Todd Candelaria v. City of Tolleson ( 2017 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    DEC 06 2017
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TODD CANDELARIA and JEFF HAMM,                   No. 16-16346
    Plaintiffs-Appellants,             D.C. No. 2:14-cv-02123-JJT
    v.
    MEMORANDUM*
    CITY OF TOLLESON, Arizona - a
    municipal corporation of the State of
    Arizona; GEORGE GOOD, in his
    individual and official capacities; WENDY
    JACKSON, in her individual and official
    capacities; and REYES MEDRANO, in his
    individual and official capacities,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Arizona
    John J. Tuchi, District Judge, Presiding
    Submitted November 17, 2017**
    San Francisco, California
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,*** District
    Judge.
    Todd Candelaria and Jeff Hamm, firefighters employed by the City of
    Tolleson, Arizona, appeal from the district court’s grant of summary judgment
    dismissing their retaliation claims under 42 U.S.C. § 1983 and Arizona state law.
    They allege that they were disciplined in retaliation for exercising their First
    Amendment right to: (1) discuss their union’s provision of relief services
    following a massive fire; and (2) participate in their union’s ongoing effort to pass
    a meet-and-confer policy with the City. We have jurisdiction under 28 U.S.C.
    § 1291. We review a grant of summary judgment de novo. Ellins v. City of Sierra
    Madre, 
    710 F.3d 1049
    , 1056 (9th Cir. 2013). We affirm.
    To determine whether a public employer impermissibly retaliated against an
    employee for engaging in protected speech, the Ninth Circuit employs the five-step
    inquiry set forth in Eng v. Cooley, 
    552 F.3d 1062
    , 1070–72 (9th Cir. 2009). All of
    the Eng factors “are necessary, in the sense that failure to meet any one of them is
    ***
    The Honorable Paul L. Friedman, United States District Judge for the
    District of Columbia, sitting by designation.
    2
    fatal to the plaintiff’s case.” Dahlia v. Rodriguez, 
    735 F.3d 1060
    , 1067 n.4 (9th
    Cir. 2013) (en banc). This appeal involves the first and third Eng factors.1
    1. The first Eng factor requires the employee to show that he spoke on a
    matter of public concern. 
    Eng, 552 F.3d at 1070
    . We agree with the district court
    that plaintiffs’ speech attempting to exclude a non-union member from joining the
    fire relief efforts did not address matters of public concern. The speech did not
    reference matters that we have previously deemed to be of public concern, such as
    government inefficiency, mismanagement, or wrongdoing. See Desrochers v. City
    of San Bernardino, 
    572 F.3d 703
    , 712 (9th Cir. 2009). Nor did it shed light on the
    fire department’s ability to respond effectively to life-threatening emergencies,
    given that it did not address the City’s lack of an emergency response plan or
    public safety concerns. Cf. Gilbrook v. City of Westminster, 
    177 F.3d 839
    , 866
    (9th Cir.), as amended on denial of reh’g (9th Cir. 1999) (holding that speech
    regarding public safety implications of city’s decision to reduce fire department
    1
    This case involves hybrid speech/association claims that are evaluated
    as a single claim rather than as separate freedom of speech and freedom of
    association claims. See Hudson v. Craven, 
    403 F.3d 691
    , 696, 698 (9th Cir. 2005)
    (applying the balancing test announced in Pickering v. Bd. of Educ., 
    391 U.S. 563
    (1968), to “hybrid speech/association claim” where speech was “so intertwined”
    with alleged association activity). We note that the Ninth Circuit subsequently
    adopted the so-called Pickering balancing test as the fourth Eng factor. See 
    Eng, 552 F.3d at 1071
    –72.
    3
    budget involved matter of public concern). Furthermore, plaintiffs did not attempt
    to publicize their speech beyond the fire department. See 
    Desrochers, 572 F.3d at 714
    . At most, plaintiffs’ speech expressed their personal disagreement with
    personnel decisions made by the City and is thus appropriately characterized as an
    “individual personnel dispute[]” that would be of “no relevance to the public’s
    evaluation of the performance of government agencies . . . .” 
    Id. at 710
    (internal
    quotation marks and citations omitted). Plaintiffs’ speech relating to the fire relief
    efforts therefore is not entitled to First Amendment protection.
    2. The district court determined that, although plaintiffs raised a material
    issue of fact as to whether the content of a separate set of speech and association
    activity related to the union’s meet-and-confer policy addressed a matter of public
    concern, its form and context rendered it unprotected. See 
    id. at 709
    (burden on
    plaintiff to show speech addressed matter of public concern based on content,
    form, and context of a given statement). We need not address this determination
    on appeal because we conclude that the evidence was insufficient for a reasonable
    jury to conclude that plaintiffs’ meet-and-confer-related activity was a substantial
    or motivating factor in the adverse employment action, the third Eng factor. See
    infra at 5.
    4
    3. The third Eng factor requires the employee to show that the protected
    speech was a substantial or motivating factor in the adverse employment action.
    
    Eng, 552 F.3d at 1071
    . To satisfy this factor, an employee 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
    v. City of Salem, 
    320 F.3d 968
    , 977 (9th Cir. 2003).
    The district court properly determined that the evidence was insufficient for
    a reasonable jury to conclude that plaintiffs’ speech and association activity
    relating to the union’s meet-and-confer policy was a substantial or motivating
    factor in the City’s adverse employment action. Although plaintiffs claim that the
    union intensified its advocacy efforts – made a “hard push” – a few months prior to
    the City’s disciplinary action, the record demonstrates that the union had been
    pursuing a meet-and-confer policy for over ten years. Plaintiffs’ ongoing efforts to
    support the policy were thus not sufficiently proximate in time to give rise to an
    inference of retaliation. As to the City’s alleged opposition to the speech, a single
    email about the meet-and-confer policy written five years earlier by a City official
    not directly involved in the disciplinary action is not evidence from which a
    5
    reasonable jury could conclude that the City opposed the meet-and-confer-related
    speech.
    Finally, plaintiffs presented insufficient evidence to support their allegation
    that the City used its concerns over attempts to exclude non-union members as a
    pretext to discipline plaintiffs for their meet-and-confer-related speech. Both
    plaintiffs had acknowledged the City’s concerns about their statements regarding
    non-union members and acknowledged the relationship between those concerns
    and the City’s disciplinary action. Furthermore, despite plaintiffs’ steady advocacy
    for the meet-and-confer policy for several years, the City did not discipline
    plaintiffs at any time prior to the statements excluding the non-union member, but
    did launch an investigation within two weeks of learning of plaintiffs’ statements
    attempting to exclude a non-union member from the fire relief efforts.
    4. As the district court correctly held, plaintiffs’ state-law retaliation claim
    under A.R.S. § 23-1411(A) fails for the same reason that the First Amendment
    claims fail: plaintiffs failed to present sufficient evidence that their association
    with the union was a substantial or motivating factor in the City’s adverse
    employment action. Although Arizona courts have not specified a standard for
    evaluating claims under A.R.S. § 23-1411(A), courts assessing retaliation claims
    based on similar provisions of Arizona law have adopted the First Amendment
    6
    retaliation test. See Rowberry v. Wells Fargo Bank NA, No. 14-cv-1801, 
    2015 WL 7273136
    , at *5–6 (D. Ariz. Nov. 18, 2015) (adopting First Amendment retaliation
    test for retaliation claims based on A.R.S. § 23-1501).
    AFFIRMED.
    7
    FILED
    Candelaria v City of Tolleson, Case No. 16-16346
    DEC 06 2017
    Rawlinson, Circuit Judge, concurring:
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    I concur in the result.