Day v. Phoenix, City of, No. 2:2022cv00177 - Document 34 (D. Ariz. 2022)
Court Description: ORDER denying Defendant's 29 Motion to Dismiss. Signed by Senior Judge David G Campbell on 10/14/2022. (CLB)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ian Day, No. CV-22-00177-PHX-DGC Plaintiff, 10 11 v. 12 City of Phoenix, an Arizona municipality, 13 ORDER Defendant. 14 15 16 Plaintiff Ian Day asserts a free speech retaliation claim against the City of Phoenix 17 pursuant to 42 U.S.C. § 1983. Doc. 26. Defendant has filed a motion to dismiss under 18 Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 29. The motion is fully 19 briefed. Docs. 30, 32. The Court will deny Plaintiff’s request for oral argument because 20 it rules in his favor. 21 I. 22 23 Background. Plaintiff has filed three versions of his complaint. The operative version is his second amended complaint, filed on June 8, 2022. See Doc. 26. 24 In 2015, Plaintiff was hired by Defendant as a senior water quality inspector in the 25 environmental services division of the Defendant’s water department. Doc. 26 ¶ 26. The 26 following facts are taken from his second amended complaint. 27 In late 2018, while participating in an investigation of a business named Closed 28 Loop Recovery, Plaintiff discovered blatant violations of environmental law and learned 1 that his supervisors had disregarded the violations during prior inspections. Id. ¶¶ 29-36. 2 In March 2019, Plaintiff discovered unlawful storage of toxic waste at Far West Supply, 3 but he was pressured by his supervisors to shut down the inquiry and issue a false report. 4 When he refused, he received recriminations and accusations from his supervisors. Id. 5 ¶¶ 37-50. Over the next six months, Plaintiff continued to uncover issues within the water 6 department involving collusion, incompetence, or improper behavior by City employees 7 and called these to the attention of his supervisors, but he earned only criticism. Id. ¶¶ 49- 8 50, 53-58, 63-64-78, 81, 84-86, 90, 102-106. 9 When his supervisors failed to act, Plaintiff escalated his reports to higher City 10 officials, including City Manager Edward Zuercher, and outside of his chain of command 11 to the City’s Office of Environmental Programs and the City of Phoenix Integrity 12 Committee, of which Zuercher was a member and ultimate policymaker. Id. These reports 13 resulted in no change. 14 As a result, Plaintiff contacted the Arizona Department of Environmental Quality 15 in March 2019. Id. ¶ 37. Seven months later Plaintiff shared his concerns with an Arizona 16 State Senator’s office. Id. ¶ 110. In December 2019, he reported his concerns to the U.S. 17 Environmental Protection Agency (id. ¶ 114), and in May 2020 to the Arizona Attorney 18 General (id. ¶ 115). 19 Plaintiff claims that Defendant retaliated against him beginning in September 2019 20 for reporting to these outside individuals and entities. The retaliation included coaching 21 sessions, disciplinary “notices of inquiry,” negative performance reviews, suspension, a 22 cease-and-desist order directing him to end his communications, administrative leave, and 23 his ultimate termination in April 2021. Id. ¶¶ 79, 98, 107, 116-17, 120, 122, 136-39, 150. 24 II. Legal Standard. 25 Under Rule 12(b)(6), the well-pled factual allegations of the complaint are taken as 26 true and construed in the light most favorable to Plaintiff. See Cousins v. Lockyer, 568 27 F.3d 1063, 1067 (9th Cir. 2009). A complaint that sets forth a cognizable legal theory will 28 survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to -2- 1 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 2 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 3 plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 5 Twombly, 550 U.S. at 556). Although the plausibility standard requires “more than a sheer 6 possibility that a defendant has acted unlawfully[,]” it “is not akin to a ‘probability 7 requirement[.]’” Id. 8 III. Discussion. 9 Municipalities and local government units are considered persons under § 1983 and 10 may be liable for causing a constitutional deprivation. Monell v. Dep’t of Soc. Servs. of 11 City of New York, 436 U.S. 658, 691 (1978); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 12 1185 (9th Cir. 2006). But a municipality “cannot be held liable solely because it employs 13 a tortfeasor – or, in other words, a municipality cannot be held liable under [§ 1983] under 14 a respondeat superior theory.” Monell, 436 U.S. at 691; see Ulrich v. City & Cnty. of San 15 Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (same). 16 A. 17 Plaintiff claims Defendant deprived him of his First Amendment right to engage in 18 protected speech. Defendant argues, “[a]s a preliminary matter,” that Plaintiff has not 19 alleged a deprivation of his First Amendment rights because he has not provided sufficient 20 facts to support his claim that multiple city employees conspired against him. Docs. 29 at 21 4-5; 32 at 2. This argument misses the mark. To state a First Amendment retaliation claim 22 against a government employer, a complaint must show that (1) the employee engaged in 23 constitutionally protected speech, (2) the employer took an adverse employment action, 24 and (3) the speech was the motivating factor for the adverse employment action. Marable 25 v. Nitchman, 511 F.3d 924, 929 (9th Cir. 2007). Defendant does not dispute that Plaintiff’s 26 reports were constitutionally protected or that it took disciplinary action against him. Deprivation of a Constitutional Right. 27 Defendant does contend that Plaintiff fails to allege any connection between his 28 protected activities and the discipline. Doc. 29 at ¶¶ 12-13; 32 at 3-4, 9-10. A complaint -3- 1 may sufficiently plead causation by showing “proximity in time between the protected 2 speech and the alleged retaliation.” Ulrich, 308 F.3d at 980. Plaintiff alleges that 3 Defendant’s retaliatory actions started three months after his first instance of protected 4 speech and continued as he made additional complaints. Doc. 26 ¶¶ 51, 107, 117, 129, 5 132. Temporal proximity between protected conduct and adverse actions can sufficiently 6 suggest that a plaintiff’s speech motivated adverse employment actions. See Coszalter v. 7 City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003) (finding three to eight months “easily 8 within a time range to support an inference of retaliation and declining to adopt either a 9 “per se too long” or “per se short enough” rule); Allen v. Iranon, 283 F.3d 1070, 1078 (9th 10 Cir. 2002 (“[A]n eleven-month gap in time is within the range that has been found to 11 support an inference that an employment decision was retaliatory.”); Peyton v. Smith, No. 12 5:19-CV-05871-EJD, 2022 WL 1215193 (N.D. Cal. Apr. 25, 2022) (finding that the 13 plaintiff adequately pled a causal connection when the alleged adverse employment action 14 occurred in the two months following the protected speech). Plaintiff has adequately pled 15 a causal link between his protected conduct and his discipline.1 16 B. 17 Among other grounds, a municipality may be liable under § 1983 when a final 18 policymaker of the municipality knowingly ratifies retaliatory actions taken by 19 subordinates. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012); Menotti v. 20 City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Plaintiff alleges that City Manager 21 Edward Zuercher held final policymaking authority for Defendant and that he knowingly 22 ratified the disciplinary actions of others. Defendant does not dispute that Zuercher was a 23 final policymaker. Plaintiff alleges (1) Zuercher was a member of Defendant’s Integrity 24 Committee (Doc. 26 ¶ 49) to which Plaintiff brought his allegations of misconduct (id. 25 ¶¶ 49, 57-58, 64, 73, 86); (2) the Committee improperly closed Plaintiff’s complaint, 26 “outed him” to his supervisors (i.e., reported to them that he had made the complaints), and 27 1 28 Final Policymaker’s Ratification. Defendant’s reply brief places considerable emphasis on the fact that Plaintiff asserted the same adverse events in a Title VII claim filed administratively after his termination, that is now time-barred. Doc. 32 at 3-4. But Defendant never explains why the adverse events cannot give rise both to Title VII discrimination and § 1983 retaliation claims. -4- 1 assisted the very employees whom Plaintiff had accused of improper retaliation against 2 him (id. ¶¶ 60-61, 92-93, 109, 113, 148); (3) Plaintiff reached out directly to Zuercher and 3 asked him to intervene in the situation, advising Zuercher that he was the whistleblower 4 who had reported to the State Senate, that his misconduct allegations had not been 5 adequately investigated, and that he was suffering retaliation by his supervisors as a result 6 (id. ¶ 130); (4) Zuercher assured Plaintiff that he would have an independent attorney 7 investigate Plaintiff’s claims (id. ¶ 131); and (5) the day after Plaintiff was terminated he 8 again asked Zuercher to intervene, but Zuercher did not respond (id. ¶ 153). 9 These allegations, taken as true and construed in Plaintiff’s favor, show that 10 Zuercher personally knew of Plaintiff’s protected conduct and the discipline imposed on 11 him; participated in the Committee that failed to protect Plaintiff’s constitutional rights; 12 either reviewed an independent investigation that uncovered these facts or failed to institute 13 the investigation as he promised Plaintiff; and, with all of this knowledge, knowingly 14 permitted the retaliatory discipline to go forward. These facts sufficiently state a claim 15 against Defendant based on its final policymaker’s ratification of the violation of Plaintiff’s 16 constitutional rights. 17 To establish liability by ratification, Plaintiff must show that the policymaker 18 approved a subordinate’s decision and the basis for it. City of St. Louis v. Praprotnik, 485 19 U.S. 112, 127 (1988). “The policymaker must have knowledge of the constitutional 20 violation and actually approve of it.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). 21 Ratification may be shown through the policymaker’s active role in the constitutional 22 violation. 23 participated in the disciplin[ing]” of a plaintiff by requesting all related documents, acting 24 as liaison with outside counsel, and collaborating with others on the specific sanctions); 25 Hammond v. Cnty. of Madera, 859 F.2d 797, 803 (9th Cir. 1988), abrogated on other 26 grounds by Wood v. Ostrander, 851 F.2d 1212 (9th Cir. 1988) (finding ratification because 27 a municipal board “actively participated in the deprivation of [the plaintiffs’] property 28 rights” by accepting and approving related documents). Plaintiff has adequately alleged Id. (finding ratification because an assistant superintendent “actively -5- 1 that Zuercher was actively involved during his discipline. And as noted earlier, the 2 temporal proximity of the discipline to Plaintiff’s protected conduct is sufficient to show 3 causation. Facts developed during discovery may cast a different light on these allegations, 4 but for now they are sufficient for the Court “to draw the reasonable inference that the 5 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 6 Defendant relies on Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992), to 7 argue that “the mere fact that the City Manager did not overrule the discipline cannot form 8 the basis of municipal liability under section 1983.” Doc. 29 ¶ 10-11. But Gillette 9 concerned a final policymaker’s “overrul[ing] the unconstitutional discretionary acts of 10 subordinates,” not the policymaker’s active role in the decision. 979 F.2d at 1348. 11 Plaintiff alleges other grounds for Defendant’s liability and the parties make other 12 argument in their briefs, but the foregoing discussion is sufficient to show that Plaintiff’s 13 second amended complaint must survive Defendant’s motion to dismiss. The Court will 14 address Plaintiff’s claims in more detail if Defendant moves for summary judgment at the 15 close of discovery. 16 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 29) is denied. 17 Dated this 14th day of October, 2022. 18 19 20 21 22 23 24 25 26 27 28 -6-
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