Desrochers v. City of San Bernardino ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DESROCHERS; STEVE 
LOWES,
Plaintiffs-Appellants,
v.
CITY OF SAN BERNARDINO; MICHAEL No. 07-56773
BILLDT; FRANK MANKIN,
individually and as Assistant Chief  D.C. No.
CV-06-01408-VAP
of Police for the San Bernardino
OPINION
Police Department; BRIAN BOOM,
individually and as a Lieutenant
for the San Bernardino Police
Department,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Magistrate Judge, Presiding
Argued and Submitted
March 5, 2009—Pasadena, California
Filed July 13, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Wardlaw
8675
8678 DESROCHERS v. CITY OF SAN BERNARDINO
COUNSEL
Michael A. McGill, Lackie & Dammeier APC, Upland, Cali-
fornia, argued the cause for the plaintiffs-appellants and filed
the briefs.
James A. Odlum, Mundell, Odlum & Haws, LLP, San Bernar-
dino, California, argued the cause for the defendants-
appellees and was on the brief. James Penman, City Attor-
ney’s Office, San Bernardino, California, was also on the
brief.
DESROCHERS v. CITY OF SAN BERNARDINO 8679
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether police officers’ complaints about
their supervisors’ conduct may give rise to a constitutional
violation.
I
A
Michael Desrochers and Steve Lowes have been members
of the San Bernardino Police Department (“SBPD”) for over
twenty years. At the time the events at issue in this case
occurred, Desrochers was the sergeant in charge of the SBPD
Homicide Unit, while Lowes commanded the SBPD Multiple
Enforcement Team (the “Gang Unit”).
On June 23, 2006, Desrochers was transferred from the
Homicide Unit to the Robbery Unit, an action he viewed as
a demotion. Meanwhile, Lowes was the subject of an internal
affairs investigation pertaining to an April 27, 2006, arrest. At
the conclusion of the investigation, Lowes received a two-
week suspension. The parties hotly contest the reasons for
these employment actions. The City argues Desrochers was
transferred for botching a murder investigation and Lowes
was suspended for disobeying orders and endangering a sus-
pect in custody. Desrochers and Lowes claim that both the
transfer and the suspension amounted to retaliation for engag-
ing in constitutionally protected speech, as detailed below.
1
On April 19, 2006, Desrochers and Lowes, along with two
other SBPD sergeants (Steve Filson and William Hanley),
filed an informal grievance against their supervisor, Lieuten-
ant Mitchal Kimball, who headed the Specialized Enforce-
8680 DESROCHERS v. CITY OF SAN BERNARDINO
ment Bureau (“SEB”).1 There is no transcript of the meeting
at which they presented their concerns. According to Captain
Frank Mankin, who adjudicated the grievance, the complain-
ants alleged that “there was an ongoing and continuing issue
relative to a difference of personalities between the four ser-
geants” and Lieutenant Kimball. Mankin continued: “It was
the impression of the four sergeants that the interaction
between themselves and Lieutenant Kimball had risen to a
level so as to impact the operational efficiency and effective-
ness of the units over which Lieutenant Kimball had manage-
rial oversight.” The sergeants requested that the department 1)
remove Kimball from command of the SEB; 2) formally
investigate the charges contained in their grievance; 3) place
Kimball on a “[w]ork performance contract”; 4) order Kim-
ball to attend “[i]nterpersonal relations training”; and 5) moni-
tor Kimball’s conduct in the future.
After learning of the informal grievance, Kimball immedi-
ately requested a transfer from the SEB. His transfer request
was granted, and Desrochers and Lowes both admit that they
had little to no contact with Kimball after the transfer. Lieu-
tenant Brian Boom replaced Kimball.
Meanwhile, Filson and Hanley reached an agreement with
the Chief of Police, Michael Billdt, which resolved their con-
cerns. Desrochers and Lowes’ grievance remained outstand-
ing.
1
The grievance was filed pursuant to the City of San Bernardino’s
Memorandum of Understanding for “Police Safety Employees.” The
grievance process is divided into informal and formal stages. The informal
stage involves a face-to-face meeting between the employee and a supervi-
sor. If the grievance cannot be resolved at that level, the formal stage
begins. That stage, in turn, is broken down into several steps: 1) filing a
written grievance with a supervisor; 2) meeting with a division head; 3)
meeting with the police chief; 4) filing a written appeal with the director
of human resources; and 5) filing a written appeal with the mayor.
DESROCHERS v. CITY OF SAN BERNARDINO 8681
2
Believing that the SBPD had not taken adequate steps to
resolve their concerns, Desrochers and Lowes filed a formal
grievance against Kimball as well as Billdt and Mankin. The
sergeants alleged that Kimball had created a “hostile work
environment by his repeated violations” of various internal
SBPD policies. The grievance also accused Billdt and Mankin
of perpetuating this environment by “fail[ing] to take appro-
priate action.” Desrochers and Lowes each attached declara-
tions detailing their concerns.
In his declaration, Lowes described the “[p]roblem” as fol-
lows:
Lt. Kimball is a very autocratic, controlling and
critical supervisor. Everyone that works for him has
felt the stress that he brings to every situation[. . . .]
He controls and manipulates every conversation until
it concludes to his satisfaction. He absolutely dis-
courages any dissention [sic] from his opinion and
gives the definite sense that anyone that disagrees
with his approach is incompetent. He often uses the
phrase “hammer-nail” to illustrate that he is the ham-
mer and everyone else is the nail . . . . we do and go
where he tells us. These are general descriptions of
Lt. Kimball that are well understood by everyone
under his control. He operates in the belief that
everyone around him is incompetent and that, with-
out his influence, the police department would
quickly fail.
In short, Lowes asserted that Kimball’s “approach and tactics
were destroying the moral [sic] and confidence of his men.”
Lowes provided examples. On one occasion, Kimball
“chewed out” Lowes in front of members of the Rialto Police
Department, implying that the other department was “incom-
8682 DESROCHERS v. CITY OF SAN BERNARDINO
peten[t].” Lowes claimed that this incident “undermined [his]
effort to build a positive relationship with Rialto PD and assist
them . . . in a positive way.” On another occasion, “Kimball
embarrassed the [San Bernardino] SWAT team by confront-
ing a visiting SWAT team (Riverside PD),” leaving the “defi-
nite impression” that he “thought that Riverside PD was
incompetent.”
Lowes also described Kimball as a “micro-manage[r],”
someone who “insult[s]” fellow officers, one who “under-
mines . . . efforts to develop . . . team members,” and a man
whose “need to be technically correct and powerful at every
turn ultimately destroys relationships.” Lowes admitted that
all the incidents he recounted “taken individually may seem
minor.” Combined, however, Lowes thought that
[t]hese incidents amount to added stress and distrust
in the daily operations of the unit. Individual team
members feel that Lt. Kimball is making a power
play for no other reason than to be powerful. The
stress and conflict between [Lowes’] team building
values/mission and Lt. Kimball’s need for his defini-
tion of power or control make the [Gang Unit] ser-
geant position unrewarding.
Desrochers stated that while he had never before filed a
complaint against any member of the police department, he
did so here because he “believe[d] it to be a necessary step
forward in an attempt to change the culture of this police
department and the way we treat each other.” Throughout the
complaint, he repeatedly referenced Kimball’s “management
style.” He detailed occasions where he felt Kimball “belittled
[him] in front of [his] investigators and patrol officers,” indi-
cating that “[Kimball] did not trust [the] judgment” of Desro-
chers and his fellow officers. He also recounted a “tantrum”
Kimball threw in front of members of a neighboring police
force. Desrochers believed that Kimball’s behavior “did not
put the San Bernardino police department in a positive light,”
DESROCHERS v. CITY OF SAN BERNARDINO 8683
and demonstrated that “Kimball was not eager to work coop-
eratively with this other agency.”
Desrochers also maintained that Kimball’s “autocratic
style” and “disregard for [his] rank or authority . . . did not
inspire . . . confidence, and circumvented [Desrochers’]
authority with [his] investigators.” As evidence, Desrochers
noted situations where Kimball’s orders contradicted his own.
Ultimately, Desrochers concluded that Kimball’s reputation
as “an autocratic leader” and his “management style and bul-
lying” affected the Homicide Unit “in a negative way.”2 Kim-
ball, Desrochers stated, “made it very clear that he wanted
things his way and only his way and he did not care about or
trust the opinions of any investigator in [the Homicide] unit.”
Desrochers claimed that this not only “negatively effected
[sic] moral [sic] in [the] unit,” but also “made it very difficult
for [him] to perform [his] duty” to the point at which he was
“unable to supervise the unit because of [Kimball’s] interfer-
ence.”
The grievance alleged that Billdt and Mankin did not take
the appropriate steps to remedy the “hostile work environ-
ment” created by Kimball. Desrochers and Lowes charged
Billdt and Mankin, like Kimball, with violations of internal
SBPD policies. Desrochers believed that “Mankin was more
concerned about Lieutenant Kimball’s future promotion than
he was about our issues.” Desrochers further stated that the
“inaction on the part of Chief Billdt and Captain Mankin has
negatively effecting [sic] my unit,” while Lowes accused
Mankin of giving him an order in “a clear attempt to cause . . .
stress.”
2
For example, Desrochers described an incident where he gave an
investigator permission to perform a task, and the investigator “jokingly
said, ‘are you sure you don’t want to check with the lieutenant first, since
he makes all the decisions[?]’ ”
8684 DESROCHERS v. CITY OF SAN BERNARDINO
As a remedy, the grievance requested 1)
“[a]cknowledgment that the . . . listed violations of policy and
core values are not condoned by the administration of the San
Bernardino Police Department”; 2) an agreement “to monitor
and develop Lt. Kimball in order to prevent any future [simi-
lar] incidents”; and 3) a commitment to “develop and publish
additions to . . . organizational core values that . . . reflect the
type of culture that fosters respect and friendly interaction
between all employees regardless of rank.”
In due course, Mankin notified Desrochers and Lowes that
their formal grievance had been denied.
3
On June 19, 2006, Desrochers and Lowes filed a complaint
with the City’s Human Resources Department (“HR”),
appending their formal grievance against Kimball, Mankin,
and Billdt. The complaint was marked “CONFIDENTIAL.”
Additionally, they raised concerns regarding the performance
of Boom, the officer who had replaced Kimball. Specifically,
they feared that “Boom will be used as a tool by [Billdt] to
retaliate against [the sergeants] for reporting the grievance.”
The complaint alleged that other officers were “very much . . .
victim[s] of stress due to Lt. Boom’s hostile work environ-
ment practices.” It also stated that Billdt had “mentioned to
many within the department that he is very disappointed in
[Desrochers and Lowes] for filing [their grievance].” Lowes
reported that when he refused to sign a document resolving
the matter at the informal stage, Billdt told him that he was
“going to do something and that ‘thing’ would be for the good
of the department.” Lowes “took [that] as a threat of retalia-
tion.” Finally, Desrochers and Lowes noted that Mankin had
been promoted to assistant chief while their grievance against
him was pending. They saw this as evidence of a “double
standard,” because “[p]romotions in [the] department are
often put on hold pending the outcome of investigations of
DESROCHERS v. CITY OF SAN BERNARDINO 8685
misconduct.” Both officers claimed they filed the complaint
“for the good of the department.”
On June 23, 2006, Desrochers and Lowes amended their
HR complaint, adding details of several incidents involving
Boom. They accused Boom of having a “long history of inap-
propriate and harassing comments given to coworkers, peers
and subordinates.” For example, on one occasion, Boom had
made an offensive comment about Desrochers’ wife; on
another occasion he had done the same with respect to Desro-
chers’ daughter. Boom had also “poked fun” at an overweight
officer. When Desrochers discussed the latter incident with
Mankin, Mankin informed him that his concerns regarding
Boom were “unfounded.”
In addition to the remedies detailed in the formal grievance,
Desrochers and Lowes requested: “removal of Lt. Boom as
SEB supervisor and replacement by Lt. R.C. Garcia”; “full
investigation of Chief Billdt’s failure to investigate Lt.
Boom”; and “full investigation of Lt. Boom for inappropriate
and harassing comments.” Ultimately, Desrochers and Lowes
were denied the relief they requested from HR.
B
On December 20, 2006, the sergeants filed a complaint in
the Central District of California under 42 U.S.C. § 1983,
alleging that Desrochers’ transfer and the disciplinary action
against Lowes constituted retaliation for engaging in speech
protected by the First Amendment. In addition to the constitu-
tional claim, Desrochers and Lowes raised several state law
claims. The district court concluded that the sergeants’ speech
did not address matters of public concern. The court therefore
granted summary judgment to the defendants on the § 1983
claims and declined to exercise supplemental jurisdiction over
the state law claims.
The sergeants timely appealed.
8686 DESROCHERS v. CITY OF SAN BERNARDINO
II
A First Amendment retaliation claim against a government
employer involves
a sequential five-step series of questions: (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 pro-
tected 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.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Because
the district court concluded that Desrochers and Lowes’
speech did not touch on matters of public concern, its analysis
ended at step one.
Our review is therefore limited to the public concern
inquiry. We have “not articulated a precise definition of ‘pub-
lic concern,’ ” Allen v. Scribner, 812 F.2d 426, 430 (9th Cir.
1987), recognizing instead that such inquiry “is not an exact
science,” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.
2001). Accordingly, we have forsworn “rigid multi-part tests
that would shoehorn communication into ill-fitting catego-
ries,” id., and relied on a generalized analysis of the nature of
the speech. Perhaps unsurprisingly, “courts have had some
difficulty deciding when speech deals with an issue of ‘public
concern.’ ” McKinley v. City of Eloy, 705 F.2d 1110, 1113
(9th Cir. 1983).
It is clear, however, that the essential question is whether
the speech addressed matters of “public” as opposed to “per-
sonal” interest. Connick v. Myers, 461 U.S. 138, 147 (1983).
DESROCHERS v. CITY OF SAN BERNARDINO 8687
“[This] inquiry is purely a question of law, which we review
de novo.” Eng, 552 F.3d at 1070; see also Connick, 461 U.S.
at 148 n.7.3 The plaintiffs “bear[ ] the burden of showing that
the[ir] speech addressed an issue of public concern,” Eng, 552
F.3d at 1070, based on “the content, form, and context of a
given statement, as revealed by the whole record,” Connick,
461 U.S. at 147 48.
A
The sergeants urge us to conclude that their speech “ ‘can
fairly be considered to relate to’ ” a matter of public concern.
Eng, 552 F.3d at 1070 (quoting Johnson v. Multnomah
County, 48 F.3d 420, 422 (9th Cir. 1995)).4 We have defined
3
We review a district court’s grant of summary judgment de novo. See
Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003); see also id.
(“Viewing the evidence in the light most favorable to the plaintiffs, we
must determine whether there are any genuine issues of material fact and
whether the [district court] correctly applied the relevant substantive
law.”).
4
At times, we have phrased the question differently, finding employee
speech unprotected “unless it ‘substantially involved matters of public
concern.’ ” Johnson, 48 F.3d at 422 (quoting McKinley, 705 F.2d at 1114);
see also Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 925 (9th Cir.
2004) (same); Flores v. San Diego County, 206 F.3d 845, 846 47 (9th Cir.
2000) (per curiam) (same); Brewster v. Bd. of Educ., 149 F.3d 971, 978
(9th Cir. 1998); Roe v. City & County of S.F., 109 F.3d 578, 584 (9th Cir.
1997) (same). We apply the fairly considered standard here, because that
appears to be the language the Supreme Court employed in Connick. See
461 U.S. at 147 (“[I]f Myers’ questionnaire cannot be fairly characterized
as constituting speech on a matter of public concern, it is unnecessary for
us to scrutinize the reasons for her discharge.” (emphasis added)); id.
(“When employee expression cannot be fairly considered as relating to
any matter of political, social, or other concern to the community, govern-
ment officials should enjoy wide latitude in managing their offices . . . .”
(emphasis added)). Moreover, the Court has recently reiterated this stan-
dard. See Engquist v. Or. Dep’t of Agric., 128 S. Ct. 2146, 2151 (2008)
(quoting the “fairly considered” passage from Connick); see also Care-
Partners, LLC v. Lashway, 545 F.3d 867, 880 (9th Cir. 2008) (employing
the “fairly considered” language); Voight v. Savell, 70 F.3d 1552, 1559
(9th Cir. 1995) (same); Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.
1989) (same). If the distinction between “fairly considered” and “substan-
tially involved” is more than just semantics, we are satisfied that our deci-
sion is correct under either standard.
8688 DESROCHERS v. CITY OF SAN BERNARDINO
the “scope of the public concern element . . . broadly,” Ulrich
v. City & County of S.F., 308 F.3d 968, 978 (9th Cir. 2002),
and adopted a “liberal construction of what an issue ‘of public
concern’ is under the First Amendment,” Roe v. City &
County of S.F., 109 F.3d 578, 586 (9th Cir. 1997). But there
are limits. “In a close case, when the subject matter of a state-
ment is only marginally related to issues of public concern,
the fact that it was made because of a grudge or other private
interest or to co-workers rather than to the press may lead the
court to conclude that the statement does not substantially
involve a matter of public concern.” Johnson, 48 F.3d at 425;
see also Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917,
925 (9th Cir. 2004) (quoting the “close case” language of
Johnson, but deciding that “[t]his is . . . not a close case”);
Roe, 109 F.3d at 586 (applying the “close case” language of
Johnson). We assess each aspect of the Connick test in turn.
1
“First and foremost, we consider the content of the speech,”
Weeks, 246 F.3d at 1234, “ ‘the greatest single factor in the
Connick inquiry.’ ” Johnson, 48 F.3d at 424 (quoting
Havekost v. U.S. Dep’t of the Navy, 925 F.2d 316, 318 (9th
Cir. 1991)). Desrochers and Lowes claim that the content of
their speech pertains to the morale of their units, the “opera-
tional efficiency and effectiveness” of the SBPD, and poten-
tial misconduct by government officials—matters which they
contend are inherently of public concern.
[1] To address a matter of public concern, the content of the
sergeants’ speech must involve “issues about which informa-
tion is needed or appropriate to enable the members of society
to make informed decisions about the operation of their gov-
ernment.” McKinley, 705 F.2d at 1114 (internal quotation
marks and citation omitted); see also Gillette v. Delmore, 886
F.2d 1194, 1197 (9th Cir. 1989) (describing “matter[s] of
political, social, or other concern to the community” as mat-
ters of public concern). “On the other hand, speech that deals
DESROCHERS v. CITY OF SAN BERNARDINO 8689
with ‘individual personnel disputes and grievances’ and that
would be of ‘no relevance to the public’s evaluation of the
performance of governmental agencies’ is generally not of
‘public concern.’ ” See Coszalter v. City of Salem, 320 F.3d
968, 973 (9th Cir. 2003) (quoting McKinley, 705 F.2d at
1114); see also Connick, 461 U.S. at 154 (stating that speech
limited to “an employee grievance concerning internal office
policy” is unprotected). The same is true of “speech that
relates to internal power struggles within the workplace,”5 and
speech which is of no interest “beyond the employee’s
bureaucratic niche.” Tucker v. Cal. Dep’t of Educ., 97 F.3d
1204, 1210 (9th Cir. 1996) (internal quotation marks and cita-
tion omitted).
[2] Desrochers and Lowes attempt to characterize their
grievances as necessarily implicating issues such as the “com-
petency,” “preparedness,” “efficiency,” and “morale” of the
SBPD. See McKinley, 705 F.2d at 1114 (stating that “the
competency of [a] police force is surely a matter of great pub-
lic concern”); see also Gilbrook v. City of Westminster, 177
F.3d 839, 866 (9th Cir. 1999) (“[A]n opinion about the pre-
paredness of a vital public-safety institution . . . goes to the
core of what constitutes speech on matters of public con-
cern.”); Allen, 812 F.2d at 431 (noting that speech “related to
the competency of . . . management as well as the efficient
performance of [government] duties” addressed a matter of
public concern); McKinley, 705 F.2d at 1114 (noting that
“discipline and morale in the workplace . . . are related to an
agency’s efficient performance of its duties,” and hence may
inform the public concern inquiry (internal quotation marks
and citation omitted)). We are not persuaded. We have never
held that a simple reference to government functioning auto-
matically qualifies as speech on a matter of public concern.
To the contrary, as we have recently indicated, the fact that
speech contains “passing references to public safety[,] inci-
dental to the message conveyed” weighs against a finding of
5
This consideration has a contextual element to it. See infra p. 8697.
8690 DESROCHERS v. CITY OF SAN BERNARDINO
public concern. Robinson v. York, 566 F.3d 817, 823 (9th Cir.
2009) (internal quotation marks and citation omitted).
[3] To be sure, as the cases cited above indicate, at times
we have employed broad language.6 But those sweeping pro-
nouncements cannot be read to encompass the content of the
speech before us. See, e.g., Roth v. Veteran’s Admin., 856
F.2d 1401, 1405 (9th Cir. 1988) (“We do not necessarily sug-
gest that all speech concerning . . . government inefficiency
automatically deserves protection.”). For example, what if we
judges prohibited our law clerks from taking coffee breaks?
Suppose they responded with a memorandum complaining
about the action. While they might assert—perhaps fairly—
that caffeine deprivation would adversely affect their perfor-
mance, morale, efficiency, and thus, their competency, no one
would seriously contend that such speech addressed a matter
of public concern. See Havekost, 925 F.2d at 319 (stating that
the speech regarding the “length and distribution of coffee
breaks” does not address a matter of public concern). Simi-
larly, the reality that poor interpersonal relationships amongst
coworkers might hamper the work of a government office
does not automatically transform speech on such issues into
speech on a matter of public concern.7
6
Eng employed similar language. 552 F.3d at 1073 (“Speech that is rele-
vant to the public’s evaluation of the performance of governmental agen-
cies also addresses matters of public concern.” (internal alternations,
quotation marks, and citations omitted)); id. at 1072 (“Communications on
matters relating to the functioning of government are matters of inherent
public concern.” (internal alternations, quotation marks, and citations
omitted)).
7
Contrary to the dissent’s assertions, this is not a “disparaging” compar-
ison. See Dissent at 8715. We provide it only to show that not all com-
ments on perceived deficiencies in the functioning of a government office
amount to speech on a matter of public concern. There is a significant dis-
tinction between complaints of a poor working relationship with one’s
superior and complaints involving on-the-job consumption of alcohol,
anti-Semitism, use of excessive force, discrimination, and allegations of
racial and gender bias. See Robinson, 566 F.3d at 821; Cochran v. City of
L.A., 222 F.3d 1195, 1201 (9th Cir. 2000). Contra Dissent at 8709-10 (cit-
ing Robinson and Cochran as “analogous” to the facts of this case).
DESROCHERS v. CITY OF SAN BERNARDINO 8691
Moreover, the plain language of the grievances differs from
the sergeants’ post hoc characterizations. We look to what the
employees actually said, not what they say they said after the
fact. In Roe, for example, a police officer transmitted a mem-
orandum to a district attorney’s office, detailing his view on
a discrete legal issue. See 109 F.3d at 580-81. The memoran-
dum contained “legal questions and case summaries which
appeared to be from prepared materials.” Id. at 581. On
appeal, Roe argued that his memorandum “addressed search
and seizure issues of vital interest to citizens in evaluating
their government in that a suspected felon would escape pros-
ecution because [the district attorney] had misunderstood the
relevant Fourth Amendment law.” Id. at 585 (internal quota-
tion marks omitted). We disagreed, stating that “[i]f Roe’s let-
ter had stated just that, his argument would be stronger.
However, such a reading is not to be found in his missive.”
Id. “No message of vital public import” was to be found in an
“inter-office transmittal of case citations and summaries.” Id.
[4] As in Roe, we decline to “construe [the sergeants’
speech] differently from its plain language.” Id. Here, the
plain language of the grievances does not “directly address[ ]
police competence,” Dissent at 8712, but rather indicates that
Desrochers and Lowes were involved in a personality dispute
centered on Kimball’s management style. The speech in ques-
tion is largely devoid of reference to matters we have deemed
to be of public concern. There are no allegations of conduct
amounting to “actual or potential wrongdoing or breach of
public trust.” Connick, 461 U.S. at 148.8 One can read the
grievances and conclude that Kimball was arrogant, Boom
was irreverent, and Mankin and Billdt disagreed with the ser-
8
Desrochers and Lowes’ briefs are laced with references to the “miscon-
duct” of their supervisors. To paraphrase a memorable line, while they
keep using that word, we do not think it means what they think it means.
Merely cataloguing a strained working relationship with a superior does
not necessarily allege “actual or potential wrongdoing or breach of public
trust.” Connick, 461 U.S. at 148.
8692 DESROCHERS v. CITY OF SAN BERNARDINO
geants’ assessment of their lieutenants, but that does not mean
they were incompetent, and it certainly does not mean that
they were malfeasant. Cf. McKinley, 705 F.2d at 1114.
[5] Likewise, while the grievances state that Kimball’s
actions “made it difficult for [the sergeants’] teams to func-
tion” and impacted the SBPD “in a negative way,” a reader
struggles in vain to discover where or how the proper func-
tioning of the police department was jeopardized by the
actions of Kimball, Mankin, Billdt, or Boom. Cf., e.g., Gil-
brook, 177 F.3d at 866 (involving statements which addressed
“the fire department’s ability to respond effectively to life-
threatening emergencies”). There are no accounts of failed
law enforcement efforts, no descriptions of botched investiga-
tions, and no discussion of duties the SBPD was unable to
perform in a competent fashion due to the actions of the ser-
geants’ supervisors.9 Cf., e.g., Hyland v. Wonder, 972 F.2d
1129, 1139 (9th Cir. 1992) (involving speech on the “inept,
inefficient, and potentially harmful administration of a gov-
ernmental entity”). Desrochers and Lowes do not allege that
anyone failed to do his job, or even that someone did his job
poorly. Cf., e.g., Gillette, 886 F.2d at 1197-98 (involving
speech criticizing police officers for using excessive force on
a particular occasion).10 Rather, the sergeants complain about
their superiors’—especially Kimball’s—personalities; the
grievances amount to a laundry list of reasons why Desro-
chers, Lowes, and perhaps other SBPD employees found
working for Kimball to be an unpleasant experience.11 In
short, they thought their boss was a bully and said so.
9
Nor are there descriptions of any instances when the SBPD’s ability to
work with nearby police forces was impaired. Indeed, the record contains
declarations from neighboring police chiefs describing a positive relation-
ship with the SBPD, including with Kimball.
10
The dissent repeatedly suggests that the competency of the SBPD is
somehow at issue in the sergeants’ grievances. Yet, in light of such glaring
omissions, how can that be the case? See infra note 12 (discussing the
“competency” issue further).
11
We have said that “the way in which an elected official or his
appointed surrogates deal with diverse and sometimes opposing view-
DESROCHERS v. CITY OF SAN BERNARDINO 8693
[6] But when working for the government, saying one’s
boss is a bully does not necessarily a constitutional case
make. “[T]he content of the communication must be of
broader societal concern. [Our] focus must be upon whether
the public or community is likely to be truly interested in the
particular expression, or whether it is more properly viewed
as essentially a private grievance.” Roe, 109 F.3d at 585
(emphases added). On the facts of this case, we cannot say
that the public would be truly interested that two police ser-
geants believed their supervisor was a “micro-manager,” “au-
tocratic” and “controlling,” or even that he dressed them
down in front of their colleagues and neighboring police forces.12
points from within government is an important attribute of public service
about which the members of society are entitled to know.” McKinley, 705
F.2d at 1115. It is certainly true that the grievances contain several
descriptions of the manner in which Kimball dealt—or failed to deal—
with “diverse and sometimes opposing viewpoints.” Kimball, however,
was a police lieutenant, not an “elected official or his appointed surro-
gate[ ].”
12
Our recent decision in Robinson supports our conclusion. In that case,
a police officer reported, inter alia, a supervisor’s “harassment and verbal
abuse” “in front of numerous [colleagues].” Robinson v. County of L.A.,
No. CV-06-2409-GAF, slip op. at 3 (C.D. Cal. Aug. 7, 2007). The district
court held that the officer’s “displeasure at his treatment by a superior offi-
cer constitutes ‘an individual personnel dispute and grievance,’ ” not
speech on a matter of public concern. Id. at 5 (quoting Coszalter, 320 F.3d
at 973). Other elements of the officer’s speech, however, warranted consti-
tutional protection. Id. We affirmed the district court, specifically refer-
encing its findings on the harassment and verbal abuse issue. See
Robinson, 566 F.3d at 822 (“With the exception of the three incidents
identified by the district court as individual personnel disputes, each of
these is clearly a ‘matter of public concern.’ ”).
The dissent attempts to skirt this holding, claiming that “[u]nlike Desro-
chers and Lowes, however, Robinson did not demonstrate that [these inci-
dents were] part of a broader pattern of abuse that impacted the
operational efficiency of the department.” Dissent at 8709 n.1. But just
how could Desrochers and Lowes have “demonstrated” a “pattern of
abuse” much less one that “impacted the operational efficiency” of the
department? See supra pp. 8689-92. The only suggestion that the “opera-
8694 DESROCHERS v. CITY OF SAN BERNARDINO
Such speech, “if released to the public, would convey no
information at all other than the fact that [two] employee[s
were] upset with the status quo,” Connick, 461 U.S. at 148,
and is of no relevance “beyond the employee[s’] bureaucratic
niche,” Tucker, 97 F.3d at 1210. On numerous occasions, our
sister circuits have suggested that complaints of this nature
would not trigger constitutional protection. See Taylor v. Car-
mouche, 214 F.3d 788, 789 92 (7th Cir. 2000) (explaining that
speech “concern[ing] supervisory management styles” would
be unprotected); Kennedy v. Tangipahoa Parish Library Bd.
of Control, 224 F.3d 359, 374 (5th Cir. 2000) (noting that
“criticiz[ing] the management style or job performance of [a]
direct superior” would cut against a public concern finding),
abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); Gardetto v. Mason, 100 F.3d 803, 814
(10th Cir. 1996) (“Management practices or decisions allocat-
ing management responsibility to particular individuals also
do not involve matters of public concern.”); see also Brooks
v. Univ. of Wis. Bd. of Regents, 406 F.3d 476, 480 (7th Cir.
2005) (describing “infighting” and decisions which “under-
mine” an individual’s “control of a department” as “a classic
personnel struggle”).13 Indeed, to hold otherwise here would
tional efficiency” of the department was “impacted” is found in one sen-
tence of Mankin’s characterization of their remarks. As noted above,
however, we have held that “passing references to public safety[,] inciden-
tal to the message conveyed,” do not implicate matters of public concern.
Robinson, 566 F.3d at 823 (internal quotation marks and citation omitted).
Again, not all speech concerning government functioning automatically
deserves protection. See Roth, 856 F.2d at 1405; see supra pp. 8689-92.
For the reasons discussed throughout this opinion, Mankin’s description
of the sergeants’ speech, analyzed with an eye to its “content, form, and
context . . ., as revealed by the whole record,” Connick, 461 U.S. at 147
48, fails to obtain First Amendment protection.
13
On one occasion, we did find speech involving a supervisor’s manage-
ment style to be of public concern. See Lambert v. Richard, 59 F.3d 134
(9th Cir. 1995). That case, however, is distinguishable on grounds of form
and context. See infra pp. 8699-8700.
DESROCHERS v. CITY OF SAN BERNARDINO 8695
be to create the potential for litigation in every workplace
gripe exchanged around the water cooler.14
[7] Boiled down to its essence, the speech at issue reflects
dissatisfaction with a superior’s management style and the
ongoing personality dispute which resulted.15 Recognizing
that the content of the speech relates at best only tangentially
to matters of public concern, we proceed to the next prongs
of the Connick test.
2
[8] The sergeants do not claim that the form of their speech
lends itself to a finding of public concern. Nor could they.
The fact that the speech took the form of an internal employee
grievance means that the public was never made aware of
Desrochers and Lowes’ concerns. “That [the employee]
expressed his views inside his office, rather than publicly, is
not dispositive.” Garcetti v. Ceballos, 547 U.S. 410, 420
(2006). We have recognized, however, that “[a] limited audi-
ence weigh[s] against [a] claim of protected speech.” See Roe,
109 F.3d at 585; McKinley, 705 F.2d at 1114 (“The result in
14
The dissent claims that these out-of-circuit cases stand only for the
proposition “that speech is not of public concern when the employee com-
plains of management issues that do not implicate the effective operation
and provision of public service.” Dissent at 8711. Rather, these cases sug-
gest that speech regarding a supervisor’s management style, in and of
itself, does not necessarily “implicate the effective operation and provision
of public services.” Moreover, the scenarios they address appear to fall
well within the dissent’s expansive concept of public concern. If a poor
working relationship between employees and their supervisor “impli-
cate[s] the effective operation and provision of public services” why
would complaints about overbearing managers or disputes over employee
autonomy and professionalism not do likewise?
15
Nothing we say here should be taken to suggest that “the competency
of [a] police force” is anything but a matter of “great public concern.”
McKinley, 705 F.2d at 1114. We conclude only that the speech at issue
here does not implicate the competency of a police force in any meaning-
ful way.
8696 DESROCHERS v. CITY OF SAN BERNARDINO
Connick is also explained by the fact that the employee did
not seek to inform the public about the operation of a public
agency.” (internal quotation marks and citation omitted)).
The relevance of non-disclosure to the public tracks the
Supreme Court’s acknowledgment that “the public’s interest
in receiving the well-informed views of government employ-
ees engaging in civic discussion” is one of the primary pur-
poses of its First Amendment retaliation jurisprudence.
Garcetti, 547 U.S. at 419. “Public speech is more likely to
serve the public values of the First Amendment. Private
speech motivated by an office grievance is less likely to con-
vey the information that is a prerequisite for an informed elec-
torate.” Weeks, 246 F.3d at 1235 (citation omitted). Thus,
though “a private complaint may relate to a matter of public
concern,” our consideration of the form Desrochers and
Lowes adopted to convey their message “help[s us] identify
[whether their] speech . . . is of public concern.” Id.16
[9] Because the speech at issue took the form of internal
employee grievances which were not disseminated to the pub-
lic, this portion of the Connick test cuts against a finding of
public concern.17
3
Finally, Desrochers and Lowes argue that the context in
which their speech was uttered suggests that they were moti-
vated, not by a personal vendetta against Kimball, but rather
out of a concern for the well-being of the SBPD.
16
This is “particularly [true] in close cases.” Weeks, 246 F.3d at 1235.
17
We do not suggest that broadcasting an employee grievance to the
public automatically transforms such speech into speech on a matter of
public concern. The form of the speech is only one factor in the Connick
balancing test. That said, it is still a factor. The dissent minimizes such
element, see Dissent at 8716-17, a consideration the Supreme Court
directed us to analyze in Connick.
DESROCHERS v. CITY OF SAN BERNARDINO 8697
[10] The sergeants are correct that “[t]o aid us in ascertain-
ing when speech . . . rises to a level of public concern, we
examine the context of the speech, particularly the point of
the speech.” Roth, 856 F.2d at 1405; see also Gillbrook, 177
F.3d at 866 (“An employee’s motivation [is] relevant to the
public-concern inquiry.”). In other words, why did the
employee speak (as best as we can tell)? Does the speech
“seek to bring to light actual or potential wrongdoing or
breach of public trust,” or is it animated instead by “dissatis-
faction” with one’s employment situation? Connick, 461 U.S.
at 148; Roth, 856 F.2d at 1405. The question of whether the
speech was made to “further some purely private interest” is
relevant to that inquiry, Havekost, 925 F.2d at 318, as is a
determination of whether the speech was made in the context
of a workplace “power struggle,” Tucker, 97 F.3d at 1210
(internal quotation marks and citation omitted).
[11] The sergeants’ claims of altruistic motivation find
some support in the record. The grievances state that Desro-
chers and Lowes felt compelled to act “for the good of the
department.” They believed that their actions were “a neces-
sary step forward in an attempt to change the culture of this
police department and the way we treat each other.” This
characterization of the sergeants’ motivation is further bol-
stered by the fact that when Desrochers and Lowes initiated
their complaints, they held “secure” positions. Roth, 856 F.2d
at 1406. Thus, their speech was not “precipitated by adverse
actions of [their] supervisors pertaining to [their] employ-
ment,” such as a transfer or demotion. Id. Similarly, the
record indicates that at least one of the sergeants had never
before filed any form of grievance.
[12] However, the record also contains undisputed evidence
that Desrochers and Lowes were motivated by their dissatis-
faction with their employment situation brought on by “a dif-
ference of personalities between” the sergeants and Kimball.
For example, Lowes forthrightly described his job as “unre-
warding” so long as Kimball was his supervisor. The ser-
8698 DESROCHERS v. CITY OF SAN BERNARDINO
geants even asked that Kimball be required to attend
“[i]nterpersonal relations training,” and that the SBPD for-
mally acknowledge that their vision of how an office should
be run was right, and Kimball’s was wrong.
Connick—which itself turned on a contextual inquiry—is
especially instructive here. In that case, an assistant district
attorney, Sheila Myers, was informed that she would be trans-
ferred. 461 U.S. at 140. She was “strongly opposed to the pro-
posed transfer,” and made her objections known to several
supervisors. Id. Despite her concerns, she was told that the
decision was final. In response, Myers circulated a question-
naire to the office “concerning office transfer policy, office
morale, [and] the level of confidence in supervisors.” Id. at 141.18
The Court concluded, however, that these matters were not of
public concern. Instead, they were “mere extensions of
Myers’ dispute over her transfer.” Id. at 148 (emphasis
added).
[13] Here, Desrochers and Lowes’ speech was “mere[ly an]
extension[ ]” of the running spat between the sergeants and
Kimball. See Voight v. Savell, 70 F.3d 1552, 1560 (9th Cir.
1995) (describing speech as an “extension of [a] personal dis-
pute” between coworkers).19 The ultimate source of the griev-
ances can be traced to the simple fact that the sergeants and
Kimball did not get along. They preferred a particular man-
agement style, and he employed another. Their initial infor-
mal grievance centered on Kimball and Kimball alone. It was
not until Mankin and Billdt disagreed with Desrochers and
Lowes’ assessment of Kimball’s performance that they, too,
18
Myers’ questionnaire also asked “whether employees felt pressured to
work in political campaigns.” Connick, 461 U.S. at 141. This was the sole
matter the Court found to be of public concern. There is no similar speech
in the grievances at issue here.
19
The Voight panel ultimately held aspects of the speech in that case to
be on matters of public concern. See 70 F.3d at 1560. That speech
involved discrimination and unfairness in hiring practices, matters not at
issue in this case. See id.
DESROCHERS v. CITY OF SAN BERNARDINO 8699
became objects of the sergeants’ ire. Accordingly, “we do not
believe these [statements] are of public import in evaluating
the performance of” the SPBD. Connick, 461 U.S. at 148.20
Our opinion in Lambert v. Richard, 59 F.3d 134 (9th Cir.
1995), is not to the contrary. There, the plaintiff, Lambert,
read a prepared statement criticizing her supervisor, the direc-
tor of the local library, at a city council meeting. Id. at 135.
The supervisor was described as an individual who “misman-
aged the library department and treated employees in an abu-
sive and intimidating manner.” Id. at 136. His conduct was
allegedly “having an adverse effect on service to the public.”
Id. “Lambert told the council that the library was ‘barely’
functioning and that employees who dealt regularly with the
public were performing ‘devoid of zest, with leaden hearts
and wooden hands.’ ” Id. We concluded that Lambert’s
speech was on a matter of public concern. Id.
Portions of Desrochers and Lowes’ grievances contain sim-
ilar allegations about their supervisors’ negative impact on
unit morale.21 Crucially, however, the context in Lambert was
very different from the case at hand.22 In Lambert, “the ten-
20
Desrochers and Lowes claim that the fact that they continued to pur-
sue their grievance even after Kimball voluntarily transferred to another
unit demonstrates that they had the interests of the department at heart. Of
course, this persistence could also be read to suggest that the sergeants
were motivated by personal animosity towards Kimball. At this stage of
the proceedings, we must construe the evidence in the light most favorable
to the sergeants. However, that interpretation, standing alone, does not
alter our ultimate conclusion. At best, it makes one portion, of one ele-
ment, of a three-pronged inquiry cut slightly in the sergeants’ favor.
21
The dissent seems to believe this concession is fatal. See Dissent at
8712. We do not, however, make determinations of public concern based
solely on the content of the speech in question. See Connick, 461 U.S. at
147 48 (requiring us to look to “the content, form, and context” of the
speech “as revealed by the whole record”).
22
There is a difference in form as well as a difference in context. In
Lambert, the plaintiff voiced her concerns in a public forum, at a city
council meeting. See 59 F.3d at 135. In this case, the speech took the form
of an internal grievance. See supra pp. 8695-96.
8700 DESROCHERS v. CITY OF SAN BERNARDINO
sion between the staff of the City Library and the defendant
Richard [was a] subject of public discussion.” Id. “Lambert
was not the first city employee to publically question Rich-
ard’s job performance. Librarians had been wearing anti-
Richard buttons to work. Two weeks before Lambert
addressed the council [the union president] had complained to
that body about . . . the staff’s lack of confidence in Richard.”
Id. at 135. No such political struggle occurred here. Desro-
chers and Lowes never claim to have disclosed their concerns
publically, and there is no indication that the general public
was even remotely aware of Kimball’s actions. There is a
marked distinction between speech motivated by personal dif-
ferences and circulated to a few colleagues, and speech before
a city council on a matter in the public eye. The Supreme
Court has warned us that speech “not otherwise of public con-
cern does not attain that status because its subject matter
could, in different circumstances, have been the topic of a
communication to the public that might be of general inter-
est.” Connick, 461 U.S. at 148 n.8 (emphasis added). The
question is not whether particular subjects “could be matters
of public concern”; the question is whether “this [speech]”
meets the test. Id.23
[14] Therefore, we conclude that “this [speech],” taken in
context, merely reflects two employees’ dissatisfaction with
their employment situation, a conclusion which weighs
against a finding of public concern. 461 U.S. at 148.
23
The dissent does not believe Lambert is distinguishable. See Dissent
at 8710-11 & n.2. But it misapprehends the tripartite nature of our inquiry
to find Lambert controlling because that case likewise involved speech
centered on a supervisor’s management style. We look not only to content,
but also to form and context. Lambert did not hold that discussions of a
supervisor’s management style were categorically matters of public con-
cern. Rather, it held that discussions of a supervisor’s management style
were matters of public concern when those discussions were held in public
and the general populace was already interested in the subject.
DESROCHERS v. CITY OF SAN BERNARDINO 8701
B
After assessing “the content, form, and context” of the ser-
geants’ grievances, “as revealed by the whole record,” Conn-
ick, 461 U.S. at 147 48, we conclude that Desrochers and
Lowes failed to meet their burden to demonstrate that their
speech “can be fairly considered as relating to a matter of
political, social, or other concern to the community,” Voight,
70 F.3d at 1559. While the working environment in the SEB
might have been unpleasant, the speech at issue involved
nothing more than an internal dispute. “An internal dispute
with no wider societal implications is not a matter of public
concern. Instead, it falls within the genre of ‘personnel dis-
putes and grievances’ which are not constitutionally signifi-
cant.” Roe, 109 F.3d at 586.24
The dissent obviously reaches a different conclusion. How-
ever, every case cited by the dissent to reach such conclusion
contains significant factual distinctions from the matter at
hand.25 Given the fact-intensive nature of our inquiry, these
24
We agree with the Supreme Court that “public employers should, as
a matter of good judgment, be receptive to constructive criticism offered
by their employees.” Garcetti, 547 U.S. at 425 (internal quotation marks
and citation omitted). In this case, it appears that Kimball was receptive
of Desrochers and Lowes’ concerns—when he discovered that they had
difficulties working with him, he immediately requested and received a
transfer. We reject, however, the notion that such criticism—constructive
or otherwise—is automatically a matter of public concern for purposes of
First Amendment retaliation claims.
25
See Robinson, 566 F.3d at 821 (on-the-job consumption of alcohol,
anti-Semitism, use of excessive force, and discrimination); Cochran, 222
F.3d at 1201 (racial and gender bias); Voight, 70 F.3d at 1560 (discrimina-
tion and unfairness in hiring practices); Lambert, 59 F.3d at 135 (state-
ments made before a city council on a matter already in the public eye);
Johnson, 48 F.3d at 421 (misuse of public funds); Gillette, 886 F.2d at
1197-98 (use of excessive force); Roth, 856 F.2d at 1403 (“wastefulness,
mismanagement, unethical conduct, violations of regulations, and incom-
petence”); McKinley, 705 F.2d at 1112 (speech on police compensation
made in a public forum).
8702 DESROCHERS v. CITY OF SAN BERNARDINO
distinctions make all the difference. The speech at issue in
this case is simply not of the same ilk. If the mere suggestion
that a bullying superior affects the morale and operational
effectiveness of a public agency were enough to create speech
on a matter of public concern, Connick would cease to mean
much.
[15] That said, the fact that this case has generated a
thoughtful dissent suggests that it is close. But once again, we
have said that “[i]n a close case, when the subject matter of
a statement is only marginally related to issues of public con-
cern, the fact that it was made because of a grudge or other
private interest or to co-workers rather than to the press may
lead the court to conclude that the statement does not . . .
involve a matter of public concern.” Johnson, 48 F.3d at 425;
see also Weeks, 246 F.3d at 1235. The subject matter of the
speech before us at best relates “only marginally” to issues of
public concern, the grievances were motivated by a personal
dispute, and the sergeants’ concerns were never relayed to the
press or the public. Accordingly, Desrochers and Lowes’
speech is “most accurately characterized as an employee
grievance concerning internal office policy.” Connick, 461
U.S. at 154.26
We reach our conclusion in light of the Supreme Court’s
repeated admonition that “while the First Amendment invests
public employees with certain rights, it does not empower
them to constitutionalize the employee grievance.” Garcetti,
547 U.S. at 420 (internal quotation marks and citation omit-
26
Because the sergeants’ speech was not on a matter of public concern,
we likewise conclude that any “follow-up communications” which could
be read to imply that the SBPD was “sweeping misconduct under the rug”
are not speech on a matter of public concern. See Robinson, 566 F.3d at
823. As we noted, in this case, there is no “misconduct” to be swept under
the rug. See supra note 8. It would be incongruous to hold speech contain-
ing allegations of a cover-up to be speech on a matter of public concern
when the matter allegedly being “covered up” is not itself of public con-
cern.
DESROCHERS v. CITY OF SAN BERNARDINO 8703
ted); see also Connick, 461 U.S. at 154.27 “[A] federal court
is not the appropriate forum in which to review the wisdom
of a personnel decision . . . .” Connick, 461 U.S. at 147. To
transform every workplace squabble into the proverbial “fed-
eral case” would be to trivialize the “great principles of free
expression” the First Amendment embodies. Id. at 154.
As the district court concluded, a “ruling that [the ser-
geants’] speech addressed a matter of public concern, taken to
its logical extreme, would allow a constitutional claim for
nearly any internal administrative discussions by employees
of a public agency.” It “would mean that virtually every
remark—and certainly every criticism directed at a public
official—would plant the seed of a constitutional case.” Con-
nick, 461 U.S. at 149. The First Amendment does not require
such a result. As the Court said in Connick, it would indeed
be a “Pyrrhic victory” if “a public employee’s right, as a citi-
zen, to participate in discussions concerning public affairs
were confused with the attempt to constitutionalize the
employee grievance that we see presented here.” Id. at 154.
III
[16] For the foregoing reasons, Desrochers and Lowes can-
not meet the threshold requirement to state a First Amend-
ment retaliation claim under § 1983.28 Accordingly, the
district court’s grant of summary judgment is
AFFIRMED.
27
We cannot help but note that Desrochers and Lowes are quite literally
attempting to “constitutionalize” an internal employee grievance. That rec-
ognition alone does not dispose of this case. But in light of the Supreme
Court’s warnings, it does make us chary of a finding of public concern.
28
It follows that the officers are, in any event, entitled to qualified
immunity.
8704 DESROCHERS v. CITY OF SAN BERNARDINO
WARDLAW, Circuit Judge, dissenting:
I respectfully dissent. The majority fails to view “the evi-
dence in the light most favorable to the plaintiffs,” Coszalter
v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003), as we
must on summary judgment. It also fails to evaluate the
“ ‘content, form, and context of a given statement, as revealed
by the whole record,’ ” Ulrich v. City & County of S.F., 308
F.3d 968, 978 (9th Cir. 2002) (quoting Connick v. Myers, 461
U.S. 138, 147-48 (1983)), and instead relies on only those
portions of the record and case law that support its conclusion
that the speech at issue was a mere “workplace gripe.” Maj.
Op. 8695. Because plaintiffs’ speech “ ‘can fairly be consid-
ered to relate to’ ” a matter of public concern, Eng v. Cooley,
552 F.3d 1062, 1070 (9th Cir. 2009) (quoting Johnson v.
Multnomah County, 48 F.3d 420, 422 (9th Cir. 1995)), I
would remand to the district court for consideration of the
remaining elements of the First Amendment retaliation
inquiry.
I.
From the outset of the grievance process, Sergeants
Michael Desrochers and Steve Lowes have maintained that
supervising Lieutenant Mitchal Kimball’s behavior impeded
the proper functioning of the San Bernardino Police Depart-
ment (“SBPD”). Captain Frank Mankin, a defendant in this
case and the official to whom Sergeants Desrochers and
Lowes first reported their informal grievance, documented the
sergeants’ claim “that the interaction between themselves and
Lieutenant Kimball had risen to a level so as to impact the
operational efficiency and effectiveness of the units over
which Lieutenant Kimball had managerial oversight.” In the
informal grievance, the sergeants asserted that Kimball vio-
lated SBPD “policy and procedure[ ]” and acted inappropri-
ately toward neighboring police departments. They requested
that the city remove Kimball from command of the Special-
ized Enforcement Bureau (“SEB”), formally investigate the
DESROCHERS v. CITY OF SAN BERNARDINO 8705
charges contained in their grievance, order Kimball into addi-
tional training, and monitor Kimball’s conduct in the future.
Kimball immediately requested a transfer out of the SEB,
which was granted, but the department failed to initiate an
investigation of his conduct or order Kimball into additional
training. In an attempt to terminate the grievance, Chief
Michael Billdt prepared a resolution letter “acknowledg[ing]
that a strained relationship existed between” the sergeants and
Kimball, but Desrochers and Lowes refused to sign the letter
because it did not address the institutional remedies that they
had requested.
Desrochers and Lowes next filed a formal grievance against
Kimball, charging that he created a “hostile work environ-
ment by his repeated violations” of internal policies and pro-
cedures, and added claims against Chief Billdt and Captain
Mankin for “fail[ing] to take appropriate action” despite being
“continually made aware of the hostile work environment.”
The sergeants addressed in further detail the impact of Kim-
ball’s behavior on the SBPD and on SBPD’s interaction with
other agencies. For example, Lowes reported that Kimball
lectured him in front of the Rialto Police Department regard-
ing the “incompetence of outside agencies” and criticized
Lowes for being too “trusting” of the Rialto department.
Lowes reported that this interaction “undermined [his] effort
to build a positive relationship with Rialto PD and assist them
. . . in a positive way.” Further, “Kimball embarrassed the
[San Bernardino] SWAT team by confronting a visiting
SWAT team (Riverside PD)” when the Riverside team was
training in San Bernardino. Lowes reported that Kimball left
the “definite impression” that he “thought that Riverside PD
was incompetent” during the confrontation. In total, Lowes
reported that Kimball’s “approach and tactics were destroying
the moral[e] and confidence” of the department and that the
independently minor “incidents amount to added stress and
distrust in the daily operations of the unit.”
Similarly, Desrochers complained that Kimball’s “autocrat-
ic” “management style” ”negatively” affected the morale in
8706 DESROCHERS v. CITY OF SAN BERNARDINO
his unit. He claimed that he was “unable to supervise the unit
because of [Kimball’s] interference,” and, as a result, it was
“very difficult for [him] to perform [his] duty.” Desrochers
also complained about Kimball’s negative interaction with the
members of the Beaumont Police Department in a meeting
about warrant service, during which Kimball “did not put the
San Bernardino police department in a positive light” and
demonstrated that he “was not eager to work cooperatively
with this other agency.” Desrochers presented his grievance
as “a necessary step forward in an attempt to change the cul-
ture of this police department and the way we treat each
other.”
In their formal grievance, the sergeants requested an
“[a]cknowledgment that the . . . listed violations of policy and
core values are not condoned by the administration of the San
Bernardino Police Department” and that “the creation and
maintenance of high moral[e] of department members is para-
mount for effective organizational health and development.”
They also sought an agreement “to monitor and develop Lt[.]
Kimball in order to prevent any future incidents” and a com-
mitment to “develop and publish additions to . . . organiza-
tional core values that . . . reflect the type of culture that
fosters respect and friendly interaction between all employees
regardless of rank.” No satisfactory resolution was reached
after this stage.
The sergeants next filed a complaint with the city’s Human
Resources Department against Kimball, Chief Billdt, and
Captain Mankin. In addition to the conduct reported earlier,
they complained of a threat of retaliation from Chief Billdt
and included a claim against Lieutenant Boom, the officer
who replaced Kimball as Desrochers’s and Lowes’s supervi-
sor, for “inappropriate and harassing comments given to
coworkers, peers and subordinates.” They requested an inves-
tigation of Lieutenant Boom and Chief Billdt and replacement
of Boom with a different lieutenant.
DESROCHERS v. CITY OF SAN BERNARDINO 8707
II.
The first step of a First Amendment retaliation analysis is
determining “whether the plaintiff spoke on a matter of public
concern.” Eng, 552 F.3d at 1070. “Although the boundaries of
the public concern test are not well defined,” City of San
Diego v. Roe, 543 U.S. 77, 83 (2004) (per curiam), it is clear
that the matter should be “of political, social, or other concern
to the community,” Voigt v. Savell, 70 F.3d 1552, 1559 (9th
Cir. 1995). In evaluating the “ ‘content, form, and context of
a given statement,’ ” Ulrich, 308 F.3d at 978 (quoting Conn-
ick, 461 U.S. at 147-48), we may consider the “motivation
and the chosen audience” for the speech, Johnson, 48 F.3d at
425, but “ ‘motive should not be used as a litmus test for pub-
lic concern,’ ” Alpha Energy Savers, Inc. v. Hansen, 381 F.3d
917, 925 (9th Cir. 2004) (quoting Havekost v. U.S. Dep’t of
Navy, 925 F.2d 316, 318 (9th Cir. 1991)). Moreover, we have
adopted a “liberal construction of what an issue ‘of public
concern’ is under the First Amendment,” Roe v. City &
County of S.F., 109 F.3d 578, 586 (9th Cir. 1997), in recogni-
tion that “ ‘one of the fundamental purposes of the [F]irst
[A]mendment is to permit the public to decide for itself which
issues and viewpoints merit its concern,’ ” Ulrich, 308 F.3d
at 978 (quoting McKinley v. City of Eloy, 705 F.2d 1110,
1114 (9th Cir. 1983)).
Key to this inquiry is our recent holding that “[a]s a matter
of law, ‘the competency of the police force is surely a matter
of great public concern.’ ” Robinson v. York, 566 F.3d 817,
822 (9th Cir. 2009) (quoting McKinley, 705 F.2d at 1114). In
more general terms, we have described speech on matters of
public concern as “ ‘[s]peech that concerns issues about
which information is needed or appropriate to enable the
members of society to make informed decisions about the
operation of their government.’ ” Coszalter, 320 F.3d at 973
(quoting McKinley, 705 F.2d at 1114). Although the speech
may involve broader issues such as “ ‘actual or potential
wrongdoing or breach of public trust,’ ” Roth v. Veteran’s
8708 DESROCHERS v. CITY OF SAN BERNARDINO
Admin., 856 F.2d 1401, 1405 (9th Cir. 1988) (quoting Conn-
ick, 461 U.S. at 148), “it is sufficient that the speech concern
matters in which even a relatively small segment of the gen-
eral public might be interested,” Roe, 109 F.3d at 585. Most
importantly, the mismanagement of personnel, performance,
functioning, and “inefficiency in managing and operating
government entities are matters of inherent public concern,”
Johnson, 48 F.3d at 425; see also Eng, 552 F.3d at 1072;
Roth, 856 F.2d at 1406; McKinley, 705 F.2d at 1114, as are
“ ‘discipline and morale in the workplace,’ ” because those
“ ‘are related to an agency’s efficient performance of its
duties,’ ” McKinley, 705 F.2d at 1114 (quoting Connick, 461
U.S. at 148). Moreover, the relevance of such concerns to the
public increases when the operation of a public safety agency
is at issue. See Gilbrook v. City of Westminster, 177 F.3d 839,
866 (9th Cir. 1999) (“[A]n opinion about the preparedness of
a vital public-safety institution . . . goes to the core of what
constitutes speech on matters of public concern.”); see also
Robinson, 566 F.3d at 822; McKinley, 705 F.2d at 1114.
Indeed, we have found speech to be of public concern even
when it concerned exclusively “the manner in which police
. . . performed their duties on a particular occasion.” Gillette
v. Delmore, 886 F.2d 1194, 1197 (9th Cir. 1989).
In contrast, the “[o]nly speech” that is not of public concern
is speech “that deals with ‘individual personnel disputes and
grievances’ and that would be of ‘no relevance to the public’s
evaluation of the performance of governmental agencies,’ ”
Robinson, 566 F.3d at 822 (quoting McKinley, 705 F.2d at
1114); Coszalter, 320 F.3d at 973, including “speech that
relates to internal power struggles within the workplace” or
speech that is of no interest “beyond the employee’s bureau-
cratic niche,” Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204,
1210 (9th Cir. 1996) (internal quotation marks omitted).
III.
While the majority cites many of these legal principles, it
fails to place them in the proper context. A canvass of our
DESROCHERS v. CITY OF SAN BERNARDINO 8709
prior case law reveals that the sergeants’ speech is analogous
to other instances of speech that we have found to relate to a
matter of public concern.
In Robinson, for example, a police officer reported various
incidents of officer misconduct in his department, such as
retention of outside employment, consumption of alcohol dur-
ing work hours, potentially anti-Semitic tattoos, alleged
instances of battery and excessive force, and a potentially dis-
criminatory sign. See 566 F.3d at 820-21. The officer also tes-
tified in a class action discrimination suit. Id. at 820. We
affirmed the district court’s conclusion that these statements,
which involved “numerous instances of possible corruption,
discrimination, or misconduct,” were matters of public concern.1
Id. at 822. We held that “[r]eports pertaining to others, even
if they concern personnel matters including discriminatory
conduct, can still be ‘protected under the public concern
test.’ ” Id. at 823 (quoting Thomas v. City of Beaverton, 379
F.3d 802, 808 (9th Cir. 2004)). Robinson thus demonstrates
that internal grievances regarding officer misconduct consti-
tute a matter of public concern.
Similarly, in Cochran v. City of Los Angeles, two police
officers lodged internal complaints about their supervisor’s
work ethic, questioned her “ability to make decisions free
from personal bias or preferences, and undermined her
1
The Robinson district court also concluded that three of the reported
incidents involved only unprotectable “individual personnel disputes,”
Robinson, 566 F.3d at 822, including an incident of “verbal abuse” by a
lieutenant “toward Robinson in front of numerous [Office of Public
Safety] employees because Robinson complained when [the lieutenant]
sent two officers home,” Robinson v. County of L.A., No. CV-06-2409-
GAF, slip op. at 3 (C.D. Cal. Aug. 7, 2007). Unlike Desrochers and
Lowes, however, Robinson did not demonstrate that this incident was part
of a broader pattern of abuse that impacted the operational efficiency of
the department. Therefore, we affirmed the district court’s finding that this
speech did not involve a matter of public concern. See Robinson, 566 F.3d
at 822.
8710 DESROCHERS v. CITY OF SAN BERNARDINO
authority.” 222 F.3d 1195, 1200 (9th Cir. 2000). While we
ultimately concluded that the speech was unprotected because
the plaintiffs’ interest in the speech was “outweighed by the
City’s interest in preserving discipline and harmony,” id. at
1199, we found that “the speech here did concern matters
which are relevant to the public’s evaluation of its police
department,” even though it was “focused on one employee
and not addressed directly to the public,” id. at 1200. These
precedents firmly establish that reports of police officer
behavior that impedes the proper operation of a police force
are matters of public concern, even when made internally.
Viewing the sergeants’ complaints about Kimball’s destruc-
tive managerial approach in this context, it is clear that their
speech should be similarly protected.
Further, numerous cases provide relevant examples of pro-
tected speech that concerns the performance, functioning, and
mismanagement of government agencies. In Lambert v. Rich-
ard, a library employee who was also a union representative
read a prepared statement at a city council meeting criticizing
the management style of her supervisor, Richard, due to
whom “the library was ‘barely’ functioning” and “employees
who dealt regularly with the public were performing ‘devoid
of zest, with leaden hearts and wooden hands.’ ” 59 F.3d 134,
136 (9th Cir. 1995). We concluded that “[g]iven that opera-
tion of a public library is among the most visible of the func-
tions performed by city governments, Lambert had a
Constitutional right—and perhaps a civic duty—to inform the
council if library service was jeopardized by poor manage-
ment at the top.” Id. Lambert stands for the proposition that
poor management of a publicly visible agency—like a police
department—that negatively affects the functioning of the
agency is a matter of public concern.2 It also establishes that
2
The majority distinguishes Lambert on the ground that the public
debate about Richard’s management style was already ongoing. Maj. Op.
8699-8700. We did note that Lambert’s statement was made in the context
of protests alleging that “Richard mismanaged the library department and
DESROCHERS v. CITY OF SAN BERNARDINO 8711
allegations of illegal misconduct are not required, undermin-
ing the majority’s contention that “misconduct” needs to
mean what they think it means—i.e., “actual or potential
wrongdoing or breach of public trust.” Maj. Op. 8691 n.8
(internal quotation marks omitted).
In yet another case, the unit chief of a Veteran’s Adminis-
tration (“VA”) hospital “reported wastefulness, mismanage-
ment, unethical conduct, violations of regulations, and
incompetence to his superiors and to administrative person-
nel,” Roth, 856 F.2d at 1403, noting that he did so “for the
good of the institution,” id. at 1406. Just as “[i]t can hardly
be doubted that the efficient and ethical operation of the VA
and the VA’s compliance with applicable rules and regula-
tions are inherently of interest to the public,” id., Kimball’s
alleged noncompliance with internal SBPD policies make the
sergeants’ speech a matter of public concern.
The majority states that “our sister circuits have suggested”
to the contrary. Maj. Op. 8694. The cases cited by the major-
ity, however, establish only that speech is not of public con-
cern when the employee complains of management issues that
do not implicate the effective operation and provision of pub-
lic service. See Brooks v. Univ. of Wis. Bd. of Regents, 406
F.3d 476, 480 (7th Cir. 2005) (medical researcher complained
about his “ability to operate as he saw fit,” which constituted
“infighting for control of a [clinical] department” and was not
related to “patient welfare”); Kennedy v. Tangipahoa Parish
treated employees in an abusive and intimidating manner,” and that there
was “no question that Richard’s management style had become an issue
of significant public concern by the time Lambert spoke.” Lambert, 59
F.3d at 136. What is important, however, is not the timeline of the public’s
awareness, but the fact that Richard’s problematic management style did
constitute an issue of public concern. It would be nonsensical to provide
protection only to employee statements made on topics already of public
concern and deprive other employees of protection because they are
among the first to highlight a problem at a governmental agency.
8712 DESROCHERS v. CITY OF SAN BERNARDINO
Library Bd. of Control, 224 F.3d 359, 374 (5th Cir. 2000)
(noting cases in which personally aggrieved employees criti-
cized their superiors), abrogated on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007); Taylor v. Carmou-
che, 214 F.3d 788, 789 91 (7th Cir. 2000) (employees com-
plained about their supervisor in the context of long-term
personal disputes about medical leave and professionalism);
Gardetto v. Mason, 100 F.3d 803, 814 (10th Cir. 1996)
(employee complained about the restructuring of her office).
Issues of performance, discipline, and morale in public
safety organizations are especially matters of public concern,
given the direct impact of such entities on the well-being of
the public. In McKinley, a police officer who was also a union
representative discussed police salaries at a city council meet-
ing and gave a television interview regarding the dispute
between the city and the police department. 705 F.2d at 1112.
We held that this speech constituted a matter of public con-
cern because salaries affect the ability of the city to attract and
retain qualified police personnel, and “the competency of the
police force is surely a matter of great public concern.” Id. at
1114. Certainly, if police salaries are deemed a matter of pub-
lic concern because they indirectly affect police competence,
then speech that directly addresses police competence must
also satisfy this element. In light of our precedent, it is partic-
ularly incomprehensible why the majority opines that “a
reader struggles in vain to discover where or how the proper
functioning of the police department was jeopardized by the
actions of Kimball.” Maj. Op. 8692. In McKinley, we also
concluded that “the interrelationship between city manage-
ment and its employees is closely connected with ‘discipline
and morale in the workplace’—factors that ‘are related to an
agency’s efficient performance of its duties.’ ” 705 F.2d at
1114 (quoting Connick, 461 U.S. at 148). It is undisputed
even by the majority that the sergeants’ speech concerns
morale in the police workforce, Maj. Op. 8699; therefore,
McKinley is controlling and requires us to conclude that the
sergeants’ speech was of public concern.
DESROCHERS v. CITY OF SAN BERNARDINO 8713
Moreover, as long as the public can draw its own infer-
ences, an employee’s speech need not spell out all the aspects
of public concern. In Gillette, a firefighter was called to a
house where someone was allegedly suffering from a drug
overdose; pursuant to city policy, fire and medical personnel
took the victim against his will and without notification to the
hospital. 886 F.2d at 1195-96. During the course of these
events, the firefighter communicated to his coworkers his dis-
agreement with the handling of the situation. Id. at 1196. We
concluded that Gillette’s speech was a matter of public con-
cern because it “concerned the manner in which police and
fire fighters performed their duties on a particular occasion.”
Id. at 1197. We explained that Gillette’s “comments may well
raise questions concerning whether persons should be taken to
the hospital against their will, what notice they should
receive, and what degree of force is appropriate.” Id. at 1198.
Similarly, here, the sergeants’ statements originally concerned
the behavior of one lieutenant and later broadened to concern
the SBPD’s handling of these issues. Nonetheless, contrary to
the majority’s minimizing descriptions of the grievances as
concerning only “a poor working relationship” between the
sergeants and Kimball, Maj. Op. 8690 n.7; id. at 8695 n.14;
see also id. at 8691 n.8, the sergeants’ speech raised questions
about the effect of Kimball’s management style on the effi-
cient operation of the SBPD, on the SBPD’s capability to
cooperate with other departments when necessary, and, ulti-
mately, on its ability to achieve its mission—assuring the pub-
lic safety.
Most troubling is the majority’s misapplication of the sum-
mary judgment standard. Despite acknowledging that “our
inquiry” is “fact-intensive,” Maj. Op. 8703 n.27, it has chosen
a characterization of the sergeants’ speech by finding some
facts and disregarding others—in essence, substituting itself
for the jury. The simple fact that the majority cites some por-
tions of the record to conclude that the speech did not involve
a matter of public concern, while the dissent cites the remain-
8714 DESROCHERS v. CITY OF SAN BERNARDINO
ing portions to demonstrate that it did, indicates, at the very
least, that summary judgment on this issue is inappropriate.
We have rejected the majority’s type of analysis in cases
like Johnson, where an administrative assistant in the county
Department of Environmental Services made statements “to
coworkers and others accusing [her supervisor] of misman-
agement and possible criminal conduct.” 48 F.3d at 421. We
concluded “that misuse of public funds, wastefulness, and
inefficiency in managing and operating government entities
are matters of inherent public concern.” Id. at 425. Though
the county emphasized that Johnson did not go to the press
and was motivated by a desire to unseat the supervisor whose
job she sought, Johnson “present[ed] evidence to show that
she was motivated by a genuine interest in the welfare of
[county resources] and a righteous indignation of [her super-
visor]’s inadequate job performance.” Id. We concluded that
because these facts were disputed, summary judgment on the
issue of public concern was not appropriate. Id. at 425-26.
Similarly, here, the defendants raise factual questions regard-
ing the sergeants’ motivation for the speech—questions that
should be resolved by a trier of fact.
In stark contrast to the facts presented here stand cases in
which courts have found the public employee’s speech not
related to a matter of public concern. In the leading Supreme
Court case, Connick, a disgruntled assistant district attorney
who was opposed to a transfer circulated an internal question-
naire to her coworkers regarding office policies and morale.
461 U.S. at 141. Characterizing her speech as an “attempt to
constitutionalize the employee grievance,” id. at 154, the
Court held that Myers’s speech was not on a matter of public
concern because the purpose of the questionnaire was only to
“gather ammunition for another round of controversy with her
superiors,” id. at 148. Connick, however, is wholly distin-
guishable on its facts. It is undisputed that at the time of filing
the grievance, Desrochers and Lowes were secure in their
positions—both have been with the force for over twenty
DESROCHERS v. CITY OF SAN BERNARDINO 8715
years and had no intention (or prospect) of using the griev-
ance process in a self-interested manner. This conclusion is
buttressed by the fact that the sergeants continued their griev-
ance process even though Kimball left his position as their
supervisor. Had the sergeants been engaged in workplace
“power struggles,” Tucker, 97 F.3d at 1210, or a “running
spat” with Kimball, as the majority suggests, Maj. Op. 8698,
they would have given up at that point. Even more persuasive
are the remedies that the sergeants sought—the institutional
and policy changes they requested unmistakably signify an
effort to highlight and solve problems with the culture of the
department and not a conflict concerning only the “employ-
ee’s bureaucratic niche.” Tucker, 97 F.3d at 1210 (internal
quotation marks omitted). That the sergeants refused to sign
the initial resolution letter because the institutional remedies
they requested were not implemented militates toward the
same conclusion—the sergeants were not asserting their own
personal grievances but bringing to the attention of the admin-
istration pervasive problems within the police force due to the
abusive management style of the officer in charge of the unit.
The majority’s disparaging comparison of the sergeants’
speech to complaints regarding law clerk coffee breaks appar-
ently originates from Havekost, in which a grocery bagger in
a Navy commissary circulated a petition to other baggers
regarding “an internal dispute over the Navy’s dress code,
scheduling, and responsibility for certain lost commissary
profits.” 925 F.2d at 319. Characterizing the speech as the
“minutiae of workplace grievances,” we concluded that it did
not meet the public concern test. Id. Comparing Havekost’s
concerns to coffee breaks was fitting under the circumstances,
since one of Havekost’s concerns was scheduling. Id. In con-
trast, the comparison is strikingly ill-adapted here, where
police officers raise questions regarding the operational effi-
ciency of a police force. Given the importance of a competent
police force to the safety of a community, moreover, neither
is the sergeants’ speech similar to the “inter-office transmittal
of case citations and summaries,” Roe, 109 F.3d at 585, that
8716 DESROCHERS v. CITY OF SAN BERNARDINO
we concluded was not a matter of public concern because it
was an “internal dispute with no wider societal implications,”
id. at 586.
Similarly unwarranted is the majority’s comparison of the
sergeants’ grievance filings to “workplace gripe[s] exchanged
around the water cooler,” Maj. Op. 8695, and its description
of the sergeants’ speech as “ ‘mere[ly an] extension[ ]’ of the
running spat between the sergeants and Kimball,” id. at 8698
(alterations in original) (quoting Voigt, 70 F.3d at 1560). In
Voigt, a court employee voiced internal “criticism regarding
the way Judge Savell handled two internal personnel matters.”
70 F.3d at 1560. We characterized Voigt’s concern “primarily
as an extension of his personal dispute with Judge Savell in
which Voigt attempted to galvanize support for himself by
weakening staff support for Judge Savell.”3 Id. That Desro-
chers and Lowes took the situation sufficiently seriously to
follow formal grievance procedures distinguishes this case
from Voigt and from the “water cooler” scenario. The ser-
geants were not simply complaining about Kimball’s dis-
agreeable nature to their coworkers but were instead seeking
to address with the administration the negative impact of
Kimball’s management style on the operation of the police
force.
The majority also emphasizes that the sergeants’ speech
was internal instead of directed to the public. Maj. Op.
8695-96. Courts have repeatedly held, however, that the fact
that an employee “expressed his views inside his office, rather
than publicly, is not dispositive. Employees in some cases
may receive First Amendment protection for expressions
made at work.” Garcetti v. Ceballos, 547 U.S. 410, 420
3
The majority discounts the fact that, despite labeling Voigt’s speech a
“personal dispute,” we held that the speech “can be characterized as touch-
ing on a matter of public concern” because “[t]he public has an interest in
knowing whether the court treats its job applicants fairly.” Voigt, 70 F.3d
at 1560.
DESROCHERS v. CITY OF SAN BERNARDINO 8717
(2006); see also Connick, 461 U.S. at 146. “Neither the [First]
Amendment itself nor [the Supreme Court’s] decisions indi-
cate that . . . freedom [of speech] is lost to the public
employee who arranges to communicate privately with his
employer rather than to spread his views before the public.”
Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16
(1979); see also Chateaubriand v. Gaspard, 97 F.3d 1218,
1223 (9th Cir. 1996) (O’Scannlain, J.) (“The form of the
speech—complaints to staff and superiors rather than to the
general public—does not remove it from the realm of public
concern.”); Gillette, 886 F.2d at 1198 (concluding that Gil-
lette’s speech involved a matter of public concern even
though it “was not directed to the public at large” because a
public audience “is not critical to the inquiry of whether the
speech involves a matter of public concern” (citing Rankin v.
McPherson, 483 U.S. 378, 386 n.11 (1987))). Finally, given
that the sergeants’ superiors were best placed to address the
problems arising from Kimball’s effect on the department, it
made sense for the sergeants to follow internal grievance pro-
cedures. “Bringing problems to the attention of responsible
governmental administrators is at least as important a commu-
nication for promoting democratic self-government as disclo-
sure to the citizenry as a whole.” Hyland v. Wonder, 972 F.2d
1129, 1139 (9th Cir. 1992). Indeed, a requirement that all con-
cerns of government mismanagement affecting the provision
of public services be aired publicly before being raised inter-
nally could prove quite counterproductive.
I would not hold that all of the sergeants’ speech constitutes
a matter of public concern. The sergeants do not attempt to
show how Lieutenant Boom’s alleged inappropriate com-
ments affected the competency of the police force. Com-
plaints regarding Captain Mankin’s promotion appear to
concern the internal distribution of power and not the effec-
tiveness of the organization as a whole. The sergeants’ state-
ments regarding Captain Mankin’s and Chief Billdt’s inaction
in response to their complaints are more troubling. Like Rob-
inson’s communications following up on his reports of mis-
8718 DESROCHERS v. CITY OF SAN BERNARDINO
conduct, the sergeants’ statements “did not merely contain
passing references to public safety [that] were incidental to
the message conveyed,” but, in discussing the negative impact
of Kimball’s behavior, “related to the danger the misconduct
posed and the need to respond to it.” See Robinson, 566 F.3d
at 823 (alteration in original) (internal quotation marks omit-
ted). The sergeants’ speech regarding Captain Mankin’s and
Chief Billdt’s response to their complaints thus “clearly
addressed at least two matters of public concern: the miscon-
duct itself and the distinct question of whether the investigat-
ing officers were . . . sweeping misconduct under the rug.” Id.
Therefore, the sergeants’ speech can be fairly considered to
relate to a matter of public concern. Because the district court
entered judgment only on the public concern element of the
five-step retaliation claim, I would reverse and remand for the
district court to consider the remaining elements, including
whether the defendants are entitled to qualified immunity. See
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the gen-
eral rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”).