The Molina Appeal as Presented to the Courts
Appeal Number: 01-57096
Case Number: 00-02291 CAS (SHx)
IN THE UNITED STATES COURT OF APPEALS
THE NINTH CIRCUIT
PHILLIP S. MOLINA, an individual
Plaintiff and Appellant,
vs.
CITY OF OXNARD; EDMUND SOTELO; and DOES* 1-20,
* ( "DOES" are so called as in John Doe - said named or other named folks )
Defendants and Appellee.
__________________________________________________________________
Appeal from the United States District Court, Central District of California
Honorable Christina A. Snyder, Judge _________________________________________________________________
APPELLANT'S REPLY
__________________________________________________________________
INTRODUCTION
The City of Oxnard and Edmund Sotelo in their Response fail to adequately address the issues before this Court. Rather, the emphasis that the City and Sotelo place on evidence they dispute, is persuasive of Mr. Molina's contention that the District Court impermissibly determined genuine issues of material fact as to whether Oxnard and Sotelo terminated Mr. Molina in retaliation for protected speech. The City and Sotelo, like the District Court, acknowledge some authority that a public employer may not discharge an employee in retaliation for the employee's exercise of First Amendment rights. But the City and Sotelo, like the District Court, fail to recognize that the instant case presented genuine issues of material fact. Accordingly, the City and Sotelo utterly fail to rebut Mr. Molina's contention that the District Court erroneously resolved such issues.
The argument of Oxnard and Sotelo is unconvincing when they contend that:
1. Although Mr. Molina reported to the City and to the media that: the city's golf course lost over $350,000 a year, the existing contract was a sweetheart deal, and offered an alternative to cure the deficit, such statements were not protected because:
Mr. Molina was speaking as an employee.
The statements did not involve any impropriety or substantial operation of the city. (OB, 27.)
The threats and gag orders by certain Molina's employers, with links to the favored developers, weren't sufficiently harassing to be considered chilling. (OB, 29,31.)
Sotelo believed the statements were potentially misleading. (OB, 30.)
2. Sotelo's belief that Molina's statements were disruptive was sufficient to "outweigh" Molina's First Amendment rights, notwithstanding the absence of any evidence that such belief was reasonable. (OB, 32.)
3. Molina's evidence did not raise triable issues that Sotelo's reasons for terminating Molina were pretextual notwithstanding: (OB, 35-39, Note 22.)
Sotelo's decision to terminate arose from his belief that Molina's figures were untrustworthy, where Molina's figures were based upon the City's factually undisputed audit.
Oxnard's councilmen, Zaragoza and Lopez, disputed Sotelo's perception Molina fractionalized the city council.
Capulong and other employees disputed Sotelo's perception that Molina was unprofessional.
Zaragoza and Lopez disputed Sotelo's complaints of Molina's performance.
Sotelo's perceptions were influenced by favored vendors and developers.
The record shows the absence of any investigation into charges against Molina, and the absence of documentation of malfeasance.
In making the above arguments, the City and Sotelo repeat the flawed analysis of the District Court concerning when speech is protected, ignore or misrepresent the record before the District Court, and utterly fail to recognize that the above contentions raise genuine issues of material fact.
Although the parties all cite to the same controlling precedents, the City and Sotelo fail to explain how under these holdings applied to the evidence in the record:
1.Discussions of a publicly owned golf course generating 2.7 million in revenue, 3 million in expenditures, subsidized by Oxnard's taxpayers should not be deemed "of public concern".
2.A finance director's opinion concerning the health of a project costing the taxpayers over $350,000 annually shouldn't be deemed protected when he presents the information to the City's elected council and to the media.
3.Why threats of dismissal should not be considered a potent means of chilling speech.
4.Why Sotelo's beliefs that Molina was disruptive should not be examined for reasonableness.
5.Why Sotelo's perceptions of Molina's malfeasance, and subjective reasons for termination, should not be tested by a jury.
In sum, Oxnard and Sotelo utterly fail to rebut Mr. Molina's contention that the District Court impermissibly restricted the conditions for when a public employee's speech is protected, erroneously resolved disputed fact issues, and failed to see that the instant case presented genuine issues of material fact.
Whether Sotelo had permissible reasons for terminating Mr. Molina was not the issue to be resolved by the District Court on a motion for summary judgment, but rather, whether there was evidence for the jury to consider if Sotelo terminated Molina for impermissible reasons. Given that the most disputed evidence presented to the District Court concerned Sotelo's true motivation for terminating Molina, and whether Sotelo's purported reasons were pretexual, the District Court erred in not allowing the jury to be the final arbiter of the facts.
On a final note, the law is clear that Mr. Molina's claim for emotional distress is not pre-empted by the Worker's Compensation Act where the gravaman of Oxnard's wrong is a First Amendment violation, and the District Court cannot sua sponte dismiss Molina's cause of action for intentional infliction of emotional distress when the issue was never raised in the pleadings. Whether Sotelo is immunized for his actions or terminated Molina with malice are issues for the jury to decide, as all issues concerning motivation and intent.
RESPONSE TO APPELLEE'S STATEMENT OF FACTS
Appellees' factual summary distorts the record presented before the District Court, and fails to acknowledge the factual findings made by the Court.
Oxnard and Sotelo misrepresent the record when they contend that:
1.It is undisputed that the golf course for the City was operating at a profit. (OB,1.)
2.Mr. Molina misrepresented the finances on the existing golf course. (OB, 2-3.)
3.Mr. Molina's budget figures were inaccurate and it was Molina's bad math and bad manners that resulted in his termination. (OB, 6-11.)
4.There is no evidence that Mr. Molina was gagged, or intimidated. (OB, 2.)
5.There is no evidence to support Mr. Molina's contention that these purported reasons for terminating Mr. Molina were pretextual. (OB,3;11-21.)
Yet in their own references to the record, it is clear that there are genuine issues in dispute concerning the above contentions.
Concerning the allegations that Mr. Molina misrepresented the finances on the golf course:
Firstly, according to the city's own audited figures, as Mr. Molina explained to a newspaper reporter, who printed the subject article in the Oxnard Star on August 18, 1999, the City was losing money on the course (River Ridge I). Mr. Molina's report showed that in 1998 the course had generated $2.7 million in revenue, $3 million in expenditures, including $947,000 in interest on the construction bonds, resulting in a yearly municipal subsidy of $360,597. (MSJ Order, 8; MER, 180; P's SGI 93-94.)
Secondly, although the City and Sotelo contend that Sotelo had a permissible reason for gagging Mr. Molina, because Mr. Molina purportedly misrepresented the budget on the golf course, they concede in their factual statement, that Sotelo was only concerned that Molina's statement to the press had the potential for misrepresentation. The City and Sotelo then contend that Sotelo perceived Mr. Molina's statement could be misleading because "it did not explain that if the interest on the debt was subtracted there was a profit." (OB1, 17, 18.)
Yet, as the Appellees concede by referring to the statement actually made by Mr. Molina, he did just that. As quoted by Appellees, Mr. Molina advised the Oxnard Star that "Without the debt, the golf course would have posted a $587,000 profit."
The evidence also shows that Oxnard never disputed Mr. Molina's actual numbers. One of Oxnard's city councilman and Mayor pro tem, Zaragoza testified that he saw the column in the Oxnard Star, did not disagree with Molina's numbers, and the news article did not cause him concern. (OER, p 431.) Further, he did not hear anyone else complain that the figures quoted were inaccurate and conceded that because of the debt loaded onto the golf course it was not making any money (OER, p 431.) "It's a very complex financing that we have there for the golf course&ldots;because of the dollars that have to be paid for on interest on the debt,&ldots;it doesn't make any money. (OER, p 431.) Zaragoza also testified that Mr. Molina called him to ask what he should tell the reporter who was asking for specific numbers and Zaragosa "told him to tell the truth"; and as far as he is concerned Mr. Molina "told the truth". (OER, p 432.)
It was Oxnard's paid consultant Mike Harrison, CPA who reported that the reason for the poor revenue on the golf course, went beyond the debt issue, and had to do with the course's operating contract which guaranteed the private operators a profit while placing all of the risk of loss on the City. (P's SGI 74, MER, 94.) And it was Harrison who concluded that he had "never seen such a sweetheart contract before which guaranteed the operators a profit and put the City entirely at risk." (P's SGI 77, MER, 95.) Together, Harrison and Mr. Molina prepared a study in which they recommended an alternative operating contract. (P's SGI 78, MER, 95.) No one from Oxnard, nor even Sotelo, has ever challenged this report.
Concerning Appellee's contention that Mr. Molina's budget figures were inaccurate and it was Molina's bad math and bad manners that resulted in his termination
Appellees' attempt to malign Mr. Molina's accuracy concerning other budget numbers relies upon incomplete references to the actual record and is disputed by the evidence.
Sotelo alleges that Molina reported a 4 Million dollar discrepancy in his report on the budget that caused Sotelo concern. (OB, 6, referring to OER, 127.) In support of Sotelo's allegation, Appellees cite to a declaration of Karen Burham, in which no specific figures are referenced and to a purported admission by Molina that is taken out of context. (OB, 7-8, referring to OER 127-28, 589, and 84.)
Appellees suggest that Molina had no credible base for concluding that Sotelo was satisfied with his explanation of a purported discrepancy on the budget. However, the evidence shows that when Sotelo challenged Molina's budget figures, Sotelo appeared satisfied with Mr. Molina's response because Molina told him his figures were from the city's independently conducted audit and Sotelo never challenged him again on the issue. (OER, 84.)
Further, Orlando Capulong who had worked for the city's finance department since 1988, and worked closely with Mr. Molina in preparing the City's monthly financial statements, along with Mayor Lopez, and Councilmember Zaragoza, all testified that they believed Molina's numbers to be accurate. Capulong provided the raw data to Molina which he retrieved from Oxnard's accounting system audited by an outside firm. (P's SGI 110-111, MER, 104-05 Capulong Depo:16-17, OER,444-445.) Capulong testified, as Molina, that Molina never advised Sotelo there was a four million dollar deficit, and was never requested by Sotelo to find the deficit. Nor did he ever report back to Sotelo there was a $200,000 surplus. (P's SGI 115, MER, 105, Capulong Depo:21-22, OER,446-447.)
Mayor Lopez and Zaragoza stated that they had never heard from other councilmembers that Molina's figures were inaccurate. (MSJ Order, p. 29, MER, 201.) Nor had Lopez and Zaragoza ever witnessed Mr. Molina make any misleading or inaccurate statements concerning the City's finances. (P's SGI 112-114, MER, 105, OER, 381.) Lopez testified that he knew Molina to be competent, that Molina never gave inconsistent or unfounded budget figures and if Sotelo was lying, he Lopez would be concerned that he was losing a good finance director. (OER381, 382, 383.)
Consideration of such evidence from Oxnard's own witnesses suggest that Sotelo's stated reasons for termination, that included Mr. Molina's purportedly bad numbers, may be pretextual, and should be considered by the jury. Infra.
Concerning Appellees' contention that there is no credible evidence that Mr. Molina was gagged, or intimidated
Appellees contend that the intimidation that Molina felt was less than what he purports it to be and that it was undisputed that the memorandum accepted by the District Court as a gag order was not. (OB, 20, 31, MER, 180.)
Firstly, Molina testified, and the Court accepted as true, that he perceived Sotelo's memorandum that reads
"Any contacts with the press are to be directed to the City's manager's office for response. This is not to be considered a gag order; rather this is a coordinated approach to the dissemination of information"- to be a gag order because it barred him from speaking to the public about financial issues of concern to the public. (MSJ Order, p. 8, MER, 180.) And prior to the memorandum Sotelo reprimanded Mr. Molina and "told me (Molina) that I was not to talk to the press anymore, and if the press called about anything, I was to direct that to him or his office." (MSJ Order, p. 8, MER, 180; P's SGI 95, MER, 101.)
Moreover, on several occasions following the incident with the press, Sotelo informed Mr. Molina two councilmembers were "gunning for" him and were "after [him] with big guns." (MSJ Order, p. 8-9, MER, 180-181.)
Appellees attempt to minimize the impact of this statement on Mr. Molina, but fail to include the complete response presented to the Court below. (OB,20-21.)
Mr. Molina also testified that he did not perceive physical harm from the quote the first time, but was concerned when Sotelo made the remark a second time. (OER 88.)
Appellees also attempt to minimize Mr. Molina's perception of intimidation, (OB, 29) suggesting that such acts would not "chill or silence a person of ordinary fitness." But Mr. Molina's evidence of harassment included:
1.Statements from Holden and Sotelo "in no uncertain terms" that Molina was not to bring up the golf course proposal at the next council meeting. (MSJ Order, p.6, ER, 178(b); P's SGI 80, 82-3, MER, 96-7.)
2.Councilman Holden's statement to Molina: 'You need to understand that this city works with certain consultants and certain contractors. And if you (Molina) don't understand or if you don't like that, you'd better get another job'." (MSJ Order, p.6, MER, 178(b); P's SGI 81, 82, MER, 95-96.)
3.Councilman Holden's interruption of Mr. Molina when he offered his opinion on the alternative proposal. Holden, while "jumping out of his seat, said that Molina did not know what he was talking about, and that Molina's numbers were suspect, that (Molina) shouldn't be saying anything more &ldots;very strongly, very loud, very forcefully." (MSJ Order, p.7, MER, 179, P's SGI 85, MER, 97.)
4. A Chronology in which the above statements were followed by Sotelo's two warnings that councilmembers were "gunning for" him and were "after [him] with big guns." (MSJ Order, p. 8-9, MER, 180-181.)
5.Sotelo's statement to Molina that "none of what [Molina] said was what the Councilmember wanted to hear" after an October 12, 1999 meeting with Councilman Dean Maulhardt in which he asked Molina to exclude the debt from his reports so that the golf course operations would appear to be making a profit. (MSJ Order, p. 9, ER, 181.)
6.Sotelo's termination of Molina within 10 days of the meeting, on October 22. (MSJ Order, p. 9, MER, 181.)
Certainly, a jury could conclude that the above statements were intimidating. Infra.
Concerning Appellee's allegations that there is no evidence to support Mr. Molina's contention that Sotelo's purported reasons for terminating Mr. Molina were pretextual.
Sotelo and Oxnard allege that Sotelo fired Molina because Molina: (1) provided untrustworthy financial numbers; (2) alienated City consultants and contractors; (3) intimidated employees and co-workers; and (4) "fractionalized" the City Council. (MSJ Order, p. 10, 29, MER, 182, 201.)
But other witnesses and documents contradict these stated reasons. Appellees rely on Sotelo's "perceptions" and those of private vendors to support his termination decision. (OB, 8-11.) Mr. Molina relies on the testimony of Oxnard's elected officials, other employees from the finance department and Oxnard's audited financial report.
There is nothing in Appellees' factual summary to rebut Mr. Molina's contention that the issue of whether Sotelo's purported reasons were truthful, or pretextual, should have been decided by a jury. Infra.
Mr. Molina set forth sufficient evidence to refute all of the purported basis for termination including:
1.Although Sotelo testified that Molina's numbers were inaccurate, as set forth above, Molina produced substantial evidence in contravention including:
Testimony from Oxnard's elected officials that the golf course numbers provided by Molina were accurate and the course ran in the red. (supra, at 8.)
Oxnard's (and Sotelo's) admissions that Molina's numbers showing the shortfalls on River Ridge I were taken from the city's own audit (D's SR33, MER,164.)
Corroboration by an independent consultant of Molina's numbers on River Ridge I. (P's SGI30, MER,76.)
Testimony from Orlando Capulong, who had worked for the city's finance department since 1988, that all of Molina's numbers were based upon raw data he provided from Oxnard's accounting system, audited by an outside firm, and that he never heard Molina report, nor was asked by Sotelo to investigate, a purported $4 million dollar deficit. (supra, at 10; P's SGI 110-111, MER, 104-05 OER,444-445; (P's SGI 115, MER, 105, Capulong Depo:21-22, OER,446-447.)
2.Although Sotelo testified that Molina alienated City consultants and contractors; intimidated employees and co-workers; and "fractionalized" the City Council, as set forth in his opening brief, and above, Molina produced substantial evidence in contravention including:
·The testimony of Lopez, Zaragosa and Lopez contending otherwise. (MSJ Order, p. 30-31, MER, 202-203; P's SGI 24, ER, 74, P's SGI 117-131, MER,106-109.)
The absence of any evidence of an investigation by Sotelo of the alleged charges of unprofessionalism and intimidation. (P's SGI 23, MER, 73.)
Evidence of undue influence of certain vendors and contractors who were the source of certain complaints. (P's SGI 15-19, MER,67-69; P's SGI 20, MER, 69; P's SGI 39-41, MER, 80-82.) ;
The absence of any documentation from Sotelo, or Oxnard, of Molina's purported poor performance including counseling sessions, and evidence in contravention including good job evaluations and merit pay. (P's SGI 134-146, MER,110-113).
Further, as stated in his Opening Brief, the District Court, accepted many of Mr. Molina's facts as true for the purpose of the motion. However, when the District Court decided that "Sotelo's stated reasons for terminating Molina's employment, to wit, were not contradicted by Molina's evidence," it was impermissibly weighing the evidence. (MER,202-205.) The Court accepted Sotelo's belief he was justified in terminating Molina at face value without determining whether such a belief was reasonable. (MSJ Order, 30-33, MER, 202-33.) Infra.
ARGUMENT
I. The Appellees fail to dispute Molina's contention that the District Court's definition of protected speech is impermissibly narrow
The City and the City of Oxnard appear to be contending that a public employee's speech is only protected when:
1.He speaks as a private citizen. (OB, 26.)
2.The speech concerns an impropriety or "substantial operation" of the City.
3.The speech occurs at a public meeting.
4.The employee demonstrates coercion.
5.The statements are not misleading.
6. The employee's right outweighs a supervisor's subjective belief that the employee is bad.
The City and Sotelo then contend that under these criteria Mr. Molina loses.
The City and Sotelo as the District Court utterly fail to show how such a narrow construction of the law is consistent with the standards set forth in the cases upon which both parties rely: Mount Healthy School Dist. Bd.of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. State Board of Education of Township High School District 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Allen v. Scribner, 812 F.2d 426, 433 (9th Cir.1987), amended, 828 F.2d 1445 (9th Cir.1987), et al.
Concerning Appellees'contention Molina's speech is not protected because he did not speak as a private citizen.
Firstly, the Appellees contend for the first time on appeal that the threshold issue for the District Court to consider is whether Mr. Molina spoke as a public or private employee. Nowhere in the proceeding below was the issue raised, nor the Court briefed.
However, Oxnard and Sotelo are wrong and misinterpret the Pickering holding upon which they purportedly rely. (OB, 26.) As the U.S. Supreme Court held in Givhan v Western Line Consolidated School District 439 U.S. 410, 99 S. Ct 693, 696 (1979), Pickering does not support the conclusion that a public employee forfeits his rights if he decides to express his views privately.
In none of the cases cited by Appellees did the Court consider such a distinction in its analysis. In several of the cases upholding the employee's first amendment rights, the employee's speech arose from, and within the scope of employment. The Courts found a special rationale to protect such speech because of the insight such employees provide the public. "Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions". Waters v. Churchill 114 S.Ct. supra, at 1887. In Allen v Scribner, supra, the employee, a California Department of Food and Agriculture entomologist, circulated internally a memorandum concluding that a medfly infestation was more extensive than the Project officials had acknowledged; was issued a memorandum prohibiting him from talking to the media, and was demoted after speaking to the media. Id. at 428. In Mt. Healthy, the employee, an untenured school teacher, distributed to the radio a dress code policy for the teachers. In Ghivan, the employee, a schoolteacher made her remarks criticizing segregation in a private meeting with the principal who testified that he dismissed the teacher because in several encounters she made petty and unreasonable demands, was insulting, hostile loud and arrogant.
Concerning Appellees' contention Molina's speech did not address a matter of public concern
As stated in Allen, supra, the threshold test is whether the speech addresses a matter of public concern. Id. at 430.
The contention of Appellees and the District Court that Molina's statements on a publicly owned golf course that was bleeding over $350,000 annually, and his recommendations for a better operating plan in anticipation of the construction of a second publicly owned golf course, are "not of public concern" to Oxnard's taxpayers cannot be taken seriously in light of the holdings cited by all parties. Nowhere, by any court in any controlling decision, has it been held that a public employee's speech is only protected when he discusses issues of criminal conduct or impropriety or a matter of substantial public policy, although it is arguable that such criteria is applicable in the instant case.
The Allen Court "synthesized" the holdings of the U.S. Supreme Court when it set the following criteria for when speech is of a public concern:
"Speech by public employees may be characterized as 'not of public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of government agencies. See Connick. On the other hand, speech that concerns issues about which information is needed to make informed decisions about the operation of their government merits the highest degree of first amended protection. Thornhill v Alabama, 310 U.S. 88, 102 (1940)." Allen v. Scribner, 812 F.2d, at 431.
The City's and Sotelo's argument that Molina's statements are not protected because they concern an internal matter, and their reliance upon Connick and Allen for such, is disingenuous. (OB, 28.) So too is their suggestion that Molina's critique of the operating plan for the golf course is not protected because it did not criticize any "substantive operation of the government or inform public debate."
It is clear under the Allen, Connick and Pickering holdings that the Courts, when they speak of unprotected speech, are referring to individual personnel disputes and grievances, which under some conditions may even deserve protection. Gillette v. Delmore, 886 F.2d 1194(9th Cir.1989).
Not under any manipulation of the facts and the law should a court be permitted to conclude that Mr. Molina's statements concerned only internal matters, and of were of "no relevance to the public's evaluation of the performance of their officials".
In fact, Sotelo's stated reason for gagging Molina from publicly discussing the course's finances was "to control the dissemination of information to the public to prevent the public from getting the impression that the second project would be as financially unsound as the first". (OB, at 32.)
Although the heart of the Court's flawed decision is its analysis of when speech is protected, the City's (and Sotelo's) discussions mimic the District Court, and are short on references to the record and to the law. To support their limited definition of when speech is protected, Oxnard and Sotelo refer to a hollow list of "horribles" that would occur if the public was permitted to scrutinize the use of taxpayer's funds. (OB, 28.) Such a rationale is abhorrent to the law, the tradition of the U.S. (no taxation without representation) and is not supported, because none exist, by any court decision. In fact it was an employee's discussions of budget issues the courts found deserved to be protected in Pickering, supra [allocation of school resources] McKinley v City of Elroy 705 F.2d 1110, 1114 (9th Cir.1983.) [city's failure to grant annual pay raises].
Concerning Appellees' contention that Molina's statements to a closed session of the City Council were not protected
The fact that Mr. Molina's report to the City Council was not directed to the public at large, to inform it of the perceived problems, is not critical to the inquiry of whether his speech involves a matter of public concern. Givhan v Western Line Consolidated School District 439 U.S. 410, 99 S. Ct 693, 694 (1979). "Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." Givhan, at 696. Gillette v. Delmore, 886 F.2d 1194, 1198 (9th Cir.1989.)
Further the City and Sotelo do not explain why a regularly scheduled meeting of the city council, at which an issue affecting the city's revenue was discussed, was not open to the public in violation of California's Brown Act. (Ca. Government Code section 54950 et seq. ("Gov't Code" or "Brown Act") In their Notice of Errata, the Appellees, at Note 13, contend that the meeting was exempt under section 54954.5. But there is nothing in the record to support any exemption. (See sections 54953-4 attached as Addendum pursuant to Circuit Rule 28-2.7.)
Gov't Code § 54953 provides:
(a) All meetings of the legislative body of a local agency
shall be open and public, and all persons shall be permitted to
attend any meeting of the legislative body of a local agency, except
as otherwise provided in this chapter.
Although neither party nor the District Court raised this issue below, the evidence is undisputed: the meeting of the City Council in which Mr. Molina presented his proposal for improving the revenue for River Ridge I was a closed session, where no member of the media or the public was permitted, and that Mr. Molina was impermissibly silenced from discussing his report. (P's SGI 32, 64, 84-85, MER, 077, 091, 97; D's SR 32, 64, 84-85, MER, 164.)
This Court has discretion to consider a "new" issue where the evidence is undisputed, where the question of law concerns a public policy question and where there is no prejudice to the party against whom the issue is raised. United States v Patrin, 575 F.2d 708, 712 (9th Cir. 1970). Fisher v Berkeley (1984) 37 Cal.3d 644,654. In the instant case Appellees are not prejudiced since it is the Appellees who introduced the fact that the meeting was a closed session in support of their motion. It is one of several facts they use to support their contention that given the entire context of Mr. Molina's speech, his speech was not protected, and the summary judgment dismissing Molina's claim should be granted. (OB,24-28.) Further, Appellees address the issue in their response brief. It is Molina who would be prejudiced without consideration of the issue since the District Court dismissed his claim on a motion for summary judgment.
It is clear under the facts here that the meeting of the City Council should not have been a closed session under Gov't Code § 54953. The open meeting requirements of the Brown Act (Gov. Code, § 54953) must be interpreted liberally in favor of openness, and the "personnel exception" must be construed narrowly. San Diego v Union City Council (1983) 146 Cal.App.3d 947. There is no evidence that Oxnard or Sotelo presented to the District Court to support their present argument that the meeting was exempt under Gov't Code § 54954.5. This section limits closed sessions to strict and private conditions such as when the agency is discussing a liability matter with their attorney or discussing a trade secret.
Concerning Appellees' contention that Mr. Molina did not demonstrate sufficient coercion to invoke First Amendment protection.
Appellees, as the District Court, minimize the significance of Mr. Molina's intimidation and suggest that the alleged actions would not have chilled or silenced a person of ordinary fitness. (OB, 29.) As the Pickering Court stated, "the threat of dismissal from employment is a potent means of inhibiting speech". Supra. As such, the actions of the officials Holden, Maulhardt, coupled with Sotelo's conduct constitutes "an entire campaign of actionable harassment. Whether the harassment is sufficient to trigger protection is a question of fact to be determined by the jury. Allen, supra, at 434, n.17. Infra.
Concerning Appellees contentions that Mr. Molina's statements are not protected because they are misleading
As cited by the Pickering Court even erroneous statements by a public employee deserves protection unless made either with knowledge of their falsity or with reckess disregard for their truth. Pickering 88 S.Ct. at1737.
However, there is not the scintilla of evidence to show that Molina's statements to either the City Council or to the media were of such reckless falsity or even false. All of the evidence demonstrates otherwise. As Sotelo concedes, he was only concerned with the potential for misrepresentation that could result from Molina's statements.
Concerning Appellees'contention that Sotelo's belief that Molina was disruptive was sufficient to outweigh Molina's rights
As the U.S. Supreme Court held in Waters, an employer's subjective belief that an employee's speech is disruptive must be reasonable. Infra at 26. Waters, 114 S.Ct supra, at 1890. Since the facts concerning Sotelo's motivation are disputed, only a jury can resolve whether his belief is reasonable. Id. at 1890.
II.Appellees Fail to Rebut Mr. Molina's contention that the District Court failed to recognize that the instant case presented Genuine Issues Of Material Fact
Although the City and Sotelo go to great lengths in disputing Mr. Molina's facts and ignore the Court's actual findings, they contend that there are no material issue in dispute whether Sotelo fired Molina in retaliation for protected speech because Sotelo "testified" that he believed that he had sufficient reason to terminate Mr. Molina.
Appellees like the District Court fail to recognize, that it is the province of the jury to evaluate the testimony of Mr. Molina's supervisor to determine whether Sotelo's feelings and perceptions were credible or pretextual. Mr Molina contends that a jury should get to hear the testimony of Zaragosa and Lopez, Oxnard's own witnesses, and elected officials, who, unlike Sotelo, testified that they trusted Molina's numbers because they were accurate, knew that the golf course was losing money and were concerned about losing a good employee. The jury should also get to hear that Sotelo never complained to them of the issues to which he testified, and that certain developers were able to influence the firing of Oxnard's chief financial officers. A juror could conclude that Sotelo's reasons for terminating were pretextual, and that his complained of disruption was "not real". Allen v Scribner 812 F2d at 432. Mr. Molina is entitled to have a jury determine Sotelo's actual motivation. Waters, 114 S.Ct. supra, at 1891.
Mr. Molina further contends that a jury should be permitted to consider Councilman Holden's statements that if Molina didn't understand that certain contractors were taken care of, he'd better get another job; that "Molina's numbers were suspect, and he shouldn't be saying anything more"; and Sotelo's warnings to Molina that he was not to speak to the press, and that two councilmen were gunning for him. The jury should be permitted to consider the City's audited financial report upon which Molina, Zaragosa, Lopez and Capulong relied, the Oxnard article, and the memorandum with the words "This is not a gag order". A juror could conclude that it was reasonable for Molina to feel intimidated and chilled from speaking out, and Sotelo's actual reason for terminating Mr. Molina was to permanently gag him.
It is not enough on a motion for summary judgment for Sotelo to show that he believed that Mr. Molina's actions were disruptive. He must also show that his belief was reasonable. Waters, 114 S.Ct supra, at 1890. Although the Waters Court held that an employer's conduct of an investigation can be an indicator of reasonableness, Sotelo admitted that he never conducted an investigation of the charges of intimidation allegedly made by two employees against Molina. (P's SGI 24, MER, 74, P's SGI 117-131, MER,106-109.)
Further, Sotelo must show that he fired Mr. Molina for being disruptive and not for protected speech. Sotelo in later justifying his termination of Molina, relied upon "complaints" from those same contractor/vendors whose contracts were being challenged by Molina and his staff, as examples of Molina's purported disruptiveness. (P's SGI 16-21,39, MER,67-71,80.)
A juror could conclude that such complaints did not demonstrate behavior disruptive to Molina's task of providing accurate financial data to the Oxnard taxpayers. As set forth above in contravention of Sotelo's purported justifications, Mr. Molina demonstrated sufficient evidence for a reasonable juror to conclude that Sotelo terminated Molina for non-disruptive purposes. The summary judgment cannot be sustained. Waters, supra, 114 S.Ct. at 1891, citing Mt. Healthy, supra, 97 S.Ct. at 575-6.
In light of all of the evidence presented to the District Court, a reasonable juror could conclude that Sotelo would not have terminated Mr. Molina in the absence of protected conduct, Mt. Healthy, supra, 97 S.Ct. at 576, and that Sotelo fired Molina, not because of the purportedly disruptive things he said or did, but because Molina was upsetting the way business was being conducted in favor of certain insiders. Waters, 114 S.Ct. at 1891.
Accordingly, the District Court erred in granting the summary judgment.
III. Appellees Fail to Rebut Molina's contention that Sotelo is not protected by any immunity privilege
Sotelo and Oxnard have failed to rebut Molina's contention that there are genuine issues for the jury to determine whether Defendant Sotelo is entitled to qualified immunity as any "reasonable official" would understand that dismissal based upon protected speech (such as Mr. Molina's speech at issue herein) is impermissible. Allen v. Scribner, 812 F.2d at 436.
By disputing the evidence presented to the District Court, Sotelo and Oxnard support Molina's contention that there are triable issues whether Sotelo's motives were pretextual. Allen v. Scribner, 812 F.2d at 436. Clearly, by Sotelo's own words he knew that he needed to tread gently in restricting Molina's speech. Upon issuing the gag order he interposed: "This is not a gag order". (MSJ Order, 8, MER, 180.)
Further there is an absence of any reasonable basis to support Sotelo's contention that he was justified in terminating Molina. Supra. A jury must decide the issue of Sotelo's motivation.
IV. Mr. Molina's claim for emotional distress is not pre-empted by the Worker's Compensation Act where the gravaman of the employer's wrong is a civil rights violation; Molina does not concede that the Court was correct in dismissing the entire claim sua sponte
Mr. Molina does not concede that the District Court was correct in dismissing the seventh cause of action for failing to show a prima facie case for intentional infliction of emotional distress.
After ruling that the Worker's Compensation Act pre-empted any emotional distress damages, the District Court sua sponte dismissed Mr. Molina's seventh, but not sixth, cause of action for intentional infliction of emotional distress "as plaintiff's showing does not approach the extremely high standard" for "extreme misconduct exceeding all bounds tolerated in a decent society" (MSJ Order, 47, MER, 219.) But plaintiff was never given the opportunity to make the showing.
The Appellees never raised the issue in any of their pleadings. Neither the Court nor the appellees ever provided notice that the issue would be considered. The issue was not addressed orally. Accordingly, Mr. Molina was never given the opportunity to brief the District Court. This is impermissible. Celotex Corp. v Catrett (1986) 477 U.S. 317, 326, 106 S.Ct. 2548, 2554.
On the pre-emption issue, the law is clear that a claim for emotional distress is not barred by an employer's illegal practices. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 351. Such is the case here where the employer terminated Mr. Molina in retaliation for his expression of protected speech under the First Amendment.
V. Oxnard and Sotelo have confused the issues that Mr. Molina is appealing; Mr. Molina is appealing all causes of action relating to his First Amendment rights.
As set forth in his Opening Brief Mr. Molina is appealing the dismissal of
all wrongful termination causes of action arising from the First Amendment including Count I, as amended, State Claim for Wrongful Termination in Violation of Public Policy, Count III, Violation of First Amendment under 42 USC 1983, Count VI and VII, for infliction of emotional distress.
Oxnard and Sotelo suggest briefly at OB, 42 and note 24 that Molina "failed to explain" the basis of his appeal of Count I. However, as noted by the District Court, Plaintiff amended his theory of wrongful termination in violation of public policy (Count 1) to include the First Amendment in his opposition to the motion for summary judgment. (MSJ Order, page 17, CR(40), MER, 189.)
As set forth in his Opening Brief, in Count One of his complaint Mr. Molina alleged a state claim for tortious termination in violation of public policy (MB, 24, MER 1-7). As is also set forth in his Opening Brief, under California law, retaliatory termination in violation of the First Amendment is actionable under this tort. So. California Rapid Transit District v. Sup. Ct., 30 Cal.App.4th 713, 729 (1994) (MB, 24.) Mr. Molina also alleged in Count Three, a federal claim for retaliatory termination in violation of the First Amendment in violation of 42 U.S.C.A. § 1983. (MB, 25, and note 10.)
Mr. Molina is not appealing the District Court's dismissal of any of Count One not relating to the First Amendment. Originally, Mr. Molina's allegations arose from Oxnard's purported violation of Article 4 of its personnel rules. Mr. Molina has not appealed this violation. It is clear from his Opening Brief at pages 24-41, and 41-43 (immunity issue) and the District Court's decision at pages 17-18, and 21-32, that Mr. Molina has extensively argued why the District Court erred in not permitting the jury to consider evidence on Counts I and III as the evidence relates to his First Amendment rights and his retaliatory termination. Mr. Molina is not appealing the dismissals of Count II and IV.
VI. Appellees fail to rebut Mr. Molina's contention that there are factual issues in dispute to support a claim for punitive damages
Oxnard and Sotelo concede that punitive damages may be recovered by Mr. Molina under his First and Third causes of action, but contend that there isn't a sufficient showing to support the requisite malice and "callous or reckless indifference" to support such damages. (OB, 47-48.)
However, since there are genuine issues whether Sotelo's motives for firing were pretextual, and in "callous and reckless indifference" to Mr. Molina's right to free speech, this Court should reinstate Mr. Molina's claim for punitive damages against Sotelo.
CONCLUSION
Oxnard and Sotelo have not presented any law or evidence to rebut Molina's contention that the District Court erred in granting summary judgment. Hence, the summary judgment entered on the First Amendment causes of action, or relating to such, must be reversed for retrial, to wit: Count I, Wrongful Termination in Violation of Public Policy, Count III, Violation of First Amendment under 42 USC 1983, Count VI and VII, for Intentional and Negligent Infliction Of Emotional Distress. The District Court's rulings dismissing Molina's claims for damages including emotional distress and punitive, and ruling permitting the immunities must also be reversed.
DATED: May 31, 2002
Karen A. Larson
Plaintiff/ Appellant, Philip Molina
---- for the Oxnard Journal -- courtesy of Phil Molina -----------