John Ellins v. City of Sierra Madre

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ELLINS, No. 11-55213

Plaintiff-Appellant,

D.C. No.

v. 2:09-cv-03971-

CBM-RZ

CITY OF SIERRA MADRE , A

Municipality; MARILYN DIAZ,

Individually and as Chief of Police, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted

May 8, 2012—Pasadena, California

Filed March 22, 2013

Before: Kim McLane Wardlaw, Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Wardlaw;

Concurrence by Judge Rawlinson

2 ELLINS V . CITY OF SIERRA MADRE

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in this 42 U.S.C.

§ 1983 action brought by a police officer who alleged that his

salary increase was delayed in retaliation for the exercise of

his First Amendment rights.

The panel held that: (1) plaintiff’s speech, which involved

leading a no-confidence vote of the police officers’ union

against the Chief of Police, involved a matter of public

concern; (2) a jury could reasonably conclude that plaintiff’s

union activities and related speech were undertaken in his

capacity as a private citizen; (3) the delay in plaintiff’s pay

increase constituted an adverse employment action; (4)

plaintiff’s speech was a substantial or motivating factor for

the delay; and (5) the Chief of Police was not entitled to

qualified immunity for causing the delay. The panel further

held that the City of Sierra Madre was not liable for the

allegedly retaliatory conduct under a Monell theory of

liability.

Concurring in the judgment, Judge Rawlinson agreed that

the case should be remanded. She declined to join the

majority’s discussion of whether plaintiff established a First

Amendment claim, and its conclusion that he spoke in his

*

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

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

ELLINS V . CITY OF SIERRA MADRE 3

capacity as a private citizen, stating that those issues should

be resolved on remand by the factfinder.

COUNSEL

Michael A. Morguess, and Carolina V. Diaz, Lackie,

Dammeier & McGill, APC, Upland, California, for Plaintiff-

Appellant.

Elizabeth M. Kessel and Scott E. Boyer, Kessel & Associates,

Los Angeles, California, for Defendants-Appellees.

OPINION

WARDLAW, Circuit Judge:

John Ellins, a police officer for the City of Sierra Madre,

led a no-confidence vote of the police officers’ union against

the Chief of Police, Marilyn Diaz. Diaz subsequently delayed

signing an application for a certification that, when issued,

would have entitled Ellins to a five percent salary increase.

Ellins brought suit under 42 U.S.C. § 1983 against Diaz and

the City of Sierra Madre (collectively, “Defendants”), alleging

that Diaz’s delay was unconstitutional retaliation for the

exercise of his First Amendment rights. The district court

granted summary judgment in favor of Defendants,

concluding that Ellins had failed to meet his burden under

Garcetti v. Ceballos, 547 U.S. 410 (2006), to show that he

undertook his act as a private citizen and not pursuant to his

official duties. We disagree, and further hold that Ellins has

established a prima facie case of First Amendment retaliation.

We thus reverse the grant of summary judgment in favor of

4 ELLINS V . CITY OF SIERRA MADRE

Diaz and remand for further proceedings. We affirm the

district court’s grant of summary judgment to the City of

Sierra Madre because Ellins did not adduce sufficient

evidence to defeat summary judgment on his Monell claim.

Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).

I.

Ellins served as President of the Sierra Madre Police

Association (SMPA) from late 2006 to January 2010.

According to the Memorandum of Understanding (MOU)

between the City and the SMPA, the SMPA is the recognized

employee’s organization for all classified employees of the

Sierra Madre Police Department except the Chief of Police

and the Lieutenant. The SMPA’s bylaws provide that “[t]he

President shall be the executive officer of the Association

and, subject to the control of the membership, shall have

general supervision, direction and control of the affairs of the

Association. He/She shall preside at meetings of its

members.”

Early in Ellins’s tenure as SMPA president, Chief Diaz

instituted “two-on-two” meetings with the SMPA, designed

to “facilitate open communication” and resolve issues

between the Department and the SMPA before they became

grievances or lawsuits. According to Diaz, Ellins occasionally

expressed disagreement with her decisions, but the tone of the

meetings was generally “very cordial.” At some point Ellins

stopped attending the two-on-twos. Thereafter, Diaz learned

of grievances and lawsuits filed by the SMPA against the

City, as well as two SMPA press releases critical of her

leadership. One of the press releases announced a vote of no

confidence taken against Diaz by the SMPA membership.

ELLINS V . CITY OF SIERRA MADRE 5

Ellins led the SMPA in the vote of no confidence in 2008.

According to Ellins, the union membership initiated the vote

because of Diaz’s “lack of leadership, wasting of citizens’ tax

dollars, hypocrisy, expensive paranoia, and damaging

inability to conduct her job.” SMPA conducted the vote by

secret ballot, and 100% of its membership voted. Ellins

testified that he led the vote because “as President [of the

SMPA], you would have to lead the vote of no confidence.”

The SMPA then issued the two press releases that Diaz read:

one about the vote, and another that criticized Diaz’s

management style. The press release about the vote listed

examples of Diaz’s purported incompetence and lack of

leadership, including allegations that she wasted taxpayers’

money, fell asleep at City Council and other meetings,

violated the MOU between the city and the SMPA, and

generally harassed her employees.

Diaz testified that when she learned of the SMPA “no

confidence” press release she felt “disappointment” and

“disbelief that this could have occurred.” After the second

SMPA press release issued, she felt “disappointed and

disheartened that the [SMPA] had chosen what I thought was

a counter-productive action.” She also testified that she was

“disappointed” in Ellins, as SMPA president, for what she

presumed was his involvement in the press releases. She

expressed this disappointment to her captain and to several

members of the police department.

6 ELLINS V . CITY OF SIERRA MADRE

At the time of the no-confidence vote, Ellins had been the

subject of three internal affairs investigations.1 In November

2006, he was investigated for associating with a convicted

narcotics offender and attempting to dissuade a sergeant from

issuing a parking ticket to the ex-convict. He received a 125-

hour suspension without pay for this incident, which he did

not serve. In August 2008, Ellins was investigated for not

citing or arresting a theft suspect in whose car Ellins had

found marijuana. In May 2008, he was investigated for

telling the City Finance Director that residents who did not

want to be evacuated during a serious wildfire near Sierra

Madre were “stupid” and “deserved to die.” Ellins received

a reprimand for this statement in December 2008. Finally, in

October 2008, Diaz initiated a criminal investigation by the

Los Angeles County District Attorney’s office into Ellins’s

alleged misconduct. She provided the District Attorney’s

office with information about Ellins’s alleged sales and use of

anabolic steroids, assault with his duty weapons, and other

matters “relating to sexual misconduct while on duty.” Diaz

says she received the information about the alleged

misconduct from “another Police Chief.” No charges resulted

from the District Attorney’s criminal investigation of Ellins’s

alleged misconduct.

1

In his opening brief, Ellins also contends that the three internal and one

criminal investigations of him were also retaliatory. However, the district

court held that because Ellins did not include this claim in the pretrial

order, Ellins failed to preserve it for trial. Ellins does not appeal this

ruling, and so has waived any argument to the contrary. See Greenwood

v. F.A.A., 28 F.3d 971, 977–78 (9th Cir. 1994). Upon remand, he may

seek leave of the district court to amend the pretrial order to include these

additional alleged retaliatory actions in his claim.

ELLINS V . CITY OF SIERRA MADRE 7

On February 29, 2009, Ellins submitted an application to

Diaz for an Advanced Peace Officer Standards and Training

(P.O.S.T.) certificate. The application for certification

required a signature from a “Department Head” or

“Authorized Designee.” In a paragraph above the signature

line, the application reads, “Recommendation to Award

Certificate: In my opinion, the applicant is of good moral

character and worthy of the award(s), based on personal

knowledge.” Under the MOU between the City and the

SMPA, Ellins would receive a five percent pay raise if he

received an Advanced P.O.S.T. certificate. While Ellins’s

P.O.S.T. application was pending before Diaz, Ellins served

his suspension for the August 2008 incident, from May 3 to

June 3, 2009.

Diaz testified that when Ellins submitted the application

to her, she did not immediately sign it because of her concern

that Ellins lacked the requisite good moral character. Diaz

consulted with seven other people regarding her decision

against signing Ellins’s P.O.S.T. application, all of whom

agreed with her decision.2 Diaz had not delayed signing any

of the four other P.O.S.T. applications from other officers that

she had previously signed. However, unlike Ellins, none of

the prior applicants had ever received discipline more severe

than a written warning.

2

According to Diaz’s deposition testimony, the individuals she

consulted included a “P.O.S.T. senior training consultant” for the State of

California, the former police chief of the Anaheim Police Department, a

current lieutenant in the Anaheim police, an expert in police ethics, and

Diaz’s “boss,” the city manager of Sierra Madre, Elaine Aguilar.

8 ELLINS V . CITY OF SIERRA MADRE

On June 3, 2009, with his application for a P.O.S.T.

certificate still unsigned, Ellins filed this lawsuit in the United

States District Court for the Central District of California

seeking damages and injunctive relief, based on alleged

retaliation for his exercise of individual civil rights, free

expression and association, and labor, social, and political

activities. Ellins contends that Diaz retaliated against him by

delaying the approval of the P.O.S.T. application out of anger

because of “[his] outspokenness, the vote of no confidence,

and [his] union activities.” He also alleged a Monell claim

against the City.

On September 14, 2010, Diaz and the City moved for

summary judgment. In support of the motion, Diaz declared

that she learned that the District Attorney would not file

criminal charges against Ellins in October 2009. Two months

later, although she had not received written confirmation of

this fact from the District Attorney’s office, on December 3,

2009, Diaz signed Ellins’s P.O.S.T. application “rather than

delay the process any longer.” Diaz also declared that

“because [Ellins] had commenced this litigation, it was hoped

that if he was given a retroactive pay raise to the date he filed

this lawsuit . . . he would forego [sic] this litigation.” The

P.O.S.T. Commission issued the certificate on December 7,

2009, and Ellins was given the five percent pay raise

retroactive to June 3, 2009, the date on which he both

returned from the 160-hour suspension and filed this lawsuit.

On January 5, 2011, the district court granted Defendants’

motion for summary judgment on the ground that Ellins had

not satisfied his burden of establishing a prima facie claim of

First Amendment retaliation. The district court further held

that Diaz, individually, was entitled to qualified immunity,

ELLINS V . CITY OF SIERRA MADRE 9

and that the City did not bear Monell liability. See Monell,

436 U.S. 658.

II.

We review a grant of summary judgment de novo.

Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 747

(9th Cir. 2010). We also review de novo the district court’s

decision to grant summary judgment on the basis of qualified

immunity. Davis v. City of Las Vegas, 478 F.3d 1048, 1053

(9th Cir. 2007). We must determine whether, viewing the

evidence in the light most favorable to Ellins, “there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law.” Delia v. City

of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010) (internal

quotation marks and citation omitted), rev’d on other

grounds, Filarsky v. Delia, 132 S. Ct. 1657 (2012).

III.

“The First Amendment shields a public employee if he

speaks as a citizen on a matter of public concern.” Anthoine,

605 F.3d at 748 (internal quotation marks omitted). However,

“when public employees make statements pursuant to their

official duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.”

Garcetti, 547 U.S. at 421.

We follow a sequential five-step inquiry to determine

whether an employer impermissibly retaliated against an

employee for engaging in protected speech. Eng v. Cooley,

552 F.3d 1062, 1070 (9th Cir. 2009). “First, the plaintiff

10 ELLINS V . CITY OF SIERRA MADRE

bears the burden of showing: (1) whether the plaintiff spoke

on a matter of public concern; (2) whether the plaintiff spoke

as a private citizen or public employee; and (3) whether the

plaintiff’s protected speech was a substantial or motivating

factor in the adverse employment action.” Robinson v. York,

566 F.3d 817, 822 (9th Cir. 2009) (internal quotation marks

and citation omitted). “Next, if the plaintiff has satisfied the

first three steps, the burden shifts to the government to show:

(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.” Id.

The district court granted summary judgment for Diaz on

the ground that Ellins had not satisfied his prima facie burden.

Specifically, the district court held that Ellins failed to

establish that (1) he spoke as a private citizen in leading the

no-confidence vote; (2) he suffered an adverse employment

action; and (3) his protected act was a substantial or

motivating factor in the alleged adverse employment action.

A.

Diaz first argues that Ellins cannot establish a First

Amendment retaliation claim because the no-confidence vote

did not involve a matter of public concern.3 “Speech involves

3

Diaz makes this argument for the first time on appeal. It was not raised

before the district court, either in the motion for summary judgment or at

the hearing, and the district court’s order accordingly does not address it.

“Absent exceptional circumstances, we generally will not consider

arguments raised for the first time on appeal, although we have the

discretion to do so.” Baccei v. United States, 632 F.3d 1140, 1149 (9th

ELLINS V . CITY OF SIERRA MADRE 11

a matter of public concern when it can fairly be considered to

relate to ‘any matter of political, social, or other concern to

the community.’” Johnson v. Multnomah Cnty., 48 F.3d 420,

422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138,

146 (1983)). Speech that deals with “individual personnel

disputes and grievances” that “would be of no relevance to the

public’s evaluation of the performance of governmental

agencies” generally is not of public concern. McKinley v.

City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). “Whether

an employee’s speech addresses a matter of public concern

must be determined by the content, form, and context of a

given statement, as revealed by the whole record.” Connick,

461 U.S. at 147-48 (1983).

Diaz’s public concern argument relies heavily on Connick,

in which the Supreme Court concluded that most of an office

questionnaire circulated by an assistant district attorney, who

had been transferred against her wishes, was not a matter of

public concern. The questionnaire concerned “office transfer

policy, office morale,” and “the level of confidence in

supervisors.” Id. at 141. The Court reasoned that these issues

were “mere extensions of Myers’ dispute over her transfer to

another section of the criminal court.” Id. at 148. Diaz

argues that Ellins himself characterizes the grievances

Cir. 2011). This discretion is normally limited to matters of pure law. In

re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992–93 (9th Cir.

2010). Here, we reach the issue because it is a matter of pure law, see

Eng, 552 F.3d at 1070, and it is closely linked to the “private citizen”

inquiry we must undertake to determine whether the second element of a

First Amendment retaliation claim has been satisfied. See Connick v.

Myers, 461 U.S. 138, 143 (1983) (noting the “repeated emphasis in

Pickering [v. Bd. of Educ., 391 U.S. 563 (1968)] on the right of a public

employee ‘as a citizen, in commenting upon matters of public concern’”).

12 ELLINS V . CITY OF SIERRA MADRE

motivating the no-confidence vote as matters involving the

MOU, scheduling dispatchers, searching officers’ lockers, and

other internal issues. Diaz contends that these matters are

mere “personnel grievances,” and that the vote and attendant

press releases were therefore an extension of the dispute

between the police officers and the department, rather than

speech about a matter of public concern. We disagree.

The record tends to belie Diaz’s characterization of the

reasons behind the no-confidence vote. Ellins stated in his

declaration that he led the vote “due to Chief Diaz’s lack of

leadership, wasting of citizens’ tax dollars, hypocrisy,

expensive paranoia, and damaging inability to conduct her

job.” Ellins echoed that contention in his deposition

testimony, asserting that the no-confidence vote stemmed

from “how upset members [of the union] were on how Chief

Diaz conducted herself as a Chief.”

Diaz also misconstrues the rationale behind Connick. The

dispositive fact in Connick was not that the vote resulted from

a personnel grievance, but rather that it resulted from an

individual personnel grievance. Our precedent instructs that

collective personnel grievances raised by unions may be

matters of public concern. See Lambert v. Richard, 59 F.3d

134, 136–37 (9th Cir. 1995) (holding that where library

employee told City Council that library was mismanaged and

that employees were “devoid of zest,” the speech was on a

matter of public concern because she “spoke as a union

representative, not as an individual, and . . . she described

departmental problems, not private grievances”).

That was also the upshot of our decision in McKinley,

which involved a union representative police officer who

ELLINS V . CITY OF SIERRA MADRE 13

discussed police salaries at a city council meeting and in a

television interview. 705 F.2d at 1112. We held that the

subject matter of his speech was a matter of public concern

because salaries—the subject of the classic personnel

grievance—affect the city’s ability to attract and retain

qualified police personnel, and “the competency of the police

force is surely a matter of great public concern.” Id. at 1114.

Because the officer in McKinley spoke as a union

representative and expressed the concerns of the police union

as a whole, the issue became a matter of public concern.

Other courts have made this point expressly. See Fuerst v.

Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (holding that

comments made by deputy sheriff as president of sheriffs’

union were “prima facie protected by the First Amendment as

a contribution to political debate”); see also Boddie v. City of

Columbus, 989 F.2d 745, 750 (5th Cir. 1993) (“[S]peech in

the context of union activity will seldom be personal; most

often it will be political speech.”).

Here, Ellins led a no-confidence vote about Diaz by the

police officers’ union. Diaz does not contend that any of the

grievances motivating the vote were individual as opposed to

collective. Instead, as in Lambert, the record suggests that the

police union’s concerns were with Diaz’s leadership style and

other department-wide problems, not private grievances. See

Lambert, 59 F.3d at 137. Further, as in McKinley, these

departmental problems were of inherent interest to the public

because they could affect the ability of the Sierra Madre

police force to attract and retain officers. See McKinley,

705 F.2d at 1114. Viewing the facts in the light most

favorable to Ellins, his speech in connection with the SMPA’s

no-confidence vote involved a matter of public concern.

Therefore, he introduced sufficient evidence to create a

14 ELLINS V . CITY OF SIERRA MADRE

genuine issue of material fact as to the first element of a First

Amendment retaliation claim.

B.

Ellins must also demonstrate that the speech in question

“was spoken in the capacity of a private citizen and not a

public employee.” Eng, 552 F.3d at 1071. The district court

determined that Ellins failed to present sufficient evidence to

establish that in leading the no-confidence vote he spoke as a

private citizen, rather than pursuant to his official duties as a

police officer. Ellins contends that the district court erred

because his official duties as a police officer did not require

him to serve as president of the union or to engage in union

activities, much less to lead votes of no-confidence. We

agree that, in light of the record evidence, a jury could find

that Ellins spoke in his capacity as a private citizen.

We have held that a public employee speaks as a private

citizen “if the speaker ‘had no official duty’ to make the

questioned statements, or if the speech was not the product of

‘performing the tasks the employee was paid to perform.’”

Id. (citation omitted). “While the question of the scope and

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

fact, the ultimate constitutional significance of the facts as

found is a question of law.” Id. (internal quotation marks and

citation omitted); see also Eng, 552 F.3d at 1071 (“the

question of the scope and content of a plaintiff's job

responsibilities is a question of fact”); Robinson v. York,

566 F.3d 817, 823 (9th Cir. 2009) (“The scope of Robinson's

job duties is a question of fact”); Posey v. Lake Pend Oreille

Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008)

(“Because the task of determining the scope of a plaintiff’s

ELLINS V . CITY OF SIERRA MADRE 15

job responsibilities is concrete and practical rather than

abstract and formal, we are confident that a factual

determination of a plaintiff’s job responsibilities will not

encroach upon the court’s prerogative to interpret and apply

the relevant legal rules.”).

The distinction drawn in our First Amendment

jurisprudence between private and official speech is rooted in

the Supreme Court’s decision in Garcetti v. Ceballos,

547 U.S. 410 (2006). There, a defense attorney asked a

deputy district attorney, Ceballos, to investigate a police

officer’s affidavit in support of a search warrant underlying a

prosecution. Such requests were not uncommon. Concluding

that the police officer’s affidavit contained serious

misrepresentations, Ceballos wrote a memorandum to his

supervisor recommending dismissal of the prosecution

because the evidence supporting it was the product of a

defective affidavit. Soon afterward, Ceballos was reassigned

from his calendar deputy position to a trial deputy position,

transferred to another courthouse, and denied a promotion.

Id. at 414. He filed a § 1983 action alleging retaliation for his

speech. The Court determined that in recommending

dismissal, Ceballos had simply fulfilled his professional

duties and therefore his speech was not protected from

retaliation by the First Amendment. The Court reasoned that

The controlling factor in Ceballos’ case is that

his expressions were made pursuant to his

duties as a calendar deputy. That

consideration— the fact that Ceballos spoke

as a prosecutor fulfilling a responsibility to

advise his supervisor about how best to

proceed with a pending case—distinguishes

16 ELLINS V . CITY OF SIERRA MADRE

Ceballos’ case from those in which the First

Amendment provides protection against

discipline. We hold that when public

employees make statements pursuant to their

official duties, the employees are not speaking

as citizens for First Amendment purposes, and

the Constitution does not insulate their

communications from employer discipline.

Id. at 421 (internal citation omitted). Ceballos’ retaliation

claim failed because he was not acting as a private citizen

when he went about his “daily professional activities”;

instead, “[w]hen he went to work and performed the tasks he

was paid to perform, Ceballos acted as a government

employee.” Id. at 422.

Ellins introduced evidence that he led the no-confidence

vote and issued the related press releases in his capacity as a

union representative.4 Ellins’s daily professional duties as a

police officer did not include acting as a union representative

or serving as the President of the SMPA. Therefore, the

district court erred when it concluded as a matter of law that

Ellins acted in his capacity as a public employee when he led

the no-confidence vote. There was sufficient evidence to

suggest that this was not a task he was paid to perform.

Therefore, a jury could reasonably conclude that Ellins’s

union activities and related speech were undertaken in his

capacity as a private citizen.

4

Ellins testified that the press releases were made public through the

SM PA’s legal representatives. In her deposition testimony, Diaz

acknowledged that she thought that Ellins was “behind” the press releases.

ELLINS V . CITY OF SIERRA MADRE 17

As the Seventh Circuit has recently held, comments made

by a police officer acting in his capacity as a union

representative are spoken as a private citizen, rather than

pursuant to the officer’s official duties. Fuerst v. Clarke,

454 F.3d 770 (7th Cir. 2006). In Fuerst, the plaintiff, a

deputy sheriff who also served as the president of the

Milwaukee County deputy sheriffs’ union, publicly criticized

the county sheriff’s proposal to hire a civilian to fill a position

traditionally occupied by a deputy sheriff. Id. at 772. In

determining whether the sheriff was justified in retaliating

against Fuerst, the Seventh Circuit dismissed the notion that

Fuerst spoke as a public employee under Garcetti when he

criticized the proposal:

Because Fuerst’s comments that precipitated

the adverse action taken against him were

made in his capacity as a union representative,

rather than in the course of his employment as

a deputy sheriff—his duties as deputy sheriff

did not include commenting on the sheriff’s

decision to hire a public-relations officer—the

Supreme Court’s recent decision in Garcetti v.

Ceballos is inapposite.

Id. at 774 (citation omitted); see also Baumann v. District of

Columbia, 744 F. Supp. 2d 216, 224 (D.D.C. 2010) (holding

that police officer’s criticism of his department’s handling of

a sniper incident was protected speech because the officer

spoke in his capacity as police union president); Hawkins v.

Boone, 786 F. Supp. 2d. 328, 335 (D.D.C. 2011) (holding that

detective’s statements critical of a departmental staffing

initiative were protected by the First Amendment because the

detective spoke as a police union representative).

18 ELLINS V . CITY OF SIERRA MADRE

Given the inherent institutional conflict of interest

between an employer and its employees’ union, we conclude

that a police officer does not act in furtherance of his public

duties when speaking as a representative of the police union.

We thus hold that a reasonable jury could find that Ellins’s

speech, made as a representative and president of the police

union, was made in his capacity as a private citizen.

C.

The district court also determined that Ellins failed to

establish that he suffered an “adverse employment action.”

Ellins argued that the failure to award him the five percent

salary increase during the period from the date he submitted

his P.O.S.T. application, February 26, 2009, to the date he

began to serve his May 2009 suspension constituted an

adverse employment action. The district court rejected this

argument, reasoning that Ellins did not demonstrate that he

was entitled to the pay increase during that period because

while the MOU provided for a five percent pay raise, it “[did]

not state when the pay raise becomes effective.”

We have specifically concluded that “an adverse

employment action exists where an employer’s action

negatively affects its employee’s compensation.” Fonseca v.

Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.

2004); see also Hollister v. Tuttle, 210 F.3d 1033, 1034–35

(9th Cir. 2000) (holding that alleged discrimination in merit

pay increases and salary raises against tenured professor

alleging retaliation for his protected speech would “constitute

denials of governmental benefits redressable by § 1983”);

Manhattan Beach Police Officers Ass’n, Inc. v. City of

Manhattan Beach, 881 F.2d 816, 819 (9th Cir. 1989) (noting

ELLINS V . CITY OF SIERRA MADRE 19

that a public employer cannot withhold an economic benefit

“such as a higher salary” in retaliation for activities protected

by the First Amendment). Even the denial of a minor

financial benefit may form the basis of a First Amendment

claim. See Elrod v. Burns, 427 U.S. 347, 359 n.13 (1976)

(holding that First Amendment rights are infringed “both

where the government fines a person a penny . . . and where

it withholds the grant of a penny” to punish or suppress

protected activities).

In addressing a First Amendment retaliation claim, we

also examine whether “the actions taken by the defendants

were reasonably likely to deter [the public employee] from

engaging in protected activity under the First Amendment.”

Anthoine, 605 F.3d at 750 (quoting Coszalter v. City of Salem,

320 F.3d 968, 976 (9th Cir. 2003)). The government’s act of

retaliation “need not be severe and it need not be of a certain

kind.” Coszalter, 320 F.3d at 975. Indeed,

The precise nature of the retaliation is not

critical to the inquiry in First Amendment

retaliation cases. The goal is to prevent, or

redress, actions by a government employer

that chill the exercise of protected First

Amendment rights . . . . Depending on the

circumstances, even minor acts of retaliation

can infringe on an employee’s First

Amendment rights.

Id. (internal quotation marks and citation omitted). Thus we

must determine, in light of the record evidence, whether a jury

could reasonably find that Diaz’s withholding of approval of

the P.O.S.T. application, which delayed and denied Ellins a

20 ELLINS V . CITY OF SIERRA MADRE

portion of his pay increase, was designed to retaliate against

and chill Ellins’s political expression.

Ellins submitted his P.O.S.T. application on February 26,

2009. MOU Article 23 provides that “[a]ny officer who has

an Advanced P.O.S.T. Certificate shall receive an additional

5% pay over said officer’s base salary.” Diaz admits that

although she knew that Ellins had generally satisfied the

requirements necessary to receive the Advanced P.O.S.T.

certificate, she deliberately delayed signing Ellins’s P.O.S.T.

application until December 2009. Diaz also admits that she

backdated his pay increase in an attempt to convince Ellins to

drop this lawsuit, but only to June 2009, the date he returned

from his suspension.5

Construing these facts in the light most favorable to

Ellins, a reasonable finder of fact could conclude that Diaz’s

failure to sign his P.O.S.T. application deprived Ellins of a

pay raise from the date he was entitled to the pay raise to the

date to which Diaz chose to backdate her approval. The

record indicates that Ellins’s pay raise would have taken

effect in late February or early March had Diaz not delayed in

signing his P.O.S.T. application. Diaz declares that the five

percent pay increase normally takes effect on the date the

Commission on Peace Officer Standards and Training issues

a P.O.S.T. certificate. While the record does not specify how

5

Diaz’s testimony also indicates that she personally imposed Ellins’s

160-hour suspension without pay. Although Ellins’s misconduct occurred

in July 2008 and an internal affairs investigation began in August 2008,

the suspension took effect on May 7, 2009, after Diaz became aware of the

no-confidence vote. If any part of this sanction is attributable to Diaz’s

alleged retaliatory motives, Ellins’s economic loss from the delayed

P.O.S.T. certification would be even greater.

ELLINS V . CITY OF SIERRA MADRE 21

long this process normally takes, we can infer that the

certificate would have been issued within days after Ellins

submitted his application to Diaz on February 26, 2009. In

fact, as Diaz acknowledges, the Commission issued Ellins’s

certificate only four days after Diaz eventually signed it. It is

a fair inference that Ellins would have received the pay

increase to which the P.O.S.T. certificate entitled him within

a similar four-day period. Therefore, a jury could find that

Ellins was deprived of the five percent pay raise from roughly

March 2 to June 3, 2009, when he returned from serving his

suspension.

Had Ellins not sued, he likely would have been deprived

of the five percent raise for a longer period, from late

February 2009 to December 2009. Diaz admits that Ellins

was only given the retroactive pay raise with the hope that he

would “forego [sic] this litigation.” However, we do not

focus on the “ultimate effects” of each employment action,

but on the “deterrent effects.” Ray v. Henderson, 217 F.3d

1234, 1243 (9th Cir. 2000) (adopting the EEOC standard for

identifying adverse employment actions). That Ellins had to

threaten and then actually file suit to even partially recover

the pay increase is more than sufficient to demonstrate the

deterrent effect on protected speech Diaz’s delay in signing

Ellins’s P.O.S.T. application worked. Such deprivation of

salary is reasonably likely to deter employees from engaging

in protected activity and is sufficient to constitute an adverse

employment action. See Manhattan Beach, 881 F.2d at 819;

Fonseca, 374 F.3d at 847 (holding that improper assignment

of overtime opportunities and pay constitutes adverse

employment action for purposes of § 1983). Therefore, Ellins

introduced sufficient evidence of an adverse employment

action to defeat a grant of summary judgment.

22 ELLINS V . CITY OF SIERRA MADRE

D.

The district court also erred in concluding that Ellins

failed to produce evidence that his speech and the adverse

employment action were sufficiently related such that the

speech was a substantial or motivating factor in Diaz’s

decision against signing the P.O.S.T. application. Although

Diaz was aware of three pending investigations of Ellins that

she claimed justified the delay, Ellins adduced sufficient

evidence to raise a genuine dispute of material fact on this

question.

To establish that retaliation was a substantial or

motivating factor behind an adverse employment action, a

plaintiff may introduce evidence that (1) the speech and

adverse action were proximate in time, such that a jury could

infer that the action took place in retaliation for the speech;

(2) the employer expressed opposition to the speech, either to

the speaker or to others; or (3) the proffered explanations for

the adverse action were false and pretextual. Coszalter,

320 F.3d at 977. Ellins brought forth sufficient evidence of

both temporal proximity and Diaz’s opposition to his speech

to preclude summary judgment on the issue of “substantial or

motivating factor.”

Ellins provided evidence of a relatively close temporal

link between his protected speech and the adverse

employment action. He led the no-confidence vote in October

2008, and according to Diaz, press releases regarding the vote

issued in October and November 2008. Ellins submitted his

P.O.S.T. application on February 26, 2009. Diaz testified that

she initially decided not to sign the application in February

2009. The alleged retaliatory act thus occurred between four

ELLINS V . CITY OF SIERRA MADRE 23

and five months after the no-confidence vote, and between

three and four months after the press releases issued. We

established in Coszalter that “a specified time period cannot

be a mechanically applied criterion” for an inference of

retaliation; instead, “[w]hether an adverse employment action

is intended to be retaliatory is a question of fact that must be

decided in the light of the timing and the surrounding

circumstances.” 320 F.3d at 978. Nevertheless, we also held

that “[d]epending on the circumstances, three to eight months

is easily within a time range that can support an inference of

retaliation.” Coszalter, 320 F.3d at 977. The four-to-five

month period between Ellins’s protected speech and Diaz’s

refusal to sign his P.O.S.T. application falls easily within the

range that we concluded supports an inference of retaliation

in Coszalter.

Ellins also introduced sufficient evidence to withstand

summary judgment as to Diaz’s opposition to his protected

speech. In Ulrich v. City and County of San Francisco,

308 F.3d 968 (9th Cir. 2002), we held that expressions of

opposition similar to those made by Diaz are sufficient to

establish that the protected speech was a substantial

motivating factor for an adverse employment action. Ulrich,

a physician who was under investigation for professional

incompetence, protested the city’s decision to lay off a class

of physicians at a hospital and publicly displayed his

resignation letter. Id. at 972, 980. After an administrator saw

the letter, she reported it to other administrators because she

was “concerned” that the letter was “potentially negative” and

may have been “widely disseminated.” Id. at 980. When

Ulrich realized that his resignation triggered a reporting

requirement because the investigation was pending, he

attempted to rescind his resignation so that he could be

24 ELLINS V . CITY OF SIERRA MADRE

reinstated. Id. at 973. The hospital refused to accept Ulrich’s

rescission attempt. Id. We held that even though the

administrator had neither warned Ulrich nor told others he

should be fired, the evidence of the administrator’s opposition

was sufficient, given other evidence of timing and pretext, to

support a jury finding of retaliatory motive in the hospital’s

refusal to reinstate Ulrich. Id. at 981.

Just as the administrator in Ulrich expressed “concern” to

others regarding the resignation letter, Diaz admits that she

expressed “disappointment” and “dismay” to others in the

wake of the no-confidence vote and press releases. She

expressed this disappointment to her captain, telling him that

she thought the press release was “unfortunate” and that she

wished they could have “resolved these issues by continuing

to meet in person” because the no-confidence vote and press

releases suggested that the SMPA “had chosen to go way

beyond any good-faith effort to try to resolve differences.”

Diaz also “spoke briefly” to others in the department about

her feeling “disappointed and disheartened that the [SMPA]

had chosen what [she] thought was a counter-productive

action.” The similarity between Diaz’s expressed sentiments

and those at issue in Ulrich suggests that Ellins has, at the

very least, raised a genuine dispute of material fact as to

whether Diaz opposed the no-confidence vote and related

press releases.

We have held that evidence of one of the three Coszalter

factors may be sufficient to allow a plaintiff to prevail in a

public employee retaliatory speech claim. See, e.g., Marable

v. Nitchman, 511 F.3d 924, 930 (9th Cir. 2007) (allowing a

close temporal connection to establish substantial motive

even though defendants claimed no knowledge of the

ELLINS V . CITY OF SIERRA MADRE 25

employee’s protected speech and asserted independent

reasons for disciplining the employee). That Ellins has not

demonstrated pretext or falsity at this stage, where the district

court ruled that Ellins has not made out a prima facie case, is

not fatal to his claim.

E.

Diaz argues that even if Ellins established his prima facie

case of First Amendment retaliation, summary judgment in

her favor can be upheld because she had an “adequate

justification” for not signing Ellins’s P.O.S.T. application,

given Ellins’s disciplinary record, especially the pending

criminal investigation by the L.A. District Attorney that she

had initiated. Moreover, she argues that these factors

demonstrate that she would not have signed Ellins’s P.O.S.T.

application irrespective of the no-confidence vote and press

releases. Whether Diaz would have withheld her signature in

the absence of the no-confidence vote and the press releases,

and whether she had an adequate justification for doing so,

are entirely questions of fact. Eng, 552 F.3d at 1072; see also

Mabey v. Reagan, 537 F.2d 1036, 1045 (9th Cir. 1976)

(“[T]he only way to erect adequate barriers around First

Amendment freedoms is for the trier of fact to delve into the

motives of the decisionmaker.”).

In Mabey, we opined that when “questions of motive

predominate in the inquiry about how big a role the protected

behavior played in the decision, summary judgment will

usually not be appropriate.” 537 F.2d at 1045. Although

Diaz’s reliance on the impending investigations supports her

argument that she would have refused to sign the P.O.S.T.

application notwithstanding Ellins’s purported protected

26 ELLINS V . CITY OF SIERRA MADRE

speech, Diaz also admitted that she had approved the P.O.S.T.

applications of four other officers who had undergone internal

investigations. The record before us is not undisputed; Diaz

herself provides evidence that could support either finding.

IV.

Nor is Diaz entitled to qualified immunity under the

circumstances presented here. The district court held that

even assuming a First Amendment violation, Defendants had

“no indication” that Diaz’s conduct was unlawful. The

district court reasoned that there was no case law that

specifically held “that a police officer suffers a First

Amendment violation when a certifying officer delays

approval of an application that requires a certification of the

applicant’s good moral character.” However, the district

court framed the inquiry much too narrowly. The question is

not whether an earlier case mirrors the specific facts here.

Rather, the relevant question is whether “the state of the law

at the time gives officials fair warning that their conduct is

unconstitutional.” Bull v. City & Cnty. of San Francisco,

595 F.3d 964, 1003 (9th Cir. 2010) (en banc) (“[T]he specific

facts of previous cases need not be materially or

fundamentally similar to the situation in question.”) (citing

Hope v. Pelzer, 536 U.S. 730, 742 (2002)); White v. Lee,

227 F.3d 1214, 1238 (9th Cir. 2000) (“Closely analogous

preexisting case law is not required to show that a right was

clearly established.”); see also Schwenk v. Hartford, 204 F.3d

1187, 1198 (9th Cir. 2000); Mendoza v. Block, 27 F.3d 1357,

1361 (9th Cir. 1994); Alexander v. Perrill, 916 F.2d 1392,

1397–98 (9th Cir. 1990). Viewing Diaz’s actions in the light

most favorable to Ellins, we conclude that she acted

unreasonably in light of clearly established law.

ELLINS V . CITY OF SIERRA MADRE 27

To determine whether a government official is entitled to

qualified immunity, we ask two questions: whether the

official violated a statutory or constitutional right, and

whether that right was clearly established at the time of the

challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). We may address these questions in any order.

Pearson v. Callahan, 555 U.S. 223, 236 (2009). We first

address whether Ellins alleges a violation of a right that was

clearly established when Diaz acted in 2009.

For purposes of qualified immunity, we resolve all factual

disputes in favor of the party asserting the injury. Saucier v.

Katz, 533 U.S. 194, 201 (2001), overruled on other grounds

by Pearson, 555 U.S. at 236. In light of the above discussion,

we can reasonably assume both that Ellins’s protected speech

was a substantial or motivating factor in Diaz’s decision, and

that Diaz would not have delayed signing Ellins’s P.O.S.T.

application in the absence of his protected speech. Ellins’s

First Amendment right to be free from retaliation for

engaging in protected speech was clearly established in 2009

when Diaz allegedly delayed the signing of his P.O.S.T.

application. Forty years previously, in 1968, the Supreme

Court established that public employees have a First

Amendment right to be free from retaliation for commenting

on matters of public concern, even when the protected

comments are critical of their employers. Pickering,

391 U.S. at 571 (holding that a teacher could not be dismissed

for criticizing school board’s budget management, even

though the criticism included false allegations against board

members, because the speech addressed a matter of public

concern and the speech did not prevent the school district’s

efficient functioning). In Connick, decided in 1983, the

28 ELLINS V . CITY OF SIERRA MADRE

Supreme Court reaffirmed this right. Although the Court

found that the plaintiff’s speech dealt only with private

employee concerns, the Court stressed that speech on matters

of public concern occupies the “highest rung of the heirarchy

[sic] of First Amendment values, and is entitled to special

protection.” Connick, 461 U.S. at 145 (quoting NAACP v.

Claiborne Hardware, 458 U.S. 886 (1982)). In Coszalter, we

concluded that city officials, who were sued by former city

employees for alleged First Amendment retaliation, were not

entitled to qualified immunity because “both the

constitutional protection of employee speech and a First

Amendment cause of action for retaliation against protected

speech were clearly established” at least as of 1989. 320 F.3d

at 979 (relying on Pickering, 391 U.S. at 571; Allen v.

Scribner, 812 F.2d 426 (9th Cir. 1987); Anderson v. Central

Point Sch. Dist., 746 F.2d 505 (9th Cir. 1984); and Thomas v.

Carpenter, 881 F.2d 828 (9th Cir. 1989) for the proposition

that the law was clearly established).

When Diaz acted in 2009, it was also clearly established

under both Supreme Court and Ninth Circuit precedent that

“the type of sanction . . . ‘need not be particularly great in

order to find that rights have been violated.’” Hyland v.

Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992) (quoting Elrod

v. Burns, 427 U.S. 347, 359 n.13 (1976)). It was also clearly

established that deprivation of an employee’s salary is

unconstitutional if levied in retaliation for protected speech.

See Manhattan Beach, 881 F.2d at 818–19 (9th Cir. 1989)

(holding that salary is unconstitutionally withheld if on the

basis of protected activities). That we have not decided a case

in which the retaliation took the specific form of decreased

pay due to a delayed P.O.S.T. certification is irrelevant.

ELLINS V . CITY OF SIERRA MADRE 29

Finally, when Diaz acted it was clearly established that a

police union representative’s speech is entitled to First

Amendment protection. In McKinley, we held that a police

officer who spoke as a union representative engaged in

protected speech. 705 F.2d at 1114–15 (applying the standard

set forth in Pickering, 391 U.S. 563, and Connick, 461 U.S.

138, and holding that matters relating to “the competency of

the police force” are surely of “great public concern”); see

also Fuerst, 454 F.3d at 774; Nagle v. Vill. of Calumet Park,

554 F.3d 1106, 1123 (7th Cir. 2009). In Fuerst, another First

Amendment retaliation case, the Seventh Circuit

distinguished between speech made by a sheriff under his

“union president’s hat” and speech that could legitimately

form the basis for denying the sheriff a promotion. 454 F.3d

at 775. Ellins’s expressive act of leading a union vote

followed by related press releases was unmistakably

performed under his “union president hat,” and thus

constituted protected speech.

It is true that if Diaz “could . . . have reasonably but

mistakenly believed that . . . her conduct did not violate a

clearly established constitutional right, [s]he is entitled to

qualified immunity.” Hunt v. Cnty of Orange, 672 F.3d 606,

615–16 (9th Cir. 2012) (internal quotation marks and citation

omitted). However, in light of the Supreme Court’s

longstanding and unequivocal precedents protecting employee

speech, we conclude that a reasonable official in Diaz’s

position would have known that delaying Ellins’s application

to the P.O.S.T. program because of his union activity, which

resulted in a lower salary than that to which he otherwise

would have been entitled, violated Ellins’s First Amendment

rights; that in leading a union vote Ellins acted as a private

citizen addressing a matter of public concern; and that

30 ELLINS V . CITY OF SIERRA MADRE

depriving Ellins of salary in retaliation for his protected

speech was unconstitutional.

V.

The district court correctly held that the City of Sierra

Madre is not liable for Diaz’s allegedly retaliatory conduct

under a Monell theory of liability. Monell., 436 U.S. 658

(1978). Under Monell, municipalities are subject to damages

under § 1983 in three situations: when the plaintiff was

injured pursuant to an expressly adopted official policy, a

long-standing practice or custom, or the decision of a “final

policymaker.” Delia v. City of Rialto, 621 F.3d 1069,

1081–82 (9th Cir. 2010). The district court properly

concluded that Ellins did not adduce sufficient evidence of an

official policy or custom of retaliatory delay. The city could

be liable on a Monell theory only if Diaz was a final

policymaker or if the city’s final policymaker ratified Diaz’s

alleged retaliation. We conclude that city manager Elaine

Aguilar, not Diaz, was the city’s final policymaker. Because

Ellins does not allege that Aguilar knew of Diaz’s alleged

retaliatory motive for delaying signature of Ellins’s P.O.S.T.

application, the City is not liable for Ellins’s injury.

Whether an official is a policymaker for Monell purposes

is a question governed by state law. City of St. Louis v.

Praprotnik, 485 U.S. 112, 124 (1988). California state law

permits municipalities to enact regulations creating a “city

manager” form of governance. Gov. Code § 34851. The City

of Sierra Madre has enacted such regulations. See Sierra

Madre Mun. Code § 2.08.010 (2000). The City has delegated

to the city manager the “authority to control, order, and give

directions to all heads of departments and to subordinate

ELLINS V . CITY OF SIERRA MADRE 31

officers and employees of the city . . . .” Sierra Madre Mun.

Code § 2.08.070(B) (2000). More specifically, it is the city

manager’s duty to “appoint, discipline, remove, promote, and

demote any and all officers and employees of the city except

the city clerk, city treasurer, or city attorney . . . .” Sierra

Madre Mun. Code § 2.08.070(C) (2000). The Sierra Madre

Personnel Rules and Regulations further reinforce these

provisions by expressly charging the city manager with

administering the City’s personnel rules. These local

ordinances and regulations establish that city manager Elaine

Aguilar, not Diaz, possesses final policymaking authority over

police employment decisions.

Although it is undisputed that Aguilar approved Diaz’s

decision to delay signing Ellins’s P.O.S.T. application, Ellins

does not allege that Aguilar knew that the decision was in

retaliation for protected speech or that she ratified the

decision despite such knowledge. See Christie v. Iopa,

176 F.3d 1231 (9th Cir. 1999) (plaintiff must adduce evidence

that the final policymaker approved both a subordinate’s

decision and the improper basis for that decision to survive

summary judgment on a ratification theory). Ellins has thus

failed to raise a genuine issue of material fact regarding

whether his alleged injury is attributable to the City of Sierra

Madre’s policymaker.

VI.

We affirm the district court’s grant of summary judgment

to the City of Sierra Madre because the City is not liable

under Monell for Diaz’s actions. However, we reverse the

district court’s grant of summary judgment to Diaz and

32 ELLINS V . CITY OF SIERRA MADRE

remand because genuine issues of material fact exist on the

elements of Ellins’s First Amendment retaliation claim.

AFFIRMED in part; REVERSED in part;

REMANDED for proceedings consistent with this

opinion. Each party shall bear its own costs.

Rawlinson, Circuit Judge, concurring in the judgment:

I concur in the judgment reversing the district court’s

entry of summary judgment in favor of defendant Marilyn

Diaz. I also agree that entry of summary judgment in favor of

the City of Sierra Madre was warranted due to the lack of

material issues of fact regarding a city policy that resulted in

the alleged constitutional violations. I write separately to

clarify that this case was decided on summary judgment and

no definitive rulings on the factual issues should have been

made by the district court or should be made by us. On

summary judgment review, we determine whether material

issues of fact were raised by the party opposing summary

judgment after reviewing the evidence in the light most

favorable to that opposing party. See Fairbank v. Wunderman

Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). Resolution

of those factual issues is reserved for trial before a factfinder.

For that reason, we should limit our discussion to whether

Ellins raised material issues of fact, thereby rendering entry of

summary judgment inappropriate.

At the summary judgment stage, the non-moving party

need only raise a material issue of fact rather than carrying the

ultimate burden of persuasion. See id. As the district court

ELLINS V . CITY OF SIERRA MADRE 33

acknowledged, whether Ellins suffered an adverse

employment action was “purely a question of fact.” District

Court Opinion, p. 6 (citation omitted). The Memorandum of

Understanding between the City and the bargaining unit for

the officers provided for a 5 percent pay increase if an officer

obtained an Advanced POST Certificate. This circumstance

raised a material question of fact regarding whether Chief

Diaz’s failure to sign Ellins’s application for an Advanced

POST (Peace Officer Standards and Training) certificate

resulted in a loss of pay, thereby precluding summary

judgment. See Fairbank, 212 F.3d at 531. Similarly, there

was disputed evidence in the record regarding whether Chief

Diaz was motivated by Ellins’s criticism of her performance.

Construing the evidence presented by Ellins in the light most

favorable to him, i.e., that Chief Diaz had never previously

refused to sign a similar application, also raised a material

issue of fact.

Having determined that material issues of fact remain for

trial, I would go no further. More specifically, I decline to

join the majority’s discussion of whether Ellins established a

First Amendment retaliation claim, and its conclusion that

Ellins spoke in his capacity as a private citizen rather than as

a public employee. See Majority Opinion, p. 16. In my view,

this is not a determination that should be made at this stage of

the proceedings. Because the record is void regarding

whether the activities Ellins undertook as union president

were within the realm of his official duties, the determination

regarding whether his activities were undertaken as a private

citizen is more appropriately made by the factfinder.

The majority relies primarily upon the Seventh Circuit’s

decision in Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir.

34 ELLINS V . CITY OF SIERRA MADRE

2006), where the court held, without any analysis, that the

employee’s speech as a union representative was not made as

a public employee.1 The two district court cases from district

courts in D.C., Baumann v. District of Columbia, 744 F.

Supp. 2d 216, 224 (D.D.C. 2010), and Hawkins v. Boone

786 F. Supp. 2d 328, 335 (D.D.C. 2011) simply parroted the

Seventh Circuit’s ruling in Fuerst, again without any analysis.

I am not confident that reliance on these cases supports

concluding as a matter of law that Ellins was speaking as a

private citizen when he criticized Chief Diaz.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United

States Supreme Court discussed how we are to determine

whether a public employee should be treated as a private

citizen in the First Amendment context. First, we must

determine whether the employee “spoke as a citizen on a

matter of public concern. . . .” Id. at 418 (citation omitted).

If the employee spoke as a private citizen as opposed to

within the “course of performing [his] official duties,” the

employee “retain[s] some possibility of First Amendment

protection . . .” Id. at 423.

There is no doubt in this Circuit that whether an employee

speaks as a private citizen is a question of fact rather than an

issue of law. See Eng v. Cooley, 552 F.3d 1062, 1071 (9th

Cir. 2009) (“The question of the scope and content of a

plaintiff’s job responsibilities is a question of fact . . .”)

1

The Seventh Circuit referenced its Fuerst decision in Nagle v. Village

of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009), but again made the

public-employee-private-citizen determination without undertaking an in-

depth analysis of the issue.

ELLINS V . CITY OF SIERRA MADRE 35

(citation omitted); see also Karl v. City of Mount Terrace,

678 F.3d 1062, 1071 (9th Cir. 2012) (same).

The record in this case is devoid of any description of

Ellins’s job duties. Cf. id. (discussing the plaintiff’s

testimony regarding the scope of her job duties). For all we

know, Ellins’s job duties could encompass his union

responsibilities. See, e.g., People v. Creath, 31 Cal. App. 4th

312, 315 (1995) (noting that officers and directors of the

firefighters union received compensation to perform union

duties).

In sum, I agree with the majority that this case should be

remanded. However, upon remand all questions of fact,

including whether Ellins spoke as a public employee or as a

private citizen, should be resolved by the factfinder. For that

reason, I concur only in the judgment affirming in part,

reversing in part and remanding for further proceedings.