United States Court of Appeals,Ninth Circuit.
Ron HUPPERT; Javier Salgado, Plaintiffs-Appellants, v. CITY OF
PITTSBURG; Aaron Baker; William Zbacnik; Michael Barbanica;
William Brian Addington; Wayne Derby, Defendants-Appellees.
Ron Huppert; Javier Salgado, Plaintiffs-Appellants, v. City of
Pittsburg; Aaron Baker; William Zbacnik; Michael Barbanica;
William Brian Addington; Wayne Derby, Defendants-Appellees.
Nos. 06-17362, 07-16600.
Decided: July 21, 2009
Before: W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges, and
WILLIAM O. BERTELSMAN,* District Judge. Russell A. Robinson, San
Francisco, CA, for the appellants. Joseph M. Quinn,
Meyers Nave Riback
Silver & Wilson, San Francisco, CA, for the appellees.
We examine the question whether a state police officer's speech, in
different forms, is protected under the First Amendment from
retaliatory actions taken by that officer's superiors. Plaintiffs
Ron Huppert and Javier Salgado appeal the district court's grant of
summary judgment in favor of the Appellees, the City of Pittsburg
and individual police officers within the Pittsburg Police
Department (“PPD”), dismissing their claims under 42 U.S.C. § 1983.
We hold that the speech at issue was given pursuant to Huppert and
Salgado's job duties, and therefore affirm the district court's
grant of summary judgment. Additionally, Salgado appeals the
district court's dismissal on summary judgment of his § 1983 claim
brought under the Fourth, Sixth, and Fourteenth Amendments. We
affirm the district court on this claim as well. Finally, both
Huppert and Salgado appeal the district court's grant of costs to
the Appellees solely on the ground that the Appellees failed to
timely file their bill of costs. This argument is meritless, so
we also affirm the district court's award of fees.
I
Huppert joined the PPD on January 25, 1991, where he worked
primarily as a patrol officer and an inspector. In 1995, he was
assigned to work a twenty-four hour shift at the Pittsburg Seafood
Festival. He requested a shift modification, which was
subsequently denied by the PPD. He consulted with a labor attorney,
who, unbeknownst to Huppert, contacted the PPD. After Huppert
returned to work, Lieutenant Aaron Baker (“Baker”)-who is now Chief
of Police for the PPD-expressed unhappiness with Huppert and asked
Huppert to sign a letter in which he acknowledged (non-existent)
sick-leave abuse. When Huppert refused to sign the letter and
requested review of all his “sick-leave slips,” the matter was
“apparently dropped.”
In 1996, after being promoted to Inspector, Huppert was assigned to
investigate a vehicular manslaughter case. He reported that one
of his supervisors, Sergeant Keeler (“Keeler”), a personal friend
of Baker, had pursued a carjacking suspect, reaching speeds of up
to 100 m.p.h. without using his emergency lights or siren. An
innocent third party perished in the resulting crash. In his
report about the incident, Huppert discussed his “concerns about
Keeler's conduct during the pursuit,” and Keeler's use of racial
slurs. Now a Commander, Baker charged Huppert with “failure to
report and subversive conduct” for not having previously reported
this misconduct-which Baker referred to as a “letter of
advisement.” The charge was later reduced to a “warning.”
Between 1997 and 1998, while still employed as a Pittsburg police
officer, Huppert was selected by the Contra Costa County District
Attorney's Office to assist in investigating corruption at the
Pittsburg Public Works Yard. Huppert states that “[f]rom that time
on, my superiors [at the PPD] treated me with scorn and as an
outcast.” Then, in 1998 Huppert took the sergeant's exam. He
finished first on the written section of the exam, and during the
oral portion of the exam, he was questioned “mostly” about his
goatee. The following day Baker informed him that he would not be
promoted because he had decided to keep his goatee.
Sometime prior to 2001, Huppert began working with the FBI on an
investigation into suspected corruption within the PPD. While he
does not disclose what assistance he gave to the FBI, he does claim
that this work was “outside [his] duties as a member of the PPD.”
Then, in January 2001, his superior, William Zbacnik, informed
Huppert that he would be transferred to “Code Enforcement,” also
known as the
“Strategic Operations Bureau.” He was officially
transferred in June 2001, and was sent to a building known within
the PPD as the
“Penal Colony,” because “disaffected and/or
disfavored officers were assigned there.” Huppert's new
supervisor, William Hendricks (“Hendricks”), informed him that he
had been sent to the “Penal Colony” because Baker wanted Hendricks
to find a way to fire him. Huppert's new office at the “Penal
Colony” was a “tiny converted bathroom without computer access,”
and even though he was assigned to investigate gang-related
activity, the building was not equipped with the proper secured
areas needed for his investigations. During the six-month period
between January and June 2001, Huppert was not permitted to work
overtime.
Salgado joined the force in 1995 and was, for the majority of his
tenure, a detective. In September 2001, he was assigned to the
“Strategic Operations Bureau” as Huppert's partner. Baker
assigned both of them to investigate suspected corruption at the
local City-owned golf course, but told them not to inform Hendricks
of this assignment. The investigation “revealed improper conduct
by members of the PPD, including gambling, accepting free golf, and
possible illegal drug activity.” After only two interviews, Baker
commanded that Huppert and Salgado cease the investigation. Once
they informed Hendricks, he encouraged them to continue
investigating and informed Baker that Huppert and Salgado were
still looking into corruption at the golf course. Hendricks also
informed the FBI that he believed there was a major gambling
operation on-going at the golf course.
Huppert claims that while Baker told them not to memorialize their
findings, they drafted a report at the conclusion of their inquiry
and directed it to Baker and the Pittsburg City Manager. The
report “included a finding that defendant Zbacnik had accepted
thousands of dollars in gratuities and other illegal perks.”
However, following the report, Baker took no action against
Zbacnik, and instead deemed Zbacnik's actions a “training issue.”
In 2002, Huppert and Salgado's office was moved from the “Penal
Colony” back to the main Civic Center. They were not initially
given an office, and when they finally received one, it was “an old
storage room.”
Huppert states that Hendricks was “forced out” in December of 2002,
and Michael Barbanica (“Barbanica”) took his place. In January
2003, Barbanica and defendant William “Brian” Addington
(“Addington”) falsely accused Huppert and Salgado of engaging in an
improper pursuit. Both Huppert and Salgado claim that they were
in no way involved in the pursuit. Though Barbanica initially
claimed that an “anonymous concerned citizen” had reported that
Huppert and Salgado were involved, he later admitted that he had
lied. He agreed that Zbacnik had been behind his false
accusations.
It was normal practice at the PPD that when a supervisor was
absent, the next senior officer was normally designated as acting
unit supervisor. In late 2003 and early 2004, the practice was
changed in the Code Enforcement Unit, where Huppert and Salgado
were the next senior officers under their supervisor, Sergeant
Reposa. Because of the change in practice, Huppert and Salgado
were required to report to the Investigations Unit Supervisor, and
were hence prevented from exercising any supervisory authority and
earning out-of-class pay.
Salgado claims that in late 2003 and early 2004, Addington began an
investigation of Officer Jim Hartley for allegedly falsifying
reports. It was obvious to Salgado that “Addington disliked
Hartley and was seeking to terminate him.” Addington sought to
have Salgado claim first-hand knowledge of events which Salgado had
not actually witnessed, but Salgado refused to do so.
Huppert and Salgado allege that in February 2004, defendant Wayne
Derby (“Derby”) became their supervisor. Derby informed them that
he was Chief Baker's “ ‘hatchet man’ ” and that Baker saw them as
“malcontents.” He subsequently took away their undercover vehicle
and replaced it with an easily recognizable, though unmarked, Ford
Taurus. They claim this hindered their work as gang detectives.
Huppert then states that in March 2004, he was subpoenaed to
testify before a Contra Costa County grand jury that was “probing
corruption in the PPD.” Other officers, including Baker, were also
subpoenaed to testify, and the subpoenas were received at the PPD
for delivery to the individual officers. Huppert's receipt of
this subpoena was “recorded in a subpoena log posted in the [PPD]
break room.” Huppert states that Baker openly discussed his
testimony, and told Huppert he knew Huppert had testified before
the grand jury as well. Baker also identified officers who he
thought would be “bad witnesses” for the department, which Huppert
understood to indicate Baker's belief that they were “malcontents.”
Sometime after his grand jury testimony, Derby informed Huppert
that his position as a gang investigator was being eliminated and
he was transferred to a position investigating fraud and forgeries.
Addington became his supervisor, and he was assigned to
investigate fraud claims, which Huppert claims are less desirable
than “person crimes.” After the transfer, Addington changed the
way in which fraud cases were handled within the PPD, requiring
Huppert to generate reports in order to close each case. Huppert
believes this increase in workload was initiated simply as a method
of harassment. Additionally, Addington would criticize the
completed reports over minor mistakes, “such as the letter ‘M’ (for
‘Male’) being in the wrong font.” Addington also refused to
permit Huppert to wear a uniform shirt with an outdated embroidered
badge when other officers were allowed to do so. He would call
Huppert to come to his office claiming he had Huppert's “pink
slip,” but would then admit he was just “kidding.” Finally,
Addington attempted to replace Huppert's “superlative” yearly
evaluation, originally conducted by Sergeant Stroup, with an
evaluation completed by Addington. After Huppert and the Patrol
Officers' Association filed a grievance against the PPD and
Addington, Baker restored Stroup's original evaluation to Huppert's
file. Huppert took a temporary disability leave in 2003, and then
retired on disability in 2004.
In May 2004, Salgado was placed on administrative leave pending an
investigation into whether he had falsified police reports in
Health and Safety Code section 11550 cases. While he admits that
he did “cut and paste” when drafting his arrest reports, he claims
this was “an accepted practice at the time in the PPD,” and that he
actually ensured that the proper individual results were accurately
recorded. In fact, he insists this practice was “encouraged by
[his] supervisors,” and he had seen other officers using his
prefabricated reports.
In July 2004, Salgado received a Notice of Proposed Disciplinary
Action, which suggested his termination. Two days before
Salgado's Skelly
1
hearing, a newspaper reporter notified him that Baker was planning
to terminate him from the PPD and the District Attorney would
institute a criminal prosecution against him. A newspaper article
stating the same was published on the day of the hearing. On the
advice of counsel, Salgado did not appear at the Skelly hearing,
and Baker terminated his employment three days later. However,
apparently Baker had a change of heart, and Salgado was reinstated.
Barbanica informed Salgado that if he were to resign, the criminal
charges would be dropped. Salgado reviewed his personnel file and
found that it had been purged of all positive references and
performance reviews. Notably absent was his 2001 Officer of the
Year award. Salgado refused to resign and was officially
terminated on August 24, 2004.
Huppert and Salgado filed this civil rights action in the Northern
District of California on April 7, 2005. The defendants moved for
summary judgment, which the court granted on November 15, 2006.
2
The district court held, primarily under Garcetti v. Ceballos, 547
U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), that because each
alleged incident of speech by either Huppert or Salgado was not
made as a private citizen, the speech was not protected from
retaliation by the First Amendment. Hence, they had no claim
under § 1983. It also granted summary judgment to the defendants
on Salgado's claims and awarded costs to the defendants. Huppert
and Salgado timely appealed.
II
We review a district court's grant of summary judgment de novo.
Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 896 (9th
Cir.2008). In determining whether summary judgment was
appropriate, we view the evidence in the light most favorable to
Huppert and Salgado, the non-moving parties. Id. A grant of
summary judgment is inappropriate if there is “any genuine issue of
material fact or the district court incorrectly applied the
substantive law.” Blankenhorn v. City of Orange, 485 F.3d 463,
470 (9th Cir.2007).
On Huppert and Salgado's appeal regarding the award of costs, we
review for clear error the district court's findings of fact with
respect to the timeliness of the cost application. Chevron USA
Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir.2004), rev'd on other
grounds sub nom., Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125
S.Ct. 2074, 161 L.Ed.2d 876 (2005). We review for abuse of
discretion the district court's refusal to strike. Idaho Potato
Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 723
(9th Cir.2005).
III
Three issues are before us on appeal. First, whether the district
court improperly dismissed on summary judgment Huppert and
Salgado's § 1983 claims for violations of the First Amendment.
Second, whether the presiding judge also erred by granting summary
judgment on Salgado's claim alleging violations of the Fourth,
Sixth, and Fourteenth Amendments. Finally, whether the district
court incorrectly awarded costs to the Appellees.
A
The Supreme Court has clearly stated that public employees do not
shed their First Amendment rights simply because they are employed
by the government. The First Amendment shields a public employee
if he speaks as a citizen on a matter of public concern. See,
e.g., Ceballos, 547 U.S. at 417, 126 S.Ct. 1951; Rankin v.
McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315
(1987); Connick v. Myers, 461 U.S. 138, 142-143, 103 S.Ct. 1684,
75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High
School Dist. 205, Will Cty., 391 U.S. 563, 569-70, 88 S.Ct. 1731,
20 L.Ed.2d 811 (1968). While this protection is applicable to
such individuals, “when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.”
Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. “The problem in any
case is to arrive at a balance between the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), we
distilled the Supreme Court's prior holdings on this issue into “a
sequential five-step” inquiry:
(1) whether the plaintiff spoke on a matter of public concern; (2)
whether the plaintiff spoke as a private citizen or public
employee; (3) whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse employment action;
(4) whether the state had an adequate justification for treating
the employee differently from other members of the general public;
and (5) whether the state would have taken the adverse employment
action even absent the protected speech.
Id. at 1070. We reaffirmed this test in Robinson v. York, 566
F.3d 817, 822 (9th Cir.2009), where we again considered whether the
district court had improperly denied qualified immunity in a § 1983
retaliation case.
Our sister circuits and the Supreme Court have said that the
question whether the plaintiff acted pursuant to his or her job
duties is antecedent to a determination whether the plaintiff spoke
regarding a matter of public concern. See, e.g., Chaklos v.
Stevens, 560 F.3d 705, 711-12 (7th Cir.2009) (“[Ceballos ] requires
a threshold determination regarding whether the public employee
spoke in his capacity as a private citizen or as an employee.”);
Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (“it is clear
that [Ceballos ] added a threshold layer to our previous
analysis”); Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir.2007)
(stating that it must decide “at the outset (1) if the government
employee spoke as an employee or citizen ․”); Weisbarth v. Geauga
Park Dist., 499 F.3d 538, 545 (6th Cir.2007) (“the threshold
inquiry [is] whether the speech was, in fact, made pursuant to the
employee's official duties”); Williams v. Dallas Ind. Sch. Dist.,
480 F.3d 689, 692 (5th Cir.2007) (“[t]he Supreme Court's recent
pronouncement in Garcetti v. Ceballos added a threshold layer ․”).
While we also believe that this should be the threshold inquiry,
we are bound by our precedent to follow the test set forth in Eng.
Where applicable below, we will move through the sequential Eng
factors. The first two prongs of this inquiry address whether the
speech should be protected under the First Amendment, while the
last three address whether that protected speech caused some
retaliatory response. However, because these are sequential
steps, as explained in Eng, failure to meet one necessarily
concludes our inquiry.
Huppert and Salgado point to four incidents where they believe
their protected speech led to retaliatory action by the Appellees:
(1) Huppert's assistance to the Contra Costa County District
Attorney's Office in 1997 and 1998 investigating corruption at the
PPD; (2) Huppert and Salgado's report and memoranda regarding
their golf-course investigation; (3) Huppert's cooperation with
the FBI in its investigation of corruption within the PPD; and (4)
Huppert's testimony before the Contra Costa County grand jury
investigating potential corruption within the PPD. We discuss each
in turn.
1
Huppert's first claim of retaliation stems from his cooperation
with the Contra Costa County District Attorney's Office in 1997 and
1998 during its investigation of the Public Works Department. He
claims that during this time he was not working as a police
officer, but instead as an assistant to the District Attorney.
Then, after his superiors at the PPD discovered his involvement
with the criminal investigation, he was “treated with scorn and as
an outcast.” Also as a result of this involvement, he claims that
he was passed over for a promotion, transferred to the Penal
Colony, and that his assistance led to additional acts of
retaliation.
3
Though he provides no evidence that any speech occurred-i.e., he
points to no record of a report, discussion with superiors, letters
to politicians, etc.-we read the facts in his favor and assume that
he engaged in some form of speech.
Under the Eng test, we first consider whether his investigation
involved a matter of public concern. “[S]peech involves a matter
of public concern when it fairly can be said to relate to ‘any
matter of political, social, or other concern to the community.’ ”
Gibson v. Office of Atty. Gen., State of Cal., 561 F.3d 920, 925
(9th Cir.2009) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684
(1983)). “Analysis of public concern is not an exact science.”
Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). “When the
employee addresses issues about which information is needed or
appropriate to enable the members of society to make informed
decisions about the operation of their government, that speech
falls squarely within the boundaries of public concern.” Id.
(internal quotation marks and citations omitted). We have said
that “[u]nlawful conduct by a government employee or illegal
activity within a government agency is a matter of public concern.”
Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004).
Furthermore, “misuse of public funds, wastefulness, and
inefficiency in managing and operating government entities are
matters of inherent public concern.” Johnson v. Multnomah County,
48 F.3d 420, 425 (9th Cir.1995). It is clear to us that an
investigation into corruption and misconduct at the local Public
Works Department-typically a municipal department created to
provide multiple public services to community members-is a matter
of public concern. Cf. Robinson, 566 F.3d at 823.
However, it is less apparent that Huppert meets the second prong
of the Eng test. As explained in Eng, “the plaintiff bears the
burden of showing the speech was spoken in the capacity of a
private citizen and not a public employee.” 552 F.3d at 1071
(citing Ceballos, 547 U.S. at 421-22, 126 S.Ct. 1951). While the
Supreme Court did not delineate a “comprehensive framework” for
determining when speech is pursuant to an employee's job function,
it provided guidance for lower courts to follow when making such a
decision. Ceballos, 547 U.S. at 424, 126 S.Ct. 1951.
Ceballos said that speech which “owes its existence to an
employee's professional responsibilities” is not protected by the
First Amendment. Id. at 421, 126 S.Ct. 1951. Additionally, if
the public employee was paid for the speech-e.g., drafting a
memorandum, creating a report, advising a supervisor-then that
compensation might be indicative of the nature of the speech. Id.
at 422, 126 S.Ct. 1951. An adverse employment action for this
type of speech “does not infringe any liberties the employee might
have enjoyed as a private citizen. It simply reflects the
exercise of employer control over what the employer itself has
commissioned or created.” Id. at 421-22, 126 S.Ct. 1951. Our
inquiry should be practical and look beyond the job description to
the duties the employee actually performs. Id. at 424, 126 S.Ct.
1951. Speech which has “no official significance” and bears
“similarities to [actions taken] by numerous citizens everyday”
falls outside the ambit of an employee's job duties and would be
protected by the First Amendment. Id. at 422, 126 S.Ct. 1951.
Only twice since Ceballos have we had the opportunity to determine
whether an employee's speech was pursuant to his official duties.
4
First, in Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), we
examined multiple different complaints by Freitag, a female prison
guard, regarding sexual harassment by male prisoners. We held
that Freitag's reports of sexual harassment, complaints to her
superiors within the prison system, and documentation of the prison
system's response to her complaints were all examples of
unprotected speech.
5
Id. at 544, 546. On the other hand, with regard to her
communication outside the prison system to her state senator and
the appointed inspector general, “we [found] it clear that [those]
communications [we]re protected under the First Amendment.” Id. at
545. We held that “her right to complain both to an elected
public official and to an independent state agency is guaranteed to
any citizen in a democratic society regardless of his status as a
public employee.” Id.
Then, in Marable v. Nitchman, 511 F.3d 924 (9th Cir.2007), we
concluded that a complaint by Marable, an engineer for the
Washington State Ferries (“WSF”), alleging high-level corruption
and mismanagement of funds was outside a ferry-worker's job duties.
We applied the requisite “practical inquiry” to whether Marable's
complaints concerning corrupt overpayment schemes was speech
pursuant to his job duties, and found it was not. Id. at 932
(“Functionally ․ it cannot be disputed that his job was to do the
tasks of a Chief Engineer on his ferry, and such tasks did not
include pointing to corrupt actions of higher level officials whom
he purportedly thought were abusing the public trust and converting
public funds to their own use by overpayment schemes.”). We noted
that “[h]e was not responsible for attempting to ensure that his
superiors abstained from allegedly corrupt financial schemes.” Id.
at 933. In total, we found four instances of Marable's protected
speech: (1) complaints to the former chief executive officer of
the WSF, (2) conversations with the Department of Transportation
auditor, (3) a complaint to the State Executive Ethics Board, and
(4) two phone calls to Nitchman, the WSF Maintenance Director. Id.
at 929.
Our sister circuits have also weighed in, providing additional
analysis to guide our decision. First, in Morales v. Jones, 494
F.3d 590 (7th Cir.2007), the Seventh Circuit held that a police
officer's conversations with superiors and assistant district
attorneys discussing an arrest was obviously part of the officer's
duties. Id. at 597. On the other hand, the court concluded that
being deposed as a witness in a separate § 1983 action for
retaliation by the police chief against another police officer was
clearly not part of an officer's job. Id. at 595, 598. The Fifth
Circuit has determined that one indicator might be whether an
individual complains “up the chain of command” or instead relays
“his concerns to persons outside the work place.” Davis v.
McKinney, 518 F.3d 304, 313 (5th Cir.2008). And, the Seventh
Circuit again considered the question in 2008 in Tamayo v.
Blagojevich, 526 F.3d 1074 (7th Cir.2008). However, this time it
found that the speech was not protected, because reporting
misconduct and wrong-doing at a legislative hearing was part of the
plaintiff's job as “an employee with significant and comprehensive
responsibility for policy information and implementation.” Id. at
1092.
This brings us back to any statements Huppert may have made during
the investigation at the Public Works yard. Huppert argues that
he was not acting as a police officer during his cooperation with
the District Attorney's office. Instead, he claims he was an
“assistant to the District Attorney.” However, in his deposition,
Huppert concedes that he was asked to participate in the
investigation, and subsequently assigned to do so, by the police
department. While his investigative work might have been
supervised by the District Attorney's office, his six-month
assignment was at the direction of his superiors and, as a police
officer, in his official capacity as a peace officer.
2
Second, both Huppert and Salgado argue they were retaliated against
after they completed their investigation into improper conduct at
the Pittsburg Golf Course.
6
Here they claim that their charge was to investigate corruption
and gambling by PPD officers at the city golf course. Together,
they produced an investigative report detailing their findings,
which included information about waiver of fees for PPD employees,
gambling in the golf course's sports bar by members of the PPD, and
other improper conduct. The report also included a list of PPD
officers who took advantage of free golf. They claim this report
is protected speech which ultimately led their superiors to take
multiple retaliatory actions against them.
Their argument is remarkably similar to Huppert's contention
regarding the Public Works yard. As we have already noted, an
investigation into corruption at a public department is most
certainly a matter of public concern. The same is true for
corruption within or concerning the police force. See Thomas, 379
F.3d at 809; Johnson, 48 F.3d at 425; McKinley v. City of Eloy,
705 F.2d 1110, 1114 (9th Cir.1983) (“the competency of the police
force is surely a matter of great public concern”). However, it
is more difficult to determine whether Huppert and Salgado were
speaking as public employees or private citizens.
Huppert and Salgado argue that they were not acting pursuant to
their job duties because, while Baker had originally assigned them
to conduct the inquiry, he then ordered them to discontinue their
investigation after only two interviews. However, their immediate
supervisor, Hendricks, told them to continue the investigation and
encouraged them to report the results. They followed Hendricks's
direction and completed their investigation, which culminated in a
memorandum directed to Chief Baker and the City Manager.
This is one of the clearest examples of speech pursuant to one's
job duties. Though Huppert and Salgado would have us believe that
they acted outside the chain-of-command by continuing their
investigation in direct contravention to Baker's demand that they
cease, Hendricks ordered them to continue. Furthermore, Hendricks
informed Baker that Huppert and Salgado would be probing deeper
into misconduct at the Golf Course. “When [they] went to work and
performed the tasks [they were] paid to perform, [Huppert and
Salgado] acted as ․ government employee[s]. The fact that [their]
duties sometimes required [them] to speak or write does not mean
[their] supervisors were prohibited from evaluating [their]
performance.” Ceballos, 547 U.S. at 422, 126 S.Ct. 1951.
Therefore, we find that Huppert and Salgado's report, created after
their investigation into misconduct at the Golf Course, was also
not protected speech.
3
Huppert's third claim is that he was the subject of retaliatory
action following his cooperation with the FBI, which began sometime
in 2001. From his declaration, it appears he assisted in their
investigation probing corruption at the PPD, which he claims was
“outside [his] duties as a member of the PPD.” In his declaration,
Huppert states that he “met with Investigator Leary, Deputy
District Attorney Sepulveda, and Special Agent Joe Davidson of the
FBI.” He claims that this communication took place entirely “on
[his] personal time.” This claim differs from his first two
retaliation arguments because there is no evidence that he was
following the direct orders of his superiors at the time he
participated in the investigation. Yet, while Huppert again
satisfies the first prong of the Eng test, he fails at the second.
The California courts have repeatedly articulated the duties of a
police officer within the state. As the oft-quoted passage in
Christal v. Police Commission of City and County of San Francisco,
33 Cal.App.2d 564, 92 P.2d 416, 419 (1939), states:
The duties of police officers are many and varied. Such officers
are the guardians of the peace and security of the community, and
the efficiency of our whole system, designed for the purpose of
maintaining law and order, depends upon the extent to which such
officers perform their duties and are faithful to the trust reposed
in them. Among the duties of police officers are those of
preventing the commission of crime, of assisting in its detection,
and of disclosing all information known to them which may lead to
the apprehension and punishment of those who have transgressed our
laws. When police officers acquire knowledge of facts which will
tend to incriminate any person, it is their duty to disclose such
facts to their superiors and to testify freely concerning such
facts when called upon to do so before any duly constituted court
or grand jury. It is for the performance of these duties that
police officers are commissioned and paid by the community․
See also Riverside County Sheriff's Dep't v. Zigman, 169
Cal.App.4th 763, 768, 87 Cal.Rptr.3d 358 (2008); Titus v. Civil
Serv. Comm'n, 130 Cal.App.3d 357, 181 Cal.Rptr. 699, 702-03 (1982);
Szmaciarz v. State Pers. Bd., 79 Cal.App.3d 904, 915, 145
Cal.Rptr. 396 (1978); see also Frazee v. Civil Serv. Bd. of City
of Oakland, 170 Cal.App.2d 333, 338 P.2d 943, 945 (1959).
Though Huppert argues that he was repeatedly informed by the FBI
that his investigatory work was outside his duties as a police
officer, this is not enough to overcome California's jurisprudence
defining such duties. It is clear that in California a police
officer's official duties include investigating corruption, so as
to “prevent[ ] the commission of crime, ․ [and] assist[ ] in its
detection.” Christal, 92 P.2d at 419. While we do not know the
contents of any speech that Huppert made, we do know that such
conversations with the FBI would have been to “disclos[e] all
information known to [Huppert]” regarding the alleged acts of
corruption within the PPD. This obviously encompasses his duty to
uphold the law specifically entrusted to California's peace
officers.
4
Huppert's fourth and final cause of action hinges on alleged
retaliation following his testimony before the county grand jury,
which was also investigating corruption at the PPD. Again, under
Christal and its progeny, it is manifest that California expects
such testimony from its police officers. As the California Court
of Appeal made clear: “When police officers acquire knowledge of
facts which will tend to incriminate any person, it is their duty
to disclose such facts to their superiors and to testify freely
concerning such facts when called upon to do so before any duly
constituted court or grand jury.” Id. (emphasis added).
Testifying before a grand jury charged with investigating
corruption is one part of an officer's job. As the Supreme Court
explicitly stated, “[r]estricting speech that owes its existence to
a public employee's professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.
It simply reflects the exercise of employer control over what the
employer itself has commissioned or created.” Ceballos, 547 U.S.
at 421-22, 126 S.Ct. 1951; see also Deprado v. City of Miami, 446
F.Supp.2d 1344, 1346 (S.D.Fla.2006) (“In accordance with the Police
Department's regulations, and the plaintiff's obligations as a
State-certified law enforcement officer, plaintiff's subpoenaed
grand jury testimony occurred pursuant to his official duties as a
police officer for the City of Miami Police Department, and was not
speech as a private citizen.”). Therefore, any speech Huppert
gave during his grand jury testimony was “pursuant to his duties as
a [police officer],” and that speech is not protected by the First
Amendment. Id. at 421, 126 S.Ct. 1951.
We decline to follow the Third Circuit's decision in Reilly v.
Atlantic City, 532 F.3d 216 (3d Cir.2008). There, the Third
Circuit considered whether a police officer's truthful trial
testimony was protected speech. Reilly, an Atlantic City police
officer, was called to testify for the prosecution in a trial
against another police officer for allegedly running a prostitution
ring and other misconduct. Id. at 220. Reilly had received
inside information regarding the accused through his work as an
investigator at the police department. Id. The Third Circuit found
that testimony at trial was protected because “[i]t is axiomatic
that ‘every citizen ․ owes to his society the duty of giving
testimony to aid in the enforcement of law.’ ” Id. at 228
(quoting Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81
S.Ct. 1720, 6 L.Ed.2d 1028 (1961)). Because “offering truthful
testimony is the responsibility of every citizen, ․ [w]hen a
government employee testifies truthfully, [he] is not simply
performing his or her job duties; rather, [he] is acting as a
citizen and is bound by the dictates of the court and the rules of
evidence.” Id. at 231.
The court admitted that it was answering the question of “whether
truthful trial testimony arising out of the employee's official
responsibilities constitutes protected speech.” Id. at 230
(emphasis added). It went on to concede that “Reilly's trial
testimony appears to have stemmed from his official duties in the
investigation.” Id. at 231. However, instead of finding that
this was obviously speech pursuant to Reilly's job duties, the
court took a swift turn to conclude that truthful testimony is
never part of a police officer's duties. Id. This is in sharp
contradiction to the Supreme Court's holding in Ceballos, which
drew a distinct line between speech pursuant to one's job duties
and speech in a private capacity. By first finding that Reilly's
speech was pursuant to his job duties, but subsequently concluding
that it was protected by the First Amendment, the Reilly court
impermissibly began chipping away at the plain holding in Ceballos.
Judge Fletcher's dissent relies on two other cases to show that a
police officer's grand jury testimony should be protected as a
matter of law. The first, Morales, is clearly distinguishable on
the facts. 494 F.3d 590. The second, Evans v. Housing Authority
of Benicia, No. 2:07-cv-0391, 2008 WL 4177729 (E.D.Cal.Sept. 8,
2008), is merely unbinding precedent which does not interpret the
obligation of a California police officer to testify regarding
crime.
First, in Morales, the Seventh Circuit found that “[b]eing deposed
in a civil suit pursuant to a subpoena was unquestionably not one
of Morales' job duties.” 494 F.3d at 598. The court noted that
though Morales had gained information for the civil suit while
working as a police officer, and had even testified regarding
actual speech he made pursuant to his job duties, any retaliation
taken because he testified in this deposition was impermissible.
Id. This holding is understandable. Morales' statements were
made in a civil suit brought by another officer against the Chief
of Police and the Deputy Chief. California's courts have never
said that it expects its police officers to assist other officers
in their individual civil suits against present or former
employers. Testimony related to the discovery and cessation of
crime, however, is an obligation. That was not the question posed
to the Seventh Circuit, and Judge Fletcher reads that court's
holding too broadly.
Also, in Evans, Evans was the former accountant and bookkeeper for
the Benicia Housing Authority (“BHA”), which is an “independent
public agency created to provide low-cost housing to the city.”
2008 WL 4177729, at *1. Evans realized that his former boss,
Peterson-the then manager and Executive Director of the BHA-was
operating on reduced work hours and failing to collect rent or
assess late fees to delinquent tenants. Id, at *2. In October
2004, a grand jury was convened to investigate operations at the
BHA. Id. Peterson first testified before the grand jury regarding
overall business practices within the BHA, and then when Evans
testified in late November, he explained “tenant rent account
irregularities and Peterson's reduced work hours.” Id. Following
Evan's testimony, Peterson placed Evans on administrative leave
and, ultimately, terminated him.
The district court held that “Evans' statements to the Grand Jury
concerning the tenant rent account irregularities and Peterson's
reduced working hours ․ [were] not made pursuant to Evans' official
job duties.” Id. at *7. Hence, under Ceballos, the statements
were protected by the First Amendment and any retaliatory action
taken violated Evans' constitutional rights.
In addition to the reality that Evans cannot and does not bind us,
it is so factually distinguishable as to be irrelevant to our
discussion here. Evans was an accountant working for the city's
independent housing authority. The California courts have never
explicitly, or even impliedly, stated that one duty of an
accountant at a public agency is to testify before grand juries.
It comports with our understanding of Ceballos that such testimony
would be outside the practical duties of a bookkeeper. However,
this says nothing about whether California expects its police
officers to testify about alleged criminal conduct. Judge
Fletcher's reliance on this case is unavailing and unpersuasive
here, merely discussed because the court chose to protect the
speech of a person testifying before a grand jury. The question
is not whether such testimony occurred, but instead whether the
obligation to provide that testimony “owes its existence to an
employee's professional responsibilities.” Ceballos, 547 U.S. at
421, 126 S.Ct. 1951.
Our holding does not imply that a police officer might never be
protected if he speaks on issues such as corruption, for we
recognize that “[e]xposing governmental inefficiency and misconduct
is a matter of considerable significance.” Ceballos, 547 U.S. at
425, 126 S.Ct. 1951. Even though we find that, under California
law, testimony such as Huppert's is within the duties of a police
officer, speech outside one's official duties remains protected by
the First Amendment. See id. at 422, 126 S.Ct. 1951 (noting that
a letter to the newspaper is similar to speech undertaken by
citizens on a daily basis); Freitag, 468 F.3d at 545 (holding that
complaints to an elected official and independent reviewing officer
are outside a prison guard's work duties).
5
There exist other avenues of recourse available to protect an
officer who exposes misconduct within the police department and is
subsequently subjected to retaliation. States, including
California, have created “whistle-blower” statutes for this exact
purpose, and our holding today does not impact those statutes.
See, e.g., Cal. Gov.Code § 8547-8547.12. As the majority in
Ceballos explicitly stated, “[t]he dictates of sound judgment are
reinforced by the powerful network of legislative enactments-such
as whistle-blower protection laws and labor codes-available to
those who seek to expose wrongdoing.” 547 U.S. at 425, 126 S.Ct.
1951.
Our conclusion today enforces these statutes and empowers a state
to choose the appropriate remedy for an individual who speaks on
this type of issue and is then subjected to retaliation. Further,
it is these statutes that protect officers from the “Catch
22”-i.e., either not complying with a subpoena and being found in
contempt of court, or testifying only to then be the subject of
retaliation-that concerns Judge Fletcher. Yet, under Ceballos,
these individuals are not entitled to the protections of the Civil
Rights Act or the remedies accompanying a victorious § 1983 suit
when speaking pursuant to their official duties.
B
In addition to his First Amendment claims, Salgado also appeals the
district court's grant of summary judgment on his § 1983 claim for
violations of his rights under the Fourth, Sixth, and Fourteenth
Amendments. As with Huppert's claims regarding retaliation from
his cooperation with the FBI, Salgado fails to identify concrete
claims, bolster those claims with facts, or cite legal authority
pertaining to the claims. These claims are therefore abandoned.
See Fed. R.App. P. 28(a)(9)(A); Xin Liu, 347 F.3d at 1138.
C
Finally, Huppert and Salgado contend that the district court
improperly awarded costs to the Appellees. They do not challenge
the court's determination that the Appellees were the prevailing
party; instead they argue that the Appellees failed to timely file
their costs, rendering an award inappropriate. Local Rule section
54-1(a) states: “No later than 14 days after entry of judgment or
order under which costs may be claimed, a prevailing party claiming
taxable costs must serve and file a bill of costs․” While the
district court issued its summary judgment ruling on November 15,
2006, the final order was not docketed until November 17, 2006.
The Appellees filed their bill of costs on November 30, 2006,
within the fourteen-day time period required by the Local Rules.
IV
We affirm the district court's grant of summary judgment on all
claims and the award of costs.
AFFIRMED.
I respectfully dissent.
Former police officers Ron Huppert and Javier Salgado
(“Plaintiffs”) sued their former employer, the City of Pittsburg,
California, and several individual members of the Pittsburg Police
Department (“PPD”) (collectively, “Defendants”) under 42 U.S.C.
§ 1983 and several provisions of California law. Their § 1983
suit was primarily based on the contention that Defendants
unlawfully retaliated against them for engaging in speech protected
under the First Amendment. Huppert contends that he engaged in
constitutionally protected speech on four occasions. Salgado
contends that he engaged in constitutionally protected speech on
the third of these occasions. Plaintiffs contend that Defendants
unlawfully retaliated against them for this speech. The district
court granted summary judgment against Plaintiffs on their First
Amendment claims based on Garcetti v. Ceballos, 547 U.S. 410, 126
S.Ct. 1951, 164 L.Ed.2d 689 (2006).
The majority concludes that Huppert and Salgado's speech on these
four occasions was not protected under the First Amendment. I
agree with the majority with respect to Huppert's speech on the
first occasion. But I disagree with the majority with respect to
Huppert's speech on the second, third, and fourth occasions and
Salgado's speech on the third occasion.
I. Factual Background
The majority opinion provides a somewhat truncated narrative of the
evidence before the district court. I provide a more extended,
free-standing narrative of that evidence, laying the full
foundation for Huppert and Salgado's First Amendment claims. I
could have made my narrative shorter by adding discrete pieces of
information to supplement the majority's narrative in various
places, but the result would have been choppy and awkward. My
narrative is necessarily somewhat redundant, but it is intended to
make the reader's ultimate task easier. My narrative relies only
on evidence in the record that is properly cognizable on summary
judgment.
In his sworn declaration, Plaintiff Huppert states that he joined
the PPD in 1991. In 1995, when he was a patrol officer, he was
assigned to work a continuous 24-hour shift at the Pittsburg
Seafood Festival. He requested a modification of the shift to
allow breaks during the 24-hour period. After the request was
denied, he consulted a labor attorney. Without Huppert's
knowledge, the attorney contacted the PPD. Defendant Aaron Baker
was then a Lieutenant in the PPD. Then-Lieutenant Baker was
“unhappy” with Huppert as a result of his complaint about his
24-hour shift. At Baker's direction, Huppert was presented with a
letter asking him to acknowledge his sick leave abuse. Huppert
refused to sign the letter and demanded to see his “sick leave
slips” for the relevant period. Huppert states that the matter
was then “apparently dropped.”
Huppert states that in 1996, after he had been promoted to
Inspector, he was assigned to investigate a vehicular manslaughter
case.
One of Huppert's supervisors, Sergeant Keeler, had been
pursuing a carjacking suspect at speeds of up to 100 m.p.h. without
using his siren or emergency lights. During the chase, the
suspect struck and killed an innocent third person. Huppert
reported his “concerns about Keeler's conduct during the pursuit.”
He also reported Keeler's use of “racial slurs, including
‘nigger’ and ‘gorilla’ with reference to African-Americans.”
Keeler was a personal friend of Baker. Now a Commander, Baker
charged Huppert with misconduct for not having previously reported
Keeler's use of racial slurs and sent him a “warning” letter. (In
his sworn declaration, Baker calls it a “letter of advisement.”)
Huppert states that even though Keeler's use of racial slurs was
verified by another officer, Baker concluded that Huppert's report
was “unfounded.”
Huppert states that in 1997 and 1998, he was selected by the Contra
Costa County District Attorney to assist with an investigation into
corruption at the public works yard. “From that time on, my
superiors treated me with scorn and as an outcast.”
Huppert states that in 1998 he took the sergeant's exam. He
finished first on the written portion. During the oral portion of
the exam, he was questioned “mostly” about his goatee. He was not
promoted to sergeant. The day after the oral examination, Baker
told him that he had been passed over because of the goatee.
Huppert states that sometime prior to 2001 he began cooperating
with the FBI in an investigation of corruption in the PPD. Huppert
characterizes this cooperation as being “outside [his] duties as a
member of the PPD.” Defendant Baker had been promoted to Chief of
Police in September 1998. Huppert states that Baker learned of
his cooperation with the FBI and in 2001 had him transferred from
Investigations to Code Enforcement. Commander William Hendricks
was in charge of this unit. Hendricks states in his sworn
declaration that the Code Enforcement unit “was known as the ‘Penal
Colony’ because disaffected and/or disfavored officers were
assigned there.” He states, “Chief Aaron Baker expressly ordered
me to terminate plaintiff Huppert or force him to take a position
outside the Department; then-Lieutenant William Zbacnik was
present during this conversation.” Huppert states in his
declaration that Hendricks told him that Baker had “told him to see
that I left or find a way to fire me.”
Huppert states that Defendant Zbacnik told him that he was not
allowed to work overtime for the six-month period between January
and June 2001. Huppert was physically transferred from the newly
rebuilt Pittsburg Civic Center to a building where the “Penal
Colony” worked. Huppert's office in the Penal Colony was a “tiny
converted bathroom without computer access.” Even though Huppert
was assigned to investigate gangs, the Penal Colony building did
not have “a secured area that a Gang and Intelligence office would
need.”
Plaintiff Salgado states in his sworn declaration that in September
2001 he was assigned to the Code Enforcement unit and became
Huppert's partner. Both Huppert and Salgado state that the City
Manager then asked them to “investigate possible corruption at the
City-owned golf course.” They state that Baker told them not to
inform their superior, Hendricks, of the investigation. Their
investigation “revealed improper conduct by members of the PPD,
including gambling, accepting free golf, and possible illegal drug
activity.” Hendricks states in his declaration that after two
interviews and only one day of investigating, Baker ordered Huppert
and Salgado to stop the investigation.
Hendricks states, “I tried to protect [Huppert and Salgado] from
any retaliation. I went to the FBI with what I believed to be a
major gambling operation, and told Baker that I had referred the
matter to the FBI. I learned from my discussions with Chief Baker
and others that Zbacnik, Lt. Robert Gomez, and other people under
Zbacnik's command were involved in illegal activity at the Golf
Course. I told Baker that he may be violating the law by trying
to bury the investigation by Huppert and Salgado. Baker
threatened me with my career if I continued to press the matter.”
Huppert states that he and Salgado continued to investigate “with
the knowledge and encouragement of Hendricks.” Hendricks states
that Baker ordered them not to write a report, but Huppert states
that he nonetheless reported their “initial findings” in an
“ ‘abridged’ memo.” Huppert states that his report included “a
finding that defendant Zbacnik had accepted thousands of dollars in
gratuities and other illegal perks.” However, Baker took “no
action” against Zbacnik, “calling Zbacnik's actions a ‘training
issue.’ ” Huppert states that he and Salgado informed only Baker
and the City Manager of their findings. However, he stated that
Ray Giacamelli, a member of the PPD and a personal friend of
Zbacnik, told Huppert and Salgado that “we were sticking our noses
where they did not belong and that we were ‘going to go down.’ ”
Huppert and Salgado reported the threat to Baker, but Baker said
that “no investigation was warranted.”
Huppert and Salgado state that in May 2002 the Code and Enforcement
unit was moved back to the main Civic Center building. They were
not given an office initially, but were eventually assigned one in
“an old storage room.”
Huppert states that in December 2002, Hendricks was “forced out.”
Defendant Michael Barbanica became the new supervisor of their
unit. In January 2003, Barbanica and Defendant William “Brian”
Addington falsely accused Huppert and Salgado of having engaged in
an improper pursuit. Huppert and Salgado state that neither of
them had been involved in the pursuit in question. Barbanica
initially said that an “ ‘anonymous concerned citizen’ ” had called
to complain about Huppert and Salgado's alleged pursuit, but
Barbanica later admitted that he had made this up.
Huppert and Salgado state that in late 2003 and early 2004 their
supervisor was Sergeant Reposa. When Reposa was absent, neither
Huppert nor Salgado was permitted to serve as acting supervisor,
even though that would have been the normal practice. Huppert and
Salgado were thereby denied the opportunity to earn “out-of-class
pay.”
Huppert and Salgado state that in February 2004,
Defendant Wayne
Derby became their supervisor. Derby informed them that he was
Baker's “ ‘hatchet man’ ” and that Baker saw them as “malcontents.”
Derby took away the unmarked undercover car that Salgado had
previously driven and replaced it with a Ford Taurus that, while
unmarked, was “easily recognizable as a police vehicle.” Driving
the Taurus “hindered” Huppert and Salgado's “ability to function as
gang detectives.”
Huppert states that in March 2004 he was subpoenaed to testify
before a civil grand jury that was “probing corruption in the PPD.”
Huppert had been contacted about the probe several years earlier by
Senior Investigator Tom Leary of the Contra Costa County District
Attorney's Office. On what he describes as his “personal time,”
Huppert had met with Leary, Deputy District Attorney Sepulveda, and
FBI Special Agent Joe Davidson. Huppert states that Davidson told
him that his “actions in connection with the probe were as an
individual and not in my capacity as a member of the PPD.” Grand
jury subpoenas were delivered to the PPD for service on about a
dozen individual officers. Huppert was served with his subpoena
in front of other PPD officers, and the subpoena was recorded in a
log posted in the break room. Huppert states that Baker told him
that he knew he had testified before the grand jury. However,
Baker states in his declaration that “I was not aware that Huppert
ever testified before the Grand Jury regarding these issues.”
Baker states further, “I have never been informed of the substance
of such testimony by Huppert.”
Huppert states that after he testified before the grand jury,
Defendant Derby informed him that his position as gang investigator
was being “eliminated.” Huppert was transferred to the
Investigations unit where his supervisor was Defendant Addington.
Although detectives junior to Huppert were assigned to “person
crimes,” Huppert was assigned to fraud, which was regarded as a
less desirable assignment. After Huppert was assigned to fraud,
Addington changed the procedure so that all fraud cases originating
with the Patrol Bureau came to Huppert. Previously, fraud cases
originating with the Patrol Bureau could be closed at that level.
Under the new procedure, Huppert was required to close those cases
and to write reports for all of them. Huppert states that the
change was a “purposeless increase in workload intended to harass
me.”
Huppert states that Addington engaged in numerous acts to make his
work life difficult. For example, he sent reports back to Huppert
“because of ‘flaws' such as the letter ‘M’ (for ‘Male’) being in
the wrong font”; he refused to allow Huppert to wear a uniform
shirt with an out-of-date embroidered badge when other officers
were permitted to do so; and he told Huppert to come see him
because he had his “ ‘pink slip,’ ” and then said he was kidding.
Further, Addington attempted to replace a “superlative” yearly
evaluation of Huppert by Sergeant Stroup that was already in his
personnel file with an evaluation of his own, even though Addington
had not been Huppert's supervisor at the time in question. After
Huppert and the Patrol Officers' Association filed a grievance
against the PPD and Addington, Baker restored Stroup's evaluation
to Huppert's file.
Beginning in April 2005, Huppert retired on disability due to a
knee injury. He states in his declaration that elective surgery
on his knee “might” have enabled him to return to active police
work. “However, given the persistent and pervasive discrimination
and harassment I suffered, the fact that my long-time partner,
Salgado, was terminated after he began his association with me, and
the other means by which the defendants in this action sought to
destroy my career and the careers of other good officers, I
accepted the disability retirement and elected not to undergo
surgery.” (In the district court, Huppert claimed racial
discrimination in violation of state law, and his reference to
“discrimination” in the just-quoted sentence is a reference to that
claim. Huppert has not appealed the district court's summary
judgment ruling on his state-law discrimination claim.)
Salgado states that in late 2003 and early 2004, Addington began
investigating PPD Officer Jim Hartley for alleged falsification of
reports. It was “apparent” to Salgado that “Addington disliked
Hartley and was seeking to terminate him.” Addington attempted to
persuade Salgado to “claim first-hand knowledge of incidents I had
not witnessed.” Salgado refused.
Salgado states that in May 2004 he was placed on administrative
leave pending an investigation into whether he had falsified
reports in
California Health and Safety Code § 11550 (“driving
under the influence”) cases. Salgado states in his declaration
that he “did ‘cut and paste’ when writing such reports,” but that
this was “an accepted practice at the time in the PPD.” He states
that “the individual test results for each suspect were accurately
recorded.” Salgado states further that “cutting and pasting ․ was
actually encouraged by some supervisors.” “On several occasions
defendants Barbanica and Addington asked me to provide officers
with one of my preformatted reports, and during the investigation
of my reports I saw reports written by officers Raman, Albanese,
and Wentz using my template․ A number of the questioned reports
that led to my termination were in fact reviewed and approved by
defendants Addington and Barbanica, both of whom were also present
at some of the arrests in question.”
Salgado states that in July 2004 he was given a Notice of Proposed
Disciplinary Action proposing his termination from the PPD. Two
days before his scheduled hearing under Skelly v. State Personnel
Board, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (1975),
Salgado received a telephone call from a newspaper reporter who
told him that Baker was planning to terminate him and that the
District Attorney would bring a criminal prosecution. A newspaper
article to that effect appeared on the day scheduled for the
hearing. On advice of counsel, Salgado did not appear. Baker,
performing as Acting City Manager, terminated Salgado's employment
three days later. Shortly thereafter, Baker reinstated Salgado.
Defendant Barbanica then informed Salgado that if he resigned, all
criminal charges would be dropped. Salgado learned, however, that
his personnel file was being “purged of all positive references.”
Salgado looked at his file and discovered that all of his good
performance reviews had been removed, including his 2001 Officer of
the Year award. Salgado did not resign and was formally
terminated in late August 2004.
Defendant Addington testified in his deposition that one of the two
Deputy District Attorneys to whom he spoke was reluctant to file
criminal charges against Salgado. Addington testified that after
he made “my own pitch” to the Deputy criminal charges were filed.
Salgado pleaded no contest to five felony counts of falsifying
reports in violation of California Penal Code § 118.5.
Except as noted during the course of the foregoing narrative,
Defendants do not contest the factual accuracy of Huppert, Salgado,
and Hendricks' sworn declarations.
II. Legal Background
For nearly four decades, we determined whether a public employee's
speech was protected under the First Amendment by following the
analysis in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968). In Pickering, a public school
teacher had sent a letter to the editor of the local newspaper
criticizing the board of education and superintendent of schools
for their handling of school funding. See id. at 564, 88 S.Ct.
1731. The teacher was fired in retaliation for the letter. He
brought suit, claiming that the First Amendment protected his
speech. The Supreme Court agreed, stating that speech deserves
First Amendment protection when it addresses “a matter of
legitimate public concern.” Id. at 571, 88 S.Ct. 1731.
The Supreme Court's recent decision in Garcetti v. Ceballos, 547
U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), has made it more
difficult for government employees to establish that their speech
is protected under the First Amendment. Ceballos, a deputy
district attorney, concluded that an affidavit used to obtain a
search warrant in a pending criminal case contained “serious
misrepresentations.” Id. at 414, 126 S.Ct. 1951. He stated this
in a “disposition memorandum” to his supervisors, who allegedly
retaliated against him because of the memorandum. Id. at 414-15,
126 S.Ct. 1951. Ceballos brought suit under § 1983, claiming that
his speech was protected under the First Amendment. The Court
disagreed, holding that “when public employees make statements
pursuant to their official duties, the ․ First Amendment ․ does not
insulate their communications from employer discipline. Ceballos
wrote his disposition memo because that is part of what he, as a
calendar deputy, was employed to do.” Id. at 421, 126 S.Ct. 1951.
The Court wrote that “the parties in this case do not dispute that
Ceballos wrote his disposition memo pursuant to his employment
duties. We thus have no occasion to articulate a comprehensive
framework for defining the scope of an employee's duties in cases
where there is room for serious debate.” Id. at 424, 126 S.Ct.
1951. However, the Court did provide a few guidelines. It
explicitly rejected the “suggestion that employers can restrict
employees' rights by creating excessively broad job descriptions.”
Id. Rather, the Court stated that “[t]he proper inquiry is a
practical one[,]” as “[f]ormal job descriptions often bear little
resemblance to the duties an employee actually is expected to
perform.” Id. at 424-25. The Court also noted that speaking in
the workplace, rather than in public, does not necessarily mean
that the speech was made pursuant to official duties. See id. at
420-21, 126 S.Ct. 1951. Furthermore, whether the speech concerns
“the subject matter of [the speaker's] employment ․ is
nondispositive.” Id. at 421, 126 S.Ct. 1951.
In four cases decided after Ceballos, we have addressed whether a
government employee's speech was made pursuant to his or her
official duties. The first case is Freitag v. Ayers, 468 F.3d 528
(9th Cir.2006), in which Freitag, a correctional officer at Pelican
Bay Prison, complained that inmates were sexually harassing her and
undermining her ability to impose discipline by repeatedly
masturbating in front of her. Freitag first complained to her
supervisors about the sexual harassment. She complained to them
again after they repeatedly refused to take disciplinary action
against the offending prisoners. For example, one of Freitag's
supervisors threw away the form on which she had reported
masturbation, saying that she was the only person who had a problem
with this inmate and that “it's only sex.” Id. at 533.
When Freitag's immediate supervisors continued to ignore and
belittle her complaints, she wrote to the head of the California
prison system, the Director of the California Department of
Corrections and Rehabilitation (“CDCR”). After her supervisors
retaliated against her for having written to the Director, Freitag
contacted a state senator and California's Office of the Inspector
General (“Inspector General”), an independent agency that oversees
the CDCR. Freitag's supervisors further retaliated against her for
having contacted the state senator and the Inspector General.
We were unsure, based on the record before us, whether Freitag's
letter to the Director of the CDCR was protected speech under the
First Amendment. We remanded for a factual determination of the
scope of Freitag's “official duties,” stating that “[w]e are unsure
whether prison guards are expected to air complaints ․ all the way
up to the Director.” Id. at 546. However, we were certain that
Freitag had not spoken “pursuant to [her] official duties,” and
that she was protected by the First Amendment, when she contacted
the state senator and the Inspector General. Id. at 545. We
wrote:
Freitag acted as a citizen when she wrote letters to Senator
Polanco and communicated with the Inspector General regarding her
complaints of sexual harassment. Her right to complain both to an
elected public official and to an independent state agency is
guaranteed to any citizen in a democratic society regardless of his
status as a public employee. Under Ceballos, Freitag does not
lose her right to speak as a citizen simply because she initiated
the communications while at work or because they concerned the
subject matter of her employment.
Id. (citations omitted); see also Fuerst v. Clarke, 454 F.3d 770
(7th Cir.2006) (holding that plaintiff deputy sheriff's adverse
comments on the sheriff's decision to hire a public relations
officer were not made pursuant to his official duties).
The second case is Marable v. Nitchman, 511 F.3d 924 (9th
Cir.2007), in which Marable, a Chief Engineer in charge of the
engine department of a ferry operated by the Washington State
Ferries (“WSF”), complained of corrupt financial practices by WSF
managers. He complained in two telephone calls to the Maintenance
Director of the WSF; in two conversations with a Washington
Department of Transportation auditor; in a conversation with a
former CEO of the WSF; and in a complaint to the Washington
Executive Ethics Board. See id. at 929. Marable's superiors
retaliated against him for having made these complaints.
We held that Marable's complaints were protected by the First
Amendment. We wrote:
At the outset, we think it worth noting that an employee's charge
of high level corruption in a government agency has all of the
hallmarks that we normally associate with constitutionally
protected speech. The matter challenged was a matter of intense
public interest, had it become known, and criticisms of a
government lie at or near the core of what the First Amendment aims
to protect.
Id. at 932. We concluded that Marable's speech, including his
speech within the WSF hierarchy, was protected because it was not
made pursuant to his official duties:
The Supreme Court has observed that the inquiry into whether
employee speech is pursuant to employment duties is a practical
one․ Functionally, ․ it cannot be disputed that [Marable's] job was
to do the tasks of a Chief Engineer on his ferry, and such tasks
did not include pointing to corrupt actions of higher level
officials whom he purportedly thought were abusing the public trust
and converting public funds to their own use by overpayment
schemes.
Id.
The third case is Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), in
which Eng, a Los Angeles County Deputy District Attorney, presented
a report to his supervisors recommending that no criminal charges
be brought against persons involved in the planning and
construction of the local school district's Belmont Learning
Complex. 552 F.3d at 1064. Eng's report conflicted with the
report of Anthony Patchett, the leader of the Belmont Task Force,
and with the political agenda of Eng's boss, the recently-elected
District Attorney, who had campaigned on a promise to reform the
Belmont project. Id. The Task Force adopted Eng's report. Id. At
the meeting of the Task Force adopting his report, Eng argued that
the financing for the Belmont project fell through because Patchett
“had improperly leaked to the IRS that the School District had
committed fraud in purchasing the Belmont property.” Id.
Thereafter, Eng's supervisors purportedly retaliated against him by
falsely accusing him of sexual harassment and suspending him for
improper use of an office computer, a trumped up charge. Id. at
1065-66. The Los Angeles Times later published an article on
Eng's case that included statements from Mark Geragos, Eng's
attorney. Id. at 1065.
In reviewing Eng's First Amendment retaliation claim, we stated
that “ ‘the question of the scope and content of a plaintiff's job
responsibilities is a question of fact.’ ” Id. at 1071 (citation
omitted). “In evaluating whether a plaintiff spoke as a private
citizen, we must therefore assume the truth of the facts as alleged
by the plaintiff with respect to employment responsibilities.” Id.
We concluded that while Eng had a duty to submit his report, “Eng's
version of the facts plausibly indicates that he had no official
duty to complain about [Patchett's] leak to the IRS or to authorize
Geragos to speak to the press.” Id. at 1073. We held that Eng
properly stated a First Amendment retaliation claim. Id. at 1074.
The fourth case is Robinson v. York, 566 F.3d 817 (9th Cir.2009).
Robinson, a sergeant in the Los Angeles County Office of Public
Safety, testified in a class action lawsuit alleging discrimination
by his employer and filed several misconduct reports pertaining to
problematic behavior, some of which he observed while off duty.
Id. at 820-21. The reports described, for example, officers who
appeared to be consuming alcohol while on duty and instances of
potential battery or excessive force. Id. Robinson alleged that
his supervisors discouraged him from filing so many reports and
indicated that filing fewer reports would improve his chances of
being promoted to lieutenant. Id. at 821. Robinson thereafter
performed very well on an examination for promotion to lieutenant
but was not promoted. Id. He filed suit under the First Amendment.
Id.
In determining whether Robinson's reports were filed pursuant to
his official duties, we stated that the “scope of Robinson's duties
is a question of fact. [W]hen there are genuine and material
disputes as to the scope and content of the plaintiff's job
responsibilities, the court must reserve judgment ․ until after the
fact finding process.” Id. at 823-24 (internal quotation marks and
citations omitted; bracket and ellipses in original). We
concluded that we must “assume the resolution of this dispute in
the non-moving party's favor.” Id. at 824 (citing Eng, 552 F.3d at
1067).
The lesson from the Supreme Court's decision in Ceballos, and from
the four cases we have decided since then, is clear. If a public
employee's speech is made pursuant to his or her official duties,
it is not protected under the First Amendment. However, if there
is a genuine issue of material fact as to whether speech was made
pursuant to a plaintiff's official duties, that issue may not be
treated as a question of law to be resolved at summary judgment.
Rather, it must be treated as a question of fact to be resolved in
a fact-finding proceeding.
In Freitag, we were uncertain whether Freitag had a duty to report
her complaints to the Director of the CDCR. 468 F.3d at 546.
Rather than deciding the scope of Freitag's duties as a question of
law, we remanded for a factual determination. Id. It was only
because there was no dispute that Freitag's speech to a state
senator and the Inspector General was not made pursuant to her
official duties that we did not require a factual determination on
that issue. Likewise, in Marable it was only because the speech
by Marable to high level officials regarding corruption in his
department indisputably fell outside of his duties as an engineer
on a ferry that we did not require a factual determination on that
issue. The plaintiff in Eng “plausibly” did not have a duty to
complain about his co-worker's leak to the IRS or to authorize his
lawyer to speak to the press. 552 F.3d at 1073. That was enough
to survive summary judgment and to require a factual determination
at trial. Finally, because the duties of the plaintiff in
Robinson were disputed, we permitted the First Amendment claim to
proceed, stating that we “must reserve judgment ․ until after the
fact finding process.” 566 F.3d at 824 (emphasis added, internal
quotation marks omitted, ellipsis in original).
Requiring factual determinations by a jury, or by a judge after a
bench trial, when there is a genuine factual dispute about the
scope of a plaintiff's official duties makes sense as a matter of
institutional competence. In many instances, a judge can have
only an imperfect understanding of the precise duties associated
with a public sector job when all he or she knows is a job title.
The duties of jobs with the same title often vary substantially
depending on the agency and job location. The duties associated
with a particular job may change over time. And the actual duties
of an employee may vary substantially from the formal, publicly
released job description. Thus, for a judge to conclude as a
matter of law what is, and is not, included in a public employee's
official duties is a very hazardous enterprise.
III. Plaintiffs' Protected Speech
Plaintiffs contend that they engaged in protected speech on four
occasions: (1) Huppert's speech during his investigation into
corruption at the public works yard in 1997 and 1998; (2)
Huppert's speech during his cooperation with the FBI in its
investigation into corruption in the police department sometime
prior to 2001; (3) Huppert and Salgado's speech during their
investigation into police corruption at the city-owned golf course
beginning in late 2001; and (4) Huppert's subpoenaed speech to the
grand jury in 2004 during its investigation into corruption in the
police department.
I agree with the majority that the district court's summary
judgment with respect to Huppert's speech on the first occasion
should be affirmed. In my view, Huppert has provided insufficient
evidence that his speech on that occasion was not uttered pursuant
to his official duties to survive summary judgment.
However, I disagree with the majority with respect to Huppert's
speech on the second, third, and fourth occasions, and with respect
to Salgado's speech on the third occasion. In my view, there is a
genuine issue of material fact whether Plaintiffs' speech on the
second and third occasions was uttered pursuant to their official
duties and, therefore, whether it was protected under the First
Amendment. Further, in my view, Huppert's speech on the fourth
occasion was protected, as a matter of law, under the First
Amendment.
A. Huppert's Speech During the FBI Investigation into Corruption in
the Pittsburg Police Department
Huppert states in his declaration that sometime prior to 2001 he
began cooperating with the FBI in its investigation of corruption
in the Pittsburg Police Department (“PPD”). Huppert specifically
states that his cooperation was “outside [his] duties as a member
of the PPD.” Huppert states that in 2001, when Police Chief Baker
learned of his cooperation with the FBI, he retaliated by
transferring Huppert to the Code Enforcement unit of the PPD,
otherwise known as the Penal Colony.
In my view, Huppert has created a genuine issue of material fact as
to the scope of his official duties. Huppert has specifically,
and not implausibly, stated that his speech during his cooperation
with the FBI's investigation into corruption in the PPD was not
part of his official duties as a member of the PPD. I therefore
conclude that the scope of Huppert's official duties, and the
motivation for Baker's assignment of Huppert to the Penal Colony,
are questions of fact to be resolved by a jury, not an issue of law
to be resolved on summary judgment.
B. Huppert and Salgado's Speech During the Investigation into
Police Corruption at the City-Owned Golf Course
Huppert and Salgado state in their declarations that the City
Manager asked them to conduct the investigation into police
corruption at the city-owned golf course. Commander Hendricks
states in his declaration that Police Chief Baker told Huppert and
Salgado to stop their investigation after only one day. Hendricks
states that Baker explicitly ordered Huppert and Salgado not to
write a report. Huppert states that, in direct disobedience to
Baker's order, he and Salgado continued their investigation and
that he wrote a report of their “initial findings.” Huppert and
Salgado state that they were retaliated against for this speech.
Huppert and Salgado contend that because they continued their
investigation, and because Huppert wrote the report in direct
contravention of orders from Police Chief Baker, the speech
contained in the report was not made pursuant to their official
duties. I recognize that Huppert and Salgado continued their
investigation with the knowledge and encouragement of Commander
Hendricks. But any encouragement from Hendricks conflicted with
the direct order of Police Chief Baker. In my view, a direct
order from the Chief of Police is a more authoritative source for
determining the scope of a police officer's official duties than
the encouragement of a lower-ranking officer in the department to
disobey that order. At most, Hendricks' encouragement of Huppert
and Salgado creates a factual question as to the scope of their
official duties. This is precisely the type of question that we
saved for fact-finding proceedings in Freitag, Eng, and Robinson.
Huppert and Salgado's version of the facts “plausibly indicates
that [they] had no official duty” to prepare the report on their
public golf course corruption investigation. Eng, 552 F.3d at
1073. Consequently, we must “assume the resolution of this
dispute in the non-moving part[ies'] favor.” Robinson, 566 F.3d at
824.
Police Chief Baker, who is a defendant in this suit, may be able to
provide evidence that would help a jury determine the scope of
Huppert and Salgado's official duties. For example, Baker could
testify that in directing them not to prepare the report, he was
defining the contours of their official duties. If this is so,
Huppert was not acting pursuant to his official duties when he
wrote the report, and his (and Salgado's) speech is protected under
the First Amendment. On the other hand, Baker could testify that
writing the report was part of their official duties, and that
Baker was directing them not to perform their duty. If this is
so, Baker may have been behaving improperly by attempting to cover
up corruption in his police force, but Huppert and Salgado were
acting pursuant to their official duties in preparing the report,
and their speech was not protected.
C. Subpoenaed Testimony Before the Grand Jury Investigating
Corruption in the Pittsburg Police Department
Huppert was subpoenaed to appear before a civil grand jury
investigating corruption in the Pittsburg Police Department. He
appeared before the grand jury in compliance with the subpoena.
We do not know his actual testimony, but we know that he testified
concerning corruption in the PPD. Huppert states that after he
testified he was subjected to various retaliatory actions.
The majority relies on Christal v. Police Commission of San
Francisco, 33 Cal.App.2d 564, 92 P.2d 416, 419 (1939), to conclude
that police officers in California have an official duty to testify
pursuant to a subpoena before grand juries investigating corruption
in their department. Christal states, “When police officers
acquire knowledge of facts which will tend to incriminate any
person, it is their duty to disclose such facts to their superiors
and to testify freely concerning such facts when called upon to do
so before any duly constituted court or grand jury.” I do not
regard Christal as relevant to the question before us. In my
view, if a public employee is subpoenaed to testify before a grand
jury, he or she has a duty as a citizen that is independent of any
duty he or she might also have as an employee. In testifying
pursuant to a subpoena, the employee is therefore not performing an
official duty within the meaning of Ceballos.
The majority's conclusion that Huppert's subpoenaed speech before
the grand jury is not protected under the First Amendment conflicts
with two recent decisions by our sister circuits. In Morales v.
Jones, 494 F.3d 590 (7th Cir.2007), Milwaukee police officer
Morales testified in a deposition pursuant to a subpoena. The
substance of his testimony concerned evidence that the Chief and
Deputy Chief of Police had harbored a fugitive, the brother of the
Deputy Chief, and that the Chief had retaliated against another
officer in another matter. Morales claimed in a § 1983 suit that
the Chief of Police and the Deputy Chief retaliated against him for
his deposition testimony. The Seventh Circuit held that Morales'
speech during the deposition was protected under the First
Amendment. The court wrote,
Being deposed in a civil suit pursuant to a subpoena was
unquestionably not one of Morales' job duties because it was not
part of what he was employed to do. Nonetheless, Morales
testified about speech he made pursuant to his official duties and
we must determine whether that fact renders his deposition
unprotected. We hold that it does not․
Id. at 598.
In Reilly v. Atlantic City, 532 F.3d 216, 220 (3d Cir.2008),
Atlantic City police officer Reilly testified in a criminal trial
against a fellow officer accused of corruption. A high-ranking
Atlantic City police officer who was a friend of the allegedly
corrupt officer had been a suspect but had not been charged.
Reilly claimed in a § 1983 suit that the Chief of Police and the
high-ranking officer retaliated against him for his trial
testimony. The Third Circuit held that Reilly's testimony was
protected under the First Amendment. The court wrote:
[T]he act of offering truthful testimony is the responsibility of
every citizen, and the First Amendment protection associated with
fulfilling that duty of citizenship is not vitiated by one's status
as a public employee. That an employee's official
responsibilities provided the initial impetus to appear in court is
immaterial to his/her independent obligation as a citizen to
testify truthfully.
Id. at 231.
A recent district court decision in our own circuit is even more
directly on point. In Evans v. Housing Authority of Benicia, 2008
WL 4177729 (E.D.Cal. Sept.8, 2008), Evans was an accountant for the
Benicia Housing Authority (“BHA”). Evans observed that Peterson,
one of his supervisors, was working “reduced hours” and was not
collecting certain past due rents. Evans reported his
observations to the Chairperson of the BHA. He later testified
about his observations before a civil grand jury investigating the
BHA.
The court held that Evans' testimony before the grand jury was
protected, both as to the hours worked by Peterson and to her
failure to collect rents. The court wrote:
Testifying before the Grand Jury was not in any way part of Evans'
official job duties. It was clearly not within the scope of
Evans' official job duties to testify before the Grand Jury about
Peterson's alleged failure to collect past due rents․ Nor was it
within the scope of Evans's duties to testify before the Grand Jury
about Peterson's reduced work hours. Rather, it was Evans' duty
as a citizen to expose such official malfeasance to broader
scrutiny.
Id. But see Deprado v. City of Miami, 446 F.Supp.2d 1344, 1346
(S.D.Fla.2006) (holding that “[i]n accordance with the [Miami]
Police Department's regulations, and the plaintiff's obligations as
a State-certified law enforcement officer,” grand jury testimony by
a Miami police officer was not protected speech under the First
Amendment).
Morales, Reilly, and Evans hold that where there is an independent
legal duty to speak (in our case, to testify before the grand jury
pursuant to a subpoena), the employee has First Amendment
protection for truthful speech uttered in performance of that
independent legal duty. The fact that the employer may require
its employees to obey a law that exists independent of the
employment relationship does not allow the employer to retaliate
against an employee for obeying that law.
This holding comports with sound policy. There are strong reasons
to avoid holding that police officers have an official duty, within
the meaning of Ceballos, to testify before a grand jury pursuant to
a subpoena about corruption among their fellow officers. Such a
holding would result in a Catch 22. If a police officer were
subpoenaed to testify, he or she would have two choices. One
choice would be to testify before the grand jury. In that event,
the officer could lawfully be fired in retaliation for his or her
testimony. The other choice would be to refuse to testify. In
that event, the officer would face contempt (and possibly other
adverse consequences) for failing to comply with a subpoena.
The subject of Huppert's testimony before the grand jury was, in
the words of our decision in Marable, “high level corruption in a
government agency,” which “has all the hallmarks that we normally
associate with constitutionally protected speech.” 511 F.3d at
932. When he appeared before the grand jury, Huppert acted “as a
citizen,” exercising a right “guaranteed to any citizen in a
democratic society regardless of his status as a public employee.”
Freitag, 468 F.3d at 545. He also appeared pursuant to his duty
as a citizen, independent from his duty as a public employee, to
comply with the subpoena. That Huppert's speech concerned “the
subject matter of [his] employment ․ is nondispositive.” Ceballos,
547 U.S. at 421, 126 S.Ct. 1951. Sound policy counsels us not to
conclude that his speech was made pursuant to his official duties.
So do Morales and Reilly, the only opinions by courts of appeals
on this issue. I think we are fully justified in following these
cases and holding that when an officer testifies before a grand
jury pursuant to a subpoena concerning corruption of his or her
fellow officers, the officer is not performing an official duty
within the meaning of Ceballos.
Conclusion
The majority holds that Huppert's speech during the FBI
investigation into corruption in the Pittsburg Police Department,
and Huppert and Salgado's speech during the investigation into
police corruption at the city-owned golf course, were not protected
under the First Amendment. In so holding, the majority fails to
follow our binding circuit precedent in four cases decided after
the Supreme Court's decision in Ceballos-Freitag, Marable, Eng, and
Robinson.
The majority also holds that Huppert's subpoenaed speech to the
grand jury investigating corruption in the Pittsburg Police
Department was not protected by the First Amendment. In so
holding, the majority creates a circuit split with the Seventh
Circuit's decision in Morales and the Third Circuit's decision in
Reilly.
I respectfully dissent.
FOOTNOTES
1
. Skelly v. State Personnel Board, 15 Cal.3d 194, 215, 124
Cal.Rptr. 14, 539 P.2d 774 (1975), grants notice and a right to be
heard to all California public employees before imposing
discipline.
2
. Judgment was entered on November 17, 2006.
3
. The City counters that this claim is time-barred under the
applicable statute of limitation. While Huppert's assistance to
the District Attorney's office took place in 1997 and 1998, the
claimed retaliatory actions occurred over a long period of time.
Additionally, none of these alleged actions were discrete, see
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114, 122
S.Ct. 2061, 153 L.Ed.2d 106 (2002), and instead indicate a
potential continuing practice within the PPD, id. at 111-12, 122
S.Ct. 2061. We therefore disregard the City's argument that the
statute of limitation bars this portion of Huppert's claim.
4
. In his dissent, Judge Fletcher also points to Eng and Robinson
as cases where “we have addressed whether a government employee's
speech was made pursuant to his or her official duties.” Dissent,
at 9354, 9356, 9357. However, neither Eng nor Robinson actually
decided the scope of the plaintiff's job duties. In both, we were
unable to review the question because the district court had
determined that genuine issues of material fact were present and
had denied qualified immunity. Eng, 552 F.3d at 1073; Robinson,
566 F.3d at 823-24; see also Johnson v. Jones, 515 U.S. 304,
319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that
appellate courts generally lack the ability to review a district
court's finding of a genuine issue of fact).
5
. We remanded for additional fact-finding on the question whether
pursuing a complaint all the way up the chain of command within the
California Department of Corrections and Rehabilitation is within
the duties of a prison guard. Freitag, 468 F.3d at 546.
6
. This is the only First Amendment retaliation claim on which
Salgado joins.
TALLMAN, Circuit Judge: