John Ellins v. City of Sierra Madre, 710 F.3d 1049

Ellins, president of the Sierra Madre Police Association (SMPA), led a no-confidence vote against Police Chief Diaz in 2008-2009.
Under the City–SMPA MOU, an Advanced POST certificate yielded a 5% raise; Ellins sought such a certificate in February 2009.
Diaz delayed signing Ellins’s POST certificate, citing concerns about his moral character and consulting seven others; she had not delayed other officers’ POST applications.
Ellins faced multiple internal investigations and a 160-hour suspension during the relevant period; Diaz backdated the raise to June 2009 after suit was filed and after discovery that criminal charges would not be filed.
Ellins sued under 42 U.S.C. § 1983 alleging First Amendment retaliation and Monell claims; the district court granted summary judgment to Diaz and the City on certain claims.
The district court’s ruling was appealed; the Ninth Circuit reversed in part, vacated summary judgment on Ellins’s First Amendment claim, and remanded for trial, while affirming in part on Monell.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ellins’s no-confidence vote involved a matter of public concern	Ellins led a union-wide action about leadership and department-wide issues.	The grievances were internal personnel disputes not public concern.	Speech involved a matter of public concern.
Whether Ellins spoke as a private citizen or as a public employee	Ellins spoke as SMPA president, not as a paid officer performing official duties.	Speech occurred in the course of Ellins’s official police duties.	A jury could find Ellins spoke as a private citizen.
Whether Diaz’s delay in signing the POST certificate constitutes an adverse employment action	Withholding/significant delay of a 5% pay raise constitutes adverse action.	Delay was justified by concerns about character and not a retaliatory act.	Yes; the delay can be an adverse action.
Whether the speech was a substantial or motivating factor in Diaz’s decision	Temporal proximity and Diaz’s opposition show retaliatory motive.	Justifications for delay undermine causation.	There are genuine issues of fact on causation.
Whether Diaz is shielded by qualified immunity and whether Monell applies	Clear First Amendment standards prohibiting retaliation; no immunity.	Officials could lack clearly established rights.	Qualified immunity not applicable; Monell liability foreclosed against the City but not on Diaz’s individual claim for summary-judgment reversal.

Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech as part of official duties not protected)
Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public concern and departmental speech protection)
Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968) (teacher speech protected when addressing public concerns)
Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) (timing and pretext factors in retaliation cases)
Ulrich v. City & County of San Francisco, 308 F.3d 968 (9th Cir. 2002) (opposition expressions support retaliation claims)
Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995) (union-representative speech can be a matter of public concern)
McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir. 1983) (police salaries speech as public concern when made by union representative)
Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) (speech as union representative protected)
Manhattan Beach Police Officers Ass’n v. City of Manhattan Beach, 881 F.2d 816 (9th Cir. 1989) (salary denial in retaliation case)
Elrod v. Burns, 427 U.S. 347 (U.S. 1976) (salary withholding as retaliatory action)
Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992) (sanctions need not be severe to chill)
Ashcroft v. al-Kidd, U.S. __, 131 S. Ct. 2074 (2011) (two-step test for qualified immunity)