Toney v. Young et al

Filing 23

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/28/17 ORDERING that Defendants' MOTION for Summary Judgment 10 is GRANTED; The clerk is directed to enter judgment in favor of defendants and against Plaintiff. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SHENETTA TONEY,
Plaintiff,

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CIV. NO. 2:15-cv-1225 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
NEIL YOUNG, BILL ATTERBERRY,
and DOES 1 through 100,
Defendants.

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----oo0oo---Plaintiff Shenetta Toney brought this action against

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defendants Neil Young and Bill Atterberry, alleging that

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defendants violated her First Amendment rights by recommending

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that she be terminated from her position as a high school

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supervisor after she told students to video-record alleged police

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brutality during a school incident.

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Defendants now move for summary judgment against plaintiff.

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(Defs.’ Mot. (Docket No. 10).)
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(Compl. (Docket No. 1).)

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I.

Factual and Procedural History1

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Plaintiff was employed as a “campus supervisor” at Bear

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Creek High School, a public high school, from 1999 to 2014.

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Decl. of Shenetta Toney (“Toney Decl.”) ¶ 1 (Docket No. 20-3).)

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As a campus supervisor, plaintiff was responsible for: (1)

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“maintain[ing] order, safety and security” on campus; (2)

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“[p]revent[ing] student conflicts and fights”; and (3)

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“[r]espond[ing] to . . . calls of disturbance” and “interven[ing]

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as necessary” in such disturbances.

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(See

(Pl.’s Opp’n Ex. 1, Campus

Supervisor Job Description at 1 (Docket No. 20-6).)

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On April 24, 2014, a “large” fight broke out in the

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parking lot of Bear Creek High shortly after the school day had

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ended.

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Decl.”) ¶ 6 (Docket No. 13).)

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time, was present at the scene of the fight.

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She testifies that she “was involved in trying to break up [the]

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fights.”

(Toney Decl. ¶ 4; Decl. of Bill Atterberry (“Atterberry
Plaintiff, who was on duty at the
(Toney Decl. ¶ 4.)

(Id.)

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Because the fight involved “numerous students and

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numerous non-students,” “[l]aw enforcement was summoned” to

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assist with the situation.

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arrival, the police began to arrest a number of students.

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Toney Decl. ¶ 6; Pl.’s Opp’n Ex. 3, Incident Video (Docket No.

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20-8).)

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female African-American student, E.T., under arrest and taking

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her “to the ground.”

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used in E.T.’s arrest to be excessive, plaintiff “yelled” that

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(Atterberry Decl. ¶ 6.)

Upon
(See

At that time, plaintiff witnessed the police placing a

(Toney Decl. ¶ 6.)

Believing the force

Unless expressly noted, the facts discussed in this
Order are not disputed.
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the arrest “was police brutality” and “bullshit,” and told

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students “to get out their phones and record it.”

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Shenetta Toney (“Toney Dep.”) at 209-10 (Docket No. 20-10).)

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Some students then pulled out their cell phones and began to

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record the arrest.

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58 (Docket No. 20-12).)

(Id.; Dep. of

(Dep. of Don Tirapelle (“Tirapelle Dep.”) at

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Plaintiff testifies that the fight “was pretty much

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under control” after she told students to take out their cell

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phones, so she “decided . . . to go home” shortly thereafter.

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(Toney Dep. at 211-12.)
After the fight, defendant Atterberry, Principal of

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Bear Creek High, commenced an investigation of the incident.

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(Atterberry Decl. ¶ 8.)

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issued a letter of reprimand to plaintiff, accusing plaintiff of:

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(1) “[i]ncompetency . . . in performance of [her] duties” during

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the April 24 incident; (2) “discourteous, offensive, or abusive

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conduct or language toward the public, a pupil, or another

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officer or employee of the [school] District” during the

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incident; and (3) “[c]onduct . . . which negatively impact[ed

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her] ability to render service to the [school] District.”

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Ex. A, Letter of Reprimand at 2-3 (Docket No. 13-1).)

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advised plaintiff that her behavior during the incident “will be

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referred to [the school district’s] Personnel Department for

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disciplinary action, up to and including termination.”

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Based on his investigation, Atterberry

(Id.

Atterberry

(Id.)

Upon receiving Atterberry’s letter, defendant Young,

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Director of Personnel for the school district, conducted a

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separate investigation of plaintiff’s conduct.

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Young (“Young Decl.”) ¶ 8 (Docket No. 17).)
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(Decl. of Neil

Based on his

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investigation, Young found that plaintiff’s actions during the

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incident “significantly escalated a precarious situation” and

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“were in complete and total contravention of [her] duty” to

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“maintain order and ensure the safety and security of District

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students and staff.”

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(Docket No. 17-1).)

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essentially act in the same manner again if the same situation

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presented [itself],” (Young Decl. ¶ 15), as plaintiff informed

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him during his investigation that her pointing out and telling

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others to record police brutality “was the right thing to do,”

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(Toney Decl. ¶ 11).

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that plaintiff be terminated from her position as campus

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supervisor.

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(Id. Ex. A, Statement of Charges at 5
Young also found “that [plaintiff] would

Based on these findings, Young recommended

(See Statement of Charges at 5; Young Decl. ¶ 15.)

Plaintiff contested Young’s recommendation before the

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school district’s Assistant Superintendent for Human Resources

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(i.e., Skelly hearing) and at a hearing before the California

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Office of Administrative Hearings.

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In both cases, the presiding authority affirmed Young’s

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recommendation.

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subsequently voted to terminate plaintiff’s employment.

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18.)

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(Id. ¶¶ 15, 17.)

(Atterberry Decl. ¶¶ 15-16.)

The school district board

On June 8, 2015, plaintiff filed this action.

(Id. ¶

(Compl.)

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In her Complaint, plaintiff alleges that defendants violated her

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First Amendment2 rights by “set[ting] in motion a series of

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Plaintiff also cites the Fourteenth Amendment in her
Complaint. (See Compl. ¶ 1.) She makes no specific arguments
with respect to the Fourteenth Amendment, however. The court
understands plaintiff’s reference to the Fourteenth Amendment to
be a reference to that Amendment’s incorporation of the First
Amendment to municipal entities. (See id. ¶ 9 (“The Protected
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events that [led] to [her] termination” because she engaged in

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“Protected Speech” during the April 24 incident.

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23.)

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against defendants under 42 U.S.C. § 1983 (“section 1983”): (1) a

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claim for damages against Young in his individual capacity; (2) a

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claim for damages against Atterberry in his individual capacity;

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and (3) a claim to expunge her letter of reprimand against

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Atterberry in his official capacity.

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now move for summary judgment on each of plaintiff’s claims.

(Id. ¶¶ 10-11,

Based on that allegation, plaintiff brings three claims

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II.

Defendants

(Defs.’ Mot.)

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(Id. at 4-6.)

Legal Standard

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the movant can demonstrate that the non-moving

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party cannot produce evidence to support an essential element

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upon which it will bear the burden of proof at trial.

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Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

Id.

Speech was protected under the First Amendment . . . as well as
the Fourteenth Amendment to the United States Constitution.”).)
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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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must “do more than simply show that there is some metaphysical

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doubt as to the material facts.”

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Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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existence of a scintilla of evidence . . . will be insufficient;

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there must be evidence on which the jury could reasonably find

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for the [non-moving party].”

Id. at

The non-moving party

Matsushita Elec. Indus. Co. v.
“The mere

Anderson, 477 U.S. at 252.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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III. Discussion

Id. at

“Credibility determinations, the weighing of the evidence,

Id.

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“An analysis of the government’s regulation of speech

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ordinarily hinges on the context, or forum, in which the speech

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takes place.”

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961 (9th Cir. 2011).

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sovereign and employer,” however, “this general forum-based

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analysis does not apply.”

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Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968) and Garcetti

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v. Ceballos, 547 U.S. 410, 417-19 (2006)).

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applies a distinct . . . analysis,” set forth by the Supreme

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Court in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954,
Where “the government acts as both

Id. (citing Pickering v. Bd. of Ed. of

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“Instead, the Court

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U.S. 563 (1968), “that ‘reconciles the employee’s right to engage

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in speech [with] the government employer’s right to protect its

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own legitimate interests in performing its mission.’”

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658 F.3d at 961 (quoting City of San Diego v. Roe, 543 U.S. 77,

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82 (2004)).

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Johnson,

The issue presented in this case is whether defendants

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were constitutionally permitted to reprimand and recommend the

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termination of plaintiff for her speech during the April 24

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incident.

Because defendants’ decisions to reprimand and

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recommend the termination of plaintiff were made pursuant to

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their authority as school and district officials, (see Atterberry

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Decl. ¶¶ 3, 9; Young Decl. ¶¶ 4, 9), and thus plaintiff’s

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employers, (see Toney Decl. ¶ 1 (plaintiff was employed by the

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school district)), the Pickering framework applies to this case.

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See Johnson, 658 F.3d at 954, 963-64 (applying Pickering

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framework to First Amendment claim brought by teacher against

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school principal and district officials in their individual and

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official capacities); see also Coomes v. Edmonds Sch. Dist. No.

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15, 816 F.3d 1255, 1259-60 (9th Cir. 2016) (applying Pickering

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framework, as clarified in Eng v. Cooley, 552 F.3d 1062 (9th Cir.

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2009), to First Amendment claim brought by teacher against school

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principal and assistant principal).

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The Ninth Circuit clarified Pickering’s framework in

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Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009).

Noting that “First

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Amendment retaliation law has evolved dramatically” in “the forty

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years since Pickering,” the Ninth Circuit extracted from

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Pickering and subsequent related First Amendment cases “a

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sequential five-step” test.

Eng, 552 F.3d at 1070.
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That test

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(“Eng test”) asks: “(1) whether the plaintiff spoke on a matter

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of public concern”; “(2) whether the plaintiff spoke as a private

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citizen or public employee”; “(3) whether the plaintiff’s

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protected speech was a substantial or motivating factor in the

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adverse employment action”; “(4) whether the state had an

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adequate justification for treating the employee differently from

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other members of the general public”; and “(5) whether the state

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would have taken the adverse employment action even absent the

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protected speech.”

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Id.

The plaintiff bears the burden of satisfying steps one

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through three of Eng.

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passed the first three steps, the burden shifts to the government

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to show that . . . [its] legitimate administrative interests

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outweigh the employee’s First Amendment rights” (i.e., step

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four), or that “it would have reached the same adverse employment

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decision even in the absence of the employee’s protected conduct”

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(i.e., step five).

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Each step of Eng is “necessary” to a plaintiff’s claim “in the

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sense that failure to meet any one of them is fatal to the

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plaintiff’s case.”

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(9th Cir. 2013) (internal citation omitted).

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Id. at 1070-71.

“If the plaintiff has

Id. at 1071-72 (internal citations omitted).

Hagen v. City of Eugene, 736 F.3d 1251, 1257

Eng step one asks “whether the plaintiff spoke on a

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matter of public concern.”

Eng, 552 F.3d at 1070.

“Speech

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involves a matter of public concern when it can fairly be

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considered to relate to ‘any matter of political, social, or

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other concern to the community.’”

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Or., 48 F.3d 420, 421 (9th Cir. 1995) (quoting Connick v. Myers,

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461 U.S. 138, 146 (1983)).

Johnson v. Multnomah Cty.,

“The public concern inquiry is purely
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a question of law . . . .”

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v. Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006)).

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Eng, 552 F.3d at 1070 (citing Berry

Plaintiff’s speech during the April 24 incident

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addressed the issue of police brutality.

There is ample case law

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support for the proposition that police brutality is a matter of

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public concern for Pickering purposes.

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Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (“[R]eporting

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police abuse . . . is quintessentially a matter of public concern

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. . . .”); McLin v. Bd. of Police Comm’rs, 10 F. App’x 388, 389

See, e.g., Dahlia v.

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(8th Cir. 2001) (“[Plaintiff’s] comments addressing police

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brutality . . . were . . . a matter of public concern.”);

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Zinnermon v. City of Chicago Dep’t of Police, 209 F.Supp.2d 908,

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910 (N.D. Ill. 2002) (“It is well settled that police brutality

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and misconduct are matters of public concern.”).

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the court finds that plaintiff has satisfied Eng step one.

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Accordingly,

Eng step two asks “whether the plaintiff spoke as a

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private citizen or public employee.”

Eng, 552 F.3d at 1070.

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Speech made “in [one’s] capacity as employee and not citizen” is

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“not protected because any restriction on that speech ‘simply

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reflects the exercise of employer control over what the employer

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itself has commissioned.’”

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No. 84, 546 F.3d 1121, 1127 (9th Cir. 2008) (quoting Garcetti,

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547 U.S. at 422); see also Garcetti, 547 F.3d at 421-22 (the

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First Amendment “does not invest [public employees] with a right

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to perform their jobs however they see fit”); Downs v. Los

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Angeles Unified Sch. Dist., 228 F.3d 1003, 1013 (9th Cir. 2000)

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(“Simply because the government opens its mouth to speak does not

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give every outside individual or group a First Amendment right to

Posey v. Lake Pend Oreille Sch. Dist.

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play ventriloquist.”).

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“spoke as a public employee, not as a citizen,” its “inquiry

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[under Eng] is at an end.”

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Thus, if the court finds that plaintiff

Johnson, 658 F.3d at 966.

Whether plaintiff spoke as a private citizen or public

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employee is “a mixed question of fact and law.”

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Posey, 546 F.3d at 1129).

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content of a plaintiff’s job responsibilities is a question of

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fact,’ the ‘ultimate constitutional significance of the facts as

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found’ is a question of law.”

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Posey, 546 F.3d at 1127 n.2).

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Id. (citing

“While ‘the question of the scope and

Eng, 552 F.3d at 1071 (quoting

It is undisputed that plaintiff’s job as a campus

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supervisor entailed “patrolling the campus,” “maintaining order

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[and] security,” “communicat[ing] with students,” “[p]revent[ing]

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student conflicts and fights,” “[r]espond[ing] to . . . calls of

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disturbance,” and “interven[ing] as necessary” in such

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disturbances.

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Description at 1.)

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April 24 incident, plaintiff was on duty.

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Statement of Undisputed Facts ¶ 3 (Docket No. 20-1).)

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her radio with her, and testifies that she “was involved in

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trying to break up [the] fights” before the police arrived.

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(Toney Decl. ¶ 4.)

(Toney Decl. ¶ 2; Campus Supervisor Job
It is also undisputed that at the time of the
(See Pl.’s Resp. to
She had

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The Ninth Circuit held in Johnson v. Poway Unified Sch.

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Dist., 658 F.3d 954 (9th Cir. 2011) that “because of the position

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of trust and authority they hold and the impressionable young

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minds with which they interact, teachers necessarily act as

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teachers for purposes of a Pickering inquiry when at school or a

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school function, in the general presence of students, in a
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capacity one might reasonably view as official.”

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F.3d at 968; see also Tucker v. State of Cal. Dep’t of Educ., 97

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F.3d 1204, 1213 (9th Cir. 1996) (holding that school may

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“permissibly restrict” teacher’s speech while teaching because a

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“teacher appears to speak for the state when he or she teaches”

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(emphasis added)); Peloza v. Capistrano Unified Sch. Dist., 37

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F.3d 517, 522-23 (9th Cir. 1994) (holding that school may

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restrict teacher’s speech when he is on campus and not teaching

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because “[t]he likelihood of high school students equating [a

Johnson, 658

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teacher’s] views with those of the school” while he is on campus

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“is substantial”).3

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While plaintiff was not employed as a teacher at Bear

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Creek High, her role as a campus supervisor there was analogous

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to that of a teacher for Pickering purposes because like a

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teacher, she was placed in a “position of trust and authority”

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over students.

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Description at 1.)

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campus supervisor even more directly included communicating with

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the students on the subjects involved in this case.

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(See Toney Decl. ¶ 2; Campus Supervisor Job
In fact, it can be said that her job as a

During the April 24 incident, plaintiff was at school

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and in the presence of students.

(See Toney Decl. ¶ 4.)

She was

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on duty, had her radio with her, and was engaged in carrying out

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While Johnson, Tucker, and Peloza each involved freedom
of religion issues, their freedom of speech analyses are relevant
here. See Johnson, 658 F.3d at 970 (“If the [speech] at issue in
this case did not concern religion, our identification of the
speech as the government’s would end our inquiry.”); id. at 96768 (citing Tucker and Peloza in Pickering analysis); see also
Coomes, 816 F.3d at 1260 (citing Johnson in resolving nonreligious Pickering issue).
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her responsibilities as a campus supervisor: “[r]espond[ing] to .

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. . [a] call[] of disturbance,” “interven[ing]” in the

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disturbance, and “[p]revent[ing] [a] student . . . fight[].”

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(See id. ¶¶ 1, 4-5.)

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during the incident--“get out [your] phones and record” the

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police--something no private citizen would do.

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indicate that plaintiff acted “in a capacity [students] might

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reasonably view as official” during the April 24 incident.

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Moreover, she issued an order to students

These facts

Plaintiff notes that defendants have not produced any

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affidavits from students indicating that they believed she was

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acting in her official capacity during the incident.

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under Johnson, however, is not whether students actually believed

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plaintiff was acting officially, but whether they “might

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reasonably view [her as acting] official[ly].”

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at 968 (emphasis added).

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facts in this case are sufficient to show that plaintiff acted

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“in a capacity [students] might reasonably view as official”

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during the April 24 incident.4

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The test

Johnson, 658 F.3d

As explained above, the undisputed

Because the undisputed facts show that plaintiff acted

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“in a capacity [students] might reasonably view as official”

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during the incident, Johnson counsels in favor of finding that

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plaintiff spoke as a public employee.

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Plaintiff does not cite Johnson in her Opposition.

She

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Even if the test were whether students actually
believed plaintiff was acting in her official capacity, there is
evidence indicating that students actually believed plaintiff
spoke in her official capacity when she told them to take out
their phones and record the police. (See Tirapelle Dep. at 58
(noting that “three or four phones” went up after plaintiff told
students to “[g]et [their] phones out”).)
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cites Eng for the proposition that speech “not spoken pursuant to

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[one’s] job duties” is “private” speech for Pickering purposes.

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(Id. (quoting Eng, 552 F.3d at 1075).)

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defendants concede in their depositions that her speech about

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recording alleged police brutality was not part of her job

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duties.

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(“Atterberry Dep.”) at 17 (agreeing that “it [was not] part of

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[plaintiff’s] job duties to tell students to take out their cell

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phones and videotape police”) (Docket No. 20-11) and Dep. of Neil

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Young (“Young Dep.”) at 23 (same) (Docket No. 20-14)) (Docket No.

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20).)

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brutality was not part of her job duties, plaintiff contends, it

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is “private” speech protected under the First Amendment, pursuant

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to Eng.

She notes that both

(See Pl.’s Opp’n at 27 (citing Dep. of Bill Atterberry

Because her speech about recording alleged police

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The court disagrees with plaintiff’s reading of Eng.

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While plaintiff’s job description does not specifically state

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that she had a responsibility to instruct students to videotape

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alleged police brutality, it does state that she had a

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responsibility to “communicate with students,” “intervene” in

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student conflicts, and “maintain [the] order [and] safety” of

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students.

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instruction to students “to get out their phones and record”

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alleged police brutality during the April 24 incident was an

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exercise of the authority that came with such responsibility.

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Private citizens do not have the authority to order other

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people’s children to take action in situations of student

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conflict, as plaintiff did during the incident.

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(Campus Supervisor Job Description at 1.)

Her

In any event, the court need not decide, as a
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dispositive matter, whether plaintiff spoke as a private citizen

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under Eng’s formulation of the public-private speech test.

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formulation of the public-private speech test was addressed to

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the speech of a government employee who complained to other

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government officials and the media about alleged indiscretions at

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his workplace.

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not address speech made by a public school instructor to

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students, its formulation of the public-private speech test need

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not apply here.5

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See Eng, 552 F.3d at 1065, 1073.

Eng’s

Because Eng did

With respect to speech made by a public school

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instructor to students, the Ninth Circuit held in Johnson that

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the relevant inquiry is whether the speech is made “in a capacity

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[students] might reasonably view as official.”

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at 957; see also Tucker, 97 F.3d at 1213; Peloza, 37 F.3d at 522.

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Applying Johnson’s formulation of the public-private speech test,

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the court finds that the undisputed facts in this case are

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sufficient to show that plaintiff spoke as a public employee

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during the April 24 incident.

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public employee during the incident, her speech during the

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incident is not protected under the First Amendment.

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Accordingly, plaintiff’s claims, which each depend on a finding

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of a First Amendment violation, each fail at Eng step two, and

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defendants are entitled to judgment in this action.

Johnson, 658 F.3d

Because plaintiff spoke as a

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To the extent one might argue that it is inconsistent
for the court to apply Eng’s five-step test, but not its
formulation of step two of that test, the court notes that the
Ninth Circuit did exactly that in Johnson. See Johnson, 658 F.3d
at 961, 968 (applying Eng’s five-step test, but holding that the
relevant inquiry at step two is whether speech is made “in a
capacity [students] might reasonably view as official.”).
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IT IS THEREFORE ORDERED that defendants’ Motion for
summary judgment be, and the same hereby is, GRANTED.

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The clerk is directed to enter judgment in favor of

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defendants and against plaintiff.

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Dated:

February 28, 2017

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