Robinson v. York

• Citation: 566 F.3d 817
• Decision Date: 27 April 2009
• Docket Number: No. 07-56312.,07-56312.
• Parties: Richard ROBINSON, Plaintiff-Appellee, v. Margaret YORK; William Nash; Victor Turner, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

566 F.3d 817

Richard ROBINSON, Plaintiff-Appellee, v. Margaret YORK; William Nash; Victor Turner, Defendants-Appellants.

No. 07-56312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 20, 2008.

Filed April 27, 2009.

Jin Suk Choi (presented arguments and authored briefs), Franscell, Strickland, Roberts & Lawrence, Glendale, CA, for the defendants-appellants.

Sanjay Bansal (presented arguments) and Michael A. McGill (authored brief), Lackie & Dammeier, Upland, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. CV-06-02409-GAF.

Before: RICHARD D. CUDAHY,^* HARRY PREGERSON, and MICHAEL DALY HAWKINS, Circuit Judges.

ORDER

Appellee's request for publication is GRANTED. The Memorandum disposition, filed January 8, 2009, is withdrawn. A published Opinion will be filed concurrently with this Order.

OPINION

HAWKINS, Circuit Judge:

Plaintiff Richard Robinson ("Robinson"), a sergeant with the Los Angeles County Office of Public Safety ("OPS"), filed a civil rights complaint under 42 U.S.C. § 1983 against the County of Los Angeles ("Los Angeles") and several OPS officers ("Defendants") alleging that he was denied promotion in violation of his First and Fourteenth Amendment rights because he reported misconduct within his department. Defendants appeal from the denial of qualified immunity. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Robinson alleges that he was not promoted because he spoke out or filed reports about misconduct in his department between 2002 and 2006. In addition to testifying in a class action lawsuit alleging discrimination by OPS, Robinson also filed misconduct reports pertaining to various problematic behavior, some of which he observed while off duty. The reports described (1) a fellow officer who allegedly worked for an outside employer while on the clock, (2) officers who appeared to be drinking alcohol during work hours, (3) OPS officers who wore distinctive tattoos possibly indicative of anti-Semitic attitudes, (4) cases of potential battery or excessive force, and (5) a "Parking for Irish Only" sign allegedly placed by OPS officers and directed at a fellow officer. After failing to receive what he considered an adequate response from OPS, Robinson took several steps following-up on these reports, including emailing internal affairs and discussing the details of the complaints with superior officers.

Robinson alleges that he participated in several conversations in which his superior officers suggested he stop filing misconduct reports. In one such conversation, a supervising officer told him that "if [Robinson] didn't bring so many issues forward ... maybe that would help in terms of getting promoted to lieutenant."

Robinson took an examination for promotion to lieutenant in 2003. Despite placing in the highest band of candidates and receiving favorable work reviews, Robinson was not promoted before the eligibility list expired in 2006.

After failing to obtain a promotion, Robinson filed this action alleging that he had been denied promotion in retaliation for exercising his First Amendment rights. Defendants moved for summary judgment, arguing that Robinson's reports were not protected speech because they were made as part of his professional duties or because he failed to present the reports through the chain of command as required by written department policy. The district court denied the motion, finding genuine issues of material fact on the scope of Robinson's job duties and holding that a violation of a written chain of command policy was not dispositive, but merely one of the factors to be considered as part of the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 571, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The named Defendants timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We review de novo a district court's denial of summary judgment based upon a claim of qualified immunity. Moran v. Washington, 147 F.3d 839, 844 (9th Cir.1998). Although a district court's denial of qualified immunity is subject to immediate appeal as a collateral order, our appellate jurisdiction is limited to questions of law. Id. at 843 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 & n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) ("A public-official defendant may appeal the `purely legal' issue `whether the facts alleged ... support a claim of [violation of] clearly established law.'"). "Where disputed facts exist, we assume that the version of the material facts asserted by [the] Plaintiff[ ], as the non-moving party, is correct." KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir.2008). Our review is therefore limited to whether the Defendants would be entitled to qualified immunity as a matter of law assuming all factual disputes were resolved in Robinson's favor.

III. DISCUSSION

Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (courts may decide which of the two prongs should be addressed first in light of the particular circumstances).

In evaluating a First Amendment retaliation claim, we address "a sequential five-step series of questions." Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). First, the plaintiff bears the burden of showing: "(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; [and] (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action."¹ Id. Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: "(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." Id. at 1070-73.

Public Concern

To warrant First Amendment protection, an employee's speech must address "a matter of legitimate public concern." Pickering, 391 U.S. at 571, 88 S.Ct. 1731. The public concern inquiry is purely a question of law, which we review de novo. Berry v. Dep't of Soc. Servs., 447 F.3d 642, 648 (9th Cir.2006).

As a matter of law, "the competency of the police force is surely a matter of great public concern." McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983). Only speech that deals 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.

Robinson alleges Defendants retaliated against him for, among other things, testifying in a class action lawsuit that the County had engaged in systematic discrimination and harassment against OPS officers, reporting numerous instances of possible corruption, discrimination, or misconduct by fellow OPS officers, and following up on those complaints. With the exception of the three incidents identified by the district court as individual personnel disputes, each of these is clearly a "matter of public concern." See Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004) ("Unlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern."); Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir.1995) (citing Roth v. Veteran's Admin., 856 F.2d 1401, 1405 (9th Cir.1988)) (The "misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern."); see also Connick v. Myers, 461 U.S. 138, 148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (speech merits stronger protection when employee seeks "to bring to light actual or potential wrongdoing or breach of public trust").

Defendants concede that some of Robinson's "internal reports of certain alleged misconduct involved matters of public concern," but contend that others did not. They specifically argue that Robinson's follow-up communications pressing his reports of misconduct are not "matters of public concern," citing Douglas v. Lexington-Fayette Urban County Gov't, 2007 WL 3355481 at *6, 2007 U.S. Dist. LEXIS 82818, at *18 (E.D.Ky. Nov. 7, 2007), which held that plaintiffs' complaints are not matters of public concern where they are "about the job performance of their coworkers" and "the intent of the plaintiffs[is] not to protect public safety, but rather to complain about the management's response to the situation."²

Robinson's misconduct reports, unlike the plaintiffs' speech in Douglas, did not merely contain "passing references to public safety [that] were `incidental to the message conveyed,'" id., but rather related to the danger the misconduct posed and the need to respond to it. Whether OPS treats complaints of misconduct seriously or fails to followup is also a matter of "relevance to the public's evaluation of the performance of governmental agencies" and consequently independently a matter of public concern. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). Robinson's email to the office in charge of internal affairs discussing the possibility of an interview about his prior complaints, and his conversations with superior officers reviewing the details of those complaints, clearly addressed at least two matters of public concern: the misconduct itself and the distinct question of...