Todd Roberts v. Springfield Utility Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD ROBERTS, No. 21-36052

Plaintiff-Appellant, D.C. No. 6:19-cv-

01595-MC

v.

SPRINGFIELD UTILITY BOARD, a OPINION

Public Body; JEFF NELSON, in his

individual capacity; BOB FONDREN,

in his individual capacity; KATHY

PECK, in her individual capacity;

DIAN RUBANOFF, in her individual

capacity; JANIS BREW, in her

individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted February 6, 2023

Portland, Oregon

Filed May 12, 2023

2 ROBERTS V. SPRINGFIELD UTILITY BD.

Before: MILAN D. SMITH, JR., DANIELLE J.

FORREST, and JENNIFER SUNG, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of defendants in an action brought

pursuant to 42 U.S.C. § 1983 alleging, in part, First

Amendment violations when plaintiff’s former employer,

the Springfield Utility Board, restricted him from speaking

with potential witnesses and other employees as part of an

internal investigation into plaintiff’s alleged misconduct.

The panel held that the communication restriction

complained of by plaintiff did not violate the First

Amendment because it did not limit plaintiff’s ability to

speak about matters of public concern. Nothing in

defendants’ instructions barred him from speaking about any

alleged mismanagement at the Springfield Utility Board or

other topics that would potentially relate to a matter of public

concern. Rather, the restrictions merely barred him from

personally discussing his own alleged violation of

Springfield Utility Board policies—a matter of private,

*

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

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

ROBERTS V. SPRINGFIELD UTILITY BD. 3

personal concern—with potential witnesses or fellow

Springfield Utility Board employees.

The panel addressed the remainder of the issues in a

concurrently filed memorandum disposition.

COUNSEL

Robert E. Franz Jr. (argued), Law Office of Robert E. Franz

Jr., Springfield, Oregon, for Plaintiff-Appellant.

Beth F. Plass (argued) and Karen M. Vickers, Vickers Plass

LLC, Lake Owego, Oregon, for Defendants-Appellees

Springfield Utility Board, Jeff Nelson, Bob Fondren, and

Janis Brew.

Janet M. Schroer (argued) and Ruth A. Casby, Hart Wagner

LLP, Portland, Oregon, for Defendants-Appellees Kathy

Peck and Dian Rubanoff.

OPINION

M. SMITH, Circuit Judge:

Todd Roberts previously worked for the Springfield

Utility Board (SUB). As part of an internal investigation

into Roberts’ alleged misconduct, SUB restricted Roberts

from speaking with potential witnesses and other SUB

employees regarding the subject of the investigation while it

was underway. Roberts sued SUB, certain SUB employees,

and SUB’s retained counsel pursuant to 42 U.S.C. § 1983,

alleging that the investigation-related speech restrictions

4 ROBERTS V. SPRINGFIELD UTILITY BD.

violated the First Amendment. The district court granted

summary judgment in favor of Defendants, and Roberts

appealed.

We hold that the communication restriction complained

of by Roberts does not violate the First Amendment because

it did not limit Roberts’ ability to speak about matters of

public concern. Rather, it merely barred him personally

from discussing his own alleged violation of SUB policies—

a matter of private, personal concern—with potential

witnesses or fellow SUB employees. This restriction did not

violate the First Amendment. We therefore affirm. 1

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

For over two years, Todd Roberts worked as a Safety and

Environmental Coordinator for SUB. During that time, SUB

policy stated that “[e]mployees are expected to keep

unscheduled absences and tardiness to a minimum by

making every effort to arrive to work as scheduled and return

from meal and rest periods on time.” SUB further required

that “[e]xcept in emergency or illness situations, requests for

[time off] . . . must be submitted to an employee’s supervisor

in advance.” SUB policy also warned that “[d]ishonesty of

any type including falsifying any document or verbal

misrepresentations” is a violation that “should generally

result in immediate dismissal.”

In August 2019, Roberts took unscheduled time off.

That morning, Roberts emailed SUB’s HR Manager: “I will

be out all today working on the kids school/sport

1

We address the remainder of the issues Roberts raised on appeal in a

concurrently filed memorandum disposition.

ROBERTS V. SPRINGFIELD UTILITY BD. 5

registrations and such to ensure they are all ready for school

next week.” Four minutes later, however, Roberts emailed

a co-worker: “I’m looking at your boat’s slip right now

headed to the Pig N Pancake.” The record indicates that

Roberts later attempted to delete this email.

After discovering that Roberts may have misrepresented

the reason for his absence from work, SUB hired two

attorneys, Kathy Peck and Dian Rubanoff. SUB retained

Rubanoff to investigate Roberts’ suspected “dishonesty

related to [his] work attendance.” It also retained Peck to

provide legal advice during that investigation.

In September 2019, SUB placed Roberts on paid

administrative leave pending an investigation into whether

he had been truthful about his unscheduled time off. The

Notice of Paid Administrative Leave from Defendant Bob

Fondren, SUB’s Finance Director, read:

“While this matter is being investigated, you

are prohibited from engaging in

communication in any form with any

employees of SUB other than me, unless you

have received prior written permission from

me for such communications. Any contact

with SUB employees, including your

supervisor, regarding this matter will

constitute gross insubordination and be

subject to disciplinary action, including

immediate termination of employment. The

directives above are not intended to limit

your ability to provide information on your

own behalf. You will be given an

opportunity to respond to any claims made

against you.” (Emphasis added.)

6 ROBERTS V. SPRINGFIELD UTILITY BD.

Rubanoff then interviewed Roberts twice. At the

beginning of the first interview, Rubanoff instructed

Roberts:

“To protect the integrity of the investigation,

you are restricted from discussing it with

other employees of SUB while it is ongoing,

current or former employees. You have

received a separate notice of paid

administrative leave, and nothing in my

introductory notes here is intended to change

any instructions you were given in that

notice.” (Emphasis added.)

After that interview, Roberts’ attorney sent Rubanoff an

email requesting that SUB remove the communication

restriction on Roberts on the basis that it prevented him from

gathering information for his defense. SUB declined the

request.

During Roberts’ second interview, Rubanoff repeated

her instruction not to speak with potential witnesses about

the investigation:

“I’m going to instruct you not to

communicate with any potential witnesses

about the information that you’ve given . . .

Do not communicate with potential

witnesses we’ve discussed about the

investigation or about the information

you’ve provided in the investigation[.]”

(Emphasis added.)

Rubanoff clarified that the communication restriction

applied only during the pendency of the investigation, did

ROBERTS V. SPRINGFIELD UTILITY BD. 7

not apply to Roberts’ discussions with his wife, did not

prevent Roberts’ attorney from contacting witnesses on

Roberts’ behalf, and that Roberts would have the

opportunity to contact potential witnesses upon the

conclusion of the investigation. She further indicated that

the restriction was intended to prevent Roberts from

potentially interfering with witness statements.

In December 2019, SUB issued a Notice of Proposed

Termination to Roberts, which described the findings of the

investigation and the policies SUB determined that Roberts

had violated. The notice informed Roberts of the date and

time of his pre-termination meeting, which Roberts did not

attend. SUB then tendered a Notice of Termination to

Roberts the day after his pre-termination meeting was

scheduled, informing him of his right to seek review of the

decision in a post-termination hearing. Roberts did not seek

review of his firing in a post-termination hearing.

B. Procedural History

During the pendency of SUB’s investigation into his

conduct, Roberts filed the present lawsuit. Relevant here,

Roberts asserts a claim pursuant to 42 U.S.C. § 1983 that

Defendants—SUB, certain SUB employees, and SUB’s

retained counsel—violated his First Amendment right to free

speech by instructing him not to speak with other SUB

employees during the pendency of the investigation. The

district court granted summary judgment in favor of

Defendants. It assumed that SUB’s instructions limited

Roberts’ ability to speak on matters of public concern but

determined that the restriction was nonetheless permissible

because it served SUB’s legitimate interest in preventing

interference with the ongoing investigation into his alleged

misconduct. Roberts now appeals.

8 ROBERTS V. SPRINGFIELD UTILITY BD.

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a district court’s decision to grant summary judgment

de novo, and we may affirm on any ground supported by the

record. Barone v. City of Springfield, 902 F.3d 1091, 1097

(9th Cir. 2018).

ANALYSIS

The limited speech restrictions that SUB placed on

Roberts during the pendency of its internal investigation into

his alleged misconduct did not violate the First

Amendment. 2 A public employer “may impose restraints on

the job-related speech of public employees that would be

plainly unconstitutional if applied to the public at large.”

United States v. Nat’l Treasury Emps. Union (NTEU), 513

U.S. 454, 465 (1995). When evaluating such government-

employer restraints, we apply the two-step balancing test

derived from Pickering v. Board of Education, 391 U.S. 563

(1968), and its progeny. We first look to “whether the

employee spoke as a citizen on a matter of public concern.”

See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If so,

we then consider “whether the relevant government entity

had an adequate justification for treating the employee

differently from any other member of the general public.”

Id. If, on the other hand, the speech did not address a matter

of public concern, the employee simply has no First

2

To state a claim pursuant to § 1983, a plaintiff must allege defendants

acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640

(1980). As a general matter, a person acts under color of state law if her

conduct is “fairly attributable to the State.” Lugar v. Edmondson Oil

Co., 457 U.S. 922, 937–38 (1982). We assume without deciding that

Peck and Rubanoff are state actors for the purpose of analyzing whether

Roberts can establish § 1983 liability.

ROBERTS V. SPRINGFIELD UTILITY BD. 9

Amendment cause of action under Pickering. Id.; see also

Connick v. Myers, 461 U.S. 138, 146 (1983) (concluding that

if a plaintiff’s speech “cannot be fairly characterized as

constituting speech on a matter of public concern, it is

unnecessary for [a court] to scrutinize the reasons for her

discharge”).

“Speech involves matters of public concern when it can

be fairly considered as relating to any matter of political,

social, or other concern to the community, or when it is a

subject of legitimate news interest; that is, a subject of

general interest and of value and concern to the public.”

Lane v. Franks, 573 U.S. 228, 241 (2014) (cleaned up).

“Whether an employee’s speech addresses a matter of public

concern must be determined by the content, form, and

context of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147–48. “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.’” Coszalter v. City of Salem, 320 F.3d 968,

973 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705

F.2d 1110, 1114 (9th Cir. 1983)); see also Connick, 461 U.S.

at 147–48 (determining that communications regarding an

employee’s various workplace grievances did not constitute

matters of public concern).

Where, as here, a public employer instructs an employee

not to communicate with potential witnesses regarding a

workplace misconduct investigation during the pendency of

that investigation, the impacted speech generally is not on a

matter of public concern under Pickering. Here, the

communication restriction affected Roberts’ personal ability

to discuss only the investigation into his own alleged

violation of SUB personnel policies governing time off and

10 ROBERTS V. SPRINGFIELD UTILITY BD.

employee dishonesty. Further undercutting Roberts’ claim,

his attorney was not restricted from contacting any SUB

employees about Roberts’ alleged actions during the

pendency of the investigation. Any speech impacted by

SUB’s instruction concerned a quintessential “individual

personnel dispute[]” that is of “no relevance to the public’s

evaluation of [SUB’s] performance.” Coszalter, 320 F.3d at

973.

Roberts resists this conclusion by arguing that the

communication restriction was “[not] limited to topics

relating to the investigation” and “covered all speech” with

“his co-employees,” including speech regarding the “abuse

of employees by management, mismanagement of funds,

and hostilities in the workplace created by management.”

But this mischaracterizes the record. Contrary to Roberts’

assertions, nothing in Defendants’ instructions barred him

from speaking about any alleged mismanagement at SUB or

other topics that would potentially relate to a matter of public

concern. Instead, the restriction placed on Roberts’ speech

pertained only to communication with SUB employees or

other potential witnesses regarding the ongoing

investigation into his alleged misconduct. Roberts was free

to speak with fellow employees—or anyone else—regarding

SUB’s “performance” of its duties had he wished to do so.

See Coszalter, 320 F.3d at 973. Accordingly, his First

Amendment claim fails.

CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment in favor of Defendants is AFFIRMED.