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Palm v. Los Angeles Department of Water and Power

United States Court of Appeals, Ninth Circuit

May 10, 2018

Richard A. Palm, Plaintiff-Appellant,
v.
Los Angeles Department of Water and Power, a government agency; James Graden, an individual; Mark Ashford, an individual, Defendants-Appellees.

          Argued and Submitted December 6, 2017 Pasadena, California

          Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding D.C. No. 2:15-cv-03533-PSG-PLA

          Allen B. Felahy (argued) and Franklin L. Ferguson Jr., Felahy Trial Lawyers APC, Los Angeles, California, for Plaintiff-Appellant.

          Kristine A. Moon (argued), Deputy City Attorney; Anat Ehrlich, Assistant City Attorney; Joseph A. Brajevich, General Counsel, Water and Power; Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Defendants-Appellees.

          Before: Paul J. Kelly, Jr., [*] Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

         SUMMARY [**]

         Civil Rights

         The panel affirmed the district court's order (1) granting defendants' motion to dismiss; (2) denying plaintiff leave to amend his third amended complaint; and (3) denying plaintiff's motion for reconsideration in his 42 U.S.C. § 1983 action alleging that the Los Angeles Department of Water and Power terminated his employment in a probationary promotional position without due process of law in violation of the Fourteenth Amendment.

         The panel held that based on the plain language of the Los Angeles Charter, the Los Angeles Civil Service Rules, and Circuit precedent, plaintiff lacked a protected property interest in his probationary employment as Steam Plant Maintenance Supervisor. He therefore could not maintain a claim under the Fourteenth Amendment based on his termination from that position and his return to his permanent position as Steam Plant Assistant.

          OPINION

          CALLAHAN, Circuit Judge:

         Richard Palm appeals from the district court's dismissal of his 42 U.S.C. § 1983 civil rights action. Palm claims that his employer, the Los Angeles Department of Water and Power ("LADWP"), terminated his employment in a probationary promotional position without due process of law in violation of the Fourteenth Amendment. We reject Palm's claim because we hold that Palm lacked a constitutionally protected property interest in his probationary position.

         I.

         Plaintiff-Appellant Palm began working for Defendant-Appellee LADWP as a Steam Plant Assistant in 1987. On December 31, 2012, Palm was promoted to Steam Plant Maintenance Supervisor, which commenced a six-month probationary period in the new position. Palm thereafter allegedly made several complaints to his immediate supervisor, Defendant-Appellee James Graden, about LADWP's noncompliance with state and federal health, safety, and labor laws. Among other things, Palm alleges that Graden unlawfully altered Palm's time records. When Palm confronted Graden, Graden allegedly reproached him and threatened repercussions if Palm did not drop the issue.

         After working in his probationary position for five months, Palm was given the choice of either "forced resignation" or termination from the probationary position. Palm chose to resign his position as Supervisor, after which he returned to his permanent job as Steam Plant Assistant. Palm then initiated an action against LADWP and Graden in California superior court, claiming whistleblower retaliation in violation of California Labor Code § 1102.5.[1] The superior court sustained a demurrer on the state law claim, but allowed Palm to amend his complaint to assert a civil rights claim for Monell liability under 42 U.S.C. ยง 1983. LADWP then ...


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