Kirkpatrick v. City of Oakland, California

Background

Anne Kirkpatrick, the former Chief of the Oakland Police Department, sued the City of Oakland after the Oakland Police Commission terminated her on February 20, 2020. She alleged that the City violated California Labor Code section 1102.5 by retaliating against her for reporting eight instances of Commissioner misconduct. She also alleged retaliation in violation of the First Amendment through 42 U.S.C. section 1983, the federal civil-rights statute used for claims against government actors.

The City moved for summary judgment, which asks the court to decide a claim without a trial when no reasonable fact-finder could rule for the opposing party. The City argued that Kirkpatrick’s reports were not protected activity and did not contribute to the termination decision.

California Whistleblower Claim

California Labor Code section 1102.5 protects an employee who discloses information when the employee reasonably believes it reveals a violation of law or a local, state, or federal rule or regulation. The employee must show that the protected activity was a contributing factor in the employment action. The employer may then attempt to prove by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons.

The court held that a reasonable fact-finder could determine that Kirkpatrick’s reports about the Tow Incident and the School Incident were protected activity. The reports could support an inference that Commissioner Harris used her public position to seek a private benefit, potentially violating Oakland Municipal Code section 2.25.060(A)(2). The court rejected the City’s argument that Kirkpatrick’s reports had to identify every element of the suspected violation or disclose information that was previously unknown.

The court also found a genuine dispute about whether the NCS Incident report was protected. A fact-finder could infer that Kirkpatrick reasonably suspected Commissioner Harris was attempting to use her position to obtain a private benefit. The court found a genuine dispute about whether the Brendon Woods Comment could reasonably be viewed as discrimination or harassment prohibited by Oakland Administrative Instruction 71, and whether Kirkpatrick reasonably believed it violated that rule.

The record also supported a finding that Kirkpatrick reasonably suspected the Subpoena and OBOA Questions violated California Penal Code section 832.7 and Oakland Municipal Code section 2.45.080 by seeking confidential or restricted personnel information. The court further held that a reasonable fact-finder could find that Kirkpatrick’s Formal Complaint, which included several of these incidents, was protected activity.

The court ruled differently on the Liaison Assignment. Kirkpatrick asked the City Attorney to provide counsel concerning the Police Commission’s demand that she appoint Deputy Armstrong as the Police Commission Liaison. The court held that this request was not protected activity as a matter of law because Kirkpatrick identified no local law or regulation that the demand violated. The court explained that Measure LL did not prohibit the Police Commission from making a demand it lacked authority to make.

On causation, the court held that a reasonable fact-finder could conclude that Kirkpatrick’s protected reports were a contributing factor in her termination. The court stated that she did not need to show the reports were the only reason for the termination, and that the fact that every person involved in the decision might not have known about every report did not require judgment for the City. The court also held that the City had not established its same-decision defense by the required clear and convincing evidence.

First Amendment Claim

For the First Amendment retaliation claim, the court considered whether Kirkpatrick spoke about a matter of public concern, spoke as a private citizen rather than as a public employee, and showed that her speech was a substantial or motivating factor in the termination. The court held that a reasonable fact-finder could conclude that the Tow Incident and School Incident reports concerned potential misuse of a public position for personal benefit, a matter of public concern.

The court also found evidence supporting the conclusion that Kirkpatrick spoke as a private citizen. She shared reports with people and entities outside her chain of command, including the City Attorney and, for the School Incident, the City Auditor and Public Ethics Commission. The court acknowledged that the evidence could support a contrary finding, but held that such a finding was not the only reasonable one. The court further held that a genuine dispute existed about whether the protected activity substantially or materially motivated the termination.

Disposition

The court denied the City’s motion for summary judgment, except that it granted partial summary judgment on the limited ground that the Liaison Assignment report did not constitute protected activity under California Labor Code section 1102.5 as a matter of law. The order disposed of Docket No. 84.