Hunter v. Town of Florence

          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 (9^th 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 (9^th 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 (9^th 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 (9^th 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 (9^th 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 (9^th 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 (9^thCir. 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 (9^th 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 (9^th 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 (9^th 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 ...