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The city of Pleasanton scored a decisive legal victory Tuesday when a judge dismissed the lawsuit brought by a former employee over his firing in 2023, finding the allegations of whistleblower retaliation and age discrimination didn’t hold water.
In a written decision issued late in the morning, Alameda County Superior Court Judge Jenna Whitman confirmed the direction she took in a tentative ruling last week on the city’s motion for summary judgment to have the civil case brought by former utilities manager Dan Repp tossed before a jury trial.
“Many of Plaintiff’s purportedly ‘illegal reasons’ for termination are not tied to any evidence, and none appear to relate to the alleged protected activity,” Whitman wrote midway through her nine-page ruling.
Pleasanton City Manager Gerry Beaudin, whose decision to fire Repp in June 2023 after a workplace misconduct investigation was placed under the microscope in pre-trial depositions and pleadings, declined to comment on the win in court when contacted by the Pleasanton Weekly on Tuesday.
Repp plans to appeal the ruling, his attorney Judith Wolff confirmed to the Weekly without offering further comment about the case.
The two-year legal battle began in the months after Repp, the city’s managing director of utilities and environmental services since June 2020, was fired by Beaudin in the wake of a third-party investigation into a complaint that Repp created a hostile work environment.
The termination letter cited profanity in the workplace toward another city employee as unacceptable and unprofessional behavior, but the original tort claim and subsequent lawsuit led to more revelations about what each side said happened.
Repp’s central allegation was Beaudin fired him because he reported issues with Pleasanton’s water and sewer systems to Beaudin, other employees and outside agencies between mid-2022 and early 2023.
The city disputed that Repp even qualified for whistleblower protection, saying other employees actually raised key issues first before he did – and that Repp had a demonstrated pattern of bad performance in his job, representing the real scope for why he was let go regardless of any purported protected activity.
The former employee initially claimed six causes of action in his lawsuit, including retaliation for disclosing working conditions, wrongful termination and emotional distress, but Whitman dismissed four of the claims in March – leaving only whistleblower retaliation and age discrimination.
The judge sided again with the city this week, granting its motion for summary judgment to toss the final two causes of action after a series of briefs and oral arguments that got at the heart of the facts and legal merits of the lawsuit.
“The evidence unearthed as a result of the investigation into (the) complaint, in combination with management’s preexisting concerns about Plaintiff’s lack of professionalism and ineffectiveness as a manager, constitute compelling and legitimate reasons for the termination, particularly given Plaintiff’s responsibilities in a leadership role,” the judge stated.
“The timing of the City’s actions vis-a-vis the alleged protected activities discloses no causal connection between protected activity and the City’s termination decision,” Whitman wrote of the whistleblower retaliation allegation.
“Thus, a reasonable factfinder, considering the overall chronology of events, would be required to find it ‘highly probable’ that the City’s decision to terminate Plaintiff would have occurred for legitimate, independent reasons even if Plaintiff has not engaged in protected activity,” she added. “Accordingly, the City has met its burden, and the Court must GRANT summary adjudication as to the first cause of action for whistleblower retaliation.”
As for the claim of age discrimination, Whitman concluded, “The only theory articulated in the Complaint and the opposition to this motion is that Defendant terminated Plaintiff’s employment due in part to his age; however, Plaintiff has not identified any other circumstance to suggest a discriminatory motive.”
“The City has sustained its burden on this cause of action, and Plaintiff has cited no evidence of discrimination or pretext; accordingly, the Court GRANTS the motion as to this issue,” the judge ruled.
The final decision was largely in line with the sentiments in Whitman’s tentative ruling issued Oct. 2, with the city trying to quash the case before a scheduled November jury trial. Wolff opposed the judge’s initial direction, leading to a virtual court hearing for final oral arguments Friday afternoon.
The plaintiff’s attorney spent nearly 45 minutes of the hourlong hearing trying to convince the judge to change her mind.
“I obviously wouldn’t be pursuing this case if I believed the city’s evidence,” Wolff told the court. “A jury is entitled to hear all of the evidence and to look at the witnesses, listen to the tone of their voice, watch their body language and decide for themselves whether they believe that the reasons that the city is asserting for his termination were operative reasons at the time he was fired or if the city manager — angered at being sued by a thorn on his side — decided to throw every possible reason at the firing.”
The city’s defense doubled down on Repp’s conduct at work having gotten worse, there being no evidence for age discrimination and Repp having to take anger management classes being strong evidence to show reason for termination.
“The evidence is that (the city) had substantial reasons at the time (and) that it would have fired Mr. Repp regardless of any whistleblowing activity,” said Natalie Price, the attorney for the city at Friday’s hearing. San Jose-based law firm Burke, Williams and Sorensen represented the city through the regional liability insurance pool.
“I do think I need a little bit more time just to digest what you’ve provided today,” Whitman said in taking the case under advisement after Friday’s hearing that followed her tentative ruling.
The judge was ultimately unconvinced by Wolff’s core arguments, as bore out in her final order – which will become official once a proposed judgment drafted by the city’s attorneys is signed by the court.
An appeal process, which Repp intends to pursue, would typically take one to two years, according to his lawyer.
Editor’s note: This story has been updated to reflect the final ruling that was obtained by the Weekly after the original story on the tentative ruling and oral arguments was published.
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