Carbella v. Clark County School Dist.

• Decision Date: 27 March 1998
• Docket Number: No. CV-S-94-977-DWH,No. 97-15755,97-15755,CV-S-94-977-DWH
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Gene CARBELLA, Plaintiff-Appellant, v. Clark County School District, Jack Lazzarotto, and Sid Franklin, Defendants-Appellees. D.C.(LRL).
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1174

141 F.3d 1174

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Gene CARBELLA, Plaintiff-Appellant, v. Clark County School District, Jack Lazzarotto, and Sid

Franklin, Defendants-Appellees.

No. 97-15755.

D.C. No. CV-S-94-977-DWH (LRL).

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Mar. 12, 1998.

Decided Mar. 27, 1998.

Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding.

Before CANBY and REINHARDT, Circuit Judges, and RESTANI, ^** United States Court of International Trade Judge.

MEMORANDUM ^*

Plaintiff-appellant Gene Carbella, a former school police officer and President of the Police Officers Association (POA), appeals the district court's grant of summary judgment in his § 1983 action against defendants-appellees Clark County School District (the "School District"), Jack Lazzarotto, Director of School Security, and Sid Franklin, Assistant Superintendent. Carbella seeks damages and an injunction ordering his reinstatement on the ground that he was discharged in retaliation for engaging in protected First Amendment speech and association. In response, the defendants assert that Carbella was fired because the School District discovered that he falsified his employment application by omitting a prior criminal conviction. We reverse.

I

Carbella argues that the district court erred in concluding that no genuine issue of material fact exists as to whether his termination constituted an infringement of his First Amendment rights to free speech and association. The defendants concede that Carbella's organization's support of a school board candidate and Carbella's statements to the newspapers involved matters of public concern and, therefore, were protected by the First Amendment. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The defendants contend, however--and the district court agreed--that Carbella has not raised a genuine issue of fact as to whether his protected activity was a substantial or motivating factor in their decision to discharge him.

The test for evaluating a First Amendment retaliation claim involves a two-part analysis. "First, the plaintiff must show that his protected conduct was a substantial or motivating factor in the defendant's decision. Then, the burden shifts to the defendant to demonstrate that the same decision would have been made in the absence of the protected conduct." Clements v. Airport Auth., 69 F.3d 321, 334 (1995); accord Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). We conclude that a genuine issue of material fact exists as to each of these inquiries.

A. "Substantial or Motivating Factor"

An "employer's knowledge that the plaintiff engaged in protected activities and [a close] proximity in time between the protected action and the allegedly retaliatory employment decision" can raise an inference of retaliatory motive sufficient to preclude summary judgment on the question of motivation. Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir.1988); see also Clements, 69 F.3d at 334-35 (reversing grant of summary judgment in part because evidence indicated decisionmakers had knowledge of plaintiff's speech); Stever v. Independent Sch. Dist. No. 625, 943 F.2d 845, 852 (8th Cir.1991) (holding that suspicious sequence of events and decisionmaker's knowledge of protected activity "raises an inference of retaliatory motive"). The factual circumstances surrounding Carbella's organization's controversial endorsement of the challenger to an incumbent office-holder--including the strong reaction of School District officials to the endorsement followed by Carbella's even stronger responsive public comments--are sufficient to warrant such an inference with respect to Carbella's discharge, assuming that at the relevant times the defendants were aware of the organization's actions.

It is undisputed that Carbella's protected activity occurred in close proximity to his dismissal. Given the suspicious sequence of events, the remaining question is whether there exists any genuine issue as to whether the defendants were aware of the protected activities before they took the allegedly retaliatory action. We hold that a genuine issue exists as to each defendant. Officer Bonati's affidavit states that he told Franklin of the POA's endorsement in September, 1992, the month before Carbella was ordered fingerprinted. Lazzarotto was with Franklin at the October 20 meeting with POA's members, which was held without Carbella's presence or prior knowledge, and at which Franklin berated the membership for its endorsement. Lazzarotto did not order the fingerprinting of the allegedly unprinted officers until October 23, and did not recommend that Carbella be terminated until December 17, 1992. ¹

Finally, we think a reasonable jury could infer that the POA's support of a challenger for the school board, and Carbella's vocal criticism of Franklin, would have been common knowledge among the School District's administrators, including those who exercised decisionmaking authority regarding Carbella's employment status. Lazzarotto, who was keenly aware of Carbella's protected activities, assisted the School District's personnel department in investigating Carbella and was present at the evidentiary hearing that resulted in Carbella's discharge. Carbella's comments accusing Franklin of attempting to coerce the POA into supporting the school board incumbent appeared in the local papers, The Las Vegas Sun and the Review-Journal. Those articles were published on October 22, well before Carbella's termination. A jury could infer knowledge by the School District's decisionmakers.

B. Same Decision in Absence of Conduct

The defendants argue that even if a genuine issue remains as to whether Carbella's speech was a substantial or motivating factor, no genuine issue exists as to whether the School District would have fired Carbella in the absence of his protected conduct. Specifically, they contend that Carbella would have been fired in any event because the School District's policy required that it terminate him on the ground that he was dishonest in the employment application process. ² We reject this argument.

It is not enough for a defendant to establish that it "could" have made the same decision in the absence of the plaintiff's conduct; it must show that it would have done so. See Schwartzman, 846 F.2d at 1212; Allen v. Scribner, 812 F.2d 426, 435 (9th Cir.1987); Fujiwara v. Clark, 703 F.2d 357, 361 (9th Cir.1983) ("The mere existence of other grounds for firing does not suffice."). Although the employment application that Carbella signed states that "any false statements or misrepresentations of facts are grounds for dismissal" and the School District's policy states that the "failure to disclose any prior convictions on the application for employment will result in immediate dismissal from the school district," a genuine issue remains as to whether the School District strictly enforces that policy or whether it applies it in a discretionary--or in this case discriminatory--manner. The record shows that while Carbella was allegedly fired for failing to disclose a prior conviction for "moonlighting" while at another law enforcement agency, another officer failed to disclose a prior assault conviction. The record also shows that the same fingerprinting operation that revealed information concerning Carbella revealed information regarding that other officer's assault conviction. The other officer, however, was not discharged. ³ This evidence is sufficient to create a genuine issue of fact as to whether Carbella's failure to disclose his prior conviction was merely a pretext for his dismissal.

II

Franklin and Lazzarotto argue that even if the district court erred in...