Barbara Howe v. County of Mendocino ( 2022 )

FILED
NOT FOR PUBLICATION
AUG 31 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA HOWE; L. JANI No. 21-16665
SHEPPARD; CAROL MORGAN,
D.C. No. 1:21-cv-00935-RMI
Plaintiffs-Appellants,
v. MEMORANDUM*
COUNTY OF MENDOCINO; TAMMY
MOSS CHANDLER; WILLIAM
SCHURTZ; SHARON CONVERY;
KATHERINE FENGELR,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Robert M. Illman, Magistrate Judge, Presiding
Submitted August 29, 2022**
San Francisco, California
Before: W. FLETCHER, BYBEE, and VANDYKE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs Barbara Howe, L. Jani Sheppard, and Carol Morgan appeal from
the district court’s grant of the 12(b)(6) motion to dismiss of Defendants County of
Mendocino, Tammy Moss Chandler, William Schurtz, Sharon Convery, Katherine
Fengler, and 70 unknown individuals. Plaintiffs allege, under 42 U.S.C. § 1983,
that Defendants’ actions during the course of Plaintiffs’ employment by the
Mendocino County Health and Human Services (“HHSA”) violated Plaintiffs’
rights under the First Amendment and Fourteenth Amendment. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
We review the grant of a Rule 12(b)(6) motion de novo. Lacey v. Maricopa
County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc). To survive a motion to
dismiss, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The plausibility requirement is met where the complaint “pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
1. Plaintiffs argue that Defendants retaliated against them in violation of the
First Amendment for engaging in protected speech. In order to state a claim of
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retaliation, Plaintiffs bear the burden to show that they (1) “spoke on a matter of
public concern,” (2) “spoke as . . . private citizen[s]” rather than as “public
employee[s],” and (3) that their “protected speech was a substantial or motivating
factor in the adverse employment action.” Eng v. Cooley, 552 F.3d 1062, 1070
(9th Cir. 2009).
Plaintiffs fail to carry their burden as to the second requirement. All of
Plaintiffs’ allegedly protected conduct related to and occurred as a consequence of
their official duties as HHSA employees. Howe disparaged Chandler, her
supervisor, at a training day organized and run by HHSA that she attended as part
of her duties as Assistant Director of HHSA. Howe and Sheppard refused to
amend an employee performance review in defiance of Schurtz’s and Chandler’s
explicit directives. Sheppard repeatedly disparaged Chandler at monthly meetings
with County partners, and she defied Chandler’s repeated prohibition on
communicating with members of the County Board of Supervisors. Morgan
refused to comply with Convery’s instruction to fill out a pro forma questionnaire.
Plaintiffs thus spoke as public employees. Their speech is therefore not protected
by the First Amendment. Id. at 1071 (holding that conduct is not protected where
it is “the product of ‘performing the tasks the employee was paid to perform’”
(quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2
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(9th Cir. 2008))); see Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen
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.”). The district
court did not err in dismissing Plaintiffs’ First Amendment claims.
2. Plaintiffs argue that Defendants deprived them of protected property
interests without due process of law in violation of the Fourteenth Amendment. “A
‘procedural due process claim hinges on proof of two elements: (1) a protectible
liberty or property interest . . . ; and (2) a denial of adequate procedural
protections.’” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005)
(quoting Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)).
Plaintiffs fail to plead sufficient facts to state a due process claim because
they fail to identify what process was allegedly due and not provided. Following
repeated acts of insubordination, Howe took advantage of the opportunity to resign
in lieu of formal termination and Sheppard was demoted. Morgan was simply
passed over for a promotion and subsequently resigned from her position. None of
these occurrences rises to a denial of procedural protections for a protectable
property interest. The complaint thus “lacks a cognizable legal theory or sufficient
facts to support a cognizable legal theory” to state a due process claim. Mendiondo
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v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). The district
court did not err in dismissing Plaintiffs’ due process claims.
3. Plaintiffs argue that non-County Defendants discriminated against them
on the basis of age, race, and sexual orientation in violation of their right to equal
protection under the Fourteenth Amendment. “To state a § 1983 claim for
violation of the Equal Protection Clause, ‘[Plaintiffs] must show that [Defendants]
acted with an intent or purpose to discriminate against [Plaintiffs] based upon
membership in a protected class.’” Thornton, 425 F.3d at 1167 (quoting Lee v.
City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)).
The complaint contains numerous conclusory allegations of discriminatory
intent by Defendants against Plaintiffs, but it fails to plead sufficient facts in
support of such allegations. These conclusory allegations do not suffice to state an
equal protection claim. See Iqbal, 556 U.S. at 678. The district court did not err
in so holding.
4. To state a § 1983 claim against the County, Plaintiffs bear the burden to
show that the County’s employees or agents acted pursuant to an official custom,
pattern, policy, or practice that violates Plaintiffs’ rights. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978). Plaintiffs fail to identify any policy that,
when effected by County employees or agents, deprived them of constitutional
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rights. The core of Plaintiffs’ Monell claims appears to be that the County had a
policy of letting its agents and employees commit constitutional violations without
repercussion. Such allegations suffice to state a claim for municipal liability
provided that the alleged actions of County employees do, in fact, amount to
constitutional violations. See Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.
1992) (“A section 1983 plaintiff may attempt to prove the existence of a custom or
informal policy with evidence of repeated constitutional violations for which the
errant municipal officials were not discharged or reprimanded.”). However,
because Plaintiffs fail to plead sufficient facts that amount to a constitutional
violation, they also fail to state a Monell claim, and dismissal of the claims against
the County was proper.
AFFIRMED.
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