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The city of Pleasanton filed a motion for summary judgment on July 17, asking Alameda County Superior Court Judge Jenna Whitman to rule in its favor in a whistleblower case brought by former employee Dan Repp. The city would like a decision before the case goes to a jury trial in November because “there are no triable issues as to any material fact against the city”.
Repp, Pleasanton’s former managing director of utilities and environmental services, filed a lawsuit in November 2023, claiming City Manager Gerry Beaudin terminated him in retaliation because Repp reported serious issues with Pleasanton’s water and sewer systems to Beaudin, other employees and outside agencies between mid-2022 and early 2023.
On July 14, Repp filed a motion for summary adjudication, asking Whitman to rule in Repp’s favor before trial because, among other issues, “There is scant to no documentary evidence to back up the (city manager’s) criticism of (Repp). Most or all the conduct he complained of in the post-October framework is protected.”
“The city cannot prove to a clear and convincing evidence standard to prove that it would have fired (Repp) for reasons unrelated to his whistleblowing,” Repp’s attorney, Judith Wolff, explained.
The Whistleblower Protection Act (WPA) protects employees against retaliation for reporting suspected violations of state or federal laws, or local, state or federal rules and regulations. Violation of the WPA is one of Repp’s six legal claims; others included retaliation for disclosing working conditions, age discrimination, wrongful termination and emotional distress.
In March 2024, Whitman ruled in favor of the city in four of the six claims based on “governmental immunity”, which protects public entities and employees from liability for injuries caused by its employees or others, except where a law explicitly allows for such liability.
The remaining claims were whistleblower retaliation and age discrimination.
The city’s attorneys from the San Jose law firm of Burke, Williams and Sorensen said Repp’s claim of whistleblower retaliation “fails because Repp cannot establish that he engaged in protected activity” and could not establish that the alleged protected activity was a contributing factor in his termination.
According to California Labor Code, “protected activities” are violations of state or federal statute, local, state or federal rule or regulation, or issues of employee safety, unsafe working conditions or work practices.
In his lawsuit, Repp reported he and his team daylighted an underpayment to the city’s water wholesaler, Zone 7 Water Agency, which spawned an $18 million-plus lawsuit that was recently settled before trial.
The city installed water meters that allowed increased water delivery on new and existing residential and commercial properties starting in 2015. Zone 7 was not informed of the change or the increase in water supplied at that time.
The city stated, “Repp did not identify or otherwise report that the city engaged in any illegal conduct” in regard to creating a new meter fee schedule, which he did in 2022.
The city also claimed Repp wasn’t the employee to first report the issue, stating that Repp’s supervisor, Tamara Baptista, “first reported that the Zone 7 meter fee schedule had not been updated after the meters were updated three months before Repp began working for the city.”
“There is no evidence that Repp made or otherwise reported a similar discovery,” the city’s attorneys stated.
Repp also testified that Zone 7 was made aware of the new meter fee schedule by the city’s planning department after it was approved by the city council and the information was published for the public.
However, testimonies from Zone 7 General Manager Valerie Pryor and city of Pleasanton employee Adam Nelkie presented in Zone 7’s lawsuit name Repp as the person who reported the underpayment to Zone 7 in June 2022. Repp is also identified as the person who daylighted the issue in an email and in Zone 7’s lawsuit.
When deposed by the city’s attorneys, Repp did say that the city installing new meters “violated Zone 7 code” and the terms of the contract between the city and the agency, but neither issue is a violation of law.
During his deposition, Repp also said that the city had not participated in illegal conduct in the other situations he alleged he was terminated for surfacing, such as informing a developer of a $500,000 fee needed for water storage infrastructure for a housing development, alerting Zone 7 of required public notice of the PFAs level in its water exceeding maximum contaminate levels and submitting a staff report in an agenda packet that showed Pleasanton would be unable to meet future water needs.
Also in his lawsuit, Repp said he was retaliated against for daylighting an illegal stormwater connection at the Alameda County Fairgrounds. However, the city responded that another employee, Rita Di Candia, not Repp, notified Alameda County of the connection issue.
The city also presented documents that they claim are “replete with indisputable proof that the City terminated Repp’s employment because of performance and communication issues,” according to the motion.
The city continued, “Several witnesses testified about (Repp’s) repeated performance issues and he was even in line for a (Performance Improvement Plan) before he went on administrative leave due to an employee complaint. In addition to unreliable work product, Repp had difficulty communicating and collaborating with others which impacted both his performance and others. Unnecessary delays and communication break downs caused a loss of trust with city staff, city council, city management and, at times, with the public.”
Repp was never given any written warnings or offered a performance improvement plan, both parts of progressive discipline. The city initially claimed progressive discipline was not used with at-will employees, and Repp was an at-will employee.
However, Baptista, Repp’s supervisor, testified that she gave Repp a verbal warning but failed to document the conversation. Baptista also stated that she sought advice from Beaudin, then-assistant city manager Pamela Ott and then-director of human resources and labor relations Veronica Thomas, and agreed to prepare a performance improvement plan for Repp, but never completed it.
The city explained that the timing of Repp’s termination was the result of an investigation into an employee complaint the city received from one of Repp’s subordinates, former employee Stephanie Perley, alleging that he created a hostile work environment.
Karen Kramer of Kramer Investigations was hired to investigate the claim. She interviewed the complainant, Repp, his supervisors and direct reports and concluded Repp had not engaged in bullying or harassment, nor had he created a hostile work environment as defined by city’s policy.
The only allegation Kramer sustained was that Repp swore in the workplace, which Repp confirmed during his interview. Repp and other witnesses, including Beaudin and the employee who filed the complaint against Repp, told Kramer that swearing was commonplace.
Beaudin terminated Repp on June 30, 2023, with an email that read, “This decision is based on among other things, the memorandum dated June 30, 2023, where the city determined that your use of profanity in the workplace toward a city employee was unprofessional and does not meet the expectations for your position as a Managing Director of Utilities & Environmental Services.”
In its motion, the city stated, “The complaint and subsequent investigation was a tipping point for Beaudin, who began considering termination of Repp’s employment after receiving the investigation report. Nothing suggests that Repp’s ‘complaints’ played any role in his termination.”
Performance and communication issues are also the reasons the city gives for disputing Repp’s claim of age discrimination.
According to Wolff, though, “There is no history of discipline in (Repp’s) file, which the city has conceded, but there is a great performance review and a raise.”
In their argument, the city’s attorneys wrote the city does not need to disprove Repp’s case, but must show that Repp can’t prove the elements of his claim. Repp must present specific facts to establish “a genuine issue of material fact for trial.”
It might be Repp’s burden of proof that had Wolff crying foul when the city filed its motion for summary judgment.
In response to the city’s motion, Wolff filed another motion to compel the city to produce documents and other information. In her explanation, she cited her numerous requests for documents and other discovery information needed by Repp and said the city is “sandbagging” in addition to providing “boilerplate objections” to requests.
“The city made time for a dispositive motion but continues to stonewall on discovery, for which it has offered no real justification other than its firm of attorneys hasn’t had enough time,” Wolff wrote. “By its stonewalling, the city (is) succeeding in significantly interfering with Plaintiff’s ability to draft a comprehensive motion for summary adjudication … and is continuing to interfere with plaintiff’s ability to prepare for trial.”
The city’s attorneys called Repp’s June 3 motion to compel unnecessary because the city “has not refused to provide supplemental responses or productions. Rather, it is locating, reviewing, and identifying potentially responsive documentation. Unfortunately, this process takes time.”
The court, though, has since ordered the city to serve Repp complete document production as well as a list of privileged documents withheld and why within 10 days.
The court also awarded monetary sanctions of $12,000 to Repp because of the nearly six-month delay, “which (the city) barely attempts to justify other than by referencing the length and complexity of the requests at issue,” the court wrote.
A hearing on the motions for summary judgment and adjudication is set for Oct. 2. A jury trial is scheduled Nov. 3.
So who is paying the $12,000 sanction from the judge? Is this an issue the law firm created or did the City not produce the documents? Given the City is broke, i hope this is not a City expense!