Grigorescu v. Board of Trustees of the San Mateo County Community College…

Background

Violeta Grigorescu was a former lab technician and adjunct professor at the College of San Mateo and the San Mateo Community College District. She participated in the Friends of CSM Gardens group and related litigation opposing the conversion of a campus garden into a parking lot. Her activities included organizing a teach-in, speaking at a District Board of Trustees meeting, communicating with campus members, and participating in litigation.

Eugene Whitlock was the District’s Vice Chancellor for Human Resources and General Counsel during many of the events. In 2015, he initiated a termination process based on alleged misrepresentations about Grigorescu’s academic credentials. An administrative appeal rejected termination but recommended discipline, and Grigorescu received a two-and-a-half-month unpaid suspension.

In 2016, Whitlock initiated a second termination process based on alleged misuse of leave, unauthorized absences, and misrepresentations about Grigorescu’s physical condition. After an administrative appeal, the Board adopted the hearing officer’s recommendation and terminated her in December 2016.

Claims and motion

The court had previously dismissed Grigorescu’s race-based termination claim under 42 U.S.C. § 1981 with prejudice. The remaining claim was a claim under 42 U.S.C. § 1983 alleging that Whitlock retaliated against her for exercising First Amendment rights through speech and activism concerning the campus garden.

Whitlock moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when the evidence shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law.

Protected speech and alleged adverse actions

The court held that Grigorescu’s speech about the garden and parking-lot project involved public concern because it addressed public funds and public land. The court also concluded that the two termination attempts could reasonably deter an employee from engaging in protected speech.

The court found a genuine dispute of fact about whether the other alleged workplace actions, viewed together, were sufficiently serious to count as adverse employment actions. Those actions included barring Grigorescu from a mentorship program and from substituting for full-time professors, filing an allegedly incorrect teaching evaluation, denying disability accommodations, calling her a bad employee, suspending her from teaching positions, and denying teaching and scheduling requests.

The court did not consider Grigorescu’s theories involving a letter criticizing campus projects or alleged conduct by Chancellor Ron Galatolo because those theories were not sufficiently asserted in the complaint and were raised for the first time in opposition to summary judgment.

Preclusion of the final termination claim

The court held that the administrative appeal of Grigorescu’s final termination had a sufficiently judicial character to potentially preclude later litigation. Grigorescu had agreed to the hearing officer, was represented by union counsel, presented evidence, examined and cross-examined witnesses, made opening and closing statements, and submitted post-hearing briefs. The hearing officer issued a written decision on the merits.

The court concluded that claim preclusion—also called res judicata, which prevents relitigation of the same claim after a final merits decision—barred Grigorescu from asserting that the final termination was retaliatory. The court also concluded that issue preclusion—also called collateral estoppel, which prevents relitigation of an issue actually decided in an earlier proceeding—applied because the retaliation issue was identical, actually litigated, decided after a full and fair opportunity to be heard, and necessary to the termination decision. The court further found that Whitlock was sufficiently connected to the District’s earlier proceeding for preclusion purposes.

The court did not apply preclusion to the first termination attempt or the other harassment actions because those matters had not previously been litigated to a final judgment.

Causation and disposition

For the first termination attempt and harassment actions, the court found a genuine dispute about whether Grigorescu’s protected activity was a substantial or motivating factor. The court noted evidence from which a jury could infer that Whitlock knew about her activism and opposed it through his role as the District’s General Counsel in the related garden litigation. The court also found that the timing and continuing pattern of alleged actions could support an inference of retaliation, even though Grigorescu had continued participating in the garden-related activity.

The court granted in part and denied in part Whitlock’s motion for summary judgment. It granted summary judgment on the claim that Grigorescu’s final termination was retaliation for protected speech. It denied summary judgment on the claims that the first termination attempt and the harassment actions between 2014 and 2016 were retaliation for protected speech. The court declined to address qualified immunity and stated that it ruled on the merits rather than based on the procedural violations asserted against Grigorescu’s counsel.