Wendy Thomas, et al v. County of Riverside Sheriff's, et al

Filing

FILED PER CURIAM OPINION (ALEX KOZINSKI, RICHARD R. CLIFTON and JED S. RAKOFF) AFFIRMED IN PART, REVERSED IN PART AND REMANDED. FILED AND ENTERED JUDGMENT. [9207649] [12-55470, 12-55812] [9207649] [12-55470, 12-55812]--[Edited 08/18/2014 by RP]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WENDY THOMAS; SERVICE
EMPLOYEES INTERNATIONAL
UNION, LOCAL 721;
Plaintiffs-Appellants/
Cross-Appellees,

Nos. 12-55470
12-55812
D.C. No.
5:10-CV-01846-VAPDTB

v.
COUNTY OF RIVERSIDE;
LARRY GROTEFEND,
individually; DENNIS ERICK
SCHERTELL, individually;
RICK HALL, individually;
BRIAN MCARTHUR,
individually; HEATHER
WOODS, individually;
MARGIE GEMENDE,
individually;
Defendants-Appellees/
Cross-Appellants.

OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
January 10, 2014—Pasadena, California

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THOMAS V. COUNTY OF RIVERSIDE
Filed August 18, 2014
Before: Alex Kozinski, Chief Judge, Richard R. Clifton,
Circuit Judge, and Jed S. Rakoff, Senior District Judge.*
Per Curiam Opinion

SUMMARY**

Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought by an employee and her union alleging that the
employee was retaliated against in violation of her First
Amendment rights.
The panel held, in part, that the district court erred by
dismissing as trivial evidence of multiple adverse
employment actions. The panel determined that a reasonable
juror might find that the actions, even if viewed in isolation,
could deter protected speech and there was evidence
suggesting that the actions were taken as part of a more
general campaign and might in context have greater
materiality than when viewed in isolation.

*
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel held that although defendants offered various
non-retaliatory business justifications for the employee’s
workplace transfers, plaintiffs adduced evidence that these
transfers came shortly after the employee’s acts of speech,
that the employer had expressed opposition to that speech,
and that the business justifications were pretextual. The panel
also held that plaintiffs presented a genuine factual dispute as
to whether an internal investigation was retaliatory. The
panel held that the district court erred in determining that the
defendant County was not subject to liability under Monell v.
Dep’t of Soc. Servs, 436 U.S. 658, 694 (1978).
The panel affirmed the district court’s summary judgment
as to two other internal investigations and as to an inquiry
about the possibility of limiting the employee’s release time.
Finally, the panel dismissed as moot defendants’ cross-appeal
from the district court’s denial of attorneys’ fees.

COUNSEL
Alan Crowley (argued), Vincent A. Harrington, Jr. and Gary
P. Provencher, Weinberg, Roger & Rosenfeld, Alameda,
California, for Plaintiffs-Appellants/Cross-Appellees.
Edward P. Zappia (argued) and Anna Zappia, The Zappia
Law Firm, Los Angeles, California, for DefendantsAppellees/Cross-Appellants.

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THOMAS V. COUNTY OF RIVERSIDE
OPINION

PER CURIAM:
Plaintiffs Wendy Thomas and her labor union appeal the
grant of summary judgment on their First Amendment
retaliation claims, and defendants cross-appeal a later order
denying them attorneys’ fees. We review the grant of
summary judgment de novo, Crane v. Conoco, Inc., 41 F.3d
547, 549 (9th Cir. 1994), and the denial of attorneys’ fees for
abuse of discretion, Tutor-Saliba Corp. v. City of Hailey,
452 F.3d 1055, 1059 (9th Cir. 2006).
On summary judgment in a First Amendment retaliation
case, a plaintiff must provide evidence of materially adverse
employment actions that are “reasonably likely to deter”
protected speech. Coszalter v. City of Salem, 320 F.3d 968,
976 (9th Cir. 2003). Thomas adduced evidence of more than
30 adverse employment actions, but the district court
dismissed all of them, analyzing nine in some detail and
collectively dismissing the rest as “petty workplace gripes . . .
[that] do not rise to the level of retaliatory adverse
employment actions.”
Adverse employment actions that are so trivial as to be
legally insufficient “include only minor acts, such as ‘badmouthing,’ that cannot reasonably be expected to deter
protected speech.” Coszalter, 320 F.3d at 976. Among the
actions the district court dismissed as trivial were, e.g.:
removing Thomas from a community college teaching
assignment, costing her some $9,000 per year; prohibiting
Thomas from using break time to travel between work sites,
thereby requiring her to use unpaid time for work travel;
rescinding a previously approved vacation; and removing

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Thomas from an unpaid position with the Uniform
Committee. A reasonable juror might well find that these
actions, even if viewed in isolation, could deter protected
speech. Even the removal from the unpaid committee, which
might at first blush appear trivial, might in context be more
egregious. As the Supreme Court has recognized, “to retaliate
by excluding an employee from a weekly training lunch that
contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from
complaining about discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 69 (2006). Moreover, as we
have stated, “[d]epending on the circumstances, even minor
acts of retaliation can infringe on an employee’s First
Amendment rights.” Coszalter, 320 F.3d at 975. And here
there was evidence suggesting that some of these actions
were taken as part of a more general campaign and hence
might in context have greater materiality than when viewed
in isolation. Thus, at a minimum, this case must be remanded
so that the district court can evaluate on a more detailed basis
the incidents that it dismissed collectively as “petty
workplace gripes.”
Of the remaining nine incidents, all of which the district
court did discuss in detail, two — a car-moving incident and
an involuntary transfer in April 2009 — are not raised on
appeal. A third incident, an inquiry about the possibility of
limiting Thomas’s release time, was correctly dismissed by
the district court as unsupported. But there were six others —
three involuntary transfers and three internal investigations —
that the district court properly referred to as “archetypal
adverse employment actions” but still dismissed. Four of
these six should have survived summary judgment.

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First Amendment retaliation cases are governed by Mt.
Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977), which provides that, once a plaintiff
makes a showing that protected speech was a “substantial” or
“motivating” factor in the employer’s taking a non-trivial
adverse employment action, defendants can “escape liability
only by sustaining the burden of proving ‘by a preponderance
of the evidence that [they] would have reached the same
decision . . . even in the absence of the [plaintiff’s] protected
conduct.’ ” Allen v. Iranon, 283 F.3d 1070, 1074 (9th Cir.
2002) (quoting Mt. Healthy, 429 U.S. at 287).
Plaintiffs carried their burden of production sufficient to
survive summary judgment as to the three involuntary
transfers: the transfer from Dispatch Training Unit Supervisor
to Course Coordinator in February 2010, the transfer back to
Dispatch Floor Supervisor in November 2010, and the
transfer from graveyard to day shift in 2011. Although
defendants offered various non-retaliatory business
justifications for these transfers, Thomas adduced evidence
that these transfers came shortly after her acts of speech, that
her employer had expressed opposition to that speech, and
that the business justifications were pretextual. Any one of
these showings, let alone all three, is sufficient to survive
summary judgment if it presents a genuine factual dispute.
See Coszalter, 320 F.3d at 977.
The three internal affairs investigations are more mixed.
The first investigation was initiated by the serious accusations
against Thomas contained in Spargur’s resignation letter. But
the defendants establish beyond dispute that they would have
launched this investigation even absent Thomas’s union
activity. Spargur’s letter included grave accusations and
graphic details. She said that Thomas and other County

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employees fabricated negative performance reviews to push
Spargur out of her job, which caused her panic attacks, heart
problems, and even a miscarriage. And while the charges
against Thomas proved unfounded, not all Spargur’s claims
were baseless: charges were sustained against one of
Thomas’s co-workers. The second investigation was initiated
in response to an undisputed violation of department policy
(Thomas improperly accessing and removing files) and the
district court correctly found that there was no plausible
inference of retaliation here to create a triable issue of fact for
a jury.
The third internal investigation, by contrast, does present
a genuine factual dispute. Woods, Thomas’s supervisor who
initiated this investigation for “rude and discourteous” emails,
conceded that there was no word or phrase in the emails that
violated Department policy, but instead objected to the
underlying “tone” of the emails. This supposed justification
for the investigation was sufficiently thin and subjective that
a reasonable juror might, particularly in light of Thomas’s
other allegations, find that the supposed justification was in
fact pretextual.
Although urged by defendants to address qualified
immunity in the first instance on appeal because it was not
reached below, we decline to do so, in favor of the district
court doing so upon remand, for defendants Grotefend,
Schertell, Hall, and Woods. For defendants Gemende and
McArthur, however, we see no plausible allegation that these
individuals, who did not supervise or have authority over
Thomas, could have committed an adverse employment
action. Accordingly, the grant of summary judgment as to
Gemende and McArthur is affirmed, though the case will be
remanded as to all other defendants.

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In this regard, the district court also erred in determining
that the defendant County was not subject to Monell liability.
The district court recited the correct standard for determining
Monell liability, which is that it may attach when an
employee is acting pursuant to an expressly adopted official
policy, longstanding practice or custom, or as a final
policymaker. See Monell v. Dep’t of Soc. Servs, 436 U.S. 658,
694 (1978); see also Webb v. Sloan, 330 F.3d 1158, 1164 (9th
Cir. 2003). Plaintiffs relied on the third option, that there was
a delegation of final policymaking authority to the Sheriff’s
Department employees who allegedly retaliated against
Thomas.
The district court concluded that Thomas “presents no
evidence whatsoever in support of this allegation,” but in fact
Thomas did attach as the fourth exhibit to her February 6,
2012 declaration a copy of a Riverside County Policy
Number C-23 entitled “Disciplinary Process Policy” that
creates County-wide discipline policies but states on its
second page: “The Sheriff’s Department is exempt from this
policy, except that under no circumstances may the Sheriff’s
disciplinary policies be less strict than the County’s general
disciplinary policies.” Whether this policy constitutes a
delegation of policymaking authority to the Department such
that the actions of Sheriff Sniff (not himself an individual
defendant) or others below him could result in Monell
liability for the County is a factual determination that we do
not make. But since the order granting summary judgment
was premised on the erroneous belief that Thomas had
presented no evidence to support the possibility of Monell
liability under a final policymaker theory, it was in error. See,
e.g., Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 986 (9th
Cir. 2002) (reversing grant of summary judgment to
municipal defendant and remanding for consideration of

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whether there was a delegation of final policymaking
authority). Thus, this too will require re-evaluation on
remand.
Finally, defendants cross-appeal the lower court’s denial
of attorneys’ fees. In light of the foregoing, this cross-appeal
is now moot.1
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.

1

It is unclear whether defendants are also cross-appealing the district
court’s determination that the labor union local had standing, but to the
extent that they are, the district court’s finding of standing is affirmed.