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Ramirez v. City of Phoenix

United States District Court, D. Arizona

July 3, 2014

RON RAMIREZ Plaintiff,
v.
CITY OF PHOENIX, Defendant.

ORDER AND OPINION [Re: Motions at Docket 50, 72]

JOHN W. SEDWICK, District Judge.

I. MOTIONS PRESENTED

At docket 50, plaintiff Ron Ramirez ("Plaintiff" or "Ramirez") filed his second motion for summary judgment as to his § 1983 claim, alleging a deprivation of his First Amendment rights. Defendant, City of Phoenix ("Defendant" or "the City"), opposes the motion at docket 72. Defendant included in its opposition a separate motion to strike, requesting that the court strike statements in Ramirez's affidavit which directly contradict his sworn deposition testimony, amended complaint, and admissions. The court considers that request a separate motion. Plaintiff's reply to the motion for summary judgment and his response to Defendant's motion to strike is at docket 80. Defendant's reply in relation to its motion to strike is at docket 81. Oral argument was requested but would not be of additional assistance to the court.

II. BACKGROUND

Ramirez is employed by the City. He is on full-time release from the City to work as the president of the Administrative Supervisory Professional and Technical Employees Association ("ASPTEA"), a labor organization for City employees. While on full-time release, Ramirez's salary is paid by the City, and pursuant to an agreement between the City and ASPTEA, he must comply with all City rules, regulations, and policies.[1] Ramirez is also chairman of the Coalition of Phoenix City Unions ("COPCU"), an organization representing all of the City's unions, whose Board consists of the presidents of all of the City employee labor unions and labor associations.[2]

On March 23, 2011, Ramirez was asked to speak to members of the Laborers' International Union of North America ("LIUNA") who were gathering at the state capitol. At the gathering, Ramirez identified himself has chairman of COPCU and explained that the COPCU is the coalition of City employee unions. He stated, "We know that we have one rogue Councilman right now and we've got to get rid of him... [y]ou have to vote; you have to also recall."[3] He also indicated that he was urging all of the City's employee unions to join the gathering. He also stated that the City's management supported the unions' positions but that they could not participate.[4] The City became aware of his remarks when a video was posted on YouTube.

City Administrative Regulation 2.16 ("AR 2.16") requires that City "[e]mployees not engage in activities that are inconsistent, incompatible, in conflict with, or harmful to their duties as City employees." Among the prohibited actions are "use [of] any official City authority or influence for the purpose of interfering with or affecting the results of an election, " "engag[ing] in political activities involving City... municipal elections, including recall elections for Mayor and City Council, " and "use [of] an official City title or designate employment with the City in political... endorsements, or speeches."[5]

Ramirez was issued a written reprimand for violating AR 2.16. He filed suit in federal court, asserting a claim pursuant to 42 U.S.C. § 1983 based on an alleged violation of his First Amendment rights. The City filed a motion to dismiss. It argued that Ramirez's § 1983 claim should be dismissed because his statements were not made in his capacity as a private citizen. The court denied the motion to dismiss the §1983 claim based on the allegations in the complaint. The City also argued the Title VII claim should be dismissed. Ramirez conceded that he did not intend to bring a Title VII claim and the court concluded that, based on Ramirez's admission and the complaint itself, he did not bring such a claim. The City also argued that Ramirez is not entitled to declaratory or injunctive relief or punitive relief, but Ramirez conceded that he was not seeking such relief. The court acknowledged this admission in its order at docket 17. Plaintiff filed a motion for summary judgment, and the court denied it at docket 17, concluding that it could not determine whether Ramirez spoke as a private citizen or public employee given that the scope of his responsibilities as a public employee and the details surrounding his invitation to speak at the LIUNA gathering were unclear based on the record before it. Plaintiff subsequently amended his complaint. The City filed a motion to dismiss the amended complaint, and at docket 47 the court denied the motion.

Plaintiff now files this second motion for summary judgment, asking the court to grant judgment in his favor as to his §1983 claim. He argues that the undisputed facts show that the City deprived him of his First Amendment rights and that the City was acting under color of state law. The City opposes, arguing that summary judgment is not appropriate because there are issues of fact regarding whether Ramirez's speech at the LIUNA event was made as a private citizen and thus protected under the First Amendment. Alternatively, it argues that even if his speech could be considered protected, it has put forth sufficient facts to show that it had justification for treating Ramirez differently from other members of the public. The City also argues that many of the statements in Ramirez's affidavit, upon which he relies to claim that the relevant facts are undisputed, directly contradict his deposition testimony, statements in his complaint, and his admissions. It asks that all contradictory statements be stricken.

III. STANDARD OF REVIEW

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[6] The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."[7] Ultimately, "summary judgment will not lie if the... evidence is such that a reasonable jury could return a verdict for the nonmoving party."[8] However, summary judgment is mandated under Rule 56(c) "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."[9]

The moving party has the burden of showing that there is no genuine dispute as to any material fact.[10] Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.[11] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.[12] All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.[13] However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.[14]

IV. DISCUSSION

A. Ramirez's motion for ...


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