Keyser v. Sacremento City Unified School Dist.

• Decision Date: 12 September 2001
• Docket Number: No. 99-17562,99-17562
• Citation: 265 F.3d 741
• Parties: (9th Cir. 2001) LILY KEYSER; MARIA SOFIA ROBLEDO; RICHARD M. CISNEROS, Plaintiffs-Appellants, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, a public entity; and AND JAMES SWEENEY, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 741

265 F.3d 741 (9th Cir. 2001)

LILY KEYSER; MARIA SOFIA ROBLEDO; RICHARD M. CISNEROS, Plaintiffs-Appellants, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, a public entity; and AND JAMES SWEENEY, Defendants-Appellees.

No. 99-17562

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted, October 31, 2000

Filed February 7, 2001

Amended September 12, 2001

NOTE: SEE OPINION AT 238 F.3d 1132.

[Copyrighted Material Omitted] Matthew J. Smith, Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, California, for the plaintiffs-appellants.

Michael W. Pott, Porter, Scott, Weiberg & Delehant, Sacramento, California, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-97-02002-GEB. Garland E. Burrell, Jr., District Judge, Presiding.

Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges.

ORDER

The opinion filed February 7, 2001, is hereby ordered amended as follows:

Slip Op. at 1627 : Delete the paragraph beginning with "In the free speech cases . . . . ," and all paragraphs of part IV.B that follow. In their place, add the following new paragraphs, renumbering the remaining footnotes in the opinion as appropriate:

In the free speech cases in which we have held that circumstantial evidence created a genuine issue of material fact on the question of retaliatory motive, the plaintiff, in addition to producing evidence that his employer knew of his speech, produced evidence of at least one of the following three types. First, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that the "proximity in time between the protected action and the allegedly retaliatory employment decision" was one in which a "jury logically could infer [that the plaintiff] was terminated in retaliation for his speech." Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir. 1988) (internal quotation marks omitted). Second, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that his employer expressed opposition to his speech, either to him or to others. Schwartzman v. Valenzuela, 846 F.2d at 1212 (affirming the denial of summary judgment for employer because, in addition to producing evidence that his employer knew of his speech, the plaintiff produced a memorandum from his employer "warning him that he was not authorized to speak out"); Allen v. Scribner, 812 F.2d 426, 434-35 (9th Cir. 1987) (reversing grant of summary judgment for employer because the plaintiff produced evidence that his employer knew of his speech as well as evidence that his employer told co-workers that the plaintiff should be removed because he expressed his opinions). Third, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that his employer's proffered explanations for the adverse employment action were false and pretextual. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315-16 (9th Cir. 1989) (reversing summary judgment because the evidence suggested that the defendant had a "desire to maximize the harm inflicted upon Soranno, rather than a concern with receiving the requested information").

Keyser and Robledo have not produced any such additional evidence. First, over two years separated the date on which Sweeney allegedly learned of Keyser and Robledo's charges, February 1995, and the dates on which Sweeney refocused their positions and recommended their demotions, March 1997 and May 1997, respectively.⁴ Yet, in Erickson, we granted judgment for the employer notwithstanding the verdict where the plaintiff produced evidence that his employer knew of his speech as well as evidence that there was a proximity of approximately three months from the date on which the defendant became his employer and the date on which the defendant terminated him. Erickson v. Pierce County, 960 F.2d 801, 803. Given that the proximity in this case was much longer than the period held insufficient in Erickson, Keyser and Robledo's claims fail a fortiori.

Moreover, Keyser and Robledo have produced no evidence that Sweeney expressed opposition to their speech, either to them or to others. Finally, they have produced no evidence that Sweeney's proffered reasons for their reassignment, the recommendations of the Vogel & Associates report coupled with his assessment of their abilities, were false and pretextual.⁵ As a result, they cannot create a genuine issue of material fact on the question of whether Sweeney's decision to recommend their reassignment was motivated by their speech. Thus, we conclude that summary judgment against Keyser and Robledo on their First Amendment claim was appropriate.⁶

Slip Op. at____: Delete Judge Fletcher's dissent. In its place, add the amended dissent.

With these amendments, Judges O'Scannlain and Gould have voted to deny the petition for rehearing and the petition for rehearing en banc. Judge Fletcher has voted to grant the petition for rehearing and recommends granting the petition for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and suggestion for rehearing en banc are therefore DENIED.

O'SCANNLAIN, Circuit Judge:

We must decide whether a public employee has qualified immunity from suit for allegedly retaliating against subordinates who accused him of illegally using federal money.

I

The Sacramento City Unified School District ("District") has a total kindergarten through twelfth grade enrollment of approximately 50,000 students. Defendant Jim Sweeney was hired by the District in August 1994 as Deputy Superintendent of the District. As Deputy Superintendent, he supervised thirteen high level administrators who comprised the Deputy Superintendent's Cabinet. Until July 1997, among these thirteen administrators were plaintiffs Lily Keyser, who served as Administrator, Consolidated Programs, and Maria Sofia Robledo, who served as Administrator, Curriculum. The third plaintiff, Richard Cisneros, served until July 1997 as Administrator, Employee Relations.

In January 1995, Sweeney conducted mid-year formative evaluations with each of the Cabinet members under his supervision. Several administrators, including Keyser and Robledo, believed the evaluations violated District policy.

In February 1995, Keyser, Robledo, and Cisneros met with three then-members of the District's Board of Trustees ("Board"), Ida Russell, Mary Wimberly, and Louise Perez, to complain about Sweeney's evaluation practices. Keyser, Robledo, and Cisneros also charged Sweeney and two other administrators with spending federal Title I money to pay for consultants and other personnel in violation of federal guidelines on the use of the money. On February 13, 1995, Robledo and Keyser met with then-Board member Gasper Garcia to complain again about the misuse of federal money. Garcia stated in his declaration that he told Sweeney about these complaints. Several Board members also questioned Sweeney about his evaluation practices. Sweeney denies learning about the complaints regarding his evaluation practices and his alleged misuse of funds until Keyser, Robledo, and Cisneros filed this lawsuit.

On March 3, 1995, Sweeney recommended to the Superintendent that Keyser be reassigned. Although the reassignment was approved by the Board, Keyser kept her position because the personnel office gave her improper notice of the reassignment. Also in March 1995, Robledo, Keyser, and several other administrators formed the Sacramento City Schools Management Association ("Association") and hired an attorney to complain to the Board about the evaluation practices. Two letters were sent to the Board on behalf of the Association.

Between November 1995 and February 1996, Sweeney was elevated from Deputy Superintendent to Acting Superintendent. In February 1996, he resumed his position as Deputy Superintendent. In November 1996, an election replaced three members of the Board with an allegedly pro-Sweeney slate. After the election, but prior to the time at which the new members took office, the Board unanimously voted to call for a federal investigation into Sweeney's alleged misuse of federal money.

In February 1997, Sweeney was elevated to Interim Superintendent. Around this time the Board commissioned an outside consultant, Vogel & Associates, to prepare an organizational study of the administration of the District.

In March 1997, Sweeney instructed Keyser and Robledo to refocus their efforts on tasks that ranked as higher priorities for the District. Shortly thereafter, Vogel & Associates issued its report to Sweeney and recommended that several existing administrative positions be eliminated and that a new organizational structure be created. Upon receiving this report, Sweeney decided to recommend to the Board that it adopt the new administrative structure. In addition, Sweeney recommended to the Board who among then-existing administrators should occupy the positions in the new structure, and who should be demoted to other positions. Sweeney recommended to the Board that Keyser and Robledo be among those administrators who were demoted, with Keyser demoted to a teaching position and Robledo demoted to a position as a principal. In addition, Sweeney recommended that Cisneros occupy a position in the new administrative structure, suggesting that he serve as Director, Employee Relations. The Board adopted all of these recommendations.

Keyser, Robledo, and Cisneros filed a complaint in federal district court on October 23, 1997. Among other things, they alleged 1) that Sweeney violated 42 U.S.C. 1983 by depriving them of Equal Protection because he demoted them in retaliation for joining the Association, and 2)...