# Oyarzo v. Tuolumne Fire District

> District Court, E.D. California · July 1, 2013 · 955 F. Supp. 2d 1038

URL: https://www.frixlaw.com/law-library/cases/8709779

## Case

- **Full name:** Benjamin C. OYARZO and Nicholas Hart v. TUOLUMNE FIRE DISTRICT (a.k.a. "Tuolumne Fire Protection District"), Joseph Turner, in his individual and official capacities, Darlene Hutchins, in her individual and official capacities, Kenneth Hockett, in his individual and official capacities, Brian Machado, in his individual and official capacities, Toney Powers, in his individual and official capacities, and Does 1 Through 20, Inclusive
- **Court:** District Court, E.D. California
- **Decided:** July 1, 2013
- **Citations:** 955 F. Supp. 2d 1038; 2013 U.S. Dist. LEXIS 92221; 2013 WL 3327882
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Lawrenceneill
- **Judges:** Lawrence, Neill
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOCS. 66, 67, 69, 70, 71 & 72).
LAWRENCE J. O’NEILL, District Judge.
I. INTRODUCTION
This case concerns events that took place within the Tuolumne Fire Department (“TFD”) in 2010. Plaintiffs Benjamin Oyarzo and Nicholas Hart, former employees of TFD, allege that certain of their superiors, both within TFD and on TFD’s Board of Directors, retaliated against them for and took steps to deter them from exercising their First Amendment rights, retaliated against them for complaining about workplace safety issues, and violated their rights under the Firefighters Procedural Bill of Rights. (Second Amended Complaint (“SAC”), Doc. 25.)
*1052 Before the Court for decision are six motions for summary judgment. The Court first addresses four sets of motions for summary judgment filed by the four remaining Individual Defendants: Joseph Turner (Doc. 69), Darlene Hutchins (Doc. 70), Kenneth Hockett (Doc. 67), and Toney Powers (Doc. 66). Along with these motions, Defendants filed a joint statement of facts, independent statements of undisputed fact for each Individual Defendants’ motion, and voluminous supporting documents. Plaintiffs filed an opposition to Defendant Powers’ motion (Doc. 78) and a consolidated opposition to the remaining Individual Defendants’ motions (Doc. 82), along with responses to Defendants’ statements of fact and equally voluminous supporting documents. Defendants replied (Docs. 81 & 90) and filed objections to evidence (Docs. 81-1 & 90-1). Upon preliminary review of the pleadings, the Court requested and received supplemental briefing on two issues related to Plaintiff Oyarzo’s First Amendment claims. (See Docs. 96 & 98-101,103.)
Next, the Court addresses two motions for summary judgment filed by Defendant TFD, one against Plaintiff Oyarzo’s claims (Doc. 72), the other against Plaintiff Hart’s claims (Doc. 71). Plaintiffs filed a consolidated opposition to TFD’s motions along with a consolidated response to TFD’s Statement of Undisputed Fact. (Docs. 88 & 91.) TFD filed a consolidated reply, along with 56 pages of objections to evidence. 1 (Docs. 95 & 95-1.)
The motions were originally set for hearing in late May and early June 2013, but the hearings were vacated to permit extended filing deadlines; the matters were then submitted for decision on the papers pursuant to Local Rule 230(g). (Doc. 75.) The Court finds that the extensive briefing thoroughly addresses the relevant issues, obviating the need to re-set oral argument. 2
II. BACKGROUND 3
A. The Defendants.
TFD is a public agency and fire district composed of approximately 1,200 acres in Tuolumne County, California. (Joint Statement of Undisputed Fact (“JSUF”), Doc. 67-2 4 , # A). TFD is governed by a five-member board of directors. (Master Statement of Undisputed Fact for Individual Defendants’ Motions (“MSUF”), Doc. 83, 5 # 1.)
*1053 Defendant Hutchins became a member of TFD’s Board in 2005 and served continuously as director until her resignation on August 81, 2010. (MSUF #19.) She served as Secretary from 2009 to August 31, 2010. (MSUF #20.) In November 2010, she was re-elected to the Board and remained on the Board at least through the filing of the motions addressed in this Memorandum Decision and Order. (MSUF # 21.)
Defendant Turner was elected Chair of TFD’s board in December 2007 and served until his resignation on August 3, 2010. 6 (MSUF # 3.)
On August 17, 2010, Defendant Hockett was appointed to TFD’s Board. (MSUF # 14.) He was appointed Chair of the Board on August 30, 2010, and served as Chair until November 8, 2011. (MSUF #13.)
Defendant Powers started as a Relief Engineer with TFD in August 2008; he was hired as a full time Engineer in November 2008. (Powers’ Statement of Undisputed Fact (“PSUF”), reflected in Plaintiffs’ response thereto at Doc. 78-1, ## 5-6.) Throughout all of the relevant events in this case, Oyarzo was Powers’ superior, while Powers was Hart’s superi- or. (PSUF ##7-8.)
B. Plaintiff Oyarzo’s Employment History & Asserted Protected Activities.
Plaintiff Oyarzo first began working for TFD in 2006. (MSUF # 2.) He was promoted to Captain in 2007. (Oyarzo Decl. ¶ 3.) The TFD Board voted to appoint Oyarzo as TFD’s Fire Chief in May 2008. 7 (MSUF #4.) In February 2009, Oyarzo was given a favorable performance evaluation. (MSUF #5.)
In 2009, Oyarzo, with the assistance of Plaintiff Hart, began working to annex land from the County of Tuolumne into the jurisdiction of the Tuolumne Fire District. (See MSUF # 27; Oyarzo Decl. ¶ 9; JSUF # J.) The Parties dispute whether Oyarzo held himself out as a representative of TFD during his work on this annexation project and/or whether his work on annexation fell within his job description.
It is undisputed that, at first, Oyarzo’s work on annexation was fully supported by the TFD Board. (MSUF #28.) It is also undisputed that, later, Tuolumne County and other fire protection organizations expressed displeasure with TFD’s attempt to annex territory. (See MSUF ##28-29.) In February 2010, after a meeting with these other entities, TFD’s annexation effort was placed on hold until June 2010. (MSUF # 29.) The hold was put in place at the request of Tuolumne County, so that the County could complete a County-wide first responder study. (MSUF # 30.) TFD stopped pursuing annexation in February 2010, and the effort never resumed during Oyarzo’s employment with TFD. (MSUF # 31.)
In March 2010, Oyarzo claims that he “discovered that two self-contained breathing apparatuses [ ] had not been properly tested by the firefighting staff and posed a safety risk to the firefighters.” (Oyarzo TFD Decl., Doc. 89-4, ¶ 36.) 8 After discovering that the units had not been in *1054 spected as required by the firefighters, Oyarzo “verbally admonished the firefighting staff and reported the safety violation to the TFD Board.” (Id.)
In mid-April 2010, Oyarzo claims that he visited Defendant Turner’s house and spoke with Turner about annexation. During that conversation, Oyarzo expressed his intent to continue with annexation after June 30, 2010, in part because he had a personal interest in seeing the additional territory (which included his personal residence) annexed into TFD’s jurisdiction. According to Oyarzo, Turner informed Oyarzo that he no longer supported annexation and became angry with Oyarzo when Oyarzo stated his intent to continue pursuing annexation. (See Oyarzo Decl. ¶¶ 12-13.) 9
In early June 2010, certain TFD firefighters and interns submitted written complaints to the Board regarding Oyarzo. (PSUF #31.) Plaintiffs assert that Defendant Powers worked with Defendants Turner and Hutchins to solicit these complaints in retaliation for Oyarzo’s First Amendment activities. Defendant Powers testified at his deposition that numerous interns had been complaining about Oyarzo. (Powers Depo. 59-7:9.) Powers informed Defendant Turner of the complaints. (Id. at 59:9-10.) First, Turner told Powers to inform Oyarzo of the complaints to “give him a chance to correct them.” (Id. at 50:12-15.) 10 Later, Turner directed Powers to have the complainants document their concerns in writing. (Id. at 50:20-22.) After Powers collected a number of written complaints, Turner met privately with several board members, including Hutchins, to convince them to terminate Oyarzo. (See Hutchins Depo. 77:4-84:10 11 ; Burns Depo. 83:30-85:8, 92:16-24, 204:ll-206:22. 12 ) On June 8, 2010, Turner threatened to resign if the Board did not terminate Oyarzo. (Burns Depo. 85:2-4, *1055 90:1-6, 207:16-20.) Finally, when the Board refused to vote to immediately terminate Oyarzo, Turner placed Oyarzo on a three-week forced vacation and told Oyarzo not to contact anyone at TFD. (Burns Depo. 225:15-227:12; Hart Depo. 126:18-127:8; Pltf. Ex. D7.) On June 28, 2010, TFD’s Board voted to place Oyarzo on paid administrative leave. (MSUF # 6.)
Meanwhile, in July 2010, Oyarzo filed a reverse validation action challenging several Board members, including Joe Turner. (JSF O; Pltf. Ex. A4.) The action also requested invalidation of all votes taken since on or about May 2008 in which Joe Turner participated as part of a three-person majority. (Id.) Joe Turner resigned from the Board on August 3, 2010. (JSF O; Turner Depo. 126:20-127:1.) On August 30, 2010, the TFD Board reconsidered all of the prior votes called into question by Oyarzo’s validation action, including the previous vote “appointing Ben Oyarzo Fire Chief effective May 12, 2008.” (Pltf. Ex. A2 (TFD 836).) Although many of the confirming votes passed, the motion to retroactively confirm Oyarzo’s appointment to the position of “Chief’ in May 2008 did not pass. (Id.)
On September 6, 2010, Oyarzo returned to work at the rank of Captain. (MSUF #9.)
On September 14, 2010, the Board appointed Hockett and fellow Board member Ben Orr to handle TFD’s day-to-day operations, with some limitations as to their authority over employees. (MSUF # 15.) Hockett served in this capacity until April 11,2011. (Id.)
On September 27, 2010, Oyarzo went on medical leave. (MSUF # 11.)
At the October 11, 2010 Board meeting, TFD was informed that it was approximately $50,000 “in the red,” and that Tuolumne County was loaning TFD money. (MSUF # 102.) The Board considered potential changes to staffing levels and employee hours to save money. (Id.) At the November 8, 2010 board meeting, staff-reorganization was again discussed. (MSUF # 103.) Among many options, a motion was made to offer all employees the classification of Engineer at the rate of $12.00 per hour for the five paid staff. (Id.) The motion did not pass at that meeting. (Id.) However, at the December 13, 2010 meeting, the Board voted to lay off the least senior firefighter and offer the remaining firefighters Engineer positions at $12.00 per hour. (MSUF #104.) Oyarzo, who returned from medical leave on December 11, 2010 (MSUF # 11), was offered continued employment at TFD as an Engineer at $12.00 per hour (JSUF # J). He refused the offer. (Id.) His last day of employment with TFD was December 31, 2010. (Id.)
A previous Order in Hart v. Fire District, 1:12 -cv-01271 LJO DLB (Doc. 24), issued before that case was consolidated with Oyarzo’s parallel action, found that the Individual Defendant Board Members were absolutely immune from claims arising out of their votes to reorganize TFD.
C. Hart’s Employment History & Asserted Protected Activity.
Plaintiff Nicholas Hart was hired as a full time employee of TFD in February 2009. (JSUF # H.) Hart claims that Defendant Powers approached Hart for assistance in Powers’ “effort ... to force Mr. Oyarzo from his employment with the TFD.” (Hart TFD Decl., Doc. 89-3, ¶ 3.) Hart claims that he refused to assist Powers and informed Powers of his belief that such activity was illegal. (Id. at ¶ 4.) Hart believed that Powers was retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Hart Depo. at 171:9-15.) The rec *1056 ord further indicates that Hart told members of TFD’s board about his belief that Powers was improperly retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Id. at 171:9-13.) In August 2010, Hart submitted a letter in support of Oyarzo’s continued employment to Virginia Van Bolt, Ben Orr, and Stephenie Burns, all of whom were TFD Board Members. (Hart TFD Decl. ¶ 7.)
Hart claims that during the summer of 2010, Powers began to retaliate against him for supporting Oyarzo. Among other things, he asserts Powers removed Hart from positions of responsibility, transferred those positions to others, including interns, encouraged others in the firehouse to mock and ostracize Hart, and purposefully failed to communicate information about a public appearance Hart was supposed to make on behalf of TFD, knowing Hart would be disciplined for failing to make that appearance. (See Doc. 78 at 7-8.)
Hart claims he informed Defendant Hockett of these retaliatory acts (Hart Decl. ¶ 8), but asserts Hockett did nothing to prevent further retaliation, and in fact committed additional retaliatory acts, including forcing Hart to work 48-hour shifts on his own, and disciplining Hart on two occasions (see Doc. 82 at 20-23).
The nature, severity, and motivation for these asserted acts of retaliation are hotly disputed. It is undisputed, however, that as a result of the November 8, 2010 reorganization vote, Hart (the least senior firefighter at TFD) was laid off; his last day was December 31, 2010. (MSUF # 146.)
III. STANDARD OF DECISION
Summary judgment is proper if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
If the moving party would bear the burden of proof on an issue at trial, that party must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by “merely pointing out that there is an absence of evidence to support the non-moving party’s case.” Id. When the moving party meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material facts by either:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing, that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse *1057 party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c).
In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255 , 106 S.Ct. 2505 . Rather, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed.R.Civ.P. 56(c)(2). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at 984 .
IV. ANALYSIS OF INDIVIDUAL DEFENDANTS’ MOTIONS.
A. First Amendment Claims.
The SAC’s Second and Third Causes of Action, brought by both Plaintiffs, allege First Amendment deterrence and retaliation, respectively, against all Defendants. (SAC ¶¶ 70-76 (deterrence); SAC ¶¶ 77-80 (retaliation).)
1. First Amendment Claims/Issues No Longer in Dispute.
a. Oyarzo’s First Amendment Claims Against Powers.
Defendant Powers moves for summary judgment on both First Amendment claims brought by Oyarzo against him. Oyarzo does not object, conceding that discovery has demonstrated that Powers’ “animus toward Oyarzo stemmed not from Oyarzo’s protected First Amendment activities but from Powers’ anger with Oyarzo for citing and reporting safety violations in the workplace.” (Doc. 78 at 12.) Defendant Powers’ motion for summary judgment as to Oyarzo’s Second and Third Causes of Action is GRANTED.
b. Oyarzo’s First Amendment Claims Against Hockett.
Defendant Hockett moves for summary judgment on both First Amendment claims brought by Oyarzo against him. (Doc. 67-1 at 9 — 14.) Hockett also argued that he was protected by qualified immunity. (Id. at 14.) Oyarzo’s opposition offered no response to Hockett’s motion. Accordingly, Hockett’s motion for summary judgment on Oyarzo’s First Amendment Claims (contained in the Second and Third Causes of action) is’GRANTED;
c. Defendants Hockett and Hutchins are Absolutely Immune for Their Motion and Vote to Reorganize TFD.
The August 30, 2011 Order in Hart, l:12-cv-01271 (Doc. 24), found TFD Board of Directors are entitled to absolute (legislative) immunity for voting to reorganize TFD. (See id. at 11-12.) Based upon this ruling, Defendants Hockett and Hutchins move for summary judgment on any First Amendment claim based upon their votes to reorganize TFD. (Doc. 67-1 at 8; Doc. 70-1 at 7.) Plaintiffs do not object. Hutch-ins and Hockett were members of TFD’s Board at the time of their votes to reorganize TFD. For the reasons set forth in the August 30, 2011 Order, they are entitled to absolute immunity for this act. Nor can they be held liable for any damages flowing from that act. Their motions for summary judgment as to any First Amendment claim based upon this conduct are GRANTED.
d. Oyarzo’s Claim of Retaliation Based on His Validation Action.
Oyarzo’s Third Cause of Action is based in part on his July 2010 validation action. (SAC ¶ 78.) -Turner, Hutchins, and Hockett each move for summary judgment on this issue, arguing there is no evidence to support a retaliation claim based upon *1058 Oyarzo’s validation action. (Doc. 67-1 at 12-13; Doc. 69-3 at 12; Doc. 70-1 at 12.) Oyarzo does not address this point in opposition. Accordingly, Turner’s, Hutch-ins’, and Hockett’s motions for summary judgment as to any First Amendment claim brought by Oyarzo based upon Oyarzo’s validation action are GRANTED,
e. Hart’s Claims Against Turner and Hutchins.
Hart’s Second and Fourth Causes of Action for deterrence and retaliation were pleaded against all defendants. Defendants Turner and Hutchins move for summary judgment as to these causes of action, arguing that there is no evidence they were involved in any conduct that could violate Hart’s First Amendment rights. (Doc. 69-3 at 16-22; Doc. 70-1 at 17-22.) Hart offered no opposition. Accordingly, Defendants Turner’s and Hutchins’ motions for summary judgment as to these claims are GRANTED,
f. Hart’s Claim of Deterrence and Retaliation Based Upon His Participation in the Annexation Effort.
Hart’s Second and Fourth Causes of Action are based in part on his participation in the annexation effort. Defendants Powers, Turner, Hutchins, and Hockett move for summary judgment on this theory of liability, arguing Hart acted as a private citizen in connection with annexation, there was no evidence of any deterrence or retaliation based upon Hart’s participation in the annexation effort, and that they were protected by qualified immunity. (Doc. 66-3 at 16, Doc. 67-1 at 18, 20-22; Doc. 69-3 at 16-17, 19-22; Doc. 70-1 at 18, 20-22.) Hart did not respond do these arguments, and maintains only that Hart was deterred and retaliated against based upon his support for Oyarzo. (See Doc. 78 at 5, Doc. 82 at 20-24.) Defendants Powers’, Turner’s, Hutchins’, and Hockett’s motion for summary judgment on any First Amendment claim based upon Hart’s annexation effort theory of liability is GRANTED.
2. Remaining First Amendment Retaliation Claims Against Remaining Individual Defendants.
a. General Legal Standard.
“The Supreme Court has clearly stated that public employees do not shed their First Amendment rights simply because they are employed by the government.” Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir.2009). The Ninth Circuit articulated the relevant general standards applicable to a First Amendment retaliation claim in Huppert :
“The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern.” See, e.g., [Garcetti v.] Ceballos, 547 U.S. [410,] 417, 126 S.Ct. 1951 , 164 L.Ed.2d 689 [ (2006) ]; Rankin v. McPherson, 483 U.S. 378, 384 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 142-143 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391 U.S. 563, 569-70 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968). While this protection is applicable to such individuals, “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.” Ceballos, 547 U.S. at 421 , 126 S.Ct. 1951 . “The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it per *1059 forms through its employees.” Pickering, 391 U.S. at 568 , 88 S.Ct. 1731 . Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), [the Ninth Circuit] distilled the Supreme Court’s prior holdings on this issue into “a sequential 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 plaintiffs 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.
Eng provides additional detail about how the five-step inquiry is to be implemented and the relative burdens' of each party.
• First, the “plaintiff bears the burden of showing that the speech addressed an issue of public concern.” Id. at 1070 (internal citations and quotations omitted). The specific requirements for speech to qualify as an “issue of public concern” are discussed in detail below. “If the speech in question does not address a matter of public concern, then the speech is unprotected.... ” Id. at 1070-71 .
• Second, “the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” Id. at 1071 . Again, the specific distinctions between these categories of speech are discussed below. In general, however, if the evidence “demonstrate[s] an official duty to utter the speech at issue, then the speech is unprotected....” Id.
• Third, “the plaintiff bears the burden of showing the state took adverse employment action and that the speech was a substantial or motivating factor in the adverse action.” Id. If plaintiff fails to meet this burden “there can be no recovery....” Id.
• Fourth, if the plaintiff has passed the first three steps, “the burden shifts to the government to show that under the balancing test established by [Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)], the state’s legitimate administrative interests outweigh the employee’s First Amendment rights.” Eng, 552 F.3d at 1071 (internal citations and quotations omitted). “This inquiry, known as the Pickering balancing test, asks “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” ” Id. (quoting Garcetti, 547 U.S. at 418 , 126 S.Ct. 1951 ). If the evidence, viewed in light most favorable to the non-moving party, indicates an adequate justification for suppressing the employee’s speech, the moving party is entitled to summary judgment. Id. at 1071-72.
• Fifth “if the government fails the Pickering balancing test, it alternatively bears the burden of demonstrating that it would have reached the same adverse employment decision even in the absence of the employee’s protected conduct.” Id. at 1072 (internal citation and quotation omitted). “In other words, it may avoid liability by showing that the *1060 employee’s protected speech was not a but-for cause of the adverse employment action.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977)). “This question relates to, but is distinct from, the plaintiffs burden to show the protected conduct was a substantial or motivating factor. It asks whether the adverse employment action was based on protected and unprotected activities, and if the state would have taken the adverse action if the proper reason alone had existed.” Id. (internal citation and quotation omitted). Summary judgment should be granted if the public entity presents undisputed evidence “that it would have made the same employment decisions even absent the questioned speech.” Id.
b. Oyarzo’s First Amendment Claims
(1) Did Oyarzo Speak on a Matter of Public Concern?
Defendants do not dispute that Oyarzo’s expressive conduct in connection with pursuing annexation addressed a matter of public concern.
(2) Did Oyarzo Speak as a Private Citizen or a Public Employee?
Defendants Hockett, Turner, and Hutch-ins move for summary judgment on Oyarzo’s First Amendment claims, arguing that Oyarzo’s speech and activities regarding annexation were performed as part of his official duties. (Doc. 67-1 at 9-10; Doc. 69-8 at 7-8; Doc. 70-1 at 7-8.)
The plaintiff “bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” Eng, 552 F.3d at 1071 (citing Garcetti, 547 U.S. at 421-22 , 126 S.Ct. 1951 ). “Statements are made in the speaker’s capacity as 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.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121 , 1127 n. 2 (9th Cir.2008) (internal citations and quotations omitted).
While the question of the scope and content of a plaintiffs job responsibilities is a question of fact, the ultimate constitutional significance of the facts as found is a question of law. In evaluating whether a plaintiff spoke as a private citizen, we must therefore assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities. If the allegations demonstrate an official duty to utter the speech at issue, then the speech is unprotected, and qualified immunity should be granted.
Eng, 552 F.3d at 1071 (internal citations and quotations omitted). Put another way: “[Wjhether the plaintiff spoke as a public employee or a private citizen-is a mixed question of fact and law.” Posey, 546 F.3d at 1129 . If the pleadings and evidence “present genuine disputes of material fact regarding the scope and content” of a plaintiffs job responsibilities, summary judgment is inappropriate. Id.
“[T]he inquiry into whether employee speech is pursuant to employment duties is a practical one.” Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir. 2007). While a formal job description is by no means “dispositive” in determining whether a given task is within the scope of an employee’s professional duties, it is nevertheless “informative.” See id. at 933 ; see also Garcetti, 547 U.S. at 424-25 , 126 S.Ct. 1951 (“We reject ... the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions____ Formal job descriptions *1061 often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes”). A court should also “look beyond the job description to the duties the employee actually performs.” Huppert, 574 F.3d at 704 . “Speech which has no official significance and bears similarities to actions taken by numerous citizens everyday falls outside the ambit of an employee’s job duties and would be protected by the First Amendment.” Id. (internal citations and quotations omitted).
(a) Oyarzo’s Rank.
The Parties spend a great deal of time discussing whether speaking on the issue of annexation fell within Oyarzo’s job description. It is undisputed that Oyarzo was appointed “Fire Chief’ by TFD’s Board in May 2008. (Pltf. Ex. Dl (OH 281-283).) However, Oyarzo disputes the validity of that appointment and maintains he was at all relevant times actually serving as the lower-ranked “Captain.” This debate is not purely academic. The job description of Fire Chief provides that the Chief is to “plan, organize, direct, supervise, coordinate, and review all the activities and operations of the Fire District____” (Pltf. Ex. D6.) The duties of Captain are more limited. (Pltf. Ex. D5 (Job description for Fire Captain includes responsibility for the “day-to-day operation of the fire station” and other, related operational duties).)
Plaintiff Oyarzo argues he was never legally a “Fire Chief’ because one of the three TFD Board members who voted for his appointment 13 did not satisfy the requirements for Board membership. (Doc. 82 at 8-9.) More than two years later, in July 2010, Oyarzo filed a reverse validation action challenging several Board members, including Joe Turner. (JSF O; Pltf. Ex. A4.) The action also requested invalidation of all votes taken since on or about May 2008 in which Joe Turner participated as part of a three-person majority. (Id.) Joe Turner resigned from the Board on August 3, 2010. (JSF O; Turner Depo. 126:20-127:1.) On August 30, 2010, the TFD Board reconsidered all of the prior votes called into question by Oyarzo’s validation action, including the previous vote “appointing Ben Oyarzo Fire Chief effective May 12, 2008.” (Pltf. Ex. A2, TFD 836.) Although many of the confirming votes passed, the motion to retroactively confirm Oyarzo’s appointment to the position of “Chief’ in May 2008 did not pass. (Id.)
California Health and Safety Code § 13806 requires that actions to determine the validity of any action taken by a fire protection district be brought under the provisions of California Code of Civil Procedure § 860, et seq. Section § 860 allows a public agency to bring a validating proceeding (often referred to as a “reverse validation” action) “to determine the validity” of its own action. A related provision permits “any interested person” to bring a similar action within 60 days of the challenged action. CaLCode Civ. Pro. § 863. Absent a timely challenge to the validity of an action, such actions “become immune from attack” by interested persons, “whether it is legally valid or not.” McLeod v. Vista Unified Sch. Dist., 158 Cal.App.4th 1156, 1166 , 71 Cal.Rptr.3d 109 *1062 (2008). Oyarzo’s validation challenge, filed in July 2010, was far too late to fall within the 60-day window to challenge his own appointment to Chief in May 2008.
Although § 860 does indicate on its face that public agencies are also subject to the 60-day limitations period, Plaintiffs argue that such agencies are nevertheless free to disregard the statute of limitations by virtue of language in CaLCode Civ. Pro. § 869, which provides that the availability of a § 860 validating proceeding does not preclude any agency from utilizing other available remedies to determine the validity of a thing or matter, citing Kaatz v. City of Seaside, 143 Cal.App.4th 13, 30 , 49 Cal.Rptr.3d 95 (2006). Plaintiffs maintain that the May 2008 appointment of Oyarzo as Chief was invalidated not by Oyarzo’s lawsuit but by the TFD Board’s own action to reconsider all of the challenged votes and then reject Oyarzo’s reappointment as Chief.
Kaatz does not support this contention. Kaatz concerned whether the 60-day limitations period set forth in the validation statute applied to a taxpayer’s challenge to a municipality’s purchase of residential property on a decommissioned military base and immediate resale of that property to a developer at a deep discount. Id. at 19 , 49 Cal.Rptr.3d 95 . The court concluded that the transaction was simply not subject to the validation statute, but confirmed the general rule that actions which are covered by the validation statute are automatically deemed valid if neither the acting public entity nor any interested person challenges the act within the 60-day window. Nonetheless, in a footnote, Kaatz explained:
We note that while “any interested person” must bring a validating proceeding within 60 days, “no such restriction is placed on the [public] agency itself, which is in effect authorized by section 869 to disregard the 60-day statute of limitations imposed by section 860.” [City of Ontario v. Superior Court, 2 Cal.3d 335, 341 , 85 Cal.Rptr. 149 , 466 P.2d 693 (1970) (fn. omitted.) ] This is the case because the second sentence of section 869 provides: “The availability to any public agency, including any local agency, or to its officers or agents, of the remedy provided by this chapter, shall not be construed to preclude the use by such public agency or its officers or agents, of mandamus or any other remedy to determine the validity of any thing or matter.”
Id. at 30 n. 17, 49 Cal.Rptr.3d 95 . Although this language suggests that a public agency could use other legal remedies bearing different statutes of limitations to invalidate a prior action of its own outside the 60-day statute of limitations, Plaintiffs point to no applicable remedy that was invoked in this case. The Board’s post hoc “reconsideration” of its vote to promote Oyarzo is a far cry from the kind of remedy referenced section 869 (e.g., mandamus). To hold otherwise would totally ignore the California Supreme Court’s more general observation that: “[A]n agency may indirectly but effectively ‘validate’ its action by doing nothing to validate it; unless an ‘interested person’ brings an action of his own under section 863 within the 60-day period, the agency’s action will become immune from attack whether it is legally valid or not....” City of Ontario, 2 Cal.3d at 341-42 , 85 Cal.Rptr. 149 , 466 P.2d 693 .
TFD’s Board meeting minutes from 2009 and the first six months of 2010 repeatedly refer to Oyarzo as “Chief Oyarzo.” (Turner Ex. Cl.) In February 2009, Oyarzo was given a written evaluation as “Fire Chief Oyarzo.” (Turner Ex. B3.) In March 13, 2010, he issued a letter to Hart as “Benjamin C. Oyarzo, Fire Chief.” *1063 (Turner Ex. A1 Suppl. (attached to Doc. 90-2).) Oyarzo himself admitted that he was at the very least the “doing the Chiefs duties” from the time of his appointment in May 2008 through his return from leave as Captain in September 2010. (Oyarzo Depo: 35: 18-36:3.) During this time, Oyarzo wore a Chiefs uniform, and drove a Chiefs vehicle. (Id. at 39:6-7, 197:5-6.) He was a member of the California Fire Chiefs Association, and attended Tuolumne County Fire Chiefs meetings, although he claims to have done so in his capacity as “administrative captain.” (Id. a. 49:24-50:2; 100:6-101:2.)
There is simply no evidence that Oyarzo was anything other than the “Fire Chief’ from the time of his promotion to that position in 2008 through his placement on administrative leave in late June 2010. He did not file his validation action until July 2010, which was far too late to invalidate his promotion to Chief. He was treated as the Chief and acted as the Chief. He cannot now escape the plain language of the Fire Chiefs job description, which describes a Fire Chiefs general duties to include “plan[ning], organizing], directing], supervising], coordinating], and reviewing] all the activities and operations of the Fire District....” (Pltf. Ex. D6.) Specific duties “include[e]” but are “not limited to” “providing] highly responsible and complex administrative support to the Board of Directors,” “coordinating] Fire Distriet activities with other departments and outside agencies, [and] ... act[ing] as public and intergovernmental relations representative....”Id. 14
(b) Oyarzo’s Subjective Perception of His Duties.
Oyarzo states in his declaration that:
At no time during my employment with TFD did anyone communicate to me that I was expected to pursue annexation of County land as part of my job duties. At no time during my employment with TFD did anyone instruct me to pursue annexation of County land as part of my job duties.
(Oyarzo Decl. ¶¶ 6-7.) Rather, he perceived his daily duties as “management and supervision of the fire station and personnel, acting as duty officer while on shift, responding to and organizing TFD’s response to emergency calls, organizing and participating in fire prevention activities, and repairing the fire district’s equipment.” (Id. at ¶ 5.) Defendants argue these assertions in Oyarzo’s declaration should be disregarded because they contradict his prior deposition testimony, where Oyarzo admitted he took direction from TFD’s board regarding the pursuit of annexation:
Q: Did you work with any other agencies with respect to this annexation effort?
*1064 A. The board brought up Amy Augustine, a planner that we used on the west side property annexation, and they were pleased with her work on that and they said — they told me to go ahead and contact her and get her involved with it so we can get it filed with LAFCO.
(Oyarzo Depo. 114 at 19-25.) 15
A party cannot “create a triable issue of fact, and thus survive summary judgment, merely by contradicting his or her own sworn deposition testimony with a later declaration.” Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir.1998). This is because “if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish thé utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). The sham affidavit rule may be invoked only if a district court makes “a factual determination that the contradiction was actually a sham” and “the inconsistency between a party’s deposition testimony and subsequent affidavit ... [is] clear and unambiguous.” Van As dale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009). Here, Oyarzo’s declaration is not clearly and unambiguously in conflict with this deposition testimony. Nothing in his deposition addresses the specific ■ issue raised by his declaration, namely, whether anyone at TFD told Oyarzo pursuit of annexation was part of his job duties or instructed him to pursue annexation as part of his job.
For the purposes of summary judgment, the Court must assume the truth of Oyarzo’s version of events (i.e., that he honestly believed his duties did not include pursuit of annexation). What remains unclear is whether an employee’s self-serving testimony about his own subjective perception of his job duties can create a material dispute over whether he spoke as a public employee under the circumstances presented here, namely, where the job description of Chief plainly encompasses pur *1065 suit of annexation and Oyarzo admits that he pursued'annexation at the direction of TFD’s Board.
(c) Other Relevant Facts.
According to Defendants, Oyarzo’s work on annexation was always pursued in his capacity as a representative of TFD. In California, petitions for annexation of territory by a local government agency are governed by the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. Cal. Gov.Code § 56000 et seq. Pursuant to that statute, annexation can only be initiated by a government agency or by a petition signed by at least 25% of the registered voters or landowners in the affected area. Cal. Gov.Code §§ 56654(b), 56700, 56864(a). It is undisputed that in this case, it was TFD that initiated the annexation process. Amy Augustine, a land use consultant, was hired by TFD’s Board to prepare the annexation application for TFD. (Turner Ex. Cl (TFD 764).) The minutes of the February 18, 2010 Board meeting acknowledge that the meeting which resulted in the annexation being put on hold was between “Craig Pedro [County Administrative Officer], County Fire, Cal Fire, Tribal Fire and Tuolumne Fire.” (Id. at TFD 775.) There is no evidence that any group of citizens initiated or participated in an annexation petition, let alone that Oyarzo was a member of any such group.
Defendants also point to evidence indicating that Oyarzo pursued annexation as a representative of TFD. The sign in sheet for the February 10, 2010 meeting discloses that everyone, including Oyarzo, appeared in a representative capacity. (Hutchins Ex. A9 (“Ben Oyarzo” signed in for “Tuolumne Fire District”).) The minutes of the February 18, 2010 TFD Board meeting indicate that “Joe Turner asked Chief Oyarzo to set up a meeting with Kevin Day, Tribal Chairman, to discuss the annexation again____” (Turner Ex. Cl (TFD 775).) Craig Pedro testified that in carrying forward the annexation effort, Oyarzo represented himself as having the authority of TFD’s board. (Pedro Depo. at 98:1-16.) Mr. Pedro indicated that when Oyarzo was dealing with him, Mr. Pedro believed he was dealing with “the chief of the department.” (Id. at 98:6-9.)
Oyarzo testified at his Deposition that he did not identify himself as the Chief of TFD during meetings with representatives of the Local Area Formation Commission, but instead identified himself by name only. (Oyarzo Depo. at 118: 7-12.) But, this testimony, which amounts only to an assertion about how Oyarzo introduced himself to LAFCO representatives, cannot be considered in a vacuum. As explained above, Oyarzo admitted to working with and under the direction of TFD’s board regarding the pursuit of annexation. (Id. at 114: 19-25.)
Plaintiffs admit that Hart participated in the annexation effort and that his work on the annexation effort was done for TFD. (MSUF # 109.) It is not logical for Plaintiffs to assert that Hart worked for TFD in support of annexation while Oyarzo, Hart’s superior, did not.
The above analysis demonstrates that there is no substantive evidence to support Oyarzo’s contention that his speech in favor of annexation through February 2010 was made in his capacity as a private citizen. Accordingly, the Court makes a finding that any such speech is not protected conduct. However, such a finding is not required to rule on Defendants’ motion. Even if one assumes, arguendo, that Oyarzo has presented evidence that raises a material dispute as to whether his speech in favor of annexation before February 2010 was as a private citizen, he does not complain that he was retaliated against for any of his speech in favor of annexation prior to February 2010. It is *1066 undisputed that TFD’s Board of Directors fully supported the annexation effort through February 2010, at which time annexation was placed on hold. (MSUF ## 28-29.)
(d) Oyarzo’s Threat to Speak in his Capacity as a Private Citizen.
The source of Oyarzo’s entire First Amendment retaliation claim is the conversation he had with Defendant Turner in April 2010. According to Oyarzo’s Declaration:
11. On April 13, 2010, the annexation effort was placed on hold until June 30, 2010 at the request of Tuolumne County representatives. I intended at that time to resume my annexation efforts immediately after the June 30, 2010 deadline.
12. The following week, I communicated my intent to continue pursuing the annexation to Joe Turner while visiting him at his house. Mr. Turner informed me that he no longer supported the annexation and became visibly angry with me when I stated my intent to continue pursuing the annexation after June 30, 2010. I explained to Mr. Turner that the annexation was important to me because I lived within the area that would be annexed, and the annexation would greatly increase the safety of my and hundreds of other homes in the area, which, consequently, would reduce insurance rates for all homeowners in the area.
(Oyarzo Decl. ¶¶ 11-12.) 16
According to Oyarzo’s Declaration, his interest in annexation was more than just professional. His own personal *1067 residence was located just outside TFD’s jurisdiction and within the area subject to annexation. Because annexation had the potential to lower the fire rating of those properties to be annexed, annexation had the potential to lower Oyarzo’s own insurance costs substantially. (Oyarzo Decl. ¶¶ 17-18.) The combination of the fact that Oyarzo threatened to speak out on an issue in contravention of the Board’s wishes and the fact that he had a personal (rather than purely professional) reason for doing so supports a finding that Oyarzo threatened to engage in speech that would have been protected.
However, this claim cannot proceed because Plaintiffs entirely failed to disclose this theory of First Amendment liability in discovery. Defendants’ Fourth interrogatory asked Plaintiff to “describe all protected political activity to which [Oyarzo] referfed] in paragraph 71 of the Complaint.” (TFD Ex. A4, A5, Interrogatory # 4.) Oyarzo’s initial response was:
Plaintiff lobbied the County of Tuolumne for the annexation of territory from the county to Tuolumne Fire District. Plaintiff participated in meetings with officials of the County of Tuolumne for the purpose of achieving annexation of the land and contributed time and energy to planning and detailing the methods by which the land would be annexed.
(TFD Ex. A4, Response to Interrogatory
# 4.) Oyarzo’s supplemental response was as follows:
*1068 Beginning in 2009 and continuing through approximately May 2010, Plaintiff lobbied the County of Tuolumne for the annexation of territory from the county to the Tuolumne Fire District, which, had Plaintiff been successful, would have included the land on which Plaintiffs home was built. In 2009 and 2010, Plaintiff participated in meetings with officials of the County of Tuolumne, including Craig Pedro, Deborah Russell, and Larry Houseburg, for the purpose of achieving annexation of the land. Throughout this time, Plaintiff met with community groups who would be impacted by and supported the annexation of county land into TFD’s territory, prepared and directed the completion of documentation necessary for annexation of the land, and attempted to build and maintain- support of the community and community leaders, through outreach, personal advocacy, and through the media.
(TFD Ex. A5, Response to Interrogatory #4.)
Defendants are correct that Plaintiff cannot, without substantial justification, now rely on a new theory of liability first raised in his Declaration. Fed.R.Civ.P. 37(c)(1) addresses failure to make discovery disclosures:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e) [duty to supplement disclosures], the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Plaintiffs’ new theory of recovery was introduced for the first time in Oyarzo’s Declaration, filed in response to Defendants’ motions for summary judgment on May 24, 2010.
A court may refuse to allow new theories in response to a summary judgment motion where doing so would deprive the defendant the right to conduct discovery on the claim or to make pretrial motions regarding the theory of liability. Harry A. v. Duncan, 351 F.Supp.2d 1060, 1067 (D.Mont.2005); Ortiz v. Lopez, 688 F.Supp.2d 1072, 1082 (E.D.Cal.2010) (“[A] plaintiff cannot oppose summary judgment based on a new theory of liability because it would essentially blind side the defendant with a new legal issue after the bulk of discovery has likely been completed.”). Although the operative complaint and discovery do raise First Amendment retaliation and deterrence claims, the factual basis for Plaintiffs “threat to speak after June 30, 2010” theory is entirely new, and was never disclosed in discovery. -Defendants’ discovery (including the . questions posed at depositions) and opening motions papers focused on the disclosed evidence.
The Tenth Circuit succinctly articulated the problem with Plaintiffs’ approach to this litigation:
As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover, “provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219 at 194 (1990) [now § 1219 at 282-83 (2004) [¶]... .We do not believe, however, that the liberalized pleading rules permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case. This practice, if permitted, would waste the parties’ resources, as well as judicial resources, on discovery aimed at ultimately unavailing legal theories and would unfairly surprise defendants, requiring the court to *1069 grant further time for discovery or continuances.
Zokari v. Gates, 561 F.3d 1076, 1087 (10th Cir.2009).
Plaintiffs have been on notice since at least May 24, 2013 that Defendants believed this was a new theory of liability. (Doc. 90 at 11 (Defendants, in consolidated Reply brief, arguing that Oyarzo’s Declaration is a sham).) Yet, Plaintiffs have neither offered an excuse for failing to disclose this new theory of recovery nor any basis for a finding of harmlessness. See also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir.2001) (party seeking to offer undisclosed evidence bars the burden of proving the delay was harmless). To permit Plaintiffs to proceed on this previously undisclosed theory would reward Plaintiff for waiting until the last minute to refine the theories upon which they intend to build their case and unfairly surprises defendants. Paragraphs 11 and 12 of Oyarzo’s declaration will therefore be excluded.
As a result, Plaintiff Oyarzo has no evidentiary foundation for his First Amendment retaliation claim. Accordingly, Individual Defendants’ motions for summary judgment on Oyarzo’s First Amendment claim are GRANTED,
c. Hart’s First Amendment Claims Based Upon Speech in Support of Oyarzo.
(1) Did Hart Speak on a Matter of Public Concern?
Hart claims that in June 2010 Defendant Powers approached Hart for assistance in Powers’ “effort ... to force Mr. Oyarzo from his employment with the TFD.” (Hart TFD Deck, Doc. 89-3, ¶ 3.) Hart claims that he refused to assist Powers and informed Powers of his belief that such activity was illegal. (Id. at ¶ 4.) Hart believed that Powers was retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Hart Depo. at 171:9-15.) Hart told members of TFD’s board about his belief that Powers was improperly retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Id. at 171:9-13.) In August 2010, Hart submitted a letter in support of Oyarzo’s continued employment to Virginia Van Bolt, Ben Orr, and Stephenie Burns, all of whom were TFD Board Members. (Hart TFD Deck ¶ 7.)
All Individual Defendants argue that Hart’s speech on behalf of Oyarzo was not a matter of public concern. (Doc. 66-3 at 17-18; Doc. 67-1 at 19-20; Doc. 69-3 at 17-18; Doc. 70-1 at 18-20.) The Ninth Circuit has “not articulated a precise definition of ‘public concern,’ ” but instead recognizes that the inquiry “is not an exact science.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009) (internal citations omitted). In this Circuit, Courts must avoid “rigid multipart tests that would shoehorn communication into ill-fitting categories,” and should instead rely “on a generalized analysis of the nature of the speech.” Id. The “essential question is whether the speech addressed matters of ‘public’ as opposed to ‘personal’ interest,” and courts commonly examine “the content, form, and context of a given statement, as revealed by the whole record.” Id. (citing Connick v. Myers, 461 U.S. 138, 147 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983)). Whether speech is a matter of public interest is “purely a question of law” on which plaintiffs bear the burden of proof. Id. (internal citations omitted).
The Ninth Circuit has defined the “scope of the public concern element broadly and adopted a liberal construction of what an issue of public concern is under the First Amendment.” Id. at 709-10 (in *1070 ternal citations and quotations omitted). “But there are limits. In a close case, when the subject matter of a statement is only marginally related to issues of public concern, the fact that it was made because of a grudge or other private interest or to coworkers rather than to the press may lead the court to conclude that the statement does not substantially involve a matter of public concern.” Id. (internal citations and quotations omitted).
(a) Content of the Speech.
“The “content” element is the greatest single factor in the Connick inquiry.” Id. at 710 (internal quotations omitted). To address a matter of public concern, the content of the speech must involve “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Id. (internal quotation omitted); see also Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989) (describing “matter[s] of political, social, or other concern to the community” as matters of public concern). “On the other hand, speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public’s evaluation of the performance of governmental agencies is generally not of ‘public concern.” Id. (internal quotations omitted). “The same is true of ‘speech that relates to internal power struggles within the workplace,’ and speech which is of no interest ‘beyond the employee’s bureaucratic niche.’ ” Id. (quoting Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir.1996)).
In Desrochers , two veteran police officers filed an internal, informal grievance about their supervising Lieutenant, complaining about his management style. Id. at 705 . According to the officer who adjudicated the grievance, there was “an ongoing and continuing issue relative to a difference of personalities.” Id. Learning of the grievance, the supervising Lieutenant requested and was granted a voluntary transfer, but the two officers did not believe this sufficiently addressed their grievance, so they filed a formal grievance against the Lieutenant and two of his superiors. Id. at 706 . Their formal grievance again complained of the Lieutenant’s management style, accusing him of, among other things, being “autocratic, controlling and critical.” Id. One of the officers described several incidents in which the Lieutenant acted as a “micro-manager, who insults fellow officers [and] undermines efforts to develop team members.” Id. Admitting that “taken individually” the incidents might “seem minor,” the officer nonetheless thought the “incidents amount to added stress and distrust in the daily operations of the unit.” Id. The formal grievance also asserted that the Lieutenant’s superiors failed to take steps to remedy the “hostile work environment” created by the Lieutenant. Id. at 707 . Repeatedly referencing the Lieutenant’s “management style” in his grievance, the other officer believed complaining was “a necessary step forward in an attempt to change the culture of this police department and the way we treat each other.” Id. The formal grievance was denied. Id.
Shortly thereafter, the two officers filed a confidential complaint with the municipality’s human resources department. In addition to referencing their prior complaints, they raised concerns about the performance of the replacement Lieutenant, indicating they feared he would be used as a tool to retaliate against them. Id. The officers later amended their complaint, accusing the replacement Lieutenant of having a “long history of inappropriate and harassing comments given to coworkers, peers and subordinates,” including making an offensive comment about one complainant’s wife and, on an *1071 other occasion, making a similar offensive comment as to the other complainant’s daughter. Id.
Within weeks of filing their human resources complaint, one of the officers was transferred (an action he viewed as a demotion), while the other was suspended upon the conclusion of an internal affairs investigation involving a previous arrest. Id. at 705 . Their lawsuit for First Amendment retaliation followed. Id. at 708 . On appeal from a summary judgment ruling in favor of defendants, the officers attempted to “characterize their grievances as necessarily implicating issues such as the competency, preparedness, efficiency, and morale” of their department. Id. at 710 (internal quotations omitted). The Ninth Circuit rejected this rationale, reasoning that “a simple reference to government functioning” has never been held to “automatically qualif[y] as speech on a matter of public concern. To the contrary ... the fact that speech contains passing references to public safety, incidental to the message conveyed weighs against a finding of public concern.” Id. at 711 (internal quotation omitted).
For example, what if we judges prohibited our law clerks from taking coffee breaks? Suppose they responded with a memorandum complaining about the action. While they might assert — perhaps fairly — that caffeine deprivation would adversely affect their performance, morale, efficiency, and thus, their competency, no one would seriously contend that such speech addressed a matter of public concern, [citation] Similarly, the reality that poor interpersonal relationships amongst coworkers might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern.
Id. Moreover, a court must “look to what the employees actually said, not what they say they said after the fact.” Id. “[T]he plain language of the grievances” in Desrochers did “not directly address police competence ... but rather indicates that [the officers] were involved in a personality dispute centered on [the Lieutenant]’s management style.” Id. at 712 .
The speech in question is largely devoid of reference to matters we have deemed to be of public concern. There are no allegations of conduct amounting to “actual or potential wrongdoing or breach of public trust.” Connick, 461 U.S. at 148 , 103 S.Ct. 1684 .
Id. at 712. In sum, the Ninth Circuit concluded:
[W]hen working for the government, saying one’s boss is a bully does not necessarily a constitutional case make. “[T]he content of the communication must be of broader societal concern. [Our] focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” [Roe v. City & County of S.F., 109 F.3d 578 , 585 586 (9th Cir.1997)] (emphases added). On the facts of this case, we cannot say that the public would be truly interested that two police sergeants believed their supervisor was a “micro-manager,” “autocratic” and “controlling,” or even that he dressed them down in front of their colleagues and neighboring police forces. Such speech, “if released to the public, would convey no information at all other than the fact that [two] employee[s were] upset with the status quo,” Connick, 461 U.S. at 148 , 103 S.Ct. 1684 , and is of no relevance “beyond the employee[s’] bureaucratic niche,” Tucker, 97 F.3d at 1210 .
Id. at 713.
A different outcome may be appropriate where an employee complains about or *1072 implicitly disapproves of unlawful conduct. In Thomas v. City of Beaverton, 379 F.3d 802, 806-07 . (9th Cir.2004), Thomas, a senior municipal court administrator with hiring power refused to follow the directives of a superior to deny a promotional opportunity to an African American clerk who previously filed (and prevailed in) a lawsuit challenging the court’s failure to promote her. Later, the superior placed Thomas on probation for allegedly failing to perform adequately two aspects of her job, defects for which no previous notice was given. Id. at 807 . Thomas was later terminated. Id. She sued, arguing that her superior retaliated against her for supporting the African American clerk’s promotion. Id. Thomas argued that she believed that the defendants were discriminating against the clerk because of that employee’s race and retaliating against the clerk because of the clerk’s prior lawsuit. Id. at 808 . Although the Ninth Circuit found the record to be “devoid of any evidence that Thomas explicitly or implicitly expressed any concern that the defendants were treating the clerk unfairly because she was African American, Thomas’ speech does not have to be about racially disparate treatment in order to be protected.” Id. at 808-09 . “Unlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern.” Id. at 809 (citing Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir.2004) (holding that falsification of information in a search warrant affidavit was a matter of public concern); Chateaubriand v. Gaspard, 97 F.3d 1218, 1222-23 (9th Cir.1996) (concluding that an employee’s complaints of illegal campaign activity and pressure to participate in it were of public concern), reversed on other grounds by Garcetti, 547 U.S. 410 , 126 S.Ct. 1951 ; Roth v. Veteran’s Admin., 856 F.2d 1401 , 1406 (9th Cir.1988) (ruling that an employee’s reports of safety regulation violations, unethical conduct, misuse of public funds and mismanagement constituted speech of public concern)).
In Thomas , the Ninth Circuit emphasized that the superior’s treatment of the clerk “need not have been actually unlawful for Thomas’ opposition to be protected expression.” Id. (citing Ceballos, 361 F.3d at 1179 (concluding that an assistant district attorney engaged in protected speech when he alleged criminal wrongdoing by an officer even though those allegations proved to be erroneous); Johnson v. Multnomah County, Or., 48 F.3d 420, 424 (9th Cir.1995) (holding that an employee’s accusations of mismanagement and possible criminal conduct against her immediate supervisor constituted speech of public concern even though they were recklessly false)). Nor must an employee explicitly indicate to the defendant a belief that defendant’s acts were unlawful; “[rjather, she may convey an implicit message of disapproval of the illegality of the activity through her conduct by refusing to facilitate or participate in it.” Id. (citing Nunez v. Davis, 169 F.3d 1222, 1227-28 (9th Cir. 1999) (holding that an employee’s refusal to limit attendees at training seminars to those court employees who had worked on her supervisor’s re-election campaign was expressive conduct on a matter of public concern)). The Ninth Circuit concluded that there was sufficient evidence to create a genuine issue ' of material fact as to whether Thomas’ refusal to acquiesce in the defendant’s allegedly retaliatory treatment of the clerk was expressive conduct on a matter of public concern. Id. at 811.
Here, according to Hart’s Declaration:
3. In early June of 2010, Toney Powers requested that I assist him in his effort against Benjamin Oyarzo in an *1073 attempt to force Mr. Oyarzo from his employment with the TFD.
4. I verbally refused to assist Mr. Powers in his effort against Mr. Oyarzo and further informed him that I would not participate in any attempt to force Mr. Oyarzo from his employment with the TFD. I also told him that I thought such an action was illegal based upon my experience in the U.S. Forest Service. I understood from my experience at the U.S. Forest Service that employees had rights in their employment. Mr. Powers stated that he believed they would be successful in forcing Mr. Oyarzo out and accused me of “playing both sides of the fence”, which I interpreted to be an accusation of disloyalty.
(Hart TFD Decl. ¶¶ 3-4.) This is evidence that Hart explicitly refused to participate in what he believed to be unlawful conduct. Defendants’ contention that Hart’s speech was limited to concerns about internal discipline and morale (see Doc. 81 at 4) are unfounded. The record indicates that, among other things, Hart believed that Powers was retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Hart Depo. at 171:9-15.) Hart based this belief on comments Powers made to him. (Id. at 172: 7-8). The record further indicates that Hart told members of TFD’s board about his beliefs. (Id.) This goes beyond a personality dispute and raises issues of public concern. The conduct about which Hart complained need not actually be unlawful for it to qualify. Thomas, 379 F.3d at 809 .
(b) Form of Speech.
Analysis of the form of the speech supports the conclusion that Hart spoke on a matter of public concern. In Desrochers , the fact that the speech took the form of an internal employee grievance “means that the public was never made aware of [the two officers’] concerns.” 572 F.3d at 714 . Likewise, although Thomas communicated to her immediate supervisor and other court employees her disagreement with the allegedly unlawful treatment of the clerk, she did not “attempt to inform the general public about the allegedly retaliatory practices.” Thomas, 379 F.3d at 810 .
“That the employee expressed his views inside his office, rather than publicly, is not dispositive.” Desrochers, 572 F.3d at 714 (quoting Garcetti, 547 U.S. 410 , 126 S.Ct. 1951 ) (internal modification incorporated); Thomas, 379 F.3d at 810 . However, “[a] limited audience weighs against a claim of protected speech.” Desrochers, 572 F.3d at 714 (internal quotation and citation omitted).
Public speech is more likely to serve the public values of the First Amendment. Private speech motivated by an office grievance is less likely to convey the information that is a prerequisite for an informed electorate. Thus, though a private complaint may relate to a matter of public concern, our consideration of the form of speech adopted to convey their message helps us identify whether their speech is of public concern. [Where] the speech at issue took the form of internal employee grievances which were not disseminated to the public, this portion of the Connick test cuts against a finding of public concern.
Id. at 714-15 (internal quotations and citations omitted). Nevertheless, “[b]ecause content is the most important factor, we have concluded that speech about a matter of public concern may be protected even when made in a private context.” Thomas, 379 F.3d at 810 -11 (citing Ceballos, 361 F.3d at 1174 (holding that a memorandum given to the employee’s supervisors was protected speech when the memorandum *1074 alleged criminal wrongdoing); Ulrich v. City and County of San Francisco, 308 F.3d 968, 979 (9th Cir.2002) (“[T]he public employee does not forfeit protection against governmental retaliation because he chose to press his cause internally”); Chateaubriand, 97 F.3d at 1223 (“The form of the speech-complaints to staff and superiors rather than to the general public-does not remove it from the realm of public concern.”)). It was enough that Thomas expressed “her disapproval of the allegedly retaliatory treatment [ ] to those responsible for deciding whom to promote to the vacant position, [thereby] air[ing] her views in an effective forum.” Thomas, 379 F.3d at 811 .
Here, Hart maintains that he complained about Powers’ treatment of Oyarzo to Powers himself and to several members of the TFD Board, thereby airing his views in an effective forum.
(c) Context of Speech.
Finally, the context of the speech supports the conclusion that Hart spoke on a matter of public concern. “[I]n ascertaining when speech ... rises to a level of public concern,” a court should also examine “the context of the speech, particularly the point of the speech.” Id. at 715 (internal citation and quotation omitted). This boils down to a question of motivation.
In other words, why did the employee speak (as best as [the court] can tell)? Does the speech “seek to bring to light actual or potential wrongdoing or breach of public trust,” or is it animated instead by “dissatisfaction” with one’s employment situation?
Id. (quoting Connick, 461 U.S. at 148 , 103 S.Ct. 1684 ). “The question of whether the speech was made to further some purely private interest is relevant to that inquiry, as is a determination of whether the speech was made in the context of a workplace power struggle.” Id. (internal quotations and citations omitted).
In Desrochers , the two officers argued that “the context in which their speech was uttered suggests that they were motivated, not by a personal vendetta against [their superior], but rather out of a concern for the well-being of the” police department as a whole. Id. While finding that the record contained some support for their claims of altruistic motivation, the undisputed evidence also indicated that the two officers were motivated by their dissatisfaction with their employment situation brought on by “a difference of personalities between” them and their Lieutenant. Id. The Ninth Circuit concluded that the officers’ speech was “merely an extension” of the running spat between the players. Id. at 716 (internal quotation and citation omitted). “The ultimate source of the grievances can be traced to the simple fact that the sergeants and [their Lieutenant] did not get along. They preferred a particular management style, and he employed another.” Id. Accordingly, the speech was not a matter of public concern. Id
Here, assuming the truth of Hart’s undisputed Declaration, Hart spoke out on Oyarzo’s behalf believing that Oyarzo had been the victim of unlawful retaliation. This was not a purely internal grievance about management style. 17
*1075 Accordingly, Individual Defendants’ motions for summary judgment that Hart’s speech on behalf of Oyarzo was not a matter of public concern are DENIED.
(2) Did Hart Speak As a Public Employee or as a Private Citizen?
Defendants do not argue that Hart spoke as a public employee, as opposed to as a private citizen. This is logical because “common sense dictates that [plaintiffs remark that she would not participate in illegal activity was not within Plaintiffs job duties — employees are generally not paid to inform a superior that they will not participate in illegal conduct proposed by that superior.” Dowell v. Cnty. of Contra Costa, 2013 WL 2181653 (N.D.Cal. May 20, 2013).
(3) Was Hart’s Speech in Support of Oyarzo A Substantial or Motivating Factor in Adverse Actions Against Hart?
If a plaintiff spoke on a matter of public concern as a private citizen, rather than as a public employee, the next step is to determine “whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action.” Huppert, 574 F.3d at 702 . First, this requires inquiry into whether an adverse employment action took place. “To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden.” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003). “The proper inquiry is whether the action is ‘reasonably likely to deter employees from engaging in protected activity.’ ” Dahlia v. Rodriguez, 689 F.3d 1094, 1107 , reh’g en banc granted, 704 F.3d 1043 (9th Cir.2012) (quoting Coszalter, 320 F.3d at 976 ).
To show that retaliation was a substantial or motivating factor behind an adverse employment action, a plaintiff can:
(1) introduce evidence that 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) introduce evidence that the employer expressed opposition to the speech; or (3) introduce evidence that the proffered explanations for the adverse action were false and pretextual.
Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 750 (9th Cir.2010) (emphasis added).
(a) Hart’s Retaliation Claim Against Powers
Defendant Powers moves for summary judgment on Hart’s retaliation claim. (Doc. 66-3 at 11-21.) Hart alleges Powers subjected him to various adverse employment actions, including: (1) removing Hart from a shift in which he would have served *1076 as duty officer in charge of the shift in Oyarzo’s absence and transferring Hart to Powers’ shift, while other less-qualified individuals were placed in charge of the remaining shifts as duty officers; (2) removing job responsibilities from Hart and transferring those responsibilities to interns; (3) encouraging other firefighters to mock an ostracize Hart; (4) forcing Hart to work each of his 48-hour shifts alone after Oyarzo was placed on medical leave; and (5) making no mention to Hart of the request that TFD be present at the funeral of a former chief with the expectation that Hart would be disciplined for failing to be present. (See Doc. 78 at 7-8.)
(i) Removal From Duty Officer Position.
It is undisputed that Powers was Hart’s superior at TFD. (PSUF # 8.) Hart refused to assist Powers’ efforts to gather complaints against Oyarzo in June 2010. (Hart Decl. ¶¶ 3-4). At some point during that summer, Powers transferred Hart to Powers’ own shift, ostensibly so they could work together more “smoothly.” (Id. at ¶¶ 5-6; Powers Depo. 132:3-143:3.) At the same time, two other firefighters, Nick Ohler and Jason Podesta, were each placed in charge of the remaining two shifts. (Powers Depo. 143:18-146:10; 147:17-148:15.) This, in effect, meant that Hart was removed from a shift on which he would have been the duty officer in Oyarzo’s absence and moved to a shift where he was working under Powers’ supervision, while two other firefighters were given “duty officer” responsibilities. There appears to be no dispute that these shift changes occurred. Transferring job duties from the target of alleged retaliation to others may constitute an adverse employment action. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987).
Because this shift change occurred in close proximity to Hart’s speech, Hart has established temporal proximity between his speech and the adverse action.
In addition, as discussed above, Hart has presented evidence that Powers requested Hart’s assistance in the collection of complaints against Oyarzo. (Hart Decl. ¶ 3.) Hart refused to participate in the effort and indicated to Powers his belief that Powers’ efforts were unlawful. (Id. at ¶ 4.) Powers then accused Hart of “playing both sides of the fence,” which Hart interpreted as an accusation of disloyalty. (Id.; see also Hart Depo. 130:11-13.) For purposes of summary judgment this is sufficient proof that “the employer expressed opposition to [Hart’s] speech.” Anthoine, 605 F.3d at 750 .
The burden then shifts to Defendants to demonstrate that they “would have reached the same adverse employment decision even in the absence of the employee’s protected conduct.” Eng, 552 F.3d at 1072 . 18 “In other words, [they] may avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.” Id. Powers claims Nick Ohler and Jason Podesta were given their own shifts because they had more experience and that Nick Hart was, at the time, the firefighter with the least experience, except in fighting wildfires. (See id.; see also Hart Depo. 58: 11-16 (admitting he was the “junior man”).) But, this is disputed. Hart was thirty-six at the time of the events in this case, had been in fire protection for approximately eight years, and claimed to have possessed “qualifications, certifications and experience” that “ex- *1077 ceeded those of Firefighters, Jason Podesta and Nicholas Ohler----” (Hart Decl., Doc. 78-5, ¶ 9; see also Powers Depo. 147:25-148:9 (admitting Podesta and Ohler were in their mid-twenties; id. at 146: 5-10 (admitting Hart had wildland firefighting experience)).) Defendant Powers objects to the portion of Hart’s declaration in which he states his qualifications and experience exceeded Podesta’s and Ohler’s on the grounds that Hart lacks personal knowledge or any foundation upon which to make such an assertion and that the statement contains impermissible lay opinion. (Doc. 81-1 at 7.) Defendants are correct that it is insufficient for Hart to merely state that he is more qualified than his former co-workers. To sustain his burden, he must show provide evidence, not “bare assertion[s]” regarding competing colleagues. Barefield v. Bd. of Trustees of CA State Univ., Bakersfield, 500 F.Supp.2d 1244, 1264-65 (E.D.Cal.2007), on reconsideration sub nom., 2007 WL 3239288 (E.D.Cai. Nov. 2, 2007). However, it is Defendant Powers’, not Hart’s, burden to establish that Hart’s speech was not the but-for cause of the adverse action. Defendant has pointed to no evidence of Podesta and Ohler’s qualifications relative to Hart. The evidence cited by Defendant only demonstrates that Hart was “junior” in terms of the number of years he had with TFD, not that he was less qualified than Podesta or Ohler. (Hart Depo. 58:11-16; Podesta Depo. 19:9-15; Ohler Depo. 55:18-56:8.) Defendant has not satisfied its burden to prove it would have reached the same decision about shift assignments absent Hart’s speech.
Therefore, Defendant Powers’ motion for summary judgment on this alleged adverse action is DENIED.
(ii) Transfer of Job Responsibilities to Interns.
Hart also claims that some of his job duties were transferred to Interns. Specifically, on calls Hart previously would sit in the passenger seat, where he would talk on the radio to dispatch and use maps to get the firefighters to a scene. (Hart Depo. at 1374: 138:9.) Hart claims that after his falling out with Powers, Powers gave those responsibilities to an intern. (Id.)
Viewing the evidence in a light most favorable to Powers, a finder of fact could conclude that Powers transferred a job responsibility from Hart to others, which arguably constitutes an adverse action. Yartzojf, 809 F.2d at 1376 . Again, because all of this occurred in close temporal proximity to Hart’s speech, Hart has satisfied his burden to establish an adverse action that is causally connected to his First Amendment activities.
Defendant does not dispute these facts. Instead Defendant argues that because it was undisputed that Powers was Hart’s superior, Powers was “in charge when they went on calls together” and it was “reasonable for Powers to allow an intern to take the captain’s seat and the duties that come along with that position for training purposes.” (Doc. 81 at 8.) However, Defendant cites no evidence or caselaw in support of this assertion. The record does not even reflect that Powers claimed this shift in responsibilities was for training purposes. This is insufficient to sustain Defendant Powers’ burden under the fifth Eng step.
Defendant Powers’ motion for summary judgment is DENIED as to this asserted adverse action.
(iii) Mocking and Ostracization.
Hart also claims he was mocked and ostracized by his co-workers at Powers’ direction. Hart’s evidence in support of this assertion is vague and non-specific. *1078 The most specific assertion he makes is that other firefighters would roll their eyes and shrug when he gave input or suggestions. (Hart Depo. at 162:15-163:1.) Yet, there is no substantive evidence connecting Powers to this conduct. Hart did testify that Powers commented to other firefighters that Hart was “playing both sides of the fence,” but there is no evidence that Powers suggested or even implied to the other firefighters that they should mock or ostracize Hart.
Moreover, being scolded and or bad-mouthed by others in the workplace does not constitute an adverse action. Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir.1998). Defendants Powers’ motion for summary judgment is GRANTED as to this asserted adverse action.
(iv) Forcing Hart to work 48-Hour Shifts Alone.
Hart complains that he was forced to work 48-hour shifts on his own while Oyarzo was on medical leave beginning in September 2010. This appears to be undisputed. Kenneth Hockett admits that he was unable to assign any other firefighter to Hart’s shift because “we didn’t have the staffing for that and folks weren’t willing to work with [Hart].” (Hockett Depo. 157:12-18.)
However, there is no evidence connecting Powers to this conduct. Powers’ motion for summary judgment as to this asserted adverse action is GRANTED.
(v) Failure to Communicate Request to Attend Funeral.
Around the time of the other asserted adverse actions discussed above, Defendant Hockett instituted the use of a “passdown log” at the TFD firehouse, whereby certain daily activities would be logged in writing to ensure better communication when shifts changed. (See Hockett Depo. 93:18-20.) Hockett claims the procedure was designed simply to improve communication. (Id.) Defendant Powers believed use of the passdown log was meant to simulate the verbal communications that would normally occur between shifts; because the firefighters were not all getting along, the passdown log meant that they “didn’t have to talk to one another.” (Powers Depo. 176:3-7.) Powers also explained that firefighters were supposed to read the entries made by the shift immediately preceding their own. (Id. 178:15-20.)
On October 21, 2010, a community member contacted TFD to request that the District be present at the funeral of a former volunteer fire chief on Monday, October 25, 2010. (Podesta Depo. 98:9-99:9.) Jason Podesta, the duty officer in charge that day, recorded the phone call in the passdown log. (Id. 99:14-17.) Powers relieved Podesta on October 22, 2010 and worked through the morning of October 24, 2010. (Pltf. Ex. Dll (TFD 3440-41).) Powers recorded entries for October 22, 2010 and October 23, 2010, but made no mention of the funeral request in the entry immediately preceding Hart’s shift. (Id.)
Plaintiffs assert that Powers deliberately omitted the funeral request from the passdown log entry just prior to Hart’s shift, expecting that Hart would be disciplined if he failed to show up to represent the Department. The evidence cited in support of this assertion establishes only that Powers believed the next shift was only responsible for reading entries from the shift before, (Powers Depo. 178:17-20), and that Powers believed there should be some discipline for a firefighter who failed to show up at a location when required to do so, (id. 197:15-22). This fails to support, even circumstantially, the assertion and speculation that Powers’ deliberately *1079 failed to communicate the funeral request to Hart. The fact that others may have disciplined Hart for his failure to make the appearance does not in any way connect Powers to this asserted adverse action.
Powers’ motion for summary judgment as to this asserted adverse action is GRANTED.
(b) Hart’s Retaliation Claim Against Hockett.
Defendant Hockett moves for summary judgment on Hart’s retaliation claim. (Doc. 66-3 at 11-21; Doc. 67-1 at 20-21.) Hart asserts that Hockett: (1) joined in the retaliation against Hart; (2) forced Hart to work his shifts alone while Oyarzo was on medical leave; and (3) disciplined Hart for allowing Nick Burns to volunteer at TFD; and (4) disciplined Hart for failing to attend the funeral on October 25, 2010. (See Doc. 82 at 20-23.)
(i) “Joining” in the Retaliation Against Hart.
Hart complains that “[d]espite having been informed by both Oyarzo and Hart of the retaliatory campaign instituted against Hart by TFD employees, [Hockett] took no action to protect Hart” and instead “joined in the retaliation against Hart.” (Doc. 82 at 20-21.) First, although there may be a cause of action for failure to prevent certain types of harassment, Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.1995); see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994) (when employee is sexually harassed, the “only question is whether [the employer] is relieved of liability for [the harasser’s] actions because it took sufficient disciplinary and remedial action in response to [the employee’s] complaints.”), the Court is unaware of any authority that would render the supervisor himself personally liable under a failure to prevent theory, cf. Fiol v. Doellstedt, 50 Cal. App.4th 1318, 1326 , 58 Cal.Rptr.2d 308 (1996) (“Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting----More specifically, a supervisor is not liable to third parties for the acts of his or her subordinates.”); see also Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir.1989) (“A supervisor may be liable [under 42 U.S.C. § 1983 ] if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.”).
Hart’s generic accusation that Hockett “joined in the retaliation” against Hart cannot be sustained. Hockett’s conduct must be examined based upon Hoekett’s own affirmative conduct.
(ii) Requiring Hart to Work 24-Hour Shifts Alone.
As described above, it is undisputed that Hart was required to work 48-hour shifts on his own while Oyarzo was on medical leave beginning in September 2010. Kenneth Hockett admits that he was unable to assign any other firefighter to Hart’s shift because [TFD] “we didn’t have the staffing for that and folks weren’t willing to work with [Hart].” (Hockett Depo. 157:12-18.)
Defendants argue that placement of Hart on a shift by himself cannot possibly constitute an adverse action because he did not object to being assigned to the shift on his own. Although Hart initially informed Hockett via email that Hart was “not worried” about working alone and would “do fine” on a shift by himself (Hockett Exhibit B5), Hart stated in his declaration filed in response to TFD’s motion for summary judgment that he later complained to both Hockett and Stephenie Burns about the “hazardous environment” that resulted from working *1080 alone and responding to emergency calls alone, (Hart TFD Decl. ¶ 20). 19 Being given more strenuous or more dangerous work than others can constitute an adverse action. Davis v. Team Elec. Co., 520 F.3d 1080, 1090 (9th Cir.2008); Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir.2003) (even being given an “unpleasant work assignment” can constitute an adverse action for First Amendment retaliation purposes).
Hart has also satisfied his initial burden of demonstrating circumstantial evidence that this adverse action was motivated by his protected speech because he was assigned to work shifts on his own starting in September 2010, after Oyarzo left on medical leave. (See Hart Deck, Doc. 82-5, ¶ 8.) This was in very close proximity to Hart complaining to Hockett in August 2010 that he was being retaliated against for supporting Oyarzo. (Id. ¶8.)
Defendant Hockett’s motion for summary judgment is DENIED as to this asserted adverse action.
(iii) Disciplining Hart for Permitting Nick Burns to Volunteer at TFD.
Hart asserts that Hockett disciplined him for allowing a volunteer firefighter, Nick Burns, to volunteer with him at the firehouse; Hockett “contacted Hart by telephone and interrogated him for approximately 30 minutes before threatening Hart with discipline” for allowing Nick Burns to volunteer; and placed a written reprimand in Hart’s file. (Doc. 82 at 21-22.)
It is undisputed that on October 12, 2010, Nick Burns, Board Member Stephenie Burns’ son, volunteered at TFD during Hart’s shift. (See MSUF # 126; Hockett Ex. B8.) In a letter, Hart admits that on October 12, Nick Burns came by the firehouse and told Hart that he had turned in an application to volunteer but “never heard back.” (Hockett Ex. B9.) Despite this, Hart simply “issued him a set of turnouts” (i.e., protective clothing) and permitted Hart to stay the night in the firehouse. (Id.) According to Hart’s version of events, when Hockett learned of this, Hockett told Hart that no one could “be hired or fired” at that time, and that “we need to get our ducks in a row” by making sure Nick had a physical and was covered by TFD’s insurance. (Id.) Hockett told Hart to call Burns to tell him not to come back to the firehouse “because of the ‘duck in a row1 issues.” (Id.)
On October 18, 2010, while Hart was on his next shift, Stephenie Burns called Hart to let him know that Nick Burns had his physical and that Nick Burns, who had “every right to volunteer” would be down to help on his shift. (Id.) On October 20, when Hockett found out that Nick Burns was once again volunteering at the firehouse, they had a conversation about the “hire and fire process” during which Hart explained that he didn’t understand that using a volunteer was part of the “hire and fire process” and that he apparently mis *1081 understood his instructions about not permitting Nick Burns to volunteer. (Id.) Hart claims to have been confused by the conflicting instructions from the various board members. (Id.) 20
Hockett wrote up a formal “Record of Discussion” on the incident, Dated November 1, 2010, that was added to Hart’s personnel file. (Hockett Ex. B8.) Issuance of a formal letter of reprimand is an adverse action for First Amendment/Section 1983 purposes. See Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 847 (9th Cir.2004) (warning letter or negative review can be an adverse employment action).
Plaintiff Hart has satisfied his initial burden of demonstrating circumstantial evidence that this adverse action was motivated by his protected speech because the issuance of the letter on November 1, 2012 was in close proximity to Hart complaining to Hockett in August 2010. (See Hart Decl. ¶ 8.) See Coszalter, 320 F.3d at 977 (“three to eight months is easily within a time range that can support an inference of retaliation”); Salem v. Terhune, 72 Fed.Appx. 670, 672 (9th Cir.2003) (where protected activity took place in May and retaliation occurred between August and October of the same year, temporal proximity sufficient to survive summary judgment).
The burden then shifts to Defendants to “that it would have reached the same adverse employment decision even in the absence of the employee’s protected conduct.” Eng, 552 F.3d at 1072 . “In other words, it may avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977)):
This question relates to, but is distinct from, the plaintiffs burden to show the protected conduct was a substantial or motivating factor. It asks whether the adverse employment action was based on protected and unprotected activities, and if the state would have taken the adverse action if the proper reason alone had existed.
Id. (internal quotations and citation omitted). Summary judgment would be appropriate only if the public entity established “without dispute by the plaintiff, that it would have made the same employment decisions even absent the questioned speech.” Id.
Here, it is undisputed that Hockett believed Hart’s conduct in connection with Nick Burns was insubordination. (Hockett Ex. B8.) However, Hart has presented evidence tending to call into question Hockett’s justification for reprimanding Hart over the incident in the form of Hart’s own, contemporaneous letter in response to Hockett’s “Record of Discussion,” which recounts his own version of the events. (Hockett Ex. B9.) If Hart’s version is believed, Hart simply misunderstood Hockett’s instructions and/or received conflicting instructions from another TFD board member. Accordingly, Defendants’ motion for summary judgment on this asserted adverse action is DENIED.
(iv) Disciplining Hart for Failure to Attend Funeral.
As described above, around the time of the other asserted adverse actions, Defendant Hockett instituted the use of the *1082 passdown log. It appears to be undisputed that there was no mention of the request to appear at the October 25, 2010 funeral service in the passdown log for the shift immediately prior to Hart’s. The evidence also indicates that at least some of the firefighters believed one was only responsible for reading the passdown log entries for the shift immediately prior to one’s own. (Powers Depo. 177:11-179:3.) Despite the fact that there was no mention of the funeral in the portion of the pass-down log Hart was responsible for reviewing, Hockett disciplined Hart for failing to show up at the funeral by entering a “Formal Warning” into his personnel file. (Hockett Ex. BIO.)
Defendants do not question whether this constitutes an adverse action. As with the Nick Burns “Record of Discussion,” this constitutes a disciplinary action. See Fonseca, 374 F.3d at 847 . Likewise, this disciplinary action was taken less than three months after Hockett was informed by Hart and Oyarzo of their belief that Hart was suffering retaliation for supporting Oyarzo. See Coszalter, 320 F.3d at 977 ; Salem, 72 Fed.Appx. at 672 .
The burden again shifts to Defendants to establish that Hart’s protected speech was not the “but-for” cause of the disciplinary action. Defendants appear to suggest that the action was otherwise justified and therefore that they would have taken the action despite the speech, but the record calls this assertion into dispute. Among other things, Ben Orr, another Board member, testified to his belief that Hockett’s insistence upon disciplining Hart for this incident was “petty.” (Orr Depo. at 242: 19-25; 243:9-11 (“I have no idea what [Hockett] was thinking. I just didn’t like it. I wasn’t comfortable with it.”).) The record does not permit a finding that Defendant Hockett is entitled to summary judgment as to this asserted adverse action.
Defendant Hockett’s motion for summary judgment as to this asserted adverse action is DENIED.
(4) Qualified Immunity.
The Individual Defendants maintain that even if summary judgment is not warranted on Hart’s First Amendment claims, they are entitled to qualified immunity because they reasonably believed their actions were lawful. (Doc. 66-3 at 13-16, 21; Doc. 67-1 at 14-17, 22; Doc. 69-3 at 13-16, 22; Doc. 70-1 at 13-17, 22.)
(a) General Qualifted Immunity Standard.
Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 638-40 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194 , 200, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) (internal quotation omitted), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009). This privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id. at 200-01, 121 S.Ct. 2151 . Thus, the Supreme Court “repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at 201, 121 S.Ct. 2151 (internal quotation omitted). Saucier established a two-step inquiry for determining whether an official is entitled to qualified immunity. See Pearson, 555 U.S. at 232 , 129 S.Ct. 808 ; Saucier, 533 *1083 U.S. at 201, 121 S.Ct. 2151 . First, the court was directed to consider whether, “[t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show the officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151 . If a constitutional right would have been violated were the allegations established, the Saucier Court instructed lower courts to next examine whether the right was clearly established such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 201-02, 121 S.Ct. 2151 . If an officer is reasonably mistaken as to what the law requires, the officer is entitled to immunity. Id. at 202-03, 121 S.Ct. 2151 . “The doctrine of qualified immunity safeguards ‘all but the plainly incompetent or those who knowingly violate the law____[If] officers of reasonable competence could disagree on th[e] issue [of whether a chosen course of action is constitutional], immunity should be recognized.’ ” Lytle v. Wondrash, 182 F.3d 1083, 1086-87 (9th Cir. 1999) (quoting Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986)).
The Supreme Court subsequently determined that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Pearson, 555 U.S. at 236 , 129 S.Ct. 808 . Instead, lower courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id.
To determine whether the law was clearly established, courts in the Ninth Circuit must first look to binding precedent. Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir.2013) “If none is on point, we may consider other decisional law.” Id. A court “need not find that the very action in question has previously been held unlawful, but, rather, [] whether a reasonable officer would have had fair notice that the action was unlawful, and that any mistake to the contrary would have been unreasonable.” Id. at 1056-57 .
(b) Qualiñed Immunity Applied to Hart’s First Amendment Claim.
Defendants point to Lytle v. Wondrash, 182 F.3d 1083, 1085 (9th Cir.1999), in which a teacher claimed her school district employer retaliated against her for previously filing a lawsuit. In the previous lawsuit, she alleged the district transferred and disciplined her for publically criticizing a school education program. Id. She prevailed in that lawsuit and was reinstated. Id. The plaintiff later claimed that after she returned to work she was again retaliated against for filing that lawsuit. Id. at 1085-86 . The key question was whether her right to file the previous lawsuit was outweighed by “any adversely affected interest of the public employer in promoting efficient delivery of public services.” Id. at 1088 . This required application of the Pickering balancing test, which calls upon a court to consider the
balance between the interests of the [employee], as a citizen, in commenting on matters 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.
Pickering, 391 U.S. at 568 , 88 S.Ct. 1731 .
The Lytle court found that several of the Pickering factors favored defendants, including the “employer’s need to maintain an efficient and cohesive school environment” and “preventing disruption spawned by Lytle’s prior litigation.” Lytle, 182 F.3d at 1088 . Finding that Lytle’s prior *1084 litigation “created ... disharmony,” the Ninth Circuit also found that the employer had an interest in preventing expression that disrupted a harmonious work environment. Id. at 1089 . “[P]roof of actual disruption is not required: an employer need only show that the public employee’s expression caused reasonable predictions of disruption.” Id. (internal quotation and citation omitted). Lytle’s prior litigation “created a rift between her and both her coworkers and her superior.” Id. Where “close working relationships require mutual trust and respect to be successful ... a wide degree of deference to the employer’s judgment is appropriate.” Id. Although some factors favored Lytle in the balance, the Ninth Circuit found that the Pickering balance did “not provide clear-cut results” such that the “outcome of the balance does not so clearly favor Lytle that it would have been patently unreasonable for the school officials to conclude that the First Amendment did not protect her litigation.” Id. (internal quotation and citation omitted).
Defendants argue that a similar result is warranted here because at the time of Hart’s speech and the alleged retaliatory acts, TFD was “an organization experiencing a near mutiny.” (See Doc. 66-3 at 21 (qualified immunity arguments leveled against Oyarzo’s claims); Doc. 67-1 at 22 (relying on the same arguments to attack Hart’s claims).) Defendants assert that the discord within TFD concerned the complaints levied against Oyarzo by interns and other employees. (MSUF # 44.) Hart’s protected speech was allegedly made in support of Oyarzo. However, Hart has elicited evidence that at least arguably demonstrates that he spoke out because he believed the treatment of Oyarzo by others at TFD was unlawful. “A series of cases in the Ninth Circuit establish ] that the public’s interest in learning about illegal conduct by public officials and other matters at the core of the First Amendment protection outweighs a [public] employer’s interest in avoiding a mere potential disturbance to the workplace.” Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 748 (9th Cir.2001) (discussing previous holdings).
Individual Defendants’ motions for summary judgment as to Hart’s First Amendment claims on qualified immunity grounds are DENIED.
3. Deterrence Claims.
To succeed on a claim for deterrence of protected speech, a plaintiff “must provide evidence showing that by his actions the defendant deterred or chilled the plaintiffs political speech and such deterrence was a substantial motivating factor in the defendant’s conduct.” Mendocino Envt’l Ctr. v. Mendocino Cnty., 192 F.3d 1283 , 1300 (9th Cir.1999). A plaintiff need not “demonstrate that his speech was actually inhibited or suppressed.” Id. Rather, plaintiff is only required to demonstrate that defendants “intended to interfere” with his or her First Amendment Rights. Id. (internal citations and quotations omitted). Intent to inhibit speech can be demonstrated either through direct or circumstantial evidence. Id. at 1300-01. “Because it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity, ... the proper inquiry asks whether an official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. at 1300 (internal citations and quotations omitted).
Plaintiffs do not clearly distinguish between the retaliation and deterrence claims in this case, citing the same evidence in support of both groups of *1085 claims. (Doc. 78 at 9; Doc. 82 at 23-24.) 21 Defendants’ motions focus on the retaliation claims and only spend a few paragraphs challenging the deterrence claims. One of Defendants’ arguments merits some discussion. In their reply brief, Defendants suggest that Hart should not be permitted to maintain a deterrence claim because all of the adverse actions he claims to have suffered post-date Oyarzo’s “hour of need.” (Doc. 90 at 22.) In other words, Defendants maintain that by the time Hart suffered any adverse action, Oyarzo had succeeded in returning to his job and was off on medical leave. It follows, according to Defendants’ argument, that there was no need for Hart to make any further speech on Oyarzo’s behalf and therefore that Hart’s claim of deterrence is nonsensical.
Hart claims to have spoken out on Oyarzo’s behalf during the summer or early fall of 2010. (See Hart Depo. 150:13-21, 171:9-15,186:15-188:15.) The latest actual date Hart gives for any such speech is in late August 2010. (Hart Depo at 187:17-18.) Oyarzo was returned to his job at the rank of Captain on September 6, 2010. (MSUF # 9.) From September 27, 2010 through December 11, 2010, Oyarzo was on medical leave. (MSUF # 11.) There is no suggestion in the record that Oyarzo’s job status was in danger during his medical leave. However, the general standard for deterrence inquires whether a defendant’s “acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Envtl. Ctr., 192 F.3d at 1300 (emphasis added). Defendants do not identify and the Court cannot locate any authority limiting “future First Amendment activities” to speech on the very same subject about which plaintiff may have previously spoken.
Having been presented with no legal bases upon which to reach different conclusions as to the retaliation and deterrence claims, those claims rise and fall with the retaliation claims. Where there is proof of an adverse action, the Court *1086 does not see any reason why this would not also serve as proof of an action that would “chill or silence a person of ordinary firmness from future First Amendment activities.” Individual Defendants’ motions for summary judgment as to Plaintiffs’ retaliation claims are GRANTED IN PART AND DENIED IN PART. Those deterrence claims that parallel surviving retaliation claims also survive summary judgment.
B. FEHA Claims.
The Thirteenth Cause of Action is for “harassment” under California’s Fair Employment & Housing Act, Cal. Gov.Code § 12940, et seq. This claim is brought by Oyarzo against Defendants Turner and Hutchins and by Hart against Defendants Hockett and Powers.
1. Oyarzo’s FEHA Claim Against Turner and Hutchins.
The FEHA Claim alleges that “Defendants Turner and Hutchins intentionally subjected [Oyarzo] to pervasive and harmful, annoying, humiliating, and distressing treatment on the basis of his age and marital status with the intent to annoy, threaten, or offend him.” (SAC ¶ 130.) Defendants Turner and Hutchins move for summary judgment on this claim. (Doc. 69-3 at 22-24; Doc. 70-1 at 22-24.) Oyarzo does not oppose these motions because “discovery in this case has demonstrated that while animus regarding Oyarzo’s age and marital status played a role in Turner’s and Hutchins’ willingness to terminate Oyarzo’s employment, Turner’s and Hutchins’ repeated retaliatory acts against Oyarzo stemmed from their anger with Oyarzo for his actual and anticipated annexation efforts,” meaning that “the harassment to which Oyarzo was subjected by Turner and Hutchins was not motivated by Oyarzo’s protected status under Government Code § 12900 et seq.” (Doc. 82 at 28.) Accordingly, Turner’s and Hutch-ins’ motions for summary judgment on Oyarzo’s FEHA claim are GRANTED.
2. Hart’s FEHA Claim Against Powers and Hockett.
The FEHA claim alleges, among other things, that Defendant Powers “subjected him to pervasive and harmful, annoying, humiliating, and distressing treatment on the basis of his association with Mr. OYARZO who was harassed and discriminated against based on his age and marital status with the intent to annoy, threaten, or offend him.” (SAC ¶ 131.)
Powers moves for summary judgment on this claim. (Doc. 66-3 at 21-23.) Hart does not oppose the motion because “discovery in this case has demonstrated that the associational harassment Hart suffered at the hands of Powers stemmed from Powers’ anger with Oyarzo for having reported safety violations rather than from Powers’ discriminatory animus toward Oyarzo’s age or marital status.” (Doc. 78 at 12.)
Defendant Hockett also moves for summary judgment on this claim. (Doc. 67-1 at 22-24.) For the same reason, Hart does not oppose this motion. (Doc. 82 at 28.)
Accordingly, Defendant Hockett’s and Defendant Powers’ motions for summary judgment on Hart’s FEHA claim are GRANTED.
C. Punitive Damages.
1. Oyarzo’s Claims Against Powers.
Powers moves for summary judgment as to Oyarzo’s prayer for punitive damages against him. Oyarzo does not object to this motion. (Doc. 78 at 13.) Accordingly, and because Oyarzo’s first amendment claims do not survive summary judgment, *1087 Powers’ motion for summary judgment as to Oyarzo’s punitive damages prayer against him is GRANTED.
2. Remaining Punitive Damages Prayers Against the Individual Defendants.
All of the Individual Defendants move for summary judgment that Oyarzo and Hart cannot sustain claims for punitive damages as to any of their remaining claims. (Doc. 81 at 10; Doc. 90 at 25.) To recover punitive damages against an individual officer in a § 1983 case, a plaintiff must show that the officers’ conduct is “motivated by evil motive or intent” or “involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 , 103 S.Ct. 1625 , 75 L.Ed.2d 632 (1983). The Ninth Circuit has further explained that “[t]he standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases,” which extends to “malicious, wanton, or oppressive acts or omissions.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir.2005) (citing Wade, 461 U.S. at 49, 54 , 103 S.Ct. 1625 ). Punitive damages may be available in a § 1983 suit “even in the absence of a compensable injury”; indeed, “[i]n such situations ‘punitive damages may be the only significant remedy available.’ ” Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1122 (9th Cir.2008) (quoting Wade, 461 U.S. at 55 n. 21, 103 S.Ct. 1625 ).
The standard for awarding punitive damages under California law is similar. Under California law, punitive damages may be appropriate “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ.Code § 3294. Malice may be shown where the defendant exhibits “the motive and willingness to vex, harass, annoy, or injure,” Nolin v. Nat’l Convenience Stores, Inc., 95 Cal.App.3d 279, 285 , 157 Cal.Rptr. 32 (1979) (internal quotation marks omitted), or a “conscious disregard of the rights and safety of others,” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1000 , 25 Cal.Rptr .2d 550, 863 P.2d 795 (1993). A plaintiff may establish malice “by indirect evidence from which the jury may draw inferences.” Taylor v. Superior Court, 24 Cal.3d 890, 894 , 157 Cal.Rptr. 693 , 598 P.2d 854 (1979).
Defendants argue that there is no evidence to support, punitive damages claims in this case because there is no evidence any of the Individual Defendants acted with an evil motive or reckless indifference to rights. This argument ignores the balance of authority indicating that if a plaintiff is able to establish intentional discriminatory conduct (an element of both retaliation and deterrence First Amendment claims), that plaintiff “would by definition have satisfied the requirement for showing the ‘reckless indifference’ required for an award of punitive damages.” Stender v. Lucky Stores, Inc., 803 F.Supp. 259, 324 (N.D.Cal.1992); see also Lucid v. City & Cnty. of San Francisco, 774 F.Supp. 1234, 1240 (N.D.Cal.1991) (refusing to grant defense motion regarding punitive damages in First Amendment case where plaintiffs contended defendants harassed plaintiffs and threatened plaintiffs with termination). Evidence of retaliation can satisfy the standard. Hemmings v. Tidyman’s Inc., 285 F.3d 1174 , 1199 (9th Cir.2002) (punitive damages award withstood challenge where defendants excluded plaintiffs from decision making process and harassed plaintiffs after they filed a discrimination complaint); Passantino v. Johnson Consumer Prods., Inc., 212 F.3d 493 , 514-516 (9th Cir.2000) (evidence of retaliation was “unquestionably sufficient” to satisfy the “malice or reckless indiffer *1088 ence” standard for punitive damages under Title VII).
Because none of Oyarzo’s claims against Individual Defendants have survived summary judgment, the remaining Individual Defendants are entitled to summary judgment on Oyarzo’s punitive damages prayer against them.
Because, based upon the undisputed evidence and Hart’s evidence viewed in a light most favorable to him, a finder of fact might reasonably find that Powers and/or Hockett retaliated against Hart for protected speech, a finder of fact might also find that Powers and/or Hart acted with malice or reckless disregard of Hart’s rights. Powers and Hockett’s motions for summary judgment as to Plaintiffs’ punitive damages prayers against them are DENIED. ■
V. TUOLUMNE FIRE DISTRICT’S MOTIONS
A. Claims/Issues Regarding TFD No Longer in Dispute.
1. Oyarzo’s Claim of Retaliation Based Upon His Validation Action.
Oyarzo’s Third Cause of Action for retaliation is based in part on Oyarzo’s July 2010 validation action. (SAC ¶ 78.) TFD moved for summary judgment on this issue, arguing there is no evidence to support this theory of relief. (Doc. 71-2 at 12.) Oyarzo does not oppose this argument. (See supra, Part IV.A.d.) Accordingly, TFD’s motion for summary judgment as to Oyarzo’s First Amendment retaliation claim based upon his validation action is GRANTED.
2. Hart’s Claims of Deterrence and Retaliation Based Upon His Participation in Annexation.
TFD moves for summary judgment on Hart’s claims for First Amendment deterrence and retaliation based on his participation in the annexation effort. (Doc. 71-2 at 8.) Hart did not respond to these arguments, and maintains only that Hart was deterred and retaliated against based upon his support for Oyarzo. {See Doc. 82 at 20-24.) TFD’s motion for summary judgment on any First Amendment claim based upon Hart’s annexation effort theory of liability is GRANTED.
3. Oyarzo and Hart’s Claim of Deprivation of a Liberty Interest.
Oyarzo and Hart’s Fifth Cause of Action for violation of Due Process against TFD is based in part on the allegation that Oyarzo and Hart were deprived of a liberty interest in their employment. (SAC ¶¶ 86-87.) TFD moved for summary judgment on this claim. (Doc. 71-2 at 12-13; Doc. 72-1 at 14-15.) Neither Hart nor Oyarzo opposed this argument. Accordingly, TFD’ motions for summary judgment as to any deprivation of a liberty interest claim are GRANTED.
4. Oyarzo and Hart’s Claim That TFD Acted in Conformance with an Official Policy or Practice.
Oyarzo and Heart’s Sixth Cause of action under 42 U.S.C. § 1983 against TFD is premised in part on the existence of a TFD official policy, custom, or practice of tolerating, encouraging and/or approving violations of employee’s constitutional rights to engage in political activity and to due process of law. (SAC ¶ 94.) TFD moved for summary judgment on this issue, arguing there is no evidence to support this theory of liability. (Doc. 71-2 at 15-16; Doc. 72-1 at 16-18.) Oyarzo and Hart fail to contest this argument. (Doc. 88 at 20-22 (asserting only theories of ratification and longstanding practice)). Accordingly, TFD’s motions for summary *1089 judgment as to any Section 1983 claim based upon official policy, custom, or practice are GRANTED.
B. Remaining Claims Against TFD.
1. Oyarzo’s FLSA Claim.
The First Cause of action arises under the Fair Labor Standards Act (“FLSA”), 29 U.S.C § 201, et seq., and is brought by Plaintiffs Oyarzo and Hart against TFD to obtain relief for hours .worked without compensation. (FAC ¶¶ 65-69.) Hart and TFD have reached a settlement on Hart’s FLSA claim (Doc. 74), leaving only Oyarzo’s claim for uncompensated hours worked.
a. Failure to Include Challenge to FLSA Claim in Notice of Motion.
Federal Rule of Civil Procedure 7(b)(1) provides: “A request for a court order must be made by motion. The motion must ... (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.” Plaintiffs complain that Defendants failed to include in their notice of motion any request or grounds for summary judgment as to Oyarzo’s first cause of action, but admit that such a request, along with legal argument, was presented in the accompanying legal memorandum. (Doc. 88 at 12.) The Court can find no support for applying Rule 7 to bar Defendants from challenging Oyarzo’s FLSA claim. Omission from the notice of motion of an argument contained within the contemporaneously filed memorandum in support cannot possibly prejudice Plaintiffs in any way. See Wallace v. Am. Tel. & Tel. Co., Inc., 460 F.Supp. 755 , 758 n. 5 (E.D.N.Y.1978) (considering argument even though it was not set forth in the notice of motion where it was raised in the memorandum of law and reply).
b. Notice of Unpaid Overtime Hours.
The relevant standards are well established. Under the FLSA, an employer must play employees for all “hours worked.” Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003) (citing 29 U.S.C. § 207 ). “Work not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11 . The words “suffer” and “permit” mean “with the knowledge of the employer.” Fox v. Summit King Mines, Ltd., 143 F.2d 926, 932 (9th Cir.1944). An employer who “knows or should have known that an employee is or was working” without compensation must comply with the provisions of the FLSA. Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981); 29 C.F.R. § 785.12 (If an “employer knows or has reason to believe that the work is being performed,” the employer must “count the time as hours worked.”).
“However, where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of [the FLSA].” Forrester, 646 F.2d at 414 . In Forrester , the defendant employer was entitled to summary judgment where the employee “deliberately omitted” to include overtime hours in a time sheet “even though he admittedly knew that he would have been paid for those hours.” Id. This is the case even though the employer may have known that the worker was putting in extra hours; to violate the FLSA, the employer must have knowledge (actual or constructive) that the time was unreported. “The relevant knowledge is not T know that the employee was working,’ but T know the employee was working and not reporting his time.’” Raczkowski v. TC *1090 Const. Co., Inc., 8 F.3d 29 , *1 (9th Cir. 1993) (applying Forrester to bar FLSA claim even though employer “might have seen [employee] while he as allegedly working on unreported time”).
In Forrester, the employee was aware that overtime was supposed to be recorded and knew that his employer regularly paid for reported overtime. Forrester v. Roth’s I.G.A. Foodliner, Inc., 475 F.Supp. 630, 631 (D.Or.1979). Although the store manager observed Forrester on occasions when Forrester later claimed he had been working uncompensated overtime, there was no evidence that the manager was aware that those hours were uncompensated. Id. Had the manager even known of Forrester’s normal work schedule, any inquiry into Forrester’s wage records would have shown that he was being paid for approximately sixteen hours of overtime each pay period. Id. Nothing put the employer on notice that Forrester might have been working more than he claimed in overtime. Id.
During the relevant time period, Oyarzo was compensated on an hourly basis. Although th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8709779. Public record. Not legal advice.