Marable v. Nitchman

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Gould
• Citation: Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007)
• Decision Date: 26 December 2007
• Docket Number: No. 06-35940.,06-35940.
• Parties: Ken MARABLE, the senior Chief Engineer of The Washington State Ferries and a married man and his marital community, Plaintiff-Appellant, v. Mark NITCHMAN, former Director of Preservation and Maintenance of the Washington State Ferries; Douglas MacDonald, Director of the Washington State Department of Transportation; Richard D. Phillips, a Staff Chief of the Washington State Ferries, Defendants-Appellees.

511 F.3d 924

Ken MARABLE, the senior Chief Engineer of The Washington State Ferries and a married man and his marital community, Plaintiff-Appellant, v. Mark NITCHMAN, former Director of Preservation and Maintenance of the Washington State Ferries; Douglas MacDonald, Director of the Washington State Department of Transportation; Richard D. Phillips, a Staff Chief of the Washington State Ferries, Defendants-Appellees.

No. 06-35940.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 24, 2007.

Filed December 26, 2007.

Shawn Hart, for the plaintiff-appellant (argued and on the brief).

Catherine Hendricks, Senior Counsel, Seattle, Washington, for the defendants-appellees (argued and on the brief). Robert M. McKenna, Attorney General, State of Washington, for the defendants-appellees (on the brief).

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-05-01270-MJP.

Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:

Plaintiff Ken Marable appeals the district court's grant of a motion for summary judgment in favor of the defendants, with resulting dismissal of Marable's case. Marable appeals the district court's summary judgment dismissing his claims for damages and injunctive relief to "protect[his] rights . . . under the U.S. Constitution": 1) a 42 U.S.C. § 1983 claim alleging violation of his First Amendment rights as applicable to the states by way of the Fourteenth Amendment; 2) a 42 U.S.C. § 1983 claim alleging violation of his Fourteenth Amendment rights to procedural due process; 3) a Washington state law claim of negligent infliction of emotional distress; and 4) a Washington state statutory claim for whistleblower retaliation.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291. We address in this opinion only Marable's First Amendment claim for damages, and on this First Amendment claim we reverse and remand to the district court for further proceedings consistent with this opinion.²

I

Marable is an engineer for the Washington State Ferries ("WSF") with more than thirty years of experience. In his complaint he alleged that in recent years he had observed and reported corrupt practices among members of WSF management, including the defendants, and that the defendants retaliated against him for speaking out against corruption.

In 1999 Marable began work aboard the WSF ferry MV Puyallup. Defendant and Staff Chief Engineer Doug Phillips, to whom Marable was directly responsible, selected Marable as the ferry's Alternate State Chief Engineer, a position from which Marable was in full charge of the engine department.³ As WSF Maintenance Director, defendant Mark Nitchman ranked higher than both Phillips and Marable. In 2002 WSF instituted disciplinary actions against Marable.

According to the defendants, shortly after Marable's selection as Chief Engineer, Marable engaged in misconduct,⁴ which constituted acts of insubordination and grounds for discipline, up to and including employment termination. On November 13, 2002, Nitchman wrote Marable of misconduct charges that Phillips made against Marable, advising Marable that such charges, if proven, might warrant termination and that a pre-disciplinary meeting (or a "Loudermill" hearing) was set for December 19, 2002, at which Marable was entitled to union or legal representation.

At Marable's Loudermill hearing, over which Nitchman presided, Marable was represented by both his personal lawyer and union counsel. Marable did not object to Nitchman's presiding role at this hearing. Nitchman found Marable guilty of the alleged misconduct warranting termination, but given Marable's long WSF employment record without similar misconduct, Marable was not terminated but instead received a week's suspension without pay and was barred from being Chief Engineer for a year. Marable neither filed a grievance relating to Nitchman's ruling, as the union contract allowed, nor appealed to the Marine Employees Commission.⁵

Marable asserts that this disciplinary action was taken not because of misconduct by him but rather in retaliation for his complaints about the corrupt practices of WSF management. Marable had alleged that WSF managers, including the defendants, participated in such schemes as claiming inappropriate overtime and using WSF "Special Projects" to enable them to supplement their pay inappropriately.⁶ Marable argues that these alleged forms of "pay padding" are a waste of public funds and a threat to public safety. Additionally, Marable points out that on July 18, 2002, a few months before Marable received Nitchman's letter asserting disciplinary charges, the Washington State Auditor had written Nitchman to inform him that his department, which included oversight of engineering room and maintenance budgets, was under investigation. Marable implies that this audit investigation was a cause for retaliation, though Marable does not say how Nitchman would have connected the audit to Marable, and the record does not establish that any of Marable's complaints instigated the investigation.

Marable further asserts that, also in retaliation for his criticism of WSF corruption, he was exposed to a product known as Oil Eater 99 that WSF used on its ferries.⁷ Marable contends that he had submitted paperwork to the WSF in January 2001, notifying management that he was allergic to the substance and requesting its removal from his ferry. Marable contends further that Nitchman caused the cleaner to be placed aboard Marable's ferry in retaliation for Marable's criticisms of Special Projects.⁸

Marable claims that he repeatedly attempted to remove Oil Eater 99 from the ferry, that Phillips repeatedly reordered it, that Marable continued to exhibit an allergic reaction when exposed to the substance, and that finally an external office called to order Oil Eater's removal from the ferry altogether. Marable asserts, with a witness's support, that Phillips once stated something to Marable similar to, "I have[Oil Eater 99], I will use it, and you will be gone."

Finally, Marable claims that a union representative informed him in January of 2005, shortly after Marable had submitted a declaration in support of another whistleblower case against Nitchman, that Nitchman had discussed firing Marable with the representative. Both Phillips and Nitchman deny that any retaliatory motive underlies any of the alleged actions.

Against this alleged background, Marable sued Nitchman and Phillips on five counts, four of which remain on appeal before us. We address in this opinion Marable's claim against the defendants in their individual capacities under 42 U.S.C. § 1983, asserting that Nitchman and Phillips violated his free speech rights under the First Amendment, applied to the states by way of the Fourteenth Amendment, by retaliating against him for criticizing their alleged corrupt and wasteful practices. Marable seeks damages from Nitchman and Phillips, in their individual capacities, and injunctive relief from defendants in their official capacities against future violations of his constitutional rights.

The defendants filed motions for summary judgment, seeking to dispose of all claims against them. The district court granted defendants' motion for summary judgment denying injunctive relief. The district court, noting that Oil Eater 99 has been removed from Marable's workplace and that most alleged events took place more than four years ago, concluded that Marable did not demonstrate a likely threat of future injury and was therefore barred from injunctive relief.

As to Marable's First Amendment claim, the district court at first denied defendants' motion for summary judgment. The district court held that Marable's speech referred to issues of public resources and safety and was of public concern. The district court also, relying upon the U.S. Supreme Court case Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2005), concluded that Marable's complaints of misconduct were not assigned duties of WSF engineers and therefore were afforded First Amendment protection. Finally, the district court noted the existence of conflicts of fact about whether the alleged protected speech was a motivating factor in the disciplinary action. But thereafter the district court held a jury instruction conference, for which it had requested and reviewed supplemental briefing. The district court also heard oral argument, and then issued an order reversing course on Marable's First Amendment claim and granting summary judgment for defendants, dismissing Marable's entire case.⁹ In its dismissal order the district court reviewed each example that Marable provided of specific protected speech: Marable's complaints about Special Projects to former WSF CEO Mike Thorne, his two conversations with Department of Transportation auditor Jeri Silvertson, his complaint to the State Executive Ethics Board, and his two phone calls to Nitchman.

In light of our recent precedent of Freitag v. Ayers, 468 F.3d 528 (2006), the district court concluded that Marable's communications with Thorne and Nitchman constituted on-the-job speech rather than speech as a citizen and was therefore not protected by the First Amendment. The court also held that Marable's conversation with the State Executive Ethics Board was similarly not protected because it fell within Marable's job duties, as well as because it was not adequately of "public concern" under the test of Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Finally, the district court rejected Marable's contention that his conversations with Jeri Silvertson were protected because Marable had proffered insufficient evidence for the court to decide the matter. Marable appeals the summary judgment against his First Amendment claim, and we reverse.

II

We review de...