Wendy Thomas v. County of Riverside Sheriff's

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENDY THOMAS; SERVICE Nos. 12-55470

EMPLOYEES INTERNATIONAL 12-55812

UNION, LOCAL 721;

Plaintiffs-Appellants/ D.C. No.

Cross-Appellees, 5:10-CV-01846-VAP-

DTB

v.

COUNTY OF RIVERSIDE; OPINION

LARRY GROTEFEND,

individually; DENNIS ERICK

SCHERTELL, individually;

RICK HALL, individually;

BRIAN MCARTHUR,

individually; HEATHER

WOODS, individually;

MARGIE GEMENDE,

individually;

Defendants-Appellees/

Cross-Appellants.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

January 10, 2014—Pasadena, California

2 THOMAS V. COUNTY OF RIVERSIDE

Filed August 18, 2014

Before: Alex Kozinski, Chief Judge, Richard R. Clifton,

Circuit Judge, and Jed S. Rakoff, Senior District Judge.*

Per Curiam Opinion

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in an action

brought by an employee and her union alleging that the

employee was retaliated against in violation of her First

Amendment rights.

The panel held, in part, that the district court erred by

dismissing as trivial evidence of multiple adverse

employment actions. The panel determined that a reasonable

juror might find that the actions, even if viewed in isolation,

could deter protected speech and there was evidence

suggesting that the actions were taken as part of a more

general campaign and might in context have greater

materiality than when viewed in isolation.

*

The Honorable Jed S. Rakoff, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

THOMAS V. COUNTY OF RIVERSIDE 3

The panel held that although defendants offered various

non-retaliatory business justifications for the employee’s

workplace transfers, plaintiffs adduced evidence that these

transfers came shortly after the employee’s acts of speech,

that the employer had expressed opposition to that speech,

and that the business justifications were pretextual. The panel

also held that plaintiffs presented a genuine factual dispute as

to whether an internal investigation was retaliatory. The

panel held that the district court erred in determining that the

defendant County was not subject to liability under Monell v.

Dep’t of Soc. Servs, 436 U.S. 658, 694 (1978).

The panel affirmed the district court’s summary judgment

as to two other internal investigations and as to an inquiry

about the possibility of limiting the employee’s release time.

Finally, the panel dismissed as moot defendants’ cross-appeal

from the district court’s denial of attorneys’ fees.

COUNSEL

Alan Crowley (argued), Vincent A. Harrington, Jr. and Gary

P. Provencher, Weinberg, Roger & Rosenfeld, Alameda,

California, for Plaintiffs-Appellants/Cross-Appellees.

Edward P. Zappia (argued) and Anna Zappia, The Zappia

Law Firm, Los Angeles, California, for Defendants-

Appellees/Cross-Appellants.

4 THOMAS V. COUNTY OF RIVERSIDE

OPINION

PER CURIAM:

Plaintiffs Wendy Thomas and her labor union appeal the

grant of summary judgment on their First Amendment

retaliation claims, and defendants cross-appeal a later order

denying them attorneys’ fees. We review the grant of

summary judgment de novo, Crane v. Conoco, Inc., 41 F.3d

547, 549 (9th Cir. 1994), and the denial of attorneys’ fees for

abuse of discretion, Tutor-Saliba Corp. v. City of Hailey,

452 F.3d 1055, 1059 (9th Cir. 2006).

On summary judgment in a First Amendment retaliation

case, a plaintiff must provide evidence of materially adverse

employment actions that are “reasonably likely to deter”

protected speech. Coszalter v. City of Salem, 320 F.3d 968,

976 (9th Cir. 2003). Thomas adduced evidence of more than

30 adverse employment actions, but the district court

dismissed all of them, analyzing nine in some detail and

collectively dismissing the rest as “petty workplace gripes . . .

[that] do not rise to the level of retaliatory adverse

employment actions.”

Adverse employment actions that are so trivial as to be

legally insufficient “include only minor acts, such as ‘bad-

mouthing,’ that cannot reasonably be expected to deter

protected speech.” Coszalter, 320 F.3d at 976. Among the

actions the district court dismissed as trivial were, e.g.:

removing Thomas from a community college teaching

assignment, costing her some $9,000 per year; prohibiting

Thomas from using break time to travel between work sites,

thereby requiring her to use unpaid time for work travel;

rescinding a previously approved vacation; and removing

THOMAS V. COUNTY OF RIVERSIDE 5

Thomas from an unpaid position with the Uniform

Committee. A reasonable juror might well find that these

actions, even if viewed in isolation, could deter protected

speech. Even the removal from the unpaid committee, which

might at first blush appear trivial, might in context be more

egregious. As the Supreme Court has recognized, “to retaliate

by excluding an employee from a weekly training lunch that

contributes significantly to the employee’s professional

advancement might well deter a reasonable employee from

complaining about discrimination.” Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 69 (2006). Moreover, as we

have stated, “[d]epending on the circumstances, even minor

acts of retaliation can infringe on an employee’s First

Amendment rights.” Coszalter, 320 F.3d at 975. And here

there was evidence suggesting that some of these actions

were taken as part of a more general campaign and hence

might in context have greater materiality than when viewed

in isolation. Thus, at a minimum, this case must be remanded

so that the district court can evaluate on a more detailed basis

the incidents that it dismissed collectively as “petty

workplace gripes.”

Of the remaining nine incidents, all of which the district

court did discuss in detail, two — a car-moving incident and

an involuntary transfer in April 2009 — are not raised on

appeal. A third incident, an inquiry about the possibility of

limiting Thomas’s release time, was correctly dismissed by

the district court as unsupported. But there were six others —

three involuntary transfers and three internal investigations —

that the district court properly referred to as “archetypal

adverse employment actions” but still dismissed. Four of

these six should have survived summary judgment.

6 THOMAS V. COUNTY OF RIVERSIDE

First Amendment retaliation cases are governed by Mt.

Healthy City School District Board of Education v. Doyle,

429 U.S. 274 (1977), which provides that, once a plaintiff

makes a showing that protected speech was a “substantial” or

“motivating” factor in the employer’s taking a non-trivial

adverse employment action, defendants can “escape liability

only by sustaining the burden of proving ‘by a preponderance

of the evidence that [they] would have reached the same

decision . . . even in the absence of the [plaintiff’s] protected

conduct.’ ” Allen v. Iranon, 283 F.3d 1070, 1074 (9th Cir.

2002) (quoting Mt. Healthy, 429 U.S. at 287).

Plaintiffs carried their burden of production sufficient to

survive summary judgment as to the three involuntary

transfers: the transfer from Dispatch Training Unit Supervisor

to Course Coordinator in February 2010, the transfer back to

Dispatch Floor Supervisor in November 2010, and the

transfer from graveyard to day shift in 2011. Although

defendants offered various non-retaliatory business

justifications for these transfers, Thomas adduced evidence

that these transfers came shortly after her acts of speech, that

her employer had expressed opposition to that speech, and

that the business justifications were pretextual. Any one of

these showings, let alone all three, is sufficient to survive

summary judgment if it presents a genuine factual dispute.

See Coszalter, 320 F.3d at 977.

The three internal affairs investigations are more mixed.

The first investigation was initiated by the serious accusations

against Thomas contained in Spargur’s resignation letter. But

the defendants establish beyond dispute that they would have

launched this investigation even absent Thomas’s union

activity. Spargur’s letter included grave accusations and

graphic details. She said that Thomas and other County

THOMAS V. COUNTY OF RIVERSIDE 7

employees fabricated negative performance reviews to push

Spargur out of her job, which caused her panic attacks, heart

problems, and even a miscarriage. And while the charges

against Thomas proved unfounded, not all Spargur’s claims

were baseless: charges were sustained against one of

Thomas’s co-workers. The second investigation was initiated

in response to an undisputed violation of department policy

(Thomas improperly accessing and removing files) and the

district court correctly found that there was no plausible

inference of retaliation here to create a triable issue of fact for

a jury.

The third internal investigation, by contrast, does present

a genuine factual dispute. Woods, Thomas’s supervisor who

initiated this investigation for “rude and discourteous” emails,

conceded that there was no word or phrase in the emails that

violated Department policy, but instead objected to the

underlying “tone” of the emails. This supposed justification

for the investigation was sufficiently thin and subjective that

a reasonable juror might, particularly in light of Thomas’s

other allegations, find that the supposed justification was in

fact pretextual.

Although urged by defendants to address qualified

immunity in the first instance on appeal because it was not

reached below, we decline to do so, in favor of the district

court doing so upon remand, for defendants Grotefend,

Schertell, Hall, and Woods. For defendants Gemende and

McArthur, however, we see no plausible allegation that these

individuals, who did not supervise or have authority over

Thomas, could have committed an adverse employment

action. Accordingly, the grant of summary judgment as to

Gemende and McArthur is affirmed, though the case will be

remanded as to all other defendants.

8 THOMAS V. COUNTY OF RIVERSIDE

In this regard, the district court also erred in determining

that the defendant County was not subject to Monell liability.

The district court recited the correct standard for determining

Monell liability, which is that it may attach when an

employee is acting pursuant to an expressly adopted official

policy, longstanding practice or custom, or as a final

policymaker. See Monell v. Dep’t of Soc. Servs, 436 U.S. 658,

694 (1978); see also Webb v. Sloan, 330 F.3d 1158, 1164 (9th

Cir. 2003). Plaintiffs relied on the third option, that there was

a delegation of final policymaking authority to the Sheriff’s

Department employees who allegedly retaliated against

Thomas.

The district court concluded that Thomas “presents no

evidence whatsoever in support of this allegation,” but in fact

Thomas did attach as the fourth exhibit to her February 6,

2012 declaration a copy of a Riverside County Policy

Number C-23 entitled “Disciplinary Process Policy” that

creates County-wide discipline policies but states on its

second page: “The Sheriff’s Department is exempt from this

policy, except that under no circumstances may the Sheriff’s

disciplinary policies be less strict than the County’s general

disciplinary policies.” Whether this policy constitutes a

delegation of policymaking authority to the Department such

that the actions of Sheriff Sniff (not himself an individual

defendant) or others below him could result in Monell

liability for the County is a factual determination that we do

not make. But since the order granting summary judgment

was premised on the erroneous belief that Thomas had

presented no evidence to support the possibility of Monell

liability under a final policymaker theory, it was in error. See,

e.g., Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 986 (9th

Cir. 2002) (reversing grant of summary judgment to

municipal defendant and remanding for consideration of

THOMAS V. COUNTY OF RIVERSIDE 9

whether there was a delegation of final policymaking

authority). Thus, this too will require re-evaluation on

remand.

Finally, defendants cross-appeal the lower court’s denial

of attorneys’ fees. In light of the foregoing, this cross-appeal

is now moot.1

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

1

It is unclear whether defendants are also cross-appealing the district

court’s determination that the labor union local had standing, but to the

extent that they are, the district court’s finding of standing is affirmed.