Van Pena v. Timothy Meeker , 435 F. App'x 602 ( 2011 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                         FILED
    FOR THE NINTH CIRCUIT                           MAY 27 2011
    MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    VAN A. PENA,                                     No. 10-15326
    Plaintiff - Appellant,             D.C. No. 4:00-cv-04009-CW
    v.
    MEMORANDUM *
    TIMOTHY MEEKER; et al.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Northern District of California
    Claudia A. Wilken, District Judge, Presiding
    Argued and Submitted April 15, 2011
    Pasadena, California
    Before: REINHARDT and GOULD, Circuit Judges, and TIMLIN, Senior District
    Judge.**
    Pena alleges that he was terminated in retaliation for a February 2001 memo
    in which he reported suspected mistreatment of a Sonoma Developmental Center
    (SDC) patient to the defendant, SDC Medical Director Judith Bjorndal. “[W]hen
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Robert J. Timlin, Senior District Judge for the U.S.
    District Court for Central California, sitting by designation.
    public employees make statements pursuant to their official duties, the employees
    are not speaking as citizens for First Amendment purposes, and the Constitution
    does not insulate their communications from employer discipline.” Garcetti v.
    Ceballos, 
    547 U.S. 410
    , 421 (2006). SDC Policy Section 400, “Abuse,
    Mistreatment or Neglect Prevention,” requires any SDC staff having knowledge of
    patient mistreatment or neglect to “report the events in question to appropriate
    authorities.” The reporting requirements direct staff members to report such
    incidents to their supervisors, or “[i]f a staff [member] is uncomfortable with
    reporting to his/her supervisor, a staff person may report through another channel,
    such as program director, program assistant, nursing coordinator, department head,
    SDC police, special investigator, quality assurance staff, or a facility
    administrator.” Because Pena’s reporting of mistreatment to an SDC superior thus
    fell squarely within his official duties as an SDC physician, he was not entitled to
    First Amendment protection for that action, and the district court’s grant of
    summary judgment to Bjorndal on Pena’s claims arising from the February 2001
    memo is affirmed.
    Pena further appeals the district court’s grant of summary judgment to
    Bjorndal on his claim that he was fired in retaliation for a confidential complaint
    that he submitted to the California Department of Health Services (DHS) regarding
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    removal of patient photographs from files at SDC. As a result of Pena’s DHS
    complaint, DHS issued a Statement of Deficiencies to SDC, requiring SDC
    Executive Director Timothy Meeker to implement a Plan of Correction modifying
    SDC policies for removal of patient photographs. Exactly one week after SDC
    implemented the Plan of Correction, Pena’s habit of taking patient photographs
    was raised as a “big issue” at a meeting of senior SDC officials attended by both
    Bjorndal and Meeker, and later that day Bjorndal met with Pena and instructed him
    to cease taking such photos without patient consent. Additionally, Pena presented
    evidence in opposition to Bjorndal’s motion for summary judgment indicating that
    he had a reputation among his superiors at SDC, including Meeker, as a repeat
    whistleblower whose complaints of patient mistreatment threatened to subject SDC
    to legal liability.
    The district court granted summary judgment against Pena based upon its
    conclusion that Pena had failed to raise a genuine issue of material fact as to
    whether Bjorndal knew he was the individual responsible for the DHS complaint.
    However, “[a]s with all states of mind, knowledge must normally be proven by
    circumstantial evidence.” United States v. Jewell, 
    532 F.2d 697
    , 708 (9th Cir.
    1976) (Kennedy, J., dissenting). That SDC supervisory personnel viewed Pena as
    a troublesome whistleblower and that his taking of patient photographs was raised
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    at both an executive committee meeting and in a meeting between Bjorndal and
    Pena only one week after the SDC had been compelled by DHS to implement a
    Plan of Correction on the subject of patient photographs provides strong
    circumstantial evidence from which a reasonable factfinder could infer that SDC
    leadership, including Bjorndal, suspected Pena of having filed the DHS complaint
    and retaliated against him on that basis. Accordingly, the district court’s grant of
    summary judgment to Bjorndal on this claim is reversed.
    Because Pena’s various retaliation claims relative to the exercise of his First
    Amendment rights were extremely closely related, the district court’s erroneous
    grant of summary judgment regarding the DHS claim requires vacation of the jury
    verdict on those of Pena’s retaliation claims that went to trial, so that the related
    claims can be heard jointly and the evidence evaluated in its totality. See Lies v.
    Farrell Lines, Inc., 
    641 F.2d 765
    , 774 (9th Cir. 1981) (“[A]lthough partial new
    trials are permitted, the device ‘may not properly be resorted to unless it clearly
    appears that the issue to be retried is so distinct and separable from the others that a
    trial of it alone may be had without injustice.’” (quoting Gasoline Prods. Co. v.
    Champlin Ref. Co., 
    283 U.S. 494
    , 500 (1931)).
    Moreover, at trial the district court excluded SDC Police Chief Ed
    Contreras’s testimony that Meeker and SDC Clinical Director Patty Rees ordered
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    him to “find dirt” on Pena because they were concerned that Pena’s whistleblowing
    activities could subject the SDC to liability. Because a retaliation suit “requires a
    showing of an employer’s improper motive and ‘an employer’s true motivations
    are particularly difficult to ascertain,” see Casumpang v. Int’l Longshoremen’s and
    Warehousemen’s Union, Local 142, 
    269 F.3d 1042
    , 1059 (9th Cir. 2001),
    retaliation cases often turn upon circumstantial evidence. Here, the fact that SDC
    leaders, including Bjorndal’s direct superior, desired Pena’s termination so
    strongly that they were willing to engage the SDC Police Chief in a cloak-and-
    dagger investigation of Pena would allow a jury to infer that those leaders would
    have communicated that desire to Bjorndal. Because Contreras’s evidence is
    highly probative and because any undue prejudice could be addressed through
    testimony by Bjorndal, Meeker, and Rees, the district court abused its discretion in
    excluding Contreras’s testimony.
    Pena further appeals the district court’s refusal to provide the jury with his
    proposed response to a note it sent to the court during its deliberations. Because
    we vacate the verdict against Pena and remand for retrial for the reasons discussed
    above, we do not reach this issue on appeal.
    Costs on appeal are awarded to the plaintiff.
    AFFIRMED in part, REVERSED in part, and REMANDED.
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