Appendix — Rockwood v. O'Connell
Supreme Court brief1995
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OFFICE OF THE CLERK
NO. :
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1993
RICHARD ROCKWOOD,
Petitioner,
Vv.
BRIAN O'CONNELL and SHARON HILL,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT
DIVISION SIx
Patricia J. Barry
25835 Narbonne Ave., Ste 235
Lomita, California 90717
(310) 534-0093
Attorney for Petitioner RICHARD ROCKWOOD
oF TANNA PR VAY AOETEN OS Ne mR CON
TABLE OF CONTENTS FOR APPENDIX
FOR PETITION FOR WRIT OF CERTIORARI
Court of Appeal, Second Appellate
District, Division Six Opinion, filed
April ve 1994, Rockwood Vv.
OSG ha. a Bir SS HE eS 01-35
Supreme Court of the State of
California Order denying Petition for
Review, Rockwood v. O'Connell, filed
WENO 22, ISSE2 Cs KC lorsdtte 386. af: 36
Court of Appeal, Second Appellate
District, Division Six Order Denying
Petition for Rehearing, dated May 2,
1994. e 6 eB OSES 2 CR a av
Judge Bruce Dodds Oral Rulings on
Defendants Hill's and O'Connell's
Motions for Nonsuit and Directed
Verdict, August 11, 1992, Rockwood v.
Ree SS ik es Sb we 38-50
Superior Court Judgment of Nonsuit on
Rockwood v. O'Connell, filed August
oer Seen 6 8 6 Se SS eee es e BRORS
Court of Appeal, Second Appellate
District, Division Six Order Order,
1
. , filed July 27,
Se PUES. Pie SS f OB nere sai. 54-78
Superior Court o Tunc
Order Denying Defendants Hill's and
O'Connell's Motions’ for Summary
Judgment, filed November 18,1991
Seen’ © Stee toe Srmigk, avy 79-82
Court of Appeal, Second Appellate
10.
11.
District, Division Six Order,
Rockwood v. O'Connell, filed November
21, 309820073 «. Leas. Wea
Superior Court Decision and Order on
Motion for Summary Judgment, filed
June 22, 1992 ..-+«+«-e«-«-«e 99-87
Court of Appeal, Second Appellate
district, Division Six, Remittitur
filed October 3, 1990. .... .88
Plaintiff's Second Amended Complaint,
Rockwood Vv. O'Connell, __ filed
November 4, 1988 ...... 89-140
anf ta
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
2d Civ. No. BO70981
c/w No. B0O72207
RICHARD ROCKWOOD,
)
)
Plaintiff and )
: Appellant, ) (Super.ct. No.
) 167608)
) (Santa Barbara
) County)
Vv. )
)
BRIAN O'CONNELL )
and SHARON HILL )
)
)
)
Defendants and
Respondents.
Richard Rockwood (Rockwood) appeals
from the judgment after respondents,
Brian O'Connell (O'Connell) and Sharon
Hill (Hill), successfully moved for
nonsuit and a directed verdict after
Rockwood presented his Case-in-chief.
Respondents filed a separate appeal from
01
the denial of attorney's fees.! We
affirm.
FACTS
Rockwood brought this action under
title 42 United States Code, section
1983, alleging that respondents and
others harassed him and caused him to be
constructively terminated from his
employment with the County of Santa
Barbara (County) in retaliation for his
exercise of free speech regarding misuse
of County assets.
Previously, the trial court
sustained a demurrer to his entire second
amended complaint without leave to amend
1. The parties filed separate appeals
from the judgment and from the order
denying attorney's fees. We have
consolidated these cases.
02
Hota
mba
and entered judgment against him. In a
previous opinion, we-affirmed as to the
County of Santa Barbara and as to many
individual defendants.
As to respondents, who were his job
supervisors, we held that allegations
that they recommended that his job
category be eliminated in retaliation for
his exercise of the right to free speech
were sufficient to state a cause of
action. Public employees cannot be fired
for exercising their First Amendment
rights. (Thompson v. City of Starkville.
Miss. (5th Cir. 1990) 901 F.24a 456,
470.)?
2. This court filed Rockwood v. County
of Santa Barbara, B042448 as a
non-published opinion on July 27, 1990.
03
On remand, the trial court denied
respondents' summary judgment motions.
Attrial, Rockwood established that
respondents knew he testified before the
1984-1985 Grand Jury and that he ran for
a seat on the Board of Supervisors in
early 1986. He also made vague complaints
about Frank Hawthorne, a co-worker.
He introduced evidence regarding
various internal memoranda and meetings
which focused on managerial complaints as
to his job performance and his
recalcitrance to function as requested at
work.
Early in 1987, the County prepared
for a severe budget crisis which required
budget cuts including the permanent
elimination of the vehicle specialist
position Rockwood held. Although the
Board of Supervisors offered Rockwood a
04
Bt AT eT ON 9 Hottrths BARN Ces a cata Ahe ey | A ycched IR
5
roughly equivalent, underfilled position,
Rockwood elected to be laid off. He sued
the County and many others, including
respondents.
At the conclusion of Rockwood's
presentation of his case-in-chief,
respondents successfully moved for
nonsuit and a directed verdict. The trial
court denied Rockwood's motion for new
trial and this appeal ensued.
DISCUSSION
In the previous appeal we held that
"Actions brought under section 1983 are
subject to the statute of limitations for
personal injuries prevailing in the state
where the action is brought. (Wilson v.
Garcia (1985) 471 U.S. 261.) In
California, that time period is one year.
(Code Civ. Proc., § 340, subd. (3).)
Most of the acts alleged here occurred
05
6
outside of the statutory period. Rockwood
argues that he is entitled to maintain a
section 1923 action based on a continuing
pattern of harassment and retaliation
even if some of the acts occurred outside
the statutory period. Because some of
the acts were alleged to have occurred
within the statutory period, there would
seem to be little doubt that [Rockwood
may continue to prosecute this action as
to those acts]. However, under the usual
rule that the statute of limitations
begins to run upon the occurrence of the
last essential element of the cause of
action [citation], a separate limitation
should apply to each act of retaliation,
and we can see no basis for holding that
conduct occurring outside the statutory
period can give rise to a cause of action
under section 1983. Such a holding would
06
ee ee ee ee ee eee .
make a nullity of the concept of
limitations. . . . Thus, even though
Rockwood may be able to plead facts
occurring prior to the statute in an
attempt to show the County adopted
harassment as an official policy, he can
only state a cause of action for conduct
occurring within one year of the filing
of his complaint."
We are bound by the specific
standard elucidated by the United States
Supreme Court for section 1983 suits: a
plaintiff must bring an action under
section 1983 within the statute of
limitations applicable to tort actions
for the recovery of damages for personal
injuries in the state having jurisdiction
over the matter. (Wilson v. Garcia,
Supra, 471 U.S. at pp. 275-276; see also
Goodman v. Lukens Steel Co. (1987) 482
07
U.S. 656, 660-661.) In California, that
statute is Code of Civil Procedure
section 340, subdivision 3 which
specifies a one-year limitation.
The trial court properly followed
our previous holding and limited evidence
of acts of harassment to the one year
preceding August 10, 1987, when Rockwood
filed this suit. (Estate of Baird (1924)
193 Cal. 225, 258.)
Rockwood and several amicus curiae
request this court to reconsider our
previous holding limiting evidence under
the one-year statute of limitations in
light of our opinion in Accardi v.
Superior Court (1993) 17 Cal.App.4th 341,
in which we invoked the continuing
violation doctrine. Accardi is inapposite
to the instant case.
In Accardi, we held that petitioner
08
LOSI Dy
9
"may be able to prove that the employer's
actions in 1989 through 1991 were a
continuation of prior discriminatory
practices... ." (Id. at p. 350.)
Here, the facts actually proffered
at trial establish that respondent never
engaged in actionable discriminatory
practices. Accordingly, there could be no
prior "continuing" acts to which the
evidence presented could relate.
Standard of Review
"A defendant is entitled to a nonsuit if
the trial court determines that, as a
matter of law, the evidence presented by
plaintiff is insufficient to permit a
jury to find in his favor. [Citation. ]}
'In determining whether plaintiff's
evidence is sufficient, the court may not
weigh the evidence or consider the
credibility of witnesses. Instead, the
03
10
evidence most favorable to plaintiff must
be accepted as true and conflicting
evidence must be disregarded. The court
must give "to the plaintiff['s] evidence
all the value to which it is legally
entitled, .. . indulging every
legitimate inference which may be drawn
from the evidence in plaintiff['s}]
favor."' [(Citation.] A mere 'scintilla of
evidence' does not create a conflict for
the jury's resolution; ‘there must be
substantial evidence to create the
necessary conflict.' [Citation.]"
(Emphasis in original.)
"In reviewing a grant of nonsuit, we
are ‘guided by the same rule requiring
evaluation of the evidence in the light
most favorable to the plaintiff.’
[Citation.] We will not sustain the
judgment '"unless interpreting the
11
evidence most favorably to plaintiff's
case and most strongly against the
defendant and resolving all presumptions,
inferences and doubts in favor of the
plaintiff a judgment for the defendant is
required as a matter of law.' (Citation. }
Keeping in mind the foregoing standard of
review, we now turn to the merits."
(Nally v. Grace Community Church (1988)
47 Cal.3d 278, 291.)
Elements Of The Cause Of Action
Title 42 United States Code section
1983 provides, in pertinent part, that
"Every person who, under color of any
statute, ordinance, regulation, custon,
or usage, of any State... subjects, or
causes to be subjected, any citizen of
the United States ... to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
11
12
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress. ..."*
Under section 1983, a public
employee must show that his or her speech
concerns a matter of public interest.
"When [public] employee expression cannot
be fairly considered as relating to any
matter of political, social, or other
concern to the community, government
officials should enjoy wide latitude in
managing their offices, without intrusive
oversight by the judiciary in the name of
the First Amendment. .. ." (Connick v.
Myers (1983) 461 U.S. 138, 146.)
An employee must show "that his
conduct was constitutionally protected,
and that this conduct was a ‘substantial
factor'--or, to put it in other words,
12
13
that it was a ‘motivating factor' in the
[employer's] decision... ." (Mt,
Hea it ° : V. Doyle (1977)
429 U.S. 274, 287; fn. omitted.) ‘If the
employee establishes that his or her
speech involves a matter of public
concern which motivated the employment
decision, the government agency bears the
burden to justify the discharge on
legitimate grounds. (Rankin v. McPherson
(1987) 483 U.S. 378, 388.)
The employer then must show by a
preponderance of the evidence "that it
would have reached the same decision [on
whether to retain the employee) even in
the absence of the protected conduct."
(Mt, Healthy CitY Board of Ed. v. Doyle,
Supra, 429 U.S. at p. 287.) The
employer's burden varies "depending upon
the nature of the employee's expression.
13
14
- -" (Connick v. Myers, supra, 461 U.S.
at p. 150.)
In balancing these concerns, courts
consider the time, manner and place of
the expression, and the context in which
it arose to determine whether the
expression impairs or interferes with the
effective functioning of the office so as
to outweigh the plaintiff's First
Amendment rights. (Rankin v. McPherson,
Supra, 483 U.S. p. 388.)
Courts must strike "'a balance
between the interests of the [employee],
as a citizen, in commenting upon matters
of public concern and the interest of the
State, as an employer, in promoting the
efficiency of the public services it
performs through its employees.'" (Mt.
Healthy City Board of Ed. v. Doyle,
Supra, 429 U.S. at p. 284, quoting
14
hs cereererereeeeeecemeammmmemnniiaiaiaaiaiaiil
15
Pickering v. Board of Education (1968)
391 U.S. 563, 568.) This balance
“requires full consideration of the
government's interest in the effective
and efficient fulfillment of its
responsibilities to the public." (Connick
v. Myers, supra, 461 U.S. at p-.- 150.)
"([W)jhen a public employee speaks not
as a citizen upon matters of public
concern, but instead as an employee upon
matters only of personal interest, absent
the most unusual circumstances, a federal
court is not the appropriate forum in
which to review . .. a personnel
decision taken by a public agency
allegedly in reaction to the employee's
behavior. [Citation.]" ( Id. at p. 147.)
Government has the prerogative to remove
quickly employees whose conduct hinders
efficient operation without fear of
16
reprisals in the form of lawsuits. (Id.
at p. 151.)
In Connick, an Assistant District
Attorney was fired for insubordination
after she circulated a questionnaire
soliciting the views of fellow employees
regarding office transfers, office
morale, the need for a grievance
committee, the level of confidence in
supervisors and whether employees felt
pressured to work in political campaigns.
(Id. at p. 141.) The only matter
remotely concerning the public was the
issue of working in political campaigns.
The Supreme Court held that because the
questionnaire as a whole "touched upon
matters of public concern in only a most
limited sense" the employer need not
"tolerate action which he reasonably
believed would disrupt the office" her
17
discharge "did not offend the First
Amendment." (Id. at p. 154.)
"Whether an employee's speech
addresses a matter of public concern must
be determined by the content, form, and
context of a given statement, as revealed
by the whole record. ..." (Id. at pp.
147-148.) That inquiry is one of law, not
of fact. (Id. at pp. 147-148, see fn. Ve)
Squabbles by an employee over
internal affairs generally do not rise to
the level of constitutionally protected
speech. (Ibid.) Such evidence reflects
that employee's dissatisfaction with the
status quo or with the transfer, demotion
or release from work. (Ibid."
Accepting Rockwood's evidence as
true, could a reasonable jury find
substantial evidence that Rockwood spoke
out about matters of public concern after
18
August 10, 1986 motivating either Hill or
O'Connell to retaliate against him? If
so, did defendants bear the burden of
establishing that they would have reached
the same decision on legitimate business
grounds regardless of his speech." We
have perused the entire transcript to
consider these questions.
In 1980, Rockwood joined County
employment as an Equipment Specialist in
the Public Works Department. On September
3, 1984, Brian O'Connell was appointed
director of the newly-created Department
of General Services to supervise a staff
of approximately 140 people. During
November 1984, Sharon Hill became an
assistant director of General Services
supervising approximately 45 to 50
employees including Rockwood, who was
appointed to the newly-created position
18
19
of Vehicle Specialist in December 1984.
O'Connell and Hill first met Rockwood in
1984.
In May 1984, Rockwood made some
general comments to O'Connell that
another supervisor held Rockwood back
from accomplishing work and that Rockwood
thought that another employee was hard to
control. These comments are outside the
limitations period and are too general to
consider.
Hill reviewed Rockwood's personnel
file and became aware that his former
supervisors in public works may have
reprimanded or disciplined Rockwood for
complaining about the possibility that
two employees might be engaged in a scam
to use County time and parts to repair
private vehicles. Although such
complaints would be actionable protected
19
20
speech, they are barred by the statute of
limitations.
Rockwood complained to the 1984-1985
Grand Jury that county employees had been
misusing County garage and fuel
facilities. Shortly thereafter, an
investigator in the District Attorney's
office called O'Connell to discuss such
allegations. O'Connell was unaware
Rockwood had gone to the Grand Jury, but
he surmised that perhaps Rockwood had
done so because of the juxtaposition of
the general complaints Rockwood had made
to him at the end of 1984 and the call
from the District Attorney's office.
This incident, too, is beyond the reach
of the statute of limitations.
Between May and September 1985, Hill
required Rockwood to report his work
activities regarding this newly-created
20
ee
21
position in a daily log. He presented no
evidence that he complained to her in
these logs about matters of public
importance. He maintains generally that
the request constituted harassment.
Again, the statute of limitations is a
bar to this complaint. Furthermore, it is
undisputed the position evolved over time
and that Hill had a legitimate business
reason to find out what activities the
newly-created position actually entailed.
It therefore is immaterial that Hill
relied in minor part on these early logs
to recommend deletion of the vehicle
specialist position.
Between January and July 1986,
Rockwood ran for the Fifth District
Supervisor's seat. Rockwood did not tell
respondents he was running for office.
Neither Hill nor O'Connell resided in the
21
22
area covered by the district and there is
no substantial evidence that either knew
anything more about his campaign than
that he was running. No retaliation
would be possible under these
circumstances and the statute of
limitations bars action regarding
statements he may have made during the
campaign.
On October 15, 1986, Hill sent
Rockwood a memorandum stating that he is
responsible for problems involving the
transfer of vehicles between departments.
Rockwood denied responsibility. This
does not involve constitutionally
protected speech under Connick.
On October 24, 1986, Hill wrote
Rockwood a memorandum asking him to cease
taking excessive lunch breaks.
Rockwood's direct supervisor, Frank
22
23
Hawthorne, whom he previously supervised,
reported this problem to Hill. He denied
it. Again, this incident does not involve
constitutionally protected speech as a
matter of law.
On November 3, 1986, Hill sent
Rockwood a memorandum expressing concern
that payroll was not receiving his time
cards on time. Hill told Rockwood to
give Hawthorne his time cards to insure
that Rockwood would get paid on time. He
disobeyed this directive and brought the
time cards in himself, presumably because
he did not trust Hawthorne. Again, this
incident is not of public concern.
On the same day, Hill sent Rockwood
another memorandum relaying a complaint
from an assistant director of the public
works department that Rockwood was
improperly using their "road" copying
23
24
machine in Santa Maria. Rockwood asserted
he was being singled out because he and
others knew that he was not the only
person outside of public works using that
machine. There is no substantial
evidence that Hill knew this. Therefore,
her memorandum could not be considered
harassment or retaliation for any
constitutionally protected free speech.
She simply responded to the legitimate
business concern of another supervisor
which was not. a matter of public import.
On November 5, 1989, Rockwood sent
Hill a memorandum complaining that she
failed to help him with an idea to
improve the way fuel cards were used.
Rockwood failed to get these cards in on
a timely basis. Again, this matter does
not constitute, protected speech and there
is no showing she retaliated against him
' 3
25
even though he was admittedly remiss in
this duty.
The purchasing agent for general
services, Jim Belcher, wrote Hill |
regarding Rockwood's failure to provide
proper specifications for the replacement
of County vehicles. On January 6, 1987,
O'Connell, Hill, Rockwood, Belcher and
others met to discuss this matter.
Rockwood disagreed with the views of his
supervisors as to these specifications
and on how long to keep County vehicles
before auctioning them to the public. He
also disagreed about how much money
should be spent to make vehicles for
auction serviceable. Rockwood admitted
that delays occurred when both Rockwood
and Hawthorne had to jointly sign off on
whether to auction vehicles and how to
proceed. Accordingly, on April 6, 1987,
29
26
Hill removed this responsibility from
Rockwood and gave it to Hawthorne.
Rockwood believed the County should
spend only enough money on vehicles for
auction so that people could get them off
the County lot, even if it might leave
them unsafe. Under Connick,
disagreements with the directives of
supervisors regarding such legitimate
business matters are not bases for a 1983
action.
Rockwood wrote Hill and O'Connell
complaining that he saw some alcohol at a
birthday barbecue held during lunch for
an employee. Again, this kind of
complaint simply does not pass muster
with the requirements elucidated in
onnick.
Rockwood asserted that Hill asked
him a few times over the years she
26
27
supervised him " 'Why do you stay? Why
don't you leave? You're not going to
change the system.'" She never
elaborated on these statements and
Rockwood could not place these statements
in the context of any events.
In January 1987, O'Connell asked all
department managers to recommend budget
reductions because the County had a
severe budget crisis. Hill, among other
things, recommended deletion of the
vehicle specialist position held by
Rockwood. Hill and Carl Hopkins, another
assistant director, recommended about
$500,000 in cuts for the next fiscal
year.
Hill indicated that the vehicle
specialist position had turned out to
involve part-time, seasonal activities,
such as vehicle acquisition and auctions
27
28
which could be subsumed under the aegis
of the garage superintendent and others.
O'Connell accepted all of her
recommendations as well as those of his
other assistant director, Carl Hopkins,
and forwarded them to the County
Administrative Officer, David Elbaun.
Elbaum met with O'Connell and discussed
whether there was an unfilled position
Rockwood could take. Elbaum forwarded the
recommendations, which included the
deletions of other positions, to the
Board of Supervisors. The Board
abolished the vehicle specialist position
along with several others. Ultimately,
the Board deleted 30 positions ln the
County.
The Personnel Department determined
that the only position Rockwood could
fill was a shop supervisor position in
28
29
Santa Maria, which was near his home.
The pay was nearly identical to the
vehicle specialist position. The
position, however, required Rockwood to
report to Hawthorne again.
nockwéod was not sure Hill had
recommended the deletion of the position,
but Rockwood knew there was a severe
budget crisis within the County. On June
8, 1987, O'Connell and Hill wrote
Rockwood informing him that the vehicle
specialist position he had held was being
abolished by the Board of Supervisors at
the end of June 1987, due to cuts to the
general fund for the County.
Rockwood complained to the Board
about this and the Board instructed
O'Connell to write Rockwood again about
its decision. Rockwood decided to turn
down the shop supervisor position, and
29
30
accept the lay off.
Our review of the entire record
reveals that Rockwood presented no
substantial evidence upon which a jury
could find that respondents retaliated
against him for his exercise of free
speech or for harassment during the
pertinent period of time.
Attorney's Fees
Hill and O'Connell filed a separate
appeal from the trial court's denial of a
post trial motion for attorney's fees
brought pursuant to title 42 United
States Code section 1988. Rockwood filed
a cross-appeal regarding the award of
costs. We have consolidated this matter
with the initial appeal from the judgment
of nonsuit in this action. Hill and
O'Connell contend that because the trial
court made a finding that the Civil
30
31
Rights action "was completely frivolous"
they are entitled to attorney's fees
under section 1988. (Hughes v. Rowe
(1980) 449 U.S. 5.) Not so.
Title 42 United States Code section
1988 states, in pertinent part, "In any
action . . . to enforce a provision of
sections . .. 1983 .. . of this title .
. . the court, in its discretion, may
allow the prevailing party ...a
reasonable attorney's fee as part of the
costs."
A trial court may award a defendant
attorney's fees in a 1983 case if the
suit is "frivolous, unreasonable, or
without foundation, even though not
brought in subjective bad faith."
(Christiansburg Garment Co. v. EEOC
(1978) 434 U.S. 412, 421--a Title VII
case which was extended to cover section
31
32
1983 actions in Hughes v. Rowe, supra,
449 U.S. at p. 14.)
The Christiansburg court cautioned
trial courts to be circumspect in
awarding attorney's fees to defendants
lest they chill all "but the most
airtight claims ... ." (434 U.S. at p.
422.) Defendants must show that the
action meets these strict standards,
supra, “or that the plaintiff continued
to litigate after" it became undisputable
that there was absolutely no merit
whatsoever to any of the claims made
before a trial court should consider
assessing these fees against a 1983
plaintiff. (Ibid.)
Cases are not “'groundless' or ‘without
foundation'" within the meaning of
section 1988, where the allegations, as
here, "deserved and received the careful
32
33
consideration" of the courts, even if
they are ultimately dismissed for failure
to state a claim requiring trial. (See
Hughes v. Rowe, supra, 449 U.S. at pp.
15-16.)
Thus this matter lies within the
broad discretion of the trial court which
carefully and properly considered the
standards set forth in Christiansburg and
Hughes as applied to the history of this
case. It ruled that although Rockwood's
attorney failed to realize that his )
action was legally and factually ;
insupportable, the County should not
recover attorney's fees. Rockwood
establishes no basis for overturning the
trial court's determination. Accordingly,
we affirm the denial of attorney's fees.
(Perko's EnterPrises, Inc. v. RRNS
Enterprises (1992) 4 Cal.App.4th 238.)
33
34
The judgment is affirmed. Costs to
respondents.
NOT TO BE PUBLISHED.
STONE, P.J.
We concur:
GILBERT, J.
YEGAN. J.
34
35
Bruce M. Dodd, Judge
Superior Court County of Santa Barbara
Patricia J. Barry for Plaintiff and
Appellant.
Stephen Kohn for Amicus Curiae
National Whistleblower's Center on behalf
of Plaintiff and Appellant.
Carol A. Sobel, Jon W. Davidson and
Paul L. Hoffman for Amicus Curiae ACLU
Foundation of Southern California on
behalf of Plaintiff and Appellant.
Joseph Posner for Amicus Curiae
California Employment Lawyers Association
on behalf of Plaintiff and Appellant.
Tardiff & Staton by Neil S. Tardiff
and David Nawi, County Counsel, and David
L. Allen, Sr. Deputy County Counsel for
Defendants and Respondents.
39
Second Appellate District,
Division Six, No. BO70981
S039912
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
IN BANK
RICHARD ROCKWOOD, Appellant
vs.
BRIAN O'CONNELL Et Al., Respondents
Appellant's petition for review DENIED.
LUCAS
Chief Justice
36
OFFICE OF THE CLERK
COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
JOSEPH A. LANE, CLERK
DIVISION: MAY 2, 1994
BO72207
Patricia J. Barry
25835 Narbonne Ave.
Suite 235
Lomita, CA. 90717
RE: Rockwood, Richard
VS .
O'Connell, Brian
Hill, Sharon
2 Civil BO72207
Santa Barbara No. 167608
THE COURT:
Petition for rehearing denied.
37
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
RICHARD ROCKWOOD,
Plaintiff and
Appellant,
vs. No. 167608
BRIAN O'CONNELL,
et al.,
Defendants and
Respondents.
ee ee ee ee ee ee ee ee eee See
‘
APPEAL FROM THE SUPERIOR COURT
OF SANTA BARBARA COUNTY
HONORABLE BRUCE WM. DODDS, JUDGE
REPORTER'S TRANSCRIPT ON APPEAL
APPEARANCES:
For Plaintiff & Appellant:
PATRICIA J. BARRY
Attorney at Law
25835 Narbonne Ave.,Suite 235
Lomita, CA 90717
For Defendant & Respondent
SHARON HILL: NEIL S. TARDIFF
TARDIFF & STATON
136 West Canon
Perdido, Suite C
38
Santa Barbara, CA
93121
For Defendant & Respondent
BRIAN O'CONNELL: DAVID L. ALLEN
Sr Deputy County
Counsel
County of Santa
Barbara
105 East Anapamu
Street
Santa Barbara, CA
93101
Reported by: JANA B. COOKSEY,
CSR NO. 7399
Official Court Reporter
Superior Courthouse, Dept. 2
Santa Barbara, CA
Volume IV of IV
(Pages 682 through 958, Inclusive)
39
(Brief recess.)
(The following proceedings were held
in open court outside the presence
and hearing of the jury:)
THE COURT: All right.
Now, we have all the jurors out,
we can proceed.
All right. Mr. Tardiff and Mr.
Allen, you've filed a motion for directed
verdict, and motion for nonsuit. I've had
a chance to review the material. I'm
assuming -- I know that you gave a copy of
it to Miss Barry at the same time that you
gave it to me.
Are you ready to proceed at this
time?
MR. TARDIFF: We are, your Honor.
40
THE COURT: All right.
Miss Barry, are you ready to
respond to the motion?
MS. BARRY: As best I can, yes.
THE COURT: All right. |
You wish to be heard on it?
MR. TARDIFF: Yes, your Honor.
This is not your’ typical
nonsuit that I've brought before this
Court on many other occasions where I'm
doing it more for the record than anything
else. This is a motion because nothing in
this case from the beginning of it up
until this point in time of any substance
has been provided to this jury other than
a lot of innuendoes from questions where
answers were never given, and I think
thatthat's why a nonsuit should be granted
in this case.
923
41
The jury needs to know that
these type of cases do not go to them
unless there's been sufficient evidence to
give then, and there hasn't _ been
sufficient evidence. There has been no
evidence of even any nexus between this
alleged speech of Mr. Rockwood, and any
act of Mrs. Hill and Mr. O'Connell, just
absolutely no nexus.
I mean, Judge, do I need to go
through the evidence?
THE COURT: I'm familiar with the
evidence. I reviewed it here, and it
really hasn't been that long a trial.
MR. TARDIFF: Right.
And everything in between,
all the stuff in between has been
innuendos and questions that the jury may
think that that's evidence, and this is a
strong motion for a nonsuit. It's going to
stand up on appeal, and it should be
42
granted.
THE COURT: I'm going to say the same
thing that I did earlier to you, Mr.
Tardiff. It's my belief that this Court
of Appeals that I'm sitting under, and
frankly almost all Court of Appeals takes
a different attitude about motions for
nonsuit, directed verdicts, than if it
goes to the jury.
MR. TARDIFF: I understand that.
THE COURT: Now, as a matter of
policy and a matter of tactics, not as
law, I question whether you're making a
mistake or not. Even assuming that I
granted this, obviously, then, Miss Barry
could take an appeal on it, and
957
43
they did to Mr. Rockwood, in particular
the job abolishment, because of his
exercise of free speech.
THE COURT: All right.
I'm going to grant the motion
for nonsuit for
Mr. O'Connell. It's clear to me that
there is just no evidence that would
support a verdict against Mr. O'Connell
at this point.
Now, with regard to Miss Hill,
I want you to address the Erickson case.
Mr. O'Connell, there's just no
evidence to support any cause of action
against him. No jury could possibly so
find, and reasonable minds would not
differ. The speculation, suspicion,
surmise, guess, conjecture is just not
sufficient, and that's all there is.
44
a
ae
Now, at least with Miss Hill,
there are some, these memos back and
forth. I want you --
MR. TARDIFF: I will address
that case. |
THE COURT: Address that, Mr.
Tardiff.
MR. TARDIFF: Yes. I think that
you and I both are used to reading cases
on a preponderance of the evidence,
negligence standpoint in reading these
nonsuits, and when you read the Erickson
case, and you look at all the different
facts, you say, geez, you know, a
reasonable jury could conclude that maybe
it was retaliatory, because of just the
facts in and of themselves.
The point of Erickson is that
this is not a negligence case. This is a
42 U.S.C. 1983 cause of action
that requires intentional, intentional,
45
intentional conduct. Doesn't require
negligent conduct, and so when you're
946
46
analyzing the facts as to whether it gives
rise to an inference, you have to analyze
them with -- take off your negligence cap
and put on your intentional cap.
THE COURT: All right.
Assuming that under the facts
that are presented to me, it's very
difficult to believe that there's any
intentional act on Miss Hill, but that's
not the test. The question is, here, is
there -- if we went to the jury right
now, could it be upheld on appeal? Would
there be substantial evidence to support
the verdict?
MR. TARDIFF: Absolutely not. And I
can go through, if you want me to go
through each piece of evidence.
THE COURT: Let's discuss the pieces
of evidence regarding Miss Hill, because
there is substantial greater
47
relationship in context between Mr.
Rockwood and Miss Hill than Mr. O'Connell.
There, there was such a minimal contact,
and the only evidence is that he endorsed
and supported the recommendations of Miss
Hill, and I willI accept your offer of
proof in that regard, and then he made a
recommendation based on Miss’ Hill's
recommendations. There's just no evidence
there with regard to Mr. O'Connell, but
there, if you buy Miss Barry's theory, you
say that Miss Hill did all of these
things for the ulterior motive to somehow
get Mr. Rockwood.
MR. TARDIFF: Correct.
THE COURT: Now, there's no direct
evidence.
MR. TARDIFF: OKay.
THE COURT: There's no doubt about
that.
MR. TARDIFF: Right.
947
MR. TARDIFF: I don't think that's
the way Mount Healthy looks at it. They |
look at it, "Would this have happened, no
matter who would have done i@;
notwithstanding any retaliation?"
THE COURT: Frankly, although I did
read Mount Healthy, I haven't read it in
the last month. I read it the
first time we were going through this, and
I don't really know, although from a
practical standpoint, it doesn't really
matter at this point. That really is your
affirmative defense, and we haven't gotten
there yet. We're really only
talking about the second issue.
MR. TARDIFF: That's the focus of this
motion. I think we've put on sufficient
evidence for our defense anyway, but
that's a different story.
THE COURT: That's a separate issue.
MR. TARDIFF: But we're talking about
49
causation, and so the same issues are
involved because of the causation.
She says there's no chain of causation,
Judge. Come on.
I will point out to the Court
Exhibit 32 and Exhibit 34 are the chain of
causation.
THE COURT: Based on the material
before the Court, I'm going to grant the
motion with regard to Miss Hill,
particularly so in light of the Erickson
case. I think that that really is the
deciding issue before me. It's very clear
that the Federal Ninth Circuit Court of
Appeals is telling me that supposition,
conjecture is just not sufficient, and
that's all there really is here, and for
that reason, the Court will grant the
motion.
"50
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
RICHARD ROCKWOOD, CASE NO. 167608
Plaintiff,
JUDGMENT OF
NONSUIT
)
)
)
)
)
vs. )
)
BRIAN O'CONNELL, )
)
)
)
)
et al.,
Trial Date: July
1, 1992
Defendants Place: Dept. Two
This case came on regularly for trial
by jury on July 1, 1992 in Department Two
of the above-entitled court, the Honorable
Bruce Wm. Dodds, Judge Presiding.
Plaintiff, RICHARD ROCKWOOD, appeared
ol
through his attorney of record, Patricia
Barry. Defendant, BRIAN O'CONNELL,
appeared through his attorney of record,
David Allen of the Office of County
Counsel. Defendant, SHARON HILL, appeared
through her attorney or record, Neil S.
Tardiff of Tardiff & Staton. Evidence,
both oral and documentary, was presented
by plaintiff and on August 3, 1992
plaintiff rested. Immediately after
plaintiff completed the presentation of
his evidence and rested, defendants moved
this court pursuant to Code of Civil
Procedure, sections 58lc and 630 for a
judgment of nonsuit and/or directed
verdict on the grounds that insufficient
evidence was introduced to justify a
verdict in plaintiff's favor. After
reviewing the moving papers and hearing
oral arguments on said motions and after a
review of the evidence presented, the
02
court concluded that the evidence
presented supported the granting of
said motions and enters judgment
accordingly:
IT IS ORDERED, ADJUDGED AND DECREED
that
1. Judgment be entered in favor of
Defendants, BRIAN O'CONNELL and SHARON
HILL and against Plaintiff, RICHARD
ROCKWOOD
2. Attorneys fees may, after proper
motion, be awarded to Defendants pursuant
to 42 U.S.C., section 1988.
a. Costs pursuant to Code of Civil
Procedure, section 1033.5 are awarded in
an amount determined pursuant to. an
appropriate memorandum of costs subject to
a timely motion to tax.
DATED:
Judge of the
Superior Court
od
NOT TO BE PUBLISHED
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RICHARD ROCKWOOD, 2d Civil No.
B042448
Plaintiff and (Super. Ct. No.
Appellant, 167608)
)
)
)
) (Santa Barbara
Vv. ) County)
)
COUNTY OF SANTA )
BARBARA, et al., )
)
)
)
Defendants and
Respondents.
Richard Rockwood appeals from a
judgment of dismissal entered pursuant to
the sustaining of a demurrer to his second
amended complaint without leave to amend.
The complaint alleges that he was harassed
by his job supervisors and his employment
with the County of Santa Barbara (the
County) was constructively terminated
04
because he tried to prevent the misuse of
County assets. The action was. brought
under title 42 United States Code, section
1983! and the constitutions of the United
States and California.
The complaint names the _ County,
members of the board of ‘supervisors as
individuals, the directors and assistant
directors of various County departments as
individuals, the County counsel, the
County personnel director, and a garage
supervisor as individuals.
We affirm as to the county and some
individual defendants, and reverse as to
other defen “ants.
1/ All further statutory references are to
title 42 of the United States Code unless
otherwise specified.
00
FACTS
The facts alleged in the second
amended complaint are as follows:
In 1980 Rockwood was hired by the
County as an equipment superintendent for
the transportation department. As part of
his job he was directed to resolve
problems including misuse of equipment and
inappropriate personnel assignments.
Rockwood's supervisors were aware
that one employee in particular, Frank
Hawthorne, was misusing County equipment
and time, but when Rockwood attempted to
discipline Hawthorne, he was overruled by
his job supervisors. Those supervisors did
not want misuse of County assets to stop
and permitted Rockwood's co-workers and
subordinates to ignore his instructions.
Nevertheless, Rockwood continued in his
attempt to correct the problem until the
termination of his employment in June
06
hc caieecaeeeeeaaaaiiaiadl
1987.
One of Rockwood's job-supervisors was
a good friend of an aide to a member of
the County board of supervisors. The aide
and her family were part owners of the
Casmalia waste dump, and the job
supervisor had obtained approval for the
County to expend $2.8 million to improve
roads to the dump. In April of 1982
Rockwood went to the board member's office
at the board member's request to discuss
County business. Fearing Rockwood was
passing on information to the board member
concerning the connection between the aide
and the job supervisor, the job supervisor
asked Rockwood to resign. When Rockwood
refused to resign, he was fired. Rockwood
appealed to the civil service commission
and was reinstated to employment in August
of 1982.
Enraged that Rockwood won
o7¢
reinstatement, job supervisors and
employees began a campaign of harassment
that continued until Rockwood's employment
was constructively terminated in June of
1987. The campaign included false
reprimands and performance reports,
assigning Rockwood to isolated and unfit
work places, imposing work requirements
not imposed on other employees, and making
it impossible for Rockwood to do his job.
In August of 1983, the drinking water at
Rockwood's workplace was poisoned, and in
November of 1984 the tires on Rockwood's
car were punctured with an ice pick. It
was never determined who poisoned the
water or punctured the tires.
In July of 1984 Rockwood personally
delivered to each member of the board of
supervisors a cover letter and a packet of
documents illustrating the harassment he
had been subjected to. In the cover letter
98
he discussed how his job supervisors
planned to eliminate his position as
equipment superintendent. In November of
1984 the board, at his job supervisor's
request, eliminated the position of
equipment superintendent. Rockwood was
demoted to vehicle specialist.
Despite his demotion, Rockwood was
entitled to retain his current level of
pay under a civil service provision known
as the "Y factor." His job supervisors did
not tell him of the Y factor and refused
to assist him in obtaining higher pay when
he brought it to their attention.
Eventually, he obtained yY factor pay
through the personnel department.
On December 1, 1986, Rockwood was informed
by his job supervisor that he was going to
lose Y factor pay as of December 15. On
December 2 Rockwood wrote the board of
supervisors, but they refused to
09
investigate the loss in pay.
In June of 1987, in a final attempt
to drive Rockwood out of County
employment, his job supervisor sent him
written notice that his position as
vehicle specialist would be abolished as
of June 30. Rockwood wrote a letter to the
board of supervisors complaining of the
demotion. A job supervisor responded at
the request of the board, but the decision
to abolish the position was not withdrawn.
Rockwood claims the action "constructively
terminated" his employment with the
County.
The complaint’ states: "Defendant
Board Members knew the recommendation for
eliminating Mr. ROCKWOOD'S job was based
on funding constraints [sic] and yet, at
the same time they approved a pay increase
for Defendant HAWTHORNE and were aware he
had recently received three others."
60
However, the complaint elsewhere states
Hawthorne's promotion to garage supervisor
and pay increase took place "some time
between July 1, 1987 and April 1988," that
is, after, rather than at the uone time,
Rockwood's job category was eliminated.
In addition to allegations that the
board of supervisors refused to take
action to stop the harassment,’ the
complaint also alleges that the County
counsel and the chief administrative
officer refused to take action.
The trial court’ sustained the
demurrer without leave to amend, and
Rockwood appeals the ensuing judgment of
dismissal.
DISCUSSION
I
Section 1983 provides in part:
"Every person who, under color of any
statute, ordinance, regulation, custom, or
61
usage, of any State . . . subjects, or
causes to be subjected, any citizen of the
United States .. . to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured in an
action at law, suit in equity, or other
proper proceeding for redress."
Actions brought under section 1983
are subject to the statute of limitations
for personal injuries prevailing in the
state where the action is brought. (Wilson
v. Garcia (1985) 471 U.S. 261.) In
California, that time period is one year.
(Code Civ. Proc., § 340, subd. (3).)
Most of the acts alleged here
occurred outside of the statutory period.
Rockwood argues that he is entitled to
maintain a section 1983 action based on a
continuing pattern of harassment’ and
retaliation even if some of the acts
62
occurred outside the statutory period.
Because some of the acts were alleged
to have occurred within the statutory
period, there would seem to be little
doubt that Rockwood's entire action is not
barred by the statute of limitations.
However, under the usual rule that the
statute of limitations begins to run upon
the occurrence of the last essential
element of the cause of action (Kensinger
Vv. ~“bbott Laboratories (1985) 171
Cal.App.3d 376, 381), a separate
limitation should apply to each act of
retaliation, and we can see no basis for
holding that conduct occurring outside the
statutory period can give rise to a cause
of action under section 1983. Such a
holding would make a nullity of the
concept of limitations. Cases relied on by
Rockwood, such as Page v. United States
(D.Cc.Cir. i984) 729 F.2d 818, have no
63
stalls
application here because they are not
based on the California statute of
limitations. Thus, even though Rockwood
may be able to plead facts occurring prior
to the statute in an attempt to show that
the County adopted harassment as_ an
official policy, he can only state a cause
of action for conduct occurring within one
year of the filing of his complaint.
A. Liabilitv of County
A local gqovernment is not liable
under section 1983 for injuries inflicted
solely by its employees or agents; rather
it is only where the execution of the
official policy or custom of a local
government inflicts injury that’ the
government as an entity is responsible.
(Monell v. Ww Ci a: 2 °F
Serv. (1978) 436 U.S. 658, 694.)
"Municipal liability attaches only where
the decisionmaker possesses final
64
authority to establish municipal policy
with respect to the action ordered. The
fact that a particular official--even a
policymaking official--has discretion in
the «xercise of particular functions does
not, without more, give rise to municipal
liability based on an exercise of that
discretion." (Pembaur v. Cincinnati (1986)
47S U.S. 469, 481-482, fn. omitted.)
Here there is no allegation that
Rockwood's job supervisors possessed the
final authority to establish any municipal
policy. To the contrary, the complaint
alleges that the members of the board of
supervisors were "ultimately responsible"
for policies concerning the treatment of
County employees. Therefore, if the County
is liable, liability must be based only on
policies adopted by the board of
supervisors; it cannot be based. on
policies adopted by job supervisors or any
69
other County employee. Rockwood must plead
facts sufficient to show that the board of
supervisors expressly or impliedly adopted
the official policy of harassing County
employees who exercised their First
Amendment rights.
Rockwood argues the County impliedly
adopted the policy by failing to act when
the board members were notified of the
harassment. However, only where a failure
to act reflects a deliberate and conscious
choice by a municipality can a
municipality be liable for such failure
under section 1983. (Canton v. Harris
(1989) 489 U.S. __,.... [103 L.Ed.2d 412,
427).)
Here Rockwood wrote the board of
supervisors in July of 1984 giving details
of the harassment he claims he suffered.
There is no allegation that he followed up
on the letter or otherwise pressed board
66
a
members for action. The next contact with
the board was not until almost two and a
half years later, in December of 1986,
when he wrote the board asking them to
investigate the loss of his "Y factor"
pay. He did not allege facts to show that
he was entitled to continue to receive "yY
factor" pay. He wrote the board a final
time to protest the elimination of his job
Classification. The stated purpose for the
elimination of the job classification was
"fiscal constraints." No facts are
alleged to show that this was not the true
purpose as far as the board of supervisors
was concerned; that Hawthorne was later
promoted to a different position shows’
nothing.
A County board of supervisors
ordinarily does not become directly
involved with employee complaints. That
the board was reluctant to intervene in
67
te a Dh
personnel matters upon the complaint of a
Single employee does not show that they
made a deliberate and conscious choice to
adopt a policy of harassment and
retaliation. Nor is the allegation that a
job category was eliminated sufficient to
show that the board members adopted a
policy of harassment. No cause of action
was stated against the County as an
entity. Rockwood's reliance on Thompson v.
City of Starkville (5th Cir. 1990) 901
F.2d 456 is misplaced. The issue of
municipal liability was not discussed
there. A case is not authority for matters
not discussed therein. (Wasson v. Atlantic
National Ins. Co. (1962) 207 Cal.App.2d
464, 471.)
B. Members of the Board of Supervisors
We find no cause of action alleged
against members of the board of
supervisors as individuals. Not only are
68
**A\FFIRMED IN PART AND REVERSE IN PART**
Fach Party To Bear Own Costs On Appeal.
i witness my hand and the seal of the State
affixed my office this Oct l 1990
ROBERT N. WILSON, Clerk
By:
Deputy Clerk
EXHIBIT 1
140
exercise of his right of free speech. That
is sufficient to state a cause of action
as to those defendants.
The only specific allegations against
Ronald Gilman and Frank Hawthorne
occurring within the statute of
limitations were that they spied on
Rockwood at work. This is not conduct that
violates clearly established statutory or
constitutional rights, and thus no cause
of action was stated as to those
defendants.
The complaint alleges that county
personnel director Steve Schinnerer
refused to stop the abolition of
Rockwood's job category even though he
knew or should have known the action was
retaliatory. However, there are not
sufficient facts alleged to show that
Schinnerer himself had any retaliatory
motive, only that he failed to _ stop
71
retaliatory action taken by . others.
Similarly, although the complaint alleges
that County Administrator David Eibaum
approved the abolition of Rockwood 's job
category and County Counsel Kenneth lL.
Nelsen defended the County, there is no
sufficient allegation that they had any
retaliatory motive in doing so.
Rockwood cites no authority to
support the proposition that such
omissions or actions taken without
retaliatory motive violate clearly
established constitutional or statutory
rights. Thus, we find the complaint fails
to state a cause of action against
Schinnerer, Elbaum and Nelsen.
II
Rockwood next complains that the trial
court said nothing about the deprivation
of his right to free speech under the
First Amendment to the United States
72
Constitution and article I, section 2,
subdivision (a) of the California
Constitution. He appears to contend that
even if no cause of action is available to
him under section 1983, he has stated a
good cause of action for violation of his
constitutional rights.
Section 1983 is the vehicle by which
the infringement of a constitutional right
becomes a "constitutional tort." Rockwood
points to no authority for maintaining a
constitutional tort action apart from
section 1983 or a similar statute.
California courts, without reference
to section 1983 or a similar statute,
however, have granted injunctive relief to
public employees who have been disciplined
or their employment terminated because of
the exercise of a constitutional right.
(See, e.g., Adcock v. Board of Education
(1973) 10 Cal.3d 60.) But Rockwood points
73
to no authority, apart from section 1983,
for granting such relief where’ the
employee has failed to exhaust available
administrative remedies.2/ Rather,
Rockwood contends that no administrative
remedy was available.
He argues that civil service rules do
not provide a right to appeal an action
taken in retaliation for the exercise of
the right to free speech. However, Civil
Service Rule 508 provides in part: "No
person in the classified service ...
shall be discriminated against because of
race, religion, political affiliation. .
2/ Actions brought under section 1983. are
excepted from the rule that the plaintiff
must exhaust administrative remedies
before seeking relief in the courts.
(Patsy v. Florida Board of Regents (1982)
457 U.S. 496.)
74
- or other non-merit factor." Retaliation
for the exercise of the right to free
speech is a form of discrimination based
on a "“non-merit factor." Failure to
exhaust administrative remedies is a
jurisdictional defect that bars’ court
action. (Barnes Vv. State _Bd. of
Equalization (1981) 118 Cal.App.3d 994,
i001.) Because Rockwood failed to
exhaust available administrative remedies,
injunctive relief based directly on
constitutional provisions would not be
appropriate. Moreover, the elimination of
Rockwood's job category was a legislative
action, and a court has no einen to
command or prohibit the exercise of a
legislative function. (Hicks v. Board of
Supervisors, supra, 69 Cal.App.3d at p.
235.)
IIlI
The only issue remaining is whether
79
Rockwood should be allowed to amend his
complaint to attempt to state a cause of
action against those defendants who we
have found were properly dismissed from
the action. A refusal to allow an
amendment after « Cen is sustained is
not an abuse of discretion where there
appears no reasonable probability that the
complaint's defects can be cured. (Buford
Vv. State oof California (1980) 104
Cal.App.3d 811, 818.)
Here Rockwood has had three
opportunities to state a cause of action,
and a general demurrer has been sustained
each time. The trial court had the
opportunity to review the proposed
amendments to his complaint attached to
his motion for reconsideration. We have
also reviewed the proposed amendments, and
they do not remedy’ the complaint's
defects. Under the circumstances, we find
76
no abuse of discretion.
The judgment is reversed as
defendants Menchen, Wagner, 90'Connell
Hill. The judgment is affirmed as to
other defendants.
The parties are to bear their
costs on appeal.
NOT TO BE PUBLISHED.
GILBERT, J.
We concur:
STONE, P. J.
ABBE, J.
to
and
all
own
Ronald C. Stevens, Judge
Superior Court County of Santa Barbara
Patricia J. Barry for Plaintiff and
Appellant.
David Nawi, County Counsel, Marvin
Levine, Acting County Counsel, Stephen D.
Underwood, Senior Deputy County Counsel,
Patricia J. Clancy, Deputy County Counsel,
for Defendants and Respondents.
78
PATRICIA J. BARRY
25835 Narbonne Ave.
Suite 220
Lomita, California 90717
(213) 534-0093
Attorney for Plaintiff Richard Rockwood
SUPERIOR COURT OF STATE OF CALIFORNIA
SANTA BARBARA COUNTY
RICHARD ROCKWOOD,
Plaintiff,
vs.
BIRAN O'CONNEL
WILLIAM MENCHEN,
CHARLES WAGNER,
and SHARON HILL,
Defendants
a dd a a
The Motions
of Defendants Brian
No. 167608
AMENDED NUNC PRO TUNC
ORDER DENY NG
DEFENDANTS HILL'S AND
O'CONNELL'S MOTIONS
FOR SUMMARY JUDGMENT
(CCP. SEC.437C)
DATE: OCT. 25, 1991
TIME: 9 AM
DEPT: 4 (J. THOMAS R.
ADAMS)
for Summary Judgment
O'Connell and Sharon
Hill came on regularly for hearing by the
Court in Department
4, before the
79
Honorable Thomas R. Adams, presiding
Judge, on October 25, 1991. Present ln
court were Patricia J. Barry for
Plaintiff Richard Rockwood and David
Allen, Deputy County Counsel and attorney
for Defendants Hill and O'Connell.
Having considered all the
written material and evidence
contained in Defendants Hill's and
O'Connell's Motions for Summary
Judgment and supporting papers and in
Plaintiff's opposition thereto and its
supporting papers, and after hearing oral
argument from both counsel, the Court
finds that there remain triable issues
of fact as to whether Defendants Hill and
O'Connell retaliated against Plaintiff
Richard Rockwood for exercise of his
First Amendment free speech rights when
they recommended the abolishment of his
position of Vehicle Specialist and a
80
demotion to a position of lower rank,
status, and pay, that of Shop Supervisor,
in 1987, and as to whether they created a
hostile work environment in retaliztion
for exercise of his First Amendment free
speech rights.
The Court further finds that
Defendants Hill and O'Connell are
not entitled to qualified immunity in
that it was settled law at the time
Plaintiff alleges Defendants retaliated
against him by abolishing his job and
demoting him to a position of less pay,
rank, and status, and by creating a
hostile work environment that 13
government officials could not retaliate
against employees for exercise of First
Amendment-protected free speech by
job abolishment, demotion, and/or
creation of a hostile work
environment.
81
Sp Og ae EN GS eee
The Court finds that Facts Nos. IV,
VII, IX, and X of Defendant Sharon Hill's
Statement of Separate Facts and facts
Nos. IV, VII, IX, and X of Defendant
Brian O'Connell's Statement of Separate
Facts remain disputed to be resolved by
the trier of fact, the jury.
IT IS THEREFORE ORDERED that
Defendants Hill's and O'Connell's Motions
for Summary Judgment are denied; and it
is
FURTHER ORDERED that this amended
order is hereby substituted for the order
erroneously entered on November 15, 1991,
nunc pro tunc.
DATED: November 18, 1991
THOMAS R. ADAMS,
OF SUPERIOR CCURT
82
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BRIAN O'CONNELL
and SHARON HILL,
Petitioners, No. B062859
Sup. Ct. No.
vs. 167608
(Santa Barbara
SUPERIOR COURT OF THE County)
STATE OF CALIFORNIA, (Thomas Adams,
FOR THE COUNTY OF Judge)
SANTA BARBARA
Respondent, ORDER
RICHARD ROCKWOOD,
Real Party in
Interest
me ee ee ee ee ee ee ee ee ee ee eee See See See
THE COURT:
We have read and considered the
petition for writ of mandate filed
November 14, 1991. We take judicial
notice of our opinion in Richard Rockwood
v. County of Santa Barbara (July 27,
1990, B042448.)
We deny the petition. (Babb v.
Superior Court (1971) 3 Cal. 3d 841, 851;
Continental Life Insurance Co. v.
Superior Court (1985) 165 Cal. App. 3d
1069, 1072;
Roman Catholic Archbishop v. Superior
Court (1971) 15 Cal App. 3d 405, 410.)
84
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
RICHARD ROCKWOOD, CASE NO. 167608
DECISION AND ORDER
ON MOTION FOR
SUMMARY JUDGMENT
Plaintiff,
vs.
BRIAN O'CONNELL,
WILLIAM MENCHEN,
CHARLES WAGNER, and
SHARON HILL,
)
)
)
)
)
)
)
)
Defendants. )
The Court finds that the issues
being raised in the pending motions for
summary judgment filed on behalf of
defendants O'Connell and Hill are
identical to the issues raised in the
summary judgment motions filed on behalf
of those same defendants in September,
1991. Those motions were denied. The
Court further finds that there are no
newly discovered facts and circumstances
895
which support reassertion of those same
issues. Therefore, pursuant to §437c(f)
of the Code of Civil Procedure, the
motions should be denied.
Even if the Court were to accept the
argument of defendants' counsel ‘that the
exposition of the third prong of the test
enunciated in the Mt. Healthy School
District case constitutes a heretofore
unexplored "issue," the motion must still
fail. Mr. Yager's declaration as to what
his state of mind and that of the other
members of the Board of Supervisors would
have been had they known that the persons
recommending elimination of plaintiff's
job were doing so in retaliation for
plaintiff's exercise of his free speech
rights, is precisely the kind of evidence
which subsection (e) of Code of Civil
Procedure §437c states may be disregarded
in the discretion of the Court.
ESSE, SEL
The motion for summary judgment is
denied.
DATED: June 1992.
—e 7
William L. Gordon
Judge of the
Superior Court
87
FOR THE SECOND APPELLATE DISTRICT
DIVISION: 6
COUNTY C1ERK'S OFFICE
Sanata Barbara County
1100 Anacapa Street
Santa Barbara, CA. 93101
RE: Rockwood, Richard
vs.
Santa Barbara, County of
Civil BO42448 Santa Barbara NO.
167608
* * REMITTITUR * *
I, Robert N. Wilson, Clerk of the
Court of Appeal of the State of
California, For the Second Appellate
District, do hereby certify that the
attached is a true and correct copy of
the original order, opinion or decision
entered in the above-entitled cause on
07/27/90 and that this order, opinion or
decision has now become final.
.
PATRICIA J. BARRY, Attorney
BAR # 059116
134 Nelson Street, Suite A
Arroyo Grand, California 93420
(805) 489-8487
Attorney for Plaintiff RICHARD ROCKWOOD
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF
SANTA BARBARA
RICHARD ROCKWOOD, ) CASE NO: 167608
)
Plaintiff, ) PLAINTIFF'S
) SECOND
vs. ) AMENDED
) COMPLAINT
COUNTY OF SANTA BARBARA,) FOR
DAVID YAGER, ) DAMAGES,
ROBERT KALLMAN, WILLIAM ) DECLARATORY
WALLACE, DEWAYNE ) AND INJUNCTIVE
HOLMDAHL, TORU MIYOSHI RELIEF
)
WILLIAM G. MENCHEN, )
CHARLES F. WAGNER, )
BRIAN P. O'CONNELL )
SHARON A. HILL, RONALD )
M. GILMAN, STEVE )
SCHINNERER, KENNETH L. _ )
NELSON, FRANK HAWTHORNE, )
AND DOES I - XxX,) )
)
)
)
Defendants.
89
FIRST CAUSE OF ACTION
(violation of First, Fifth, and
Fourteenth Amendment rights under U. s.
Constitution under color of state
authority - 42 U.S.C. sec.1983 ~ applies
to all defendants)
1. At all times mentioned,
Defendant COUNTY OF SANTA
BARBARA (hereinafter referred to as
"County"), was, and now is, duly
organized and existing under and by
virtue of the laws of the State of
California as a political subdivision of
the State of California.
2. At all times herein mentioned,
each of the defendants was acting under
the authority vested in them by Defendant
County and under color of state and
county law, authority, rules,
90
regulations, practices, and policies.
3. Plaintiff RICHARD ROCKWOOD is
informed and believes, and upon such
information and belief, alleges that at
all times mentioned herein, each of the
defendants was the agent, employee,
or representative of the remaining
defendants, and was acting under the
control, supervision, and direction of
said defendants within the course, scope,
and authority of such relationships.
4. Plaintiff does not know the true
names or capacities of Defendants sued as
DOES I - XX, but Plaintiff is informed
and believes that each of said defendants
participated in, and is responsible for,
the acts resulting in the damages
suffered by Plaintiff, and Plaintiff will
amend this complaint to set forth their
true names and capacities when the same
has been ascertained.
91
5. At all times mentioned, it had
been, and still is, the practice and
policy of the Transportation Department,
Public Works Department, and General
Services Department of defendant County
to permit county personnel, in
particular, Defendant FRANK HAWTHORNE,
employed in the automotive and equipment
shops and garages owned and operated by
Defendant County to provide mechanical
services, parts, fuels, equipment, and
other materials to other county
employees, friends, and customers at
taxpayer expense for compensation.
6. Defendants DAVID YAGER,
ROBERT KALLMAN, WILLIAM WALLACE,
DEWAYNE HOLMDAHL, and TORU MIYOSHI were,
at the times material to this action,
elected members of the County Board of
Supervisors (hereinafter referred to as
"Defendant Board Members"). Defendant
92
Board Members were ultimately
responsible, in their non-legislative,
administrative capacity, for the county
employees. Pursuant to Govt. C. Section
25207 and 25208, Defendant Board members
must ensure all employees are not
subjected to harassment, retaliation,
and/or violations of their constitutional
rights. They must ultimately order
demotions, abolishment of all positions,
and all pay reductions.
7. When placed on notice that an
employee is suffering retaliation,
harassment, and/or violation of their
rights, Defendant Board Members have a
duty to intervene, to determine the
merits of the complaints, and if
necessary, to discipline the offending
officials and supervisors.
8. However, the actual practice of
Defendant Board Members is to ignore
93
complaints and requests for intervention
from employees who assert they are being
harassed, retaliated against, and/or
having their constitutional rights
violated. In this case, further, |
Defendant Board Members not only
acquiesced in, or ignored, the
retaliation and harassment of which
Plaintiff complains, but directly
participated in adverse actions against
him. Thus, the policy of Defendant
County is to permit and participate in
the harassment, retaliation, and/or
violation of constitutional rights of
employees.
9. In December 1980, Plaintiff was
employed by the Transportation Department
of Defendant County as Equipment
Superintendent, a managerial position,
with responsibility for annual budget in
excess of $4,500,000.00, and to oversee
94
the vehicle fleet of the County and the
supervision of garage operations.
10. Upon commencing such
employment, Plaintiff was provided
several reports directed to the
Transportation Department by the
County auditor-controller concerning lack
of inventory controls, inappropriate
personnel assignments, delays in
maintenance work, lack of records, and
other discrepancies. Plaintiff was
directed to resolve these problems.
11. Beginning in December 1980 and
continuing to the date of his
termination, Plaintiff repeatedly
attempted to correct the problems
described in paragraph 10 and to
discipline Defendant HAWTHORNE for his
misuse of county equipment and time, of
which Defendant MENCHEN, Messrs STEWARD
and PURDY, were well aware. While in the
99
Department of Transportation, Plaintiff
was repeatedly overruled by his
supervisors, including the former
Director of Transportation, LELAND
STEWARD, the former Assistant Director of
Transportation, HAROLD PURDY and another
former Assistant Director of
Transportation, Defendant WILLIAM G.
MENCHEN, now an official in Public
Works Department. In addition, these
supervisors would permit subordinates and
coworkers of the plaintiff to ignore his
directions, in particular Defendant
HAWTHORNE. Plaintiff's supervisors, in
particular, Mr. STEWARD, and coworkers,
in particular, Defendant HAWTHORNE, did
not want to stop their misuse of country
\
funds and property.
12. Mr. STEWARD directed Plaintiff
to deliver agenda materials to former
Board Member HARRELL FLETCHER, which he
96
did.
13. Mr. FLETCHER asked Plaintiff to
come to his office on April 27, 1982, to
discuss County business. Plaintiff met
with the former Board member on that day.
That same day, Mr. PURDY telephoned
Plaintiff on behalf of Mr. STEWARD
wanting to know if Plaintiff had met with
Mr. FLETCHER.
14. Unknown to Plaintiff at the
time, Mr. STEWARD was receiving
confidential information from Mr.
FLETCHER'S administrative aide, JONI
GRAY-WOOD. She and other members of her
family were good friends of Mr. STEWARD.
In addition, she and her family members
were part owners of Casmalia Dump. Mr.
STEWARD was the road commissioner, and in
that capacity, obtained approval from the
Board of Supervisors for 2.8 million
dollars for the improvement of roads to
97
the dump.
15. Mr. STEWARD, paranoid that
Plaintiff was passing on information to
the supervisor about his connections to
Ms. GRAY-WOOD, although Plaintiff was
not, ordered Plaintiff to resign.
16. When Plaintiff refused, he was
terminated on May 4, 1982. Plaintiff had
a hearing before the Civil Service
Commission of Defendant County in August
1982. In preparation for the hearing,
Mr. PURDY, Defendant MENCHEN, Ms. JONI
GRAY-WOOD, and Defendant HAWTHORNE, on
behalf of Mr. STEWARD, solicited adverse
statements and witnesses against
Plaintiff. One solicited adverse letter
was submitted by Defendant RONALD
GILLMAN, at that time Assistant
Agricultural Commissioner and now
Agricultural Commissioner.
17. The Commission ruled in
98
Plaintiff's favor and ordered his
reinstatement with backpay, but no
attorney fees and costs. The Commission
also found Mr. STEWARD, Defendant
MENCHEN, and Mr. PURDY had lied under
oath.
18. Enraged Plaintiff had won
reinstatement, Mr. STEWARD, Mr. PURDY,
and Defendants MENCHEN and HAWTHORNE
began a campaign of retaliation and
harassment against Plaintiff which
continued until Plaintiff was
constructively terminated from
Defendant County employment in June 1987.
19. Immediately upon reinstatement
on August 31, 1982, as retaliation for
winning his case Mr. STEWARD, Mr. PURDY,
and Defendant MENCHEN ordered Plaintiff
to move from the County courthouse to the
Road Yard where he remained until March
1983. In addition, the three supervisors
99
restricted Plaintiff's work assignments
and ordered him in a letter dated August
31, 1982, not to speak to any of the
other employees and verbally ordered the
other employees not to talk to him. They
placed this restriction on other
employee.
20. When Plaintiff complained to
the Commission, the Commission wrote a
letter to Dana Smith, a deputy county
counsel, dated September 21, 1982,
expressing alarm over contempt of its
order "at least in spirit if not in
fact", by Messrs. STEWARD and PURDY and
Defendant MENCHEN. A true and correct
copy of that letter is marked and
attached as Exhibit 1 and incorporated
herein.
21. As additional acts of
harassment and retaliation, Messrs.
STEWARD and PURDY and Defendant MENCHEN
issued false and defamatory reprimands
and performance reports to Plaintiff on
August 31, September 7, September 21,
September 30, October 13, October 21,
November 17, and November 24, 1982.
Further, Messrs. STEWARD and PURDY and
Defendant MENCHEN continued to overlook
the misuse and misappropriation of County
property, time, equipment, vehicles, and
inventory by Defendant HAWTHORNE.
22. In addition, Messrs STEWARD
and PURDY and Defendant MENCHEN imposed
on Plaintiff and no other employee the
requirement of submitting monthly, and
frequently weekly, written reports
detailing his intended work schedule and
objectives for the coming month/week, and
his specific accomplishments during the
past month/week.
23. In mid-March 1983, Mr. STEWARD
was forced to resign. At the same time,
101
the Department of Transportation was
merged into the Public Works Department
under the Public Works Director,
Defendant CHARLES WAGNER, who had also
formerly served as a deputy Director of
Transportation under Mr. STEWARD.
24. Defendant WAGNER became
Plaintiff's supervisor in March 1983.
Immediately, he retaliated against
Plaintiff by writing him a false and
defamatory performance report on June 20,
1983 and an unjustified Letter of
Reprimand, based on Plaintiff
complaining about the misuse of County
property and funds by Defendant
HAWTHORNE.
25. As ongoing retaliation and
harassment, Defendant MENCHEN and Mr.
EDWARD J. MARINI, Assistant Director for
Public Works and also one of Plaintiff's
supervisors, issued false and defamatory
102
performance reports and letters of
reprimand to Plaintiff on October 31, and
November 11, 1983, February 1, August 11,
and December 3, 1984.
26. On August 10, 1983, the
drinking water at Cathedral Oaks Garage
was pecisoned. Plaintiff took himself,
five subordinates, and a prisoner worker
to the hospital to see if they had been
peisoned.
27. Defendant HAWTHORNE had signed
out sick at noon on August 10, 1983, the
day of the discovery of the poisoned
water. Yet, Plaintiff and Mr. McElroy,
Equipment Shop Supervisor, had seen
Defendant HAWTHORNE leave the County
Administration building that day at 1:55
PM.
28. Although the Sheriff's
Department began an investigation of the
incident, eventually, it turned over the
103
investigation to the Public Works
Department. The individual who poisoned
the drinking water was never identified.
29. However, when Plaintiff moved
into the automotive shop in 1984,
Defendant HAWTHORNE moved out of his
office and Plaintiff took it over. On
January 26, 1984, in going through a
former file cabinet of Defendant
HAWTHORNE, Plaintiff discovered a
flourescene tablet identical to the
tablets used to poison the water
according to the laboratory analysis
performed on the water.
30. On April 26, 1984, Plaintiff
held a meeting with Defendant HAWTHORNE,
Mr. Marini, and a shop supervisor
regarding withholding of documents from
Plaintiff by Mr. Marini and Defendant
HAWTHORNE. These documents were needed
to perform his job. That same day as
104
retaliation for complaining, Mr. Marini
immediately reassigned Plaintiff to an
isolated room in the courthouse, where he
instructed Plaintiff to remain at all
times.
31. In addition, as further
retaliation, Mr. MARINI took away
Plaintiff's vehicle and assigned it to
Defendant HAWTHORNE. Mr. MARINI
effectively kept Plaintiff from
performing his duties.
32. An employee gave testimony to
the 1984/1985 Grand Jury that Mr. MARINI,
Defendant HAWTHORNE, and dispatcher TOM
HAYMAN had been running a theft ring,
using county automotive parts and
supplies. The ring had been operating
before Plaintiff was employed by
Defendant County.
33. In July 1984, Defendants WAGNER
and MENCHEN and Mr. MARINI wrongfully
109
accused Plaintiff of having written a
letter to the State Auditor-General
suggesting an investigation of corrupt
procedures in the Public Works Dept.
34. In September 1984, Defendant
Board Members created a new department,
General Services. Divisions in Public
Works were transferred to General
Services, including Vehicle Operations
where Plaintiff worked. Defendant BRIAN
O'CONNELL became the Director of General
Services and Defendant SHARON HILL, its
assistant Director.
35. Although Plaintiff had been
transferred to General Services,
Defendant WAGNER continued to exercise
supervisory authority over Plaintiff.
For example, on November 27, 1984,
Defendant WAGNER ordered Plaintiff to
remove his car from the parking lot.
Defendant HILL gave the same order to
106
Plaintiff in a memo backdated November
26, 1984, on November 28.
36. On November 27, Plaintiff was
unable to comply with Defendant WAGNER'S
order because there was no parking
available elsewhere. Plaintiff learned
from a phone call of a dispatcher at 5:00
PM at the parking lot, two tires of his
car were flat. He discovered they had
been punctured with an ice pick to insure
slow leaks. Plaintiff made a police
report, but the identity of the person
who punctured Plaintiff's tires was never
learned.
37. As an additional act of
retaliation and harassment, Defendant
WAGNER requested that Plaintiff's
Equipment Superintendent position be
abolished. Defendant Board Members
approved the abolishment in December
1984. None of the defendants informed
107
Plaintiff of his right to retain his
higher rate of pay based on the "Y"
factor although they were required to do
so. When Plaintiff discovered the "Y
factor" in reviewing Civil Service
Rules, he applied for the "Y factor".
Defendant WAGNER refused to acknowledge
the "Y factor" and referred Mr. ROCKWOOD
to the Personnel Department. Eventually,
Mr. ROCKWOOD's request was approved, and
Mr. ROCKWOOD permitted to retain his
current rate of pay.
38. Defendants O'CONNELL, and HILL
engaged in a continuing pattern of
harassment and retaliation against
Plaintiff which included excessive
documentation of his work assignments,
such as maintenance of a daily log
imposed on him and no other employee,
excessive scrutiny of his work
performance, unjustified disciplinary
108
actions, and finally, abolishment of his
position as Vehicle Specialist in June
1987. Defendants O'Connell and Hill
engaged in these acts of retaliation on
3/27, 4/1, 4/9, 5/24, 7/18 in 1985; on
2/1, 3/24, 5/23/, 5/27, 6/10, 7/8, 11/26,
12/1, 12/9 in 1986; and on 4/27, 6/17,
6/26, 7/14 in 1987.
39. Since 1982, Defendant MENCHEN
has been involved in the retaliation and
finally the removal of Plaintiff in June
1987.
40. For example, Defendant MENCHEN
solicited adverse letters against
Plaintiff on behalf of Mr. Steward on May
6, 1982. One of the letters he solicited
was from Defendant GILLMAN which
contained falsified statements about the
Plaintiff.
41. Defendant MENCHEN wrote a
memorandum for Defendant WAGNER'S use so
109
that Plaintiff would be reprimanded. The
letters of reprimand contained falsified
information from Defendant WAGNER.
Plaintiff ROCKWOOD found such a
memorandum in his personnel file February
13, 1985. Defendant MENCHEN had dated it
August 8, 1984.
42. On February 12, 1985 Defendant
SHARON HILL informed Plaintiff by memo
that he was not to sue the telephone in
the Santa Maria road yard based on a
complaint made by Defendant MENCHEN.
Plaintiff wrote a memo to Defendant
MENCHEN dated February 14, 1985 stating
that a sign should be Posted for all not
to use the phone, including the public.
As retaliation, Plaintiff received a
formal reprimand from Defendant HILL for
sending Defendant MENCHEN the memo.
43. On April 27, 1987, Plaintiff
received a memo from Defendant HILL
110
stating he could not use the copy machine
at the Santa Barbara road yard for his
work. This came after Defendant MENCHEN
reported Plaintiff to Defendant HILL.1
Other employees were allowed to use the
copy machine.
44. Defendant MENCHEN issued
numerous memos as harassment and
retaliation against the Plaintiff from
August 31, 1982, until the Spring of
1987. The memos written by Defendant
MENCHEN against Plaintiff always resulted
in verbal or written reprimands or
warnings issued by Plaintiff's
Supervisors, in particular, Defendant
HILL. No other employees in General
Services or Public Works were treated in
the same fashion.
43. Defendant GILLMAN, now the
Agricultural Commissioner, engaged in the
harassment and retaliation of Plaintiff.
111
semen i il aie ac emma
He submitted an adverse letter solicited
by Defendant MENCHEN dated May 4, 1982 to
assist Mr. Steward at Plaintiff's Civil
Service Commission hearing.
44. On April 18, 1986, Defendant
GILLMAN volunteered to assist Defendants
HILL and O'CONNELL in the removal of the
Plaintiff by having employees report to
him the activities of Plaintiff.
Defendant GILLMAN did so on April 24,
1986 while Plaintiff was involved in
putting the specifications together for
Defendant GILLMAN'S department.
47. On May 5, 1986 Defendant HILL
ordered Plaintiff to write a detailed
report for the two days he spent in Santa
Maria assisting Defendant GILLMAN'S
department needs. Plaintiff learned from
County employees he was being watched and
the employees would be questioned by
Defendant GILLMAN about Plaintiff's
activities. Defendant GILLMAN continued
spying on Plaintiff and scrutinizing his
moves until Plaintiff was removed on June
30, 1987.
48. On March 11, 1986, Defendant
HILL directed Plaintiff to look at a
trailer she and Defendant HAWTHORNE had
set up by the automotive shop on Calle
Real. Plaintiff was further ordered to
"keep Defendant FRANK
HAWTHORNE...informed of [his] arrivals,
departures, and general whereabouts
during the course of each workday." This
requirement was not imposed on any other
worker and continued to the date of
Plaintiff's termination.
49. The trailer was too small for a
desk, with no windows, extremely
deteriorated, and in a filthy condition.
A County Safety Officer filed a written
report after inspecting the trailer, on
113
March 12, 1986, indicating it was unsafe
and uninhabitable under any
circumstances. Defendants HILL,
HAWTHORNE, and O'CONNELL were therefore
forced to rent a more suitable trailer
for Plaintiff's office.
50. On three occasions including in
1987, Defendant HILL stated to Plaintiff:
"Why do you stay?"
51. On July 25, 1984, Plaintiff
personally delivered to the office of
Defendants YAGER, KALLMAN, WALLACE,
HOLMDAHL, and MIYOSHI a cover letter and
a packet of documents illustrating the
harassment of Plaintiff, obstruction of
his constitutional rights, restrictions
to perform his job classification, and
denial of his freedom of speech and of
access to the areas of work he was to
supervise for the county. In the letter
to Defendant Board Members, Plaintiff
114
discussed how his supervisors in Public
Works, Defendant WAGNER and Mr. Marini,
had planned to eliminate his position as
Equipment Superintendent well before
Plaintiff's actual demotion by Defendant
Board Members took place in November
1984. Although put on actual notice by
the Plaintiff that he would be demoted as
an act of retaliation, nonetheless, on
November 5, 1984, Defendant Board Members
eliminated Plaintiff's position of
Equipment Superintendent and demoted him
to Vehicle Specialist.
53. As already indicated, Plaintiff
learned about the "Y Factor" which he
applied for and was granted. On December
1, 1986, as further harassment and
retaliation, Defendant HILL gave written
notice that Plaintiff would lose the "Y
Factor" and therefore suffer a loss of
pay effective December 15, 1986.
119
54. On December 2, 1986, Plaintiff
wrote another letter to Defendant Board
Members indicating he was going to lose
the "Y Factor" and therefore a loss.in
pay. Defendant Board Members refused to
investigate, and Plaintiff in fact
suffered a reduction in pay.
55. Ina final attempt to drive
Plaintiff out of employment with
Defendant County, on June 8, 1987,
Defendant BRIAN O'CONNELL sent written
notice to Plaintiff his position as
Vehicle Specialist would be abolished on
June 30, 1987. On June 12, Plaintiff
wrote another letter to the Defendant
Board Members after receiving the June 8
notice from Defendant O'CONNELL.
defendant Board Members approved
Defendant HAWTHORNE'S new position and
pay increase some time between July l,
1987 and April 1988.
116
56. Defendant O'CONNELL wrote a
letter to Plaintiff stating Defendant
Board Members had asked him to respond to
Plaintiff's June 12 letter. However,
Nefendant O'CONNELL refused to withdraw
the notice of abolishment of Plaintiff's
position. Defendant HAWTHORNE received a
number of pay increases exceed the pay
Plaintiff received as Equipment
Superintendent at the same time Plaintiff
was being demoted and suffered a loss in
pay. Defendant HAWTHORNE'S new job
title, approved by Defendant Board
Members, is Manager of Vehicle
Operations. Yet, Plaintiff's Equipment
Superintendent position and Vehicle
Specialist position were abolished, the
former in 1984 and the latter in 1987.
57. Despite being placed repeatedly
on notice by Plaintiff that the demotions
he had received were retaliation,
117
Defendant Board Members refused to take
any action to protect Plaintiff's job.
They finally approved the elimination of
Mr. ROCKWOOD'S vehicle specialist job,
and Plaintiff was constructively
terminated on June 30, 1987. Defendant
Board Members also approved Defendant
HAWTHORNE'S new position as Manager of
Vehicle Operations and increase in pay
shortly after Mr. ROCKWOOD'S termination.
Defendant Board Members knew the
recommendation for eliminating Mr.
ROCKWOOD'S job was based on funding
constraints and yet, at the same time
they approved a pay increase for
Defendant HAWTHORNE and were aware he had
recently received three others.
58. Defendants HILL and WAGNER join
with Defendant O'CONNELL in recommending
the abolishment of Plaintiff's job which
became effective June 30, 1987.
118
59. At all times material to this
action, Defendant HAWTHORNE has violated
County and State law regarding the use of
County time, inventory, and property. As
early as 1982 plaintiff gave a
performance report to Defendant HAWTHORNE
pointing out that Defendant HAWTHORNE was
having shop employees do his work while
he was using County time for his own
personal business. Further, Plaintiff
had received many calls at his office in
1981 from employees demanding to know if
Defendant HAWTHORNE had repaired their
personally-owned cars.
60. In another performance report
to Defendant HAWTHORNE for the rating
period August 1, 1982 to August l, 1983,
again Plaintiff pointed out to Defendant
HAWTHORNE that he was spending too much
time away from his workplace and that he
did not have inventory under control and
119
accounted for. In all the time Mr.
Rockwood was forced to stay in the
trailer, Mr. ROCKWOOD personally
witnessed Defendant HAWTHORNE using_
County time, inventory, property and
employees for his own gains.
61. On June 14, 1983, in a meeting
with Defendant WAGNER, Mr. MARINI, and
Defendant HAWTHORNE, Defendant WAGNER
gave his support to Defendant HAWTHORNE
and Ms. Woodside, Accounts Payable Clerk
for Vehicle Operations, rather than to
Mr. ROCKWOOD. Mr: ROCKWOOD wanted
Defendant WAGNER to separate Defendant
HAWTHORNE and Ms. WOODSIDE because Ms.
WOODSIDE would cooperate with Defendant
HAWTHORNE bypassing Mr. ROCKWOOD and
later Defendant HILL to pay for products
not approved for order out of 8610 funds.
This illegal action continued into 1987.
Plaintiff was given an adverse
120
performance report by Defendant WAGNER on
June 14 because of his attempts to
separate the two employees.
62. From the time Plaintiff came on
board until his termination on June 30,
1987, Defendant HAWTHORNE spied on
Piaintiff on behalf of Plaintiff's
supervisors and reported all of
Plaintiff's actions to those individuals,
including to Defendant HILL.
63. In 1984 Defendant HAWTHORNE
stated in the presence of employees,
including Jewell Abshire, that the reason
the departments were being divided up was
to get Richard Rockwood out of the
county. He stated that with the new
department they would remove his position
and he was sure Plaintiff would not
accept a lower-paying position because he
could not commute to Santa Barbara from
Santa Maria earning lower pay. A true
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and correct copy of the affidavit of Ms.
Abshire executed on December 18, 1986, is
marked and attached as Exhibit 2.
64. While he was spying and
reporting on Plaintiff, at the
same time he continued to use county
time, inventory, equipment and property
with the full knowledge and permission of
Defendants O'CONNELL, HILL, MENCHEN,
WAGNER, STEWARD, MARINI, and PURDY. In
1987, Mr. MARINI himself came to
Defendant HAWTHORNE during working hours
to have one of his personally owned
vehicles repaired.
65. Defendant DAVID ELBAUM, COUNTY
ADMINISTRATOR, is responsible for all
actions taken by department heads with
respect to their personnel. Defendant
ELBAUM reports directly to Defendant
Board Members who have delegated this
responsibility to him. Defendant ELBAUM
' 122
is responsible to establish County
policy.
66. Defendant ELBAUM became the
County Administrator in early 1985. He
was on actual notice of the harassment
and retaliation Plaintiff was
experiencing at the hands of his
supervisors.
67. As assistant County
Administrator, Defendant ELBAUM approved
the abolishment of Plaintiff's position
of Equipment Superintendent in November
1984 following recommendations of
Defendants WAGNER, O'CONNELL, MENCHEN,
HILL, and SCHINNERER. He also approved
the abolishment of Mr. ROCKWOOD'S vehicle
specialist job in June 1987, and a short
time later, the promotion of Defendant
HAWTHORNE to Manager of Vehicle
Operations with an increase in pay also
following the recommendations of
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-sciieesaascmaaiuaiiiiaaiacaiiiael
Defendants WAGNER, O'CONNELL, MENCHEN,
HILL, and SCHINNERER.
68. Defendant SCHINNERER is the
Personnel Director for Defendant COUNTY.
He is responsible for job descriptions,
for reviewing managers' actions against
employees to insure no retaliation is
occurring, for reviewing job
classifications, adverse personnel
actions, such as abolishment of jobs, and
challenges by employees of abolishment of
jobs.
69. Defendant SCHINNERER refused to
stop the demotion/abolishment-of-job
actions in 1984 and in 1987 against Mr.
ROCKWOOD although he knew or should have
known these were retaliatory acts because
plaintiff had won reinstatement in 1982
and because he opposed illegal activities
by Defendant HAWTHORNE and were designed
to create such intolerable working
124
conditions Plaintiff would be driven from
his job.
70. On November 30, 1984, Mr.
ROCKWOOD placed Defendant
SCHINNERER on notice by a letter to him
challenging the appropriateness of the
assignment for vehicle specialist as a
unit 26. Defendant SCHINNERER responded
by promising to lower the job to unit 24,
but never did.
71. Defendant KENNETH L. NELSON is
County Counsel. As such, he is
responsible to insure that no official or
supervisor commits acts of retaliation,
harassment, and/or violation of an
employee's constitutional rights.
Despite this responsibility and despite
being placed on actual notice as to the
harassment, retaliation, and violation of
constitutional rights Plaintiff was
undergoing, Defendant NELSON refused to
125
ee
take any corrective action.
72. Defendant NELSON was aware
Plaintiff's Civil Service hearing, that
he had prevailed at the hearing, and was
reinstated with back pay. His office
also received copies of the document from
the Civil Service Commission marked and
attached as Exhibit 1 to this complaint.
73. On November 21, 1983, Plaintiff
hand delivered a packet of materials to
Dana Smith, Assistant to Defendant
NELSON. In the packet was a copy of a
rebuttal letter written by Plaintiff to
Mr. MARINI'S memorandum dated November
21, 1983.
74. Plaintiff's rebuttal pointed
out Defendant HAWTHORNE'S time away from
his workplace, described the poisoned
water incident, and described how
Defendant HAWTHORNE had approached a
County employee to spread rumors about
126
seiehitanaaa ile
Public Works which the employee declined
to do.
75. Defendant NELSON personally
received a letter from Plaintiff on June
12, 1987 outlining criminal acts that had
been occurring in the County, and the
harassment, retaliation, and loss of
constitutional rights Plaintiff was
experiencing. Yet, Defendant NELSON took
no corrective action and permitted
Plaintiff to suffer a constructive
termination on June 30, 1987.
76. On September, 1987, Plaintiff
had a hearing before the California
Unemployment Appeals Board to obtain
unemployment benefits which had been
denied him by the Employment Development
Department based on what Defendant
O'CONNELL had told them. Defendant
O'CONNELL stated that Plaintiff had quit
his job.
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__————————
77. Defendant NELSON defended the
actions of officials, including Defendant
O'CONNELL, and fought the award of
unemployment benefits to Plaintiff.
After the hearing officer heard one
testimony of officials of Defendant
COUNTY, including Defendant NELSON,
testify, he awarded full unemployment
benefits to Plaintiff.
78. When Defendant Board Members
abolished Plaintiff's position as
Equipment Superintendent in November 1984
and reduced him to the position of
Vehicle Specialist, Plaintiff attempted
to exhaust his administrative remedy with
the Civil Service Commission. By
letter, the Civil Service Commission
rejected Plaintiff's request for
administrative relief and furthermore
characterized his request for relief as
merely one challenging performance
128
ratings.
79. Therefore, when Defendant Board
Members abolished his Vehicle Specialist
position effective June 30, 1987,
Plaintiff did not appeal to the Civil
Service Commission because it would have
been a futile act.
80. In addition, Defendant
O'CONNELL sent a letter dated June 26,
1987, to Plaintiff stating Civil Service
Commission Regulations did not permit an
appeal on the substance, or merits, of
the layoff, only on procedure. Thus,
there was no civil service remedy
available to Mr. ROCKWOOD.
81. Defendant Board Members and
County Department Directors were
repeatedly placed on notice by Mr.
ROCKWOOD from August 1982 until June of
1987, of the retaliation, violation of
constitutional rights, and constant
129
harassment he was undergoing by the
Transportation, the Public Works, and the
General Services departments.
82. The Board of Supervisors,
personnel department, county counsel, the
civil service commission, and the
affirmative action officer failed to take
any affirmative steps to stop the
harassment and in fact, some participated
in it themselves. They did not reply to
plaintiff ROCKWOOD'S letters for help and
paid no attention to the corruption that
Mr. Rockwood had time and time again
brought to their attention.
83. Those who violated the Civil
Service Rules, Defendant Hawthorne in
particular, utilized county time,
property, person power, equipment, and
facilities for their and others' personal
gain and profit. Plaintiff notified
those in authority many times concerning
130
Ll
Defendant HAWTHORNE, and yet Department
heads consistently protected him.
84. By reason of their acts and
omissions as set forth above, Defendant
COUNTY OF SANTA BARBARA and each of the
other named defendants separately and in
consort, intentionally, willfully, and
maliciously subjected Plaintiff RICHARD
ROCKWOOD tc the deprivation of his rights
as guaranteed by the First, Fifth, and
Fourteenth Amendments to the United
States Constitution and by the 1871 Civil
Rights Act, 42 U.S.C. Section 1983, by
intentionally subjecting Plaintiff to a
deliberate course of retaliatory conduct
in his employment leading to his
termination to punish him for speaking
out against corruption, for attempting to
initiate reform to eliminate corruption
in his department, and for winning
reinstatement to County employment in
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1982.
85. In doing so, each of the named
defendants also violated Plaintiff
RICHARD ROCKWOOD'S right to substantive
due process by depriving him of the :
property interest in his job and right to
equal protection of the laws.
86. As a further and proximate
result of the acts and omissions of the
defendants, and each of them, as alleged,
Plaintiff RICHARD ROCKWOOD has suffered
emotional distress, mental anguish,
humiliation, fear, shame, anxiety,
embarrassment, worry, and aggravation,
for which he is entitled to general,
special, and punitive damages in amounts
to be proved at the time of trial.
87. The acts of the Defendants
against Plaintiff were willful and
malicious and therefore Plaintiff is
entitled to punitive damages, except from
132
Defendant County.
88. As a further and proximate
result of the acts and omissions of the
defendants, and each of them, as alleged,
Plaintiff RICHARD ROCKWOOD has suffered,
and will continue to suffer, loss of
employment as a result of wrongful
termination, entitling him to recover
back and front pay with interest.
89. As a further and proximate
result of the acts and omissions of the
defendants, and each of them, as aileged,
Plaintiff RICHARD ROCKWOOD was forced to
retain counsel to initiate this lawsuit,
and therefore Plaintiff RICHARD ROCKWOOD
is entitled to attorney's fees under 42.
U.S.C. Section 1988.
SECOND CAUSE OF ACTION
(Violation of Rights under the California
Constitution, Sections l, 2, and 7
Applies to Plaintiff Richard Rockwood and
se
to All Named Defendants)
90. Plaintiff RICHARD ROCKWOOD
hereby realleges each and every
allegation contained in paragraphs 1-83,
inclusive, of his FIRST CAUSE OF ACTION,
and by this reference incorporates the
same as if fully set forth.
91. By their acts and omissions as
set forth above, Defendants, separately
ana in consort, have intentionally,
willfully, and maliciously subjected
Plaintiff RICHARD ROCKWOOD, to the
deprivation of his rights as guaranteed
by Article l, Sections 1, 2, and 7 of the
California Constitution by intentionally
subjecting Plaintiff RICHARD ROCKWOOD to
a deliberate course of retaliatory
conduct in his employment leading to his
termination to punish him for speaking
out against corruption, for attempting to
initiate reform to eliminate corruption
134
in his county department, and for winning
reinstatement to his job in 1982.
92. In doing so, Defendants also
violated Plaintiff's right to substantive
due process by depriving him of the
property interest in his job and violated
his right to equal protection under the
laws guaranteed under the California
Constitution.
93. As a further and proximate
result of the acts and omissions of said
Defendants, and each of them, as alleged,
Plaintiff RICHARD ROCKWOOD has suffered
emotional distress, mental anguish,
humiliation, fear, shame, anxiety,
embarrassment, worry, and aggravation,
for which he is entitled to general,
special, and punitive damages, in amounts
to be proved at the time of trial.
94. The acts of the Defendants
against Plaintiff were willful and
139
malicious and therefore Plaintiff is
entitled to punitive damages, except from
Defendant County.
95. As a further and proximate
result of the acts and omissions of said
Defendants, and each of them, as alleged,
Plaintiff RICHARD ROCKWOOD has suffered,
and will continue to suffer, loss of
employment as a result of wrongful
termination, entitling him to recover
back and front pay with interest.
96. As a further and proximate
result of the acts and omissions of said
Defendants, and each of them, as alleged,
Plaintiff RICHARD ROCKWOOD was forced to
retain counsel to initiate this lawsuit,
and therefore Plaintiff RICHARD ROCKWOOD
is entitled to attorney's fees under Code
of Civil Procedure Section 1021.5
DECLARATORY RELIEF
97. An actual and existing
136
controversy has arisen between Plaintiff
and Defendants in that Plaintiff contends
he has been driven off the job and
terminated from employment due to hostile
working conditions in violation of his
First, Fifth, and Fourteenth Amendment
rights under the U.S. Constitution and in
violation of Article I, Sections 1, 2 and
7 of the California Constitution, and
Defendants deny the acts taken against
Plaintiff violates his constitutional
rights.
98. By reason of the foregoing, a
judicial declaration is both necessary
and proper in order to set forth and
determine the rights, obligations, and
liabilities, if any, of Plaintiffs and
Defendants and the defense and the
indemnity of the Defendants.
EQUITY
99. The plaintiff has no plain,
137
adequate or complete remedy at law to
redress the wrongs described herein.
Plaintiff has been, and will continue to
be, irreparably injured by the conduct of
the Defendants unless the court grants
the declaratory and injunctive relief
which Plaintiff seeks.
WHEREFORE Plaintiffs pray that the
court:
1. Enter a declaratory judgment
that the acts and omissions of Defendants
complained of violate Plaintiff RICHARD
ROCKWOOD'S rights under the First, Fifth,
and Fourteenth Amendments of the United
States Constitution and under Article I,
Sections l, 2, and 7 of the California
Constitution;
2. Order a permanent injunction
reinstating Plaintiff RICHARD ROCKWOOD to
his former position as Equipment
Superintendent with back pay in an amount
138
of the difference between what Plaintiff
would have earned and what he actually
earned with both prejudgment and post-
judgement interest;
3. Enter a permanent injunction
enjoining all of the defendants from
harassing, intimidating, retaliating, and
reprising against the Plaintiff in any
form whatsoever;
4. Enter punitive, compensatory,
and special damages in amounts to be
proved at the time of trial on both
causes of action;
5. Grant attorney's fees and costs
to Plaintiff RICHARD ROCKWOOD on both
causes of action.
DATED: November 2, 1988
PATRICIA J. BARRY
— kk =
139
—
Pee ee)
**AFFIRMED IN PART AND REVERSE IN PART**
Each Party To Bear Own Costs On Appeal.
Witness my hand and the seal of the State
affixed my office this Oct 1 1990
ROBERT N. WILSON, Clerk
Deputy Clerk
EXHIBIT 1
140
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