Ostly v. City and County of San Francisco

Background

Thomas Ostly, a former Assistant District Attorney in the San Francisco District Attorney’s Office, sued Chesa Boudin and the City and County of San Francisco. Ostly worked for the City as an at-will employee from January 2014 until January 2020. His claims arose from his reports and complaints about San Francisco Public Defender’s Office attorneys, a State Bar complaint filed against him, the termination of the City’s agreement to indemnify him for legal expenses related to that complaint, and Boudin’s termination of his employment.

Ostly brought three types of claims under 42 U.S.C. § 1983: First Amendment retaliation and suppression based on his speech and petitions; and Fourteenth Amendment claims based on the State Bar complaint and the termination of the indemnification agreement. He also brought claims under California’s Fair Employment and Housing Act for age discrimination, retaliation, age-based harassment, and failure to take reasonable steps to prevent harassment. The defendants moved for summary judgment, which asks whether the evidence presents a genuine dispute for a jury and whether the moving party is entitled to judgment under the law.

First Amendment claims

The court held that Ostly’s speech and petitions were not protected by the First Amendment. The court analyzed his claims under the framework for public-employee speech, which requires consideration of whether the speech involved a matter of public concern, whether the employee spoke as a private citizen, and whether the speech substantially motivated the adverse employment action.

The court concluded that Ostly’s statements to the press focused on his own cases rather than systemic conduct by the Public Defender’s Office and therefore did not involve a matter of public concern. The court likewise found that his public-records requests and petition to the Sunshine Ordinance Task Force were focused on obtaining documents for his defense against the State Bar complaint and were not matters of public concern. The court characterized his internal statements to colleagues and supervisors, complaints about the State Bar complaint, report to the State Bar, and comments about his job security as personal or internal employment grievances connected to his job-related disputes and duties. The court also concluded that these communications were made in his capacity as a public employee, rather than as a private citizen.

The court separately held that, even if some of Ostly’s speech or petitions had been protected, he produced no evidence from which a reasonable jury could find that Boudin knew about them or retaliated because of them. The court found that the timing of Ostly’s termination was linked to Boudin’s taking office, not to Ostly’s earlier petition. It therefore granted summary judgment on the First Amendment claims.

Fourteenth Amendment claims

Ostly claimed that ending the indemnification agreement violated his Fourteenth Amendment rights. The court analyzed the claim under procedural due process principles, which require a protected interest, government deprivation of that interest, and inadequate process.

The court held that Ostly had adequate procedures available to challenge the termination of the indemnification agreement through a union grievance process. Because he did not identify evidence showing that this process was inadequate, the court ruled that Boudin did not violate Ostly’s due process rights. The court also stated that Ostly had not asserted a specific Equal Protection violation. As to the State Bar complaint, the court held that the conduct of the Public Defender’s Office employee who filed it could not be attributed to Boudin or the City for purposes of Ostly’s claims, and that the State Bar provided a forum in which Ostly could defend against the complaint.

California employment claims

For the age-discrimination claim, the court applied the burden-shifting framework commonly used under the Fair Employment and Housing Act. The court ruled that Ostly had not provided evidence supporting a reasonable inference that age motivated Boudin’s decision to fire him. His assertions that older attorneys were terminated and replaced by younger employees were unsupported by evidence. The court also found that a single post-termination Twitter comment mentioning Ostly’s age, made by a City employee whose role was unspecified and who did not terminate Ostly, did not show that age motivated the firing. The court further held that, even if Ostly had established an initial case of discrimination, the defendants offered a nondiscriminatory reason for the termination that Ostly had not shown to be a pretext.

The court rejected Ostly’s FEHA retaliation claim because the conduct he identified—opposing the Public Defender’s Office’s alleged failure to communicate settlement offers—was not opposition to conduct made unlawful by the FEHA. The court also ruled that Ostly had provided no evidence of age-based harassment. A single reference to his age did not constitute the repeated or pervasive conduct required for a harassment claim. Because the harassment and retaliation claims failed, the related claim that the City failed to prevent harassment and retaliation also failed. The court did not consider Ostly’s mention of sex discrimination in his opposition because he had not alleged that claim in his complaint.

Disposition

Judge Edward M. Chen granted the defendants’ motion for summary judgment on all of Ostly’s claims. The court directed the clerk to enter judgment for the defendants and close the case. The court stated that, because summary judgment was granted on these grounds, it did not need to address the defendants’ evidentiary objections, qualified-immunity argument, Monell argument, or contention that the § 1983 claims were improperly brought against Boudin.