Tunucci v. City and County of San Francisco

Background

Veronica Tunucci represented herself. She worked for the City and County of San Francisco (CCSF) for about four years as a supervisor in the Office of the Assessor-Recorder. CCSF disciplined her through warnings and suspensions and dismissed her on March 18, 2022. Tunucci claimed that the discipline and dismissal were gender discrimination and retaliation for complaints about her manager’s alleged discriminatory conduct and workplace conditions.

The disciplinary record included a verbal warning, a written warning, a five-day suspension, a fifteen-day suspension later reduced to twelve days through arbitration, a thirty-day suspension, and dismissal. CCSF attributed the actions to conduct including insubordination, failure to follow instructions, inappropriate or unprofessional communications, disruptive conduct, and violations of workplace policies. An internal Equal Employment Opportunity review found legitimate business reasons for the discipline and insufficient evidence that the manager retaliated against Tunucci. An arbitrator, a state trial court, and the state appellate court also upheld the five-day suspension, as described in the opinion.

Claims and standard

Tunucci asserted seven claims against CCSF: retaliation under Title VII and California’s Fair Employment and Housing Act; retaliation for speech under the First Amendment and state law; breach of a collective-bargaining agreement under the Labor Management Relations Act and California law; gender discrimination under Title VII; due-process and equal-protection violations under the Fourteenth Amendment; constitutional claims under 42 U.S.C. § 1983; and failure to prevent retaliation, discrimination, and harassment under Title VII and the Fair Employment and Housing Act.

The parties filed cross-motions for summary judgment. Under that procedure, the court grants judgment without a trial when there is no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law. The court considered the evidence in the light most favorable to the party opposing each motion.

Analysis

Collective-bargaining agreement claim

The court granted CCSF summary judgment on the contract claim. Tunucci agreed that the Labor Management Relations Act does not apply to public entities. The court also found no evidence that the union breached its duty to fairly represent her interests. Instead, the record showed that the union represented her during the disciplinary process. The court likewise found that California Labor Code section 1126 did not support Tunucci’s claim on the evidence presented.

First Amendment and Fourteenth Amendment claims

The court granted CCSF summary judgment on the constitutional claims. Tunucci argued that she spoke about racial and gender discrimination at work, matters of public concern, and that her speech was protected because she spoke as a private citizen and whistleblower. The court held that, even assuming some of the speech involved public concern, the undisputed evidence showed that she spoke as part of her job and primarily addressed work tasks, supervisors, subordinates, and the work environment. The court therefore found that the speech was not protected. It also found that the discipline was based on matters such as tone, insubordination, forwarding internal emails, communications with the City Attorney’s Office, failure to follow directives, and unprofessional conduct.

For due process, the court explained that a public employee must receive notice of proposed discipline, the grounds and supporting materials, an opportunity to respond, and a post-discipline evidentiary hearing. The court found that Tunucci had received pre-discipline and post-discipline procedures, including arbitration hearings, a Civil Service Commission appeal, and state-court proceedings. The court said that disagreement with the results did not establish a denial of due process.

The court also rejected the equal-protection claim because Tunucci could not show that the reasons for the employment actions were a pretext for discrimination. Finally, the court found no basis for municipal liability under 42 U.S.C. § 1983, a statute that can provide a remedy for constitutional violations by state or local governments. The court found no constitutional violation and, independently, no evidence of a municipal policy, deliberate indifference, or ratification connected to a constitutional violation.

Retaliation and gender-discrimination claims

The court granted CCSF summary judgment on the Title VII and Fair Employment and Housing Act claims. Applying the burden-shifting framework used for employment discrimination claims, the court found that CCSF had offered legitimate, nondiscriminatory reasons for the disciplinary actions. Tunucci’s evidence—including employee emails, timing, alleged lack of evidence, and claims that policies were vague or inconsistently applied—did not create a triable issue that those reasons were pretextual.

For retaliation, the court found no protected activity close in time to the fifteen-day suspension, thirty-day suspension, or termination. Although protected activity occurred within four months of the five-day suspension, the court assumed for purposes of its analysis that Tunucci had established an initial retaliation case and then found that CCSF had legitimate reasons for that suspension. The court concluded that her evidence did not directly show discriminatory motivation or that CCSF’s explanations were not credible.

For gender discrimination, Tunucci identified a male employee with a similar job who accused her of misconduct and was not disciplined, and a manager who yelled at her and was not disciplined. The court assumed that these individuals could establish an initial discrimination case but found that Tunucci’s evidence still did not show that CCSF’s stated reasons for the discipline and dismissal were pretextual.

The court also rejected the failure-to-prevent claim. It held that Title VII does not create a standalone duty to prevent discrimination, retaliation, or harassment. Under California law, an employer’s duty to take reasonable preventive steps depends on proving an underlying claim. Because Tunucci had not established an underlying retaliation or discrimination claim, the court found no derivative Fair Employment and Housing Act claim.

Disposition

The court denied Tunucci’s motion for summary judgment and granted CCSF’s motion for summary judgment on all claims.