Panning v. Eureka County et al
Filing
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ORDER GRANTING 25 Defendants' Motion for Summary Judgment. The Clerk of Court shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 8/10/2012. (Copies have been distributed pursuant to the NEF - HJ)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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*****
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ADELL PANNING,
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Plaintiff,
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v.
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EUREKA COUNTY, a political subdivision
of the State of Nevada; MICHAEL PAGE, an
individual; JERRY LARSON, an individual;
and MICHAEL REBALEATI, an individual,
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Defendants.
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) 3:10-CV-00643-LRH-VPC
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) ORDER
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Before the court is Defendants’ Motion for Summary Judgment (#25).
Plaintiff filed an
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opposition (#30), and Defendants replied (#31). Plaintiff filed a sur-reply (#33), which Defendants
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opposed (#34).
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I.
Facts and Procedural History
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Plaintiff Adell Panning (“Plaintiff”) is employed by Defendant Eureka County as Director
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of the Northern Eureka County Senior Center (“Senior Center”). (Compl. ¶ 2 (#1).) Defendant
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Eureka County is a governmental entity operating through its Board of County Commissioners. (Id.
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¶ 3.) Plaintiff volunteered for the Eureka County’s Emergency Medical Service (“EMS”) starting
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in 1994 when she got her Emergency Medical Training (“EMT”) certification. (Mot. Summ. J. Ex.
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1 at 55 (#25).) She let her certification lapse sometime before April 15, 2010. (Id. at 58.)
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On April 15, 2010, Plaintiff attended a Board of County Commissioners’ meeting on work
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time that she was required to attend as part of her duties as Director of the Senior Center. (Compl.
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¶ 5 (#1); Mot. Summ. J. Ex. 1 at 30 (#25).) During the meeting, Plaintiff spoke and expressed the
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view that the Commissioners should create a larger supply of EMTs in Eureka County by allowing
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basic EMT classes. (Compl. ¶ 5 (#1).) Plaintiff further stated that she did not have faith in Eureka
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County’s current emergency medical system and that she and her husband had agreed that if an
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emergency occurred with either one of them, they would call emergency services from the interstate
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to expedite an emergency response from other counties. (Id.)
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On May 13, 2010, Plaintiff was asked to attend a meeting with Defendant County
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Commissioner Michael Page (“Page”) and Defendant Human Resources Analyst Jerry Larson
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(“Larson”).
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regarding Eureka County’s EMS. (Id. ¶ 6.) Page expressed his concern and the concern of “several
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others” that Plaintiff was “running down another department head.” (Mot. Summ J. Ex. 7 at 13
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(#25).) He urged Plaintiff to keep her public comments in a “framework that works for everybody”
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and “keep it as positive as you can.” (Id.) Page stated that if this sense of “undermining” continued,
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he would have to “deal with it” and added that he did not want to, that he wanted the situation to “go
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away.” (Id. at 5.) Page indicated that several county employees wanted Plaintiff’s “head on a
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platter” but added that he did not, that he “want[ed] to get it stopped.” (Id. at 15.) Page stated and
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reiterated that this meeting was “not a reprimand.” (Id. at 8, 10.)
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In the meeting, Plaintiff and Page discussed Plaintiff’s comments a month prior
In the fall of 2009, the Nevada Public Employees’ Retirement System (PERS) conducted a
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random audit of Eureka County, a report of which was submitted to Eureka County in January 2010.
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(Mot. Summ. J. Ex. 8 at 6 (#25).) As a result of a discovery that a deputy district attorney had been
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underpaid, Defendant County Auditor Michael Rebaleati (“Rebaleati”) decided to audit all at-will
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employee files to determine whether any had been underpaid. (Id. at 7.) Rebaleati discovered that
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Plaintiff had been underpaid by approximately $26,000. (Compl. ¶ 11 (#1).)
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Between April 20, 2010 and May 14, 2010, Rebaleati contacted Plaintiff to arrange a meeting
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with her to discuss her back-pay. (Mot. Summ. J. Ex. 1 at 7, 8, 85 (#25).) On May 5, 2010, Rebaleati
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sent Plaintiff an e-mail to help with the upcoming meeting, specifically addressing Plaintiff’s
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concerns that being awarded this money would place her into a higher income tax bracket. (Mot.
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Summ. J. Ex. 12 (#25).) Rebaleati notified Plaintiff of an optional deferred compensation plan that
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would help allay the tax costs. (Id.) Plaintiff met with Rebaleati on May 14, 2010. (Compl. ¶ 11
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(#1).) Rebaleati testified that he had no knowledge of Plaintiff’s comments at the April 15, 2010
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meeting or the May 13, 2010 meeting between Plaintiff and Page. (Mot. Summ. J. Ex. 8 at 11
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(#25).) Plaintiff chose not to participate in the deferred compensation plan. (Id. at 99.) Plaintiff was
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awarded the final distribution of her back-pay without interest on June 21, 2010. (Id. Ex. 1 at 101.)
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This award placed her into a higher income tax bracket. (Compl. ¶ 11 (#1).)
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In August of 2010, as part of a county-wide audit of job descriptions, Plaintiff was presented
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with her job description, which listed her as a Site Supervisor of the Senior Center, a step down from
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her position as Director. (Id. ¶ 12.) Plaintiff e-mailed Larson about this discrepancy, who responded
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and subsequently provided her with the correct job description and title. (Compl. ¶ 12 (#1); Mot.
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Summ. J. Exs. 20, 21 (#25).)
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On October 13, 2010, Plaintiff filed this action, alleging that the foregoing actions by Eureka
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County and its employees constitute a prior restraint and retaliation in violation of her First
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Amendment right to free speech.
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retaliatory pattern of conduct towards her, recognize her right to free speech, retract the prior
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restraint on her free speech, reimburse her for interest on her back-pay, provide her with back-pay
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dating further back than 2005, and restore her to her position as if none of the foregoing actions had
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taken place. (Compl. ¶ 21 (#1).) Defendants now move for summary judgment.
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II.
Plaintiff seeks an injunction enjoining Defendants to stop their
Legal Standard
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Summary judgment is appropriate only when the pleadings, depositions, answers to
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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record
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show that “there is no genuine issue as to any material fact and the movant is entitled to judgment
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as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary judgment, the
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evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the
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light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio
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Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154
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(9th Cir. 2001).
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The moving party bears the initial burden of informing the court of the basis for its motion,
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along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the
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moving party must make a showing that is “sufficient for the court to hold that no reasonable trier
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of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259
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(6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).
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To successfully rebut a motion for summary judgment, the non-moving party must point to
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facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson
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Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the
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outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986). Where reasonable minds could differ on the material facts at issue, summary judgment is
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not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material
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fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for
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the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence
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in support of the party’s position is insufficient to establish a genuine dispute; there must be evidence
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on which a jury could reasonably find for the party. Id. at 252.
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III. Discussion
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A. Prior Restraint
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Plaintiff claims that Larson and Page’s May 13, 2010 meeting with Plaintiff amounted to a
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prior restraint on Plaintiff’s First Amendment rights. (Compl. ¶ 10 (#1).) “A prior restraint exists
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when the enjoyment of protected expression is contingent upon the approval of government
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officials.” Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998). Prior
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restraints, which suppress expression before it occurs, carry a heavy presumption of invalidity. Long
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Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1023 (9th Cir. 2008). “This
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heavy presumption is justified by the fact that prior restraints on speech . . . are the most serious and
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the least tolerable infringement on First Amendment rights.” Grossman v. City of Portland, 33 F.3d
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1200, 1204 (9th Cir. 1994) (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1975))
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(internal quotations omitted).
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speech in order to be constitutionally invalid,” Long Beach Area Peace Network, 574 F.3d at 1023,
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it must “[authorize] suppression of speech in advance of its expression.” Ward v. Rock Against
While a prior restraint “need not actually result in suppression of
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Racism, 491 U.S. 781, 795 n.5 (1989). Most prior restraint cases involve licensing schemes or
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permit processes. See, e.g., Kunz v. People of State of New York, 340 U.S. 290, 293 (1951)
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(involving a permit for religious meetings); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
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554 (1975) (involving a permit/licensing scheme for municipal theaters). Regulations found invalid
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as prior restraints have “had this in common: they gave public officials the power to deny use of a
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forum in advance of actual expression.” Conrad, 420 U.S. at 553.
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decision or permit/licensing scheme involved in this case.
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suppression of Plaintiff’s future expression, nor is Plaintiff’s expression conditioned on approval of
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any government official.
There is no a d minis tr a tive
Page’s comments do not amount to a
Plaintiff’s comments at the April 15, 2010 meeting did not require
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approval by a government official, and Plaintiff does not need to go through an approval process for
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any future expressions. While Page stated that he would have to “deal with it” if he felt another
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department head was being continually undermined by Plaintiff, he immediately tempered that
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statement by stating that he did not want to, and that he wanted the situation to “go away.” (Mot.
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Summ. J. Ex. 7 at 5 (#25).) Moreover, Page never forbid Plaintiff from speaking critically or from
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any form of expression, instead simply urging her to “keep it as positive as you can” in a “framework
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that works for everybody.” (Id. at 13.) Page reminded Plaintiff more than once that the meeting was
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not a reprimand or any form of discipline. (Id. at 8, 10.) The “head on a platter” comment that
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Plaintiff makes so much of was attributed by Page to other parties not involved in this case, and Page
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immediately distanced himself from such comments and their sentiment. (Id. at 15.) The transcript
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of the May 13, 2010 meeting thus reads less like a series of threatening statements meant to chill any
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future criticisms from Plaintiff and more like a conversation dealing with Page’s concerns about the
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perceived undermining by Plaintiff of another department head. Page’s equivocal comments do not
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rise to the level of a threat or a “suppression of speech in advance of its expression.” Ward, 491 U.S.
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at 795 n.5. Nothing from the May 13, 2010 meeting constitutes a prior restraint.
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B. First Amendment Retaliation
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Plaintiff alleges that Defendants retaliated against her for exercising her First Amendment
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right to free speech. “It is well settled that ‘a State cannot condition public employment on a basis
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that infringes the employee’s constitutionally protected interest in freedom of expression.’” Garcetti
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v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Meyers, 461 U.S. 138, 142 (1983)).
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Generally, “[t]o sustain a First Amendment retaliation claim, a public employee must show (1) the
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employee engaged in constitutionally protected speech, (2) the employer took adverse employment
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action against the employee, and (3) the employee’s speech was a ‘substantial or motivating’ factor
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in the adverse action.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.
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2008) (quoting Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir. 2006)).
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As to the second and third elements of a First Amendment retaliation claim, “an adverse
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employment action is one that materially affect[s] the compensation, terms, conditions, or privileges
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of . . . employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting
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Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000))
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(internal quotations omitted). An adverse employment action “need not be severe and it need not
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be of a certain kind,” but an action may be “so insignificant that it does not deter the exercise of First
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Amendment rights, and thus does not constitute an adverse employment action within the meaning
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of the First Amendment retaliation cases.” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.
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2003).
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“Depending on the circumstances, even minor acts of retaliation can infringe on an
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employee's First Amendment rights” so long as a plaintiff can prove that “the actions taken by the
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defendants were reasonably likely to deter [the plaintiff] from engaging in protected activity under
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the First Amendment.” Id. Accord Anthoine v. North Central Counties Consortium, 605 F.3d 740,
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750 (9th Cir. 2010). However, “de minimis deprivations of benefits and privileges on account of
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one's speech do not give rise to a First Amendment claim.” Blair v. Bethel School Dist., 6-9 F.3d
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540, 544 (9th Cir. 2010). The actions taken by defendants must rise to a level “that would stifle
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someone from speaking out.”
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employment action to her protected activity.” Bleeker v. Vilsack, 468 Fed. Appx. 731, 732 (9th Cir.
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2012).
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Id.
Furthermore, a plaintiff must “adequately [tie] the adverse
As discussed above, Plaintiff’s May 13, 2010 meeting with Page and Larson does not rise
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to a level that substantially threatens Plaintiff against any future expression. See supra Part III.A.
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Nor was the meeting itself any kind of discipline or reprimand, as repeatedly stated by Page in the
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meeting. (Mot. Summ J. Ex. 7 at 8, 10 (#25).) It is difficult for this court to see how the meeting
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in any way “materially affect[ed] the compensation, terms, conditions, or privileges of . . .
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employment.” Davis, 520 F.3d at 1089. The Ninth Circuit has held that simply being “bad-mouthed
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and verbally threatened,” a stronger action than Page’s inconclusive concern-voicing and equivocal
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comments, is insufficient to establish an adverse employment action. Nunez v. City of Los Angeles,
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147 F.3d 867, 875 (9th Cir. 1998). “It would be the height of irony, indeed, if mere speech, in
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response to speech, could constitute a First Amendment violation.” Id.
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Similarly, Rebaleati’s interactions with Plaintiff regarding her back-pay do not amount to an
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adverse employment action, nor does her final award of non-deferred back-pay. While Plaintiff
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claims that she is entitled to further back-pay and interest on all of the payments owed to her, she
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provides no evidentiary basis for those statements, creating no genuine issue for the trier of fact.1
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Her argument that Eureka County retaliated against her by paying her the money that was owed to
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her because it placed her in a higher tax bracket is unconvincing. Rebaleati offered and encouraged
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Plaintiff to take a deferred compensation scheme for her back-pay that would have avoided some of
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the increased tax burden, but Plaintiff voluntarily refused this mode of payment. (Mot. Summ. J.
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Ex. 1 at 99; Ex. 12 (#25).) Moreover, Plaintiff has failed to provide any evidence that Rebaleati or
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anyone else involved in distributing Plaintiff’s back-pay had any knowledge of Plaintiff’s statements
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at the April 15, 2010 meeting, and Rebaleati has testified that he had no knowledge of Plaintiff’s
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April 15, 2010 statements or her subsequent meeting with Page and Larson on May 13, 2010. (Id.
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Ex. 8 at 11.)
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Plaintiff’s argument that Defendants retaliated against her by providing her with an outdated
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job description and title is also unpersuasive. Again, Plaintiff’s claim fails for a complete lack of
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evidence. Plaintiff has failed to show that the outdated job description, which was quickly rectified
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upon request, was anything more than a clerical error.
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slightest causal link between the provision of the outdated job description and her April 15, 2010
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comments. Quite simply, Plaintiff has failed to prove the existence of a material factual dispute with
Plaintiff has failed to establish even the
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Plaintiff’s complaint includes no independent claim for back-pay or interes t.
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regard to her outdated job description.
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Plaintiff has not provided sufficient evidence of any adverse employment action by
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Defendants, an essential element of all First Amendment retaliation claims. Summary judgment for
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Defendants is therefore appropriate.
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IV.
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Conclusion
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (#25) is
GRANTED.
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The Clerk of Court shall enter judgment accordingly.
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IT IS SO ORDERED.
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DATED this 10th day of August, 2012.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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