Brown v. City of Caldwell et al

Filing 44

MEMORANDUM DECISION AND ORDER denying 32 Motion for Summary Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DOUGLAS A. BROWN,

Case No. 1:10-cv-536-BLW

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CITY OF CALDWELL, a subdivision of
the state of Idaho, MARK
WENDELSDORF, GARRET
NANCOLAS, MONICA JONES and
JOHN/JANE DOES I through X, whose
true identities are presently unknown,
Defendants.

INTRODUCTION
Before the Court is Defendants’ motion for Summary Judgment (Dkt. 32). The
Court heard oral argument on February 22, 2012. Being familiar with the record and
pleadings, and counsel’s arguments at hearing, the Court will deny Defendants’ motion.
BACKGROUND
1. Plaintiff Douglass A. Brown’s Work History
Douglass A. Brown was hired by the City of Caldwell in 2000. Second Am.
Compl., ¶ 10, Dkt. 6-1. As a Fire Marshall and Deputy Fire Chief, Brown’s duties
included responding to public inquiries on Uniform Fire Code, Uniform Building Code
and other related guiding principles of fire prevention and public safety, and working
closely with the Fire Chief on code interpretation and applications to balance the need of
MEMORANDUM DECISION AND ORDER -1

developers and municipal fire safety. The City also asked Brown to keep the Fire Chief,
as well as designated others, informed about work progress, including present and
potential work problems and suggestions for new or improved ways of addressing such
problems. Johnson Aff., Ex. 1, Dkt. 40-4 at 18-19.,
Brown performed well and received a fair amount of positive feedback while
employed for the City of Caldwell. Over the course of his employment he received seven
pay raises via an “Annual Performance Pay Increase.” Id.at 9-16. The final increase
occurred on September 15, 2008. Id. at 9. In addition to annual pay increases, Brown was
nominated for “Employee of the Month” in June 2006, and was described by Chief
Wendelsdorf as “one of the most dedicated persons in the fire service.” Johnson Aff., Ex.
1, Dkt. 40-2 at 21. Brown also received a “Spot Award” in 2007 for going above and
beyond the call of duty. Wendelsdorf Depo. 45:1-17, Ex. 4, Dkt. 38-6 at 12.
For Brown’s August 2008 performance evaluation, Chief Wendelsdorf gave
Brown an “Exceeds Expectation” rating in 14 out of the 24 areas listed. Id. The form
explains it thus, “Exceeds Expectations = consistently exceeds expectations, is
recognized by peers and/or customers in his/her work performance and provides a
positive example for other.” Id. at 10. While the evaluation noted the “need to work on a
positive and supportive attitude,” Johnson Aff., Ex. 1, Dkt 40-2 at 11, Brown met
performance standards in all other areas. Id. at 9-17. This was the only performance
evaluation Brown received while under Chief Wendelsdorf. Wendelsdorf Depo. 34:8-25,
Ex. 4, Dkt. 38-6 at 11.

MEMORANDUM DECISION AND ORDER -2

2. Alleged Protected Activity
Although Brown had received positive feedback up to that point, this changed in
mid-September 2008 when Brown noticed the Can-Act theater company occupying an
unsafe building. Johnson Aff., Ex. 1, Dkt 40-2 at 7. Brown believed the building was
owned by the City and emailed City Officials about his safety concerns: “[T]he City
Code require[s] such activities be held in safe venues. This isn’t. Liability? You bet.” Id.
(punctuation omitted). Brown also wanted to know “who allowed the use of [the
building] for a theatrical company to move in?” Id. at 8.
Two days after Brown sent the email, a meeting was held to discuss it. Handwritten notes recorded Mayor Nancolas’ comments:“I want you to ask questions, it’s just
how you ask the questions. Once you put it in writing…you create a liability – your
emails are subject to public records request. Pick up the phone and ask the question.”
Johnson Aff., Ex. 1, Dkt. 41-5 at 14-17. Brown later testified that he understood the
Mayor’s comments to mean that the City did not like how Brown was reporting code
violations “in that by documenting anything in writing, you’re creating a liability to (sic)
the City.” Brown Depo., Ex. 6, Dkt. 39-1 at 17. This incident was eventually noted as a
reason for firing Brown. Johnson Aff., Ex. 1, Dkt. 40 at 9.
A few months later, Brown was again confronted over his tendency to document
poor conduct. On March 13, 2009, Brown sent an email acknowledging recent
improvements to Beer and Wine license inspections and praising co-workers for their
efforts. Johnson Aff., Ex. 1, Dkt. 40-2 at 2. Chief Wendelsdorf responded the same day
with a letter regarding “Information Contained in E-mails.” Id. Chief Wendelsdorf
MEMORANDUM DECISION AND ORDER -3

expressed concern that Brown’s email documented a prior lax attitude about Beer and
Wine license inspections.
PLEASE understand that all the emails received and sent form a City
account is public and subject to a public information request.
…The inclusion [in your email] of “because the casual approach to
B&W’s before that may have left the licensee smiling, but the
hazards not all corrected. What we need to guard against now is that
we don’t backslide to where we were before.”
Basically, you have admitted that you knew of the ‘casual’ approach
but did nothing about it.”
Id. In responding, Brown acknowledged that he understood that “editorializing is now no
longer tolerated by the City, because it might pose a potential liability risk, or at the very
least, an embarrassment.” Castleton Aff., Ex. B, Dkt. 32-4 at 30; see also Brown Depo.
108:12-109:15, Ex. 6, Dkt. 39-2 at 4. Brown also expressed his appreciation for Chief
Wendelsdorf’s “patience [while] working with me on this.” Id.
What the City viewed as Brown’s problematic communication style prompted a
third round of reprimands in July of 2009. Brown had prepared a memo about converting
the Van Buren Elementary School into an alternative high school. Johnson Aff., Ex. 1,
Dkt 40-1 at 13-20. As part of the memo, Brown listed fourteen points that, in his mind,
“constitute[d] a distinct hazard to life and property.” Id. at 15-16. The last point
concerned the fact that the “structure is proposed to be occupied by alternative high
school students.” Id. at 16. Brown continued to explain the significance:
Let me expand on that last item. Please understand, I do not intend to
cast any dispersions upon alternative high school students. Many of
these students are true lessons in courage and perseverance. But let
MEMORANDUM DECISION AND ORDER -4

me be perfectly clear, this is an entirely different group of people
than elementary school students.
…
Please consider, as I must in evaluating the risks here, that some of
these new students are already parents and some will insist in
bringing babies to class. Some are socially or emotionally
challenged. Some are physically or mentally challenged. Some may
be using prescription medications or illegal drugs that could
adversely affect their judgment. Some are smokers who have
cigarette lighters or matches readily available, some are known
"trouble makers" (gang bangers, vandals, irrational behavior, etc.).
These are new human risk factors being introduced into the old
building.
Id. at 16-17. Brown closed the memo by reiterating his commitment to “protect the lives
and property of the people of Caldwell…[which] is why I have required the [Van Buren
building to] be equipped with fire sprinklers if it is to be used as the new Canyon Springs
Alternative HS.” Johnson Aff., Ex. 1, Dkt 40-1 at 20.
Both Brown and Wendelsdorf testified that each thought it was an internal memo
and would not be supplied to the public. Wendelsdorf Depo. 116:11-14, Ex. 4, Dkt. 38-7
at 6; Brown Depo. 184:3-5, Ex. 6, Dkt. 39-3 at 3. However, the memo was released and
offended members of the School District. A few days later Brown was issued a
Disciplinary Notice-Final Warning. Id. at 10.
During the fall 2009 election cycle, Brown supported mayoral candidate Helmut
Martinez Kohler. Second Am. Compl. ¶ 17, Dkt. 6-1. Incumbent Mayor Nancolas learned
of Brown’s support in October while reading about campaign donations in a local
newspaper. Nancolas Depo. 87:21-88:14, Ex. 7, Dkt. 39-4 at 24. He also saw Brown
supporting Kohler at campaign debates. Id. at 89:20-90:17, Dkt. 39-4 at 24-25. Brown’s
support for the mayoral challenger was also known by both Human Resource Director
MEMORANDUM DECISION AND ORDER -5

Jones and Chief Wendelsdorf. Jones Depo. 170:3-6, Ex. 5, Dkt. 38-10 at 20; Maiello Aff.,
Ex. 8, Dkt. 39-6 at 3. In fact, Wendelsdorf had told Marc Maiello that “Doug had been
planning his ouster.” Id. Director Jones had also heard the rumors that if Kohnler were
elected that Brown would replace Wendelsdorf as Fire Chief. Jones Depo. 172:14-23,
Dkt. 38-10 at 20. And she admitted that she joked with colleagues about “who we were
all going to be replaced by if Helmut got in.” Id. at 173:15-20, Dkt. 38-10 at 20.
3. Brown’s Termination
Brown was terminated shortly after the elections took place, when he left a
negative voicemail about a co-worker, Adele, on another co-worker’s phone. Jones Aff.,
Ex. A, Dkt. 32-6 at 2-3. Adele and Brown had some negative interactions in the past,
including when Brown “reported problems” of Adele “interfer[ing]” with him doing his
job. Brown Depo. 44:16-25, Dkt. 39-1 at13. Brown admitted that “the comments were
bad; they were derogatory towards Adele and he didn’t blame Adele for being upset.”
Jones Aff., Ex. A, Dkt. 32-6 at 2-3. When Adele complained, Brown was given a notice
of proposed disciplinary action. Johnson Aff., Ex. 1, Dkt. 40 at 13-14. A week later
Brown was terminated. Id. at 9-10.
After termination, Brown filed suit for wrongful discharge in violation of the
Idaho Code § 6-2101 et seq. (Idaho Whistleblower Act), breach of contract and the
covenant of good faith and fair dealing, and under 42 U.S.C. § 1983 claiming retaliation
against Brown for exercising his First Amendment rights of free speech and association
(First Amendment retaliation). Second Am. Compl. ¶ 21-33, Dkt. 6-1. The Court
subsequently granted Defendants’ motion to dismiss Brown’s breach of contract claim
MEMORANDUM DECISION AND ORDER -6

because Brown failed to give proper notice as required by Idaho Code § 50-219. Order,
Dkt. 22. Defendants now bring a Motion for Summary Judgment (Dkt 32) to dismiss
Brown’s remaining claims for violation of the Idaho Whistleblower Act and First
Amendment retaliation.
LEGAL STANDARD
One of the principal purposes of summary judgment “is to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by
which factually insufficient claims or defenses [can] be isolated and prevented from
going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The evidence must be viewed in the light most favorable to the non-moving party,
id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The Court must be “guided by the substantive evidentiary standards that apply to
the case.” Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing
MEMORANDUM DECISION AND ORDER -7

evidence, the issue on summary judgment is whether a reasonable jury could conclude
that clear and convincing evidence supports the claim. Id.
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). This shifts the burden to the nonmoving party to produce evidence sufficient to support a jury verdict in her favor. Id. at
256-57.
Only admissible evidence may be considered in ruling on a motion for summary
judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002); see also
Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is
the contents of the evidence rather than its form that must be considered. Fraser v.
Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could
be presented in an admissible form at trial, those contents may be considered on summary
judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay
contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony
of contents would not be hearsay).
DISCUSSION
Before moving on the merits of Defendants’ motion, the Court must address
Defendants’ motion to strike. Defendants contend that Brown failed to lay an adequate
MEMORANDUM DECISION AND ORDER -8

foundation for certain documents referenced in his response. Defendants cite Orr v. Bank
of America, 285 F.3d 764 (9th Cir. 2002) in support of their position. However,
documents produced by a party in discovery are deemed authenticated when offered by
the party-opponent. Id. at 777 n.20. Thus, the Court can properly consider the documents
within Exhibit 1 (Dkt. 40 et seq.). Additionally, in Orr, the Ninth Circuit noted that
authentication of a deposition is ordinarily “accomplished by attaching the cover page of
the deposition and the report’s certification to every deposition extract.” Id. at 774. The
depositions presented here contain both the cover page and the report’s certification, and
therefore are properly considered.
1.

Idaho Whistleblower Act
A.

Prima Facie Case

In Curlee the Idaho Supreme Court affirmed the three substantive elements of a
claim under Idaho Code § 6-2104: “(1) she was an “employee” that engaged or intended
to engage in protected activity; (2) her “employer” took adverse action against her, and
(3) the existence of a causal connection between the protected activity and the employer’s
adverse action.” Curlee v.Kootenai County Fire & Rescue, 224 P.3d 458, 463 (Idaho
2008).
First, the parties agree that Brown was an employee and that on at least one
instance Brown engaged in a “protected activity.” Defs.’ Mem. Dkt 32-1 at 11-12. On
September 16, 2008, Brown noticed the Can-Act Theatre Group inside a City owed
building that should have been vacant. Brown thereafter distributed an internal email

MEMORANDUM DECISION AND ORDER -9

reporting his safety concerns. Both parties agree that this email constitutes a protected
activity under the Idaho Whistleblower statute. Id.; see also Pl.’s Mem., Dkt 36 at 12.
The parties, however, disagree about whether two other instances fall within the
purview of “protected activity.” Defendant contends that the Beer and Wine inspection
email, and the Van Buren Memo were not protected activities because they did not
involve a legal violation that was actively occurring.
The Idaho Supreme Court addressed a similar argument in Van v. Portneuf
Medical Center, 212 P.3d 982 (Idaho 2009). In that case the defendant asserted that
communicating “hazards which are causing or likely to cause serious injury, death, or
physical harm to employees” was not a protected activity because it was not a report of
an actual legal violation. Id. at 989. The Idaho Supreme Court disagreed, holding that
such communications “implicate laws, rules and regulation and do qualify as protected
activities under the Whistleblower Act.” Id.
In the current case, Brown communicated about the thoroughness of code
inspection and the safety of converting the Van Buren building into an alternative high
school. Both directly address the City’s compliance with laws, rules, and regulations.
Both therefore fall within the scope of “protected activity” as pronounced in Van.
Second, the parties agree that the City of Caldwell was Brown’s employer, and
that termination constitutes adverse action against Brown. Defs.’ Mem. Dkt 32-1 at; Pl.’s
Mem. Dkt 36 at 13. But Defendants argue that Brown’s notice was not timely because
Brown alleges that the adverse activity included the reprimands Brown received leading

MEMORANDUM DECISION AND ORDER -10

up to his termination, and Brown did not file this action within 180 days of being
counseled about the Can-Act email in September 2008.
The Court disagrees. The Whistleblower Act requires that a plaintiff file an action
under the Act “within 180 days after the occurrence of the alleged violation...” I.C. § 62105(2). Here, Brown alleges that Defendants retaliated against him “in the form of
reprimands ultimately culminating in the wrongful discharge of his employment.” Brown
filed this action within 180 days after his termination. Under Ninth Circuit precedent,
which the Court finds instructive here, a court may consider a series of adverse actions
cumulatively as a single retaliatory event. Coszalter v. City of Salem, 320 F.3d 968, 975
(9th Cir. 2003). Thus, by filing this action within 180 days of his termination, Brown’s
filing of his whistleblower claim was timely.
Third, and finally, Brown has established causation for summary judgment
purposes. The adverse action must be causally linked to the protected activity. Causation
is an issue of fact for the jury and only rarely can the issue be determined on a motion for
summary judgment. Van, 212 P.3d at 989-90 (citing Curlee, 224 P.3d at 396). While the
final act preceding termination was somewhat different than the prior acts, the evidence
supports a reasonable inference that the protected activities were causally linked to the
adverse actions. Thus, a prima facie claim of retaliatory firing has been established.
B. McDonnell-Douglas v. Curlee
Because he established a prima facie case, argues Brown, the Idaho Supreme
Court’s holding in Curlee v. Kootenai County Fire and Rescue requires this Court to
deny summary judgment on Brown’s whistleblower claim without further inquiry into
MEMORANDUM DECISION AND ORDER -11

Defendants’ allegedly legitimate reasons for firing Brown. 224 P.3d 458 (Idaho 2008).
In Curlee, the Idaho Supreme Court held that if a plaintiff establishes a prima facie case
of retaliatory discharge under the Idaho Whistleblower Act, then the trial court at the
summary judgment stage cannot consider whether the employer had a legitimate, nonretaliatory reason for firing the employee. Id. at 463. The Curlee court concluded that the
district court erred by accepting the employer’s justification for discharging the plaintiff
and requiring her to show that the justification was, in fact, a pretext. Id.
In reaching this conclusion, the Idaho Supreme Court opted not to apply the
traditional McDonnell Douglas burden-shifting framework that federal courts use in
employment cases at the summary judgment stage. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 801-804 (1973). Under the McDonnell Douglas, once the plaintiff
establishes a prima facie case, employer may produce evidence that it discharged the
plaintiff for a legitimate, non-retaliatory reason. If the employer meets this burden, the
burden then shifts back to the plaintiff to prove that the legitimate non-discriminatory
reason the employer proffered is, in fact, a pretext. Dawson v. Entek Intern., 630 F.3d
928, 934-935 (9th Cir. 2011).
This Court, however, must follow McDonnell Douglas despite the Idaho Supreme
Court’s holding in Curlee. State claims removed to federal court are governed by state
substantive law and federal procedural law. See Gasperini v. Center for Humanities, Inc.,
518 U.S. 415, 426-428 (1996). And the Ninth Circuit has held that McDonnell Douglas
burden shifting is a federal procedural rule, and therefore applicable to supplemental state
claims. Dawson, 630 F.3d at 935. So while the Idaho Supreme Court has chosen not to
MEMORANDUM DECISION AND ORDER -12

employ the McDonnell Douglas burden-shifting to whistleblower act claims, this Court
must.
Applying the McDonnell Douglas framework, this Court will therefore consider
Defendants’ evidence that Brown was terminated for using “derogatory and
unprofessional” language in his communications. Johnson Aff., Ex. 1, Dkt 40 at 9; Jones
Aff., Ex. A, Dkt. 32-6 at 2-6. Because Defendants have produced evidence that it
terminated Brown for a non-retaliatory reason, the burden now shifts back to Brown to
establish that the proffered reason is pretextual.
C. Pretext
Showing that a given reason is pretextual can be done directly by showing the
retaliatory reason is more likely than the legitimate reason, or indirectly by showing that
the Defendants’ explanation is “unworthy of credence.” Dawson, 630 F.3d at 934-935.
Further, the plaintiff need not provided direct evidence of retaliation; rather, the plaintiff
must provide enough circumstantial evidence to create a material question of fact on
pretext. Id. at 936.
Here, the Court must determine whether the evidence, viewed in a light most
favorable to the Brown, creates a material question of fact on pretext. The first reasonable
inference from the current evidence is that the style and content of Brown’s
communication was consistent over the course of his employment at the City of Caldwell.
However, following the Can-Act email the City started finding fault with Brown’s
communications. Brown testified to this effect: “So, things that I’d been doing
consistently for 8 1/2 previous years, suddenly it’s not good anymore. We’re going to
MEMORANDUM DECISION AND ORDER -13

write you up for it if you do something like that.” Brown Depo., 61:17-62:5, Dkt. 39-1 at
17-18.1 If Brown’s communication style was consistent over the course of his
employment and Brown consistently received good reviews, then understandably one
would wonder what had changed to trigger the progressive disciplinary actions.
Second, the timing could lead to a reasonable inference that there was a
connection between reporting the violations and the adverse employment actions. Each
report was followed by some form of adverse action. Brown was verbally counseled
following the Can-Act email, a meeting with Chief Wendelsdorf followed the Beer and
Wine inspection email, and a Disciplinary Notice-Final Warning followed the Van Buren
memo. Each of these three incidences was noted on the final Notice of Termination.
Johnson Aff., Ex. 1, Dkt. 40 at 9-10. In these incidences Brown reported actual code
violations, past lax attitudes regarding code compliance, and potential future code
violations if action was not taken.
Additionally, the hand-written notes from the initial meeting between Mayor
Nancolas, Chief Wendelsdorf, and Brown highlight the City’s concern that documenting
violations “creates a liability for the City.” Id., Dkt. 41-5 at 14-17. Mayor Nancolas
counseled Brown to “[p]ick up the phone and ask the question” instead. Id. at 15. Brown
testified to what he believed Mayor Nancolas’ comments meant: “[W]e don’t like how
you’re reporting it in that by documenting anything in writing, you’re creating a liability
for the City.” Brown Depo., Ex. 6, Dkt. 39-1 at 17.
1

At this stage in the proceeding, the Court cannot, and must not, determine the the accuracy of Brown’s statement
and conclusions. However, the court must accept such testimony for purposes of a summary judgment motion,
unless it is entirely implausible. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999).

MEMORANDUM DECISION AND ORDER -14

These concerns may also evidence a policy that would violate the Whistleblower
act. The act provides that an “employer may not implement rules or policies that
unreasonably restrict an employee’s ability to document the existence of…a violation or
suspected violation of any laws, rules or regulations.” Idaho Code § 6-2104(4)(emphasis
added). To only allow oral report of a violation or a suspected violation runs perilously
close to this statutory “line.”
Viewed in a light most favorable to Brown, the evidence creates a material
question of fact about whether the legitimate reason given by the City was merely a
pretext. Thus, summary judgment is inappropriate and should be denied.
D. Application of Gross
Thus far Brown’s Whistleblower claim remains; however, Defendants argue that
“Brown cannot bring a Whistleblower claim and a First Amendment claim as companion
causes of action, claiming that both were motivating factors for his termination. If
Brown’s purported whistleblowing activities were not the sole ‘but-for’ cause of his
termination, then under Gross Brown has failed to prove his Whistleblower statute claim,
and it must be dismissed.” Defs.’ Memo, Dkt 32-1 at 17 (referencing Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009)).
The Court believes, however, that Defendants’ argument that a plaintiff cannot
bring multiple claims with differing motivating factors misinterprets Gross. In Gross, the
Court grappled with whether mixed-motive jury instructions were appropriate in ADEA
cases. Gross, 575 U.S. 167; Shelley v. Geren, 666 F.3d 599, 606-08 (9th Cir. 2012). That

MEMORANDUM DECISION AND ORDER -15

case merely instructs that in ADEA cases a plaintiff must prove but-for causation at trial,
rather than relying on the burden shifting that occurs in Title VII cases. Id.
While Defendants attempt to have Brown’s claim dismissed under Gross, they fail
to explain why the Court should extend the holding in Gross beyond ADEA cases, or
how the Court should incorporate the Gross holding into its analysis at the summary
judgment stage. Indeed they cannot. In the recent case of Shelly v. Geren, the Ninth
Circuit reviewed the Gross holding before determining that even in ADEA cases
governed by Gross, summary judgment is correctly resolved using the traditional
McDonnell Douglas burden analysis. 666 F.3d 599, 606-08 (9th Cir. 2012). Because
Brown established a prima facie case and raised a genuine issue regarding pretext under
the McDonnell Douglas burden shifting analysis, Brown’s Whistleblower claim survives
summary judgment.
2.

First Amendment Retaliation.
It is well established that the government may not abuse its position as employer

to stifle the First Amendment rights of its employees. See Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968); see also Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). It is
“clear that public employees do not surrender all their First Amendment rights by reason
of their employment. Rather, the First Amendment protects a public employee’s right in
certain circumstances to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
The Ninth Circuit has established a “sequential five-step series of questions” to
evaluate First Amendment retaliation claims:
MEMORANDUM DECISION AND ORDER -16

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s
protected speech was a substantial or motivating factor in the adverse employment
action; (4) whether the state had an adequate justification for treating the employee
differently from other members of the general public; and (5) whether the state
would have taken the adverse employment action even absent the protected
speech.
Gibson v. Office of Attny. Gen. State of California, 561 F.3d 920, 925 (9th Cir. 2009)
(citing Eng, 552 F.3d at 1070).
Both parties have agreed that the first, second and fourth questions have either
been met or are inapplicable in this case. Further, Defendants concede that the final
question would have to be addressed by the jury alone, and cannot be resolved on
summary judgment. Thus, the Court need only analyze whether the speech was a
substantial or motivating factor in the adverse employment action.
The Ninth Circuit has affirmed that the third step, whether plaintiff’s speech was a
substantial or motivating factor for the adverse employment action, “is purely a question
of fact.” Eng, 552 F.3d at 1071. Thus, a court must determine if the evidence, with all
reasonable inferences drawn in favor of the non-movant, creates a material question of
fact in this regard.
Here, Brown presents the Court with an affidavit of Marc Maiello as evidence of
his theory that part of the reason he was terminated was because he supported Mayoral
Challenger Kohler. In his affidavit, Marc Maiello affirmed that Chief Wendelsdorf knew
that both Brown and the firefighters’ union supported Kohler. Maiello Aff., Ex. 8, Dkt.
39-6 at 3. Maiello recounted “that [Wendelsdorf had] heard…that if Mr. Martinez won
the election Mr. Martinez planned to appoint Doug Brown to replace Mr. Wendelsdorf as
MEMORANDUM DECISION AND ORDER -17

Fire Chief.” Id. Viewed in a light most favorable to the non-movant, Brown, this suggests
that Wendelsdorf was concerned about the possibility of being replaced. Additionally,
Director Jones testified that she knew about the replacement “rumor,” Jones Depo. 170:323, Ex. 5, Dkt. 38-10 at 20, and Mayor Nancolas affirmed that he knew Brown supported
Kohler. Nancolas Depo. 87:21-90:17, Ex. 7, Dkt. 39-4 at 24-25.
Viewed in a light most favorable to the non-movant, Brown, this evidence
supports Brown’s theory of retaliatory firing. It creates a material question about whether
Brown’s first amendment activity, supporting Helmut Martinez in the Mayoral race, was
a substantial or motivating factor in his termination. Thus, it is inappropriate to dismiss
this claim on summary judgment.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Judgment (Dkt. 32) is DENIED.

DATED: March 14, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER -18