John Ellins v. City of Sierra Madre , 710 F.3d 1049 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ELLINS, No. 11-55213
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-03971-
CBM-RZ
CITY OF SIERRA MADRE , A
Municipality; MARILYN DIAZ,
Individually and as Chief of Police, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
May 8, 2012—Pasadena, California
Filed March 22, 2013
Before: Kim McLane Wardlaw, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge Rawlinson
2 ELLINS V . CITY OF SIERRA MADRE
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in this 42 U.S.C.
§ 1983 action brought by a police officer who alleged that his
salary increase was delayed in retaliation for the exercise of his
First Amendment rights.
The panel held that: (1) plaintiff’s speech, which involved
leading a no-confidence vote of the police officers’ union
against the Chief of Police, involved a matter of public
concern; (2) a jury could reasonably conclude that plaintiff’s
union activities and related speech were undertaken in his
capacity as a private citizen; (3) the delay in plaintiff’s pay
increase constituted an adverse employment action; (4)
plaintiff’s speech was a substantial or motivating factor for the
delay; and (5) the Chief of Police was not entitled to qualified
immunity for causing the delay. The panel further held that
the City of Sierra Madre was not liable for the allegedly
retaliatory conduct under a Monell theory of liability.
Concurring in the judgment, Judge Rawlinson agreed that
the case should be remanded. She declined to join the
majority’s discussion of whether plaintiff established a First
Amendment claim, and its conclusion that he spoke in his
capacity as a private citizen, stating that those issues should be
resolved on remand by the factfinder.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ELLINS V . CITY OF SIERRA MADRE 3
COUNSEL
Michael A. Morguess, and Carolina V. Diaz, Lackie,
Dammeier & McGill, APC, Upland, California, for Plaintiff-
Appellant.
Elizabeth M. Kessel and Scott E. Boyer, Kessel & Associates,
Los Angeles, California, for Defendants-Appellees.
OPINION
WARDLAW, Circuit Judge:
John Ellins, a police officer for the City of Sierra Madre,
led a no-confidence vote of the police officers’ union against
the Chief of Police, Marilyn Diaz. Diaz subsequently delayed
signing an application for a certification that, when issued,
would have entitled Ellins to a five percent salary increase.
Ellins brought suit under 42 U.S.C. § 1983 against Diaz and
the City of Sierra Madre (collectively, “Defendants”), alleging
that Diaz’s delay was unconstitutional retaliation for the
exercise of his First Amendment rights. The district court
granted summary judgment in favor of Defendants, concluding
that Ellins had failed to meet his burden under Garcetti v.
Ceballos, 547 U.S. 410 (2006), to show that he undertook his
act as a private citizen and not pursuant to his official duties.
We disagree, and further hold that Ellins has established a
prima facie case of First Amendment retaliation. We thus
reverse the grant of summary judgment in favor of Diaz and
remand for further proceedings. We affirm the district court’s
grant of summary judgment to the City of Sierra Madre
because Ellins did not adduce sufficient evidence to defeat
4 ELLINS V . CITY OF SIERRA MADRE
summary judgment on his Monell claim. Monell v. Dept. of
Soc. Servs., 436 U.S. 658 (1978).
I.
Ellins served as President of the Sierra Madre Police
Association (SMPA) from late 2006 to January 2010.
According to the Memorandum of Understanding (MOU)
between the City and the SMPA, the SMPA is the recognized
employee’s organization for all classified employees of the
Sierra Madre Police Department except the Chief of Police
and the Lieutenant. The SMPA’s bylaws provide that “[t]he
President shall be the executive officer of the Association and,
subject to the control of the membership, shall have general
supervision, direction and control of the affairs of the
Association. He/She shall preside at meetings of its
members.”
Early in Ellins’s tenure as SMPA president, Chief Diaz
instituted “two-on-two” meetings with the SMPA, designed
to “facilitate open communication” and resolve issues between
the Department and the SMPA before they became grievances
or lawsuits. According to Diaz, Ellins occasionally expressed
disagreement with her decisions, but the tone of the meetings
was generally “very cordial.” At some point Ellins stopped
attending the two-on-twos. Thereafter, Diaz learned of
grievances and lawsuits filed by the SMPA against the City, as
well as two SMPA press releases critical of her leadership.
One of the press releases announced a vote of no confidence
taken against Diaz by the SMPA membership.
Ellins led the SMPA in the vote of no confidence in 2008.
According to Ellins, the union membership initiated the vote
ELLINS V . CITY OF SIERRA MADRE 5
because of Diaz’s “lack of leadership, wasting of citizens’ tax
dollars, hypocrisy, expensive paranoia, and damaging inability
to conduct her job.” SMPA conducted the vote by secret
ballot, and 100% of its membership voted. Ellins testified that
he led the vote because “as President [of the SMPA], you
would have to lead the vote of no confidence.” The SMPA
then issued the two press releases that Diaz read: one about
the vote, and another that criticized Diaz’s management style.
The press release about the vote listed examples of Diaz’s
purported incompetence and lack of leadership, including
allegations that she wasted taxpayers’ money, fell asleep at
City Council and other meetings, violated the MOU between
the city and the SMPA, and generally harassed her employees.
Diaz testified that when she learned of the SMPA “no
confidence” press release she felt “disappointment” and
“disbelief that this could have occurred.” After the second
SMPA press release issued, she felt “disappointed and
disheartened that the [SMPA] had chosen what I thought was
a counter-productive action.” She also testified that she was
“disappointed” in Ellins, as SMPA president, for what she
presumed was his involvement in the press releases. She
expressed this disappointment to her captain and to several
members of the police department.
At the time of the no-confidence vote, Ellins had been the
subject of three internal affairs investigations.1 In November
1
In his opening brief, Ellins also contends that the three internal and
one criminal investigations of him were also retaliatory. However, the
district court held that because Ellins did not include this claim in the
pretrial order, Ellins failed to preserve it for trial. Ellins does not appeal
this ruling, and so has waived any argument to the contrary. See
6 ELLINS V . CITY OF SIERRA MADRE
2006, he was investigated for associating with a convicted
narcotics offender and attempting to dissuade a sergeant from
issuing a parking ticket to the ex-convict. He received a 125-
hour suspension without pay for this incident, which he did
not serve. In August 2008, Ellins was investigated for not
citing or arresting a theft suspect in whose car Ellins had
found marijuana. In May 2008, he was investigated for telling
the City Finance Director that residents who did not want to
be evacuated during a serious wildfire near Sierra Madre were
“stupid” and “deserved to die.” Ellins received a reprimand
for this statement in December 2008. Finally, in October
2008, Diaz initiated a criminal investigation by the Los
Angeles County District Attorney’s office into Ellins’s alleged
misconduct. She provided the District Attorney’s office with
information about Ellins’s alleged sales and use of anabolic
steroids, assault with his duty weapons, and other matters
“relating to sexual misconduct while on duty.” Diaz says she
received the information about the alleged misconduct from
“another Police Chief.” No charges resulted from the District
Attorney’s criminal investigation of Ellins’s alleged
misconduct.
On February 29, 2009, Ellins submitted an application to
Diaz for an Advanced Peace Officer Standards and Training
(P.O.S.T.) certificate. The application for certification
required a signature from a “Department Head” or
“Authorized Designee.” In a paragraph above the signature
line, the application reads, “Recommendation to Award
Certificate: In my opinion, the applicant is of good moral
Greenwood v. F.A.A., 28 F.3d 971, 977–78 (9th Cir. 1994). Upon
remand, he may seek leave of the district court to amend the pretrial
order to include these additional alleged retaliatory actions in his claim.
ELLINS V . CITY OF SIERRA MADRE 7
character and worthy of the award(s), based on personal
knowledge.” Under the MOU between the City and the
SMPA, Ellins would receive a five percent pay raise if he
received an Advanced P.O.S.T. certificate. While Ellins’s
P.O.S.T. application was pending before Diaz, Ellins served
his suspension for the August 2008 incident, from May 3 to
June 3, 2009.
Diaz testified that when Ellins submitted the application to
her, she did not immediately sign it because of her concern
that Ellins lacked the requisite good moral character. Diaz
consulted with seven other people regarding her decision
against signing Ellins’s P.O.S.T. application, all of whom
agreed with her decision.2 Diaz had not delayed signing any
of the four other P.O.S.T. applications from other officers that
she had previously signed. However, unlike Ellins, none of
the prior applicants had ever received discipline more severe
than a written warning.
On June 3, 2009, with his application for a P.O.S.T.
certificate still unsigned, Ellins filed this lawsuit in the United
States District Court for the Central District of California
seeking damages and injunctive relief, based on alleged
retaliation for his exercise of individual civil rights, free
expression and association, and labor, social, and political
activities. Ellins contends that Diaz retaliated against him by
delaying the approval of the P.O.S.T. application out of anger
2
According to Diaz’s deposition testimony, the individuals she
consulted included a “P.O.S.T. senior training consultant” for the State
of California, the former police chief of the Anaheim Police Department,
a current lieutenant in the Anaheim police, an expert in police ethics, and
Diaz’s “boss,” the city manager of Sierra Madre, Elaine Aguilar.
8 ELLINS V . CITY OF SIERRA MADRE
because of “[his] outspokenness, the vote of no confidence,
and [his] union activities.” He also alleged a Monell claim
against the City.
On September 14, 2010, Diaz and the City moved for
summary judgment. In support of the motion, Diaz declared
that she learned that the District Attorney would not file
criminal charges against Ellins in October 2009. Two months
later, although she had not received written confirmation of
this fact from the District Attorney’s office, on December 3,
2009, Diaz signed Ellins’s P.O.S.T. application “rather than
delay the process any longer.” Diaz also declared that
“because [Ellins] had commenced this litigation, it was hoped
that if he was given a retroactive pay raise to the date he filed
this lawsuit . . . he would forego [sic] this litigation.” The
P.O.S.T. Commission issued the certificate on December 7,
2009, and Ellins was given the five percent pay raise
retroactive to June 3, 2009, the date on which he both
returned from the 160-hour suspension and filed this lawsuit.
On January 5, 2011, the district court granted Defendants’
motion for summary judgment on the ground that Ellins had
not satisfied his burden of establishing a prima facie claim of
First Amendment retaliation. The district court further held
that Diaz, individually, was entitled to qualified immunity, and
that the City did not bear Monell liability. See Monell,
436 U.S. 658.
II.
We review a grant of summary judgment de novo.
Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 747
(9th Cir. 2010). We also review de novo the district court’s
ELLINS V . CITY OF SIERRA MADRE 9
decision to grant summary judgment on the basis of qualified
immunity. Davis v. City of Las Vegas, 478 F.3d 1048, 1053
(9th Cir. 2007). We must determine whether, viewing the
evidence in the light most favorable to Ellins, “there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Delia v. City
of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010) (internal
quotation marks and citation omitted), rev’d on other
grounds, Filarsky v. Delia, 132 S. Ct. 1657 (2012).
III.
“The First Amendment shields a public employee if he
speaks as a citizen on a matter of public concern.” Anthoine,
605 F.3d at 748 (internal quotation marks omitted).
However, “when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.” Garcetti, 547 U.S. at 421.
We follow a sequential five-step inquiry to determine
whether an employer impermissibly retaliated against an
employee for engaging in protected speech. Eng v. Cooley,
552 F.3d 1062, 1070 (9th Cir. 2009). “First, the plaintiff
bears the burden of showing: (1) whether the plaintiff spoke
on a matter of public concern; (2) whether the plaintiff spoke
as a private citizen or public employee; and (3) whether the
plaintiff’s protected speech was a substantial or motivating
factor in the adverse employment action.” Robinson v. York,
566 F.3d 817, 822 (9th Cir. 2009) (internal quotation marks
and citation omitted). “Next, if the plaintiff has satisfied the
first three steps, the burden shifts to the government to show:
10 ELLINS V . CITY OF SIERRA MADRE
(4) whether the state had an adequate justification for treating
the employee differently from other members of the general
public; and (5) whether the state would have taken the adverse
employment action even absent the protected speech.” Id.The district court granted summary judgment for Diaz on
the ground that Ellins had not satisfied his prima facie burden.
Specifically, the district court held that Ellins failed to
establish that (1) he spoke as a private citizen in leading the
no-confidence vote; (2) he suffered an adverse employment
action; and (3) his protected act was a substantial or
motivating factor in the alleged adverse employment action.
A.
Diaz first argues that Ellins cannot establish a First
Amendment retaliation claim because the no-confidence vote
did not involve a matter of public concern.3 “Speech involves
3
Diaz makes this argument for the first time on appeal. It was not
raised before the district court, either in the motion for summary
judgment or at the hearing, and the district court’s order accordingly
does not address it. “Absent exceptional circumstances, we generally will
not consider arguments raised for the first time on appeal, although we
have the discretion to do so.” Baccei v. United States, 632 F.3d 1140,
1149 (9th Cir. 2011). This discretion is normally limited to matters of
pure law. In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988,
992–93 (9th Cir. 2010). Here, we reach the issue because it is a matter
of pure law, see Eng, 552 F.3d at 1070, and it is closely linked to the
“private citizen” inquiry we must undertake to determine whether the
second element of a First Amendment retaliation claim has been
satisfied. See Connick v. Myers, 461 U.S. 138, 143 (1983) (noting the
“repeated emphasis in Pickering [v. Bd. of Educ., 391 U.S. 563 (1968)]
on the right of a public employee ‘as a citizen, in commenting upon
matters of public concern’”).
ELLINS V . CITY OF SIERRA MADRE 11
a matter of public concern when it can fairly be considered to
relate to ‘any matter of political, social, or other concern to
the community.’” Johnson v. Multnomah Cnty., 48 F.3d 420,
422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138,
146 (1983)). Speech that deals with “individual personnel
disputes and grievances” that “would be of no relevance to the
public’s evaluation of the performance of governmental
agencies” generally is not of public concern. McKinley v. City
of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). “Whether an
employee’s speech addresses a matter of public concern must
be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick,
461 U.S. at 147-48 (1983).
Diaz’s public concern argument relies heavily on Connick,
in which the Supreme Court concluded that most of an office
questionnaire circulated by an assistant district attorney, who
had been transferred against her wishes, was not a matter of
public concern. The questionnaire concerned “office transfer
policy, office morale,” and “the level of confidence in
supervisors.” Id. at 141. The Court reasoned that these
issues were “mere extensions of Myers’ dispute over her
transfer to another section of the criminal court.” Id. at 148.
Diaz argues that Ellins himself characterizes the grievances
motivating the no-confidence vote as matters involving the
MOU, scheduling dispatchers, searching officers’ lockers, and
other internal issues. Diaz contends that these matters are
mere “personnel grievances,” and that the vote and attendant
press releases were therefore an extension of the dispute
between the police officers and the department, rather than
speech about a matter of public concern. We disagree.
12 ELLINS V . CITY OF SIERRA MADRE
The record tends to belie Diaz’s characterization of the
reasons behind the no-confidence vote. Ellins stated in his
declaration that he led the vote “due to Chief Diaz’s lack of
leadership, wasting of citizens’ tax dollars, hypocrisy,
expensive paranoia, and damaging inability to conduct her
job.” Ellins echoed that contention in his deposition
testimony, asserting that the no-confidence vote stemmed
from “how upset members [of the union] were on how Chief
Diaz conducted herself as a Chief.”
Diaz also misconstrues the rationale behind Connick. The
dispositive fact in Connick was not that the vote resulted from
a personnel grievance, but rather that it resulted from an
individual personnel grievance. Our precedent instructs that
collective personnel grievances raised by unions may be
matters of public concern. See Lambert v. Richard, 59 F.3d
134, 136–37 (9th Cir. 1995) (holding that where library
employee told City Council that library was mismanaged and
that employees were “devoid of zest,” the speech was on a
matter of public concern because she “spoke as a union
representative, not as an individual, and . . . she described
departmental problems, not private grievances”).
That was also the upshot of our decision in McKinley,
which involved a union representative police officer who
discussed police salaries at a city council meeting and in a
television interview. 705 F.2d at 1112. We held that the
subject matter of his speech was a matter of public concern
because salaries—the subject of the classic personnel
grievance—affect the city’s ability to attract and retain
qualified police personnel, and “the competency of the police
force is surely a matter of great public concern.” Id. at 1114.
Because the officer in McKinley spoke as a union
ELLINS V . CITY OF SIERRA MADRE 13
representative and expressed the concerns of the police union
as a whole, the issue became a matter of public concern.
Other courts have made this point expressly. See Fuerst v.
Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (holding that
comments made by deputy sheriff as president of sheriffs’
union were “prima facie protected by the First Amendment as
a contribution to political debate”); see also Boddie v. City of
Columbus, 989 F.2d 745, 750 (5th Cir. 1993) (“[S]peech in
the context of union activity will seldom be personal; most
often it will be political speech.”).
Here, Ellins led a no-confidence vote about Diaz by the
police officers’ union. Diaz does not contend that any of the
grievances motivating the vote were individual as opposed to
collective. Instead, as in Lambert, the record suggests that the
police union’s concerns were with Diaz’s leadership style and
other department-wide problems, not private grievances. See
Lambert, 59 F.3d at 137. Further, as in McKinley, these
departmental problems were of inherent interest to the public
because they could affect the ability of the Sierra Madre police
force to attract and retain officers. See McKinley, 705 F.2d at
1114. Viewing the facts in the light most favorable to Ellins,
his speech in connection with the SMPA’s no-confidence vote
involved a matter of public concern. Therefore, he introduced
sufficient evidence to create a genuine issue of material fact as
to the first element of a First Amendment retaliation claim.
B.
Ellins must also demonstrate that the speech in question
“was spoken in the capacity of a private citizen and not a
public employee.” Eng, 552 F.3d at 1071. The district court
determined that Ellins failed to present sufficient evidence to
14 ELLINS V . CITY OF SIERRA MADRE
establish that in leading the no-confidence vote he spoke as a
private citizen, rather than pursuant to his official duties as a
police officer. Ellins contends that the district court erred
because his official duties as a police officer did not require
him to serve as president of the union or to engage in union
activities, much less to lead votes of no-confidence. We agree
that, in light of the record evidence, a jury could find that
Ellins spoke in his capacity as a private citizen.
We have held that a public employee speaks as a private
citizen “if the speaker ‘had no official duty’ to make the
questioned statements, or if the speech was not the product of
‘performing the tasks the employee was paid to perform.’” Id.(citation omitted). “While the question of the scope and
content of a plaintiff’s job responsibilities is a question of fact,
the ultimate constitutional significance of the facts as found is
a question of law.” Id. (internal quotation marks and citation
omitted); see also Eng, 552 F.3d at 1071 (“the question of the
scope and content of a plaintiff's job responsibilities is a
question of fact”); Robinson v. York, 566 F.3d 817, 823 (9th
Cir. 2009) (“The scope of Robinson's job duties is a question
of fact”); Posey v. Lake Pend Oreille Sch. Dist. No. 84,
546 F.3d 1121, 1129 (9th Cir. 2008) (“Because the task of
determining the scope of a plaintiff’s job responsibilities is
concrete and practical rather than abstract and formal, we are
confident that a factual determination of a plaintiff’s job
responsibilities will not encroach upon the court’s prerogative
to interpret and apply the relevant legal rules.”).
The distinction drawn in our First Amendment
jurisprudence between private and official speech is rooted in
the Supreme Court’s decision in Garcetti v. Ceballos,
547 U.S. 410 (2006). There, a defense attorney asked a
ELLINS V . CITY OF SIERRA MADRE 15
deputy district attorney, Ceballos, to investigate a police
officer’s affidavit in support of a search warrant underlying a
prosecution. Such requests were not uncommon. Concluding
that the police officer’s affidavit contained serious
misrepresentations, Ceballos wrote a memorandum to his
supervisor recommending dismissal of the prosecution because
the evidence supporting it was the product of a defective
affidavit. Soon afterward, Ceballos was reassigned from his
calendar deputy position to a trial deputy position, transferred
to another courthouse, and denied a promotion. Id. at 414.
He filed a § 1983 action alleging retaliation for his speech.
The Court determined that in recommending dismissal,
Ceballos had simply fulfilled his professional duties and
therefore his speech was not protected from retaliation by the
First Amendment. The Court reasoned that
The controlling factor in Ceballos’ case is that
his expressions were made pursuant to his
duties as a calendar deputy. That
consideration— the fact that Ceballos spoke as
a prosecutor fulfilling a responsibility to advise
his supervisor about how best to proceed with
a pending case—distinguishes Ceballos’ case
from those in which the First Amendment
provides protection against discipline. We
hold that when public employees make
statements pursuant to their official duties, the
employees are not speaking as citizens for
First Amendment purposes, and the
Constitution does not insulate their
communications from employer discipline.
16 ELLINS V . CITY OF SIERRA MADRE
Id. at 421 (internal citation omitted). Ceballos’ retaliation
claim failed because he was not acting as a private citizen
when he went about his “daily professional activities”; instead,
“[w]hen he went to work and performed the tasks he was paid
to perform, Ceballos acted as a government employee.” Id. at
422.
Ellins introduced evidence that he led the no-confidence
vote and issued the related press releases in his capacity as a
union representative.4 Ellins’s daily professional duties as a
police officer did not include acting as a union representative
or serving as the President of the SMPA. Therefore, the
district court erred when it concluded as a matter of law that
Ellins acted in his capacity as a public employee when he led
the no-confidence vote. There was sufficient evidence to
suggest that this was not a task he was paid to perform.
Therefore, a jury could reasonably conclude that Ellins’s union
activities and related speech were undertaken in his capacity
as a private citizen.
As the Seventh Circuit has recently held, comments made
by a police officer acting in his capacity as a union
representative are spoken as a private citizen, rather than
pursuant to the officer’s official duties. Fuerst v. Clarke,
454 F.3d 770 (7th Cir. 2006). In Fuerst, the plaintiff, a
deputy sheriff who also served as the president of the
Milwaukee County deputy sheriffs’ union, publicly criticized
the county sheriff’s proposal to hire a civilian to fill a position
4
Ellins testified that the press releases were made public through the
SMPA’s legal representatives. In her deposition testimony, Diaz
acknowledged that she thought that Ellins was “behind” the press
releases.
ELLINS V . CITY OF SIERRA MADRE 17
traditionally occupied by a deputy sheriff. Id. at 772. In
determining whether the sheriff was justified in retaliating
against Fuerst, the Seventh Circuit dismissed the notion that
Fuerst spoke as a public employee under Garcetti when he
criticized the proposal:
Because Fuerst’s comments that precipitated
the adverse action taken against him were
made in his capacity as a union representative,
rather than in the course of his employment as
a deputy sheriff—his duties as deputy sheriff
did not include commenting on the sheriff’s
decision to hire a public-relations officer—the
Supreme Court’s recent decision in Garcetti v.
Ceballos is inapposite.
Id. at 774 (citation omitted); see also Baumann v. District of
Columbia, 744 F. Supp. 2d 216, 224 (D.D.C. 2010) (holding
that police officer’s criticism of his department’s handling of
a sniper incident was protected speech because the officer
spoke in his capacity as police union president); Hawkins v.
Boone, 786 F. Supp. 2d. 328, 335 (D.D.C. 2011) (holding
that detective’s statements critical of a departmental staffing
initiative were protected by the First Amendment because the
detective spoke as a police union representative).
Given the inherent institutional conflict of interest between
an employer and its employees’ union, we conclude that a
police officer does not act in furtherance of his public duties
when speaking as a representative of the police union. We
thus hold that a reasonable jury could find that Ellins’s speech,
made as a representative and president of the police union,
was made in his capacity as a private citizen.
18 ELLINS V . CITY OF SIERRA MADRE
C.
The district court also determined that Ellins failed to
establish that he suffered an “adverse employment action.”
Ellins argued that the failure to award him the five percent
salary increase during the period from the date he submitted
his P.O.S.T. application, February 26, 2009, to the date he
began to serve his May 2009 suspension constituted an
adverse employment action. The district court rejected this
argument, reasoning that Ellins did not demonstrate that he
was entitled to the pay increase during that period because
while the MOU provided for a five percent pay raise, it “[did]
not state when the pay raise becomes effective.”
We have specifically concluded that “an adverse
employment action exists where an employer’s action
negatively affects its employee’s compensation.” Fonseca v.
Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.
2004); see also Hollister v. Tuttle, 210 F.3d 1033, 1034–35
(9th Cir. 2000) (holding that alleged discrimination in merit
pay increases and salary raises against tenured professor
alleging retaliation for his protected speech would “constitute
denials of governmental benefits redressable by § 1983”);
Manhattan Beach Police Officers Ass’n, Inc. v. City of
Manhattan Beach, 881 F.2d 816, 819 (9th Cir. 1989) (noting
that a public employer cannot withhold an economic benefit
“such as a higher salary” in retaliation for activities protected
by the First Amendment). Even the denial of a minor financial
benefit may form the basis of a First Amendment claim. See
Elrod v. Burns, 427 U.S. 347, 359 n.13 (1976) (holding that
First Amendment rights are infringed “both where the
government fines a person a penny . . . and where it withholds
ELLINS V . CITY OF SIERRA MADRE 19
the grant of a penny” to punish or suppress protected
activities).
In addressing a First Amendment retaliation claim, we also
examine whether “the actions taken by the defendants were
reasonably likely to deter [the public employee] from engaging
in protected activity under the First Amendment.” Anthoine,
605 F.3d at 750 (quoting Coszalter v. City of Salem, 320 F.3d
968, 976 (9th Cir. 2003)). The government’s act of retaliation
“need not be severe and it need not be of a certain kind.”
Coszalter, 320 F.3d at 975. Indeed,
The precise nature of the retaliation is not
critical to the inquiry in First Amendment
retaliation cases. The goal is to prevent, or
redress, actions by a government employer
that chill the exercise of protected First
Amendment rights . . . . Depending on the
circumstances, even minor acts of retaliation
can infringe on an employee’s First
Amendment rights.
Id. (internal quotation marks and citation omitted). Thus we
must determine, in light of the record evidence, whether a jury
could reasonably find that Diaz’s withholding of approval of
the P.O.S.T. application, which delayed and denied Ellins a
portion of his pay increase, was designed to retaliate against
and chill Ellins’s political expression.
Ellins submitted his P.O.S.T. application on February 26,
2009. MOU Article 23 provides that “[a]ny officer who has
an Advanced P.O.S.T. Certificate shall receive an additional
5% pay over said officer’s base salary.” Diaz admits that
20 ELLINS V . CITY OF SIERRA MADRE
although she knew that Ellins had generally satisfied the
requirements necessary to receive the Advanced P.O.S.T.
certificate, she deliberately delayed signing Ellins’s P.O.S.T.
application until December 2009. Diaz also admits that she
backdated his pay increase in an attempt to convince Ellins to
drop this lawsuit, but only to June 2009, the date he returned
from his suspension.5
Construing these facts in the light most favorable to Ellins,
a reasonable finder of fact could conclude that Diaz’s failure
to sign his P.O.S.T. application deprived Ellins of a pay raise
from the date he was entitled to the pay raise to the date to
which Diaz chose to backdate her approval. The record
indicates that Ellins’s pay raise would have taken effect in late
February or early March had Diaz not delayed in signing his
P.O.S.T. application. Diaz declares that the five percent pay
increase normally takes effect on the date the Commission on
Peace Officer Standards and Training issues a P.O.S.T.
certificate. While the record does not specify how long this
process normally takes, we can infer that the certificate would
have been issued within days after Ellins submitted his
application to Diaz on February 26, 2009. In fact, as Diaz
acknowledges, the Commission issued Ellins’s certificate only
four days after Diaz eventually signed it. It is a fair inference
that Ellins would have received the pay increase to which the
P.O.S.T. certificate entitled him within a similar four-day
5
Diaz’s testimony also indicates that she personally imposed Ellins’s
160-hour suspension without pay. Although Ellins’s misconduct
occurred in July 2008 and an internal affairs investigation began in
August 2008, the suspension took effect on May 7, 2009, after Diaz
became aware of the no-confidence vote. If any part of this sanction is
attributable to Diaz’s alleged retaliatory motives, Ellins’s economic loss
from the delayed P.O.S.T. certification would be even greater.
ELLINS V . CITY OF SIERRA MADRE 21
period. Therefore, a jury could find that Ellins was deprived
of the five percent pay raise from roughly March 2 to June 3,
2009, when he returned from serving his suspension.
Had Ellins not sued, he likely would have been deprived of
the five percent raise for a longer period, from late February
2009 to December 2009. Diaz admits that Ellins was only
given the retroactive pay raise with the hope that he would
“forego [sic] this litigation.” However, we do not focus on
the “ultimate effects” of each employment action, but on the
“deterrent effects.” Ray v. Henderson, 217 F.3d 1234, 1243
(9th Cir. 2000) (adopting the EEOC standard for identifying
adverse employment actions). That Ellins had to threaten and
then actually file suit to even partially recover the pay increase
is more than sufficient to demonstrate the deterrent effect on
protected speech Diaz’s delay in signing Ellins’s P.O.S.T.
application worked. Such deprivation of salary is reasonably
likely to deter employees from engaging in protected activity
and is sufficient to constitute an adverse employment action.
See Manhattan Beach, 881 F.2d at 819; Fonseca, 374 F.3d
at 847 (holding that improper assignment of overtime
opportunities and pay constitutes adverse employment action
for purposes of § 1983). Therefore, Ellins introduced
sufficient evidence of an adverse employment action to defeat
a grant of summary judgment.
D.
The district court also erred in concluding that Ellins
failed to produce evidence that his speech and the adverse
employment action were sufficiently related such that the
speech was a substantial or motivating factor in Diaz’s
decision against signing the P.O.S.T. application. Although
22 ELLINS V . CITY OF SIERRA MADRE
Diaz was aware of three pending investigations of Ellins that
she claimed justified the delay, Ellins adduced sufficient
evidence to raise a genuine dispute of material fact on this
question.
To establish that retaliation was a substantial or motivating
factor behind an adverse employment action, a plaintiff may
introduce evidence that (1) the speech and adverse action
were proximate in time, such that a jury could infer that the
action took place in retaliation for the speech; (2) the
employer expressed opposition to the speech, either to the
speaker or to others; or (3) the proffered explanations for the
adverse action were false and pretextual. Coszalter, 320 F.3d
at 977. Ellins brought forth sufficient evidence of both
temporal proximity and Diaz’s opposition to his speech to
preclude summary judgment on the issue of “substantial or
motivating factor.”
Ellins provided evidence of a relatively close temporal link
between his protected speech and the adverse employment
action. He led the no-confidence vote in October 2008, and
according to Diaz, press releases regarding the vote issued in
October and November 2008. Ellins submitted his P.O.S.T.
application on February 26, 2009. Diaz testified that she
initially decided not to sign the application in February 2009.
The alleged retaliatory act thus occurred between four and
five months after the no-confidence vote, and between three
and four months after the press releases issued. We
established in Coszalter that “a specified time period cannot be
a mechanically applied criterion” for an inference of
retaliation; instead, “[w]hether an adverse employment action
is intended to be retaliatory is a question of fact that must be
decided in the light of the timing and the surrounding
ELLINS V . CITY OF SIERRA MADRE 23
circumstances.” 320 F.3d at 978. Nevertheless, we also held
that “[d]epending on the circumstances, three to eight months
is easily within a time range that can support an inference of
retaliation.” Coszalter, 320 F.3d at 977. The four-to-five
month period between Ellins’s protected speech and Diaz’s
refusal to sign his P.O.S.T. application falls easily within the
range that we concluded supports an inference of retaliation
in Coszalter.
Ellins also introduced sufficient evidence to withstand
summary judgment as to Diaz’s opposition to his protected
speech. In Ulrich v. City and County of San Francisco,
308 F.3d 968 (9th Cir. 2002), we held that expressions of
opposition similar to those made by Diaz are sufficient to
establish that the protected speech was a substantial
motivating factor for an adverse employment action. Ulrich,
a physician who was under investigation for professional
incompetence, protested the city’s decision to lay off a class
of physicians at a hospital and publicly displayed his
resignation letter. Id. at 972, 980. After an administrator saw
the letter, she reported it to other administrators because she
was “concerned” that the letter was “potentially negative” and
may have been “widely disseminated.” Id. at 980. When
Ulrich realized that his resignation triggered a reporting
requirement because the investigation was pending, he
attempted to rescind his resignation so that he could be
reinstated. Id. at 973. The hospital refused to accept Ulrich’s
rescission attempt. Id. We held that even though the
administrator had neither warned Ulrich nor told others he
should be fired, the evidence of the administrator’s opposition
was sufficient, given other evidence of timing and pretext, to
support a jury finding of retaliatory motive in the hospital’s
refusal to reinstate Ulrich. Id. at 981.
24 ELLINS V . CITY OF SIERRA MADRE
Just as the administrator in Ulrich expressed “concern” to
others regarding the resignation letter, Diaz admits that she
expressed “disappointment” and “dismay” to others in the
wake of the no-confidence vote and press releases. She
expressed this disappointment to her captain, telling him that
she thought the press release was “unfortunate” and that she
wished they could have “resolved these issues by continuing
to meet in person” because the no-confidence vote and press
releases suggested that the SMPA “had chosen to go way
beyond any good-faith effort to try to resolve differences.”
Diaz also “spoke briefly” to others in the department about her
feeling “disappointed and disheartened that the [SMPA] had
chosen what [she] thought was a counter-productive action.”
The similarity between Diaz’s expressed sentiments and those
at issue in Ulrich suggests that Ellins has, at the very least,
raised a genuine dispute of material fact as to whether Diaz
opposed the no-confidence vote and related press releases.
We have held that evidence of one of the three Coszalter
factors may be sufficient to allow a plaintiff to prevail in a
public employee retaliatory speech claim. See, e.g., Marable
v. Nitchman, 511 F.3d 924, 930 (9th Cir. 2007) (allowing a
close temporal connection to establish substantial motive even
though defendants claimed no knowledge of the employee’s
protected speech and asserted independent reasons for
disciplining the employee). That Ellins has not demonstrated
pretext or falsity at this stage, where the district court ruled
that Ellins has not made out a prima facie case, is not fatal to
his claim.
ELLINS V . CITY OF SIERRA MADRE 25
E.
Diaz argues that even if Ellins established his prima facie
case of First Amendment retaliation, summary judgment in her
favor can be upheld because she had an “adequate
justification” for not signing Ellins’s P.O.S.T. application,
given Ellins’s disciplinary record, especially the pending
criminal investigation by the L.A. District Attorney that she
had initiated. Moreover, she argues that these factors
demonstrate that she would not have signed Ellins’s P.O.S.T.
application irrespective of the no-confidence vote and press
releases. Whether Diaz would have withheld her signature in
the absence of the no-confidence vote and the press releases,
and whether she had an adequate justification for doing so, are
entirely questions of fact. Eng, 552 F.3d at 1072; see also
Mabey v. Reagan, 537 F.2d 1036, 1045 (9th Cir. 1976)
(“[T]he only way to erect adequate barriers around First
Amendment freedoms is for the trier of fact to delve into the
motives of the decisionmaker.”).
In Mabey, we opined that when “questions of motive
predominate in the inquiry about how big a role the protected
behavior played in the decision, summary judgment will
usually not be appropriate.” 537 F.2d at 1045. Although
Diaz’s reliance on the impending investigations supports her
argument that she would have refused to sign the P.O.S.T.
application notwithstanding Ellins’s purported protected
speech, Diaz also admitted that she had approved the P.O.S.T.
applications of four other officers who had undergone internal
investigations. The record before us is not undisputed; Diaz
herself provides evidence that could support either finding.
26 ELLINS V . CITY OF SIERRA MADRE
IV.
Nor is Diaz entitled to qualified immunity under the
circumstances presented here. The district court held that
even assuming a First Amendment violation, Defendants had
“no indication” that Diaz’s conduct was unlawful. The district
court reasoned that there was no case law that specifically
held “that a police officer suffers a First Amendment violation
when a certifying officer delays approval of an application that
requires a certification of the applicant’s good moral
character.” However, the district court framed the inquiry
much too narrowly. The question is not whether an earlier
case mirrors the specific facts here. Rather, the relevant
question is whether “the state of the law at the time gives
officials fair warning that their conduct is unconstitutional.”
Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 1003
(9th Cir. 2010) (en banc) (“[T]he specific facts of previous
cases need not be materially or fundamentally similar to the
situation in question.”) (citing Hope v. Pelzer, 536 U.S. 730,
742 (2002)); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.
2000) (“Closely analogous preexisting case law is not required
to show that a right was clearly established.”); see also
Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000);
Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994);
Alexander v. Perrill, 916 F.2d 1392, 1397–98 (9th Cir. 1990).
Viewing Diaz’s actions in the light most favorable to Ellins,
we conclude that she acted unreasonably in light of clearly
established law.
To determine whether a government official is entitled to
qualified immunity, we ask two questions: whether the official
violated a statutory or constitutional right, and whether that
right was clearly established at the time of the challenged
ELLINS V . CITY OF SIERRA MADRE 27
conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We
may address these questions in any order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). We first address
whether Ellins alleges a violation of a right that was clearly
established when Diaz acted in 2009.
For purposes of qualified immunity, we resolve all factual
disputes in favor of the party asserting the injury. Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Pearson, 555 U.S. at 236. In light of the above discussion,
we can reasonably assume both that Ellins’s protected speech
was a substantial or motivating factor in Diaz’s decision, and
that Diaz would not have delayed signing Ellins’s P.O.S.T.
application in the absence of his protected speech. Ellins’s
First Amendment right to be free from retaliation for engaging
in protected speech was clearly established in 2009 when Diaz
allegedly delayed the signing of his P.O.S.T. application.
Forty years previously, in 1968, the Supreme Court
established that public employees have a First Amendment
right to be free from retaliation for commenting on matters of
public concern, even when the protected comments are critical
of their employers. Pickering, 391 U.S. at 571 (holding that
a teacher could not be dismissed for criticizing school board’s
budget management, even though the criticism included false
allegations against board members, because the speech
addressed a matter of public concern and the speech did not
prevent the school district’s efficient functioning). In
Connick, decided in 1983, the Supreme Court reaffirmed this
right. Although the Court found that the plaintiff’s speech
dealt only with private employee concerns, the Court stressed
that speech on matters of public concern occupies the “highest
rung of the heirarchy [sic] of First Amendment values, and is
28 ELLINS V . CITY OF SIERRA MADRE
entitled to special protection.” Connick, 461 U.S. at 145(quoting NAACP v. Claiborne Hardware, 458 U.S. 886(1982)). In Coszalter, we concluded that city officials, who
were sued by former city employees for alleged First
Amendment retaliation, were not entitled to qualified
immunity because “both the constitutional protection of
employee speech and a First Amendment cause of action for
retaliation against protected speech were clearly established”
at least as of 1989. 320 F.3d at 979 (relying on Pickering,
391 U.S. at 571; Allen v. Scribner, 812 F.2d 426 (9th Cir.
1987); Anderson v. Central Point Sch. Dist., 746 F.2d 505(9th Cir. 1984); and Thomas v. Carpenter, 881 F.2d 828 (9th
Cir. 1989) for the proposition that the law was clearly
established).
When Diaz acted in 2009, it was also clearly established
under both Supreme Court and Ninth Circuit precedent that
“the type of sanction . . . ‘need not be particularly great in
order to find that rights have been violated.’” Hyland v.
Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992) (quoting Elrod
v. Burns, 427 U.S. 347, 359 n.13 (1976)). It was also clearly
established that deprivation of an employee’s salary is
unconstitutional if levied in retaliation for protected speech.
See Manhattan Beach, 881 F.2d at 818–19 (9th Cir. 1989)
(holding that salary is unconstitutionally withheld if on the
basis of protected activities). That we have not decided a case
in which the retaliation took the specific form of decreased
pay due to a delayed P.O.S.T. certification is irrelevant.
Finally, when Diaz acted it was clearly established that a
police union representative’s speech is entitled to First
Amendment protection. In McKinley, we held that a police
officer who spoke as a union representative engaged in
ELLINS V . CITY OF SIERRA MADRE 29
protected speech. 705 F.2d at 1114–15 (applying the standard
set forth in Pickering, 391 U.S. 563, and Connick, 461 U.S.
138, and holding that matters relating to “the competency of
the police force” are surely of “great public concern”); see
also Fuerst, 454 F.3d at 774; Nagle v. Vill. of Calumet Park,
554 F.3d 1106, 1123 (7th Cir. 2009). In Fuerst, another First
Amendment retaliation case, the Seventh Circuit distinguished
between speech made by a sheriff under his “union president’s
hat” and speech that could legitimately form the basis for
denying the sheriff a promotion. 454 F.3d at 775. Ellins’s
expressive act of leading a union vote followed by related
press releases was unmistakably performed under his “union
president hat,” and thus constituted protected speech.
It is true that if Diaz “could . . . have reasonably but
mistakenly believed that . . . her conduct did not violate a
clearly established constitutional right, [s]he is entitled to
qualified immunity.” Hunt v. Cnty of Orange, 672 F.3d 606,
615–16 (9th Cir. 2012) (internal quotation marks and citation
omitted). However, in light of the Supreme Court’s
longstanding and unequivocal precedents protecting employee
speech, we conclude that a reasonable official in Diaz’s
position would have known that delaying Ellins’s application
to the P.O.S.T. program because of his union activity, which
resulted in a lower salary than that to which he otherwise
would have been entitled, violated Ellins’s First Amendment
rights; that in leading a union vote Ellins acted as a private
citizen addressing a matter of public concern; and that
depriving Ellins of salary in retaliation for his protected speech
was unconstitutional.
30 ELLINS V . CITY OF SIERRA MADRE
V.
The district court correctly held that the City of Sierra
Madre is not liable for Diaz’s allegedly retaliatory conduct
under a Monell theory of liability. Monell., 436 U.S. 658(1978). Under Monell, municipalities are subject to damages
under § 1983 in three situations: when the plaintiff was injured
pursuant to an expressly adopted official policy, a long-
standing practice or custom, or the decision of a “final
policymaker.” Delia v. City of Rialto, 621 F.3d 1069,
1081–82 (9th Cir. 2010). The district court properly
concluded that Ellins did not adduce sufficient evidence of an
official policy or custom of retaliatory delay. The city could
be liable on a Monell theory only if Diaz was a final
policymaker or if the city’s final policymaker ratified Diaz’s
alleged retaliation. We conclude that city manager Elaine
Aguilar, not Diaz, was the city’s final policymaker. Because
Ellins does not allege that Aguilar knew of Diaz’s alleged
retaliatory motive for delaying signature of Ellins’s P.O.S.T.
application, the City is not liable for Ellins’s injury.
Whether an official is a policymaker for Monell purposes
is a question governed by state law. City of St. Louis v.
Praprotnik, 485 U.S. 112, 124 (1988). California state law
permits municipalities to enact regulations creating a “city
manager” form of governance. Gov. Code § 34851. The City
of Sierra Madre has enacted such regulations. See Sierra
Madre Mun. Code § 2.08.010 (2000). The City has delegated
to the city manager the “authority to control, order, and give
directions to all heads of departments and to subordinate
officers and employees of the city . . . .” Sierra Madre Mun.
Code § 2.08.070(B) (2000). More specifically, it is the city
manager’s duty to “appoint, discipline, remove, promote, and
ELLINS V . CITY OF SIERRA MADRE 31
demote any and all officers and employees of the city except
the city clerk, city treasurer, or city attorney . . . .” Sierra
Madre Mun. Code § 2.08.070(C) (2000). The Sierra Madre
Personnel Rules and Regulations further reinforce these
provisions by expressly charging the city manager with
administering the City’s personnel rules. These local
ordinances and regulations establish that city manager Elaine
Aguilar, not Diaz, possesses final policymaking authority over
police employment decisions.
Although it is undisputed that Aguilar approved Diaz’s
decision to delay signing Ellins’s P.O.S.T. application, Ellins
does not allege that Aguilar knew that the decision was in
retaliation for protected speech or that she ratified the decision
despite such knowledge. See Christie v. Iopa, 176 F.3d 1231(9th Cir. 1999) (plaintiff must adduce evidence that the final
policymaker approved both a subordinate’s decision and the
improper basis for that decision to survive summary judgment
on a ratification theory). Ellins has thus failed to raise a
genuine issue of material fact regarding whether his alleged
injury is attributable to the City of Sierra Madre’s
policymaker.
VI.
We affirm the district court’s grant of summary judgment
to the City of Sierra Madre because the City is not liable under
Monell for Diaz’s actions. However, we reverse the district
court’s grant of summary judgment to Diaz and remand
32 ELLINS V . CITY OF SIERRA MADRE
because genuine issues of material fact exist on the elements
of Ellins’s First Amendment retaliation claim.
AFFIRMED in part; REVERSED in part;
REMANDED for proceedings consistent with this
opinion. Each party shall bear its own costs.
Rawlinson, Circuit Judge, concurring in the judgment:
I concur in the judgment reversing the district court’s
entry of summary judgment in favor of defendant Marilyn
Diaz. I also agree that entry of summary judgment in favor of
the City of Sierra Madre was warranted due to the lack of
material issues of fact regarding a city policy that resulted in
the alleged constitutional violations. I write separately to
clarify that this case was decided on summary judgment and
no definitive rulings on the factual issues should have been
made by the district court or should be made by us. On
summary judgment review, we determine whether material
issues of fact were raised by the party opposing summary
judgment after reviewing the evidence in the light most
favorable to that opposing party. See Fairbank v.
Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.
2000). Resolution of those factual issues is reserved for trial
before a factfinder. For that reason, we should limit our
discussion to whether Ellins raised material issues of fact,
thereby rendering entry of summary judgment inappropriate.
At the summary judgment stage, the non-moving party
need only raise a material issue of fact rather than carrying the
ultimate burden of persuasion. See Fairbank, 212 F.3d at
ELLINS V . CITY OF SIERRA MADRE 33
531. As the district court acknowledged, whether Ellins
suffered an adverse employment action was “purely a question
of fact.” District Court Opinion, p. 6 (citation omitted). The
Memorandum of Understanding between the City and the
bargaining unit for the officers provided for a 5 percent pay
increase if an officer obtained an Advanced POST Certificate.
This circumstance raised a material question of fact regarding
whether Chief Diaz’s failure to sign Ellins’s application for an
Advanced POST certificate resulted in a loss of pay, thereby
precluding summary judgment. See Fairbank, 212 F.3d at
531. Similarly, there was disputed evidence in the record
regarding whether Chief Diaz was motivated by Ellins’s
criticism of her performance. Construing the evidence
presented by Ellins in the light most favorable to him, i.e., that
Chief Diaz had never previously refused to sign a similar
application, also raised a material issue of fact.
Having determined that material issues of fact remain for
trial, I would go no further. More specifically, I decline to
join the majority’s discussion of whether Ellins established a
First Amendment retaliation claim, and its conclusion that
Ellins spoke in his capacity as a private citizen rather than as
a public employee. See Majority Opinion, p. 16. In my view,
this is not a determination that should be made at this stage of
the proceedings. Because the record is void regarding
whether the activities Ellins undertook as union president were
within the realm of his official duties, the determination
regarding whether his activities were undertaken as a private
citizen is more appropriately made by the factfinder.
The majority relies primarily upon the Seventh Circuit’s
decision in Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir.
2006), where the court held, without any analysis, that the
34 ELLINS V . CITY OF SIERRA MADRE
employee’s speech as a union representative was not made as
a public employee.1 The two district court cases from district
courts in D.C., Baumann v. District of Columbia, 744 F.
Supp. 2d 216, 224 (D.D.C. 2010), and Hawkins v. Boone
786 F. Supp. 2d 328, 335 (D.D.C. 2011) simply parroted the
Seventh Circuit’s ruling in Fuerst, again without any analysis.
I am not confident that reliance on these cases supports
concluding that Ellins was speaking as a private citizen when
he criticized Chief Diaz.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United
States Supreme Court discussed how we are to determine
whether a public employee should be treated as a private
citizen in the First Amendment context. First, we must
determine whether the employee “spoke as a citizen on a
matter of public concern. . . .” Id. at 418 (citation omitted).
If the employee spoke as a private citizen as opposed to within
the “course of performing [his] official duties,” the employee
“retain[s] some possibility of First Amendment protection . . .”
Id. at 423.
There is no doubt in this Circuit that whether an employee
speaks as a private citizen is a question of fact rather than an
issue of law. See Eng v. Cooley, 552 F.3d 1062, 1071 (9th
Cir. 2009) (“The question of the scope and content of a
plaintiff’s job responsibilities is a question of fact . . .”)
(citation omitted); see also Karl v. City of Mount Terrace,
678 F.3d 1062, 1071 (9th Cir. 2012) (same).
1
The Seventh Circuit referenced its Fuerst decision in Nagle v. Village
of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009), but again made
the public-employee-private-citizen determination without undertaking
an in-depth analysis of the issue.
ELLINS V . CITY OF SIERRA MADRE 35
The record in this case is devoid of any description of
Ellins’s job duties. Cf. id. (discussing the plaintiff’s testimony
regarding the scope of her job duties). For all we know,
Ellins’s job duties could encompass his union responsibilities.
See, e.g., People v. Creath, 31 Cal. App. 4th 312, 315 (1995)
(noting that officers and directors of the firefighters union
received compensation to perform union duties).
In sum, I agree with the majority that this case should be
remanded. However, upon remand all questions of fact,
including whether Ellins spoke as a public employee or as a
private citizen, should be resolved by the factfinder. For that
reason, I concur only in the judgment affirming in part,
reversing in part and remanding for further proceedings.