Whalen v. Mormon Lake Fire District et al

Filing 62

ORDER denying 54 Motion for Summary Judgment. The Court has set a telephone conference for 2/13/2019 at 4:00 PM to set dates for a final pretrial conference and trial. See Order for additional details. Signed by Senior Judge David G Campbell on 1/28/2019.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Willard Whalen,
Plaintiff,

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ORDER

v.

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No. CV-17-08135-PCT-DGC

Mormon Lake Fire District, et al.,

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Defendants.

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Defendants have filed a motion for summary judgment on the claim brought by

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Plaintiff Willard Whalen under 42 U.S.C. § 1983. Doc. 54. The motion is fully briefed,

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and oral argument will not aid in the Court’s decision. See Fed. R. Civ. P. 78(b);

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LRCiv. 7.2(f). The Court will deny the motion.

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I.

Background.

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A.

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Whalen worked as a volunteer firefighter with the Mormon Lake Fire District

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between 2011 and 2015, when his volunteer status was terminated. Whalen filed this suit

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under § 1983 against the Fire District, Clifton Terrell, and Glen Reagan. Doc. 1. He alleges

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a First Amendment retaliation claim arising from his termination.

Relevant Events.

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Whalen was hired as a volunteer firefighter in 2011. Doc. 55 at ¶¶ 8, 10. In 2012,

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he was promoted to a paid part-time Shift Captain position. Id. He returned to volunteer

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status in 2013. Id. Whalen’s duties as a volunteer firefighter included attending training

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and responding to emergency calls. Doc. 55 at ¶ 8.

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As Shift Captain, Whalen was responsible for training and evaluating firefighters,

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finding training opportunities and scholarships for volunteers and firefighters, ensuring

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minimum staffing levels were satisfied, organizing the Fire District’s staffing resources to

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prepare for large events, and setting up a new fire division. Doc. 60 at ¶ 3; Doc. 55 at ¶ 11.

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In the Fire Chief’s absence, Whalen served as Officer-in-Charge (“OIC”), assuming

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responsibility for managing the Fire District’s operations. But Whalen could not write new

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policies, spend the Fire District’s money, or make decisions reserved to the Fire Chief.

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Doc. 55 at ¶ 12. Whalen continued to manage personnel, including planning and staffing

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for events that drew large crowds to Mormon Lake, until his termination on

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September 4, 2015. Doc. 60 at 6.

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Mormon Lake is home to 1,500 part-time residents and up to 10,000 visitors during

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peak summer months. Doc. 59 at 2. The Fire District is governed by a five-member Board.

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Doc. 55 at ¶ 1. The Board’s duties include setting policies, managing the Fire District’s

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finances, setting compensation, and reviewing operating procedures prepared by the Fire

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Chief. Doc. 60 at ¶ 1.

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The Board hires the Fire Chief, who is then responsible for all personnel issues

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involving firefighters and administrative staff. Doc. 55 at ¶ 3. Final policymaking

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authority concerning personnel issues rests with the Fire Chief, not the Board.

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Doc. 60 at 3-4; Doc. 55 at 10; Doc. 56-3 at 107:15-111. Glen Reagan was Fire Chief

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between 2011 and 2015. Doc. 55 at ¶¶ 8, 10. Clifton Terrell was hired by the Board to

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succeed Reagan as Fire Chief in June 2015. Doc. 55 at ¶¶ 24-30.

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Terrell allowed Reagan to continue serving in a senior capacity under his command.

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Doc. 55 at ¶¶ 24-30. On August 17, 2015, Terrell suspended Whalen. Doc. 55 at ¶ 71.

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Shortly after, Reagan and two volunteer firefighters – Blake Palen and James Goodall –

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gave Terrell reports concerning Whalen’s allegedly insubordinate behavior towards Terrell

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during August 15, 2015 debriefings. Doc. 60 at ¶ 43.

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Eleven days later, on August 28, 2015, Terrell convened what he referred to as a

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“tribunal” to discuss Whalen’s discipline. Doc. 60 at 11. The tribunal’s members included

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Reagan, Palen, and Board member Scott Gold. Id. According to Terrell, the tribunal

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unanimously recommended Whalen’s termination. Id. Reagan denies taking part in, or

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even knowing of, a decision to terminate Whalen until after it happened. Doc. 55 at ¶ 78.

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On August 31, 2015, Terrell wrote a memorandum about Whalen to Tim McNeal,

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Deputy County Attorney and the Board’s legal counsel. Doc. 60 at ¶¶ 47-48. Titled

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“Statement of Cause,” Terrell’s memo provides McNeal with several reasons for Terrell’s

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decision to terminate Whalen, including Whalen’s deteriorating demeanor and his

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suggestion during a public Board meeting that former Fire Chief Reagan misappropriated

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funds and that his assistant falsified her time sheets. Doc. 60 at ¶¶ 47-48. Terrell

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terminated Whalen’s volunteer status with the District on September 4, 2015.

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Doc. 60 at ¶ 49.

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B.

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According to Defendants, Whalen’s insubordinate conduct first began in

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September 2014 when he applied for grants to hire new firefighters without consulting

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Reagan, who was then the Fire Chief. Doc. 55 at ¶¶ 21-22. As a result, Reagan gave

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Whalen a poor rating on teamwork during a performance review, noting that Whalen

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should have addressed department issues with the Chief. Doc. 55 at ¶¶ 21-22.

Defendants’ Version of Whalen’s Termination.

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On June 30, 2015, Whalen sent an unauthorized email seeking to coordinate

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volunteer firefighter schedules in preparation for the July 4th weekend. Doc. 55 at ¶ 43.

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Terrell, who was then serving as Fire Chief, gave Whalen a verbal warning about the

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unauthorized email on July 8, 2015. Doc. 55 at ¶¶ 43, 47.

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On July 22, 2015, Whalen sent another email to a state agency requesting firefighter

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training scholarships for himself and other Fire District volunteers. Doc. 55 at ¶¶ 51-56.

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According to Defendants, processing and handling scholarship requests is reserved to the

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Fire Chief and Terrell never authorized Whalen to send these requests. Id.

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On August 15, 2015, Whalen made allegedly disparaging comments about Terrell’s

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leadership during team debriefings. Whalen said he believed Terrell was not appropriately

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prepared for one event and questioned why Terrell could not be reached during another

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incident. Id.

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C.

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Whalen alleges that Reagan gave him a poor performance review in September 2014

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because they disagreed about a firefighter safety issue that Whalen later brought to the

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Board during a public Board meeting. Doc. 55 at 85. Specifically, Whalen, who was

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serving as volunteer Shift Captain at the time, asked for the Board’s guidance on resolving

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impasses relating to firefighter safety that arise between the Fire Chief and Shift Captain.

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Doc. 55-1 at 87. According to Whalen, he brought the matter to the Board because he did

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not want to expose the Fire District to liability for not providing proper safety equipment

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or otherwise excluding a volunteer from training on the basis of gender.1 Doc. 55-1 at 89.

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Whalen asserts that his duties as Shift Captain during Reagan’s tenure included

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sending out staffing emails, such as the email about the July 4th weekend, and that he was

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never required to ask Reagan to authorize these emails. Doc. 60 ¶¶ 22-26. Whalen further

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claims he had no reason to believe his duties had changed under Terrell because, while

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serving as Fire Chief for nearly a month, Terrell never raised the matter with Whalen. Id.

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Whalen also claims that Terrell did not raise any issues about the July 4th staffing email

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until July 8, 2015. Id. That day, Terrell told Whalen the email was unauthorized because

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it could have had a financial impact on the Fire District. Id. Whalen explained that the

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email was part of his duties under Reagan and that staffing emails do not have a financial

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impact on the Fire District because firefighters do not expect payment for merely being on

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call. Doc. 59 at 6. Whalen agreed to ask for Terrell’s authorization before sending any

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emails that could have a monetary impact on the Fire District. Id.

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Plaintiff’s Version of His Termination.

According to Whalen, the disagreement involved Reagan’s refusal to purchase protective
equipment for a volunteer firefighter – who could not train with other volunteers because
her protective equipment did not fit – claiming the department had no money. When
Whalen questioned Reagan on how the department had no money only two months into its
fiscal year, Reagan said: “well I am not going to buy her any boots.” Doc. 55-1 at 86.
Whalen accepted Reagan’s decision, but said he disagreed with the rationale. Id. at 87.
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Whalen asserts that the scholarship request he sent on July 22, 2015 was also part

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of his responsibilities under Reagan. Doc. 59 at 14. He claims that he informed Terrell

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that the scholarship deadline was coming up and asked whether the Fire District planned

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to request any. Id. Terrell confirmed that scholarships would be sought, but said he had

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not had time to send a request. Id. Later that day, Whalen sent the email requesting

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scholarships and copied Terrell. Id.

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Whalen disputes that he singled out Terrell in his performance critiques during

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debriefings on August 15, 2015. Doc. 60 at ¶ 44. Whalen alleges that his comments

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focused on the whole team’s inadequate preparation for handling two emergency calls, and

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that others at the debriefing echoed his critiques. Id.

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Whalen contends that Defendants’ use of these four incidents to terminate him was

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a pretext, and that he in fact was terminated because he engaged in protected speech.

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Whalen identifies several instances of such speech.

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In June 2015, Whalen had separate conversations with Gold, McNeal, Reagan, and

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other Board members about various issues in the Fire District. Doc. 59 at 4-5. He

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expressed concern to Board member Gold about changes Reagan made to the OIC stipend

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policy a month before stepping down as Fire Chief. Whalen thought Reagan's changes

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were illegal because they concerned compensation and the Board did not approve them as

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required by A.R.S. § 48-805(A)(2).2 Id. at n.3.

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Whalen also told Gold that Reagan’s assistant, Deborah Cargill, received a salary

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equivalent to $27.77 per hour when she was authorized to receive only $10 per hour.

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Doc. 59 at 4-5. He said Cargill was overpaid while the Fire District struggled to pay for

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training and equipment. Id.

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During the same conversation, Gold told Whalen that the Board did not conduct a

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background check on Terrell before hiring him as Fire Chief. Id. Whalen said he would

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hire a private investigator to do a background check on Terrell because “red flags [were]

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all over the place.” Id. Later that month, Whalen’s private investigator found that Terrell

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Originally, the OIC received a stipend of $25 for 24-hours of service. Reagan’s change
raised this to $50 for 12-hours and $100 for 24-hours. Doc. 59 at 4.
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had never served as a police officer despite his claim to the contrary in his application for

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the Fire Chief position.

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members and to Reagan and Terrell. Id. In response, Terrell clarified that he had only

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ridden with law enforcement officers in their vehicles. Id.

Whalen communicated these findings to individual Board

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Whalen raised these same issues with attorney McNeal in late June 2015.

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Doc. 59 at5. Whalen also told McNeal that some Board members were ineligible to serve

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on the Board because they did not meet residency requirements. Id. McNeal later raised

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these issues with the Board.

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During a July 2015 Board meeting, Whalen expressed frustration with the Board’s

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inaction on his complaint that hourly employees were paid without accounting for their

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work hours. Id. He also raised concerns about the Fire District’s failure to maintain

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minimum staffing levels, which he believed undermined its ability to protect the

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community. Id. at 8.

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At the August 2015 Board meeting, Whalen asked the Board to clarify the review

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and approval process for standard operating procedures. Doc. 60 at ¶36-38. He also

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reiterated his previous concern about Reagan’s new stipend policy and noted that he

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brought these issues to Gold’s attention in early June. Doc. 60 at ¶ 37. In response, Gold

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said the Board “had to move on to defend [its] position” now that Whalen had raised the

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issues with attorney McNeal. Id. at ¶ 38.

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II.

Summary Judgment Standard.

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A party seeking summary judgment “bears the initial responsibility of informing the

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district court of the basis for its motion, and identifying those portions of [the record] which

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it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence,

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viewed in the light most favorable to the nonmoving party, shows “that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a party who “fails to

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make a showing sufficient to establish the existence of an element essential to that party’s

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case, and on which that party will bear the burden of proof at trial.”

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Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit

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will preclude summary judgment, and the disputed evidence must be “such that a

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reasonable

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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III.

jury

could

return

a

verdict

for

the

nonmoving

party.”

Analysis.

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While recognizing that this area of the law is complex, the Ninth Circuit has

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described five general issues to be addressed in a First Amendment retaliation case:

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“(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff

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spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech

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was a substantial or motivating factor in the adverse employment action; (4) whether the

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state had an adequate justification for treating the employee differently from other

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members of the general public; and (5) whether the state would have taken the adverse

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employment action even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062, 1070

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(9th Cir. 2009). Defendants contend that Plaintiff can produce no evidence that (1) he

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engaged in expressive conduct on a matter of public concern, (2) Reagan and the Board

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(who were not authorized to terminate him) took any adverse employment action against

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him, or (3) his public expressions were a substantial and motivating factor in Terrell’s

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decision to terminate him. Doc. 54 at 1.3

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A.

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“Speech involves a matter of public concern when it can fairly be considered to

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relate to any matter of political, social, or other concern to the community.” Eng, 552 F.3d

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at 1070 (citations and quotation marks omitted). Speech that “deals with individual

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personnel disputes and grievances and that would be of no relevance to the public’s

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evaluation of the performance of governmental agencies is generally not of public

Whether Whalen’s speech addressed matters of public concern.

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In their reply brief, Defendants also argue that Plaintiff’s claim fails because he spoke as
a public official and not as a private citizen. Doc. 61 at 2-3. The Court will not consider
arguments raised for the first time in a reply brief. See Delgadillo v. Woodford, 527 F.3d
919, 930 n. 4 (9th Cir. 2008).

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concern.” Id. (same). If some part of an expression addresses an issue of public concern,

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the expression warrants First Amendment protection even if other aspects do not. Hyland

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v. Wonder, 972 F.2d 1129, 1138 (9th Cir. 1992). A plaintiff in a § 1983 retaliation claim

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bears the burden of showing that his speech addressed an issue of public concern based on

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“‘the content, form, and context of [the] statement, as revealed by the whole record.’”

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Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009) (quoting Connick

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v. Myers, 461 U.S. 138, 147-48 (1983)).

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Whalen argues that his speech involved matters of public concern because they

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addressed inept and potentially harmful administration of a governmental entity, misuse of

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public funds, and public corruption. Doc. 59 at 8. Defendants argue that because these

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issues stem from Whalen’s personal conflicts with others in the Fire District, Whalen’s

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speech addressed personnel disputes and grievances rather than matters of public concern.

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Doc. 60 at 2. Aside from a single conclusory sentence, however, Defendants do not

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provide factual support for their assertion that Whalen’s complaints stem from personal

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disputes. Doc. 61 at 2:11-17.

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Whalen has presented evidence that his speech addressed matters of public concern.
These include at least six topics:

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 Reagan’s allegedly unauthorized changes to the OIC stipend policy;4

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 Excessive compensation paid to Cargill;

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 False claims by Fire Chief Terrell about having served as a law enforcement

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officer;

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 The Fire District’s failure to retain minimum staffing levels;

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 The Board’s unclear review and approval process for the Fire District’s

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operating procedures, and;
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Improper appointment of two Board members who did not meet residency
requirements.

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Whalen alleges that Reagan, after retiring, often served as OIC and received the financial
benefit of his new stipend policy. Doc. 59 at 3, n.1.
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The first two topics concern breaches of public trust and misuse of public funds.

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The third topic concerns the qualifications of the District’s Fire Chief. The fourth topic

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concerns the general preparedness of the fire department. The fifth topic concerns the

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degree of Board oversight and control of the Fire District. And the sixth topic concerns

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the legality of the Board’s decisions and whether it had the necessary quorum to conduct

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public business at various meetings. Matters concerning the use of public funds, the

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qualifications of government leaders, a fire department’s preparedness, and the

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effectiveness and legality of a fire district’s governing board are “inherently of interest to

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the public.” Hyland, 972 F.2d at 1137-1138. This is not a basis for summary judgment.

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B.

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Defendants concede that Terrell’s termination of Whalen was an adverse

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employment action. Doc. 54 at 13. But they argue that the decision was Terrell’s alone –

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that Reagan and the Board had no authority to terminate Whalen and in fact were not

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involved in the decision. Id. Plaintiff argues that the Board is liable for Terrell’s decision

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because it delegated policymaking authority to him, and that Reagan participated in the

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termination decision and took other adverse employment actions against Whalen. Doc. 59.

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Whether Reagan and the Board Took Adverse Employment Actions.

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The Board’s Potential Liability.

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Relying on Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), Whalen argues that

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the Board is liable for his termination because it delegated its final policymaking authority

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over personnel disciplinary issues to the Fire Chief, and Terrell exercised that authority

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when he terminated Whalen. Defendants argue that vicarious liability cannot be used to

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hold the Board liable for an employee’s actions under § 1983.

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Section 1983 applies to local government units, Monell, 436 U.S. at 690, but a local

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government “is liable only for the actions of ‘its lawmakers or by those whose edicts or

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acts may fairly be said to represent official policy.’” Cortez v. County of L.A., 294 F.3d

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1186, 1189 (9th Cir. 2002) (quoting Monell, 436 U.S. at 694). “To hold a local government

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liable for an official’s conduct, a plaintiff must first establish that the official (1) had final

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policymaking authority ‘concerning the action alleged to have caused the particular

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constitutional or statutory violation at issue’ and (2) was the policymaker for the local

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governing body for the purposes of the particular act.” Id. (quoting Weiner v. San Diego

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County, 210 F.3d 1025, 1028 (9th Cir.2000)).

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Defendants concede that, “[a]s the Fire Chief, Chief Terrell had the sole authority

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to terminate Mr. Whalen and no one else (including Mr. Reagan or any of the District

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members) made the termination decision.” Doc. 55 at ¶ 76. Several Board members also

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testified that the Board has no role in disciplining employees and that “[p]ersonnel issues

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were always dealt with by the chief.” Doc. 60-3 at 3:20-4:8 (emphasis added); Doc. 56-3

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at 107-111.

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Because Terrell appears to have been the sole policymaker in the termination of

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Whalen, exercising authority delegated by the Board, the Board can be liable under Monell.

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This is not a basis for summary judgment.

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2.

Reagan’s Potential Liability.

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The record contains evidence that Terrell sought Reagan’s input on the decision to

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terminate Whalen, and even convened a “tribunal” that included Reagan to approve the

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decision. See, e.g., Doc. 56-2 at 56:12-20. This evidence creates a factual issue as to

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whether Reagan was involved in Whalen’s termination, an act which Defendants agree was

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an adverse employment action.

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Whalen also argues that Reagan’s criticism of Whalen at the August 2015 Board

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meeting constituted an adverse employment action. Doc. 59 at 16. To qualify as an

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adverse employment action, an act need not be severe, of a certain kind, or in the form of

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a benefit removal or burden imposition. Dahlia v. Rodriguez, 735 F.3d 1060, 1079 (9th

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Cir. 2013). The question is whether the employer’s action is reasonably likely to chill

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employees from engaging in protected activity. Id; see also Coszalter v. City of Salem, 320

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F.3d 968, 974-75 (9th Cir. 2003). Depending on the circumstances, even minor acts of

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retaliation can infringe on an employee’s First Amendment rights where they create an

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impermissible chilling effect. Dahlia, 735 F.3d at 1079 (finding employer’s ongoing

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threats and harassment qualify as adverse employment actions). Criticism and insignificant

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verbal threats that cannot be reasonably expected to deter protected speech do not qualify

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as adverse employment actions. Coszalter, 320 F.3d at 975-976 (citing Nunez v. City of

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Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998)).

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The jury must decide whether Reagan’s public statements about Whalen at the

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August 2015 Board meeting were sufficient to constitute an adverse employment action.

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This is not a basis for summary judgment.

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C.

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Defendants argue that Terrell’s decision to terminate Whalen was based solely on

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Whalen’s insubordination and that Whalen can produce no evidence that his protected

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speech was a substantial and motivating factor. Doc. 54 at 13. To establish that protected

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speech was a substantial and motivating factor in an adverse employment action, a plaintiff

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may present evidence that (1) the defendant expressed opposition to the protected speech

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directly to the employee or some other person, (2) the time between the defendant’s alleged

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retaliatory action and the protected speech was sufficiently short for a jury to logically

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conclude that the protected speech motivated the action, or (3) the defendant’s proffered

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explanations for the employment action were false and pretextual. Alpha Energy Savers,

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Inc. v. Hansen, 381 F.3d 917, 929 (9th Cir. 2004).

Substantial and Motivating Factor.

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Whalen cites Terrell’s “Statement of Cause” memo to McNeal as direct evidence of

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Terrell’s motive. Doc. 59 at 10. The memo cites Whalen’s statements at the July Board

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meeting as a basis for termination. Whalen also asserts that Reagan and Terrell expressed

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opposition to his speech. Reagan expressed opposition at the August 8 Board meeting

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when he publicly announced that he regretted hiring Whalen, and Terrell expressed

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opposition in his Statement of Cause memo to McNeal. Id. at 11-12. Whalen also notes

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that the termination decision occurred one month after the July Board meeting and only

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nine days after the August Board meeting where Whalen made allegedly protected

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statements. Id. at 11. And Whalen cites evidence to dispute each of Terrell’s stated reasons

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for terminating him. Id. at 12-15.

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The evidence creates a factual dispute as to whether Whalen’s alleged speech was a

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substantial and motivating factor in the termination decision. This is not a basis for

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summary judgment.

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IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 54) is

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denied. The Court has set a telephone conference for February 13, 2019 at 4:00 p.m. to

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set dates for a final pretrial conference and trial. Counsel for Plaintiff shall initiate a

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conference call to include counsel for all parties and the Court. If a dial-in number is to be

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used, counsel for Plaintiff shall email the dial-in number and instructions to counsel for all

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parties and the Court no later than February 12, 2019 at 12:00 noon. The email to use for

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the Court is [e-mail].

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Dated this 28th day of January, 2019.

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