Peyton v. Smith

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 MATTHEW PEYTON, Case No. 5:19-cv-05871-EJD 9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 10 v. DISMISS 11 LAURIE SMITH, et al., Re: Dkt. No. 17 Defendants. — 12 — — 13 — 14 Plaintiff Matthew Peyton brings this action against Defendants Laurie Smith, Daniel 15 Rodriguez, Thea Lera, Jose Cardoza, Julian Quinonez, and Does 1-10 asserting one claim for 16 violation of his First Amendment rights under 42 U.S.C. § 1983 . Compl., Dkt. No. 1. Defendants 17 now move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). The Court finds 18 the motion appropriate for decision without oral argument pursuant to Civil Local Rule 7-1(b). 19 Having considered the parties’ written submissions, the Court GRANTS IN PART and DENIES 20 IN PART the motion to dismiss with leave to amend. 21 I. BACKGROUND 22 A. Factual Background 23 At the time of the filing of the complaint, Peyton was a Detective for the Santa Clara 24 County Sheriff’s Office. Compl. ¶¶ 1, 5. Defendants Sheriff Laurie Smith, Captain Daniel 25 Rodriguez, Lieutenant Thea Lera, Lieutenant Jose Cardoza, and Lieutenant Julian Quinonez are 26 also employees of the Sheriff’s Office. Id. ¶¶ 6-10 . Peyton brings this suit against Defendants in 27 their individual capacities. Id. 1 Peyton joined the Sheriff’s Office in 2008. Id. ¶ 11 . In his time there, he served as Court 2 Training Officer, Field Training Officer, Firearms Instructor, and Academy Instructor, and he also 3 became a Certified Child Abuse Investigator, Certified Sexual Assault Investigator, Child Forensic 4 Interviewer, and Certified Field Evidence Technician. Id. ¶ 12 . Throughout his employment, 5 Peyton received numerous letters of appreciation and commendations for his work. Id. ¶ 15 . In 6 2016, Peyton became a Detective and was assigned to the Sexual Assault Investigations Unit—a 7 coveted assignment for which he underwent specialized training. Id. ¶ 13 . Peyton expressed a 8 desire for promotion up the ranks in the Sheriff’s Office. Id. ¶ 16 . In furtherance of that goal and 9 to boost Peyton’s profile, in May 2017, Rodriguez offered Peyton the task of drafting a policy 10 related to protection of children whose parents are arrested. Id. Peyton presented his draft policy 11 at a meeting attended by multiple Chiefs of Police and other law enforcement officers from Santa 12 Clara County. Id. ¶¶ 17-18 . Peyton was directed to turn his draft policy into a General Order, 13 which he then presented to Sheriff’s Office Administration, Press Information Officers, the Child 14 Abuse Council, and selected patrol personnel. Id. ¶ 18 . Rodriguez expressed pleasure with 15 Peyton’s work on the draft policy and offered Peyton extra days off, which Peyton declined. Id. ¶ 16 19. 17 In June 2017, Peyton was passed up for promotion and asked Rodriguez to discuss the 18 decision. Id. ¶ 20 . After outlining Peyton’s qualifications, Rodriguez stated something to the 19 effect of: “I don’t think they even look at that. They care more about what you’ve done for them, 20 or what you can do for them.” Id. ¶ 21 . Peyton understood Rodriguez to be referring to Smith and 21 her administration. Id. 22 In September 2017, Peyton became responsible for most of the sexual assault cases in the 23 Sheriff’s Office. Id. ¶ 22 . As of that time, Peyton had never been disciplined or even accused of 24 deficient performance by his superiors. Id. ¶ 23 . His previous Performance Appraisal Report 25 from April 2017 indicated that he was “exceeding expectations,” and the Sergeant reviewing his 26 work noted that “Deputy Peyton has the potential to become an invaluable member for the Sexual 27 Assault Investigations Unit.” Id. ¶ 24 . 1 On or around September 21, 2017, a picture of Peyton and his wife at a fundraiser for 2 Smith’s political opponent, John Hirokawa, was posted on Facebook. Id. ¶¶ 25, 27 . Within 48 3 hours, Defendants became aware of the photo. Id. ¶ 28 . Five days later, on September 26, Peyton 4 was called into a meeting with Rodriguez, Cardoza, and non-defendant Sergeant Shadra Shaheen. — 5 — Id. ¶ 30 . Rodriguez informed Peyton that his “commitment to the division” was in question and 6 issued Peyton a “verbal counseling” for (1) failing to turn in a “blue slip” after requesting to leave 7 work early days prior, and (2) emailing another detective about information related to a reopened 8 case, days before Peyton’s request to leave early. Id. ¶ 31 . Rodriguez did not provide any 9 instances of substantive work deficiency when asked. Id. ¶ 32 . 10 A series of negative incidents followed in October 2017. First, Peyton met privately with 11 Cardoza, seeking clarification on the grounds for which he had received verbal counseling. Id. ¶ 12 33. Cardoza stated that he disagreed with the grounds for verbal counseling and blamed 13 Rodriguez’s “management style.” Id. ¶ 34 . 14 Second, Peyton emailed and called Lera with a request to attend the Academy Instructor 15 Certificate Course. Id. ¶ 35 . Lera did not respond to either Peyton’s email or phone call. 16 Third, after his unanswered requests to Lera, Peyton received his first ever negative 17 “comment card” in connection with an unavoidable on-duty car collision that occurred earlier in 18 October 2017. Id. ¶ 36 . Rodriguez instructed Sergeant Shaheen to add additional negative 19 language to the card. Id. ¶ 38 . Peyton received this negative comment card despite having been in 20 a prior vehicle collision in 2012, which resulted in much worse vehicle damage but no write-up of 21 any kind. Id. ¶ 39 . 22 Fourth, after Peyton received the negative comment card, a co-worker informed Peyton 23 that the co-worker had been told not to associate with Peyton because he had been “blacklisted by 24 the administration.” Id. ¶ 40 . Peyton was also notified by another detective of a rumor circulating 25 that Peyton’s family was hosting Hirokawa’s campaign operation. Id. ¶ 41 . 26 Fifth, at the end of October 2017, Rodriguez and Cardoza denied Peyton’s request for 27 “comp time” to work on sexual assault cases on the weekend. Id. ¶ 42 . Rodriguez denied this 1 request despite previously indicating that Sexual Assault Investigations Unit members would 2 receive as much comp time as necessary to complete investigation tasks, so long as it was not 3 overtime work. Id. ¶ 43 . This denial of comp time prevented Peyton from completing case 4 investigation tasks. Id. ¶ 44 . 5 Further negative incidents occurred in November 2017. First, Cardoza removed Peyton 6 from the Crime Scene Investigation team, stating that it was a “management decision” and that 7 Peyton needed to focus on “high liability cases.” Id. ¶ 45 . Second, Peyton’s requests for “comp 8 time” were again denied. Id. ¶ 46 . Third, a second email to Lera regarding Peyton’s request to 9 attend Academy Instructor Certificate Course again went unanswered. Id. ¶ 47 . Fourth, Cardoza 10 denied Peyton’s request for a “day trade,” even though such requests were commonplace. Id. ¶ 11 48. Fifth, Peyton was not permitted to participate in a very important investigation of an escaped 12 inmate. Id. ¶¶ 49-51 . Every other detective except for Peyton received a role or assignment in the 13 escape investigation. Id. 14 In November or December 2017, Quinonez replaced Cardoza as Peyton’s supervising 15 Lieutenant. Id. ¶ 52 . During this period, Quinonez and Rodriguez assailed Peyton’s work product 16 and work ethic on a weekly basis. Id. ¶ 53 . Cardoza and Shaheen both informed Peyton that 17 Cardoza and Shaheen did not have any problems with his work. Id. ¶ 54 . Shaheen told Peyton to 18 “stay under the radar.” Id. 19 On January 9, 2018, Quinonez terminated Peyton’s assignment to the Sexual Assault 20 Investigations Unit and transferred him to West Valley Property Crimes, which Peyton asserts 21 constituted a downgrade in prestige and responsibility. Id. ¶¶ 55-56 . Rodriguez had previously 22 stated on multiple occasions that “nobody cares about property crimes.” Id. ¶ 57 . The transfer 23 also added a significant amount of time to Peyton’s commute. Id. 24 In February 2018, Peyton was accused of surreptitiously recording a conversation with 25 Quinonez. Id. ¶ 58 . The allegations were investigated and submitted to the District Attorney for 26 prosecution, but the District Attorney ultimately chose not to file any charges. Id. ¶ 59 . As a 27 result, Peyton was referred to the Discipline Review Board. Id. ¶ 60 . In the final months of 2018, 1 the Discipline Review Board convened to discuss Peyton’s case and determine the discipline they 2 would recommend to Smith. Id. ¶ 61 . The Discipline Review Board submitted its findings and 3 recommended a three-week suspension to Smith. Id. ¶ 63 . Smith demanded that the Discipline 4 Review Board reconvene and make a new recommendation of termination instead. Id. ¶ 64 . Over 5 the objection of several members of the Discipline Review Board, the Discipline Review Board 6 ultimately submitted a new recommendation of termination. Id. ¶ 65 . 7 B. Procedural Background 8 Peyton filed this action on November 20, 2019. Dkt. No. 1. Defendants filed the motion 9 now before the Court on December 20, 2019. Dkt. No. 17. On April 3, 2020, the Court granted 10 Defendants’ motion to stay the action pending resolution of arbitration proceedings that Peyton 11 initiated. Dkt. No. 29. On March 19, 2021, Peyton notified the Court that the parties had 12 completed arbitration. Dkt. No. 30. At the June 6, 2021 case management conference, the Court 13 lifted the stay. Dkt. No. 34. 14 II. LEGAL STANDARD 15 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with enough 16 specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which 17 it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A 18 complaint which falls short of the Rule 8(a) standard may therefore be dismissed if it fails to state 19 a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 20 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts 21 to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 , 22 1104 (9th Cir. 2008). When deciding whether to grant a motion to dismiss, the Court must accept 23 as true all “well pleaded factual allegations” and determine whether the allegations “plausibly give 24 rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court must also 25 construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 26 F.2d 1242 , 1245 (9th Cir. 1989). While a complaint need not contain detailed factual allegations, 27 it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 1 plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S. at 570 ). 2 A court generally may not consider any material beyond the pleadings when ruling on a 3 Rule 12(b)(6) motion. If matters outside the pleadings are considered, “the motion must be treated 4 as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, documents 5 appended to the complaint, incorporated by reference in the complaint, or which properly are the 6 subject of judicial notice may be considered along with the complaint when deciding a Rule 7 12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); see also Hal 8 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 1555 n.19 (9th Cir. 1990). 9 Likewise, a court may consider matters that are “capable of accurate and ready determination by 10 resort to sources whose accuracy cannot reasonably be questioned.” Roca v. Wells Fargo Bank, 11 N.A., No. 15-cv-02147-KAW, 2016 WL 368153 , at *3 (N.D. Cal. Feb. 1, 2016) (quoting Fed. R. 12 Evid. 201(b)). 13 III. DISCUSSION 14 A. Request for Judicial Notice 15 Defendants seek judicial notice of two documents: (1) a June 13, 2018 memo authored by 16 Deputy District Attorney John Chase, and (2) Santa Clara County Ordinance Code § A20-2. Mot. 17 at 3; Req. for Judicial Not. in Supp. of Defs.’ Mot. to Dismiss, Dkt. No. 18. Peyton does not 18 appear to object to either request. See Opp’n to Defs.’ Mot. to Dismiss Plf.’s Compl. (“Opp’n”), 19 Dkt. No. 19. 20 As to the Chase memo, Defendants assert that the complaint references the memo. Mot. at 21 3. However, upon examination of the complaint, the Court finds no such reference. Defendants 22 cite only to Paragraph 59, which states: “The allegations [concerning Plaintiff’s surreptitious 23 recording of a conversation with Quinonez] were investigated and submitted to the Office of the 24 District Attorney, for criminal prosecution, but the District Attorney did not file any charges 25 against Plaintiff Peyton.” Id. (citing Compl. ¶ 59). This allegation is not a reference to the memo 26 itself; rather, it merely discusses the same topic as the memo. The memo is therefore not 27 incorporated into the complaint and not judicially noticeable on that basis. Furthermore, 1 Defendants apparently seek judicial notice of the memo in order to refute Peyton’s “false inference 2 that he was absolved,” id., but that is not proper, as the Court may not take notice of disputed facts 3 in judicially noticeable documents. Khoja, 899 F.3d at 999 . At any rate, the Court must accept all 4 factual allegations as true on a Rule 12(b)(6) motion, and the memo does not contradict the 5 allegations of Paragraph 59. The Court need not take judicial notice of documents simply because 6 Defendants disagree with Peyton’s characterization of certain events and wish to characterize them 7 in a different way. 8 As to the ordinance, “[m]unicipal ordinances are proper subjects for judicial notice.” 9 Tollis, Inc. v. Cnty. of San Diego, 505 F.3d 935, 938 (9th Cir. 2007). Accordingly, the Court takes 10 judicial notice of Ordinance Code § A20-2. 11 B. Rule 12(b)(6) 12 “It is well settled that the state may not abuse its position as employer to stifle ‘the First 13 Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of 14 public interest.’” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting Pickering v. Bd. of 15 Educ., 391 U.S. 563, 568 (1968)). Courts employ a “sequential five-step series of questions” 16 when examining a public employee’s First Amendment claim: 17 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; 18 (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the 19 state had an adequate justification for treating the employee differently from other members of the general public; and (5) 20 whether the state would have taken the adverse employment action even absent the protected speech. — 21 — — 22 — Id. A plaintiff’s failure to satisfy any single step ends the inquiry. Johnson v. Poway Unified Sch. 23 Dist., 658 F.3d 954 , 961–62 (9th Cir. 2011) (citing Huppert v. City of Pittsburg, 574 F.3d 696 , 703 24 (9th Cir. 2009)). 25 Defendants focus on whether Peyton has adequately pled the third and fifth elements. 26 Mot. at 3–8. The Court addresses each Defendant in turn. — 27 — 1. Lera — 1 — Defendants assert that Lera’s failure to respond to Peyton’s emails or phone calls is not an — 2 — adverse employment action, and that Peyton has not pled any facts suggesting that his attendance — 3 — at the Hirokawa fundraiser was a substantial or motivating factor in Lera’s actions. Mot. at 3–4. — 4 — As to Defendants’ first argument regarding an adverse employment action, the Court finds — 5 — that Peyton has adequately alleged an adverse employment action. “In a First Amendment — 6 — retaliation case, an adverse employment action is an act that is reasonably likely to deter — 7 — employees from engaging in constitutionally protected speech.” Coszalter v. City of Salem, 320 8 F.3d 968 , 970 (9th Cir. 2003). “To constitute an adverse employment action, a government act of — 9 — retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an — 10 — act of retaliation is in the form of the removal of a benefit or the imposition of a burden.” Id. at — 11 — 975. “The denial of even a ‘trivial’ benefit may form the basis for a First Amendment claim — 12 — where the aim is to punish protected speech.” Ulrich v. City and Cnty. of S.F., 308 F.3d 968 , 977 — 13 — (9th Cir. 2002) (citing Rutan v. Republican Party of Ill., 497 U.S. 62 , 75–76 (1990)). Here, — 14 — Peyton alleged that after his attendance at the Hirokawa fundraiser became publicly known, Lera — 15 — did not respond to Peyton’s inquiries regarding attending the Academy Instructor Certificate — 16 — Course, despite the fact that Peyton was already an Academy Instructor. Compl. ¶¶ 12, 35, 47. A — 17 — jury could infer from Lera’s failure to respond to Peyton that Lera took no action in order to — 18 — prevent Peyton from attending the requested course. When considered in combination with — 19 — Defendants’ other alleged acts, “it is clear that these acts amounted to a severe and sustained — 20 — campaign of employer retaliation that was ‘reasonably likely to deter’ [Peyton] from engaging in — 21 — speech protected under the First Amendment.” Coszalter, 320 F.3d at 977. — 22 — As to Defendants’ second argument regarding whether Peyton’s protected speech activity — 23 — was a substantial or motivating factor in Lera’s failure to respond, the Court finds that Peyton has — 24 — adequately pled a causal connection. “As with proof of motive in other contexts, this element of a — 25 — First Amendment retaliation suit . . . involves questions of fact that normally should be left for — 26 — trial.” Ulrich, 308 F.3d at 979 . Where—as here—an employer’s knowledge of the protected — 27 — 1 speech is not disputed, “circumstantial evidence showing motive may fall into three, nonexclusive 2 categories: ‘(1) proximity in time between the protected speech and the alleged retaliation; (2) the 3 employer’s expressed opposition to the speech; and (3) other evidence that the reasons proffered 4 by the employer for the adverse employment action were false and pretextual.’” Id. at 780 5 (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)); see also Keyser v. Sacramento 6 City Unified Sch. Dist., 265 F.3d 741 , 751–52 (9th Cir. 2001). Here, Peyton emailed and called 7 Lera in October and November 2017, the months immediately following the publication of 8 Peyton’s protected speech. The close temporal proximity between these events is sufficient to 9 infer that Peyton’s speech was the substantial or motivating factor for Lera’s inaction. See, e.g., 10 Coszalter, 320 F.3d at 977 (“Depending on the circumstances, three to eight months is easily 11 within a time range that can support an inference of retaliation.”); Allen, 283 F.3d at 1078 (“[A]n 12 eleven-month gap in time is within the range that has been found to support an inference that an 13 employment decision was retaliatory.”). 14 While the allegations surrounding Lera’s actions could be more fulsome, they are 15 sufficient to give Defendants notice of Peyton’s claims against her. Accordingly, the Court finds 16 that Peyton has stated a claim for retaliation against Lera. 17 2. Cardoza 18 Defendants argue that Peyton fails to state a claim against Cardoza because Cardoza was 19 not directly responsible for removing Peyton from the Crime Scene Investigation team; the 20 removal from the Crime Scene Investigation team and denial of Peyton’s requests for “comp time” 21 and a “day trade” are not adverse employment actions; and Peyton has not pled any facts 22 suggesting that his attendance at the Hirokawa fundraiser was a substantial or motivating factor in 23 Cardoza’s actions. 24 As to the first argument that Cardoza was not responsible for removing Peyton from the 25 Crime Scene Investigation team, that argument directly contradicts the allegation that “Defendant 26 Cardoza removed Plaintiff Peyton from the Crime Scene Investigation team,” which the Court 27 must take as true. Compl. ¶ 45. The fact that Cardoza stated that it was a “management decision” 1 does not necessarily absolve Cardoza of any responsibility for making that decision. Moreover, 2 this argument goes to the merits of Peyton’s claim, not whether he has adequately pled that claim. 3 As to the second argument that removing Peyton from the Crime Scene Investigation team 4 and denying his requests for “comp time” and a “day trade” are not adverse employment actions, 5 the Court disagrees. Peyton alleges that he had been informed that he would receive as much 6 “comp time” as he needed to complete his work and that “day trade requests” were commonplace, 7 suggesting that the denial of such requests was unusual. Compl. ¶¶ 43, 48. Additionally, the 8 denial of Peyton’s requests for “comp time” impaired his ability to complete his assigned work, 9 potentially setting a pretextual stage for later discipline. Id. ¶ 44. When considered in 10 combination with Defendants’ other alleged acts, “it is clear that these acts amounted to a severe 11 and sustained campaign of employer retaliation that was ‘reasonably likely to deter’ [Peyton] from 12 engaging in speech protected under the First Amendment.” Coszalter, 320 F.3d at 977. 13 As to the third argument that Peyton failed to plead facts sufficient to suggest that his 14 protected speech activity was a substantial or motivating factor in Cardoza’s acts, the Court finds 15 that Peyton has adequately pled a causal connection. These acts occurred in October and 16 November 2017, the months immediately following the publication of Peyton’s protected speech. 17 The close temporal proximity between these events is sufficient to infer that Peyton’s speech was 18 the substantial or motivating factor for Lera’s inaction. See, e.g., Coszalter, 320 F.3d at 977; 19 Allen, 283 F.3d at 1078. 20 Accordingly, the Court finds that Peyton has stated a claim for retaliation against Cardoza. 21 3. Quinonez 22 Defendants argue that Peyton fails to state a claim against Quinonez because Quinonez’s 23 transfer of Peyton to West Valley Property Crimes did not sufficiently impact Peyton, the 24 complaint does not allege facts demonstrating that the transfer and Quinonez’s criticism were 25 unwarranted, and Peyton has not pled any facts suggesting that his attendance at the Hirokawa 26 fundraiser was a substantial or motivating factor in Cardoza’s actions. Mot. at 5–6. These 27 arguments are unavailing. 1 As to the first argument disputing whether Peyton was actually adversely impacted, 2 Defendants cite no law to support their contention that the transfer must have affected Peyton by 3 changing his compensation, work hours, or promotional opportunities. See Mot. at 5. Peyton 4 alleges that his assignment to the Sexual Assault Investigations Unit was a coveted one and that 5 property crimes was not. Compl. ¶¶ 55-57. The Ninth Circuit has found that “an unpleasant work 6 assignment” in combination with other acts, including “repeated and ongoing verbal harassment 7 and humiliation,” can be adverse employment actions. Coszalter, 320 F.3d at 976–77. 8 The second argument regarding whether Quinonez’s acts were unwarranted is 9 unpersuasive. Peyton pleads an exemplary work history with a coveted assignment and potential 10 support for promotion up until the day the fundraiser photo was published on Facebook. Compl. 11 ¶¶ 12-16, 19; see also id. ¶ 32 . Despite Quinonez’s disparagement of his work ethic and work 12 product on a weekly basis, neither Cardoza nor Sergeant Shaheen had a problem with his work 13 ethic or work product. Id. ¶ 54 . These facts are sufficient to create the inference that Quinonez’s 14 criticism and decision to transfer Peyton were unwarranted. 15 As to the third argument regarding a causal connection, Quinonez’s acts occurred three to 16 four months after Peyton’s protected speech. The close temporal proximity between these events 17 is sufficient to infer that Peyton’s speech was the substantial or motivating factor for Lera’s 18 inaction. See, e.g., Coszalter, 320 F.3d at 977; Allen, 283 F.3d at 1078 . To the extent Defendants 19 argue that Peyton cannot state a claim for adverse employment action after February 2018, Mot. at 20 6, that argument is moot in view of the fact that the complaint does not allege any adverse 21 employment actions by Quinonez after that date. See Compl. ¶¶ 52-55. 22 Accordingly, the Court finds that Peyton has stated a claim for retaliation against 23 Quinonez. 24 4. Rodriguez 25 Defendants argue that Peyton fails to state a claim against Rodriguez because verbal and 26 written counseling “simply [are] not an adverse employment action,” there are other 27 interpretations for Rodriguez’s decisions to issue written and verbal counseling, Peyton does not 1 allege satisfactory work product and work ethic in November and December 2017, and Peyton has 2 not pled any facts suggesting that his attendance at the Hirokawa fundraiser was a substantial or 3 motivating factor in Cardoza’s actions. Mot. at 6–7. The Court disagrees. 4 First, the verbal and written counseling alleged here are similar to “unwarranted 5 disciplinary action” which the Ninth Circuit has found to be adverse employment actions that, in 6 combination with other actions, “amounted to a severe and sustained campaign of employer 7 retaliation that was ‘reasonably likely to deter’ [Peyton] from engaging in speech protected under 8 the First Amendment.” Coszalter, 320 F.3d at 977. 9 Second, the fact that there is an alternative interpretation for whether the written 10 counseling was justified is not a proper reason to dismiss a complaint, nor have Defendants cited 11 to any cases so holding. Defendants’ assertion that “two at-fault accidents cumulatively called for 12 written counseling” is not based on any language in the complaint, which says nothing about fault 13 for the accident. Compare Mot. at 6 with Compl. ¶¶ 36-39. 14 For the reasons discussed above as to Quinonez’s unwarranted criticism, Peyton’s 15 allegations concerning Rodriguez’s unwarranted criticism are likewise sufficient to state a claim. 16 See supra Section III.B.4. Rodriguez’s sudden criticism after Peyton’s protected speech stands in 17 sharp contrast to his previous expressed pleasure and praise for Peyton’s work and support for his 18 advancement. Compl. ¶¶ 16-18. 19 Last, Rodriguez’s acts began mere days after Peyton’s protected speech and continued for 20 the next few months. Compl. ¶ 40. The close temporal proximity between these events is 21 sufficient to infer that Peyton’s speech was the substantial or motivating factor for Lera’s inaction. 22 See, e.g., Coszalter, 320 F.3d at 977; Allen, 283 F.3d at 1078 . 23 Accordingly, the Court finds that Peyton has stated a claim for retaliation against 24 Rodriguez. 25 5. Smith 26 Defendants argue that Peyton fails to state a claim against Smith because any allegations 27 about Smith’s influence over the Disciplinary Review Board are “immaterial” based on Smith’s 1 ultimate power as Sheriff over discipline or termination. Mot. at 7-8 (citing Santa Clara County 2 ||} Ordinance Code § A20-2). They contend that Smith was fully justified in terminating Peyton’s 3 employment based on his surreptitious recording of Quinonez, which they say was a felony. The 4 || complaint does not allege any other retaliatory conduct on Smith’s part. 5 Peyton argues that Defendants’ reliance on Smith’s “authority over disciplinary decisions 6 || to essentially posit that no act taken under such authority . . . could violate 42 U.S.C. § 1983 ... is, 7 of course[,] absurd... .” Opp’n at 9. Peyton is required to plead facts from which it may be 8 || plausibly inferred that Smith would not have sought termination absent his protected speech. See 9 || Eng, 552 F.3d at 1070, 1072 . The Court finds that he has not done so here. The complaint alleges 10 || that Peyton was accused of surreptitiously recording his conversation with Quinonez, and absent 11 any facts suggesting that Peyton did not actually record the conversation or that the accusation was 12 || otherwise untrue or pretextual, Smith possessed the authority under Ordinance Code § A20-2 to 13 || terminate Peyton’s employment based on his recording. Peyton has not pled any other facts 14 || otherwise. 15 Accordingly, the Court grants the motion to dismiss as to Smith. 16 || Iv. CONCLUSION 3 17 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 18 Defendants’ motion to dismiss, with leave to amend to add facts from which it may be inferred 19 that Smith would not have sought his termination but for his protected speech. See Eng, 552 F.3d 20 || at 1070, 1072. Peyton shall file an amended complaint by May 16, 2022. 21 IT IS SO ORDERED. 22 || Dated: April 25, 2022 — 23 — — 24 — EDWARD J. DAVILA 25 United States District Judge — 26 — — 27 — 28 || Case No.: 5:19-cv-05871-EJD ORDER GRANTING IN PART AND DENYING IN PART MOT. TO DISMISS