Patrick Leonard v. City of Los Angeles , 669 F. App'x 912 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK LEONARD, an individual and No. 14-56796
STEVEN BARRETT, an individual,
D.C. No.
Plaintiffs-Appellants, 2:13-cv-05867-GW-AJW
v.
MEMORANDUM*
CITY OF LOS ANGELES, a Municipal
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 21, 2016**
Pasadena, California
Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
Patrick Leonard and Steven Barrett (Plaintiffs) are firefighters who sued
their employer, the City of Los Angeles, after they failed a psychological exam and
were transferred out of the Arson Counter Terrorism Section of the Los Angeles
Fire Department (Arson). Leonard and Barrett brought procedural due process
claims against the City under 42 U.S.C. § 1983, alleging violations of property and
liberty interests, as well as state claims under the California Peace Officer and
Firefighter Procedural Bill of Rights Acts (POBRA and FFBOR). The district
court granted summary judgment to the City on all claims, so we have jurisdiction
under 28 U.S.C. § 1291. Reviewing de novo, and construing all facts in the light
most favorable to Plaintiffs, see Bravo v. City of Santa Maria, 665 F.3d 1076, 1083
(9th Cir. 2011), we affirm.
1. Plaintiffs’ property interest claim fails because Plaintiffs do not have a
protected property interest in their assignment to Arson. We have held that
individuals do not have a property interest in a promotion where the promotion is
contingent on meeting certain requirements. Nunez v. City of Los Angeles, 147
F.3d 867, 871–73 (9th Cir. 1998). Here, Plaintiffs did not meet one of the statutory
requirements for an assignment as an investigator with peace officer
powers—passing a psychological exam—so they had no vested rights in their
Arson assignment. See id. Plaintiffs concede that passing this exam was
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advertised as a requirement for the assignment, that they were told by superiors
they would have to pass the exam to stay in Arson, and that the exam was also a
statutory requirement. Thus, the district court properly granted summary judgment
on Plaintiffs’ property interest claim.
2. Plaintiffs’ liberty interest claim fails for lack of publication. To succeed
on a liberty interest claim, Plaintiffs must show that the City disseminated
stigmatizing information about them. See Llamas v. Butte Cmty. Coll. Dist., 238
F.3d 1123, 1130–31 (9th Cir. 2001). We agree with the district court that there is
no evidence that the City disseminated information about Plaintiffs’ psychological
disqualifications. The five pages of deposition testimony cited by Plaintiffs as
evidence of publication are insufficient because (1) this evidence is not part of the
record on appeal, see Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1078 (9th
Cir. 1988), and (2) even if we could consider these pages, they provide nothing
more than inadmissible rumors and speculation.
3. Plaintiffs’ POBRA/FFBOR claims also fail because Plaintiffs were not
subject to punitive action. See Cal. Gov’t Code §§ 3254(b), 3304(b). An
officer/firefighter is not subject to punitive action by being denied a promotion
based on merit during a probationary period, even if the denial leads to a decrease
in pay. Guinn v. Cty. of San Bernardino, 184 Cal. App. 4th 941, 945–47 (2010).
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Plaintiffs neither completed their probationary period nor met all of the
requirements for an Arson assignment. Thus, they were not subject to punitive
action when they were transferred out of Arson to other positions within the fire
department. See id.
In light of our disposition, we need not reach the question of whether the
procedures offered to Plaintiffs to contest their transfer were constitutionally
adequate.
Each party shall bear its own costs on appeal.
AFFIRMED.
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