United States District Court, D. Arizona
ORDER
Honorable Deborah M. Fine, United States Magistrate Judge.
Plaintiffs,
two former employees of the Town of Florence
(“Town”), have sued the Town and several Town
employees following their terminations. (Docs. 37, 170, 217)
Discovery has concluded and Defendants have moved for summary
judgment on all counts. (Doc. 245) Based on the briefing and
oral argument, the Court will deny in part and grant in part
Defendants' motion.
Legal
Standard for Summary Judgment
Defendants,
as the party moving for summary judgment, must demonstrate
that “there is no genuine dispute as to any material
fact” and so they are “entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). If Defendants meet
their burden of production and “demonstrate the absence
of a genuine issue of material fact, ” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), then the
burden of production shifts to Plaintiffs to “designate
specific facts showing that there is a genuine issue for
trial.” Id. at 324. “The underlying
substantive law governing the claims determines whether or
not [a disputed fact] is material.” Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.
2000). The Court must “constru[e] the facts in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor.”
Earl v. Nielsen Media Research, Inc., 658 F.3d 1108,
1112 (9th Cir. 2011).
Undisputed
Facts about Relevant Individuals
Plaintiffs
Hunter and Varnrobinson were law enforcement officers in the
Florence Police Department (“FPD”) where they
worked as partners. Both were Detectives. Varnrobinson is
African-American; Hunter is not. (Doc. 255 at 112, ¶ 2)
Hunter and Varnrobinson were terminated on December 14, 2012.
(Doc. 255 at 52, ¶ 172; 53 at ¶ 176; 122 at ¶
62) After a hearing, Hunter was reinstated but Varnrobinson
was not. (Doc. 255 at 54-55, ¶ 182-83) Hunter returned
to the FPD in a patrol position and was subsequently
terminated in 2017. (Doc. 255 at 58, ¶ 197; Doc. 255 at
88, ¶ 308)
Robert
Ingulli was Police Chief until July 13, 2012. (Doc. 255 at 2,
¶¶ 182-83) He was succeeded by Daniel Hughes.
Hughes was hired on a temporary basis and his appointment
became permanent in November 2012. (Doc. 255 at 24, ¶
87; Doc. 255 at 121, ¶ 60) Defendant Terry Tryon was the
Lieutenant during the relevant time period. (Doc. 255 at 2,
¶ 3) There was a perception that the Florence Police
Department was divided between those loyal to Chief Ingulli
and those loyal to Lieutenant Tryon. (Doc. 255 at 2, ¶
5)
Tom
Rankin was Police Chief in Florence from 1980 until he was
fired in 1994. (Doc. 256-1 at 7-8, 12) He became the acting
Mayor of Florence in June 2012. (Doc. 255 at 104, ¶ 372)
As
relevant here, Himanshu Patel was the Florence Town Manager
until December 14, 2012. (Doc. 255 at 2, ¶ 4)
Subsequently, Charles Montoya was Town Manager from January
2013 until July 13, 2015. (Doc. 255 at 112, ¶ 4)
Finally, Brent Billingsley was Town Manager from December
2015 through Hunter's termination in 2017. (Doc. 255 at
112, ¶ 5) . . .
Count
I: Retaliation for Protected Speech
In
January 2010, Hunter submitted a written complaint about
Tryon to Ingulli (“2010 Letter”).[1] (Doc. 255 at
15-16, ¶ 52; Doc. 247-2 at 124-126) In January 2012,
Varnrobinson submitted a written complaint about Tryon to the
Town's Human Resources Director and Ingulli (“2012
Letter”). (Doc. 255 at 17, ¶ 59; Doc. 247-6 at
110-13) Hunter assisted with preparing the 2012 Letter. (Doc.
255 at 113, ¶ 6) The 2010 and 2012 Letters were not
formal police reports but rather were communicating patterns
of harassment, corruption, discrimination, and
unaccountability in the management of the FPD largely due to
Lieutenant Tryon. Among other things, the 2012 Letter alleged
that Tryon had tampered with evidence. Plaintiffs had
reported and documented this tampering allegation in a formal
police report in 2007 and 2008. (Doc 254 at 5)
After
the 2012 Letter, Patel asked the Arizona Department of Public
Safety (“DPS”) to investigate the Letter's
allegations about Tryon. DPS conducted the investigation
between February and August 2012. (Doc. 246 at ¶¶
59-65; Doc. 258-5)
Plaintiffs
allege that, with the 2010 Letter and the 2012 Letter, they
“lawfully exercised their First Amendment rights when
they reported matters of public concern to” several
people outside of their chain of command, that they did so as
private citizens not public employees, and that they
experienced retaliation because of their speech. (Doc. 37 at
¶¶ 255-282) Defendants argue that Plaintiffs'
speech was not protected because it was required by their job
duties and that “no reasonable fact finder could
conclude that Plaintiffs were terminated in 2012 for anything
other than legitimate reasons.” (Doc. 245 at 2-4, 7)
Plaintiffs dispute this. (Doc. 254 at 5-11) Defendants also
argue that Defendants Rankin, Tryon, and Montoya had
insufficient knowledge about Plaintiffs' speech and
insufficient involvement in employment decisions. (Doc. 245
at 8-9) Plaintiffs dispute this. (Doc. 275-1 at 3-9)
To
establish a prima facie case of retaliation under
the First Amendment, Plaintiffs' burden of proof
requires:
a sequential five-step series of questions: (1) whether the
plaintiff spoke on a matter of public concern; (2) whether
the plaintiff spoke as a private citizen or public employee;
(3) whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse employment
action; (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.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th
Cir. 2009).
The
first step, whether Plaintiffs spoke on a question of public
concern or about a matter of personal interest, is a question
of law which the Court evaluates “based on the content,
form, and context of a given statement, as revealed by the
whole record.” Desrochers v. City of San
Bernardino, 572 F.3d 703, 709 (9th Cir. 2009)
(internal quotation omitted). See also Eng, 552 F.3d
at 1070. Plaintiffs argue that the 2010 Letter and 2012
Letter touched on matters of public concern because the
Letter alleged racial discrimination and criminal conduct.
(Doc. 254 at 3-4) The Court agrees. Although “passing
references to public safety[, ] incidental to the message
conveyed, ” Robinson v. York, 566 F.3d 817,
823 (9th Cir. 2009) (internal quotation marks and
citation omitted), do not support a finding of public
concern, “reporting police abuse. . . is
quintessentially a matter of public concern.”
Dahlia v. Rodriguez, 735 F.3d 1060, 1067
(9th Cir. 2013). Here, the allegations of
misconduct were sufficient to prompt a months-long outside
investigation. The Court concludes that, viewed in a light
most favorable to Plaintiffs, the information in the 2010 and
2012 Letters constituted a matter of public concern.
Second,
Plaintiffs must show that the speech occurred in their
capacity as a private citizen not a public employee.
Eng, 552 F.3d at 1071. This is a “practical,
fact-specific inquiry.” Dalhia, 735 F.3d at
1070-71. “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
quotations omitted). Here, this genuine issue is a disputed
fact. (Docs. 245 at 3, 254 at 4-5, 276 at 3-7) Both the 2010
and 2012 Letters were sent outside Plaintiffs' chain of
command, not to Plaintiffs' direct supervisor, and Ninth
Circuit precedent indicates that this weighs in favor of a
finding that the speech was conducted as a private citizen.
Hagen v. City of Eugene, 736 F.3d 1251
(9thCir. 2013). Moreover, the 2010 and 2012
Letters contained both private, employment concerns along
with public, corruption concerns which further underscores
the need for a jury to determine this issue. The letters were
not routine reports under normal departmental procedures.
Third,
Plaintiffs need to show that their speech “was a
substantial or motivating factor in the adverse
action.” Eng, 552 F.3d at 1071. This, too, is
a fact question. Id. Drawing all reasonable
inferences in Plaintiffs' favor, the Court concludes that
Plaintiffs have presented a cogent story about the deeply
intertwined relationship between their speech, their 2012
terminations, and their conspiracy, retaliation, and
discrimination claims. (Doc. 245 at 3; Doc. 254 at 5-9; Doc.
276 at 3-7) There are genuine issues of material fact that
mean this matter must proceed to a jury.
Once
Plaintiffs survive the first three steps, the burden shifts
to Defendants for steps four or five. Eng, 552 F.3d
at 1071-72. At step four, the governmental agency must show
whether it “had an adequate justification for treating
the employee differently from any other member of the general
public.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). Although step four “is ultimately a legal
question, like the private citizen inquiry, its resolution
often entails underlying factual disputes.”
Eng, 552 F.3d at 1071. Alternatively, the government
can show at step five “that it would have reached the
same [adverse employment] decision even in the absence of the
[employee's] protected conduct.” Eng, 552
F.3d at 1072. This “is purely a question of
fact.” Id. Defendants do not expand on each of
these individual steps but instead argue that “no
reasonable fact finder could conclude that Plaintiffs were
terminated in 2012 for anything other than legitimate
reasons.” (Doc. 245 at 7) Plaintiffs responded with a
cogent story that includes illegitimate reasons. (Doc. 275-1
at 13-18) The jury will have to determine which story is
credible.
Qualified
Immunity: Town. It is undisputed that, on his last day
as Town Manager, Patel terminated Plaintiffs. (Doc. 255 at
¶ 62) As Defendants acknowledge, the governing case law
permits Plaintiffs to establish Town liability by showing
“that the individual who committed the constitutional
tort was an official with ‘final policy-making
authority' and that the challenged action itself thus
constituted an act of official governmental policy.”
Gillette v. Delmore, 979 F.2d 1342, 1346
(9th Cir. 1992) (citations omitted). Defendants
argue the Town of Florence cannot be found liable, and so
they are entitled to summary judgment, because Plaintiffs
cannot show that the Town Manager, Defendant Patel,
“had the final authority to implement significant
employment-related policies.” (Doc. 245 at 16)
This
argument misstates the governing law:
“When determining whether an individual has final
policymaking authority, we ask whether he or she has
authority ‘in a particular area, or on a particular
issue.' McMillian v. Monroe County, 520
U.S. 781, 785 (1997) (emphasis added). For a person to be a
final policymaker, he or she must be in a position of
authority such that a final decision by that person may
appropriately be attributed to the [municipality].”
Lytle v. Carl, 382 F.3d 978, 983 (9th
Cir. 2004). In other words, the guiding question is who had
final policymaking authority in the specific area at issue
here, namely employee discipline. Barone v. City of
Springfield, Oregon, 2018 WL 4211169, at *12
(9th Cir. Sept. 5, 2018) (citing Jett v.
Dallas Independent School Dist., 491 U.S. 701, 738
(1989)).
The
2007 version of the Town's Personnel Policies and
Procedures manual stated that the “Town Manager has
authority to take disciplinary action against any classified
or unclassified employee. The Town Manager may delegate this
authority to any management employee for subordinate
employees.” (Doc. 258-8 at 5) A subsequent version
reiterated that the “Town Manager is the final
authority on all matters relating to this Policy.”
(Doc. 258-7 at 4) Because the governing ...