Michael Boronda v. Sara Moye , 599 F. App'x 321 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL A. BORONDA, No. 13-35273
Plaintiff - Appellant, D.C. No. 1:11-cv-03082-CL
v.
MEMORANDUM*
SARA MOYE and JOSEPHINE
COUNTY, a political subdivision of the
State of Oregon,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted March 6, 2015**
Portland, Oregon
Before: PAEZ and IKUTA, Circuit Judges and SELNA,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
Michael Boronda appeals from the district court’s grant of summary
judgment in favor of Josephine County (the County) and Sara Moye. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not err in granting summary judgment in favor of the
County and Moye on Boronda’s 42 U.S.C. § 1983 claim for First Amendment
retaliation. We agree with Boronda that he was a private citizen at the time he
made demands on the County and Moye requested that he be barred from
undertaking construction work in certain County offices. Cf. Clairmont v. Sound
Mental Health, 632 F.3d 1091, 1101–02 (9th Cir. 2011). Applying the framework
for First Amendment retaliation claims by private citizens, we conclude that
Boronda failed to raise a genuine dispute of material fact as to whether Moye’s
request was intended to chill Boronda’s speech, rather than to prevent him from
having access to valuable and confidential County property and documents. See
Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (requiring the
plaintiff to prove that the “desire to cause the chilling effect” was a “but-for cause
of the defendant’s action”).
The district court did not err in granting summary judgment in favor of the
County and Moye on Boronda’s claim for a violation of the Family Medical Leave
Act (FMLA), 29 U.S.C. § 2615(b)(1). Boronda does not allege that Moye
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retaliated against him because he filed a charge or “instituted or caused to be
instituted any proceeding” under the FMLA, or otherwise engaged in an act
protected by the FMLA. See 29 U.S.C. § 2615(b)(1). Rather, he alleges that Moye
retaliated against him because he sought to enforce his contract rights under state
law.
The district court did not err in granting summary judgment in favor of the
County and Moye on Boronda’s claim for intentional interference with economic
relations in violation of Oregon law. Boronda failed to raise a genuine dispute of
material fact as to whether Moye violated Oregon Revised Statute section
659.805(1) by blacklisting or publishing Boronda’s name “with intent and for the
purpose of preventing” Boronda from obtaining or retaining employment, see Or.
Rev. Stat. § 659.805(1), or retaliated against Boronda for exercising his First
Amendment rights. Therefore, Boronda did not raise a genuine dispute of material
fact as to whether Moye interfered with Boronda’s relationship with his employer
using improper means, or for an improper purpose, which is a necessary element of
the tort. See McGanty v. Staudenraus, 901 P.2d 841, 844 (Or. 1995) (en banc).
Finally, the district court did not err in granting summary judgment in favor
of the County and Moye on Boronda’s state law breach of contract claim. In the
settlement agreement, the parties agreed to treat the $8,333.75 as back wages.
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Because Oregon law requires the County to remit six percent of gross wages to the
Public Employee Retirement System (PERS), the County did not violate the
settlement agreement when it deducted $500.03 from the $8,333.75 settlement
payment and remitted it to PERS.
AFFIRMED.
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