Thomas v. Cnty. of Riverside

• Decision Date: 18 August 2014
• Docket Number: 12–55812.,Nos. 12–55470,s. 12–55470
• Parties: Wendy THOMAS; Service Employees International Union, Local 721; Plaintiffs–Appellants/Cross–Appellees, v. COUNTY OF RIVERSIDE; Larry Grotefend, individually; Dennis Erick Schertell, individually; Rick Hall, individually; Brian McArthur, individually; Heather Woods, individually; Margie Gemende, individually; Defendants–Appellees/Cross–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1167

Wendy THOMAS; Service Employees International Union, Local 721; Plaintiffs–Appellants/Cross–Appellees,

v.COUNTY OF RIVERSIDE; Larry Grotefend, individually; Dennis Erick Schertell, individually; Rick Hall, individually; Brian McArthur, individually; Heather Woods, individually; Margie Gemende, individually; Defendants–Appellees/Cross–Appellants.

Nos. 12–55470, 12–55812.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 2014.

Filed Aug. 18, 2014.

Crowley (argued), Vincent A. Harrington, Jr. and Gary P. Provencher, Weinberg, Roger & Rosenfeld, Alameda, CA, for Plaintiffs–Appellants/Cross–Appellees.

Edward P. Zappia (argued) and Anna Zappia, The Zappia Law Firm, Los Angeles, CA, for Defendants–Appellees/Cross–Appellants.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:10–CV–01846–VAP–DTB.

Before: ALEX KOZINSKI, Chief Judge, RICHARD R. CLIFTON, Circuit Judge, and JED S. RAKOFF, Senior District Judge.^*

OPINION

PER CURIAM:

Plaintiffs Wendy Thomas and her labor union appeal the grant of summary judgment on their First Amendment retaliation claims, and defendants cross-appeal a later order denying them attorneys' fees. We review the grant of summary judgment de novo, Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir.1994), and the denial of attorneys' fees for abuse of discretion, Tutor–Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059 (9th Cir.2006).

On summary judgment in a First Amendment retaliation case, a plaintiff must provide evidence of materially adverse employment actions that are “reasonably likely to deter” protected speech. Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir.2003). Thomas adduced evidence of more than 30 adverse employment actions, but the district court dismissed all of them, analyzing nine in some detail and collectively dismissing the rest as “petty workplace gripes ... [that] do not rise to the level of retaliatory adverse employment actions.”

Adverse employment actions that are so trivial as to be legally insufficient “include only minor acts, such as ‘bad-mouthing,’ that cannot reasonably be expected to deter protected speech.” Coszalter, 320 F.3d at 976. Among the actions the district court dismissed as trivial were, e.g.: removing Thomas from a community college teaching assignment, costing her some $9,000 per year; prohibiting Thomas from using break time to travel between work sites, thereby requiring her to use unpaid time for work travel; rescinding a previously approved vacation; and removing Thomas from an unpaid position with the Uniform Committee. A reasonable juror might well find that these actions, even if viewed in isolation, could deter protected speech. Even the removal from the unpaid committee, which might at first blush appear trivial, might in context be more egregious. As the Supreme Court has recognized, “to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Moreover, as we have stated, “[d]epending on the circumstances, even minor acts of retaliation can infringe on an employee's First Amendment rights.” Coszalter, 320 F.3d at 975. And here there was evidence suggesting that some of these actions were taken as part of a more general campaign and hence might in context have greater materiality than when viewed in isolation. Thus, at a minimum, this case must be remanded so that the district court can evaluate on a more detailed basis the incidents that it dismissed collectively as “petty workplace gripes.”

Of the remaining nine incidents, all of which the district court did discuss in detail, two—a car-moving incident and an involuntary transfer in April 2009—are not raised on appeal. A third incident, an inquiry about the possibility of limiting Thomas's release time, was correctly dismissed by the district court as unsupported. But there were six others—three involuntary transfers and three internal investigations—that the district court properly referred to as “archetypal adverse employment actions” but still dismissed. Four of these six should have survived summary judgment.

First Amendment retaliation cases are governed by Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), which provides that, once a plaintiff makes a showing that protected speech was a “substantial” or “motivating” factor in the employer's taking a non-trivial adverse employment action, defendants can “escape liability only by sustaining the burden of proving ‘by a preponderance of the evidence that [they] would have reached the same decision ... even in the absence of the [plaintiff's] protected conduct.’ ” Allen v. Iranon, 283 F.3d 1070, 1074 (9th Cir.2002) (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568).

Plaintiffs carried their burden of production sufficient to survive summary judgment as to the three involuntary transfers: the transfer from Dispatch Training Unit Supervisor to Course Coordinator in February 2010, the transfer back to Dispatch Floor Supervisor in November 2010, and the transfer from graveyard to day shift in 2011. Although defendants offered various non-retaliatory business justifications for these transfers, Thomas adduced evidence that these transfers came shortly after her acts of speech, that her employer had expressed opposition to that speech, and that the business justifications were pretextual. Any one of these showings, let alone all three, is sufficient to survive summary judgment if it presents a genuine factual dispute. See Coszalter, 320 F.3d at 977.

The three internal affairs investigations are more mixed. The first investigation was initiated by the serious accusations against Thomas contained in Spargur's resignation letter. But the defendants establish beyond dispute that they would have launched this investigation even absent Thomas's union activity....