Phyllis Smith v. North Star Charter School , 593 F. App'x 743 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHYLLIS SMITH, No. 13-35382
Plaintiff - Appellant, D.C. No. 1:10-cv-00618-WBS
v.
MEMORANDUM*
NORTH STAR CHARTER SCHOOL,
INC., an administratively dissolved Idaho
non-profit corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted February 4, 2015
Seattle Washington
Before: FISHER, BEA, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Phyllis Smith, the former principal of North Star Charter School, appeals
from the district court’s grant of summary judgment to all defendants in this §
1983 action. We affirm.
1. The district court granted summary judgment to defendants Baird & Co.,
Blandford, Buck, and Buck Financial Advisors LLC on the grounds that they were
not state actors and thus not subject to § 1983 liability. We review that
determination de novo. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d
806, 811 (9th Cir. 2010) (citing Lee v. Katz, 276 F.3d 550, 553 (9th Cir. 2002)).
Smith argues that these defendants’ conduct satisfies the “joint action” test for state
actor liability. We disagree. The joint action test requires that the private parties
have participated in the “activity which deprive[d] [Smith] of constitutional
rights.” Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir.
2002) (citation omitted). As Smith’s complaint makes clear, that activity was the
defendant school board’s firing of Smith. There is no evidence to support the
conclusion that these defendants participated in the decision to fire Smith. Smith
points to a letter that directed the school’s board of directors to cut costs, even if
2
that required firing administrators, but that letter did not even mention Smith.1
Thus, the district court correctly concluded that there was no genuine issue of
material fact as to the liability of these defendants.
2. The remaining defendants claim a qualified immunity defense. The
district court’s decision to grant summary judgment on the basis of qualified
immunity is reviewed de novo. Ellins v. Sierra Madre, 710 F.3d 1049, 1056 (9th
Cir. 2013). Qualified immunity protects an official who “reasonably but
mistakenly believed that his or her conduct did not violate a clearly established
constitutional right.” Hunt v. Cnty. of Orange, 672 F.3d 606, 615–16 (9th Cir.
2012) (quoting Greene v. Camreta, 588 F.3d 1011, 1031 (9th Cir. 2009),
abrogated on other grounds by Camreta v. Greene, 131 S. Ct. 2020 (2011)).
Government employees have no First Amendment right to speak without
retaliation if their speech “owes its existence to [the] employee’s professional
responsibilities.” Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 749 (9th
Cir. 2010) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Thus, Smith
1
The district court excluded this letter from its analysis on the grounds that
it was not admissible evidence. Because we conclude that the letter would not
create a genuine issue of material fact, we do not decide whether the district court
erred by excluding it. See Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004)
3
must show that it was not reasonable for the school board to mistakenly believe
that her attempted speech was pursuant to her professional responsibilities.
Smith cannot show this as to her attempts to speak before being placed on
administrative leave. At that time, Smith had financial duties that included
preparation of the very information that her attempted speech included. Therefore,
that speech owed its existence to her job duties.
Smith’s attempts to speak after having lost her financial duties also do not
require reversal. First, Smith asked for access as principal to the school newsletter
and to set up, as principal, a meeting where she would speak to the school’s
stakeholders. A reasonable school board member could conclude that when an
employee uses her title to speak, without going through the process for members of
the public who wish to speak in that forum, she is speaking in her capacity as
government employee. Second, though Smith’s attempts to speak did not relate to
her contemporary job duties, they related to her former job duties. A reasonable
school board member might conclude that speech which was created pursuant to an
employee’s job duties, and therefore lacks First Amendment protection, does not
gain First Amendment protection when the employee’s job duties are scaled back.
Thus, the district court’s grant of summary judgment was not erroneous, and
its judgment in favor of the defendants is
4
AFFIRMED.
5