Unreported / Non-Citable
Background
Scott Desrosiers, a former San Diego State University employee who maintained laboratory and classroom equipment beginning in May 2023, alleges that he documented safety violations, including improper chemical storage and unpermitted liquid argon vessels involved in a near-miss asphyxiation incident, and filed a CalOSHA complaint. He alleges his supervisor, Kirk Campbell, penalized him for rejecting the claim that there were no safety concerns, barred him from raising them, and kept assigning him to those labs. His whistleblower complaint under CSU Executive Order 1116 was allegedly routed to Jessica Rentto, who issued no finding while he remained employed.
At a March 20, 2024 meeting, Desrosiers allegedly said he would file a federal civil rights suit if the violations and his evaluation were not corrected. The next day, labor relations manager Nathan Doherty allegedly accused him of threatening a coworker with a weapon, based on a multi-tool remark, and he was placed on leave. He was terminated on April 11, 2024, for threatening behavior. Proceeding pro se, he sued for First Amendment retaliation, state-created-danger substantive due process, and stigma-plus procedural due process; Chancellor Mildred Garcia, Campbell, Doherty, and Rentto moved to dismiss, asserting qualified immunity.
The Court’s Holding
The court denied the motion as to the First Amendment retaliation claim (Count 1) against Campbell and Doherty. Accepting the allegations as true, it was clearly established in 2024 that a public employer may not place an employee on leave and fire him for threatening to sue over workplace-safety violations of public concern. The court accepted, at this stage, the allegation that the weapon charge was pretextual. Causation was plausibly alleged because leave followed the litigation threat within a day and both men allegedly opposed his safety concerns. The termination's timing after the CalOSHA disclosure did not suffice alone, because neither is alleged to have known of it, but the claim survives on the theory that the termination was tied to the litigation threat. Count 1 was dismissed without prejudice against Garcia, because no personal participation or retaliatory purpose was alleged and § 1983 has no vicarious liability, and against Rentto, because an inadequate response to a complaint is not an adverse employment action.
On substantive due process (Count 2), the court granted qualified immunity to Campbell, Doherty, and Rentto and dismissed the claim without prejudice. Ninth Circuit workplace cases involve an employer affirmatively placing an employee in contact with a known danger that caused death or serious harm. Here, Desrosiers was assigned to his ordinary workspaces, the argon near miss predated the assignments, the other hazards were ordinary safety deficiencies, and the alleged injuries were migraines, distress, and economic loss. The court did not decide whether a constitutional violation was pleaded.
On procedural due process (Count 3), the court granted qualified immunity and dismissed without prejudice because a name-clearing right depends on public disclosure of the charges. It found no authority treating a police escort as publication, reasoned that disclosure in a meeting attended by an officer and union representatives is not public, and noted California does not mandate public release of personnel files and no outsider is alleged to have received his. Dismissed claims may be repleaded in a Second Amended Complaint due November 17, 2026.
Key Takeaways
- A defendant's own account of a legitimate reason does not defeat a plausibly alleged pretext theory at the pleading stage.
- A threat to sue over workplace safety, made outside ordinary duties, can support a First Amendment retaliation claim when leave and termination follow closely.
- A chancellor cannot be liable under § 1983 merely because subordinates acted under her authority; the complaint must allege her own conduct and retaliatory purpose.
- State-created danger claims generally require affirmative placement into a known danger and serious injury, which assignment to ordinary duties did not show here.
- A stigma-plus claim requires public disclosure, and internal disciplinary meetings or non-public personnel records did not suffice here.
Why It Matters
This is an unpublished district court order on a motion to dismiss, so it carries no precedential weight and resolves no facts. The retaliation claim against Campbell and Doherty proceeds, but the court has found no wrongdoing; the allegations remain untested.
The order shows how a court may separate speech theories and actors in a public-employee whistleblower case. Defendants dismissed without prejudice may be named again if an amended complaint cures the identified gaps, such as personal participation, retaliatory purpose, serious injury, or publication. Because qualified immunity was resolved on the clearly-established prong for Counts 2 and 3, the underlying constitutional questions remain open.