Kavika Taitai et al v. City of Port Hueneme et al, No. 2:2015cv04106 - Document 27 (C.D. Cal. 2015)
Court Description: ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS 15 AND DENYING DEFENDANTS' MOTION TO STRIKE 16 by Judge Otis D. Wright, II. For the reasons discussed above, the Court (1) GRANTS Defendants' Motion to Dismiss with respect t o Plaintiffs' § 1983 claims without leave to amend 15 , (2) sua sponte dismisses Plaintiffs' remaining state law claims without prejudice pursuant to 28 U.S.C. § 1367, and (3) DENIES as moot and without prejudice Defendants' Motion to Strike 16 .IT IS SO ORDERED. ( MD JS-6. Case Terminated ) (lom)
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Kavika Taitai et al v. City of Port Hueneme et al Doc. 27 O JS-6 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 Plaintiffs, 12 13 Case 2:15-cv-04106-ODW (AJWx) KAVIKA TAITAI; ERIK BEAR, v. ORDER GRANTING IN PART 14 CITY OF PORT HUENEME; CYNTHIA DEFENDANTS’ MOTION TO 15 HAAS; CARMEN NICHOLS; and DOES DISMISS [15] AND DENYING 16 1–50, inclusive, DEFENDANTS’ MOTION TO 17 Defendants. STRIKE [16] 18 19 I. INTRODUCTION 20 This is an employment retaliation case filed by Plaintiffs Kavika Taitai and Erik 21 Bear against Defendants City of Port Hueneme (“City”), Cynthia Haas, and Carmen 22 Nichols. Plaintiffs allege that Defendants retaliated against them for applying for and 23 receiving unemployment benefits. Defendants move to dismiss Plaintiffs’ Complaint 24 for failure to state a claim and move to strike various allegations in the Complaint. 25 For the reasons discussed below, the Court GRANTS Defendants’ Motion to Dismiss 26 with respect to Plaintiffs’ claims under 42 U.S.C. § 1983, sua sponte dismisses 27 Plaintiffs’ remaining state law claims pursuant to 28 U.S.C. § 1367, and DENIES 28 Dockets.Justia.com 1 Defendants’ Motion to Strike as moot. (ECF Nos. 15, 16.)1 II. 2 FACTUAL BACKGROUND 3 Plaintiffs Taitai and Bear have been employed by the City as lifeguards for 4 fourteen years and thirty years, respectively. (Compl. ¶¶ 23, 24.) The City hires most 5 lifeguards on a seasonal basis, and the “lifeguard season” generally runs from 6 approximately May through September of each year. 7 offseason, lifeguards that are otherwise employed during the summer months often 8 collect unemployment benefits. (Id. ¶ 30.) However, during the 2013–14 offseason, 9 Defendants Haas and Nichols—who were the City Manager and Deputy City 10 Manager, respectively—allegedly “began a concerted and sustained campaign” of 11 harassment, discrimination, and retaliation against lifeguards who had sought or were 12 likely to seek unemployment benefits. (Id. ¶¶ 15, 16, 32.) 13 A. (Id. ¶ 25.) During the Plaintiff Taitai 14 Following the 2013 season, Plaintiff Taitai sought and obtained information 15 from the California Employment Development Department (“EDD”) concerning his 16 eligibility for unemployment benefits, and also applied for and received such benefits. 17 (Id. ¶ 31.) In April 2014, Taitai applied for rehire for the 2014 lifeguard season. (Id. 18 ¶ 36.) 19 including his concern that he might not be rehired because he obtained unemployment 20 benefits during the recent offseason. (Id.) The employee declined to discuss if or how 21 that might affect his application. 22 information regarding the City’s “actions and plans in relation to the upcoming 2014 23 season,” but was rebuffed. (Id. ¶ 37.) Shortly thereafter, several other lifeguards told 24 Taitai that they heard that the City “resented” the inquiries he made during the 25 meeting. (Id.) 28 (Id.) Taitai nevertheless pressed for more Approximately one month later, Taitai received a letter rejecting his 26 27 Soon after, Taitai met with a City employee to discuss his application, 1 After considering the papers filed in support of and in opposition to the Motion, the Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); L.R. 7-15. 2 1 application. (Id. ¶¶ 38.) Taitai spoke directly with Defendant Nichols and asked why 2 his application was rejected. (Id. ¶ 39.) Defendant Nichols allegedly admitted that his 3 application was rejected because he received unemployment benefits during the most 4 recent offseason and prior offseasons. (Id.) 5 B. Plaintiff Bear 6 Like Taitai, Plaintiff Bear sought and obtained information from the EDD 7 concerning his eligibility for unemployment benefits, and also applied for and 8 received such benefits during the 2013–14 offseason. (Id. ¶ 31.) In the months 9 leading up to the 2014 season, Plaintiff Bear also met with Defendant Nichols. (Id. 10 ¶ 41.) Nichols allegedly complained to Bear about the cost to the City of lifeguards 11 collecting unemployment benefits during the offseason, and threatened not to rehire 12 Bear unless he agreed not to seek such benefits in the future. (Id. ¶¶ 41–42.) Bear 13 reluctantly agreed. (Id. ¶ 43.) 14 C. Complaint 15 On June 1, 2015, Plaintiffs filed their Complaint, which asserts the following 16 claims: (1) violation of the First Amendment under 42 U.S.C. § 1983; (2) violation of 17 California Labor Code section 98.6; (3) violation of California Labor Code section 18 1102.5; (4) intentional interference with prospective economic advantage; (5) 19 negligent interference with prospective economic advantage; and (6) declaratory 20 relief. 21 Complaint under Rule 12(b)(6), and moved to strike portions of the Complaint under 22 Rule 12(f). 23 Defendants timely replied. (ECF Nos. 20, 22, 23, 24.) Those Motions are now before 24 the Court for consideration. 25 (ECF No. 1.) On October 12, 2015, Defendants moved to dismiss the (ECF Nos. 15, 16.) III. Plaintiffs timely opposed both Motions, and LEGAL STANDARD 26 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 27 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 28 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To 3 1 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 2 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 3 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 4 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009). 8 The determination whether a complaint satisfies the plausibility standard is a 9 “context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. at 679. A court is generally limited to the 11 pleadings and must construe all “factual allegations set forth in the complaint . . . as 12 true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 F.3d 13 668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, 14 unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden 15 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 16 As a general rule, a court should freely give leave to amend a complaint that has 17 been dismissed, even if not requested by the plaintiff. See Fed. R. Civ. P. 15(a); 18 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may 19 deny leave to amend when it “determines that the allegation of other facts consistent 20 with the challenged pleading could not possibly cure the deficiency.” Schreiber 21 Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). IV. 22 23 A. DISCUSSION First Amendment Claims 24 Defendants argue that Plaintiffs fail to state a First Amendment retaliation claim 25 because their speech was not a matter of public concern. (Mot. at 6–9.) Plaintiffs 26 counter that because “the right to seek and obtain statutorily mandated unemployment 27 benefits . . . free from retaliation and discrimination[] is a matter of public concern,” 28 they have adequately stated a claim under the First Amendment. (Opp’n at 6–8.) 4 1 Plaintiffs are incorrect. 2 “It is clearly established that a State may not discharge an employee on a basis 3 that infringes that employee’s constitutionally protected interest in freedom of 4 speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987). However, “while the First 5 Amendment invests public employees with certain rights, it does not empower them to 6 ‘constitutionalize the employee grievance.’” Garcetti v. Ceballos, 547 U.S. 410, 420 7 (2006) (citation omitted). Thus, an employee’s speech qualifies for protection only if 8 it “‘constitut[es] speech on a matter of public concern.’” Rankin, 483 U.S. at 384 9 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). There is no “precise 10 definition” of what constitutes a matter of “public concern.” Desrochers v. City of 11 San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009). “It is clear, however, that the 12 essential question is whether the speech addressed matters of ‘public’ as opposed to 13 ‘personal’ interest.” Id. Courts evaluate the nature of the speech by looking at “‘the 14 content, form, and context of a given statement, as revealed by the whole record.’” 15 Rankin, 483 U.S. at 384–85 (citation omitted); see also Desrochers, 572 F.3d at 709 16 (noting that the Ninth Circuit “relie[s] on a generalized analysis of the nature of the 17 speech” under the three Connick/Rankin factors). “The plaintiffs bear the burden of 18 showing that their speech addressed an issue of public concern.” Desrochers, 572 19 F.3d at 709 (brackets and internal quotation marks omitted). 20 The content of a statement reflects a matter of public concern when the speech 21 involves “‘issues about which information is needed or appropriate to enable the 22 members of society to make informed decisions about the operation of their 23 government.’” Id. at 710 (citations omitted). “On the other hand, speech that deals 24 with ‘individual personnel disputes and grievances’ and that would be of ‘no 25 relevance to the public’s evaluation of the performance of governmental agencies’ is 26 generally not of ‘public concern.’” Id. (citations omitted). The form of a statement 27 reflects a matter of public concern when the speech is made in a public forum as 28 opposed to a private conversation. Id. at 714. Finally, the context of a statement 5 1 reflects a matter of public concern when the speech is motivated by a desire to “‘bring 2 to light actual or potential wrongdoing or breach of public trust.’” Id. at 715 (quoting 3 Connick, 418 U.S. at 148). Content is “the greatest single factor in the Connick 4 inquiry.” Id. at 710. However, “[i]n a close case, when the subject matter of a 5 statement is only marginally related to issues of public concern, the fact that it was 6 made because of a grudge or other private interest or to co-workers rather than to the 7 press may lead the court to conclude that the statement does not substantially involve 8 a matter of public concern.” Johnson v. Multnomah Cnty., Or., 48 F.3d 420, 425 (9th 9 Cir. 1995). 10 1. Plaintiff Taitai 11 Plaintiff Taitai alleges that he was not rehired for the 2014 season because: (1) 12 he requested information from the EDD regarding his eligibility for unemployment 13 benefits; (2) he applied for unemployment benefits; (3) he questioned a City employee 14 about the impact his receipt of benefits would have on his rehire application; and (4) 15 he questioned Defendant Nichols regarding the reason his application was denied. 16 (Compl. ¶ 58.) Plaintiffs contend that these acts constitute speech on a matter of 17 public concern, and thus support a First Amendment retaliation claim. The Court 18 addresses each basis in turn. 19 i. Requesting Information on Eligibility for Benefits 20 It is readily apparent that requesting information regarding one’s personal 21 eligibility for unemployment benefits does not constitute speech on a matter of public 22 concern. Plaintiffs do not identify what specific statements (if any) were made during 23 these “requests,” but it seems beyond reasonable dispute that any speech germane to 24 such a request would not contain information that would enable the public to evaluate 25 general government operations. As to the form of the speech, there is no suggestion 26 that the requests were made in a public forum; indeed, the Court cannot even conceive 27 how such a request could be made in a public manner. And as to the context of the 28 speech, there is no indication that the requests were made for the purpose of bringing 6 1 to light any wrongdoing by the City; rather, the purpose was to determine Taitai’s own 2 eligibility for unemployment benefits for the 2013–14 offseason. The Court therefore 3 does not hesitate to conclude that this “speech” does not involve a matter of public 4 concern. 5 ii. Applying for Unemployment Benefits 6 For much the same reasons, Taitai’s application for unemployment benefits is 7 not speech on a matter of public concern. Disclosing personal information to the EDD 8 on a private form for the purpose of obtaining personal unemployment benefits does 9 not enhance public discourse on government affairs, and thus this “speech” is not 10 11 entitled to First Amendment protection. iii. Conversation with the City Employee 12 While Taitai’s conversation with the City employee regarding his rehire 13 application is a closer call, the Court still finds that this speech does not involve a 14 matter of public concern. 15 The content of the speech could be reasonably interpreted as affecting issues of 16 both public and private concern. On the one hand, discussing the impact of Taitai’s 17 personal receipt of unemployment benefits on his personal application for rehire 18 would appear to be a matter of purely personal concern that does not warrant 19 protection. However, the topics Taitai discussed (or attempted to discuss) during the 20 conversation could have an impact beyond his personal application. A substantial 21 number of City lifeguards appear to go through this same rehiring cycle each year, and 22 it is common (according to the Complaint) for most or all such lifeguards to apply for 23 and receive unemployment benefits during the offseason. If lifeguards are indeed 24 entitled to receive unemployment benefits during the offseason without being 25 punished for doing so, the answers sought by Taitai as to his personal application 26 potentially bear on the public’s evaluation of the City’s general hiring practices. See 27 McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (holding that the fact 28 that the speech concerns “the rate of compensation for members of the city’s police 7 1 force and, more generally, with the working relationship between the police union and 2 elected city officials” weighs in favor of a finding that the speech involves a matter of 3 public concern). 4 information on the City’s general hiring practices for the 2014 lifeguard season. Id. Much the same can be said about his subsequent requests for 5 That said, the Court is wary of considering the hypothetical public impact of an 6 employee grievance. In some sense all employee grievances potentially implicate an 7 agency’s general labor practices, but not every (or even most) such grievances are 8 matters of public concern. 9 application actually became a lightning rod for broader public dissatisfaction with the 10 City’s hiring practices. 2 Thus, the Court finds that the content factor is either neutral 11 or points cautiously to the conclusion that the speech was one of public concern. Here, there is no suggestion that Taitai’s personal 12 The form of the speech, however, weighs decidedly against such a conclusion. 13 “[A] limited audience weigh[s] against [plaintiff’s] claim of protected speech.” Roe v. 14 City & Cnty. of S.F., 109 F.3d 578, 585 (9th Cir. 1997). In Turner v. City & Cnty. of 15 S.F., 788 F.3d 1206 (9th Cir. 2015), the Ninth Circuit held that this factor weighed 16 against the claim of protected speech where the plaintiff “voiced his grievances 17 internally—at union meetings, to his supervisor, and to Human Resources—and they 18 were specifically related to the conditions of his employment. [Plaintiff] could have 19 pursued a complaint with the San Francisco Civil Service Commission, gone to the 20 Board of Supervisors for the City and County of San Francisco, gone to the press, or 21 otherwise attempted to air his concerns in a public forum [but h]e did not do so.” Id. 22 at 1211; see also Desrochers, 572 F.3d at 714–15. Here, Taitai engaged in a one-on- 23 one conversation with a City employee, which is an even more private setting than in 24 Turner. 3 Taitai’s discussion of the conversation with other lifeguards also does not 25 26 27 28 2 The alleged discussion of the City’s hiring practices at the city council meetings did not appear to stem from (or otherwise involve) Taitai’s personal application. (Compl. ¶¶ 47–51.) 3 Every case cited by Plaintiffs involves speech made in a significantly more public forum that Taitai’s speech. See Ellins v. City of Sierra Madre, 710 F.3d 1049, 1053 (9th Cir. 2013) (plaintiff led a no-confidence vote of the police officers’ union against the Chief of Police); McKinley, 705 F.2d at 1112 (plaintiff’s speech occurred at two meetings of the city council and on television); Rode 8 1 reach the level of publicity required by Turner, and those discussions were at any rate 2 social conversations among friends rather than an effort by Taitai to disseminate the 3 conversation to the general public. 4 Finally, the context of the speech also weighs against the claim of protected 5 speech. Even Plaintiffs concede that the discussion was motivated by Taitai’s desire 6 to gather information concerning his personal application, and was not done to seek 7 information on the City’s general hiring practices for the purpose of disseminating the 8 information to the public. (See Compl. ¶ 36 (“Plaintiff Taitai met with City 9 administrative services coordinator, Cammeo Jupp, and inquired whether there were 10 any issues associated with his resuming work, including because he had sought and 11 received unemployment benefits following the 2013 lifeguard season.”).) 12 The Court finds that the foregoing factors tip against a finding that the speech 13 was a matter of public concern. The Ninth Circuit has repeatedly held that where the 14 content of the speech is only marginally related to issues of public concern but the 15 form and context make clear that the statements were motivated by private concerns, 16 no First Amendment protection will lie. See Turner, 788 F.3d at 1211; Johnson, 48 17 F.3d at 425. Here, while Taitai questioned the City employee on several topics that 18 could possibly have an impact on the public’s perception of the City’s unscrupulous 19 hiring practices, it is clear that the conversation was motivated solely by Taitai’s 20 interest in his personal rehire application. This is insufficient to make out a First 21 Amendment retaliation claim. 22 23 iv. Conversation with Defendant Nichols Taitai’s conversation with Defendant Nichols cannot form the basis of a First 24 Amendment retaliation claim for an entirely different reason. The allegedly 25 retaliatory conduct—i.e., the denial of Taitai’s application for rehire—occurred prior 26 27 28 v. Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988) (plaintiff participated in an interview with a news reporter). 9 1 to this conversation, and thus could not have been caused by any statements made by 2 Taitai during the conversation. See Desrochers, 572 F.3d at 709 (plaintiff must show 3 that the “protected speech was a substantial or motivating factor in the adverse 4 employment action”). 5 2. Plaintiff Bear 6 Plaintiff Bear similarly alleges that he was forced to forgo unemployment 7 benefits that he was otherwise entitled to receive because: (1) he requested 8 information from the EDD regarding his eligibility for unemployment benefits; (2) he 9 applied for unemployment benefits; and (3) he agreed during his conversation with 10 Defendant Nichols not to apply for unemployment benefits in the upcoming 11 offseason. (Compl. ¶ 58.) The Court also finds none of these bases adequate to 12 support a First Amendment retaliation claim. 13 For the reasons discussed above, neither requesting information regarding 14 unemployment benefits nor applying for such benefits constitutes protected employee 15 speech. In addition, Bear’s conversation with Nichols is not causally connected to the 16 complained-of retaliation. The allegedly retaliatory conduct—i.e., Nichols requesting 17 that Bear forgo applying for unemployment benefits during the offseason—precedes 18 Bear’s speech—i.e., Bear’s agreeing to that request. 19 precedes the speech, the speech cannot be the motivating factor behind the retaliation. 20 See Desrochers, 572 F.3d at 709. Bear’s First Amendment retaliation claim thus fails. If the retaliatory conduct 21 3. 22 None of the theories alleged could be amended to state a valid claim for First 23 Amendment retaliation. Requesting information regarding unemployment benefits 24 and applying for such benefits is clearly not a matter of public concern, and the Court 25 does not see how any new allegations could revive this theory of liability. Moreover, 26 Taitai and Bear’s respective conversations with Nichols are not causally connected to 27 the complained-of retaliation, and no new allegations could change this. 28 Leave to Amend Whether Taitai’s theory of retaliation based on his conversation with the City 10 1 employee could be amended to state a claim is again a close call, but the Court finds 2 that no new and consistent facts could be alleged to make this a plausible theory of 3 recovery. See Schreiber Distrib. Co., 806 F.2d at 1401. Plaintiffs concede that 4 Taitai’s motivation in engaging in this conversation was to shed light on his personal 5 employment application. (Compl. ¶ 36.) Plaintiffs also concede that this was a 6 private, one-on-one conversation with a City employee, and thus not made in anything 7 approaching a public forum. (Id.) These facts are determinative of the private (versus 8 public) nature of the speech, and thus amendment cannot save Taitai’s claim. 9 B. State Law Claims 10 Plaintiffs’ § 1983 claims are the only ones over which the Court had original 11 jurisdiction.4 “The district courts may decline to exercise supplemental jurisdiction 12 . . . if . . . the district court has dismissed all claims over which it has original 13 jurisdiction.” 28 U.S.C. § 1367(c)(3). Having dismissed the § 1983 claims without 14 leave to amend, the Court exercises its discretion to dismiss Plaintiffs’ state law 15 claims without prejudice. See San Pedro Hotel Co. v. City of L.A., 159 F.3d 470, 478 16 (9th Cir. 1998). 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 4 27 28 To the extent the claim for declaratory relief is brought under the Declaratory Judgment Act, 28 U.S.C. § 2201, it is axiomatic that the Act “does not itself confer federal subject matter jurisdiction.” Fid. & Cas. Co. v. Reserve Ins. Co., 596 F.2d 914, 916 (9th Cir. 1979). 11 V. 1 CONCLUSION 2 For the reasons discussed above, the Court (1) GRANTS Defendants’ Motion 3 to Dismiss with respect to Plaintiffs’ § 1983 claims without leave to amend (ECF 4 No. 15), (2) sua sponte dismisses Plaintiffs’ remaining state law claims without 5 prejudice pursuant to 28 U.S.C. § 1367, and (3) DENIES as moot and without 6 prejudice Defendants’ Motion to Strike (ECF No. 16). The Clerk of the Court shall 7 close the case. 8 9 IT IS SO ORDERED. 10 11 December 7, 2015 12 13 14 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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