Desrochers v. City of San Bernardino

• Citation: 572 F.3d 703
• Decision Date: 13 July 2009
• Docket Number: No. 07-56773.,07-56773.
• Parties: Michael DESROCHERS; Steve Lowes, Plaintiffs-Appellants, v. CITY OF SAN BERNARDINO; Michael Billdt; Frank Mankin, individually and as Assistant Chief of Police for the San Bernardino Police Department; Brian Boom, individually and as a Lieutenant for the San Bernardino Police Department, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

572 F.3d 703

Michael DESROCHERS; Steve Lowes, Plaintiffs-Appellants, v. CITY OF SAN BERNARDINO; Michael Billdt; Frank Mankin, individually and as Assistant Chief of Police for the San Bernardino Police Department; Brian Boom, individually and as a Lieutenant for the San Bernardino Police Department, Defendants-Appellees.

No. 07-56773.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2009.

Filed July 13, 2009.

Michael A. McGill, Lackie & Dammeier APC, Upland, CA, argued the cause for

the plaintiffs-appellants and filed the briefs.

James A. Odlum, Mundell, Odlum & Haws, LLP, San Bernardino, CA, argued the cause for the defendants-appellees and was on the brief. James Penman, City Attorney's Office, San Bernardino, CA, was also on the brief.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, Magistrate Judge, Presiding. D.C. No. CV-06-01408-VAP.

Before: DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge O'Scannlain; Dissent by Judge Wardlaw

O'SCANNLAIN, Circuit Judge:

We must decide whether police officers' complaints about their supervisors' conduct may give rise to a constitutional violation.

I

A

Michael Desrochers and Steve Lowes have been members of the San Bernardino Police Department ("SBPD") for over twenty years. At the time the events at issue in this case occurred, Desrochers was the sergeant in charge of the SBPD Homicide Unit, while Lowes commanded the SBPD Multiple Enforcement Team (the "Gang Unit").

On June 23, 2006, Desrochers was transferred from the Homicide Unit to the Robbery Unit, an action he viewed as a demotion. Meanwhile, Lowes was the subject of an internal affairs investigation pertaining to an April 27, 2006, arrest. At the conclusion of the investigation, Lowes received a two-week suspension. The parties hotly contest the reasons for these employment actions. The City argues Desrochers was transferred for botching a murder investigation and Lowes was suspended for disobeying orders and endangering a suspect in custody. Desrochers and Lowes claim that both the transfer and the suspension amounted to retaliation for engaging in constitutionally protected speech, as detailed below.

On April 19, 2006, Desrochers and Lowes, along with two other SBPD sergeants (Steve Filson and William Hanley), filed an informal grievance against their supervisor, Lieutenant Mitchal Kimball, who headed the Specialized Enforcement Bureau ("SEB").¹ There is no transcript of the meeting at which they presented their concerns. According to Captain Frank Mankin, who adjudicated the grievance, the complainants alleged that "there was an ongoing and continuing issue relative to a difference of personalities between the four sergeants" and Lieutenant Kimball. Mankin continued: "It was the impression of the four sergeants that the interaction between themselves and Lieutenant Kimball had risen to a level so as to impact the operational efficiency and effectiveness of the units over which Lieutenant Kimball had managerial oversight." The sergeants requested that the department 1) remove Kimball from command of the SEB; 2) formally investigate the charges contained in their grievance; 3) place Kimball on a "[w]ork performance contract"; 4) order Kimball to attend "[i]nterpersonal relations training"; and 5) monitor Kimball's conduct in the future.

After learning of the informal grievance, Kimball immediately requested a transfer from the SEB. His transfer request was granted, and Desrochers and Lowes both admit that they had little to no contact with Kimball after the transfer. Lieutenant Brian Boom replaced Kimball.

Meanwhile, Filson and Hanley reached an agreement with the Chief of Police, Michael Billdt, which resolved their concerns. Desrochers and Lowes' grievance remained outstanding.

Believing that the SBPD had not taken adequate steps to resolve their concerns, Desrochers and Lowes filed a formal grievance against Kimball as well as Billdt and Mankin. The sergeants alleged that Kimball had created a "hostile work environment by his repeated violations" of various internal SBPD policies. The grievance also accused Billdt and Mankin of perpetuating this environment by "fail[ing] to take appropriate action." Desrochers and Lowes each attached declarations detailing their concerns.

In his declaration, Lowes described the "[p]roblem" as follows:

Lt. Kimball is a very autocratic, controlling and critical supervisor. Everyone that works for him has felt the stress that he brings to every situation[....] He controls and manipulates every conversation until it concludes to his satisfaction. He absolutely discourages any dissention [sic] from his opinion and gives the definite sense that anyone that disagrees with his approach is incompetent. He often uses the phrase "hammer-nail" to illustrate that he is the hammer and everyone else is the nail .... we do and go where he tells us. These are general descriptions of Lt. Kimball that are well understood by everyone under his control. He operates in the belief that everyone around him is incompetent and that, without his influence, the police department would quickly fail.

In short, Lowes asserted that Kimball's "approach and tactics were destroying the moral [sic] and confidence of his men."

Lowes provided examples. On one occasion, Kimball "chewed out" Lowes in front of members of the Rialto Police Department, implying that the other department was "incompeten[t]." Lowes claimed that this incident "undermined [his] effort to build a positive relationship with Rialto PD and assist them ... in a positive way." On another occasion, "Kimball embarrassed the [San Bernardino] SWAT team by confronting a visiting SWAT team (Riverside PD)," leaving the "definite impression" that he "thought that Riverside PD was incompetent."

Lowes also described Kimball as a "micro-manage[r]," someone who "insult[s]" fellow officers, one who "undermines ... efforts to develop ... team members," and a man whose "need to be technically correct and powerful at every turn ultimately destroys relationships." Lowes admitted that all the incidents he recounted "taken individually may seem minor." Combined, however, Lowes thought that

[t]hese incidents amount to added stress and distrust in the daily operations of the unit. Individual team members feel that Lt. Kimball is making a power play for no other reason than to be powerful. The stress and conflict between [Lowes'] team building values/mission and Lt. Kimball's need for his definition of power or control make the [Gang Unit] sergeant position unrewarding.

Desrochers stated that while he had never before filed a complaint against any member of the police department, he did so here because he "believe[d] it to be a necessary step forward in an attempt to change the culture of this police department and the way we treat each other." Throughout the complaint, he repeatedly referenced Kimball's "management style." He detailed occasions where he felt Kimball "belittled [him] in front of [his] investigators and patrol officers," indicating that "[Kimball] did not trust [the] judgment" of Desrochers and his fellow officers. He also recounted "tantrum" Kimball threw in front of members of a neighboring police force. Desrochers believed that Kimball's behavior "did not put the San Bernardino police department in a positive light," and demonstrated that "Kimball was not eager to work cooperatively with this other agency."

Desrochers also maintained that Kimball's "autocratic style" and "disregard for [his] rank or authority ... did not inspire ... confidence, and circumvented [Desrochers'] authority with [his] investigators." As evidence, Desrochers noted situations where Kimball's orders contradicted his own.

Ultimately, Desrochers concluded that Kimball's reputation as "an autocratic leader" and his "management style and bullying" affected the Homicide Unit "in a negative way."² Kimball, Desrochers stated, "made it very clear that he wanted things his way and only his way and he did not care about or trust the opinions of any investigator in [the Homicide] unit." Desrochers claimed that this not only "negatively effected [sic] moral [sic] in [the] unit," but also "made it very difficult for [him] to perform [his] duty" to the point at which he was "unable to supervise the unit because of [Kimball's] interference."

The grievance alleged that Billdt and Mankin did not take the appropriate steps to remedy the "hostile work environment" created by Kimball. Desrochers and Lowes charged Billdt and Mankin, like Kimball, with violations of internal SBPD policies. Desrochers believed that "Mankin was more concerned about Lieutenant Kimball's future promotion than he was about our issues." Desrochers further stated that the "inaction on the part of Chief Billdt and Captain Mankin has negatively effecting [sic] my unit," while Lowes accused Mankin of giving him an order in "a clear attempt to cause ... stress."

As a remedy, the grievance requested 1) "[a]cknowledgment that the ... listed violations of policy and core values are not condoned by the administration of the San Bernardino Police Department"; 2) an agreement "to monitor and develop Lt. Kimball in order to prevent any future [similar] incidents"; and 3) a commitment to "develop and publish additions to ... organizational core values that ... reflect the type of culture that fosters respect and friendly interaction between all employees regardless of rank."

In due course, Mankin notified Desrochers and Lowes that their formal grievance had been denied.

On June 19, 2006, Desrochers and Lowes filed a complaint with the City's Human Resources Department ("HR"), appending their formal grievance against Kimball, Mankin, and Billdt. The complaint was marked "CONFIDENTIAL." Additionally, they raised concerns regarding the performance of Boom, the...