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

capacity as a private citizen, stating that those issues should be

resolved on remand by the factfinder.

*

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

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 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

4 ELLINS V . CITY OF SIERRA MADRE

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

According to Ellins, the union membership initiated the vote

ELLINS V . CITY OF SIERRA MADRE 5

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.

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

subject of three internal affairs investigations.1 In November

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

6 ELLINS V . CITY OF SIERRA MADRE

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.

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

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

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.

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

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

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, 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

ELLINS V . CITY OF SIERRA MADRE 9

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

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:

10 ELLINS V . CITY OF SIERRA MADRE

(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 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’”).

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

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.

12 ELLINS V . CITY OF SIERRA MADRE

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

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

ELLINS V . CITY OF SIERRA MADRE 13

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 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

14 ELLINS V . CITY OF SIERRA MADRE

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 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

ELLINS V . CITY OF SIERRA MADRE 15

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 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.

16 ELLINS V . CITY OF SIERRA MADRE

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.

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

4

Ellins testified that the press releases were made public through the

SMPA’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

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).

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.

18 ELLINS V . CITY OF SIERRA MADRE

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

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

ELLINS V . CITY OF SIERRA MADRE 19

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

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

20 ELLINS V . CITY OF SIERRA MADRE

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 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

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

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.

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

22 ELLINS V . CITY OF SIERRA MADRE

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 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

ELLINS V . CITY OF SIERRA MADRE 23

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

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.

24 ELLINS V . CITY OF SIERRA MADRE

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 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.

ELLINS V . CITY OF SIERRA MADRE 25

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

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.

26 ELLINS V . CITY OF SIERRA MADRE

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.

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

ELLINS V . CITY OF SIERRA MADRE 27

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 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

28 ELLINS V . CITY OF SIERRA MADRE

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.

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

ELLINS V . CITY OF SIERRA MADRE 29

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

depriving Ellins of salary in retaliation for his protected speech

was unconstitutional.

30 ELLINS V . CITY OF SIERRA MADRE

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

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

ELLINS V . CITY OF SIERRA MADRE 31

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 remand

32 ELLINS V . CITY OF SIERRA MADRE

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 Fairbank, 212 F.3d at

ELLINS V . CITY OF SIERRA MADRE 33

531. As the district court 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 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.

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

34 ELLINS V . CITY OF SIERRA MADRE

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 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 . . .”)

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

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

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

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.