Robert McBurnie v. Prescott, City Of , 511 F. App'x 624 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MCBURNIE, No. 11-16267
Plaintiff - Appellant, D.C. No. 3:09-cv-08139-FJM
v.
MEMORANDUM*
PRESCOTT, CITY OF, a body politic; et
al.,
Defendants - Appellees.
ROBERT MCBURNIE, No. 11-16316
Plaintiff - Appellee, D.C. No. 3:09-cv-08139-FJM
v.
PRESCOTT, CITY OF, a body politic,
Defendant - Appellant,
and
ERIC SMITH; et al.,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted November 5, 2012
San Francisco, California
Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.
1. We reverse the district court’s summary judgment for defendants on
McBurnie’s First Amendment retaliation claim. “[T]he determination whether the
speech in question was spoken as a public employee or a private citizen presents a
mixed question of fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546
F.3d 1121, 1129 (9th Cir. 2008). “[T]he scope and content of a plaintiff’s job
responsibilities can and should be found by a trier of fact . . . .” Id. Viewing the
evidence at the time of summary judgment in the light most favorable to McBurnie
as the nonmoving party, he raised a genuine and material dispute over whether his
speech, and in particular, his communications with the Arizona Department of
Occupational Safety and Health, were beyond the scope of his regular job duties.1
1
We have observed that “the right to complain . . . to an independent state
agency is guaranteed to any citizen in a democratic society regardless of his status
as a public employee,” and the employee does not lose that right “simply because
[he] initiated the communications while at work or because they concerned the
subject matter of [his] employment.” Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir.
2006).
2
Although we remand for further proceedings on this claim, we do so without
prejudice as to whether defendants may file a renewed motion for summary
judgment on the basis of the evidentiary record presented at trial.
2. The district court did not err in giving the jury a “but-for” causation
instruction on McBurnie’s FLSA retaliation claim. See Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009).2
3. The district court erred in limiting the scope of McBurnie’s FLSA
retaliation claim as a matter of law and instructing the jury that it could only
consider whether McBurnie’s discharge was retaliatory. An action taken by an
employer is retaliatory if “a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a” FLSA complaint. Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks
2
Our earlier cases are not to the contrary. In Lambert v. Ackerley, 180 F.3d
997 (9th Cir. 1999) (en banc), the district court had given a “substantial motivating
factor” FLSA retaliation jury instruction, but Lambert neither approves nor
disapproves of that instruction, because it holds that retaliation was the but-for
cause of plaintiffs’ termination on the record. See id. at 1008-10. Knickerbocker v.
City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996), enunciated a dual motive
standard, but then held that FLSA retaliation plaintiffs must show that “the adverse
actions would not have been taken ‘but for’ the protected activities.”
3
omitted) (construing Title VII anti-retaliation provision, which is substantially
identical to FLSA anti-retaliation provision).
The district court concluded as a matter of law that all of the actions taken
against McBurnie, short of his discharge, were too trivial to meet the material
adversity standard. But from the evidence presented at trial, a reasonable jury could
have concluded otherwise. McBurnie presented evidence of a department-wide
email singling him out for his complaints about the overtime policy; heckling;
ostracism; rescheduling and reassignment of job duties; loss of seniority for
purposes of requesting vacation time; and surveillance by supervisors. Whether
these actions occurred, whether they were retaliatory, and whether they were
materially adverse under the particular circumstances of McBurnie’s employment
situation should be decided by a trier of fact. “[T]he significance of any given act
of retaliation will often depend upon the particular circumstances,” and an action
that would be trivial in one employment context may be materially adverse in
another. Id. at 69.
4. We affirm the district court’s judgment as a matter of law for defendants
on McBurnie’s Arizona state law claim of intentional interference with contract.
Under Arizona law, “[d]efendants who are acting within the scope of their
authority, for the benefit of their employer, are the employer and cannot interfere
4
with their own contract.” Spratt v. N. Auto. Corp., 958 F. Supp. 456, 464 (D. Ariz.
1996) (citations omitted). The evidence at trial showed that defendants were acting
within the scope of their authority when they terminated McBurnie’s employment.
5. We affirm the district court’s judgment as a matter of law for defendants
on McBurnie’s Arizona state law wrongful discharge claims. First, Arizona no
longer recognizes a common law tort of wrongful discharge. See Powell v.
Washburn, 125 P.3d 373, 380 (Ariz. 2006) (en banc) (recognizing supersession by
statute of Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025 (Ariz. 1985) (en
banc)); see also Chaboya v. Am. Nat’l Red Cross, 72 F. Supp. 2d 1081, 1092 (D.
Ariz. 1999) (noting that “the Arizona Employment Protection Act, A.R.S. § 23-
1501 et seq., overruled Wagenseller and limited the grounds under which an
employee could claim wrongful discharge”). Second, McBurnie did not establish a
predicate for statutory wrongful discharge under Arizona Revised Statutes § 23-
1501. McBurnie alleged that he was terminated in violation of the Arizona
Constitution. While Arizona’s wrongful discharge statute bars termination “in
violation of a statute of [Arizona],” A.R.S. § 23-1501(3)(b), or “in retaliation for . .
. [t]he refusal by [an] employee to commit an act or omission that would violate the
Constitution of Arizona,” id. § 23-1501(3)(c), it does not bar termination in
violation of the Arizona Constitution.
5
6. We reverse the district court’s judgment as a matter of law on McBurnie’s
Arizona state law negligent infliction of emotional distress claim (“NIED”). Under
Arizona law, lasting mental or emotional disturbances may establish NIED. Harris
v. Maricopa Cnty. Sup. Ct., 631 F.3d 963, 978 (9th Cir. 2011). NIED may lie in the
employment context. See Loos v. Lowe’s HIW, Inc., 796 F. Supp. 2d 1013, 1020
(D. Ariz. 2011).
Viewing the evidence in the light most favorable to McBurnie and drawing
all reasonable inferences in his favor, see Martin v. Cal. Dep’t of Veterans Affairs,
560 F.3d 1042, 1046 (9th Cir. 2009), we conclude that a reasonable jury could
have found that McBurnie suffered lasting emotional disturbances as a result of
defendants’ actions. McBurnie testified that he experienced difficulty eating,
sleeplessness, anxiety, panic attacks, and headaches for the 18 months leading up
to his termination and after his termination. His wife testified that he became
depressed and withdrawn after his termination, sought some psychological
treatment, and had panic attacks two to three times a month. Whether defendants
were negligent in causing these disturbances, so as to establish NIED under
Arizona law, should be decided by the trier of fact.
7. We reverse the grant of attorney’s fees for work on an informal settlement
of McBurnie’s FLSA claim, which was never filed in court. When a plaintiff
6
brings a FLSA action in court, “[t]he court in such action shall . . . allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29
U.S.C. § 216(b) (emphasis added). But “[n]o separate action is maintainable under
[FLSA] for the collection of attorney’s fees.” Rural Fire Prot. Co. v. Hepp, 366
F.2d 355, 362 (9th Cir. 1966).
In sum, we affirm in part, reverse in part, and remand for further
proceedings on McBurnie’s First Amendment retaliation claim, FLSA retaliation
claim, and Arizona state law NIED claim.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
7
FILED
McBurnie v. Prescott, 11-16267 MAR 13 2013
MOLLY C. DWYER, CLERK
KLEINFELD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I concur in parts 2, 4, 5, and 7. I respectfully dissent from the rest.
McBurnie had his day in court and lost. Any error that resulted is harmless and is
not grounds for reversal. The majority further errs in remanding the negligent
infliction of emotional distress claim when there was no evidence that the city
breached a duty when it fired McBurnie.
McBurnie already had a six-day jury trial where the jury rejected his claim
for retaliation under the Fair Labor Standards Act. Any error that may have
occurred when the judge refused to let certain other claims or theories of liability
go to the jury was harmless error under Rule 61 since it did not affect McBurnie’s
“substantial rights.”
The jury heard two accounts at trial. McBurnie’s was that he was mistreated
by his supervisors for complaining about overtime, and that the city retaliated
against McBurnie with trivial annoyances followed by termination. The city’s was
that McBurnie was a bad employee who was picked for the routine layoff because
1
he was obstinate and refused to train a coworker. The jury accepted the city’s
account. The jury did not believe that McBurnie was fired for complaining about
overtime, and it would not have believed that his complaint was the reason for any
of the other supposedly adverse employment actions, such as increased
supervision, and being transferred to another department after he himself requested
transfer. Error, if any, was harmless. It made no difference that the jury never
heard the First Amendment retaliation claim because the jury concluded that the
city did not have a retaliatory motive for firing McBurnie.
Negligent infliction of emotional distress would not be a valid claim in the
employment context in Arizona under Mack v. McDonnell Douglas Helicopter
Co.1 The elements of negligent infliction of emotional distress under Arizona law
are 1) the defendant was negligent; 2) the defendant’s negligence created an
unreasonable risk of bodily harm to the plaintiff; 3) the defendant’s negligence was
a cause of emotional distress to the plaintiff; 4) the plaintiff’s emotional distress
1
Mack v. McDonnell Douglas Helicopter Co., 880 P.2d 1173, 1177 (Ariz.
Ct. App. 1994) (“In the absence of a tort claim recognized by Wagenseller, Mack’s
effort, to enlarge his employment rights through the device of a negligence action,
must fail.”).
2
resulted in physical injury or illness.2 McBurnie lacked a prima facie case on at
least the first three of the four elements.
2
Revised Arizona Jury Instructions (Civil) 4th Negligence 9.
3