Coszalter v. City of Salem

Citation320 F.3d 968
Decision Date18 February 2003
Docket NumberNo. 00-36097.,00-36097.
PartiesGuido COSZALTER; Gary Jones; Steve Johnson, Plaintiffs-Appellants, v. CITY OF SALEM, a municipal corporation; Sam Kidd, individually and in his capacity as supervisory employee for the City of Salem; Randy Pecor, individually and in his capacity as supervisory employee for the City of Salem; Mark Scheer, individually and in his capacity as supervisor for the City of Salem; Steve Coots, individually and in his capacity as an employee of the City of Salem; Rollie Baxter, individually and in his capacity as an employee of the City of Salem, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David C. Force, Eugene, OR, for the plaintiffs-appellants.

Joseph D. Robertson, Salem, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-98-06039-TMC.

Before: FERGUSON, W. FLETCHER, Circuit Judges, and KING,* District Judge.

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs, current and former employees of the City of Salem, Oregon, sued under 42 U.S.C. § 1983, alleging that defendants violated their First Amendment rights by retaliating against them for publicly disclosing health and safety hazards. The magistrate judge, hearing the case with the permission of the parties, granted defendants' motion for summary judgment after finding that most of the alleged retaliatory acts were not adverse employment actions because they did not constitute "loss[es] of ... valuable benefit[s] or privilege[s]," and that retaliation was not a substantial or motivating factor behind those few actions that were adverse employment actions.

We reverse and remand. In a First Amendment retaliation case, an adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech. Further, when adverse employment actions are taken between three and eight months after the plaintiffs' protected speech, a reasonable jury could infer that retaliation is a substantial or motivating factor.

I. Background

Plaintiff Guido Coszalter is a current employee, and plaintiffs Steve Johnson and Gary Jones are former employees, of the City of Salem Public Works Department. During most of the events in questions, all three plaintiffs worked as members of the "main line crew" of the Sewer Division of the Public Works Department. Plaintiffs contend that, beginning in mid-1996, defendants retaliated against them for publicly disclosing health and safety hazards encountered in the course of their employment.

The facts in this case are disputed. A summary of events, according to plaintiffs' evidence, follows in chronological order:

1. On approximately July 8, 1996, plaintiff Coszalter contacted the news media to disclose the existence of an ongoing sewage discharge on the surface of a city street in a residential neighborhood.

2. After work on the discharge was completed on July 11, 1996, defendants punitively reassigned plaintiffs Jones and Coszalter to new duties and admonished their replacements that if Coszalter was observed in the area of their work, he was not to be allowed on any sewer repair site.

3. Subsequent to the reassignments in #2, plaintiff Johnson complained of unsafe working conditions and violations of safety codes to the State of Oregon Occupational Safety and Health Administration ("OR-OSHA"), and Coszalter made complaints to the Risk Manager of the City of Salem.

4. Defendants thereupon initiated a disciplinary investigation of Coszalter, alleging that he was responsible for the safety violations that he had reported to management. After completion of the investigation, plaintiffs were reassigned to their previous crew organization and duties.

5. On or about August 21, 1996, plaintiffs notified the Oregon Department of Environmental Quality ("DEQ") of raw sewage discharge from a sewer main at the Battlecreek pump station. The discharge allowed the sewage to escape into the environment, including a protected wetland.

6. Coszalter was wrongly blamed for a cost overrun resulting from the additional work required to clean up the discharge in #5.

7. In September 1996, Coszalter reported to defendants the spillage of raw sewage from a city pump trunk; the spillage was diverted into a municipal storm sewer. Coszalter was not involved in the spill or diversion.

8. Coszalter was issued a reprimand and accused of causing the events in #7. This reprimand was revoked after negotiations.

9. In December 1996, Coszalter reported to the Risk Manager that a blocked sewer main at Laurel Avenue was causing a raw sewage discharge in the basement of a residence.

10. On June 4, 1997, plaintiffs performed sewer repair work underneath Rose Street. On June 5, 1997, defendants notified plaintiffs that there was chemical contamination present in the soil and groundwater under Rose Street.

11. Sometime after June 4, 1997, plaintiffs notified OR-OSHA of their potentially harmful exposure to contaminants resulting from the work assignment under Rose Street.

12. On or about July 11, 1997, plaintiffs contacted the Salem Statesman Journal to notify it of the Rose Street contaminants and of plaintiffs' exposure to them.

13. On December 8, 1997, OR-OSHA issued a citation to the City of Salem, charging it with three serious violations of mandatory safety regulations during the Rose Street excavations.

14. On or about December 10, 1997, Coszalter notified the Statesman Journal that OR-OSHA had cited the City of Salem for exposing the workers to unsafe conditions. Coszalter was quoted in a Statesman Journal article as stating that he did not feel the fine was large enough. The newspaper then interviewed the Public Works Director of the City of Salem about the citations.

15. After December 10, 1997, defendants subjected Coszalter and Jones to a criminal investigation and to repeated and ongoing verbal and other harassment and humiliation.

16. Employees of defendants, encouraged by management and supervisory-level personnel, circulated and presented a petition to management requesting that plaintiffs be ordered to stop complaining and disclosing violations of the law.

17. On March 3, 1998, defendants accused Johnson of physically assaulting one of the organizers of the petition campaign, subsequently suspended Johnson without pay for ten days, and commenced employment termination proceedings. Johnson denied physically assaulting anyone and filed a grievance contesting the suspension.

18. In March 1998, defendants accused Jones and Coszalter of "disrupting" a safety training class, issued Jones a reprimand, and reduced Coszalter's pay by two steps. (Coszalter's pay reduction was later reduced to a written reprimand.)

19. In April 1998, Jones discovered that the steering wheel on his backhoe had been vandalized, and reported that fact to management.

20. Defendants told Jones he would receive another reprimand because he did not report the vandalism immediately, as required by policy.

21. On May 5, 1998, defendants ordered Johnson and Coszalter to perform work moving manhole covers without mechanical aid. Johnson suffered a permanent injury to his right shoulder and has been unable to perform his prior work since that time.

22. On May 5, 1998, the City of Salem terminated Coszalter's employment based on a charge that he had misused a cellular phone. Coszalter filed a grievance against his termination.

23. On May 11, 1998, Jones resigned from his employment.

24. On May 25, 1999, an arbitrator overruled the city's decision to terminate Coszalter, finding that he did not have sufficient notice of the city's policy on cellular phone usage. The arbitrator ordered Coszalter reinstated with full back pay.

25. On June 3, 1999, an arbitrator upheld Johnson's grievance and set aside the ten-day suspension in #17, ordering payment of lost wages. At that time, Johnson was medically unable to return to work and resigned.

26. In June 1999, after being reinstated, Coszalter asked for his ten-year service award. The City of Salem gave it to him but skipped the customary public recognition.

27. On or about October 1, 1999, Coszalter notified OR-OSHA of violations by the City of state and federal safety codes and of violations of an earlier stipulated agreement with OR-OSHA.

28. On January 5, 2000, OR-OSHA cited the City of Salem for serious violations of the applicable safety regulations.

29. On January 20, 2000, the City of Salem commenced a "special appraisal," or a ninety-day special review, of Coszalter's "productivity" and "performance."

30. On February 7, 2000, the City of Salem commenced disciplinary action against Coszalter regarding a January 12, 2002, incident in which Coszalter was not involved.

31. On April 20, 2000, the city issued another "special appraisal" of Coszalter's work, commencing a second consecutive ninety-day special review of his "productivity" and "performance."

Relying on our decision in Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998), the magistrate judge held, as to most of defendants' acts, that plaintiffs had not shown the loss of a valuable benefit or privilege and therefore had not shown an adverse employment action. Under his interpretation of Nunez, the magistrate judge found the following acts not to be adverse employment actions: temporary change of duties (#2); disciplinary investigation (#4); unwarranted blame (#6); reprimand containing false accusation (#8); criminal investigation (#15); repeated and ongoing verbal harassment and humiliation (# 15); employee-circulated petition (# 16); temporary and (later) remedied suspension (# 17); threat of disciplinary action (# 20); unpleasant work assignment (# 21); withholding of customary public recognition (# 26); unwarranted disciplinary action (# 30); and special...

To continue reading

Request your trial
564 cases
  • Bowen v. M. Caratan, Inc.
    • United States
    • U.S. District Court — Eastern District of California
    • November 2, 2015
    ...evidence may be used to show that the protected activity was a substantial factor in the adverse action. See Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir.2003) (finding that plaintiff may satisfy the "substantial factor" standard in numerous ways, either by timing or through state......
  • Erhart v. Bofi Holding, Inc.
    • United States
    • U.S. District Court — Southern District of California
    • September 11, 2017
    ...and...cautioned against analyzing temporal proximity ‘without regard to its factual setting.’ " Id. (quoting Coszalter v. City of Salem , 320 F.3d 968, 977–78 (9th Cir. 2003) ).For example, in Van Asdale , after the two plaintiffs disclosed believed wrongdoing, the employer terminated one o......
  • Armstrong v. Wright-Pearson
    • United States
    • U.S. District Court — Eastern District of California
    • November 30, 2012
    ...to the public's evaluation of the performance of governmental agencies' is generally not of 'public concern.'" Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003) (quoting McKinley, 705 F.2d at 1114). Defendants note that Ms. Armstrong's alleged complaints "arguably" relate to a ma......
  • Addison v. City of Baker City
    • United States
    • U.S. District Court — District of Oregon
    • June 29, 2017
    ...in the absence of a loss of tangible rights or government benefits." Id. at 989 n.5 (emphasis in original) (citing Coszalter v. City of Salem , 320 F.3d 968 (9th Cir. 2003) and White v. Lee , 227 F.3d 1214 (9th Cir. 2000) ).In Coszalter v. City of Salem , the Ninth Circuit held that there i......
  • Request a trial to view additional results
2 books & journal articles
  • Employment
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...be inferred.”) Eight months is not too long a time to support an inference of discrimination. Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 977. See also Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d 1371, 1376-76 (three months sufficient); Miller v. Fairchild Industries (9th Cir. ......
  • Deposing & examining the plaintiff
    • United States
    • James Publishing Practical Law Books Deposing & Examining Employment Witnesses
    • March 31, 2022
    ...the plaintiff employee’s speech was a “substantial or motivating” factor for the adverse employment action. Coszalter v. City of Salem , 320 F.3d 968, 973 (9th Cir.2003). “A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restriction......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT