Ledford v. Idaho Department of Juvenile Corrections

FILED

NOT FOR PUBLICATION

AUG 09 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RHONDA LEDFORD; RAYMOND No. 14-35185

GREGSTON; JO McKINNEY; SHANE

PENROD; KIM McCORMICK; BOB D.C. No. 1:12 cv-0326 BLW

ROBINSON; GRACIE REYNA; TOM

DE KNIJF; FRANK FARNWORTH;

DIANA CARNELL; PHILIP MEMORANDUM*

GREGSTON; LISA LITTLEFIELD;

ADDISON FORDHAM,

Plaintiffs-Appellees,

v.

IDAHO DEPARTMENT OF JUVENILE

CORRECTIONS, an executive department

of the State of Idaho,

Defendant,

and

SHARON HARRIGFELD, IDJC Director;

BETTY GRIMM, IDJC Juvenile

Corrections Center - Nampa

Superintendent,

Defendants-Appellants.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted July 5, 2016

Seattle, Washington

Before: KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges.

Sharon Harrigfeld, Director of the Idaho Department of Juvenile Corrections

(“IDJC”), and former IDJC Superintendent Betty Grimm (together, “Defendants”)

appeal the district court’s denial of summary judgment based on qualified

immunity. We have jurisdiction under 28 U.S.C. § 1291. An official is entitled to

qualified immunity if her “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (citation omitted). We review a denial of

qualified immunity de novo, Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir.

2010), and we reverse.

The ten plaintiffs, current and former IDJC employees, allege that

Defendants retaliated against them for reporting corrupt practices at the IDJC, in

violation of the First Amendment. In determining whether a public employer

violated the First Amendment rights of an employee, courts must “seek ‘a balance

between the interests of the [employee], as a citizen, in commenting upon matters

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of public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.’” Dahlia v.

Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc) (quoting Pickering v.

Bd. of Educ., 391 U.S. 563, 568 (1968)). In applying this balancing test, we make

a five-step inquiry:

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

(2) whether the plaintiff spoke as a private citizen or public employee;

(3) whether the plaintiff’s protected speech was a substantial or

motivating factor in the adverse employment action;

(4) whether the state had an adequate justification for treating the employee

differently from other members of the general public; and

(5) whether the state would have taken the adverse employment action even

absent the protected speech.

Id. (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). The public-

employee-plaintiff must satisfy all five factors in order to state a valid First

Amendment claim. Id. at 1067 n.4.

1. Defendants are entitled to qualified immunity on Plaintiffs Shane

Penrod, Gracie Reyna, Addison Fordham, Lisa Littlefield, and Kim McCormick’s

First Amendment retaliation claims because none of these five Plaintiffs spoke on a

matter of public concern as a private citizen. Penrod, Reyna, Fordham, and

Littlefield are rehabilitation and security officers who work closely with the

juvenile detainees at IDJC and are responsible for ensuring the safety and security

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of both juveniles and fellow staff. Their safety-related speech, raised only

internally, fell within the scope of their job duties and is not protected by the First

Amendment. See Hagen v. City of Eugene, 736 F.3d 1251, 1258-59 (9th Cir.

2013) (holding that police officer who vocalized safety concerns about accidental

discharges of firearms spoke pursuant to his job duties as a public employee).

Likewise, McCormick’s internal speech relating to payroll complaints and IDJC’s

expenses is “inextricably intertwined” with her duties as a financial technician and

cannot form the basis of a First Amendment violation. Id. at 1259. Finally,

Fordham and Littlefield’s complaints about the promotion process of a supervisor

flowed from “individual personnel disputes and grievances” and thus did not

constitute protected speech on a matter of public concern. Desrochers v. City of

San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (citations omitted).

2. Defendants are also entitled to qualified immunity on Plaintiffs

Rhonda Ledford, Ray Gregston, Tom DeKnijf, Jo McKinney, and Frank

Farnworth’s First Amendment retaliation claims. None of these Plaintiffs

experienced retaliation by Defendants as a result of their speech. To prevail on a

First Amendment claim, a plaintiff must establish that the employer took “action

designed to retaliate against and chill political expression,” Coszalter v. City of

Salem, 320 F.3d 968, 975 (9th Cir. 2003) (internal quotation marks omitted),

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without “adequate justification for treating the employee differently,” Eng, 552

F.3d at 1070.

None of Defendants’ actions against Ledford constitutes an adverse

employment action in violation of the First Amendment. The “expectation” that

Ledford raise her personnel and work-related concerns with her supervisors,

Defendants, or Human Resources cannot reasonably been seen as “chilling”

Ledford’s protected speech; it merely directed Ledford to voice her concerns to

management, instead of to her co-workers. Moreover, given the hierarchical

employment setting of a juvenile correctional facility, such instruction was

adequately justified. See Connick v. Myers, 461 U.S. 138, 151–52 (1983).

Likewise, the denial of intermittent leave under the Family Medical Leave Act,

which would have permitted Ledford to leave work without notice whenever she

experienced anxiety while working with juvenile offenders, was adequately

justified. Finally, even taking the evidence in the light most favorable to Ledford,

no reasonable jury could find that Defendants “monitored” Ledford or otherwise

treated her unfairly because she engaged in protected speech.

Defendants also did not retaliate against any of the other four Plaintiffs. In

response to Gregston’s circulation of a facility-wide petition questioning IDJC’s

hiring practices, Defendants merely asked him to use the established grievance

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process to raise future concerns; this request was not “reasonably likely to deter

[Gregston] from engaging in protected activity.” Coszalter, 320 F.3d at 976

(internal quotation marks omitted). Nor is there is any evidence to substantiate his

claim that Defendants “monitored” him.

DeKnijf and Farnworth contend that they were subject to unwarranted

discipline, but they provide no evidence that any discipline, imposed by their direct

supervisors, was caused by Defendants. See Dahlia, 735 F.3d at 1078 (explaining

that, to be liable, a defendant must have either personally participated in the

constitutional deprivation or “set[] in motion a series of acts by others which the

actor knows or reasonably should know would cause others to inflict the

constitutional injury” (intrnal quotation makrs omitted)). Similarly, McKinney has

not shown that Defendants were involved in any way in her removal from the data

entry project, or that Grimm was motivated by McKinney’s prior speech when she

declined to intervene after McKinney complained about her supervisor’s lecture.

• ! •

Because there is no showing that Defendants violated the constitutional

rights of any of the Plaintiffs, the district court erred in denying Defendants

summary judgment based on qualified immunity with respect to the First

Amendment retaliation claims of all ten Plaintiffs. On remand, the district court is

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directed to enter summary judgment for Defendants Harrigfeld and Grimm on all

of Plaintiffs’ First Amendment retaliation claims.

REVERSED and REMANDED.

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