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# The last paragraph of this Order was amended to reflect the

dismissal of Defendants’ Counterclaim under 28 U.S.C. § 1367(c).

** This motion was determined to be suitable for decision without

oral argument. L.R. 78-230(h).

*** The caption has been modified to reflect the Order filed

June 8, 2006, which dismissed with prejudice all claims against

Defendants Donald F. Stanton and David J. Shoemaker. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DOUGLAS ENGRAHM, )

) 02:04-cv-1290-GEB-GGH

Plaintiff, )

) AMENDED# ORDER**

v. )

)

COUNTY OF COLUSA; COUNTY OF COLUSA )

DEPARTMENT OF PUBLIC WORKS; JOHN )

S. WRYSINSKI, individually and in )

his capacity as Director of County )

of Colusa Dept. of Public Works, )

)

Defendants.*** )

)

Defendants County of Colusa, County of Colusa Department of

Public Works (jointly referred to as “the County”), and John S.

Wrysinski (“Wrysinski”) move for summary judgment on various grounds. 

Plaintiff opposes the motion.

////

////

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BACKGROUND

Plaintiff was employed by the County as a Road Maintenance

Worker from August 1984 until his termination in February 2004. 

(Defs.’ Statement of Undisputed Facts (“Defs.’ SUF”) ¶¶ 8, 9, 68. 

Plaintiff claims he was terminated by Defendants in retaliation for

exercising his First Amendment rights, namely the filing of lawsuits

against the County. Prior to his termination and the filing of this

action, Plaintiff had brought three lawsuits against the County, two

in federal court and one in state court. (Id. ¶¶ 12, 16, 20.) 

Plaintiff’s prior lawsuits were substantially similar and alleged he

had been retaliated against for complaining about safety and

environmental violations. (Id. ¶¶ 12-14, 16-18, 20.) All of

Plaintiff’s prior lawsuits were resolved by motion in the County’s

favor. (Id. ¶¶ 15, 19, 22.)

On September 4, 2003, Wrysinski, Plaintiff’s supervisor,

sent Plaintiff a Notice of Intent to Terminate (“Notice”). (Id. ¶

61.) The Notice indicated that because of his prior lawsuits

Plaintiff was being terminated for insubordination, dishonesty, and

discourteous treatment of the public and other employees. 

(Plaintiff’s Statement of Undisputed Facts (“Pl.’s SUF”) ¶ 11.) 

Plaintiff appealed the termination decision to the County Board of

Supervisors (“the Board”). (Defs.’ SUF ¶ 63.)

The Board conducted an evidentiary hearing regarding

Plaintiff’s termination on November 10, 2003. (Id. ¶ 64.) Plaintiff

was represented by a labor representative at the hearing who filed a

written answer to the charges brought against Plaintiff. (Id. ¶ 65.)

Plaintiff’s representative made an opening statement at the hearing,

submitted documentary evidence, cross-examined the County’s witnesses,

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1 The standards applicable to motions for summary judgment are

well known, and need not be repeated here. See Reitter v. City of

Sacramento, 87 F. Supp. 2d 1040, 1042 (E.D. Cal. 2000).

3

and examined Plaintiff. (Id. ¶ 68.) At the close of the hearing a

briefing schedule was established. (Id.) Plaintiff’s representative

later submitted a brief on behalf of Plaintiff. (Id.)

On February 24, 2004, the Board issued written findings

upholding Plaintiff’s termination. (Id. ¶ 69.) 

DISCUSSION1

I. Section 1983 claims

Plaintiff’s claims under 42 U.S.C. § 1983 (“section 1983")

allege Defendants terminated him in retaliation for his filing of

three prior lawsuits against Defendants. 

“Under current Supreme Court doctrine, when a public-employee

plaintiff alleges that []he has been terminated in retaliation

for exercising h[is] First Amendment right to speak freely,

courts undertake a t[wo]-step inquiry. The standard is

well-established: To prevail, an employee must prove (1) that

the conduct at issue was constitutionally protected, and (2)

that it was a substantial or motivating factor in the

termination. In order for a public employee’s expression to

be ‘constitutionally protected’ within the meaning of step one

of the [two]-step test, two separate conditions must be

satisfied. As a threshold matter, the speech must touch on a

matter of ‘public concern.’ . . . If it does, then the

reviewing court must determine whether the employee’s interest

in expressing h[im]self outweighs h[is] employer’s interest in

preventing potential workplace disruption.”

Moran v. Washington, 147 F.3d 839, 846 (9th Cir. 1998) (citations

omitted).

Defendants argue Plaintiff’s section 1983 claims fail as a

matter of law since his prior litigation is not constitutionally

protected, because it did not involve a matter of “public concern,”

and even if it did the County’s interests as an employer outweigh

Plaintiff’s interests in litigating the prior lawsuits. Defendants

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contend the Board’s written findings support its position, and

preclude Plaintiff from relitigating these issues. Plaintiff counters

that his prior lawsuits are protected by the First Amendment and that

the Board’s findings have no bearing on his ability to seek redress

for a violation of his First Amendment rights in this Court.

1. Matter of Public Concern

Defendants argue the Board’s finding that Plaintiff’s

lawsuit filed in state court “failed to serve any matter of public

concern” precludes Plaintiff from relitigating the nature of his prior

litigation. Even if the requirements for preclusion were met, the

Board’s finding was only made as to one of Plaintiff’s three lawsuits. 

Therefore, it must be determined whether Plaintiff’s prior lawsuits

involved a matter of public concern. 

“To determine whether [Plaintiff’s prior lawsuits] involved

a matter of public concern, the content, form, and context of h[is]

lawsuit[s must examined] . . . . This examination . . . requires an

exploration of [Plaintiff’s] previous [lawsuits] to determine whether

h[is] speech in th[ose] case[s] involved a matter of public concern.” 

Lytle v. Wondrash, 182 F.3d 1083, 1088 (9th Cir. 1999) (citations

omitted). Plaintiff’s prior lawsuits alleged he suffered adverse

employment actions because of his complaints about the County’s safety

and environmental violations. “An expression relating to any matter

of political, social, or any other concern to the community is

protected.” Id. (citation omitted). “The [County’s compliance with

safety and environmental standards] was within the community’s

concerns, so [Plaintiff’s] speech criticizing [the County’s noncompliance] constituted protected speech. Because the speech at the

heart of [Plaintiff’s] prior lawsuit[s] was protected, [these]

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lawsuit[s] qualified as litigation regarding a matter of public

concern.” Id.

2. Balancing Test

The next issue is whether Plaintiff’s interest in that

litigation is outweighed by the County’s interest as an employer in

preventing workplace disruption. Whether a public-employee’s speech

was ‘protected’ by the First Amendment at all depends upon a

“particularized balancing based on the unique facts presented in each

case.” Voigt v. Savell, 70 F.3d 1552, 1560-61 (9th Cir. 1995). This

balancing “entails a factual inquiry into such matters as whether the

speech (i) impairs discipline or control by superiors, (ii) disrupts

co-worker relations, (iii) erodes a close working relationship

premised on personal loyalty and confidentiality, (iv) interferes with

the speaker’s performance of her or his duties, or (v) obstructs the

routine operation of the office.” Rendish v. City of Tacoma, 123 F.3d

1216, 1224-25 (9th Cir. 1997). Additionally, a finding that the

speech was false “undermines [a plaintiff’s] First Amendment interest

for balancing purposes.” Moran, 147 F.3d at 849.

Defendants argue the Board found facts pertinent to the

balancing of interests and those findings should be given preclusive

effect under Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir.

1994), since Plaintiff did not seek review of the Board’s findings or

decision. Plaintiff concedes he did not seek review of the Board’s

findings or decision, but argues exhaustion of remedies is not

required to bring a section 1983 action. This argument misses

Defendants’ administrative-finding preclusion doctrine issue on which

their motion rests. See Embury v. King, 191 F. Supp. 2d 1071, 1083

(N.D. Cal. 2001) (explaining that the issue is whether the preclusion

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doctrine applies to a section 1983 action). The question is whether

the factual findings of the Board are entitled to preclusive effect.

“[A]s a matter of federal common law, federal courts give

preclusive effect to the findings of state administrative tribunals in

subsequent actions under [section] 1983.” Miller, 39 F.3d at 1032. 

“[T]he federal common law rules of preclusion . . . extend to state

administrative adjudications of . . . factual issues, even if

unreviewed, so long as the state proceeding satisfies the requirements

of fairness outlined in United States v. Utah Construction & Mining

Co., 384 U.S. 394, 422 (1966).” Miller, 39 F.3d at 1032-33. “The

California Supreme Court [] established [in People v. Sims, 32 Cal. 3d

468 (1982), a] test to evaluate the preclusive effect to accord

administrative agency determinations[,]” which incorporates the

fairness requirements of Utah Construction. Eilrich v. Remas, 839

F.2d 630, 633 (9th Cir. 1988) (citing Sims, 32 Cal. 3d 468). 

Therefore, the Board’s findings will be given preclusive effect if the

“hearing met the requirements of California law such that a California

court would have accorded the determination preclusive effect.” 

Miller, 39 F.3d at 1033.

Under the Sims test California courts will give preclusive

effect to an administrative agency’s findings when (1) the

administrative agency acted in a judicial capacity and resolved

disputed issues of fact properly before it which the parties had an

adequate opportunity to litigate, (2) the issue necessarily decided at

the previous proceeding is identical to the one which is sought to be

relitigated, (3) the previous proceeding resulted in a final judgment

on the merits, and (4) the party against whom preclusion is asserted

was a party at the prior proceeding. Sims, 32 Cal. 3d at 479, 484. 

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There is no genuine dispute that California courts would

give preclusive effect to the Board’s factual findings had Plaintiff

brought his section 1983 action in state court. Plaintiff was

afforded a full evidentiary hearing on the appropriateness of his

termination. Both Plaintiff and the County were entitled to call,

examine, and cross-examine witnesses under oath or affirmation. At

the hearing, Plaintiff had representation, numerous witnesses

testified, and Plaintiff and Defendants presented oral argument and

written memoranda. Both sides briefed the appropriateness of

Plaintiff’s termination. The Board considered these arguments and

decided the facts surrounding Plaintiff’s prior litigation and

subsequent termination before rendering its decision. This record of

the Board’s procedures reveals Plaintiff had an adequate opportunity

to litigate the appropriateness of his termination. Further,

Plaintiff was a party to the proceeding before the Board and the Board

made necessary factual findings as to Plaintiff’s litigation and its

effect on the workplace, which became final when Plaintiff failed to

seek judicial review of the Board’s decision to uphold his

termination. Id. Accordingly, the Board’s factual findings will be

given preclusive effect in this federal action when a decision is

reached whether Plaintiff’s interest in his prior litigation is

outweighed by the County’s interest in preventing workplace

disruption.

The Board found the allegations in Plaintiff’s prior

litigation “were known by [Plaintiff] to be false” and “made for the

purpose of avoiding assignment to work he considered undesirable and

to protect himself from discipline for his lack of acceptable

performance.” (Tirado Decl. Ex. XX at 10, Nov. 17, 2005.) The Board

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found that the litigation “allowed [Plaintiff] to intimidate his

immediate supervisors to the point that they were afraid to say

anything to [him].” (Id. at 7.) Further, two supervisors “resigned

from their positions . . . so as not to have to deal with [Plaintiff]”

and the other supervisors “were extremely careful in making work

assignments for fear of [Plaintiff’s] allegations of retaliation.” 

(Id.) Additionally, the Board found “that employees of the [County]

were afraid of being pulled into” the litigation, and employees

“complain[ed] that they could no longer work with [Plaintiff] and that

moral[e] was low.” (Id. at 7, 10.) As a result, the County’s

“workforce was divided into east and west sections so that not all

employees would have to work with [Plaintiff].” (Id. at 10.) 

Finally, the litigation “caused the department secretary, []

supervisors[,] and the department technicians to use large blocks of

time researching the facts [surrounding Plaintiff’s allegations].” 

(Id.) “Many employees were [also] pulled off the job for many hours”

to testify regarding the litigation. (Id.) Consequently, Plaintiff’s

litigation “cost the [C]ounty much time [and] lost productivity.” 

(Id.) 

Defendants argue the County’s interest in avoiding workplace

disruptions and maintaining discipline outweigh Plaintiff’s interest

in bringing his prior actions. Several factors, given the undisputed

facts established in the Board’s findings, favor the County’s need to

avoid workplace disruptions and maintain discipline. First,

Plaintiff’s litigation impaired the ability of his supervisors to

assign work and discipline Plaintiff. Second, Plaintiff’s litigation

disrupted the working relations between his co-workers. Finally,

Plaintiff’s litigation obstructed the routine operations of the

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County. Although Plaintiff asserts he had an interest in bringing his

three prior retaliation lawsuits, the Board’s findings that Plaintiff

knew the allegations in his complaints were false and that the

lawsuits were brought to avoid undesirable assignments and as

protection from discipline “undermines [Plaintiff’s assertion of his]

First Amendment interest [in his prior lawsuits] for balancing

purposes.” Moran, 147 F.3d at 849. 

Accordingly, the County’s interest in avoiding workplace

disruptions and maintaining discipline outweighed Plaintiff’s interest

in bringing his prior lawsuits. Therefore, summary judgment is

entered on behalf of Defendants on Plaintiff’s section 1983 claims. 

II. State Law Claims

Since Defendants’ motion for summary judgment has been

granted on all of Plaintiff’s federal claims, the issue is reached

whether supplemental jurisdiction should continue to be exercised over

Plaintiff’s state claims. Under § 1367(c), the district court may

decline to exercise supplemental jurisdiction over a state claim if

“the district court has dismissed all claims over which it has

original jurisdiction . . . .” The exercise of this “discretion . . .

is informed by the [United Mine Workers v. Gibbs, 383 U.S. 715

(1966),] values of economy, convenience, fairness, and comity.” Acri

v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc)

(quotation marks omitted). However, “[i]n the usual case in which all

federal-law claims are eliminated . . . , the balance of factors to be

considered . . . will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988); Wade v. Reg’l Credit Assoc., 87

F.3d 1098, 1101 (9th Cir. 1996) (“Where a district court dismisses a

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federal claim, leaving only state claims for resolution, it should

decline jurisdiction over the state claims and dismiss them without

prejudice.”).

Plaintiff’s remaining state law claims include slander,

libel, negligent infliction of emotional distress, and violation of

the California Whistleblower Act. Plaintiff argues his prior

litigation “deal[ing] with illegal dumping of oil”--“a clear[]

violation of state and federal law”--was the basis of his termination,

and therefore Defendants violated the California Whistleblower Act. 

Defendants argue Plaintiff’s prior lawsuits only disclosed alleged

retaliation, and the fact that Plaintiff’s prior lawsuits included

allegations of “illegal dumping” is irrelevant to his claim alleged

under the California Whistleblower Act. It is not clear from the

parties’ briefs whether Plaintiff’s allegations of “illegal dumping”

are irrelevant to this claim. Nevertheless, the Gibbs values of

comity and fairness do not weigh in favor of a federal court deciding

these state issues, because as stated in Gibbs: “Needless decisions

of state law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them a

surer-footed reading of applicable law.” 383 U.S. at 726. 

Consideration of the Gibbs values reveals I should decline

exercising supplemental jurisdiction over Plaintiff’s remaining state

claims. Additionally, Defendants’ state law Counterclaim should also

be dismissed “unless retention . . . is justified by judicial economy,

convenience, and fairness to the litigants.” F.D.S. Marine, LLC v.

Brix Maritime Co., 211 F.R.D. 396, 398 (D. Or. 2001). The Gibbs

values do not justify the continued exercise of supplemental

jurisdiction over Defendants’ Counterclaim for breach of contract. 

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See Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors,

Inc., 944 F.2d 1525, 1533 (9th Cir. 1991) (upholding district court’s

dismissal of state law counterclaims under 28 U.S.C. § 1367(c) after

granting summary judgment on federal claims even though counterclaims

had been pending before district court for six years). Therefore,

Plaintiff’s remaining state law claims and Defendants’ Counterclaim

are dismissed without prejudice under 28 U.S.C. § 1367(c) as of the

date on which this Order is filed. The Clerk of the Court is directed

to close this action.

IT IS SO ORDERED. 

Dated: June 16, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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