Knappenberger v. City of Phoenix, No. 07-15774.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Ikuta
• Citation: 566 F.3d 936
• Parties: Bruce KNAPPENBERGER, an individual, Plaintiff-Appellant, v. CITY OF PHOENIX, a political subdivision in the State of Arizona; Does I-X; Corporations A-Z, Defendants-Appellees.
• Docket Number: No. 07-15774.
• Decision Date: 26 May 2009

566 F.3d 936 Bruce KNAPPENBERGER, an individual, Plaintiff-Appellant,
v.
CITY OF PHOENIX, a political subdivision in the State of Arizona; Does I-X; Corporations A-Z, Defendants-Appellees. No. 07-15774. United States Court of Appeals, Ninth Circuit.

[566 F.3d 937]

Submitted November 20, 2008.^* Filed May 26, 2009.

[566 F.3d 938]

Kathi Mann Sandweiss, Kraig J. Marton, Phoenix, AZ, for the plaintiff-appellant.

Georgia A. Staton, Gordon Lewis, Eileen Dennis GilBride, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, John W. Sedwick, District Judge, Presiding. D.C. No. CV-06-02749-JWS.

Before: ALFRED T. GOODWIN, ANDREW J. KLEINFELD and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

Bruce Knappenberger appeals from the district court's decision granting the City of Phoenix's motion for judgment on the pleadings and dismissing his § 1983 action against the Phoenix Police Department. Knappenberger alleges his early retirement from his job as a commander with the Phoenix Police Department amounted to a constructive discharge, and he was therefore deprived of both property and liberty without due process of law. Because Knappenberger has failed to allege

566 F.3d 939

facts which, if true, would establish that his retirement was involuntary, we affirm.

I

We review de novo a district court's judgment on the pleadings. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir.2006). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir. 1995).

Based on the allegations in his complaint, Bruce Knappenberger began working for the Phoenix Police Department in 1973. He served as a commander with the department for thirteen years and was assigned to the department's Community and Patrol Services Bureau in 2003. In July 2004, the Professional Standards Bureau of the Phoenix Police Department notified Knappenberger that it would begin investigating allegations that Knappenberger had made sexually suggestive comments to a female officer and had also made unwelcome physical contact. After giving Knappenberger this notice, the police department transferred him to a duty commander position. In the meantime, police department investigators interviewed Knappenberger and other witnesses. In August 2004, the police department placed Knappenberger on administrative leave and assigned him to his home.

The police department completed its initial investigation in October 2004. In November, the police department provided Knappenberger with a copy of the report of the investigation and gave him 21 days to review and respond to its findings.

After reviewing the report, Knappenberger participated in two review hearings before the committee responsible for the investigation. In the first hearing, on December 2, 2004, Knappenberger alleged that the investigators used improper procedures, and submitted documentation to support this allegation. At a second hearing on December 15, 2004, the committee told Knappenberger that it had reviewed Knappenberger's claims and documents "and felt the information was simply Knappenberger's perception." Accordingly, the committee stated it would not revise the investigative report. It also informed Knappenberger that the police department was going to implement a new rule that would allow the department to terminate employees who had committed the sorts of infractions for which Knappenberger was under investigation.

The day after this hearing, Knappenberger learned from Phoenix's employee benefits department that "he had to retire 19 months early in order to continue to receive his lifetime health insurance coverage." Although the import of this statement is not clear from the complaint, Knappenberger explained in his opening brief that he would lose his lifetime health insurance coverage if the police department terminated him, but would retain his benefits if he retired early. Because Knappenberger's wife had a history of breast cancer, Knappenberger "could not afford to lose the insurance coverage." Rather than running the risk of being terminated and losing his health coverage, he retired on December 17, 2004.

After retiring, Knappenberger filed an action in state court under 42 U.S.C. § 1983, alleging that Phoenix unconstitutionally deprived him of property and liberty interests without due process of law. Phoenix removed the action to federal court and filed a motion for judgment on the pleadings. The district court granted

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Phoenix's motion. Relying on our decision in Wallace v. City of San Diego, 479 F.3d 616 (9th Cir.2007), the court held that Knappenberger could not establish constructive discharge absent a showing of "intolerable or discriminatory working conditions." Because Knappenberger's complaint did not allege the existence of such conditions, the district court concluded that Knappenberger had not effectively alleged constructive discharge, and therefore had necessarily failed to allege a discharge that violated property or liberty interests protected by the Due Process Clause. On appeal, Knappenberger argues the district court adopted too narrow a definition of "constructive discharge."

II

In order to survive a motion for judgment on the pleadings, Knappenberger's complaint must allege facts that, if true, show that Phoenix took an adverse employment action that deprived him of a constitutionally protected liberty or property interest without due process. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see...