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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SHENETTA TONEY, Plaintiff, 13 14 15 16 17 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. 18 19 20 21 ----oo0oo---Plaintiff Shenetta Toney brought this action against 22 defendants Neil Young and Bill Atterberry, alleging that 23 defendants violated her First Amendment rights by recommending 24 that she be terminated from her position as a high school 25 supervisor after she told students to video-record alleged police 26 brutality during a school incident. 27 Defendants now move for summary judgment against plaintiff. 28 (Defs.’ Mot. (Docket No. 10).) 1 (Compl. (Docket No. 1).) 1 I. Factual and Procedural History1 2 Plaintiff was employed as a “campus supervisor” at Bear 3 Creek High School, a public high school, from 1999 to 2014. 4 Decl. of Shenetta Toney (“Toney Decl.”) ¶ 1 (Docket No. 20-3).) 5 As a campus supervisor, plaintiff was responsible for: (1) 6 “maintain[ing] order, safety and security” on campus; (2) 7 “[p]revent[ing] student conflicts and fights”; and (3) 8 “[r]espond[ing] to . . . calls of disturbance” and “interven[ing] 9 as necessary” in such disturbances. 10 (See (Pl.’s Opp’n Ex. 1, Campus Supervisor Job Description at 1 (Docket No. 20-6).) 11 On April 24, 2014, a “large” fight broke out in the 12 parking lot of Bear Creek High shortly after the school day had 13 ended. 14 Decl.”) ¶ 6 (Docket No. 13).) 15 time, was present at the scene of the fight. 16 She testifies that she “was involved in trying to break up [the] 17 fights.” (Toney Decl. ¶ 4; Decl. of Bill Atterberry (“Atterberry Plaintiff, who was on duty at the (Toney Decl. ¶ 4.) (Id.) 18 Because the fight involved “numerous students and 19 numerous non-students,” “[l]aw enforcement was summoned” to 20 assist with the situation. 21 arrival, the police began to arrest a number of students. 22 Toney Decl. ¶ 6; Pl.’s Opp’n Ex. 3, Incident Video (Docket No. 23 20-8).) 24 female African-American student, E.T., under arrest and taking 25 her “to the ground.” 26 used in E.T.’s arrest to be excessive, plaintiff “yelled” that 27 28 1 (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. 2 1 the arrest “was police brutality” and “bullshit,” and told 2 students “to get out their phones and record it.” 3 Shenetta Toney (“Toney Dep.”) at 209-10 (Docket No. 20-10).) 4 Some students then pulled out their cell phones and began to 5 record the arrest. 6 58 (Docket No. 20-12).) (Id.; Dep. of (Dep. of Don Tirapelle (“Tirapelle Dep.”) at 7 Plaintiff testifies that the fight “was pretty much 8 under control” after she told students to take out their cell 9 phones, so she “decided . . . to go home” shortly thereafter. 10 11 (Toney Dep. at 211-12.) After the fight, defendant Atterberry, Principal of 12 Bear Creek High, commenced an investigation of the incident. 13 (Atterberry Decl. ¶ 8.) 14 issued a letter of reprimand to plaintiff, accusing plaintiff of: 15 (1) “[i]ncompetency . . . in performance of [her] duties” during 16 the April 24 incident; (2) “discourteous, offensive, or abusive 17 conduct or language toward the public, a pupil, or another 18 officer or employee of the [school] District” during the 19 incident; and (3) “[c]onduct . . . which negatively impact[ed 20 her] ability to render service to the [school] District.” 21 Ex. A, Letter of Reprimand at 2-3 (Docket No. 13-1).) 22 advised plaintiff that her behavior during the incident “will be 23 referred to [the school district’s] Personnel Department for 24 disciplinary action, up to and including termination.” 25 Based on his investigation, Atterberry (Id. Atterberry (Id.) Upon receiving Atterberry’s letter, defendant Young, 26 Director of Personnel for the school district, conducted a 27 separate investigation of plaintiff’s conduct. 28 Young (“Young Decl.”) ¶ 8 (Docket No. 17).) 3 (Decl. of Neil Based on his 1 investigation, Young found that plaintiff’s actions during the 2 incident “significantly escalated a precarious situation” and 3 “were in complete and total contravention of [her] duty” to 4 “maintain order and ensure the safety and security of District 5 students and staff.” 6 (Docket No. 17-1).) 7 essentially act in the same manner again if the same situation 8 presented [itself],” (Young Decl. ¶ 15), as plaintiff informed 9 him during his investigation that her pointing out and telling 10 others to record police brutality “was the right thing to do,” 11 (Toney Decl. ¶ 11). 12 that plaintiff be terminated from her position as campus 13 supervisor. 14 (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 15 school district’s Assistant Superintendent for Human Resources 16 (i.e., Skelly hearing) and at a hearing before the California 17 Office of Administrative Hearings. 18 In both cases, the presiding authority affirmed Young’s 19 recommendation. 20 subsequently voted to terminate plaintiff’s employment. 21 18.) 22 (Id. ¶¶ 15, 17.) (Atterberry Decl. ¶¶ 15-16.) The school district board On June 8, 2015, plaintiff filed this action. (Id. ¶ (Compl.) 23 In her Complaint, plaintiff alleges that defendants violated her 24 First Amendment2 rights by “set[ting] in motion a series of 25 26 27 28 2 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 4 1 events that [led] to [her] termination” because she engaged in 2 “Protected Speech” during the April 24 incident. 3 23.) 4 against defendants under 42 U.S.C. § 1983 (“section 1983”): (1) a 5 claim for damages against Young in his individual capacity; (2) a 6 claim for damages against Atterberry in his individual capacity; 7 and (3) a claim to expunge her letter of reprimand against 8 Atterberry in his official capacity. 9 now move for summary judgment on each of plaintiff’s claims. (Id. ¶¶ 10-11, Based on that allegation, plaintiff brings three claims 10 II. Defendants (Defs.’ Mot.) 11 (Id. at 4-6.) Legal Standard 12 Summary judgment is proper “if the movant shows that 13 there is no genuine dispute as to any material fact and the 14 movant is entitled to judgment as a matter of law.” 15 P. 56(a). 16 of the suit, and a genuine issue is one that could permit a 17 reasonable jury to enter a verdict in the non-moving party’s 18 favor. 19 (1986). 20 burden of establishing the absence of a genuine issue of material 21 fact and can satisfy this burden by presenting evidence that 22 negates an essential element of the non-moving party’s case. 23 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 24 Alternatively, the movant can demonstrate that the non-moving 25 party cannot produce evidence to support an essential element 26 upon which it will bear the burden of proof at trial. 27 28 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.”).) 5 1 Once the moving party meets its initial burden, the 2 burden shifts to the non-moving party to “designate ‘specific 3 facts showing that there is a genuine issue for trial.’” 4 324 (quoting then-Fed. R. Civ. P. 56(e)). 5 must “do more than simply show that there is some metaphysical 6 doubt as to the material facts.” 7 Zenith Radio Corp., 475 U.S. 574, 586 (1986). 8 existence of a scintilla of evidence . . . will be insufficient; 9 there must be evidence on which the jury could reasonably find 10 for the [non-moving party].” Id. at The non-moving party Matsushita Elec. Indus. Co. v. “The mere Anderson, 477 U.S. at 252. 11 In deciding a summary judgment motion, the court must 12 view the evidence in the light most favorable to the non-moving 13 party and draw all justifiable inferences in its favor. 14 255. 15 and the drawing of legitimate inferences from the facts are jury 16 functions, not those of a judge . . . ruling on a motion for 17 summary judgment . . . .” 18 III. Discussion Id. at “Credibility determinations, the weighing of the evidence, Id. 19 “An analysis of the government’s regulation of speech 20 ordinarily hinges on the context, or forum, in which the speech 21 takes place.” 22 961 (9th Cir. 2011). 23 sovereign and employer,” however, “this general forum-based 24 analysis does not apply.” 25 Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968) and Garcetti 26 v. Ceballos, 547 U.S. 410, 417-19 (2006)). 27 applies a distinct . . . analysis,” set forth by the Supreme 28 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 6 “Instead, the Court 1 U.S. 563 (1968), “that ‘reconciles the employee’s right to engage 2 in speech [with] the government employer’s right to protect its 3 own legitimate interests in performing its mission.’” 4 658 F.3d at 961 (quoting City of San Diego v. Roe, 543 U.S. 77, 5 82 (2004)). 6 Johnson, The issue presented in this case is whether defendants 7 were constitutionally permitted to reprimand and recommend the 8 termination of plaintiff for her speech during the April 24 9 incident. Because defendants’ decisions to reprimand and 10 recommend the termination of plaintiff were made pursuant to 11 their authority as school and district officials, (see Atterberry 12 Decl. ¶¶ 3, 9; Young Decl. ¶¶ 4, 9), and thus plaintiff’s 13 employers, (see Toney Decl. ¶ 1 (plaintiff was employed by the 14 school district)), the Pickering framework applies to this case. 15 See Johnson, 658 F.3d at 954, 963-64 (applying Pickering 16 framework to First Amendment claim brought by teacher against 17 school principal and district officials in their individual and 18 official capacities); see also Coomes v. Edmonds Sch. Dist. No. 19 15, 816 F.3d 1255, 1259-60 (9th Cir. 2016) (applying Pickering 20 framework, as clarified in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 21 2009), to First Amendment claim brought by teacher against school 22 principal and assistant principal). 23 The Ninth Circuit clarified Pickering’s framework in 24 Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). Noting that “First 25 Amendment retaliation law has evolved dramatically” in “the forty 26 years since Pickering,” the Ninth Circuit extracted from 27 Pickering and subsequent related First Amendment cases “a 28 sequential five-step” test. Eng, 552 F.3d at 1070. 7 That test 1 (“Eng test”) asks: “(1) whether the plaintiff spoke on a matter 2 of public concern”; “(2) whether the plaintiff spoke as a private 3 citizen or public employee”; “(3) whether the plaintiff’s 4 protected speech was a substantial or motivating factor in the 5 adverse employment action”; “(4) whether the state had an 6 adequate justification for treating the employee differently from 7 other members of the general public”; and “(5) whether the state 8 would have taken the adverse employment action even absent the 9 protected speech.” 10 Id. The plaintiff bears the burden of satisfying steps one 11 through three of Eng. 12 passed the first three steps, the burden shifts to the government 13 to show that . . . [its] legitimate administrative interests 14 outweigh the employee’s First Amendment rights” (i.e., step 15 four), or that “it would have reached the same adverse employment 16 decision even in the absence of the employee’s protected conduct” 17 (i.e., step five). 18 Each step of Eng is “necessary” to a plaintiff’s claim “in the 19 sense that failure to meet any one of them is fatal to the 20 plaintiff’s case.” 21 (9th Cir. 2013) (internal citation omitted). 22 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 23 matter of public concern.” Eng, 552 F.3d at 1070. “Speech 24 involves a matter of public concern when it can fairly be 25 considered to relate to ‘any matter of political, social, or 26 other concern to the community.’” 27 Or., 48 F.3d 420, 421 (9th Cir. 1995) (quoting Connick v. Myers, 28 461 U.S. 138, 146 (1983)). Johnson v. Multnomah Cty., “The public concern inquiry is purely 8 1 a question of law . . . .” 2 v. Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006)). 3 Eng, 552 F.3d at 1070 (citing Berry Plaintiff’s speech during the April 24 incident 4 addressed the issue of police brutality. There is ample case law 5 support for the proposition that police brutality is a matter of 6 public concern for Pickering purposes. 7 Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (“[R]eporting 8 police abuse . . . is quintessentially a matter of public concern 9 . . . .”); McLin v. Bd. of Police Comm’rs, 10 F. App’x 388, 389 See, e.g., Dahlia v. 10 (8th Cir. 2001) (“[Plaintiff’s] comments addressing police 11 brutality . . . were . . . a matter of public concern.”); 12 Zinnermon v. City of Chicago Dep’t of Police, 209 F.Supp.2d 908, 13 910 (N.D. Ill. 2002) (“It is well settled that police brutality 14 and misconduct are matters of public concern.”). 15 the court finds that plaintiff has satisfied Eng step one. 16 Accordingly, Eng step two asks “whether the plaintiff spoke as a 17 private citizen or public employee.” Eng, 552 F.3d at 1070. 18 Speech made “in [one’s] capacity as employee and not citizen” is 19 “not protected because any restriction on that speech ‘simply 20 reflects the exercise of employer control over what the employer 21 itself has commissioned.’” 22 No. 84, 546 F.3d 1121, 1127 (9th Cir. 2008) (quoting Garcetti, 23 547 U.S. at 422); see also Garcetti, 547 F.3d at 421-22 (the 24 First Amendment “does not invest [public employees] with a right 25 to perform their jobs however they see fit”); Downs v. Los 26 Angeles Unified Sch. Dist., 228 F.3d 1003, 1013 (9th Cir. 2000) 27 (“Simply because the government opens its mouth to speak does not 28 give every outside individual or group a First Amendment right to Posey v. Lake Pend Oreille Sch. Dist. 9 1 play ventriloquist.”). 2 “spoke as a public employee, not as a citizen,” its “inquiry 3 [under Eng] is at an end.” 4 Thus, if the court finds that plaintiff Johnson, 658 F.3d at 966. Whether plaintiff spoke as a private citizen or public 5 employee is “a mixed question of fact and law.” 6 Posey, 546 F.3d at 1129). 7 content of a plaintiff’s job responsibilities is a question of 8 fact,’ the ‘ultimate constitutional significance of the facts as 9 found’ is a question of law.” 10 Posey, 546 F.3d at 1127 n.2). 11 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 12 supervisor entailed “patrolling the campus,” “maintaining order 13 [and] security,” “communicat[ing] with students,” “[p]revent[ing] 14 student conflicts and fights,” “[r]espond[ing] to . . . calls of 15 disturbance,” and “interven[ing] as necessary” in such 16 disturbances. 17 Description at 1.) 18 April 24 incident, plaintiff was on duty. 19 Statement of Undisputed Facts ¶ 3 (Docket No. 20-1).) 20 her radio with her, and testifies that she “was involved in 21 trying to break up [the] fights” before the police arrived. 22 (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 23 The Ninth Circuit held in Johnson v. Poway Unified Sch. 24 Dist., 658 F.3d 954 (9th Cir. 2011) that “because of the position 25 of trust and authority they hold and the impressionable young 26 minds with which they interact, teachers necessarily act as 27 teachers for purposes of a Pickering inquiry when at school or a 28 school function, in the general presence of students, in a 10 1 capacity one might reasonably view as official.” 2 F.3d at 968; see also Tucker v. State of Cal. Dep’t of Educ., 97 3 F.3d 1204, 1213 (9th Cir. 1996) (holding that school may 4 “permissibly restrict” teacher’s speech while teaching because a 5 “teacher appears to speak for the state when he or she teaches” 6 (emphasis added)); Peloza v. Capistrano Unified Sch. Dist., 37 7 F.3d 517, 522-23 (9th Cir. 1994) (holding that school may 8 restrict teacher’s speech when he is on campus and not teaching 9 because “[t]he likelihood of high school students equating [a Johnson, 658 10 teacher’s] views with those of the school” while he is on campus 11 “is substantial”).3 12 While plaintiff was not employed as a teacher at Bear 13 Creek High, her role as a campus supervisor there was analogous 14 to that of a teacher for Pickering purposes because like a 15 teacher, she was placed in a “position of trust and authority” 16 over students. 17 Description at 1.) 18 campus supervisor even more directly included communicating with 19 the students on the subjects involved in this case. 20 (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 21 and in the presence of students. (See Toney Decl. ¶ 4.) She was 22 on duty, had her radio with her, and was engaged in carrying out 23 24 25 26 27 28 3 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). 11 1 her responsibilities as a campus supervisor: “[r]espond[ing] to . 2 . . [a] call[] of disturbance,” “interven[ing]” in the 3 disturbance, and “[p]revent[ing] [a] student . . . fight[].” 4 (See id. ¶¶ 1, 4-5.) 5 during the incident--“get out [your] phones and record” the 6 police--something no private citizen would do. 7 indicate that plaintiff acted “in a capacity [students] might 8 reasonably view as official” during the April 24 incident. 9 Moreover, she issued an order to students These facts Plaintiff notes that defendants have not produced any 10 affidavits from students indicating that they believed she was 11 acting in her official capacity during the incident. 12 under Johnson, however, is not whether students actually believed 13 plaintiff was acting officially, but whether they “might 14 reasonably view [her as acting] official[ly].” 15 at 968 (emphasis added). 16 facts in this case are sufficient to show that plaintiff acted 17 “in a capacity [students] might reasonably view as official” 18 during the April 24 incident.4 19 The test Johnson, 658 F.3d As explained above, the undisputed Because the undisputed facts show that plaintiff acted 20 “in a capacity [students] might reasonably view as official” 21 during the incident, Johnson counsels in favor of finding that 22 plaintiff spoke as a public employee. 23 Plaintiff does not cite Johnson in her Opposition. She 24 4 25 26 27 28 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”).) 12 1 cites Eng for the proposition that speech “not spoken pursuant to 2 [one’s] job duties” is “private” speech for Pickering purposes. 3 (Id. (quoting Eng, 552 F.3d at 1075).) 4 defendants concede in their depositions that her speech about 5 recording alleged police brutality was not part of her job 6 duties. 7 (“Atterberry Dep.”) at 17 (agreeing that “it [was not] part of 8 [plaintiff’s] job duties to tell students to take out their cell 9 phones and videotape police”) (Docket No. 20-11) and Dep. of Neil 10 Young (“Young Dep.”) at 23 (same) (Docket No. 20-14)) (Docket No. 11 20).) 12 brutality was not part of her job duties, plaintiff contends, it 13 is “private” speech protected under the First Amendment, pursuant 14 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 15 The court disagrees with plaintiff’s reading of Eng. 16 While plaintiff’s job description does not specifically state 17 that she had a responsibility to instruct students to videotape 18 alleged police brutality, it does state that she had a 19 responsibility to “communicate with students,” “intervene” in 20 student conflicts, and “maintain [the] order [and] safety” of 21 students. 22 instruction to students “to get out their phones and record” 23 alleged police brutality during the April 24 incident was an 24 exercise of the authority that came with such responsibility. 25 Private citizens do not have the authority to order other 26 people’s children to take action in situations of student 27 conflict, as plaintiff did during the incident. 28 (Campus Supervisor Job Description at 1.) Her In any event, the court need not decide, as a 13 1 dispositive matter, whether plaintiff spoke as a private citizen 2 under Eng’s formulation of the public-private speech test. 3 formulation of the public-private speech test was addressed to 4 the speech of a government employee who complained to other 5 government officials and the media about alleged indiscretions at 6 his workplace. 7 not address speech made by a public school instructor to 8 students, its formulation of the public-private speech test need 9 not apply here.5 10 See Eng, 552 F.3d at 1065, 1073. Eng’s Because Eng did With respect to speech made by a public school 11 instructor to students, the Ninth Circuit held in Johnson that 12 the relevant inquiry is whether the speech is made “in a capacity 13 [students] might reasonably view as official.” 14 at 957; see also Tucker, 97 F.3d at 1213; Peloza, 37 F.3d at 522. 15 Applying Johnson’s formulation of the public-private speech test, 16 the court finds that the undisputed facts in this case are 17 sufficient to show that plaintiff spoke as a public employee 18 during the April 24 incident. 19 public employee during the incident, her speech during the 20 incident is not protected under the First Amendment. 21 Accordingly, plaintiff’s claims, which each depend on a finding 22 of a First Amendment violation, each fail at Eng step two, and 23 defendants are entitled to judgment in this action. Johnson, 658 F.3d Because plaintiff spoke as a 24 5 25 26 27 28 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.”). 14 1 2 IT IS THEREFORE ORDERED that defendants’ Motion for summary judgment be, and the same hereby is, GRANTED. 3 The clerk is directed to enter judgment in favor of 4 defendants and against plaintiff. 5 Dated: February 28, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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