United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendants have filed a motion for summary judgment. Doc. 204. The motion is fully briefed. The Court will grant the motion in part and deny it in part.
Plaintiffs have also filed a motion for partial summary judgment for "failure to preserve and produce ESI." Doc. 208. Defendants have responded and filed a cross-motion for sanctions. Doc. 216. Plaintiffs have also filed a motion to compel disclosure of unredacted documents. Doc. 244. Also pending are a motion to strike (Doc. 236), a motion to amend Plaintiffs' statement of facts in support of their motion for partial summary judgment (Doc. 242), and a motion to amend/correct Plaintiffs' reply to their motion for partial summary judgment (Doc. 243). The Court will deny the motions for sanctions, grant the motion to compel, and deny the remaining motions as moot. The requests for oral argument are denied because the issues have been fully briefed and oral argument will not aid the Court's decision. See Fed.R.Civ.P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
Plaintiffs in this case are JP Vincente and Shawn Vincente, husband and wife. JP Vincente, who will be referred to in this order as "Vincente, " is a Fire Captain and Acting Battalion Chief with the City of Prescott's Fire Department, where he has worked since 1994. Doc. 204 at 2. There are six defendants. Defendant City of Prescott (the "City") is a municipal corporation. Doc. 205 at 2. Defendant Prescott Fire and Police Board of the Public Safety Personnel Retirement System (the "Board") is the entity responsible for administration of the City's Deferred Option Retirement Plan ("DROP"). Id. Defendant Bruce Martinez was the Fire Chief for the City until he retired in May 2012. Id. Defendant Mary Jacobsen is the City's Human Resources Director. Id. at 2-3. Defendant Steve Norwood was the City Manager until January 14, 2011. Id. at 3. Defendant Laurie Hadley was Assistant City Manager between 2007 and April 2011, and interim city manager from January 14, 2011 to April 12, 2011.
In addition to his duties as a Fire Captain and Acting Battalion Chief, Vincente is a member of the United Yavapai Firefighters Local 3066 (the "Union"). Doc. 204 at 2-3. Vincente also owns and operates a business that offers guided hunting trips and another that does landscaping. During the early 2000s, Vincente frequently traded shifts with other firefighters in order to accommodate the demands of his other businesses. In some cases Vincente would pay other firefighters in cash for working his shifts rather than working one of their shifts in exchange. Id. at 3. In 2005, Martinez allegedly told Vincente that he was not to "pay for trades, " and Vincente allegedly agreed. Id. Vincente allegedly continued to engage in the practice. Id. at 3.
In 2010, Vincente was involved in relaying information to Defendant Martinez about a number of personnel complaints involving Deputy Fire Chief Don Devendorf. Id. at 4. Three firefighters made the complaints - Aaron Laipple, Randy Stazenski, and Caron Nyquist-Johnson. Id. Each complaint involved inappropriate comments made by Devendorf to the firefighter in question. Vincente contends that his communication of these complaints to Fire Chief Martinez was as a union representative. Defendants contend that Vincente was required by City policy, as a supervisory employee, to report allegations of harassment. Id. at 4-5.
In December 2010, Martinez learned that Vincente was still paying other firefighters to work his shifts and that, in some instances, he had failed to pay the money promised for the work. Id. at 5. It is unclear how the other Defendants became aware of this information, but Jacobsen, Hadley, and Norwood were all apparently concerned about this conduct. Id. at 5-6. The City hired "outside legal counsel for advice, to immediately change the shift trade policy, to complete a departmental audit with interviews of all personnel, and to evaluate the potential remedy for deficient contributions to the state retirement system and IRS tax consequences." Id. at 6. A number of meetings were held in December 2010 and January 2011 to address the situation. During these meetings, Vincente alleges he was told that his conduct was either illegal or criminal, that Hadley and Martinez were "going after" his job, and that Norwood would attempt to negotiate a retirement option but could not make any guarantees. Doc. 89, ¶¶ 30-36. On or about January 5, 2011, Defendants learned that paying for trades was not illegal. Doc. 214 at 5, ¶ 49. Around that time, Mrs. Vincente contacted Norwood and asked to meet with him. Doc. 205, ¶ 204. During their meeting, which took place on January 7, 2011, Norwood allegedly told Mrs. Vincente that her husband's conduct could be criminal. Id., ¶ 205.
Ultimately, Defendants prepared a disciplinary agreement to present to Vincente on January 14, 2011. Id., ¶ 39; Doc. 204 at 7. The agreement stated that Vincente had violated a previous instruction not to pay others for working his shifts (Doc. 205, ¶ 216), required him to work 19 shifts without compensation, ( id., ¶ 217), "would have resulted in Vincente's resignation by June 20, 2011, and [included] the option for Vincente to enter into the DROP" (Doc. 204 at 7). Vincente did not sign the disciplinary agreement (Doc. 204 at 7), but did enter the DROP program on January 25, 2011 ( id. at 8). Vincente allegedly re-signed his DROP enrollment paperwork on June 22, 2011, and "made no effort to rescind his DROP membership." Id. at 9. Vincente remains actively employed by the City's fire department.
II. Legal Standard.
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. Defendants' Motion for Summary Judgment.
A. First Amendment Claims.
Plaintiffs' third amended complaint pleads Count I as "Free Speech" under the First and Fourteenth Amendments and Count II as "42 USC § 1983." Doc. 89 at 12-14. Defendants seek summary judgment on Count I because "[a] litigant complaining of a violation of a constitutional right does not have a direct cause of action under the [Constitution] but must utilize [§ 1983]." Doc. 204 at 9 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001)). Plaintiffs do not address this argument in their response. The Court agrees with Defendants and will enter summary judgment on Count I, but will construe Count II as asserting a § 1983 claim for retaliation in violation of the First Amendment.
There are five elements to the retaliation claim: (1) whether Vincente's speech addressed an issue of public concern, (2) whether the speech was spoken as a public employee or as a private citizen, (3) whether Defendants took adverse employment action and whether Vincente's speech was a substantial or motivating factor in that action, (4) whether Defendants had an adequate justification for treating Vincente differently than members of the general public, and (5) whether Defendants would have reached the same adverse employment decision even in the absence of the protected conduct. Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir. 2009).
Defendants argue that they are entitled to qualified immunity on this claim. The "doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Clouthier v. Cnty of Contra Costa, 591 F.3d 1232, 1240 (9th Cir. 2010). "In considering a claim of qualified immunity, the court must determine whether the facts that a plaintiff has alleged... make out a violation of a constitutional right, " and "whether the right at issue was clearly established' at the time of the defendant's alleged misconduct." Clouthier, 591 F.3d at 1241 (citing Pearson v. Callahan, 555 U.S. 223, 230 (2009)). The first issue to be addressed in a qualified immunity inquiry is whether the facts, taken in the light most favorable to Plaintiffs, show that Defendants' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If not, the inquiry ends.
Defendants argue that Vincente did not engage in speech on a matter of public concern. Plaintiffs identify two instances in response. First, Plaintiffs identify Vincente's communications with Fire Chief Martinez about the complaints Laipple, Stazenski, and Nyquist-Johnson made regarding Deputy Chief Devendorf. Doc. 213 at 3. Second, Plaintiffs point to an incident in 2004 where Vincente met with Defendant Hadley about a proposed no-confidence vote in Devendorf. Id.  In Desrochers v. City of San Bernardino, 572 F.3d 703 (9th Cir. 2009), the Ninth Circuit explained that plaintiffs bear the burden of showing that their speech addressed an issue of public concern based on "the content, form, and context of a given statement, as revealed by the whole record." Id. at 709 (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)). The Court will consider the "content, form, and context" of the two instances of speech identified by Plaintiffs.
Focusing first on Vincente's communication of the complaints against Devendorf, the Court finds that the content of this speech does not suggest that it addressed a matter of public concern. The Court has not been provided with the precise words Vincente used when speaking with Martinez about the grievances of Laipple, Stazenski, and Nyquist-Johnson, but it is clear from the record that the communications concerned Devendorf's alleged use of clearly inappropriate vulgarity when speaking with these three fire department employees. Desrochers made clear, however, that speech dealing with "individual personnel disputes and grievances' and that would be of no relevance to the public's evaluation of the performance of governmental agencies' is generally not of public concern.'" Id. at 710 (quoting Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)). "To address a matter of public concern, the content of the... speech must involve issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.'" Id. (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1113 (9th Cir. 1983)).
Grievances about vulgarity by a supervisor, although clearly legitimate personnel matters, generally do not implicate public concerns. Desrochers explained that "when working for the government, saying one's boss is a bully does not necessarily a constitutional case make." 572 F.3d at 713. The same is true of saying one's boss is vulgar or insensitive:
The content of the communication must be of broader societal concern. Our focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance. On the facts of this case, we cannot say that the public would be truly interested that two police sergeants believed their supervisor was a "micro-manager, " "autocratic" and "controlling, " or even that he dressed them down in front of their colleagues and neighboring police forces.
Id. (citations, quotation marks, and brackets omitted).
Nor do the form and context of Vincente's statements to Martinez make them matters of public concern. Plaintiffs acknowledge that "individual personnel disputes typically do not constitute speech on a matter of public concern, " but argue that "collective personnel grievances, raised by unions, may be matters of public concern." Doc. 213 at 2. Plaintiffs cite Lambert v. Richard, 59 F.3d 134, 136 (9th Cir. 1995), for the proposition that speech about collective personnel grievances addresses a matter of public concern, but the facts of Lambert are quite distinguishable from this case. The plaintiff in Lambert spoke on behalf of a union - the Santa Ana City Employees Association - at a meeting of the Santa Ana City Council. Id. at 135. Her speech criticized the management practices of Santa Ana's Library Director. Id. The court concluded that the speech addressed a matter of public concern because "Lambert spoke as a union representative, not as an individual, " and "described departmental problems, not private grievances." Id. at 137. The court emphasized that "operation of a public library is among the most visible of the functions performed by city governments, " and that "[t]he fact that Lambert spoke at a televised city council meeting underlines the public nature of the... controversy." Id. at 136-37.
Unlike the speech in Lambert, there is no evidence that Vincente's speech was made in a public forum or otherwise shared with the citizenry at large. Nor is there evidence that Vincente spoke on behalf of the Union's entire membership. Although Plaintiffs argue that it was "common sentiment" that Devendorf had trouble interacting appropriately with co-workers, they present no evidence that this trouble amounted to a public controversy akin to the library mismanagement in Lambert. And the fact that these personnel issues arose in an agency affecting public safety does not render them matters of public concern for purposes of a First Amendment retaliation claim. Desrochers held that personnel issues in a police department were not matters of public concern. Desrochers explained that "the reality that poor interpersonal relationships amongst coworkers might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern." Id. at 711.
Plaintiffs attempt to suggest a broader purpose in Vincente's communications to Martinez, arguing that he "stood up for the firefighters on the floor and took their concerns to Fire management and even City administration to inform them of the unacceptable work environment Devendorf's behavior was creating." Doc. 213 at 3. But the only evidence Plaintiffs cite in support of this assertion are general statements in the deposition of Daniel Bates (Docs. 213 at 3, 214 at 2), and the only specific instances cited by Bates are the vulgarity complaints by Laipple, Stazenski, and Nyquist-Johnson (Doc. 214-9 at 6 (depo. page 66)).
As already noted, Plaintiffs also contend that Vincente's 2004 advocacy of a no-confidence vote in Devendorf was speech on a matter of public concern. Assuming, without deciding, that Plaintiffs are correct, Plaintiffs have provided no evidence from which a reasonable jury could find that Vincente's 2004 comments to Defendant Hadley were a substantial motivating factor in any adverse employment action. The only evidence Plaintiffs present in this regard is an alleged statement by Defendant Norwood that Vincente's union activity would have to stop. It is unclear from Plaintiffs' evidence, however, when this statement was made. See Doc. 214-11 at 20. Plaintiffs allege that "there were several instances of express opposition to [Vincente]'s protected speech" (Doc. 213 at 7), but Plaintiffs present no such evidence. Plaintiffs do present evidence that Defendant Hadley said in 2004 that she was "going to be a pain" if Vincente and the Union tried to proceed with a no-confidence vote against Devendorf (Doc. 214-10 at 11-12), but Plaintiffs present no evidence showing a connection between Hadley's statement in 2004 and any employment actions taken in December 2010 or January 2011. No reasonable jury could conclude, based on this evidence, that Vincente's 2004 statements about the no-confidence vote were a substantial motivating factor in employment actions taken six or seven years later.
Considering the content, form, and context of Vincente's communication of grievances to Martinez, the Court concludes that Plaintiffs have not presented evidence from which a reasonable jury could find that the speech addressed matters of public concern. The Court also concludes that Plaintiffs have failed to present evidence from which a reasonable jury could find First Amendment retaliation based the 2004 no-confidence vote. Because Plaintiffs have not presented evidence from which a jury could find a violation of a constitutional right, they cannot sustain their claim of a § 1983 violation or defeat qualified immunity. The Court therefore will grant summary judgment in favor of Defendants on Count II of Plaintiffs' complaint. See Celotex, 477 U.S. at 323 (summary judgment is appropriate 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.").
B. State Law Claims.
1. Notice of Claim.
Defendants argue that Plaintiffs cannot show they properly served Defendants with a notice of claim as required by Arizona law. Doc. 204. Plaintiffs argue that Defendants have waived the defense. Doc. 213 at 10.
Under Arizona law, persons with "claims against a public entity or a public employee" must "file claims with the person or persons authorized to accept service for the public entity or public employee... within one hundred eighty days after the cause of action accrues." A.R.S. § 12-821.01. "[T]he person must give notice of the claim to both the employee individually and to his employer.'" Harris v. Cochise Health Sys., 160 P.3d 223, 230 ...