McBurnie v. Prescott, City of, et al.

Filing 231

ORDER: IT IS ORDERED GRANTING defendants' motion for summary judgment on plaintiff's First Amendment retaliation claim 202 . IT IS FURTHER ORDERED DENYING plaintiff's motion for leave to file memorandum 212 [see attached Order for details]. Signed by Senior Judge Frederick J Martone on 2/14/14.(MAW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert McBurnie, Plaintiff, 10 11 vs. 12 City of Prescott, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-8139-PCT-FJM ORDER 15 16 17 The court has before it defendants’ motion for summary judgment on plaintiff’s First 18 Amendment retaliation claim (Doc. 202), plaintiff’s response (Doc. 207), and defendants’ 19 reply (Doc. 210). We also have before us plaintiff’s motion for leave to file memorandum 20 opposing defendants’ motion to strike (Doc. 212), defendants’ response (Doc. 216), and 21 plaintiff’s reply (Doc. 219). 22 I 23 Plaintiff Robert McBurnie was an employee with the City of Prescott, performing the 24 City’s electrical work. He frequently worked overtime hours in his work with the Prescott 25 Parks and Recreation Department until the City determined its budget could no longer 26 support overtime pay. Plaintiff filed a grievance against his then supervisor, defendant Eric 27 Smith, alleging that the City’s forced use of compensatory time in lieu of overtime pay 28 1 violated the Fair Labor Standards Act (FLSA). 2 Plaintiff was eventually transferred to the Facilities Maintenance Department where 3 he was supervised by defendants Ted Hanneman and Mic Fenech. Hanneman asked plaintiff 4 to cross train two other employees, Dave Suggs and Mike Robbins, on electrical issues so 5 that other employees could work the City’s special events. Plaintiff refused to cross train 6 Suggs and Robbins, claiming that the work required a qualified electrician. Eventually, 7 plaintiff raised his safety concerns regarding cross training with the Arizona Department of 8 Occupational Safety and Health (ADOSH). Plaintiff continued to refuse to cross train his 9 coworkers until February 23, 2009, when he and 11 other full-time City employees were laid 10 off as part of a City-wide reduction in force. Defendants assert that plaintiff’s selection for 11 lay off was largely due to his steadfast refusal to follow his supervisor’s directive to cross 12 train other employees on the City’s electrical systems. 13 Plaintiff filed this action against the City of Prescott and its employees asserting 13 14 claims related to his discharge, including a claim that his First Amendment rights were 15 violated when he was retaliated against for complaining to ADOSH about safety concerns 16 related to cross training other employees. We dismissed plaintiff’s First Amendment 17 retaliation claim on defendants’ motion for summary judgment, concluding that reporting 18 safety concerns was part of plaintiff’s regular duties, and therefore his speech was not 19 constitutionally protected. During trial, we granted defendants’ motion for judgment as a 20 matter of law on certain claims, including plaintiff’s claim for negligent infliction of 21 emotional distress. The matter went to the jury on plaintiff’s sole remaining claim of 22 retaliatory discharge in violation of the FLSA. The jury returned its verdict in favor of 23 defendants on the remaining claim. 24 On appeal, the Ninth Circuit reversed and remanded on plaintiff’s claims of First 25 Amendment retaliation, FLSA retaliation, and negligent infliction of emotional distress. The 26 matter is now before us on defendants’ post-appeal motion for summary judgment on 27 plaintiff’s First Amendment retaliation claim (Doc. 202). 28 II -2- 1 The Ninth Circuit concluded that plaintiff had raised a genuine and material dispute 2 over whether his speech, and in particular his communications with ADOSH, were beyond 3 the scope of his regular job duties. The court remanded for further proceedings on this claim 4 “without prejudice as to whether defendants may file a renewed motion for summary 5 judgment on the basis of the evidentiary record presented at trial.” (Doc. 182-2 at 3). In 6 accordance with that instruction, we issued a scheduling order stating that any post-appeal 7 motion for summary judgment will be “limited to the trial record on the First Amendment 8 retaliation claim.” (Doc. 198). Neither party objected to that limitation. 9 Defendants properly limited their post-appeal motion for summary judgment to the 10 trial record. However, plaintiff offered new evidence, including a new affidavit by plaintiff, 11 a previously undisclosed interview transcript of Julie McGirk, the ADOSH final investigative 12 report regarding plaintiff’s job termination, plaintiff’s post-termination ADOSH 13 communications, and an August 14, 2008 ADOSH letter to plaintiff, none of which was 14 produced at trial. To allow plaintiff to introduce evidence outside the record would unfairly 15 prejudice the defendants and is contrary to clear directives of both the Ninth Circuit and this 16 court. We will not consider evidence not contained in the trial record for purposes of 17 defendants’ post-appeal motion for summary judgment. 18 Plaintiff moves for leave to file a memorandum in response to what he calls 19 defendants’ motion to strike this extra-record evidence. But defendants did not file a separate 20 motion to strike. Instead, they properly challenged plaintiff’s proffered evidence in their 21 objections to plaintiff’s statement of facts. See LRCiv 7.2(m)(2). We do not need a 22 memorandum from plaintiff, nor is one permitted under the federal or local Rules of Civil 23 Procedure. Plaintiff’s motion for leave to file a memorandum is denied (Doc. 212). 24 III 25 Defendants move for summary judgment on plaintiff’s First Amendment retaliation 26 claim. In opposition to this motion, plaintiff contends that he was retaliated against for 27 making two complaints to ADOSH—one “in July 2008" and the other “on August 8, 2008.” 28 -3- 1 Response at 3, 4, 8.1 2 In evaluating plaintiff’s First Amendment claim, we must find “a balance between the 3 interests of the [employee], as a citizen, in commenting upon matters of public concern and 4 the interest of the State, as employer, in promoting the efficiency of the public services it 5 performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 6 1731, 1734-35 (1968). This balancing requires a five-step inquiry: (1) whether plaintiff 7 spoke on a matter of public concern; (2) whether plaintiff spoke as a private citizen or public 8 employee; (3) whether plaintiff’s protected speech was a substantial or motivating factor in 9 the adverse employment action; (4) whether the City had an adequate justification for treating 10 plaintiff differently from members of the general public; and (5) whether the City would have 11 taken the adverse employment action absent the protected speech. Dahlia v. Rodriguez, 735 12 F.3d 1060, 1067 (9th Cir. 2013) (citing Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). 13 The plaintiff bears the burden of proof on the first three factors. The burden shifts to the 14 government to prove the last two. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103 15 (9th Cir. 2011). “If the plaintiff fails to carry his burden at any step, qualified immunity 16 should be granted to the defendant.” Id. A. Matter of Public Concern 17 18 The Ninth Circuit has “defined the scope of the public concern element broadly and 19 adopted a liberal construction” of what constitutes an issue of public concern under the First 20 Amendment. Id. The issue of whether an employee is speaking on a matter of public 21 concern is a question of law for the court to decide. We review the “content, form, and 22 context of a given statement, as revealed by the whole record.” Id. The content of the speech 23 is “the greatest single factor” in the inquiry. Id. Speech that “helps the public evaluate the 24 performance of public agencies” or discusses “threats to public safety” are generally 25 considered matters of public concern. Id. at 1104. Speech relating to internal personnel 26 1 27 28 Plaintiff does not oppose defendants Eric Smith and Rudy Baranko’s motion for summary judgment on the basis of qualified immunity. Therefore, summary judgment is granted in favor of Smith and Baranko. -4- 1 grievances and disputes, however, ordinarily will not be viewed as addressing matters of 2 public concern. 3 Here, the speech at issue is limited to plaintiff’s communications with ADOSH in July 4 2008 and on August 8, 2008 regarding his safety concerns in having to cross train coworkers 5 whom he believed were not qualified. Response at 3, 4, 8. Defendants attempt to construe 6 these communications as a self-serving effort by plaintiff to maximize his overtime hours by 7 remaining the only employee trained to perform electrical services at City events. However, 8 even if we assume that plaintiff’s motive was to present a personal grievance in reporting to 9 ADOSH, he nevertheless presented plausible employee and public safety concerns to the 10 government agency charged with investigating and regulating the City. See Clairmont, 632 11 F.3d at 1105 (holding that the motive behind the speech is not relevant “so long as [the 12 speech itself] meets the public concern test”). Therefore, broadly and liberally construing 13 plaintiff’s alleged speech, we conclude that plaintiff’s alleged complaints to ADOSH 14 presented issues of public concern. 15 B. Private Citizen or Public Employee 16 Our second inquiry is whether plaintiff spoke as a private citizen or public employee. 17 “[W]hen public employees make statements pursuant to their official duties, the employees 18 are not speaking as citizens for First Amendment purposes, and the Constitution does not 19 insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 20 410, 421, 126 S. Ct. 1951, 1960 (2006). If speech is classified as having been made pursuant 21 to an employee’s official duties, then the speech is denied First Amendment protection. “The 22 proper inquiry [to determine the scope of an employee’s official duties] is a practical one.” 23 Id. at 424, 126 S. Ct. at 1962. Whether an employee spoke as public employee or a private 24 citizen is a mixed question of fact and law. Posey v. Lake Pend Oreille Sch. Dist., 546 F.3d 25 1121, 1130 (9th Cir. 2008). The “scope and content of a plaintiff’s job responsibilities” is 26 a question of fact, but the “ultimate constitutional significance of the facts as found” is a 27 question of law. Id. at 1129-30. 28 Plaintiff complained about his safety concerns regarding cross training other -5- 1 employees whom he believed were not qualified to perform electrical work. Defendants 2 argue that plaintiff’s “job description, as well as the City’s general expectations of its 3 employees, required the identification and reporting of safety concerns as part of McBurnie’s 4 official duties.” MSJ at 4-5. It is undisputed that the safe operation of the City’s electrical 5 systems was a core aspect of plaintiff’s job. The City’s Safety Manual required employees 6 to promptly report accidents, injuries, and unsafe work conditions. DSSOF ¶7. Plaintiff 7 acknowledged that the reporting of safety concerns to supervisors was a necessary part of his 8 work. DSSOF ¶ 11. 9 However, plaintiff’s speech regarding his safety concerns in cross training consisted 10 not only of complaints made to his supervisors, which plaintiff concedes were part of his job 11 responsibilities, but also to ADOSH, an independent state agency. “When a public employee 12 communicates with individuals or entities outside of his chain of command, it is unlikely that 13 he is speaking pursuant to his duties.” Dahlia, 735 F.3d at 1074 (citing Freitag v. Ayers, 468 14 F.3d 528, 545-46 (9th Cir. 2006)). 15 An issue of fact exists as to whether plaintiff acted as a private citizen to expose 16 official wrongdoing to an independent state agency, or whether he acted as a disgruntled 17 employee refusing to follow his supervisors’ directive in order to maintain his monopoly on 18 performing City electrical work. Reporting to an outside agency, while indicative of speech 19 by a private citizen, does not conclusively establish private speech. Instead, evidence of 20 motive, as well as the content and context of the speech are all relevant in determining 21 whether an employee is speaking as a private citizen. 22 Although we conclude that a material issue of fact exists with respect to the second 23 step of the First Amendment analysis, we nevertheless proceed to step three because 24 summary judgment in favor of defendants is appropriate if plaintiff fails to meet his burden 25 of proof at any one of the first three steps in the analysis. 26 C. Substantial or Motivating Factor 27 The third inquiry in our analysis–whether plaintiff’s speech was a substantial or 28 motivating factor in his termination “is purely a question of fact. . . .[W]e must assume the -6- 1 truth of plaintiff’s allegations.” Eng, 552 F.3d at 1071. 2 As previously discussed, plaintiff premises his First Amendment retaliation claim on 3 two communications with ADOSH–one in July 2008, and the other on August 8, 2008. 4 Response at 3, 4. While plaintiff makes some reference to the record demonstrating that a 5 phone call to ADOSH occurred sometime in late July 2008, he offers no evidentiary support 6 regarding a contact with ADOSH on August 8, 2008. A party cannot demonstrate a material 7 dispute of fact if he fails to properly support an assertion of fact as required by Fed. R. Civ. 8 P. 56(c)(1).2 9 More importantly, however, plaintiff does not allege that he informed any City 10 defendant about either of these two contacts with ADOSH. Indeed, plaintiff testified at trial 11 that he did not inform City personnel of any ADOSH contacts other than his request for 12 information. Tr. 250, lns 13-20 (Q: “Did you tell anybody at the city that you had spoken to 13 this fellow named Mr. Harnsberger [ADOSH compliance officer] at any time between the 14 time you spoke to him and the time Ms. Mandeville came to the City?” A: “No.”). 15 Obviously, plaintiff’s speech cannot be a motivating factor in any adverse employment action 16 if the defendants were unaware of the speech. Therefore, even assuming the truth of 17 plaintiffs’ allegations that he contacted ADOSH on two occasions voicing legitimate 18 concerns of safety violations by the City, he has failed to present a material issue of fact that 19 this presumed constitutionally protected speech was a motivating factor in the adverse 20 employment actions. 21 Plaintiff asserts that the ADOSH consultation meeting on August 14, 2008 “occurred 22 as a result of McBurnie’s complaint to ADOSH,” Response at 4 (emphasis added) (citing 23 PSOF ¶¶ 138-42), the inference being that defendants knew of the complaint. However, 24 25 26 27 28 2 At PSOF ¶ 142, plaintiff relies on his own 2013 affidavit and a his 2009 posttermination ADOSH complaint (neither of which was produced at trial) in which he refers to an August 8, 2008 contact with ADOSH. Although we have already held that we will not consider evidence not contained in the trial record for purposes of this motion, we note that although the documents refer to an August 8, 2008 contact with ADOSH, plaintiff presents no evidence demonstrating that defendants knew about this communication. -7- 1 plaintiff’s citation to the record mischaracterizes the evidence he offers in support of this 2 argument. Instead, the record demonstrates only that the ADOSH meeting “occurred because 3 of McBurnie’s concerns the City was violating OSHA regulations.” PSOF ¶ 138.3 4 Plaintiff also cites to a transcript of an October 21, 2009 ADOSH interview of City 5 risk management employee Julie McGirk, which is not part of the trial record. But even the 6 improper cite to McGirk’s ADOSH interview transcript confirms that McGirk knew that 7 plaintiff had frequently expressed concerns about cross training and accordingly on her own 8 initiative, McGirk scheduled the August 14, 2008 consultation meeting with ADOSH. See 9 McGirk Tr. at 47-49. Therefore, the materials cited do not support plaintiff’s argument that 10 defendants knew about plaintiff’s July 2008 or August 8, 2008 complaints to ADOSH. 11 Plaintiff has failed to establish a genuine question of fact on this issue. 12 Finally, although plaintiff does not advance the argument that he was retaliated against 13 for his communications at the August 14, 2008 consultation meeting with ADOSH, we note 14 that it is undisputed that the City arranged the meeting and required plaintiff to attend. 15 Therefore, plaintiff’s attendance at the meeting was part of his job responsibilities. D. 16 17 Even if plaintiff had shown that his speech to ADOSH was a substantial or motivating 18 factor in the adverse employment actions, we would nevertheless conclude that the City 19 defendants had an adequate justification for treating plaintiff differently from other members 20 of the general public and that it would have reached the adverse employment decisions even 21 in the absence of the plaintiff’s protected conduct. 22 Plaintiff’s alleged protected conduct was not “a but-for cause of the adverse 23 employment action.” Eng, 552 F.3d at 1072. Defendants have adequately demonstrated, and 24 plaintiff has failed to refute, that plaintiff repeatedly refused his supervisor’s directive to 25 cross train his coworkers, and that the City had a legitimate operational need to have multiple 26 27 28 3 Plaintiff cannot create a material dispute of fact in opposition to a motion for summary judgment by mischaracterizing the evidence. -8- 1 individuals trained on the special events electrical system in order to avoid the incurrence of 2 employee overtime. The First Amendment does not insulate an employee from the 3 consequences of refusing to perform legitimate work assignments. 4 IV 5 Therefore, based on the foregoing, we conclude that plaintiff has failed to demonstrate 6 that a genuine issue of material fact exists as to whether his speech to ADOSH was a 7 substantial or motivating factor in the adverse employment actions, and alternatively has 8 failed to refute the defendants’ evidence that it would have made the same adverse 9 employment decision in the absence of any protected speech. 10 11 12 13 14 IT IS ORDERED GRANTING defendants’ motion for summary judgment on plaintiff’s First Amendment retaliation claim (Doc. 202). IT IS FURTHER ORDERED DENYING plaintiff’s motion for leave to file memorandum (Doc. 212). DATED this 14th day of February, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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