” for “mapping fund” fees), Plaintiff does not directly challenge the disbursement of public taxpayer funds. Instead, Plaintiff appears to challenge a method of raising revenue, rather than an expenditure thereof. Moreover, it is not clear from the FAC whether its reference to “the public” alleges that Defendants charged the government for mapping fund fees, or whether such fees were paid by private citizens; nor is it clear whether the scheme derives from or results in an expenditure of taxpayer funds separate from expenditures accounted for by other, legitimate activity. Cf. PLANS, Inc. v. Sacramento City Unified Sch. Dist.,
Plaintiff appears to argue in opposition that he has been injured by Defendants’ use of taxpayer dollars “on their illegal scheme of underbidding on agency work” because he has been “underpaid and denied the protections that should have been afforded him as a permanent employee.” Opp. at 7. However, such an injury is not a taxpayer injury; it is an injury in Plaintiffs capacity as an employee.
Plaintiff also argues that even if he has not demonstrated standing, the Court retains supplemental jurisdiction over his § 526a claim on the basis of his other viable claims. However, whatever the scope of this Court’s subject matter jurisdiction, Article III standing must be established for each claim, including those over which there is supplemental jurisdiction. See DaimlerChrysler Corp. v. Cuno,
Accordingly, Plaintiff lacks standing to pursue his § 526a claim in federal court. Defendants’ motion to dismiss is GRANTED as to this claim, with leave to amend.
C. Cal. Labor Code §§ 1102.5 and 98.6
Defendants next challenge Plaintiffs causes of action for retaliation in violation of California Labor Code §§ 1102.5 and 98.6. Section 1102.5 provides, in relevant part:
(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from 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.
(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 orfederal statute, or a violation or noncompliance with a state or federal rule or regulation.
(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.
(e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).
Cal. Labor Code §§ 1102.5(a)-(e). Section 98.6 provides, in relevant part,
No person shall discharge an employee or in any manner discriminate against any employee ... because the employee ... engaged in any conduct delineated in this chapter, including the сonduct described in Chapter 5 (commencing with Section 1101) of Part 3 of Division 2,2 or because the employee ... has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights, which are under the jurisdiction of the Labor Commissioner, or has testified or is about to testify in any such proceeding or because of the exercise by the employee ... of any rights afforded him or her.
Cal. Labor Code § 98.6(a). In other words, “[u]nder § 98.6, employers may not discharge or discriminate against an employee for political activities; for whistle-blowing; for assigning wage claims to the Labor Commissioner resulting from demotion, suspension, or discharge for lawful conduct occurring during nonworking hours away from employer’s premises; for filing a complaint with the Labor Commissioner or testifying in such proceedings; for initiating proceedings against the employer to collect civil penalties under the ‘Labor Code Private Attorneys General Act;’ and for exercising ‘any rights afforded him or her.’ ” Hollie v. Concentra Health Services, Inc., C 10-5197 PJH,
[6-8] To establish a prima facie case of retaliation under § 1102.5[], a plaintiff must show: (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.” Jadwin v. County of Kern,
An employee engages in protected activity under § 1102.5(b) when he “discloses to a governmental agency reasonably based suspicions of illegal activity.” Mokler,157 Cal.App.4th at 138 ,68 Cal.Rptr.3d 568 ... (emphasis added) (internal quotation marks omitted). The employee must “reasonably believe []he was disclosing a violation of state or federal law.” [Patten v. Grant Joint Union High Sch. Dist.,134 Cal.App.4th 1378 , 1386,37 Cal.Rptr.3d 113 (2005)]. To have a reasonably based suspicion ofillegal activity, the employee must be able to point to some legal foundation for his suspicion — some statute, rule or regulation which may have been violated by the conduct he disclosed. Love v. Motion Indus., Inc., 309 F.Supp.2d 1128 , 1135 (N.D.Cal.2004) (concluding that without citing to “any statute, rule or regulation that may have been violated by the disclosed conduct,” plaintiff lacked “any foundation for the reasonableness of his belief’).
Jadwin,
Defendants argue that Plaintiffs сlaims are barred under both statutory provisions because he has failed to exhaust his administrative remedies and because he has failed to state a claim.
1. Exhaustion
a. Section 98.7
Plaintiff alleges in his FAC that he exhausted his administrative remedies by filing a charge with the DFHE and receiving a right to sue letter. FAC ¶ 53. However, Defendants argue Plaintiff was required to further exhaust his remedies as to any Labor Code claims by filing a charge with the Labor Commissioner under California Labor Code § 98.7. California Labor Code § 98.7(a) provides, in relevant part, that “[a]ny 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 after the occurrence of the violation.” The statute further provides that “[t]he rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.” § 98.7(f).
There is a dispute among courts as to whether exhaustion under § 98.7 is required before a plaintiff may bring a cause of action under the Labor Code. Defendant cites to Campbell v. Regents of Univ. of California,
Although Campbell suggests as a general matter that exhaustion should be required before pursuing a Labor Code claim in court, Campbell did not explicitly address exhaustion before the Labor Commissioner under § 98.7 or the proper construction of that provision. Rather, it merely considered exhaustion of internal administrative procedures (in that case, the University of California’s internal prоcedures). In addition, Campbell did not hold that the legislature, in creating a right of action, cannot prescribe the proper procedure for filing suit; the legislature is not disabled from e.g., specifying that exhaustion of a particular administrative remedy is not required before bringing a lawsuit. Campbell simply states a general principle of California jurisprudence which applies absent legislative directive to the contrary. Campbell did not construe Cal. Lab. Code § 98.7. Id. at 321,
Finally, some courts continue to apply pre-Campbell decisions holding that § 98.7 exhaustion is not mandatory. See, e.g., Lloyd v. County of Los Angeles,
While a number of federal district courts have extended Campbell to require exhaustion under § 98.7, this Court is unaware of any California state court decision that has so held. In holding that there is no requirement that parties exhaust their claims before the Labor Commissioner under § 98.7, one federal court observed, “No California decision requires as a prerequisite to suit for statutory violation of the Labor Code exhaustion of administrative remedies before the Labor Commissioner.” See Creighton v. City of Livingston (“Creighton II”), CV-F-08-1507 OWW/SMS,
The Court finds that exhaustion under § 98.7 is not required before bringing a civil action under §§ 98.6 and 1102.5. In so holding, the Court finds Creighton persuasive and adopts its reasoning. Particularly, the Court agrees that the Private Attorneys General Act (“PAG Act” or “PAGA”), which covers the statutory claims at issue here, see Cal. Labor Code § 2699.5, indicates a legislative emphasis on private enforcement of the Labor Code that would be undercut by a mandatory exhaustion requirement before the Labor Commissioner. The PAG Act “ ‘empowers or deputizes an aggrieved employee to sue for civil penalties ... as an alternative to enforcement by the State.’ ” McKenzie v. Fed. Exp. Corp.,
[Construing Labor Code section 98.7 to obligate a plaintiff to seek relief from the Labor Commissioner prior to filing suit for Labor Code violations flies in the face of the concerns underlying the Labor Code Private Attorneys General Act of 2004 (PAG Act) (Lab. Code, § 2698 et seq.). As we stated in Dunlap v. Superior Court[,142 Cal.App.4th 330 , 337,47 Cal.Rptr.3d 614 (2006)], the PAG Act was adopted to augment the enforcement abilities of the Labor Commissioner with a private attorney general system for labor law enforcement. “The Legislature declared its intent as follows: ‘(c) Staffing levels for state labor law enforcement agencies have, in general, declined over the last decade and are likely to fail to keep up with the growth of the labor market in the future. [¶] (d) It is therefore in the public interest to provide that civil penalties for violations of the Labor Code may also be assessed and collected by aggrieved employees acting as private attorneys general, while also ensuring that state labor law enforcement agencies’ enforcement actions have primacy over any private enforcement efforts undertaken pursuant to this act.’ ” ... ThePAG Act’s approach, enlisting aggrieved ■ employees to augment the Labor Commissioner’s enforcement of state labor laws, undermines the notion that Labor Code section 98.7 compels exhaustion of administrative remedies with the Labor Commissioner.
Creighton,
In addition, the statutory language of § 98.7 indicates that exhaustion is permissive. Significantly, § 98.7(f) provides: “the rights and remedies provided under this section do not preclude an employee [from] pursuing any other rights and remedies under any other law.” Regardless of the оutcome of the administrative proceeding, “the employee is free to pursue his or her claims in court.” Creighton,
At oral argument, Defense counsel argued that exhaustion was required because only §§ 98.7 and 2699 supplied the necessary authorizing statutes through which Plaintiff could bring his statutory claims in court. However, § 98.6 itself provides authorizing language for suit. See Cal. Lab. Code § 98.6(b) (“Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, ... shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.”); id. § 98.6(c)(1) (“Any applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, ... shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.”). In addition, Campbell itself acknowledges a right to seek damages exists under § 1102.5, a statute it describes as “creating] a right that did not exist at common law.” Campbell,
Moreover, the Court notes that the Division of Labor Standards and Enforcement (“DLSE”) itself considers exhaustion under § 98.7 to be optional, not mandatory. See Creighton,
In short, the Court agrees that where there is no convincing evidence that the state supreme court would decide differently, a federal court must follow the decisions of the state’s intermediate appellate courts. Here, two decisions, albeit one unpublished, have ruled after Campbell, that for statutory labor law claims, exhaustion of administrative remedies before the Labor Commissioner is not required. Counsel for the Labor Commissioner has opined in another matter that exhaustion of administrative remedies before the Labor Commissioner is not a prerequisite to suit for statutory violations of the Labor Code. [¶] Exhaustion of administrative remedies before the Labor Commissioner before filing suit for statutory violations of the Labor Code is not required under California law.
Creighton,
Campbell has cautioned that “absent a clear indication of legislative intent, we should refrain from inferring a statutory exemption from our settled rule requiring exhaustion of administrative remedies.” Campbell,
Accordingly, Defendants’ motion to dismiss on the basis of failure to exhaust remedies under § 98.7 is DENIED.
b. Section 2699
Defendants аrgue separately that Plaintiff was required to comply with Cal. Labor Code § 2699.3, which requires plaintiffs to give notice to the Labor and Workforce Development Agency before commencing any civil action seeking civil penalties under the Labor Code. See Cal. Labor Code § 2699.3(a) (requiring plaintiff to “give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation” before seeking civil penalties). Plaintiff does not allege that he complied with this provision, nor does he respond to Defendants’ argument in his opposition. See § 2699(a) (“[A]ny provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency ... for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.”) (emphasis added). Accordingly, Plaintiff may not seek civil penalties under the Labor Code absent an allegation of compliance with § 2699.3.
In addition to the exhaustion arguments, Defendants also make a blanket argument that Plaintiff has failed to allege plausible claims against the Individual Defendants as to all causes of action, although they make no specific argument related to these particular statutory claims. Plaintiffs FAC makes only conclusory allegations against Individual Defendants Wong and Moy, merely alleging that they attended the meeting at which Storrs questioned him about his email. FAC ¶¶ 42-44. It alleges no conduct or statements by these Defendants, and therefore fails to raise any plausible factual basis for a retaliation claim against them. Similarly, Plaintiff alleges that Defendant Urbina rejected his applications for new jobs after he was terminated, but fails to draw any plausible connection betweеn her rejection of his application and his pre-termination conduct that forms the basis of the alleged retaliation. FAC ¶¶ 48-49. Thus, Plaintiff has not alleged sufficient facts to state any claim against Wong, Moy, or Urbina.
As against Defendants Reiskin and Storrs, on the other hand, Plaintiff has stated a plausible claim based on their participation in the events directly relating to his termination. Defendant Reiskin, the DPW Director, wrote the letter firing Plaintiff the day after Storrs questioned him about his complaints. FAC ¶ 45. Plaintiff also alleges that “DPW officials” knew of his concerns about illegal practices. FAC ¶34. Although the termination letter is the only allegation Plaintiff states directly against Defendant Reiskin, given the temporal proximity between his termination and his complaints, such allegations plausibly suggest his complaints caused the termination. With respect to Defendant Storrs, Plaintiff alleges Storrs questioned him about his complaints in a hostile manner, and immediately thereafter informed him he would be fired. FAC ¶¶ 43-45. Plaintiff also alleges Storrs retaliated against him prior to his termination by assigning him map checking as punishment. FAC ¶ 43.
With respect to the institutional Defendants, Defendants make no argument as to the viability of Plaintiffs claims beyond the exhaustion requirement. Thus, the Court does not consider the sufficiency of Plaintiffs claims as against CCSF and DPW, and those claims remain.
Accordingly, the Court DENIES the motion to dismiss on the grounds of exhaustion, DENIES the motion to dismiss for failure to state a claim as against Defendants Storrs and Reiskin, GRANTS the motion as to civil penalties under § 2699 with leave to amend, and GRANTS the motion to dismiss for failure to state a claim as against Defendants Urbina, Wong, and Moy with leave to amend.
D. California False Claims Act-CaL Govt. Code §§ 12653(b) and (d)
Plaintiffs next cause of action alleges violations of the False Claims Act,
(b) No employer shall discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms аnd conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652.
(c) An employer who violates subdivision (b) shall be liable for all relief necessary to make the employee whole, including reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, compensation for any special damage sustained as a result of the discrimination, and, where appropriate, punitive damages. In addition, the defendant shall bé required to pay litigation costs and reasonable attorneys’ fees. An employee may bring an action in the appropriate superior court of the state for the relief provided in this subdivision.
(d) An employee who is discharged, demoted, suspended, harassed, denied promotion, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of participation in conduct which directly or indirectly resulted in a false claim being submitted to the state or a political subdivision shall be entitled to the remedies under subdivision (c) if, and only if, both of the following occur:
(1) The employee voluntarily disclosed information to a government or law enforcement agency or acted in furtherance of a false claims action, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed.
(2) The employee had been harassed, threatened with termination or demotion, or otherwise coerced by the employer or its management into engaging in the fraudulent activity in the first place.
A plaintiff alleging a False Claims Act retaliation claim must allege three elements: (1) that he or she engaged in activity prоtected under the statute; (2) that the employer knew the plaintiff engaged in protected activity; and (3) that the employer discriminated against the plaintiff because he or she engaged in protected activity. Mendiondo v. Centinela Hosp. Medical Center,
Defendants argue that Plaintiff fails to state a claim because he has failed to satisfy the first element, as he has not identified any false claim. Plaintiff argues in response that he has satisfied the first element because he “engaged in protected activity if he reasonably believed that DPW was possibly committing fraud against the government, and he investigated the possible fraud.” Opp. at 10 (citing Moore,
(1) “Claim” means any request or demand, whether under a contract or otherwise, for money, property, or services, and whether or not the state or a political subdivision has title to the money, property, or services that meets either of the following conditions:
(A) Is presented to an officer, employee, or agent of the state or of a political subdivision.
(B) Is made to a contractor, grantee, or other recipient, if the money, property, or service is to be spent or used on a state or any political subdivision program or interest, and if the state or political subdivision meets either of the following conditions:
(i) Provides or has provided any portion of the money, property, or service requested or demanded.
(ii) Reimburses the contractor, grantee, or other recipient for any portion of the money, property, or service that is requested or demanded.
Cal. Govt. Code § 12650(b)(1).
Plaintiff fails to sufficiently describe any instance of alleged fraud that would constitute a false claim within the meaning of the Act. His complaint is vague as to Defendants’ alleged unlawful conduct. For example, he alleges that DPW underpaid him because he was misclassified as a temporary exempt employee rather than a permanent civil service employee. Yet Plaintiff does not explain how this misclassification resulted in a false claim for payment by DPW. Cf. Mendiondo,
Similarly, to the extent Plaintiff alleges Defendants underbid for certain projects because their costs were lower given their labor practices, Plaintiff does not allege, e.g., that Defendants later inflated their bills or cost public entities unnecessary funds after securing contracts through underbidding. Cf., e.g., Kajima Eng’g & Const., Inc. v. City of Los Angeles,
Plaintiffs FAC does allege an “illegal scheme of charging departments under market for surveying work and making up the shortfall with mapping fund fees.” Opp. at 11 (citing FAC ¶¶ 31-32). However, the FAC alleges that Defendants “overcharg[ed] the public for mapping fees.” FAC ¶ 31, see also FAC ¶ 3 (describing “mapchecking and/or monument preservation fees charged to the public”). As noted above, though not entirely clear, this suggests that Defendants did not receive mapping fees from a government entity by submitting claims, but rather received said fees from members of the general public. Plaintiff offers no argument as to how overcharging persons other than government entities could constitute a “false claim.” Plaintiffs counsel offered no satisfactory response at oral argument. However, counsel suggested Plaintiff may be able to amend to allege false claims against the San Francisco Public Utilities Commission. Leave to amend will therefore be granted, and the Court offers no analysis of the viability of any such claim at this point. However, Plaintiff is cautioned to adhere to thе requirements of Rule 11 in making any amended allegations.
In addition, although Plaintiff listed subsection (d) in his FAC, which describes the conditions under which an employee may recover when he or she has been fired for submitting (or participating in the submission of) a false claim, this provision appears inapplicable to the instant ease. Plaintiff does not allege that he submitted a false claim, or that he was terminated for participation in false claims. Rather, he alleges he was terminated in retaliation for exposing false claims. Thus, only subsection (b) would appear to be applicable in this case. In any event, Plaintiff has not plausibly alleged a claim under subsection (d).
Moreover, Defendants are correct that Plaintiff may not state a claim against the Individual Defendants under this cause of action. LeVine v. Weis,
Accordingly, the Court GRANTS Defendants’ motion to dismiss the individual defendants from this cause of action with prejudice. If Plaintiff can state a claim, it will only be against Defendants CCSF and DPW. The Court GRANTS Defendants’ motion to dismiss Plaintiffs § 12653 claim against Defendants CCSF and DPW with leave to amend.
E. b.2 U.S.C. § 1983
Plaintiff raises several claims under 42 U.S.C. § 1983, which provides that
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. As reflected by the language above, “[t]o establish a § 1983 claim, a plaintiff must show that an individual acting under the color of state law deprived him of a right, privilege, or immunity protected by the United States Constitution or federal law.” See Levine v. City of Alameda,
1. Due Process Under the Fifth and Fourteenth Amendments
Plaintiffs fourth cause of action raises a claim under the Fifth Amendment to the United States Constitution. FAC ¶¶ 67-72. Defendants argue that Plaintiff cannot state a claim under the Fifth Amendment
With respect to the Fourteenth Amendment, Plaintiff alleges Defendants deprived him “of the notice and procedures established by the City for permanent employees.” FAC ¶80. The due process clause provides that no state “shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV. However, “[a] threshold requirement to a substantive or procedural due process claim is the plaintiffs showing of a liberty or property interest protected by the Constitution.” Engquist v. Oregon Dept. of Agric.,
a. Property Interest
“[Property interests are not created by the Constitution, but rather by ‘existing rules or understandings that stem from an independent source such as state law.’ ” Nunez v. City of Los Angeles,
Here, Plaintiffs purported property interest is based on the City’s policies with respect to permanent civil service employees. However, in order to claim a property interest in the protection offered to permanent employees, Plaintiff must demonstrate that he has “a legitimate claim of entitlement to it.” Nunez v. City of Los Angeles,
Although Plaintiff alleges he was wrongfully hired as a temporary employee and that he should have been a permanent employee, such an allegation does not vest him with a property interest in his employment. Kreutzer v. City & County of San Francisco,
It has been the law in California, at lеast since 1938, that a fundamental principle of the civil service system is that employees do not become entitled to occupy positions in classifications other than the ones to which they were appointed merely by virtue of having been assigned duties that properly belong to a higher classification, and that if the rule were otherwise, “the entire fabric of the civil service system would fail.”
Id. at 314,
Kreutzer explained that longstanding case law in California precluded an employee from obtaining a reclassification merely based on the “assumption and performance of the duties of [that] classification.” Id.; see also id. at 651 (“[I]t would obviously be destructive of the very principles upon which the civil service system is founded to promote [an employee] ... without an examination as to the qualifications of the candidate for the higher position.”) (internal citations and quotation marks omitted). Therefore, “a non-eivil service position cannot be transformed into a civil service position merely by assigning out-of-class duties to its occupant.” Id. at 321 n. 5,
Here, as Plaintiffs counsel confirmed at oral argument, Plaintiffs sole claim to permanent employee status is his allegation that he was misclassified because he functionally performed the duties of a permanent employee and because his duties conflicted with those permissible under temporary exempt status. See, e.g., FAC ¶¶ 19-25. Such allegations do not grant him the right to the benefits of permanent employment.
A temporary exempt employee may only claim a property interest on par with permanent еmployee status if he can demonstrate that he was hired in a manner that complied with the civil service requirements for the relevant civil service position, and that the City lacked authority under the applicable statute(s) to hire him as a non-civil service employee. For example, in McGillicuddy, the San Francisco Charter in place at the time provided for temporary or emergency appointments only for a period “not exceeding sixty days, and only until regular appointments, under the provisions of this Article, can be made.” McGillicuddy v. Civil Serv. Comm’n,
Subsequent cases applying McGillicuddy confirm that this exception is limited to circumstances in which and employee was mis-labeled a temporary employee based on a faulty and unlawful appointment process, not merely that he performed work outside his class. In Villain, for example, the court acknowledged that McGillicuddy had relied on an old version of the San Francisco Charter that, even by 1941, was “so altered ... as to make [it] of little value in determining the issues here presented.” Villain v. Civil Serv. Comm’n of San Francisco,
In this case, as in Villain, there is no dispute that Defendants were authorized under the Charter to hire Plaintiff as a temporary employee under paragraph 18 of Section 10.104 of the City Charter, which provides that positions are exempt from civil service if they are “[appointments, which shall not exceed three years and shall not be renewable, for special projects and professional services with limited term funding, exсept that such positions may be filled through regular civil service procedures.” Defendants’ Request for Judicial Notice, Docket No. 42-1. Plaintiff does not allege — and indeed, rejected the possibility of so alleging at oral argument — that his appointment process was unlawful ab initio. Indeed, as noted
Plaintiffs proffered authority does not support his argument. For example, Plaintiff cites to Jenkins v. County of Riverside,
Accordingly, Defendants’ motion to dismiss Plaintiffs due process claim to the extent it is based on a property interest is GRANTED with prejudice.
b. Liberty Interest
Defendants next argue that Plaintiff cannot state a claim for violation of due process based on a liberty interest. “A person has a liberty interest in employment protected by the Due Process Clause
In the instant case, Plaintiffs FAC does not currently allege any cognizable liberty interest affected by his employment termination because he does not allege an inability to obtain future work in his chosen profession, nor does he allege any public disclosure of stigmatizing reasons for his dismissal. FAC ¶¶ 45-46 (stating only that he was fired, and offering no allegations of public disclosure of any disciplinary reasons for the termination).
Accordingly, to the extent Plaintiff bases his due process claim on the deprivation of a liberty interest, Defendants’ motion to dismiss this claim is GRANTED with leave to amend.
2. First Amendment
Defendants next argue Plaintiff cannot state a claim under § 1983 for violation of the First Amendment. “To recover under § 1983 for such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” Blair v. Bethel Sch. Dist.,
Defendants raise only two arguments against Plaintiffs First Amendment claim. First, they argue he has failed to allege Monell liability by the City. Second, they argue he has failed to sufficiently allege any individual Defendant’s liability. Accordingly, the Court addresses only these arguments and not, e.g., whether Plaintiffs complaints against Defendants’ practices
a. Monell
There is no respondeat superi- or liability under § 1983. See Board of County Commis. v. Brown,
“A section 1983 plaintiff may establish municipal liability in one of three ways”: (1) “a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; (2) “the individual who committed the constitutional tort was an official with final policy-making authority”; and (3) “an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. Delmore,
In this case, dismissal is clearly warranted insofar as Plaintiff seeks to rely on the first (policy) prong, as his FAC contains no allegations related to Monell liability, even on a cursory basis. Indeed, Plaintiffs only response in opposition is that his allegations satisfy the second prong because Defendants Reiskin and Storrs had final policymaking authority over the practice of using temporary exempt workers to underbid for work and overcharge for mapping fund fees. Opp. at 14. Thus, the Court considers only that prong.
However, even as to the second prong, the complaint itself contains no allegations (even on a conclusory basis) of final policymaking authority. In addition, Plaintiffs argument in opposition appears misplaced, as he focuses on Defendants Reiskin’s and Storrs’s authority with respect to the underlying conduct about which he was complaining, DPW’s employment practices. Yet even assuming Defendants had final policymaking authority with respect to those labor practices, that does not establish that they had authority over the potential policies or practices yielding the retaliatory conduct; e.g., Plaintiffs termination. “Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of thаt discretion.” Pembaur v. City of Cin
Thus, that these Defendants may have had discretion to terminate Plaintiff does not necessarily mean they were “responsible for establishing final government policy respecting such activity” such that “the municipality can be held liable.” Id. at 483,
Accordingly, Defendants’ motion to dismiss Plaintiffs First Amendment claim as against CCSF/DPW under Monell is GRANTED with leave to amend.
b. Individual Defendants
Defendants also challenge Plaintiffs First Amendment claim as against the Individual Defendants. A supervisor may be liable under section 1983 upon a showing of (1) “personal involvement in the constitutional deprivation”; or (2) “a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca,
In the instant case, Plaintiff has alleged sufficient facts to state a claim as against Defendants Reiskin and Storrs, though it is a close call. Both Defendants were alleged to be personally involved in his termination. In addition, as the Court has previously explained, “[i]n the employment discrimination context, courts have noted that one way of establishing a causal link is to show that the adverse action took place ‘very close’ in time after the plaintiff has engaged in the protected activity.” Jefferson v. City of Fremont, C-12-0926 EMC,
In addition, with respect to Defendant Storrs, Plaintiff has stated a claim against him based on the meeting at which Storrs questioned Plaintiff, as well as Storrs’s alleged act of assigning Plaintiff to map
However, with respect to the remaining Defendants, as discussed above, Plaintiff has alleged no specific conduct in which they have engaged so as to state a plausible claim against them. “To survive [a] motion to dismiss [claims against individual defendants under § 1983], he is required to allege overt acts with some degree of particularity such that his claim is set forth clearly enough to give defendants fair notice of the type of claim being pursued.” Ortez v. Washington County, State of Or.,
Accordingly, the Court DENIES the motion to dismiss Plaintiffs First Amendment claim as against Defendants Reiskin and Storrs, and GRANTS the motion as against Defendants Wong, Moy, and Urbina with leave to amend.
F. California Government Code § 85Jp7
Finally, Defendants seek dismissal of this claim on the grounds that Plaintiff is not a state employee. Plaintiff does not contest Defendants’ motion to dismiss this claim. See Opp. at 10 n. 1; see also Schiller v. County of Riverside, E030129,
IY. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows. Defendants’ motion to dismiss is
(1) GRANTED without prejudice as to Plaintiffs claims under Plaintiffs claims under Cal. Code Civ. P. § 526a;
(2) DENIED as to Defendants’ claim that Plaintiff has failed to exhaust administrative remedies under Cal. Labor Code § 98.7, DENIED as to Plaintiffs claims against Defendants Storrs and Reiskin under Cal. Labor Code §§ 98.6 and 1102.5, GRANTED without prejudice as to claims against Defendants Wong, May, and Urbina under §§ 98.6 and 1102.5, and GRANTED without prejudice as to civil penalties under § 2699;
(3) GRANTED with prejudice as to Plaintiffs claims under Cal. Govt. Code § 12653 against the Individual Defendants, and GRANTED without prejudice as to Plaintiffs claims under Cal. Govt. Code § 12653 against CCSF/DPW;
(4) GRANTED with prejudice as Plaintiffs claims for violation of due process under § 1983 to the extent it is based on a property interest, GRANTED without prejudice as Plaintiffs claims for violation of due process under § 1983 to the extent it is based on a liberty interest, GRANTED without prejudice as to Plaintiffs claims for violation of the First Amendment under § 1983 as against CCSF/ DPW, GRANTED without prejudice as to Plaintiffs claims for violation of the First Amendment under § 1983 as against De
(5) GRANTED with prejudice as to Plaintiffs claims under Cal. Govt. Code § 8547. This Order disposes of Docket No. 42.
IT IS SO ORDERED.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
I. INTRODUCTION
Pending before the court is Plaintiffs motion for reconsideration of this Court’s August 29, 2012 order dismissing with prejudice Plaintiffs claim for violation of his Fourteenth Amendment property interests.
II. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff brings suit against the City and County of San Francisco (CCSF), the San Francisco Department of Public Works (DPW), and various individuals, alleging various violations of California state law and the Federal Constitution in connection with his employment with DPW. On July 6, 2012 Defendants moved to dismiss his Fourth Amended Complaint (FAC). Docket No. 42. Plaintiffs allegations as of the time of the motion, as recited in the August 29 order on the motion to dismiss, are as follows.
Plaintiff began applying for a position with DPW in 2003. FAC ¶ 8. He applied for three positions with the City and County of San Francisco: (1) survey assistant or “5310,” (2) survey assistant 2 or “5312”; and (3) survey associate or “5314.” Id. Plaintiff alleges he was qualified for each position but never hired. He then applied for a survey assistant 2 position with the Millbrae office of SFPUC in 2005, for which he was also qualified but not hired. FAC ¶ 9. He again applied for two 5310 positions in 2006 with DPW, for which he was not hired. FAC ¶¶ 10-11. Instead, less qualified people favored by Defendant Storrs received the position. Id.
Another 5310 position opened up in early 2007, for which Plaintiff again applied. FAC ¶ 13. Plaintiff interviewed for the position, and then took the civil service exams for all three survey positions. FAC ¶¶ 13-14. Plaintiff received the highest score on all three exams. FAC ¶¶ 14, 35-38. Plaintiff was hired for a survey assistant position. FAC ¶ 15.
On June 19, 2007, Plaintiff began work as a survey assistant. FAC ¶ 16. However, he alleges he was not informed that he had been hired as a temporary exempt employee, rather than in a permanent civil service position, until the day he started work. FAC ¶ 17. He had interviewed and tested for a permanent position. FAC ¶ 17. Five others were also hired as temporary exempts. FAC ¶ 18. Plaintiff alleges it was illegal to hire him and others as temporary exempts because Article Ten of the City Charter requires such employees to work on only one capital improvement project; in contrast, Plaintiff worked on numerous tasks throughout the department. FAC ¶ 19. He further alleges that he worked out of class from the first day of his employment and was given extra responsibility not commensurate with his low
Plaintiff continued to attempt to obtain a promotion and/or permanent status. Later in 2007, three survey associate positions opened up, but Plaintiff was told not to apply for them because Mr. Storrs had already selected people for them. FAC ¶ 21. All three new hires were for permanent positions, although two people were less qualified than Plaintiff and a third tested lower than Plaintiff. Id.
DPW’s use of temporary exempt employees, and failure to use objective criteria to hire permanent employees, resulted in negligent surveying work. FAC ¶¶ 28-29. Plaintiff alleges that the temporary exempt hiring practices were part of a larger scheme, through which DPW underbid on survey work in order to “corner the market,” and made up the money by overcharging the public for “mapping fund fees.” FAC ¶¶ 30-32. Mr. Storrs acknowledged that this set-up “made the department money.” FAC ¶ 32. Plaintiff alleges it was illegal to use mapping fund fees to offset the cost of low survey bids. FAC ¶ 31.
Plaintiff “began speaking out against” Defendants’ practices, including “at staff meetings; at union meetings; and in face-to-face meetings with Mr. Storrs and DPW and Human Resources officials. Plaintiff also repeatedly raised the fact that he and other temporary exempts were working out of class on a regular basis.” FAC ¶ 32. Mr. Storrs and other DPW officials knew of Plaintiffs concerns. FAC ¶ 33. At some point, “Plaintiff was assigned to map checking, a position Storrs openly acknowledged he used to punish individuals who did not ‘follow instructions.’ ” FAC ¶ 40.
Plaintiff alleges further that in 2009, the Human Resources Department sabotaged Plaintiffs efforts to apply for survey work at the airport. FAC ¶ 41. In response, “he wrote to the Human Resources agent handling the position and told her that he planned to expose these policies and report thеm to whatever authority would hold them responsible.” FAC ¶ 42. In the aftermath of this letter, Plaintiff was summoned to a meeting with Defendants Wong, Moy, and Storrs, in which he was “asked hostile and intimidating questions by Storrs.” FAC ¶43. Plaintiff again voiced his concerns about Defendants’ unlawful practices in the meeting. FAC ¶ 44. Immediately thereafter, Mr. Storrs informed Plaintiff he would be fired. FAC ¶ 45. DPW Director Reiskin sent Plaintiff a letter the next day confirming his termination. Id. After he was fired, DPW refused to provide Plaintiff with information about continuing health insurance and available coverage. FAC ¶ 46.
After his termination, Plaintiff continued to seek opportunities to apply for posted survey positions with the City, but Storrs was permitted to select his choices “without regard to objective standards.” FAC ¶¶ 47-50. Defendant Urbina “ignored” his application, and informed him that his application had been rejected. FAC ¶ 49.
Plaintiff further alleges that as of June 2010, the five temporary exempts working for DPW were rendered permanent employees when their employment continued after their exempt tenure expired. FAC ¶ 51. Plaintiff alleges this practice'violated Rule 18 of Article 10 of the City Charter. Id. They were hired as temporary exempts “to allow for vetting and subjec
On August 29, 2012, this Court granted in part and denied in part Defendants’ motion to dismiss Plaintiffs Fourth Amended Complaint. Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss (Docket No. 49) (“August 29 Order”). In this order, this Court dismissed with prejudice Plaintiffs due process claim under the Fourteenth Amendment to the degree that it was based on a property interest. Id. at 22-27. This Court found that Plaintiff was unable to show that he had a property interest in his employment with DPW despite the fact that he was only a temporary employee. Id.
III. DISCUSSION
A. Plaintiffs Failure to Comply with Local Rule 7-9
As a preliminary matter, Plaintiff failed to move for leave to file a motion for reconsideration. Plaintiff states that his motion “set forth sufficient argument and authority that would allow for this Court to grant Plaintiff leave to file a motion for reconsideration, as well as sufficient argument and authority for the Court to grant Plaintiffs leave to amend the complaint.” PL’s Reply аt 1. He argues that the fact that he used one motion for both requests “should not obscure the fact that Plaintiff meets the requirements of Local Rule 7-9 and that granting Plaintiff leave to file a motion for reconsideration is appropriate given the circumstances.” Id.
Plaintiffs argument here neglects the plain meaning of Rule 7-9, which provides that “No party may notice a motion for reconsideration without first obtaining leave of Court to file the motion.” Local Rule 7-9(a). Under the terms of this rule, Plaintiff is required to obtain leave of Court before noticing his motion for reconsideration. This he failed to do. Even treating his motion as a request for leave to file a motion for reconsideration, however, he has failed to demonstrate that he should be entitled to file a motion for reconsideration.
B. Grounds for Leave to File Motion for Reconsideration under Local Rule 7-9
Local Rule 7-9 also sets out substantive requirements for motions for leave to file motions for reconsideration. It provides that before the moving party will be permitted to file a motion for reconsideration, he or she must show one of three things:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.
Local Rule 7-9(b). In his motion, Plaintiff argues that he has successfully shown both (2) and (3).
1. Emergence of New Material Facts or a Change of Law
Plaintiff argues that new material facts have emerged since the Court’s order. Specifically, he cites the October 3, 2012 deposition testimony of Paresh Chhanya, which he alleges shows that Defеndants falsified accounts to hide city
Plaintiffs argument that this constitutes a new material fact on which to base his motion for leave to file a motion for reconsideration, however, is flawed for two main reasons. First, he offers no explanation why he could not have discovered and presented any information from Mr. Chhanya’s deposition in his opposition to Defendant’s motion to dismiss. Second, he fails to establish that any information discovered in this deposition is material to the question of whether he has articulated a viable due process claim based on a property interest in his employment.
Plaintiff cites specifically to a part of the deposition where Mr. Chhanya is discussing the process for filling out timecards that he followed when he was a temporary employee. Reply at 2, Ex. A at 17-22. Mr. Chhanya testified that during his time as a temporary employee, he would initially fill out his time sheets using a project code provided by the supervisor who assigned him to his job for each day. Reply Ex. A at 20. This timesheet would then be reviewed by the accounting department, which would at times change the project code before the final submission of the official timecard. Id. at 20-23. Mr. Chhanya testified that for some period of time, Plaintiff himself was involved in the oversight of temporary employee time-cards. Id. at 16.
The deposition contains clear indications that Plaintiff was likely aware this time-card system. Mr. Chhanya does not seem to possess any inside knowledge of how decisions are made about project classifications on timecards; he was testifying only to his experience filling out timecards as a temporary employee. Plaintiff was a temporary employee at the same time as Mr. Chhanya and presumably had the same system for filling out time cards. Indeed, Mr. Chhanya even states that Plaintiff himself was involved in overseeing thе timecards of temporary workers for some period of time. Plaintiff offers nothing to indicate that the timecard system described by Mr. Chhanya was previously unknown to him. He thus fails to establish that he could not, with reasonable diligence, have discovered and presented this information prior to the August 29 Order.
Additionally, Plaintiff fails to establish that Mr. Chhanya’s deposition provides him with new material facts, or any new facts at all. Plaintiff represents that Mr. Chhanya stated that timesheets were routinely altered because “My basic understanding is that sometimes — we are enterprise-based, so we generate our own. A lot of times projects will go — would have budgets and they may increase to — keep accounting balances. You may be working on a job or even being billed to another job.” Reply at 2. In context, it is not entirely clear whether Mr. Chhanya’s comments relate to the practice of altering job codes, or to the practice of listing job codes at all. See Reply Ex. A at 21-22.
Regardless, Plaintiff does not allege that Mr. Chhanya’s deposition provided him with new information, only with additional confirmation of actions he already believed the DPW was undertaking. For example, he describes the evidence in Mr. Chhanya’s deposition as “confirming that the City falsified information on time-sheets in order to fund projects on which temporary exempt employees worked for which there were no authorized funds available.” Reply at 2 (emphasis added). Plaintiff notes that “[t]his testimony affirms the fact that Defendants were engaged in falsifying accounts and reveals that the motive behind this practice was to
In any case, Plaintiff fаils to show how this new information is relevant to the question of whether he had a property interest in his employment. As discussed in the August 29 Order and below, temporary non-civil service employees generally do not have a property interest in their employment. See August 29 Order at 22-23 (citing Hyland v. Wonder,
Accordingly, Plaintiffs allegedly new facts do nothing to change the finding that he has not made the requisite showing to establish that he is entitled to the protections and property interests of a permanent civil service employee. As noted below, his emphasis that he was hired to perform out-of-classification work from the outset is not new and does not change the legal analysis of the due process claim.
As Plaintiff has not shown the emergence of any new material facts after the August 29 order, he has not shown grounds for leave to file а motion for reconsideration under Local Rule 7-9(b)(2).
2. Failure of the Court to Consider Material Facts or Dispositive Legal Arguments
Plaintiff also argues that reconsideration is proper because this Court failed to consider material facts and dispositive legal arguments in its order dismissing the claim with prejudice. Specifically, Plaintiff argues that this Court failed to consider his argument “that Plaintiffs hiring was unlawful ab initio and was part of an intentionally unlawful scheme from the outset,” and that “Defendants lacked authority from the outset to hire Plaintiff as a temporary exempt employee.” Reply at 3.
The August 29 Order stated that the parties did not dispute that Defendants were authorized to hire Plaintiff as a temporary non-civil service employee pursuant to paragraph 18 of Section 10.104 of the City Charter. August 29 Order at 25-26. Plaintiff now argues that this misstates his position. He contends that his argument was that hire under this section because unlawful ab initio because Defendants intended from the outset to assign him duties inappropriate to a temporary employee, and that they only classified him as temporary to skirt budgetary limitations on hiring permanent employees. Mot. to Reconsider at 3. Plaintiff neglects to cite to any part of the record where he previously made this argument.
Plaintiff argues that this Court erroneously concluded that he was not contending that his appointment was unlawful ab initio because this Court interpreted the oral argument representations of Plaintiffs counsel overly narrowly. Mot. to Reconsider at 2; Reply at 3. Specifically, the August 29 Order notes that:
Here, as Plaintiffs counsel confirmed at oral argument, Plaintiffs sole claim to permanent employee status is his allegation that he was misclassified because he functionally performed the duties of a permanent employee and because his duties conflicted with those permissible under temporary exempt status.
August 29 Order at 24. Plaintiff states that he “did not intend to isolate this fact as the sole basis for Plaintiffs due process claim arising out of a loss of property,” but he does not cite to the transcript of this hearing to support a different interpretation of counsel’s statements; it does not appear that the transcript of the hearing is on the record.
In addition to relying upon the representations of Plaintiffs counsel at the hearing, the August 29 Order cited to paragraphs 19-25 of the Fourth Amended Complaint to support the conclusion that Plaintiffs only argument for miselassification was based on out of class work duties. Relevant sections of those paragraphs include:
19. Plaintiff and the other five employees’ hiring and employment as a “temporary exempt” violated California law. Article Ten of the City Charter requires that a temporary exempt employee work exclusively on one capital improvement project. However, Plaintiff and otheremployees worked on all department tasks, many of which were not capital improvement projects, in violation of the Article....
20. Despite the fact that Plaintiff met every condition for permanent employment and was assigned tasks appropriate for a permanent employee and not a temporary and not a temporary exempt employee under the City Charter, he was forced to labor under the implicit threat of firing оr layoff because he was listed under the category of employees exempt from rights normally accorded permanent city employees.
FAC ¶¶ 19-20. In this section of the complaint, Plaintiff contends that he was “worked out of class from the first day of his employment,” that he “was working two and three steps out of class for most of his tenure,” and that he “continued to work above class until the day of his termination.” FAC ¶¶22, 23, 27. He alleges that Mr. Storrs “repeatedly acknowledged” that Plaintiff was “running the field and ordered and trained to do work at the managerial level,” but that Mr. Storrs refused to formally promote Plaintiff. FAC ¶ 24.
The order of August 29 fully considers Plaintiffs argument that he is entitled to the protections of a civil service employee because he performed out of class duties, and takes into account his allegations that he performed them throughout his employment. August 29 Order at 23-24. The order acknowledges his allegations that he worked out of class from the first day of his employment and that this was part of a larger illegal scheme to improperly hire temporary rather than permanent workers. Id. at 2-3. In the order, this Court held that “[although Plaintiff alleges he was wrongfully hired as a temporary employee and that he should have been a permanent employee, such an allegation does not vest him with a property interest in his employment.” Id. (emphasis added).
While this Court’s analysis on the question of Plaintiffs due process property claim considers the argument that he was misclassified from his first day of work, it does not discuss his allegation that he was improperly classified because of a larger illegal scheme to avoid budgetary restrictions on permanent employees. August 29 Order at 22-27. The order does consider these arguments in the analysis of one of his other claims of action. Id. at 17-20. The reason why the Court did not consider this argument in the section on the due process claim is because Plaintiff did not address that argument to that claim in his opposition to the motion to dismiss.
In his opposition to Defendant’s motion to dismiss, Plaintiff had argued that he was entitled to civil service protections because he had performed the duties of a permanеnt worker. PL’s Opp. to Mot. to Dismiss FAC at 11-12 (Docket No. 45). He did not, however argue that Defendants hired Plaintiff with the specific intention that he perform work reserved for permanent employees, nor did he emphasize the point that he performed misclassified work from the outset of his employment. Id. He stated simply that “despite that temporary exempt designation given to him, Plaintiff was actually performing the job of a permanent worker in violation of governing law.” Id. at 11. He argued that because he “performed the tasks and undertook the responsibilities of a permanent employee [he] is consequently a permanent employee for the purposes of California law.” Id. at 12. Nowhere in his argument on the due process claim did Plaintiff press the argument that he now raises in his motion for reconsideration.
As the August 29 order clearly and thoroughly addressed the factual and legal ar
Accordingly, Plaintiff has not shown grounds to permit him to file a motion for reconsideration under Local Rule 7-9(b)(3).
C. Motion for Reconsideration
Even if the Court were to consider Plaintiffs motion for reconsideration, it would deny that motion. A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters. v. Estate of Bishop,
Plaintiff alleges nothing in his motion for reconsideration to indicate that the facts and arguments he presents could not have been raised in his opposition to the motion to dismiss. Furthermore, it would seem that his arguments fail as a matter of law.
In his motion for reconsideration, Plaintiff does not mention any of the cases cited by this Court in the August 29 order except for McGillicuddy v. Civil Serv. Comm’n,
In McGillicuddy v. Civil Serv. Comm’n, the court found that the plaintiffs were entitled to be considered permanent civil service employees because the city charter then in effect did not permit the hiring of temporary employees to their positions.
Plaintiff makes no mention of Kreutzer v. City & County of San Francisco, the key case holding that employees may not challenge their temporary classification based solely on performing out of class duties.
The plaintiff in Kreutzer had been appointed under a provision in the San Francisco City Charter that provided that “[t]he following positions shall be exempt from competitive civil service selection, appointment and removal procedures, and the person serving in the position shall serve at the pleasure of the appointing authority: ... physicians and dentists serving in their professional capacity (except those physicians and dentists whose duties are significantly administrative or supervisory).”
The Kreutzer court explicitly rejected the plaintiffs attempt to distinguish previous cases where temporary employees had assumed out of class duties only after some period of employment. Id. at 315-16,
Like the plaintiff in Kreutzer, Plaintiff here was also appointed under § 10.104 of the San Francisco City Charter, though in his case, the relevant subsection reads:
The following positions shall be exempt from competitive civil service selection, appointment and removal procedures, and the person serving in the position shall serve at the pleasure of the appointing authority:
18. Appointments, which shall not exceed three years and shall not be renewable, for special projects and professional services with limited term funding, except that such positions may be filled through regular civil service procedures.
Plaintiff argues that he did in fact comply with the civil service hiring requirements, and perhaps in this sense his case may be distinguishable from Kreutzer. This fact, however, is not out of step with the temporary classification in which he was hired, which allows temporary employees to be hired through the regular civil service procedures. See August 29 Order
Plaintiff argues that his appointment under this provision was unlawful because he had duties beyond “special projects and professional services with limited term funding.” 5AC ¶ 19. In this respect, however, Plaintiffs situation is indistinguishable from that of the plaintiff in Kreutzer. In both cases, the employee is arguing to be re-classified based on the fact that from the beginning of his employment, he performed work outside the scope of the city сharter provision under which he was appointed. See Kreutzer,
Finally, nothing in Kreutzer suggests that the fact that the employee was assigned out-of-classification duties from the outset of the job or that such an assignment was part of a deliberate plan by the employer changes the legal analysis of the due process claim. In Kreutzer, the plaintiff worked out of his class from the first day of employment, and it seems obvious that this was known and intended by his employer. Yet Kreutzer rejected plaintiffs due process claim.
Plaintiff offers nothing to successfully establish that he is entitled to a result different from that of the plaintiff in Kreutzer. As such, his motion for reconsideration fails on the merits.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED. This order disposes of Docket No. 56. IT IS SO ORDERED.
Notes
. Paragraph 18 of Section 10.104 of the City Charter provides that positions are exempt from civil service if they are "[a]ppointments, which shall not exceed three years and shall not be renewable, for special projects and professional services with limited term funding, except that such positions may be filled through regular civil service procedures.” Defendants’ Request for Judicial Notice, Docket No. 42-1.
. Chapter 5 prohibits employers from, inter alia, forbidding or controlling employees’ political activities (§§ 1101, 1102), and preventing employees from reporting unlawful conduct to the government or retaliating against them for doing so (§ 1102.5).
. The Court may cite unpublished California appellate decisions as persuasive authority. See Employers Ins. of Wausau v. Granite State Ins. Co.,
. The Court also notes that while some courts have criticized Lloyd and declined to follow it on the grounds that it failed to address Campbell, see Dolis v. Bleum USA, Inc., No. C112713 TEH,
. The Court notes that the Clerk’s office terminated Wong, Moy, and Urbina as Defendants on the docket sheet on June 27, 2012, apparently because the FAC did not list them in the caption as Defendants. However, the parties' briefing and arguments at the hearing nonetheless treats each of them as Defendants. Thus, the Court addresses purported claims against them.
. Moreover, Plaintiff’s оpposition indicates that he may be able to amend his complaint to include additional allegations against Storrs based on his deposition testimony, at which Plaintiff states Storrs admitted he did not want to hire Plaintiff because of his claims against the City. Opp. at 6.
. Although Plaintiff lists only subsections (b) and (d)(2) in his FAC, subsection (d) incorporates subsection (c). In addition, the plain text of the statute requires both (d)(1) and (b)(2) in order to recover.
. It is also worth noting that a California Court of Appeal later came to a different conclusion as to the plaintiff's temporary employment status in a collateral case not affected by estoppel:
We believe the Ninth Circuit's construction of California law is wrong. The Ninth Circuit's opinion in the federal case was driven by its view that plaintiff “was a temporary because the [CJounty says she was.” The source of this problem was McGillicnddy, in which the city had tried to designate the employees' disputed status as "temporary," when no such classification existed in the authorizing legislation. The sole reason to claim that the employees were "temporary” was the city’s post hoc rationalization: i.e., because the city "said so.” The situation here is wholly different. As we have previously indicated, the constitutional power to provide for the number, compensation, tenure and appointment of county employees belongs solely to the Board of Supervisors. (Cal. Const., art. XI, § 1(b); see Hicks v. Board of Supervisors, supra,69 Cal.App.3d 228 ,138 Cal.Rptr. 101 .) Whether an employee can be classified differentially as a regular or as a permanent employee depends entirely on what the authorizing legislation provides.
Jenkins v. County of Riverside,
. Although Plaintiff's opposition cites to deposition testimony outside the pleadings, that testimony, even if included or described in the pleadings, similarly does not indicate public disclosure of reasons for Plaintiff’s dismissal.
. Plaintiff actually titles his motion a Motion for Leave to File Amended Claim Stating Facts to Support Due Process Claim Arising out of Property Interest. In his reply, however, he concedes that his motion is in fact a motion for reconsideration of the August 29, 2012 order dismissing this claim with prejudice, and thus subject to Local Rule 7-9 on motions for reconsideration.