Boss’s Relationship to Paralegal Paramour Raised Public Issue for Free Speech Claim
By Anne A. Marchessault
A legal secretary in Santa Clara. Calif., accused of “viciousness” and “harshness” after reporting a supervisor’s relationship with a paralegal can advance her free speech retaliation claims against her supervisor, the U.S. District Court for the Northern District of California decided April 17 (Zertuche v. Santa Clara Cnty., N.D. Cal., No. 4:11-cv-03691, 4/17/13).
Hosetta Zertuche spoke on a matter of public concern under the First Amendment to the U.S. Constitution when she complained that her boss’s relationship with a paralegal violated ethical policies, the court said.
Because Zertuche’s supervisor, James Gleason, subsequently gave her a negative evaluation leading to her transfer to another department, the court ruled that she raised an issue of fact on her free speech retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983).
The court also rejected Gleason’s contention that he was subject to qualified immunity. “[A] reasonable official in Gleason’s position … would have known that it was unlawful to retaliate against an employee for making complaints pursuant to an internal ethics policy, especially where such policy implicated attorney-client confidentiality,” Judge Yvonne Gonzalez Rogers wrote.
Complained About Confidentiality Breaches
Zertuche works as a legal secretary in the Office of the County Counsel in Santa Clara. Between 2008 and 2010, she was assigned to the Independent Defense Counsel Office. Gleason was the director of IDO at the time.
Zertuche provided administrative support. Gleason also permitted Zertuche to select which panel attorneys would be assigned to misdemeanor cases with the least violent offenders, even though this task was not specifically included in Zertuche’s job duties.
IDO has an “Ethical Wall Policy” in place to ensure that it maintains autonomy from the County Counsel and protects attorney-client confidences. The policy states, “Every attorney, paralegal, and staff member working for County Counsel and IDO … shall be expected to strictly adhere to the policy to ensure that client confidences are maintained at all times and to ensure the absolute separation between County Counsel and IDO.”
In spring 2010, IDO’s paralegal, Ngoc Lam, was transferred to another department. Gleason and Lam were involved in a romantic relationship at the time, and Lam returned to IDO’s offices almost daily to visit Gleason and perform some administrative work.
According to Zertuche, she frequently observed that Lam was within earshot while she was discussing confidential information with Gleason or other IDO staff.
Zertuche once entered Gleason’s office to find Lam handling invoices submitted by IDO panel attorneys–which occasionally included confidential information. She discovered on another occasion that Lam was standing in the doorway to Gleason’s office while Zertuche briefed him on criminal cases.
Zertuche told Gleason she believed Lam’s continued visits to IDO and work on IDO matters constituted a breach of the ethics policy, but Gleason responded that there was no reason for concern.
Zertuche also discussed with her administrative manager, Kimberly Maruffi, and Lam’s administrative manager, Barbara Stimac, her concern that Lam’s involvement in IDO violated ethical policies.
County Counsel Administrative Services Manager Sandra Eovino investigated Zertuche’s complaints. Eovino told Gleason that Lam was barred from all further IDO visits, and that Lam needed to sign a confidentiality agreement to continue the work she had been performing for IDO panel attorneys.
Rated Low in ‘Work Relationships.’
According to another IDO employee, Gleason then began treating Zertuche “in a consistently angry and harsh manner.” One week after Eovino’s orders, Gleason stopped allowing Zertuche to make panel referrals for less violent misdemeanor cases.
Maruffi then solicited input from Gleason for Zertuche’s annual performance evaluation. Gleason ranked Zertuche as “excellent,” “good,” or “acceptable” in all categories, with the exception of an “unsatisfactory” in the category of “work relationships.”
In a follow-up email to Maruffi, Gleason explained that the negative rating “reflects my disappointment in the way she has conducted herself with respect to [co-workers, including Lam].”
“In each of those instances,” Gleason added, “there was little attempt made at conciliation or consensus, and in some cases she showed a viciousness that continues to trouble me.”
Maruffi then rated Zertuche as “improvement needed” in her annual performance appraisal’s “work relationships” section. Maruffi added, “Hosetta has made little attempt at reconciliation or consensus and, in some cases, has shown an inappropriate harshness toward the other party.”
Eovino then informed Zertuche that she was being transferred out of IDO.
Zertuche filed a Section 1983 free speech retaliation claim against the county and individual officials, and the county defendants moved for summary judgment. She conceded summary judgment as to all defendants except Gleason.
Ethics Violation Claims Public Concern
The court found that Zertuche demonstrated that she engaged in speech on a matter of public concern, as required to advance her First Amendment retaliation claim.
As the court explained, speech involves a matter of public concern when it relates to any matter of political, social, or other concern to the community. “Likewise,” Rogers wrote, “speech related to potential government ethics violations, including conflicts of interest, implicates matters of public concern.”
Gleason argued that Zertuche’s complaints were focused on personal grievances, but the court disagreed. Zertuche’s reports regarding Lam’s activity at IDO directly referenced the department’s ethics policy, the court noted, and implicated its ethical operations.
Maruffi and Stimac’s testimony confirmed to the court that Zertuche’s complaints were understood to relate to possible ethical violations at IDO. “Here,” Rogers wrote, “statements revealing breaches of an ethical wall policy within the office of the County Counsel implicate matters of public concern.”
“Failure to maintain the ethical wall can risk violating attorney-client privilege, breaching the duties the attorneys owe to their clients, and undermining the public’s trust in the County Counsel office,” she said.
Policy Did Not Require Reporting
Zertuche also showed that she spoke as a private citizen, the court decided.
“If the speech was made on account of the speaker’s official job duties or as a product of performing the tasks she was paid to perform, it is not protected,” the court explained.
“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen,” the court said.
Gleason argued that Zertuche’s complaints were not protected because she made them as part of her official IDO duties, but the court found that she raised an issue of fact as to whether she made the complaints as a private citizen.
Zertuche testified that it was her “duty” to “uphold the standards of our mission statement,” but that she was never told to monitor or report ethical violations.
Transfer Timed With Negative Reviews
The court said that Zertuche established that she experienced an adverse employment action likely to deter an objectively reasonable employee from making ethical complaints.
Zertuche alleged multiple instances of negative treatment from Gleason after she complained of alleged ethical violations: he began treating her in an unfriendly and angry manner, including glaring at her; he stopped allowing her to assign attorneys to lower level misdemeanor cases; and he recommended that she be rated “unsatisfactory” in the workplace relationships category on her performance appraisal.
According to Zertuche, she would not have been transferred out of IDO if Gleason had not provided Maruffi the harsh critique of her work performance.
“Gleason’s unfriendly treatment, standing alone, does not rise to the level of adverse action but falls more into the category of petty annoyances and snubbings,” Rogers wrote. “However,” she said, “the change in Zertuche’s work duties and the low rating on her performance evaluation present more difficult questions.”
Even though Gleason argued that Zertuche’s assignment of attorneys to certain cases was not her job duty, both he and Zertuche testified that it had become “common practice” for Zertuche to make such referrals.
A jury could reasonably find that Zertuche’s Ethical Wall Policy complaints were a substantial or motivating factor leading to her transfer, the court concluded, and that Gleason failed to demonstrate that the county would not have transferred Zertuche absent her complaints.
The court also rejected Gleason’s qualified immunity argument because it found that he had fair notice that his behavior could constitute a violation of Zertuche’s First Amendment free speech rights.
Michael E. Adams in Redwood City, Calif., represented Zertuche. Robert M. Coelho of the Office of County Counsel, County of Santa Clara, in San Jose, Calif., represented the county.
By Anne A. Marchessault
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Zertuche_v_County_of_Santa_Clara_et_al_Docket_No_411cv03691_ND_Ca.