Barone v. City of Springfield

• Decision Date: 05 September 2018
• Docket Number: No. 17-35355,17-35355
• Citation: 902 F.3d 1091
• Parties: Thelma BARONE, an individual, Plaintiff-Appellant, v. CITY OF SPRINGFIELD, OREGON, a municipal corporation; Tim Doney, individually, and as Chief of Police of the Springfield Police Department; Tom Rappe, individually, and as a Lieutenant of the Springfield Police Department; Gino Grimaldi, individually, and as City Manager of the City of Springfield; Greta Utecht, individually, as Director of Human Resources for the City of Springfield, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 1091

Thelma BARONE, an individual, Plaintiff-Appellant,

v.CITY OF SPRINGFIELD, OREGON, a municipal corporation; Tim Doney, individually, and as Chief of Police of the Springfield Police Department; Tom Rappe, individually, and as a Lieutenant of the Springfield Police Department; Gino Grimaldi, individually, and as City Manager of the City of Springfield; Greta Utecht, individually, as Director of Human Resources for the City of Springfield, Defendants-Appellees.

No. 17-35355

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2018, Portland, Oregon

Filed September 5, 2018

Andrew Lewinter (argued), Eugene, Oregon, for Plaintiff-Appellant.

Mark C. Sherman (argued) and Janet M. Schroer, Hart Wagner LLP, Portland, Oregon, for Defendants-Appellees.

Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit Judges, and ALVIN K. HELLERSTEIN,^* District Judge.

M. SMITH, Circuit Judge:

Thelma Barone brought this 42 U.S.C. § 1983 action against the City of Springfield and several of its employees (collectively, Appellees). Barone now appeals from the district court’s order granting summary judgment in favor of Appellees on all of her claims. We affirm the district court respecting her First Amendment retaliation claim, reverse the district court concerning her prior restraint claim, and reverse and remand on the issue of Monell liability.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2003, Barone began working for the Springfield Police Department (Department) as a Community Service Officer II (CSO II). She focused on victim advocacy, and served as a Department liaison to the City’s minority communities. Throughout her tenure, members of the Latino community complained to Barone about racial profiling by the Department. She relayed these complaints to Department leadership.

These complaints became more frequent beginning in spring 2013. Around that same time, the Department was in the midst of a leadership transition, which led to, among other things, Tim Doney’s appointment as Chief of Police. As directed, Barone drafted her job description and sent it to Chief Doney.

In 2014, the Department began investigating Barone in connection with two Department-related incidents. The first incident involved a school tour Barone led through the Department. During the tour, some students took photos of restricted areas, where no photo taking was permitted. Department employees disputed whether Barone had asked for, and received, approval for the students to photograph each unit. In the second incident, a Latina notified Barone of a potential crime. Barone was unable to reach a sergeant about this crime, but she left a message with the dispatchers and asked the sergeant to return her call. The sergeant never returned her call because he said he did not know the phone call pertained to a possible crime. The parties disputed whether Barone informed the dispatchers that she wanted to speak to the sergeant about an alleged crime.

On February 5, 2015, Barone spoke at a City Club of Springfield event headlined "Come Meet Thelma Barone from the Springfield Police Department." The Department paid her to attend the event; she wore her uniform; and her supervisor attended. She understood that she attended and participated in the event as a representative of the Department. A member of the audience at the event asked her whether she was aware of increasing community racial profiling complaints. She said that she "had heard such complaints."

A week later, Chief Doney placed Barone on administrative leave due to her alleged untruthfulness in connection with investigations into the two pre-2015 occurrences. Almost a month later, the Department found that Barone had violated several sections of the Department’s code of conduct, and she remained on administrative leave.

The Department’s investigation of the two incidents continued into the summer. In July 2015, the Department suspended Barone for four weeks without pay, and informed her that she would be required to sign a Last Chance Agreement (the Agreement) when she returned to work. Barone, her union representative, and Chief Doney met to discuss the Agreement on the day that Barone returned to work. At the meeting, Chief Doney provided Barone with a copy of the Agreement, told her to review it, and told her that the Department would terminate her if she did not sign it. A week later, Barone refused to sign the original Agreement because it prohibited her from reporting on racial profiling and discrimination.

At a subsequent meeting, Chief Doney provided Barone with an amended Agreement that addressed her stated concerns with the original Agreement. Paragraph 5(g) of the amended Agreement barred Barone from saying or writing anything negative about the Department, the City, or their employees. However, she could report complaints involving discrimination or profiling by the Department. The amended Agreement also provided that Barone would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the Department and barred her from releasing confidential information.

At the second meeting, Barone did not express concern about any particular provision of the amended Agreement. Nevertheless, after speaking with her representative, Barone refused to sign the Agreement as amended. Because Barone refused to sign the amended Agreement, Chief Doney terminated her employment with the Department.

Citing 42 U.S.C. § 1983, Barone sued the City, Chief Doney, Department Lieutenant Tom Rappe, City Manager Gino Grimaldi, and Human Resources Director Greta Utecht for First Amendment retaliation, and imposing an unlawful prior restraint. In May 2016, the district court denied Barone’s motion for partial summary judgment on her prior restraint claim. In April 2017, the district court granted summary judgment in favor of Appellees on Barone’s claims. Barone timely appealed.¹

STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of summary judgment. Beaver v. Tarsadia Hotels , 816 F.3d 1170, 1177 (9th Cir. 2016). We may affirm on any ground supported by the record. Facebook, Inc. v. Power Ventures, Inc. , 844 F.3d 1058, 1064 (9th Cir. 2016).

ANALYSIS

I. First Amendment Retaliation

We turn first to Barone’s First Amendment retaliation claim, in which she asserts that Appellees retaliated against her after she spoke at the February 2015 City Club event. We affirm the district court, and conclude that Barone’s First Amendment retaliation claim fails because she spoke as a public employee, so her speech was not protected by the First Amendment.

First Amendment retaliation claims are analyzed under the five-factor inquiry described in Eng v. Cooley , 552 F.3d 1062 (9th Cir. 2009). Barone must show that (1) she spoke on a matter of public concern; (2) she spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. Coomes v. Edmonds Sch. Dist. No. 15 , 816 F.3d 1255, 1259 (9th Cir. 2016) (citing Eng , 552 F.3d at 1070–71 ). If Barone establishes such a prima facie case, the burden shifts to the government to demonstrate that (4) it had an adequate justification for treating Barone differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech. Id. (citing Eng , 552 F.3d at 1070–72 ). "[F]ailure to meet any [factor] is fatal to the plaintiff’s case." Dahlia v. Rodriguez , 735 F.3d 1060, 1067 n.4 (9th Cir. 2013) (en banc).

The answer to the first Eng prong is clear. Barone’s speech—responding to a citizen inquiry about racial profiling by the Department—is a matter of public concern. See Connick v. Myers , 461 U.S. 138, 148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (noting speech warrants protection when it "seek[s] to bring to light actual or potential wrongdoing or breach of public trust"). The second prong of Eng is key to the outcome of the First Amendment retaliation claim in this case. Specifically, did Barone speak as a private citizen or as a public employee at the City Club event?

In the Supreme Court’s foundational case in this area of the law, the Court held that a school district violated a teacher’s right to free speech when it fired him for writing a letter to a local newspaper that criticized a school board decision concerning a local tax issue. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205 , 391 U.S. 563, 564–65, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In concluding that the teacher spoke as a private citizen, the Court noted that the teacher’s statements were not "directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work" and the publication of the letter did not "interfere[ ] with the regular operation of the schools generally." Id. at 569–70, 572–73, 88 S.Ct. 1731.

The Court provided further guidance on public employee speech in Garcetti v. Ceballos , holding that "when public employees make statements pursuant to their official duties , the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (emphasis added). The Court held that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities was unprotected employee speech because he was "fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case." Id. In other words, his "expressions were made pursuant to his duties as a calendar deputy" and "[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Id. at 421–22, 126 S.Ct. 1951.

Garc...