John Ellins v. City of Sierra Madre ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ELLINS, No. 11-55213
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-03971-
CBM-RZ
CITY OF SIERRA MADRE , A
Municipality; MARILYN DIAZ,
Individually and as Chief of Police, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
May 8, 2012—Pasadena, California
Filed March 22, 2013
Before: Kim McLane Wardlaw, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge Rawlinson
2 ELLINS V . CITY OF SIERRA MADRE
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in this 42 U.S.C.
§ 1983 action brought by a police officer who alleged that his
salary increase was delayed in retaliation for the exercise of
his First Amendment rights.
The panel held that: (1) plaintiff’s speech, which involved
leading a no-confidence vote of the police officers’ union
against the Chief of Police, involved a matter of public
concern; (2) a jury could reasonably conclude that plaintiff’s
union activities and related speech were undertaken in his
capacity as a private citizen; (3) the delay in plaintiff’s pay
increase constituted an adverse employment action; (4)
plaintiff’s speech was a substantial or motivating factor for
the delay; and (5) the Chief of Police was not entitled to
qualified immunity for causing the delay. The panel further
held that the City of Sierra Madre was not liable for the
allegedly retaliatory conduct under a Monell theory of
liability.
Concurring in the judgment, Judge Rawlinson agreed that
the case should be remanded. She declined to join the
majority’s discussion of whether plaintiff established a First
Amendment claim, and its conclusion that he spoke in his
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ELLINS V . CITY OF SIERRA MADRE 3
capacity as a private citizen, stating that those issues should
be resolved on remand by the factfinder.
COUNSEL
Michael A. Morguess, and Carolina V. Diaz, Lackie,
Dammeier & McGill, APC, Upland, California, for Plaintiff-
Appellant.
Elizabeth M. Kessel and Scott E. Boyer, Kessel & Associates,
Los Angeles, California, for Defendants-Appellees.
OPINION
WARDLAW, Circuit Judge:
John Ellins, a police officer for the City of Sierra Madre,
led a no-confidence vote of the police officers’ union against
the Chief of Police, Marilyn Diaz. Diaz subsequently delayed
signing an application for a certification that, when issued,
would have entitled Ellins to a five percent salary increase.
Ellins brought suit under 42 U.S.C. § 1983 against Diaz and
the City of Sierra Madre (collectively, “Defendants”), alleging
that Diaz’s delay was unconstitutional retaliation for the
exercise of his First Amendment rights. The district court
granted summary judgment in favor of Defendants,
concluding that Ellins had failed to meet his burden under
Garcetti v. Ceballos, 547 U.S. 410 (2006), to show that he
undertook his act as a private citizen and not pursuant to his
official duties. We disagree, and further hold that Ellins has
established a prima facie case of First Amendment retaliation.
We thus reverse the grant of summary judgment in favor of
4 ELLINS V . CITY OF SIERRA MADRE
Diaz and remand for further proceedings. We affirm the
district court’s grant of summary judgment to the City of
Sierra Madre because Ellins did not adduce sufficient
evidence to defeat summary judgment on his Monell claim.
Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
I.
Ellins served as President of the Sierra Madre Police
Association (SMPA) from late 2006 to January 2010.
According to the Memorandum of Understanding (MOU)
between the City and the SMPA, the SMPA is the recognized
employee’s organization for all classified employees of the
Sierra Madre Police Department except the Chief of Police
and the Lieutenant. The SMPA’s bylaws provide that “[t]he
President shall be the executive officer of the Association
and, subject to the control of the membership, shall have
general supervision, direction and control of the affairs of the
Association. He/She shall preside at meetings of its
members.”
Early in Ellins’s tenure as SMPA president, Chief Diaz
instituted “two-on-two” meetings with the SMPA, designed
to “facilitate open communication” and resolve issues
between the Department and the SMPA before they became
grievances or lawsuits. According to Diaz, Ellins occasionally
expressed disagreement with her decisions, but the tone of the
meetings was generally “very cordial.” At some point Ellins
stopped attending the two-on-twos. Thereafter, Diaz learned
of grievances and lawsuits filed by the SMPA against the
City, as well as two SMPA press releases critical of her
leadership. One of the press releases announced a vote of no
confidence taken against Diaz by the SMPA membership.
ELLINS V . CITY OF SIERRA MADRE 5
Ellins led the SMPA in the vote of no confidence in 2008.
According to Ellins, the union membership initiated the vote
because of Diaz’s “lack of leadership, wasting of citizens’ tax
dollars, hypocrisy, expensive paranoia, and damaging
inability to conduct her job.” SMPA conducted the vote by
secret ballot, and 100% of its membership voted. Ellins
testified that he led the vote because “as President [of the
SMPA], you would have to lead the vote of no confidence.”
The SMPA then issued the two press releases that Diaz read:
one about the vote, and another that criticized Diaz’s
management style. The press release about the vote listed
examples of Diaz’s purported incompetence and lack of
leadership, including allegations that she wasted taxpayers’
money, fell asleep at City Council and other meetings,
violated the MOU between the city and the SMPA, and
generally harassed her employees.
Diaz testified that when she learned of the SMPA “no
confidence” press release she felt “disappointment” and
“disbelief that this could have occurred.” After the second
SMPA press release issued, she felt “disappointed and
disheartened that the [SMPA] had chosen what I thought was
a counter-productive action.” She also testified that she was
“disappointed” in Ellins, as SMPA president, for what she
presumed was his involvement in the press releases. She
expressed this disappointment to her captain and to several
members of the police department.
6 ELLINS V . CITY OF SIERRA MADRE
At the time of the no-confidence vote, Ellins had been the
subject of three internal affairs investigations.1 In November
2006, he was investigated for associating with a convicted
narcotics offender and attempting to dissuade a sergeant from
issuing a parking ticket to the ex-convict. He received a 125-
hour suspension without pay for this incident, which he did
not serve. In August 2008, Ellins was investigated for not
citing or arresting a theft suspect in whose car Ellins had
found marijuana. In May 2008, he was investigated for
telling the City Finance Director that residents who did not
want to be evacuated during a serious wildfire near Sierra
Madre were “stupid” and “deserved to die.” Ellins received
a reprimand for this statement in December 2008. Finally, in
October 2008, Diaz initiated a criminal investigation by the
Los Angeles County District Attorney’s office into Ellins’s
alleged misconduct. She provided the District Attorney’s
office with information about Ellins’s alleged sales and use of
anabolic steroids, assault with his duty weapons, and other
matters “relating to sexual misconduct while on duty.” Diaz
says she received the information about the alleged
misconduct from “another Police Chief.” No charges resulted
from the District Attorney’s criminal investigation of Ellins’s
alleged misconduct.
1
In his opening brief, Ellins also contends that the three internal and one
criminal investigations of him were also retaliatory. However, the district
court held that because Ellins did not include this claim in the pretrial
order, Ellins failed to preserve it for trial. Ellins does not appeal this
ruling, and so has waived any argument to the contrary. See Greenwood
v. F.A.A., 28 F.3d 971, 977–78 (9th Cir. 1994). Upon remand, he may
seek leave of the district court to amend the pretrial order to include these
additional alleged retaliatory actions in his claim.
ELLINS V . CITY OF SIERRA MADRE 7
On February 29, 2009, Ellins submitted an application to
Diaz for an Advanced Peace Officer Standards and Training
(P.O.S.T.) certificate. The application for certification
required a signature from a “Department Head” or
“Authorized Designee.” In a paragraph above the signature
line, the application reads, “Recommendation to Award
Certificate: In my opinion, the applicant is of good moral
character and worthy of the award(s), based on personal
knowledge.” Under the MOU between the City and the
SMPA, Ellins would receive a five percent pay raise if he
received an Advanced P.O.S.T. certificate. While Ellins’s
P.O.S.T. application was pending before Diaz, Ellins served
his suspension for the August 2008 incident, from May 3 to
June 3, 2009.
Diaz testified that when Ellins submitted the application
to her, she did not immediately sign it because of her concern
that Ellins lacked the requisite good moral character. Diaz
consulted with seven other people regarding her decision
against signing Ellins’s P.O.S.T. application, all of whom
agreed with her decision.2 Diaz had not delayed signing any
of the four other P.O.S.T. applications from other officers that
she had previously signed. However, unlike Ellins, none of
the prior applicants had ever received discipline more severe
than a written warning.
2
According to Diaz’s deposition testimony, the individuals she
consulted included a “P.O.S.T. senior training consultant” for the State of
California, the former police chief of the Anaheim Police Department, a
current lieutenant in the Anaheim police, an expert in police ethics, and
Diaz’s “boss,” the city manager of Sierra Madre, Elaine Aguilar.
8 ELLINS V . CITY OF SIERRA MADRE
On June 3, 2009, with his application for a P.O.S.T.
certificate still unsigned, Ellins filed this lawsuit in the United
States District Court for the Central District of California
seeking damages and injunctive relief, based on alleged
retaliation for his exercise of individual civil rights, free
expression and association, and labor, social, and political
activities. Ellins contends that Diaz retaliated against him by
delaying the approval of the P.O.S.T. application out of anger
because of “[his] outspokenness, the vote of no confidence,
and [his] union activities.” He also alleged a Monell claim
against the City.
On September 14, 2010, Diaz and the City moved for
summary judgment. In support of the motion, Diaz declared
that she learned that the District Attorney would not file
criminal charges against Ellins in October 2009. Two months
later, although she had not received written confirmation of
this fact from the District Attorney’s office, on December 3,
2009, Diaz signed Ellins’s P.O.S.T. application “rather than
delay the process any longer.” Diaz also declared that
“because [Ellins] had commenced this litigation, it was hoped
that if he was given a retroactive pay raise to the date he filed
this lawsuit . . . he would forego [sic] this litigation.” The
P.O.S.T. Commission issued the certificate on December 7,
2009, and Ellins was given the five percent pay raise
retroactive to June 3, 2009, the date on which he both
returned from the 160-hour suspension and filed this lawsuit.
On January 5, 2011, the district court granted Defendants’
motion for summary judgment on the ground that Ellins had
not satisfied his burden of establishing a prima facie claim of
First Amendment retaliation. The district court further held
that Diaz, individually, was entitled to qualified immunity,
ELLINS V . CITY OF SIERRA MADRE 9
and that the City did not bear Monell liability. See Monell,
436 U.S. 658.
II.
We review a grant of summary judgment de novo.
Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 747
(9th Cir. 2010). We also review de novo the district court’s
decision to grant summary judgment on the basis of qualified
immunity. Davis v. City of Las Vegas, 478 F.3d 1048, 1053
(9th Cir. 2007). We must determine whether, viewing the
evidence in the light most favorable to Ellins, “there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Delia v. City
of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010) (internal
quotation marks and citation omitted), rev’d on other
grounds, Filarsky v. Delia, 132 S. Ct. 1657 (2012).
III.
“The First Amendment shields a public employee if he
speaks as a citizen on a matter of public concern.” Anthoine,
605 F.3d at 748 (internal quotation marks omitted). However,
“when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421.
We follow a sequential five-step inquiry to determine
whether an employer impermissibly retaliated against an
employee for engaging in protected speech. Eng v. Cooley,
552 F.3d 1062, 1070 (9th Cir. 2009). “First, the plaintiff
10 ELLINS V . CITY OF SIERRA MADRE
bears the burden of showing: (1) whether the plaintiff spoke
on a matter of public concern; (2) whether the plaintiff spoke
as a private citizen or public employee; and (3) whether the
plaintiff’s protected speech was a substantial or motivating
factor in the adverse employment action.” Robinson v. York,
566 F.3d 817, 822 (9th Cir. 2009) (internal quotation marks
and citation omitted). “Next, if the plaintiff has satisfied the
first three steps, the burden shifts to the government to show:
(4) whether the state had an adequate justification for treating
the employee differently from other members of the general
public; and (5) whether the state would have taken the
adverse employment action even absent the protected
speech.” Id.The district court granted summary judgment for Diaz on
the ground that Ellins had not satisfied his prima facie burden.
Specifically, the district court held that Ellins failed to
establish that (1) he spoke as a private citizen in leading the
no-confidence vote; (2) he suffered an adverse employment
action; and (3) his protected act was a substantial or
motivating factor in the alleged adverse employment action.
A.
Diaz first argues that Ellins cannot establish a First
Amendment retaliation claim because the no-confidence vote
did not involve a matter of public concern.3 “Speech involves
3
Diaz makes this argument for the first time on appeal. It was not raised
before the district court, either in the motion for summary judgment or at
the hearing, and the district court’s order accordingly does not address it.
“Absent exceptional circumstances, we generally will not consider
arguments raised for the first time on appeal, although we have the
discretion to do so.” Baccei v. United States, 632 F.3d 1140, 1149 (9th
ELLINS V . CITY OF SIERRA MADRE 11
a matter of public concern when it can fairly be considered to
relate to ‘any matter of political, social, or other concern to
the community.’” Johnson v. Multnomah Cnty., 48 F.3d 420,
422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138,
146 (1983)). Speech that deals with “individual personnel
disputes and grievances” that “would be of no relevance to the
public’s evaluation of the performance of governmental
agencies” generally is not of public concern. McKinley v.
City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). “Whether
an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick,
461 U.S. at 147-48 (1983).
Diaz’s public concern argument relies heavily on Connick,
in which the Supreme Court concluded that most of an office
questionnaire circulated by an assistant district attorney, who
had been transferred against her wishes, was not a matter of
public concern. The questionnaire concerned “office transfer
policy, office morale,” and “the level of confidence in
supervisors.” Id. at 141. The Court reasoned that these issues
were “mere extensions of Myers’ dispute over her transfer to
another section of the criminal court.” Id. at 148. Diaz
argues that Ellins himself characterizes the grievances
Cir. 2011). This discretion is normally limited to matters of pure law. In
re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992–93 (9th Cir.
2010). Here, we reach the issue because it is a matter of pure law, see
Eng, 552 F.3d at 1070, and it is closely linked to the “private citizen”
inquiry we must undertake to determine whether the second element of a
First Amendment retaliation claim has been satisfied. See Connick v.
Myers, 461 U.S. 138, 143 (1983) (noting the “repeated emphasis in
Pickering [v. Bd. of Educ., 391 U.S. 563 (1968)] on the right of a public
employee ‘as a citizen, in commenting upon matters of public concern’”).
12 ELLINS V . CITY OF SIERRA MADRE
motivating the no-confidence vote as matters involving the
MOU, scheduling dispatchers, searching officers’ lockers, and
other internal issues. Diaz contends that these matters are
mere “personnel grievances,” and that the vote and attendant
press releases were therefore an extension of the dispute
between the police officers and the department, rather than
speech about a matter of public concern. We disagree.
The record tends to belie Diaz’s characterization of the
reasons behind the no-confidence vote. Ellins stated in his
declaration that he led the vote “due to Chief Diaz’s lack of
leadership, wasting of citizens’ tax dollars, hypocrisy,
expensive paranoia, and damaging inability to conduct her
job.” Ellins echoed that contention in his deposition
testimony, asserting that the no-confidence vote stemmed
from “how upset members [of the union] were on how Chief
Diaz conducted herself as a Chief.”
Diaz also misconstrues the rationale behind Connick. The
dispositive fact in Connick was not that the vote resulted from
a personnel grievance, but rather that it resulted from an
individual personnel grievance. Our precedent instructs that
collective personnel grievances raised by unions may be
matters of public concern. See Lambert v. Richard, 59 F.3d
134, 136–37 (9th Cir. 1995) (holding that where library
employee told City Council that library was mismanaged and
that employees were “devoid of zest,” the speech was on a
matter of public concern because she “spoke as a union
representative, not as an individual, and . . . she described
departmental problems, not private grievances”).
That was also the upshot of our decision in McKinley,
which involved a union representative police officer who
ELLINS V . CITY OF SIERRA MADRE 13
discussed police salaries at a city council meeting and in a
television interview. 705 F.2d at 1112. We held that the
subject matter of his speech was a matter of public concern
because salaries—the subject of the classic personnel
grievance—affect the city’s ability 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.
Because the officer in McKinley spoke as a union
representative and expressed the concerns of the police union
as a whole, the issue became a matter of public concern.
Other courts have made this point expressly. See Fuerst v.
Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (holding that
comments made by deputy sheriff as president of sheriffs’
union were “prima facie protected by the First Amendment as
a contribution to political debate”); see also Boddie v. City of
Columbus, 989 F.2d 745, 750 (5th Cir. 1993) (“[S]peech in
the context of union activity will seldom be personal; most
often it will be political speech.”).
Here, Ellins led a no-confidence vote about Diaz by the
police officers’ union. Diaz does not contend that any of the
grievances motivating the vote were individual as opposed to
collective. Instead, as in Lambert, the record suggests that the
police union’s concerns were with Diaz’s leadership style and
other department-wide problems, not private grievances. See
Lambert, 59 F.3d at 137. Further, as in McKinley, these
departmental problems were of inherent interest to the public
because they could affect the ability of the Sierra Madre
police force to attract and retain officers. See McKinley,
705 F.2d at 1114. Viewing the facts in the light most
favorable to Ellins, his speech in connection with the SMPA’s
no-confidence vote involved a matter of public concern.
Therefore, he introduced sufficient evidence to create a
14 ELLINS V . CITY OF SIERRA MADRE
genuine issue of material fact as to the first element of a First
Amendment retaliation claim.
B.
Ellins must also demonstrate that the speech in question
“was spoken in the capacity of a private citizen and not a
public employee.” Eng, 552 F.3d at 1071. The district court
determined that Ellins failed to present sufficient evidence to
establish that in leading the no-confidence vote he spoke as a
private citizen, rather than pursuant to his official duties as a
police officer. Ellins contends that the district court erred
because his official duties as a police officer did not require
him to serve as president of the union or to engage in union
activities, much less to lead votes of no-confidence. We
agree that, in light of the record evidence, a jury could find
that Ellins spoke in his capacity as a private citizen.
We have held that a public employee speaks as a private
citizen “if the speaker ‘had no official duty’ to make the
questioned statements, or if the speech was not the product of
‘performing the tasks the employee was paid to perform.’”
Id. (citation omitted). “While the question of the scope and
content of a plaintiff’s job responsibilities is a question of
fact, the ultimate constitutional significance of the facts as
found is a question of law.” Id. (internal quotation marks and
citation omitted); see also Eng, 552 F.3d at 1071 (“the
question of the scope and content of a plaintiff's job
responsibilities is a question of fact”); Robinson v. York,
566 F.3d 817, 823 (9th Cir. 2009) (“The scope of Robinson's
job duties is a question of fact”); Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008)
(“Because the task of determining the scope of a plaintiff’s
ELLINS V . CITY OF SIERRA MADRE 15
job responsibilities is concrete and practical rather than
abstract and formal, we are confident that a factual
determination of a plaintiff’s job responsibilities will not
encroach upon the court’s prerogative to interpret and apply
the relevant legal rules.”).
The distinction drawn in our First Amendment
jurisprudence between private and official speech is rooted in
the Supreme Court’s decision in Garcetti v. Ceballos,
547 U.S. 410 (2006). There, a defense attorney asked a
deputy district attorney, Ceballos, to investigate a police
officer’s affidavit in support of a search warrant underlying a
prosecution. Such requests were not uncommon. Concluding
that the police officer’s affidavit contained serious
misrepresentations, Ceballos wrote a memorandum to his
supervisor recommending dismissal of the prosecution
because the evidence supporting it was the product of a
defective affidavit. Soon afterward, Ceballos was reassigned
from his calendar deputy position to a trial deputy position,
transferred to another courthouse, and denied a promotion.
Id. at 414. He filed a § 1983 action alleging retaliation for his
speech. The Court determined that in recommending
dismissal, Ceballos had simply fulfilled his professional
duties and therefore his speech was not protected from
retaliation by the First Amendment. The Court reasoned that
The controlling factor in Ceballos’ case is that
his expressions were made pursuant to his
duties as a calendar deputy. That
consideration— the fact that Ceballos spoke
as a prosecutor fulfilling a responsibility to
advise his supervisor about how best to
proceed with a pending case—distinguishes
16 ELLINS V . CITY OF SIERRA MADRE
Ceballos’ case from those in which the First
Amendment provides protection against
discipline. We hold that when public
employees make statements pursuant to their
official duties, the employees are not speaking
as citizens for First Amendment purposes, and
the Constitution does not insulate their
communications from employer discipline.
Id. at 421 (internal citation omitted). Ceballos’ retaliation
claim failed because he was not acting as a private citizen
when he went about his “daily professional activities”;
instead, “[w]hen he went to work and performed the tasks he
was paid to perform, Ceballos acted as a government
employee.” Id. at 422.
Ellins introduced evidence that he led the no-confidence
vote and issued the related press releases in his capacity as a
union representative.4 Ellins’s daily professional duties as a
police officer did not include acting as a union representative
or serving as the President of the SMPA. Therefore, the
district court erred when it concluded as a matter of law that
Ellins acted in his capacity as a public employee when he led
the no-confidence vote. There was sufficient evidence to
suggest that this was not a task he was paid to perform.
Therefore, a jury could reasonably conclude that Ellins’s
union activities and related speech were undertaken in his
capacity as a private citizen.
4
Ellins testified that the press releases were made public through the
SM PA’s legal representatives. In her deposition testimony, Diaz
acknowledged that she thought that Ellins was “behind” the press releases.
ELLINS V . CITY OF SIERRA MADRE 17
As the Seventh Circuit has recently held, comments made
by a police officer acting in his capacity as a union
representative are spoken as a private citizen, rather than
pursuant to the officer’s official duties. Fuerst v. Clarke,
454 F.3d 770 (7th Cir. 2006). In Fuerst, the plaintiff, a
deputy sheriff who also served as the president of the
Milwaukee County deputy sheriffs’ union, publicly criticized
the county sheriff’s proposal to hire a civilian to fill a position
traditionally occupied by a deputy sheriff. Id. at 772. In
determining whether the sheriff was justified in retaliating
against Fuerst, the Seventh Circuit dismissed the notion that
Fuerst spoke as a public employee under Garcetti when he
criticized the proposal:
Because Fuerst’s comments that precipitated
the adverse action taken against him were
made in his capacity as a union representative,
rather than in the course of his employment as
a deputy sheriff—his duties as deputy sheriff
did not include commenting on the sheriff’s
decision to hire a public-relations officer—the
Supreme Court’s recent decision in Garcetti v.
Ceballos is inapposite.
Id. at 774 (citation omitted); see also Baumann v. District of
Columbia, 744 F. Supp. 2d 216, 224 (D.D.C. 2010) (holding
that police officer’s criticism of his department’s handling of
a sniper incident was protected speech because the officer
spoke in his capacity as police union president); Hawkins v.
Boone, 786 F. Supp. 2d. 328, 335 (D.D.C. 2011) (holding that
detective’s statements critical of a departmental staffing
initiative were protected by the First Amendment because the
detective spoke as a police union representative).
18 ELLINS V . CITY OF SIERRA MADRE
Given the inherent institutional conflict of interest
between an employer and its employees’ union, we conclude
that a police officer does not act in furtherance of his public
duties when speaking as a representative of the police union.
We thus hold that a reasonable jury could find that Ellins’s
speech, made as a representative and president of the police
union, was made in his capacity as a private citizen.
C.
The district court also determined that Ellins failed to
establish that he suffered an “adverse employment action.”
Ellins argued that the failure to award him the five percent
salary increase during the period from the date he submitted
his P.O.S.T. application, February 26, 2009, to the date he
began to serve his May 2009 suspension constituted an
adverse employment action. The district court rejected this
argument, reasoning that Ellins did not demonstrate that he
was entitled to the pay increase during that period because
while the MOU provided for a five percent pay raise, it “[did]
not state when the pay raise becomes effective.”
We have specifically concluded that “an adverse
employment action exists where an employer’s action
negatively affects its employee’s compensation.” Fonseca v.
Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.
2004); see also Hollister v. Tuttle, 210 F.3d 1033, 1034–35
(9th Cir. 2000) (holding that alleged discrimination in merit
pay increases and salary raises against tenured professor
alleging retaliation for his protected speech would “constitute
denials of governmental benefits redressable by § 1983”);
Manhattan Beach Police Officers Ass’n, Inc. v. City of
Manhattan Beach, 881 F.2d 816, 819 (9th Cir. 1989) (noting
ELLINS V . CITY OF SIERRA MADRE 19
that a public employer cannot withhold an economic benefit
“such as a higher salary” in retaliation for activities protected
by the First Amendment). Even the denial of a minor
financial benefit may form the basis of a First Amendment
claim. See Elrod v. Burns, 427 U.S. 347, 359 n.13 (1976)
(holding that First Amendment rights are infringed “both
where the government fines a person a penny . . . and where
it withholds the grant of a penny” to punish or suppress
protected activities).
In addressing a First Amendment retaliation claim, we
also examine whether “the actions taken by the defendants
were reasonably likely to deter [the public employee] from
engaging in protected activity under the First Amendment.”
Anthoine, 605 F.3d at 750 (quoting Coszalter v. City of Salem,
320 F.3d 968, 976 (9th Cir. 2003)). The government’s act of
retaliation “need not be severe and it need not be of a certain
kind.” Coszalter, 320 F.3d at 975. Indeed,
The precise nature of the retaliation is not
critical to the inquiry in First Amendment
retaliation cases. The goal is to prevent, or
redress, actions by a government employer
that chill the exercise of protected First
Amendment rights . . . . Depending on the
circumstances, even minor acts of retaliation
can infringe on an employee’s First
Amendment rights.
Id. (internal quotation marks and citation omitted). Thus we
must determine, in light of the record evidence, whether a jury
could reasonably find that Diaz’s withholding of approval of
the P.O.S.T. application, which delayed and denied Ellins a
20 ELLINS V . CITY OF SIERRA MADRE
portion of his pay increase, was designed to retaliate against
and chill Ellins’s political expression.
Ellins submitted his P.O.S.T. application on February 26,
2009. MOU Article 23 provides that “[a]ny officer who has
an Advanced P.O.S.T. Certificate shall receive an additional
5% pay over said officer’s base salary.” Diaz admits that
although she knew that Ellins had generally satisfied the
requirements necessary to receive the Advanced P.O.S.T.
certificate, she deliberately delayed signing Ellins’s P.O.S.T.
application until December 2009. Diaz also admits that she
backdated his pay increase in an attempt to convince Ellins to
drop this lawsuit, but only to June 2009, the date he returned
from his suspension.5
Construing these facts in the light most favorable to
Ellins, a reasonable finder of fact could conclude that Diaz’s
failure to sign his P.O.S.T. application deprived Ellins of a
pay raise from the date he was entitled to the pay raise to the
date to which Diaz chose to backdate her approval. The
record indicates that Ellins’s pay raise would have taken
effect in late February or early March had Diaz not delayed in
signing his P.O.S.T. application. Diaz declares that the five
percent pay increase normally takes effect on the date the
Commission on Peace Officer Standards and Training issues
a P.O.S.T. certificate. While the record does not specify how
5
Diaz’s testimony also indicates that she personally imposed Ellins’s
160-hour suspension without pay. Although Ellins’s misconduct occurred
in July 2008 and an internal affairs investigation began in August 2008,
the suspension took effect on May 7, 2009, after Diaz became aware of the
no-confidence vote. If any part of this sanction is attributable to Diaz’s
alleged retaliatory motives, Ellins’s economic loss from the delayed
P.O.S.T. certification would be even greater.
ELLINS V . CITY OF SIERRA MADRE 21
long this process normally takes, we can infer that the
certificate would have been issued within days after Ellins
submitted his application to Diaz on February 26, 2009. In
fact, as Diaz acknowledges, the Commission issued Ellins’s
certificate only four days after Diaz eventually signed it. It is
a fair inference that Ellins would have received the pay
increase to which the P.O.S.T. certificate entitled him within
a similar four-day period. Therefore, a jury could find that
Ellins was deprived of the five percent pay raise from roughly
March 2 to June 3, 2009, when he returned from serving his
suspension.
Had Ellins not sued, he likely would have been deprived
of the five percent raise for a longer period, from late
February 2009 to December 2009. Diaz admits that Ellins
was only given the retroactive pay raise with the hope that he
would “forego [sic] this litigation.” However, we do not
focus on the “ultimate effects” of each employment action,
but on the “deterrent effects.” Ray v. Henderson, 217 F.3d
1234, 1243 (9th Cir. 2000) (adopting the EEOC standard for
identifying adverse employment actions). That Ellins had to
threaten and then actually file suit to even partially recover
the pay increase is more than sufficient to demonstrate the
deterrent effect on protected speech Diaz’s delay in signing
Ellins’s P.O.S.T. application worked. Such deprivation of
salary is reasonably likely to deter employees from engaging
in protected activity and is sufficient to constitute an adverse
employment action. See Manhattan Beach, 881 F.2d at 819;
Fonseca, 374 F.3d at 847 (holding that improper assignment
of overtime opportunities and pay constitutes adverse
employment action for purposes of § 1983). Therefore, Ellins
introduced sufficient evidence of an adverse employment
action to defeat a grant of summary judgment.
22 ELLINS V . CITY OF SIERRA MADRE
D.
The district court also erred in concluding that Ellins
failed to produce evidence that his speech and the adverse
employment action were sufficiently related such that the
speech was a substantial or motivating factor in Diaz’s
decision against signing the P.O.S.T. application. Although
Diaz was aware of three pending investigations of Ellins that
she claimed justified the delay, Ellins adduced sufficient
evidence to raise a genuine dispute of material fact on this
question.
To establish that retaliation was a substantial or
motivating factor behind an adverse employment action, a
plaintiff may introduce evidence that (1) the speech and
adverse action were proximate in time, such that a jury could
infer that the action took place in retaliation for the speech;
(2) the employer expressed opposition to the speech, either to
the speaker or to others; or (3) the proffered explanations for
the adverse action were false and pretextual. Coszalter,
320 F.3d at 977. Ellins brought forth sufficient evidence of
both temporal proximity and Diaz’s opposition to his speech
to preclude summary judgment on the issue of “substantial or
motivating factor.”
Ellins provided evidence of a relatively close temporal
link between his protected speech and the adverse
employment action. He led the no-confidence vote in October
2008, and according to Diaz, press releases regarding the vote
issued in October and November 2008. Ellins submitted his
P.O.S.T. application on February 26, 2009. Diaz testified that
she initially decided not to sign the application in February
2009. The alleged retaliatory act thus occurred between four
ELLINS V . CITY OF SIERRA MADRE 23
and five months after the no-confidence vote, and between
three and four months after the press releases issued. We
established in Coszalter that “a specified time period cannot
be a mechanically applied criterion” for an inference of
retaliation; instead, “[w]hether an adverse employment action
is intended to be retaliatory is a question of fact that must be
decided in the light of the timing and the surrounding
circumstances.” 320 F.3d at 978. Nevertheless, we also held
that “[d]epending on the circumstances, three to eight months
is easily within a time range that can support an inference of
retaliation.” Coszalter, 320 F.3d at 977. The four-to-five
month period between Ellins’s protected speech and Diaz’s
refusal to sign his P.O.S.T. application falls easily within the
range that we concluded supports an inference of retaliation
in Coszalter.
Ellins also introduced sufficient evidence to withstand
summary judgment as to Diaz’s opposition to his protected
speech. In Ulrich v. City and County of San Francisco,
308 F.3d 968 (9th Cir. 2002), we held that expressions of
opposition similar to those made by Diaz are sufficient to
establish that the protected speech was a substantial
motivating factor for an adverse employment action. Ulrich,
a physician who was under investigation for professional
incompetence, protested the city’s decision to lay off a class
of physicians at a hospital and publicly displayed his
resignation letter. Id. at 972, 980. After an administrator saw
the letter, she reported it to other administrators because she
was “concerned” that the letter was “potentially negative” and
may have been “widely disseminated.” Id. at 980. When
Ulrich realized that his resignation triggered a reporting
requirement because the investigation was pending, he
attempted to rescind his resignation so that he could be
24 ELLINS V . CITY OF SIERRA MADRE
reinstated. Id. at 973. The hospital refused to accept Ulrich’s
rescission attempt. Id. We held that even though the
administrator had neither warned Ulrich nor told others he
should be fired, the evidence of the administrator’s opposition
was sufficient, given other evidence of timing and pretext, to
support a jury finding of retaliatory motive in the hospital’s
refusal to reinstate Ulrich. Id. at 981.
Just as the administrator in Ulrich expressed “concern” to
others regarding the resignation letter, Diaz admits that she
expressed “disappointment” and “dismay” to others in the
wake of the no-confidence vote and press releases. She
expressed this disappointment to her captain, telling him that
she thought the press release was “unfortunate” and that she
wished they could have “resolved these issues by continuing
to meet in person” because the no-confidence vote and press
releases suggested that the SMPA “had chosen to go way
beyond any good-faith effort to try to resolve differences.”
Diaz also “spoke briefly” to others in the department about
her feeling “disappointed and disheartened that the [SMPA]
had chosen what [she] thought was a counter-productive
action.” The similarity between Diaz’s expressed sentiments
and those at issue in Ulrich suggests that Ellins has, at the
very least, raised a genuine dispute of material fact as to
whether Diaz opposed the no-confidence vote and related
press releases.
We have held that evidence of one of the three Coszalter
factors may be sufficient to allow a plaintiff to prevail in a
public employee retaliatory speech claim. See, e.g., Marable
v. Nitchman, 511 F.3d 924, 930 (9th Cir. 2007) (allowing a
close temporal connection to establish substantial motive
even though defendants claimed no knowledge of the
ELLINS V . CITY OF SIERRA MADRE 25
employee’s protected speech and asserted independent
reasons for disciplining the employee). That Ellins has not
demonstrated pretext or falsity at this stage, where the district
court ruled that Ellins has not made out a prima facie case, is
not fatal to his claim.
E.
Diaz argues that even if Ellins established his prima facie
case of First Amendment retaliation, summary judgment in
her favor can be upheld because she had an “adequate
justification” for not signing Ellins’s P.O.S.T. application,
given Ellins’s disciplinary record, especially the pending
criminal investigation by the L.A. District Attorney that she
had initiated. Moreover, she argues that these factors
demonstrate that she would not have signed Ellins’s P.O.S.T.
application irrespective of the no-confidence vote and press
releases. Whether Diaz would have withheld her signature in
the absence of the no-confidence vote and the press releases,
and whether she had an adequate justification for doing so,
are entirely questions of fact. Eng, 552 F.3d at 1072; see also
Mabey v. Reagan, 537 F.2d 1036, 1045 (9th Cir. 1976)
(“[T]he only way to erect adequate barriers around First
Amendment freedoms is for the trier of fact to delve into the
motives of the decisionmaker.”).
In Mabey, we opined that when “questions of motive
predominate in the inquiry about how big a role the protected
behavior played in the decision, summary judgment will
usually not be appropriate.” 537 F.2d at 1045. Although
Diaz’s reliance on the impending investigations supports her
argument that she would have refused to sign the P.O.S.T.
application notwithstanding Ellins’s purported protected
26 ELLINS V . CITY OF SIERRA MADRE
speech, Diaz also admitted that she had approved the P.O.S.T.
applications of four other officers who had undergone internal
investigations. The record before us is not undisputed; Diaz
herself provides evidence that could support either finding.
IV.
Nor is Diaz entitled to qualified immunity under the
circumstances presented here. The district court held that
even assuming a First Amendment violation, Defendants had
“no indication” that Diaz’s conduct was unlawful. The
district court reasoned that there was no case law that
specifically held “that a police officer suffers a First
Amendment violation when a certifying officer delays
approval of an application that requires a certification of the
applicant’s good moral character.” However, the district
court framed the inquiry much too narrowly. The question is
not whether an earlier case mirrors the specific facts here.
Rather, the relevant question is whether “the state of the law
at the time gives officials fair warning that their conduct is
unconstitutional.” Bull v. City & Cnty. of San Francisco,
595 F.3d 964, 1003 (9th Cir. 2010) (en banc) (“[T]he specific
facts of previous cases need not be materially or
fundamentally similar to the situation in question.”) (citing
Hope v. Pelzer, 536 U.S. 730, 742 (2002)); White v. Lee,
227 F.3d 1214, 1238 (9th Cir. 2000) (“Closely analogous
preexisting case law is not required to show that a right was
clearly established.”); see also Schwenk v. Hartford, 204 F.3d
1187, 1198 (9th Cir. 2000); Mendoza v. Block, 27 F.3d 1357,
1361 (9th Cir. 1994); Alexander v. Perrill, 916 F.2d 1392,
1397–98 (9th Cir. 1990). Viewing Diaz’s actions in the light
most favorable to Ellins, we conclude that she acted
unreasonably in light of clearly established law.
ELLINS V . CITY OF SIERRA MADRE 27
To determine whether a government official is entitled to
qualified immunity, we ask two questions: whether the
official violated a statutory or constitutional right, and
whether that right was clearly established at the time of the
challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). We may address these questions in any order.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). We first
address whether Ellins alleges a violation of a right that was
clearly established when Diaz acted in 2009.
For purposes of qualified immunity, we resolve all factual
disputes in favor of the party asserting the injury. Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Pearson, 555 U.S. at 236. In light of the above discussion,
we can reasonably assume both that Ellins’s protected speech
was a substantial or motivating factor in Diaz’s decision, and
that Diaz would not have delayed signing Ellins’s P.O.S.T.
application in the absence of his protected speech. Ellins’s
First Amendment right to be free from retaliation for
engaging in protected speech was clearly established in 2009
when Diaz allegedly delayed the signing of his P.O.S.T.
application. Forty years previously, in 1968, the Supreme
Court established that public employees have a First
Amendment right to be free from retaliation for commenting
on matters of public concern, even when the protected
comments are critical of their employers. Pickering,
391 U.S. at 571 (holding that a teacher could not be dismissed
for criticizing school board’s budget management, even
though the criticism included false allegations against board
members, because the speech addressed a matter of public
concern and the speech did not prevent the school district’s
efficient functioning). In Connick, decided in 1983, the
28 ELLINS V . CITY OF SIERRA MADRE
Supreme Court reaffirmed this right. Although the Court
found that the plaintiff’s speech dealt only with private
employee concerns, the Court stressed that speech on matters
of public concern occupies the “highest rung of the heirarchy
[sic] of First Amendment values, and is entitled to special
protection.” Connick, 461 U.S. at 145 (quoting NAACP v.
Claiborne Hardware, 458 U.S. 886 (1982)). In Coszalter, we
concluded that city officials, who were sued by former city
employees for alleged First Amendment retaliation, were not
entitled to qualified immunity because “both the
constitutional protection of employee speech and a First
Amendment cause of action for retaliation against protected
speech were clearly established” at least as of 1989. 320 F.3d
at 979 (relying on Pickering, 391 U.S. at 571; Allen v.
Scribner, 812 F.2d 426 (9th Cir. 1987); Anderson v. Central
Point Sch. Dist., 746 F.2d 505 (9th Cir. 1984); and Thomas v.
Carpenter, 881 F.2d 828 (9th Cir. 1989) for the proposition
that the law was clearly established).
When Diaz acted in 2009, it was also clearly established
under both Supreme Court and Ninth Circuit precedent that
“the type of sanction . . . ‘need not be particularly great in
order to find that rights have been violated.’” Hyland v.
Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992) (quoting Elrod
v. Burns, 427 U.S. 347, 359 n.13 (1976)). It was also clearly
established that deprivation of an employee’s salary is
unconstitutional if levied in retaliation for protected speech.
See Manhattan Beach, 881 F.2d at 818–19 (9th Cir. 1989)
(holding that salary is unconstitutionally withheld if on the
basis of protected activities). That we have not decided a case
in which the retaliation took the specific form of decreased
pay due to a delayed P.O.S.T. certification is irrelevant.
ELLINS V . CITY OF SIERRA MADRE 29
Finally, when Diaz acted it was clearly established that a
police union representative’s speech is entitled to First
Amendment protection. In McKinley, we held that a police
officer who spoke as a union representative engaged in
protected speech. 705 F.2d at 1114–15 (applying the standard
set forth in Pickering, 391 U.S. 563, and Connick, 461 U.S.
138, and holding that matters relating to “the competency of
the police force” are surely of “great public concern”); see
also Fuerst, 454 F.3d at 774; Nagle v. Vill. of Calumet Park,
554 F.3d 1106, 1123 (7th Cir. 2009). In Fuerst, another First
Amendment retaliation case, the Seventh Circuit
distinguished between speech made by a sheriff under his
“union president’s hat” and speech that could legitimately
form the basis for denying the sheriff a promotion. 454 F.3d
at 775. Ellins’s expressive act of leading a union vote
followed by related press releases was unmistakably
performed under his “union president hat,” and thus
constituted protected speech.
It is true that if Diaz “could . . . have reasonably but
mistakenly believed that . . . her conduct did not violate a
clearly established constitutional right, [s]he is entitled to
qualified immunity.” Hunt v. Cnty of Orange, 672 F.3d 606,
615–16 (9th Cir. 2012) (internal quotation marks and citation
omitted). However, in light of the Supreme Court’s
longstanding and unequivocal precedents protecting employee
speech, we conclude that a reasonable official in Diaz’s
position would have known that delaying Ellins’s application
to the P.O.S.T. program because of his union activity, which
resulted in a lower salary than that to which he otherwise
would have been entitled, violated Ellins’s First Amendment
rights; that in leading a union vote Ellins acted as a private
citizen addressing a matter of public concern; and that
30 ELLINS V . CITY OF SIERRA MADRE
depriving Ellins of salary in retaliation for his protected
speech was unconstitutional.
V.
The district court correctly held that the City of Sierra
Madre is not liable for Diaz’s allegedly retaliatory conduct
under a Monell theory of liability. Monell., 436 U.S. 658(1978). Under Monell, municipalities are subject to damages
under § 1983 in three situations: when the plaintiff was
injured pursuant to an expressly adopted official policy, a
long-standing practice or custom, or the decision of a “final
policymaker.” Delia v. City of Rialto, 621 F.3d 1069,
1081–82 (9th Cir. 2010). The district court properly
concluded that Ellins did not adduce sufficient evidence of an
official policy or custom of retaliatory delay. The city could
be liable on a Monell theory only if Diaz was a final
policymaker or if the city’s final policymaker ratified Diaz’s
alleged retaliation. We conclude that city manager Elaine
Aguilar, not Diaz, was the city’s final policymaker. Because
Ellins does not allege that Aguilar knew of Diaz’s alleged
retaliatory motive for delaying signature of Ellins’s P.O.S.T.
application, the City is not liable for Ellins’s injury.
Whether an official is a policymaker for Monell purposes
is a question governed by state law. City of St. Louis v.
Praprotnik, 485 U.S. 112, 124 (1988). California state law
permits municipalities to enact regulations creating a “city
manager” form of governance. Gov. Code § 34851. The City
of Sierra Madre has enacted such regulations. See Sierra
Madre Mun. Code § 2.08.010 (2000). The City has delegated
to the city manager the “authority to control, order, and give
directions to all heads of departments and to subordinate
ELLINS V . CITY OF SIERRA MADRE 31
officers and employees of the city . . . .” Sierra Madre Mun.
Code § 2.08.070(B) (2000). More specifically, it is the city
manager’s duty to “appoint, discipline, remove, promote, and
demote any and all officers and employees of the city except
the city clerk, city treasurer, or city attorney . . . .” Sierra
Madre Mun. Code § 2.08.070(C) (2000). The Sierra Madre
Personnel Rules and Regulations further reinforce these
provisions by expressly charging the city manager with
administering the City’s personnel rules. These local
ordinances and regulations establish that city manager Elaine
Aguilar, not Diaz, possesses final policymaking authority over
police employment decisions.
Although it is undisputed that Aguilar approved Diaz’s
decision to delay signing Ellins’s P.O.S.T. application, Ellins
does not allege that Aguilar knew that the decision was in
retaliation for protected speech or that she ratified the
decision despite such knowledge. See Christie v. Iopa,
176 F.3d 1231 (9th Cir. 1999) (plaintiff must adduce evidence
that the final policymaker approved both a subordinate’s
decision and the improper basis for that decision to survive
summary judgment on a ratification theory). Ellins has thus
failed to raise a genuine issue of material fact regarding
whether his alleged injury is attributable to the City of Sierra
Madre’s policymaker.
VI.
We affirm the district court’s grant of summary judgment
to the City of Sierra Madre because the City is not liable
under Monell for Diaz’s actions. However, we reverse the
district court’s grant of summary judgment to Diaz and
32 ELLINS V . CITY OF SIERRA MADRE
remand because genuine issues of material fact exist on the
elements of Ellins’s First Amendment retaliation claim.
AFFIRMED in part; REVERSED in part;
REMANDED for proceedings consistent with this
opinion. Each party shall bear its own costs.
Rawlinson, Circuit Judge, concurring in the judgment:
I concur in the judgment reversing the district court’s
entry of summary judgment in favor of defendant Marilyn
Diaz. I also agree that entry of summary judgment in favor of
the City of Sierra Madre was warranted due to the lack of
material issues of fact regarding a city policy that resulted in
the alleged constitutional violations. I write separately to
clarify that this case was decided on summary judgment and
no definitive rulings on the factual issues should have been
made by the district court or should be made by us. On
summary judgment review, we determine whether material
issues of fact were raised by the party opposing summary
judgment after reviewing the evidence in the light most
favorable to that opposing party. See Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). Resolution
of those factual issues is reserved for trial before a factfinder.
For that reason, we should limit our discussion to whether
Ellins raised material issues of fact, thereby rendering entry of
summary judgment inappropriate.
At the summary judgment stage, the non-moving party
need only raise a material issue of fact rather than carrying the
ultimate burden of persuasion. See id. As the district court
ELLINS V . CITY OF SIERRA MADRE 33
acknowledged, whether Ellins suffered an adverse
employment action was “purely a question of fact.” District
Court Opinion, p. 6 (citation omitted). The Memorandum of
Understanding between the City and the bargaining unit for
the officers provided for a 5 percent pay increase if an officer
obtained an Advanced POST Certificate. This circumstance
raised a material question of fact regarding whether Chief
Diaz’s failure to sign Ellins’s application for an Advanced
POST (Peace Officer Standards and Training) certificate
resulted in a loss of pay, thereby precluding summary
judgment. See Fairbank, 212 F.3d at 531. Similarly, there
was disputed evidence in the record regarding whether Chief
Diaz was motivated by Ellins’s criticism of her performance.
Construing the evidence presented by Ellins in the light most
favorable to him, i.e., that Chief Diaz had never previously
refused to sign a similar application, also raised a material
issue of fact.
Having determined that material issues of fact remain for
trial, I would go no further. More specifically, I decline to
join the majority’s discussion of whether Ellins established a
First Amendment retaliation claim, and its conclusion that
Ellins spoke in his capacity as a private citizen rather than as
a public employee. See Majority Opinion, p. 16. In my view,
this is not a determination that should be made at this stage of
the proceedings. Because the record is void regarding
whether the activities Ellins undertook as union president
were within the realm of his official duties, the determination
regarding whether his activities were undertaken as a private
citizen is more appropriately made by the factfinder.
The majority relies primarily upon the Seventh Circuit’s
decision in Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir.
34 ELLINS V . CITY OF SIERRA MADRE
2006), where the court held, without any analysis, that the
employee’s speech as a union representative was not made as
a public employee.1 The two district court cases from district
courts in D.C., Baumann v. District of Columbia, 744 F.
Supp. 2d 216, 224 (D.D.C. 2010), and Hawkins v. Boone
786 F. Supp. 2d 328, 335 (D.D.C. 2011) simply parroted the
Seventh Circuit’s ruling in Fuerst, again without any analysis.
I am not confident that reliance on these cases supports
concluding as a matter of law that Ellins was speaking as a
private citizen when he criticized Chief Diaz.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United
States Supreme Court discussed how we are to determine
whether a public employee should be treated as a private
citizen in the First Amendment context. First, we must
determine whether the employee “spoke as a citizen on a
matter of public concern. . . .” Id. at 418 (citation omitted).
If the employee spoke as a private citizen as opposed to
within the “course of performing [his] official duties,” the
employee “retain[s] some possibility of First Amendment
protection . . .” Id. at 423.
There is no doubt in this Circuit that whether an employee
speaks as a private citizen is a question of fact rather than an
issue of law. See Eng v. Cooley, 552 F.3d 1062, 1071 (9th
Cir. 2009) (“The question of the scope and content of a
plaintiff’s job responsibilities is a question of fact . . .”)
1
The Seventh Circuit referenced its Fuerst decision in Nagle v. Village
of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009), but again made the
public-employee-private-citizen determination without undertaking an in-
depth analysis of the issue.
ELLINS V . CITY OF SIERRA MADRE 35
(citation omitted); see also Karl v. City of Mount Terrace,
678 F.3d 1062, 1071 (9th Cir. 2012) (same).
The record in this case is devoid of any description of
Ellins’s job duties. Cf. id. (discussing the plaintiff’s
testimony regarding the scope of her job duties). For all we
know, Ellins’s job duties could encompass his union
responsibilities. See, e.g., People v. Creath, 31 Cal. App. 4th
312, 315 (1995) (noting that officers and directors of the
firefighters union received compensation to perform union
duties).
In sum, I agree with the majority that this case should be
remanded. However, upon remand all questions of fact,
including whether Ellins spoke as a public employee or as a
private citizen, should be resolved by the factfinder. For that
reason, I concur only in the judgment affirming in part,
reversing in part and remanding for further proceedings.