John Ellins v. City of Sierra Madre

RAWLINSON, Circuit Judges. WARDLAW; Opinion Judge by Judge Concurrence RAWLINSON.

OPINION

WARDLAW, Circuit Judge: Ellins, John City officer for the Madre, of Sierra led a no-confidence vote of the police against officers’ union Police, Chief Marilyn of Diaz. subse- quently delayed signing an application for that, issued, a certification when have entitled Ellins to a percent salary five increase. Ellins brought suit under 42 § U.S.C. City Diaz and the of (collectively, “Defendants”), Sierra Madre alleging delay that Diaz’s was unconstitu- tional retaliation for the exercise of his rights. The district granted summary court judgment favor Defendants, of Ellins concluding that had failed to meet his burden under Garcetti v. Ceballos, U.S. S.Ct. (2006), L.Ed.2d 689 show that under- took his act aas citizen and not pursuant official duties. We dis- agree, and further hold that Ellins has prima established a facie case of First Amendment retaliation. thus reverse We grant summary of judgment favor of Diaz and remand for further proceedings. Morguess, grant Michael A. Carolina We affirm and V. the district court’s Diaz, Lackie, McGill, APC, summary judgment City Dammeier & to the of Sierra CA, Upland, Plaintiff-Appellant. Madre because Ellins did not adduce suffi- summary judg led the in the vote of no Ellins SMPA evidence defeat dent Ellins, According Dept. Monell v. confidence 2008. his Monell claim. ment on Servs., union initiated the membership vote Soc. (1978). leadership, of Diaz’s because “lack wast- L.Ed.2d 611 dollars, hypocrisy, ing of citizens’ tax ex- I. damaging pensive paranoia, inability and job.” her conducted to conduct SMPA of the Sierra Ellins served President ballot, by secret 100% of its (SMPA) vote and mem- from Association Madre Police that bership voted. testified he led January According to 2006 to late vote President [of because “as Understanding Memorandum of SMPA], you to lead the would have vote of (MOU) SMPA, and the between confidence.” The then issued no SMPA employee’s recognized is the the SMPA Diaz read: press the two one releases employees all classified organization vote, about and another criticized Department ex- Madre Police Sierra management press style. Diaz’s re- and the Lieuten- cept the Chief Police examples about the listed lease vote bylaws provide ant. The SMPA’s and purported incompetence lack of shall the executive offi- President be “[t]he leadership, including allegations she and, subject to the of the Association cer asleep fell taxpayers’ money, wasted at gen- have membership, of the shall control meetings, City Council other violated and control of supervision, eral direction SMPA, city between the MOU the affairs Association. He/She generally employees. harassed her members.” preside meetings shall of its Diaz testified that when she learned of presi- in Ellins’s Early tenure as SMPA press the SMPA “no release confidence” dent, Diaz instituted “two-on-two” Chief “disappointment” felt she “disbelief SMPA, designed to “fa- meetings with that this could After have occurred.” the open and resolve cilitate communication” issued, press SMPA she second release felt the and the Department between issues “disappointed and the disheartened they or grievances before became SMPA thought had I a chosen what was [SMPA] Diaz, According Ellins occa- lawsuits. counter-productive also action.” She testi- sionally expressed disagreement with her Ellins, that she was “disappointed” fied decisions, meetings but tone of the president, pre- as SMPA for what she “very point cordial.” At some generally press his in the sumed was involvement stopped two-on-twos. attending Ellins disappoint- She this expressed releases. Thereafter, grievances Diaz learned of and captain to her to several ment and mem- by against filed lawsuits SMPA of the department. bers City, press as well as two releases SMPA vote, press At the time of no-confidence leadership. critical of her One of subject a announced vote of no confidence Ellins had been the three inter- releases by Diaz nal affairs In against investigations.1 taken the SMPA member- November investigated associating he was for ship. brief, contrary. opening any argument his also contends to the See 1. In Ellins waived F.A.A., the three internal criminal inves- and one 977-78 Greenwood retaliatory. tigations him were How- Cir.1994). remand, also Upon may he seek leave ever, El- the district court held that because pretrial of the district court to amend pretrial include lins did not order, this claim in alleged to include additional retal- order these preserve Ellins it for trial. failed to iatory actions his claim. appeal ruling, not and so has Ellins does this a convicted offender received an with narcotics and Advanced P.O.S.T. certificate. sergeant from attempting dissuade While Ellins’s application P.O.S.T.

issuing parking Diaz, ticket to the ex-convict. pending before Ellins served his sus- suspension He 125-hour received with- for pension August incident, from incident, pay out which he did not May 3 to June 2009. August In

serve. Ellins was investi- Diaz testified that when Ellins submit- citing arresting for not gated theft her, application ted the she did in whose car had suspect Ellins found mar- immediately sign it because of her concern ijuana. May was investigated requisite Ellins lacked the good moral telling Finance Director that character. Diaz consulted with seven oth- who residents did not want be evacuat- people er regarding her decision against during a near ed serious wildfire Sierra signing application, Ellins’s P.O.S.T. all were “stupid” Madre and “deserved to whom agreed with her decision.2 had Diaz reprimand Ellins die.” received a for this not delayed any of signing the four other Finally, statement December in P.O.S.T. applications from other officers 2008, Diaz a criminal in- October initiated However, that she previously signed. had Angeles County vestigation Los Ellins, unlike prior none of the applicants Attorney’s District into Ellins’s al- office had ever discipline received more severe leged provided misconduct. She the Dis- than a warning. written Attorney’s trict office with information On June with his application for Ellins’s alleged about sales and use of a P.O.S.T. still unsigned, certificate steroids, with duty anabolic assault filed this lawsuit in the United States Dis- and other weapons, “relating matters trict Court for the District Central of Cali- duty.” sexual misconduct Diaz while seeking damages fornia injunctive re- says she received the information about lief, based on alleged retaliation for his alleged misconduct from “another Po- rights, exercise of individual civil free ex- No charges lice Chief.” resulted from the association, labor, social, pression and Attorney’s investigation District criminal political activities. Ellins contends alleged misconduct. by delay- retaliated him February On Ellins submitted ing approval an application to Diaz for Advanced of anger outspoken- out because of “[his] Officer Training Peace Standards ness, confidence, the vote of no and [his] (P.O.S.T.) application certifícate. The alleged union activities.” He also a Monell required signature certification from a City. against claim the Head” or “Authorized “Department Desig 14, 2010, September On Diaz In a and the signature nee.” the paragraph above City line, reads, summary moved for application judgment. In the “Recommenda motion, support of my Award the Diaz declared that opinion, tion to Certificate: Attorney learned that applicant good the is of moral she the District character award(s), worthy not per charges against of the based on would file criminal El- later, knowledge.” sonal Under the MOU be lins October 2009. Two months SMPA, City although tween the and the she had not received written con- pay receive a if percent would five raise firmation of fact this from the District According testimony, Department, deposition 2. to Diaz’s the Anaheim Police a current police, the individuals expert she consulted included a lieutenant in the Anaheim an "boss,” ethics, training police senior city "P.O.S.T. consultant” for the and Diaz’s the man- California, Madre, ager Aguilar. State of the chief of Sierra Elaine former of

1056 Anthoine, office, public on a matter concern.” Attorney’s on December (internal marks signed quotation at 748 605 F.3d long delay any process than the omitted). However, “rather public employ “when [El that “because Diaz also declared er.” to their offi pursuant ees make statements it litigation, was had commenced this lins] duties, employees speaking are not cial if he a retroactive given hoped purposes, First citizens for lawsuit to the he filed this raise date pay not insulate and the Constitution does litigation.” forego [sic] ... he would discipline.” employer their communications from the certif P.O.S.T. Commission issued etti, 547 U.S. Garc 7, 2009, and Ellins was icate on December percent five raise retroactive given pay 3, 2009, both on which he date June in five-step follow a sequential We suspension from returned the 160-hour employer quiry to determine whether and filed this lawsuit. an em impermissibly retaliated January court the district On engaging protected speech. ployee for summary motion for granted Defendants’ (9th Eng Cooley, 1070 that Ellins had ground on judgment Cir.2009). “First, plaintiff bears establishing not satisfied burden of (1) showing: plain whether burden claim of Amendment re- prima facie concern; tiff on matter of The district court further held taliation. (2) plaintiff spoke as a whether Diaz, entitled to individually, (3) public employee; citizen or wheth immunity, City did qualified and that the protected speech was plaintiffs er the Monell, Monell liability. not bear See factor in the ad motivating substantial 658, 98 S.Ct. 2018. U.S. Robinson v. employment verse action.” (9th Cir.2009) (in York,

II. omit quotation ternal marks and citation summary grant We review a ted). “Next, if the plaintiff has satisfied novo. N. Cent. judgment de Anthoine v. steps, the first three the burden shifts Consortium, F.3d Counties (4) whether the government show: Cir.2010). novo also review de We adequate justification had an state grant court’s sum the district decision to differently treating employee from oth mary judgment qualified the basis (5) general public; er members immunity. Vegas, Davis City Las (9th Cir.2007). 1048, 1053 must the state have taken the F.3d We whether whether, viewing the evidence determine employment action even absent adverse Ellins, most “there favorable speech.” Id. any genuine material fact and are issues of summary court granted The district correctly applied the district whether court El for Diaz on judgment ground the relevant law.” Delia v. substantive facie bur prima lins had satisfied his Rialto, Specifically, court held den. the district Cir.2010) (internal and ci quotation marks (1) that Ellins failed to he establish omitted), grounds, tation rev’d on other — leading as a citizen Delia, U.S.-, Filarsky 132 S.Ct. vote; (2) an ad (2012). no-confidence he suffered 1657, 182L.Ed.2d 662 (3) action; pro employment his verse III. motivating tected act was substantial or alleged employment factor in the adverse “The First Amendment shields a employee if a citizen action. public speaks

1057 A. The Court reasoned that these issues were “mere Myers’ extensions of dispute over argues Diaz first that Ellins can her transfer to another section of the crim- a First Amendment retalia establish 148, inal court.” Id. at 103 S.Ct. 1684. tion claim because the no-confidence vote argues Diaz that Ellins himself character- public did not involve a matter of concern.3 grievances izes the motivating the no-con- “Speech public involves a matter of con fidence vote as matters involving the fairly cern when it can be considered to MOU, scheduling dispatchers, searching social, ‘any relate to political, matter of ” lockers, officers’ and other internal issues. other community.’ concern John Diaz contends that these matters are mere 420, Cnty., son v. Multnomah 422 “personnel grievances,” and that the vote (9th Cir.1995) (quoting Myers, Connick v. press and attendant releases were there- 138, 146, 461 U.S. 103 S.Ct. fore an extension of the dispute between (1983)). L.Ed.2d 708 Speech that deals department, officers and the with personnel disputes “individual rather than speech about a pub- matter of grievances” that “would be no relevance lic concern. disagree. We to the public’s perform evaluation of the governmental agencies” ance of generally The record tends to belie Diaz’s charac- public is not of McKinley City concern. terization of the reasons behind the no- (9th Cir.1983). 1110, 1114 Eloy, 705 F.2d confidence vote. Ellins stated his decla- “Whether an employee’s speech addresses ration that he led the vote “due to Chief public matter of concern must be deter lack leadership, Diaz’s wasting of citi- content, form, by mined and context of dollars, tax zens’ hypocrisy, expensive statement, given by as revealed paranoia, and damaging inability to con- 147-48, Connick, whole record.” 461 U.S. at job.” duct her Ellins echoed that conten- (1983). S.Ct. tion in deposition testimony, asserting that the no-confidence vote stemmed from public argument concern upset “how members [of the were union] Connick, heavily relies on in which the on how Chief Diaz conducted herself as a Supreme Court concluded that most of an Chief.” questionnaire office circulated an assis attorney, tant district also misconstrues the rationale be- who had been trans wishes, dispositive ferred her hind Connick. The fact in was not a mat Con- questionnaire ter of concern. nick was not that the vote resulted from a personnel grievance, concerned “office policy, transfer office but rather that it re- morale,” and “the level of personnel griev- confidence sulted from individual supervisors.” Id. at precedent S.Ct. ance. Our instructs that collec- Here, argument 3. Diaz makes this for the first time we reach the issue because it ais mat- law, appeal. pure Eng, It was not raised before dis- ter of see 552 F.3d at court, summary closely "private trict either in the motion for and it is linked to the citizen” judgment hearing, inquiry or at the and the district we must undertake to determine accordingly court's order does not address it. whether the second element aof First Amend- circumstances, exceptional gener- "Absent we ment retaliation claim has been satisfied. See ally arguments Myers, will not consider raised for the Connick v. 461 U.S. 103 S.Ct. appeal, (1983) although first time on (noting we have the 75 L.Ed.2d 708 the "re- States, Educ., discretion to peated emphasis Pickering do so.” Baccei v. United Bd. [v. (9th Cir.2011). This L.Ed.2d (1968) normally discretion is right public employee limited to matters of ] on the of a ‘as citizen, pure Mercury Corp. law. In re commenting upon Interactive Sec. matters of (9th Cir.2010). Litig., ”). public 618 F.3d 992-93 concern’ griev- problems, private not by raised unions ment-wide grievances personnel tive Lambert, public concern. See at 137. Fur- may matters of ances. See 59 F.3d be Richard, ther, 136-37 McKinley, departmental Lambert in these as Cir.1995) (9th library (holding that where to problems of interest the were inherent library that City told Council employee the public they ability could affect because employees that were mismanaged and was police of the Madre force to attract Sierra zest,” was on a mat- speech of the “devoid McKinley, and officers. retain See “spoke concern because she public ter of in F.2d the facts the Viewing at as representative, not an indi- as a union Ellins, speech to in light most favorable vidual, ... departmen- she described the connection with SMPA’s no-confidence grievances”). problems, private tal not a matter concern. public vote involved of of our decision upshot Therefore, That was also the evi- he introduced sufficient a McKinley, rep- involved union in which a of genuine dence to create issue material po- police officer who discussed resentative a fact first of as to the element city meeting council lice salaries a retaliation claim. 705 F.2d at 1112.

in a television interview. B. subject that the matter of his We held public awas matter of concern speech that Ellins must also demonstrate subject of the classic because salaries —the in speech question spoken the “was the the grievance city’s abili- personnel —affect private a and not a capacity of citizen qualified ty police to attract and retain public Eng, F.3d at 1071. employee.” competency po- and “the of the personnel, court that Ellins district determined great of surely public lice force is a matter to failed evidence es present to sufficient 1114. Because offi- concern.” Id. at the leading that the no-confidence tablish McKinley a spoke repre- as union cer citizen, private vote as a spoke rather the concerns of expressed sentative than to his duties as a pursuant official whole, union a be- police as issue police officer. contends public a matter concern. Other came of district court erred because his official point expressly. courts have made this require police a did not duties as officer Clarke, Fuerst v. See him union president to serve as of the or Cir.2006) (holding comments activities, in union much less engage president by deputy made sheriff as of agree lead votes no-confidence. We facie “prima union were sheriffs’ that, evidence, jury of the record by the First Amendment as contribution capacity could that Ellins in his find debate”); see also political Boddie private as a citizen. Columbus, Cir.1993) (“[Sjpeech in the union context of have that a em We held activity personal; will seldom be most of- “if ployee as a citizen speaks political speech.”). ten it will be speaker duty’ no official to make ‘had statements, questioned if the Here, Ellins vote led no-confidence product ‘performing not police about Diaz officers’ union. ” employee paid perform.’ tasks the any Diaz does contend (citation omitted). question Id. “While the vote indi- grievances motivating were job plaintiffs scope content of Instead, opposed collective. vidual as fact, Lambert, responsibilities question is a suggests the record significance ultimate constitutional union’s concerns were with question facts is a of law.” Id. style depart- and other as found leadership (internal quotation marks and citation from retaliation the First Amendment. omitted); 552 F.3d at The Eng, see also Court reasoned (“the question scope and content controlling The factor in Ceballos’ case job responsibilities ques is a plaintiffs is that expressions his pursu- were made fact”); York, Robinson tion ant to his duties as a calendar deputy. (9th Cir.2009) (“The 817, scope of Rob That consideration —the fact that Cebal- fact”); job question of inson’s duties is a los as a prosecutor fulfilling a Posey v. Lake Pend Sch. Dist. Oreille No. responsibility supervisor to advise his (9th Cir.2008) about proceed how best to pend- with a (“Because determining the task of ing distinguishes Ceballos’ case ease— plaintiffs job responsibilities of a scope from those in which the First Amend- practical than concrete rather abstract ment provides protection against disci- formal, we that a are confident factual pline. We hold that when public em- job plaintiffs responsi determination of a ployees pursuant make statements to upon bilities will not encroach duties, court’s their official employees are interpret apply to prerogative rel not speaking as citizens for First rules.”). legal evant Amendment purposes, and the- Constitu- tion does not insulate their communica- The distinction drawn our First tions from employer discipline. jurisprudence pri- between (internal Id. at 126 S.Ct. 1951 citation speech vate and official is rooted in the omitted). Ceballos’ retaliation claim failed Supreme Court’s decision Garcetti v. acting because was not as a Ceballos, citizen when about “daily pro- he went his (2006). There, L.Ed.2d 689 a defense at- activities”; instead, fessional “[w]hen he torney deputy attorney, asked a district went performed to work and the tasks he Ceballos, police investigate officer’s paid was perform, Ceballos acted as a in support affidavit of a search warrant government employee.” Id. at underlying prosecution. requests Such S.Ct. were not Concluding uncommon. that the

police officer’s affidavit contained serious Ellins introduced evidence that he led misrepresentations, Ceballos wrote a mem- the no-confidence vote issued the re- supervisor recommending press orandum his lated capacity releases his as a prosecution dismissal of the representative.4 daily because the union pro- supporting product evidence it of a fessional duties as a officer did not afterward, defective affidavit. acting representative Soon Cebal- include as a union reassigned serving los was from his calendar depu- as the President of the SMPA. Therefore, ty position position, to a trial deputy trans- the district court erred it when courthouse, ferred another and denied a concluded as a matter of law that Ellins promotion. Id. at capacity 126 S.Ct. 1951. He acted his as a employee §a filed 1983 action alleging retaliation for when he led the no-confidence vote. speech. suggest Court determined that There was sufficient evidence to dismissal, recommending paid Ceballos had that this was not a task he was simply professional Therefore, jury fulfilled his perform. duties and could reason- ably therefore his conclude that Ellins’s union activities press acknowledged thought 4. Ellins testified that the releases were that she public through legal repre- made SMPA's press was “behind” the releases. deposition testimony, sentatives. her speaking represen- in his when as a public duties speech were undertaken and related private police a citizen. of the union. We thus hold capacity as tative jury find that El- that a reasonable could has recent the Seventh Circuit An speech, representative lins’s made as a officer ly held, by police made a comments union, was made in president police represen capacity as a union in his acting as a citizen. capacity private his citizen, rath a spoken as tative are official to the officer’s pursuant er than C. Clarke, 770 v. 454 F.3d Fuerst duties. Cir.2006). Fuerst, a The district court also determined that plaintiff, In pres also as the he

deputy sheriff who served Ellins failed to that suffered establish County deputy Milwaukee ident of the an “adverse action.” Ellins employment union, coun publicly criticized the sheriffs’ argued that the failure to award him the fill a civilian to ty proposal hire sheriffs percent salary during pe- increase five traditionally by depu a position occupied a riod from date he submitted his determining ty at 772. sheriff. Id. application, February in retal justified the sheriff was whether began May his the date to serve Fuerst, Circuit iating against Seventh an suspension employ- constituted adverse spoke notion Fuerst as dismissed the rejected action. court ment The district a when he public employee under Garcetti argument, reasoning that Ellins did proposal: criticized the that he was not demonstrate entitled precip- Because Fuerst’s comments pay during period increase be- against the adverse action taken itated provided cause while MOU a five a capacity made as him were his raise, state percent pay it when “[did] than in the representative, union rather raise pay becomes effective.” deputy of a employment course his as specifically We have concluded deputy sheriff—his duties as sheriff did employment that “an adverse action exists sheriffs commenting not include on the employer’s an negatively where action af a offi- public-relations decision to hire employee’s compensation.” its fects Supreme recent deci- cer—the Court’s Ariz., Sysco Fonseca Food Servs. inapposite. sion in Garcetti Ceballos Inc., Cir.2004); 374 F.3d see (citation omitted); Bau Id. at 774 see also Tuttle, Hollister v. also Columbia, 744 mann v. District (9th Cir.2000) (holding 1034-35 that al (D.D.C.2010) (holding F.Supp.2d leged pay discrimination merit increases depart officer’s police criticism of his salary profes raises tenured handling sniper ment’s incident was alleging protected his sor retaliation protected spoke speech because the officer govern “constitute denials police capacity president); as union 1983”); § mental benefits redressable Boone, F.Supp.2d. Hawkins v. Ass’n, (D.D.C.2011) Manhattan Beach Police (holding that detective’s Officers Beach, critical of a staff Inc. v. departmental statements Manhattan (9th Cir.1989) ing protected by initiative were the First (noting that public because Amendment the detective an employer cannot withhold economic representative). union police higher salary” “such as a retalia benefit by the tion for activities First the inherent conflict Given institutional Amendment). of a Even the denial minor employer interest between an and its union, may financial benefit form basis of a employees’ we conclude that a not act in of his officer does furtherance First Amendment claim. See Elrod v. Burns, 13, 96 359 n. S.Ct. Advanced P.O.S.T. Certificate shall receive (1976) (holding that pay 49 L.Ed.2d 547 additional 5% over said officer’s rights infringed are base salary.” although admits that per government “both fines where generally she knew that Ellins had satis- ... where it withholds penny son a fied the requirements necessary to receive grant penny” punish sup of a certificate, the Advanced P.O.S.T. she de- activities). press protected liberately delayed signing Ellins’s P.O.S.T. until application December Diaz 2009. addressing a First Amend also that pay admits she backdated his claim, we ment retaliation also examine an attempt increase in to convince Ellins by whether “the taken the defen actions lawsuit, to drop only but this to June likely reasonably [the dants were to deter the date from suspension.5 he returned his engaging protect from in employee] under First activity ed Amendment.” Construing these in light facts most Antkoine, 750 (quoting 605 F.3d at Coszal Ellins, favorable a to reasonable finder of Salem, F.3d ter v. fact could conclude that Diaz’s failure to Cir.2003)). of retali government’s The act sign his P.O.S.T. El deprived not and it need not ation “need be severe lins of a raise he pay from date Coszalter, 320 be of a certain kind.” pay entitled raise to the date to Indeed, at 975. which chose approval. Diaz to backdate her precise nature retaliation is The record indicates that pay Ellins’s raise in inquiry not critical to the February would taken in have effect late goal Amendment retaliation cases. The early delayed or March had Diaz not redress, prevent, is to or actions a signing P.O.S.T. Diaz de application. his government employer that chill ex- percent pay clares that five increase protected First ercise of Amendment normally takes effect on the date the Com rights.... Depending on circum- mission on Peace Officer Standards and stances, even acts of retaliation minor Training issues a P.O.S.T. certificate. infringe employee’s can on an First While how specify long the record does rights. takes, normally this process we can infer (internal issued quotation Id. marks and citation the certificate would have been omitted). determine, days ap Thus we must within after Ellins submitted his evidence, February of the record a Diaz 2009. In plication whether on jury reasonably fact, could find that Diaz’s with- acknowledges, as Diaz the Commis holding approval applica- of the P.O.S.T. only four sion issued Ellins’s certificate tion, delayed which and denied Ellins a days eventually signed after Diaz it. It is increase, portion pay designed of his a fair that Ellins would have inference politi- chill retaliate Ellins’s pay received the increase to which the cal expression. entitled him a certificate within Therefore, four-day period. jury a similar P.O.S.T. application

Ellins submitted his February 26, deprived could find that Ellins was MOU Article 23 2009. provides percent pay roughly officer an five from March “[a]ny who has raise testimony per- vote. indicates that she became aware of the no-confidence If Diaz’s also suspension sonally imposed any Ellins’s 160-hour part this sanction attributable pay. Although motives, without Ellins’s misconduct alleged retaliatory July occurred in an internal affairs delayed economic from the P.O.S.T. certi- loss began August investigation the sus- greater. fication be even would May pension took effect on after from To establish that retaliation was when he returned to June motivating or

serving substantial factor behind suspension. action, may employment plaintiff adverse sued, likely would Had Ellins not (1) introduce evidence percent of the five deprived have been time, proximate action were adverse period, from late Febru- longer raise infer action jury such that could that the Diaz admits ary 2009 December 2009. (2) place speech; took retaliation for only given the retroactive Ellins was opposition employer expressed to the hope pay raise that he with others; speaker either speech, to the or to However, litigation.” we “forego [sic] (3) proffered explanations for the the “ultimate effects” of do not focus on false pretextual. adverse action were action, but on the “deter- employment each Coszalter, brought 977. Ellins Henderson, Ray rent effects.” Cir.2000) temporal forth sufficient evidence of both (adopting opposition Diaz’s to his proximity and identifying for adverse EEOC standard actions). summary speech preclude judgment to to on employment That Ellins had actually motivating threaten then file suit to even the issue of or fac and “substantial pay more partially recover the increase is tor.” than the deter- sufficient to demonstrate of a rela provided Ellins evidence Diaz’s de- protected speech rent effect on tively pro close link his temporal between in lay signing application Ellins’s P.O.S.T. speech the adverse employment tected and deprivation salary

worked. is rea- Such of He in action. led the no-confidence vote sonably from likely employees to deter Diaz, according press October and to engaging suffi- protected activity in and is regarding releases the vote issued in Octo to employment cient constitute an adverse ber and November 2008. Ellins submitted Beach, action. See Manhattan 881 F.2d at application February his P.O.S.T. 819; Fonseca, (holding 374 F.3d at 847 Diaz that she initially 2009. testified de assignment op- that of overtime improper not to in sign cided Febru portunities pay and adverse constitutes ary alleged retaliatory 2009. The act thus employment of purposes action and occurred between four five months 1983). Therefore, § suf- Ellins introduced vote, after the no-confidence and between ficient an employment evidence of adverse press three four months after the action to grant summary judg- defeat a releases issued. in We established Coszal- ment. specified “a period

ter that time cannot be D. mechanically applied criterion” for an retaliation; instead, inference of “[wheth district court also erred The an employment er adverse action is intend Ellins concluding produce that failed to retaliatory question ed to be is a of fact speech evidence that his and the adverse that must be in the decided employment sufficiently were relat action timing and the circum surrounding ed such speech that the was a substantial Nevertheless, stances.” 320 F.3d at 978. factor motivating Diaz’s decision held “[depending we also that on the cir signing application. cumstances, eight easily three to months is Although pending Diaz aware three a time can range within that an investigations support of Ellins that she claimed Coszalter, justified inference retaliation.” delay, suffi Ellins adduced genuine cient at 977. four-to-five dispute peri evidence to raise of F.3d month question. material on this fact od between Ellins’s sign applica to his P.O.S.T. could have by Diaz’s refusal “resolved these con- issues easily range within the that we tion falls tinuing person” meet because the no- an inference of retalia supports concluded press confidence vote and sug- releases tion Coszalter. gested go SMPA “had chosen to way beyond any good-faith try effort to introduced Ellins also sufficient evidence resolve differences.” Diaz “spoke also summary judgment to withstand briefly” others in the department about opposition protected speech. his feeling her “disappointed and disheartened County In Ulrich San Fran cisco, Cir.2002), had [SMPA] chosen what [she] we held thought counter-productive was a expressions opposition similar to action.” similarity those made are sufficient to estab The expressed between Diaz’s protected speech lish that the was a sub at sentiments and those issue Ulrich motivating for an stantial factor adverse has, least, suggests very at the Ulrich, employment action. a physician genuine raised a dispute material fact as investigation profes who was under to whether Diaz opposed the no-confidence city’s incompetence, protested sional vote and press related releases. physicians off a lay decision to class of at haveWe held that evidence of one of the hospital publicly displayed resigna may three factors Coszalter be sufficient to tion letter. Id. After plaintiff allow a in prevail to a em- letter, saw reported administrator she ployee See, retaliatory speech e.g., claim. toit other administrators because she was Nitchman, v. Marable 511 F.3d 930 “potential “concerned” that the letter was (9th Cir.2007) (allowing a temporal close ly negative” may “widely been have connection to establish substantial motive Id. at When disseminated.” 980. Ulrich though even defendants no claimed knowl- resignation realized that his triggered edge employee’s protected speech of the reporting requirement because the investi independent and asserted reasons dis- gation pending, attempted was to re ciplining employee). That Ellins has resignation scind his so that he could be falsity pretext demonstrated or at this hospital reinstated. Id. 973. The re stage, where the district court ruled that fused to accept attempt. Ulrich’s rescission case, prima Ellins has not made out a facie though

Id. We held that even the adminis is to not fatal his claim. trator had neither Ulrich warned nor told fired, others he should be evidence E. opposition administrator’s was suffi cient, given other evidence of timing and argues if even pretext, support jury finding to of retal prima established his facie case in iatory hospital’s motive refusal retaliation, summary judg reinstate Id. at Ulrich. upheld ment in her favor can be because justification” “adequate she had an for not in

Just as the administrator ex- Ulrich given signing application, Ellins’s P.O.S.T. pressed regarding “concern” others record, disciplinary especially Ellins’s letter, resignation Diaz admits that she investigation criminal the L.A. pending expressed “dismay” “disappointment” Attorney District that she had initiated. to others the wake of the no-confidence Moreover, argues she these factors press expressed vote and releases. She demonstrate that she would not have disappointment captain, telling to her thought press signed application him that she Ellins’s P.O.S.T. irre release was they spective “unfortunate” that she wished vote and no-confidence 1064 unconstitu warning that their conduct is Diaz would have Whether

press releases. the absence of Fran signature Cnty. her Bull v. & San withheld tional.” Cir.2010) (en press (9th re cisco, the no-confidence vote 595 F.3d 1003 adequate leases, had banc) (“[T]he and whether she specific previous facts so, entirely ques justification doing are fundamen materially need not be cases 1072; Eng, fact. F.3d at see tions of question.”) tally similar to the situation 1036, 1045 Mabey Reagan, v. also Pelzer, v. (citing Hope Cir.1976) (“[T]he (9th only way to erect (2002)); 153 L.Ed.2d 666 S.Ct. First Amend barriers around adequate Lee, v. F.3d White trier of fact freedoms is for the ment Cir.2000) (“Closely preexisting analogous the decisionmak into the motives of delve that a required is not to show case law er.”). established.”); clearly see also right “ques we that when Mabey, opined Hartford, v. Schwenk predominate inquiry motive tions of (9th Cir.2000); Block, 27 F.3d Mendoza big behav about how role the (9th Cir.1994); Alexander decision, summary judg in the played ior Perrill, Cir. 1397-98 usually appropriate.” 537 ment will not be 1990). Viewing light in the Diaz’s actions reliance on Although F.2d at 1045. Ellins, conclude most favorable we investigations supports her impending clearly unreasonably acted she refused that she have argument law. established the P.O.S.T. notwithstand sign govern To determine whether speech, ing purported protected immu qualified ment official entitled to approved Diaz also admitted that she had questions: we ask two whether nity, other offi applications of four statutory official violated a or constitution investiga undergone had internal cers who clearly right, right al and whether that undis The record us is not tions. before challenged at the the puted;- provides Diaz herself evidence that established time of — al-Kidd, support finding. could either U.S. conduct. v. Ashcroft -, 2074, 2080, L.Ed.2d 131 S.Ct. 179 IV. (2011) Fitzgerald, (citing 1149 Harlow v. quali 2727, 800, Nor is Diaz entitled 818, 457 U.S. 102 S.Ct. immunity fied under the circumstances (1982)). may L.Ed.2d 396 address We court presented here. The district held in any Pearson v. questions these order. assuming that even a First Amendment Callahan, 808, 555 U.S. 129 S.Ct. violation, Defendants had “no indication” (2009). 172 L.Ed.2d 565 first address We that Diaz’s conduct unlawful. The was alleges right of a whether Ellins a violation there was district court reasoned that no Diaz clearly that was when established specifically po that held “that a case law in acted vio officer suffers a Amendment lice First immuni purposes qualified For delays ap a certifying lation when officer disputes all in favor ty, we resolve factual requires of an that proval injury. party asserting the Saucier good moral applicant’s certification 2151, Katz, 194, 201, 121 S.Ct. 533 U.S. However, the district court character.” (2001), on other 150 L.Ed.2d overruled narrowly. much too inquiry framed Pearson, 236, 129 at grounds 555 U.S. earlier question is not whether an case discussion, In of the above S.Ct. 808. Rather, specific mirrors the facts here. reasonably that El- can assume both we question the relevant whether “the state is speech a substantial or gives protected of the law at the officials fair lins’s was time decision, Cir.1989) in motivating Carpenter, factor 881 F.2d 828 delayed that Diaz not signing have the proposition that the law clearly application in Ellins’s P.O.S.T. the absence established). speech. of his First protected 2009, When acted in it was also right to be free from retalia clearly Supreme under established both protected speech tion for in engaging Court and Ninth precedent Circuit al clearly established 2009 when Diaz type “the ... sanction not ‘need be legedly delayed signing of his P.O.S.T. particularly great in order to find that application. Forty years previously, rights have been violated.’” Hyland v. 1968, Supreme Court established that Wonder, 1129, 1135 Cir.1992) public employees have a First Amendment Burns, 347, (quoting Elrod v. 427 U.S. right to be free from retaliation for com n. 96 S.Ct. 49 L.Ed.2d 547 concern, menting public on matters of even (1976)). It clearly was also established

when protected comments are critical deprivation employee’s salary is Pickering, of their at employers. 391 U.S. unconstitutional if levied retaliation for (holding 88 S.Ct. 1731 that a teacher protected speech. Beach, See Manhattan criticizing could not be dismissed (9th Cir.1989) at 818-19 (holding school budget management, board’s even salary unconstitutionally is if withheld though the criticism included allega false activities). of protected the basis That members, tions board because the we have decided a case in which the speech public addressed a matter of con specific retaliation took speech cern form of de prevent and the did not pay school district’s efficient In functioning). delayed creased due to Connick, Supreme decided certification is irrelevant. Court reaffirmed right. Although Finally, clearly when Diaz acted it was Court plaintiffs speech found established that a union representa concerns, only dealt employee with tive’s entitled First Amend the Court stressed that speech on matters ment protection. McKinley, we held concern occupies “highest that a police officer who as a union rung of heirarchy [sic] Amend representative engaged values, ment and is to special pro entitled speech. 705 F.2d 1114-15 (applying at Connick, tection.” U.S. set Pickering, standard forth in 391 U.S. (quoting S.Ct. 1684 NAACP Claiborne Connick,

Hardware, 886, 3409, 458 U.S. 102 S.Ct. 73 1684, 103 S.Ct. and holding that mat (1982)). Coszalter, L.Ed.2d 1215 In we relating competency ters to “the of the officials, city concluded that who were sued surely “great public force” are of by city employees alleged former concern”); Fuerst, see F.3d at 454 also retaliation, Amendment not were entitled 774; Park, Nagle v. Vill. Calumet 554 of qualified immunity to because “both the Cir.2009). (7th Fuerst, F.3d 1123 protection constitutional of employee case, another First Amendment retaliation speech and a First of Amendment cause distinguished the Seventh Circuit between action for retaliation against protected speech by made a under “union sheriff his speech clearly were established” at as least president’s hat” and that could le of (relying 1989. 320 F.3d at 979 on Pick gitimately form denying the basis for ering, 1731; 391 U.S. 88 S.Ct. Allen promotion. sheriff El Scribner, Cir.1987); a 454 F.3d at 775. v. 812 F.2d 426 Dist., leading lins’s act a union vote expressive Anderson v. Central Sch. of Point 746 (9th Cir.1984); F.2d 505 and v. press Thomas followed related releases was un- Diaz, city’s Aguilar, his er Elaine not was the under “union mistakably performed hat,” pro- and thus constituted Because Ellins does president policymaker. final tected speech. that knew Diaz’s al- allege Aguilar not of leged retaliatory signa- for delaying motive if Diaz “could ... have

It is true that application, of Ellins’s P.O.S.T. ture mistakenly that reasonably believed but City injury. not liable for Ellins’s is clearly ... did not violate a her conduct right, is en- [s]he established constitutional policy official a Whether an is immunity.” qualified titled Hunt to purposes question maker for Monell is a Cnty. Orange, F.3d 615-16 of governed by City law. Louis state St. of (internal Cir.2012) ci- quotation and marks v. Praprotnik, omitted). However, in tation of (1988). L.Ed.2d 107 California longstanding un- Supreme Court’s and municipalities permits state law to enact equivocal precedents protecting employee “city regulations creating manager” speech, conclude that a reasonable offi- we § governance. form Gov.Code position known cial Diaz’s have City The of Sierra Madre has enacted delaying to regulations. such See Sierra Madre Mun. his ac- program because of union (2000). § The City Code 2.08.010 has del tivity, salary in a lower which resulted “authority egated city manager to the which than that to he otherwise would order, control, give directions to all entitled, have been violated Ellins’s First departments heads of and to subordinate rights; leading that in a union city....” employees officers and vote Ellins acted citizen ad- 2.08.070(B) § Code concern; Sierra Madre Mun. matter of dressing (2000). salary city More it depriving specifically, retalia- tion for was unconsti- protected speech duty re manager’s “appoint, discipline, tutional. move, all promote, any and demote employees city except officers

V. clerk, treasurer, city city or attor city The correctly district court ney....” Sierra Madre Mun. Code City not held that Sierra Madre is 2.08.070(C) (2000). § Madre Sierra retaliatory liable Diaz’s con allegedly Regulations Personnel Rules and further theory liability. duct under a Monell provisions by expressly reinforce these (1978). Monell, U.S. S.Ct. 2018 charging city manager with adminis Monell, subject are municipalities Under City’s tering personnel rules. These § under damages three situa regulations local ordinances and establish plaintiff injured pur tions: when Elaine city manager Aguilar, expressly adopted suant poli official Diaz, possesses policymaking final authori custom, cy, a or long-standing practice ty police employment over decisions. policymaker.” the decision of “final De Although undisputed Aguilar it is Rialto, lia 1081- approved delay signing decision (9th Cir.2010). prop The district court application, Ellins’s P.O.S.T. Ellins does erly concluded Ellins did not adduce knew allege Aguilar that the deci- policy sufficient evidence of an official or sion retaliation retaliatory delay. city custom of The or despite that she ratified the decision could on a if theory only be liable Monell knowledge. Iopa, such See Christie v. final if policymaker city’s was a the (9th Cir.1999) (plaintiff must final F.3d 1231 policymaker alleged ratified Diaz’s city final manag- policymaker retaliation. We conclude that adduce evidence that the reason, approved both a subordinate’s decision and that we should limit our discussion improper basis for decision to to whether Ellins raised material issues of summary judgment survive ratifica- fact, thereby rendering entry of summary theory). tion Ellins has thus failed to judgment inappropriate. genuine

raise a issue of material fact re- At the summary judgment stage, garding alleged injury whether his is at- non-moving party only need raise a mate City tributable to the of Sierra Madre’s rial issue of fact rather than carrying the policymaker. ultimate persuasion. burden of See Fair bank, 212 F.3d at 531. As the district

VI. acknowledged, court whether Ellins suf affirm grant We the district court’s fered an employment adverse action was summary judgment City to the of Sierra “purely a question of fact.” District Court City Madre because the is not liable under (citation omitted). Opinion, p. 6 However, Monell for Diaz’s actions. we Memorandum Understanding between grant reverse the district court’s sum- City bargaining unit for the mary judgment to Diaz and remand be- provided officers percent for a 5 genuine pay cause issues of material fact exist in on the elements of crease if an Ellins’s First Amend- officer obtained an Advanced ment retaliation claim. POST Certificate. This circumstance raised a material question regard of fact part;

AFFIRMED in REVERSED in ing whether Chief Diaz’s failure sign part; proceedings REMANDED for con- for an Advanced POST opinion. sistent with this party Each certificate resulted in a pay, loss of there shall bear its own costs. by precluding summary judgment. See RAWLINSON, Judge, Circuit Fairbank, 212 F.3d at Similarly, concurring judgment: in the there disputed evidence in the record I concur in judgment reversing regarding whether Chief Diaz was moti district entry summary judg court’s by vated perform Ellins’s criticism of her Marilyn ment favor of defendant Diaz. Construing ance. presented evidence I agree also that entry summary judg by Ellins in most favorable ment favor of the of Sierra Madre i.e., him, previ that Chief Diaz had never was warranted due to lack of material ously sign application, refused to a similar regarding city issues of fact policy that also raised a material issue of fact. alleged resulted constitutional viola Having determined that material issues tions. I write separately clarify trial, fact remain for I go no this case summary judg was decided on specifically, further. More I decline to ment and no definitive rulings on the fac join majority’s discussion of whether tual by issues should have been made Ellins established a First Amendment re district court by or should be made us. claim, taliation and its conclusion that El review, summary judgment On we deter lins capacity as a mine whether material issues of fact were citizen rather than public employee. as a party opposing summary raised Majority Opinion, See pp. 1059-60. judgment after reviewing the evidence in view, my this is not a determination that the light most favorable to that opposing should be made at stage pro party. See Fairbank v. Wunderman Cato Johnson, ceedings. (9th Cir.2000). Because the record is void re garding Resolution of those factual whether the activities Ellins un issues is re served for trial before a president factfinder. For dertook as union were within the

1068 Terrace, 1062, 1071 duties, 678 F.3d the determina- Mountlake his official realm of (same). Cir.2012) his activities were whether regarding tion citizen more private as a undertaken any in this devoid of record case is The by the factfinder. appropriately made id. description job of Ellins’s duties. Cf. upon the majority primarily relies testimony re (discussing plaintiffs v. decision Fuerst Circuit’s Seventh duties). scope job of For garding the her (7th Cir.2006), 770, Clarke, 774 know, could job all duties en we held, any analysis, court without where See, compass union responsibilities. rep as a union employee’s speech that the Creath, e.g., Cal.App.4th v. People 31 emp public a made as was not resentative (1995) 315, Cal.Rptr.2d (noting that 37 336 court cases from The two district loyee.1 firefighters and directors of the officers D.C., Dis courts in Baumann v. district compensation perform union received Columbia, 216, 224 F.Supp.2d 744 trict of duties). union (D.D.C.2010), Hawkins v. Boone 786 sum, majority (D.D.C.2011) agree In I with the simply F.Supp.2d However, ruling Circuit’s should be parroted Seventh case remanded. Fuerst, analysis. I any fact, am again without upon questions all of includ- remand cases confident that reliance these ing spoke public Ellins as a em- whether concluding speak supports citizen, ployee private as a should be when he criticized ing private as a citizen by the For rea- resolved factfinder. Diaz. Chief son, only judgment I in the affirm- concur Ceballos, ing part, reversing part and remand- v. Garcetti (2006), ing 164 L.Ed.2d proceedings. S.Ct. for further Supreme Court discussed United States public are to determine whether a

how we as private should be treated a employee in the Amendment context. citizen First, must whether the em we determine on a of “spoke as a citizen matter ployee ” concern.... Id. at (citation omitted). If the employee LUVDARTS, LLC, a limited California as private opposed citizen Davis-Reuss, Inc., liability company; performing offi [his] within “course Corporation, Digi- DBA California duties,” the employee cial some “retain[s] Pie, Plaintiffs-Appellants, protection of First Amendment possibility v. 423, 126 ...” Id. at S.Ct. MOBILITY, LLC, AT T & Delaware no in this There is doubt Circuit Liability Company; Limited CellCo employee speaks an as a

whether corpora Partnership, Jersey a New question is a of fact rather than an citizen Wireless; tion, Sprint DBA Verizon Cooley, law. Eng issue of See LP, Spectrum Limited Delaware (9th Cir.2009) (“The question USA, Partnership; Inc., a T-Mobile scope plaintiffs job and content of a ”) Corporation, Defendants- Delaware ... responsibilities question is a fact (citation omitted); Appellees, see also Karl v. public-employee-private-citizen de- 1. The Seventh Circuit referenced its Fuerst made Park, Nagle undertaking in-depth Village without decision in Calumet termination Cir.2009), again analysis the issue. but

Case Details

Case Name: John Ellins v. City of Sierra Madre

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 22, 2013

Citation: 710 F.3d 1049

Docket Number: 11-55213

Court Abbreviation: 9th Cir.