Desrochers v. City of San Bernardino

572 F.3d 703, 29 I.E.R. Cas. (BNA) 645, 2009 U.S. App. LEXIS 15400, 2009 WL 2004388
Court of Appeals for the Ninth Circuit·Decided July 13, 2009·No. 07-56773·Published·Cited by 97 cases

Opinions

Opinion by Judge O’Scannlain; Dissent by Judge Wardlaw

O’SCANNLAIN, Circuit Judge:

We must decide whether police officers’ complaints about their supervisors’ conduct may give rise to a constitutional violation.

I

A

Michael Desrochers and Steve Lowes have been members of the San Bernardino Police Department (“SBPD”) for over twenty years. At the time the events at issue in this case occurred, Desrochers was the sergeant in charge of the SBPD Homicide Unit, while Lowes commanded the SBPD Multiple Enforcement Team (the “Gang Unit”).

On June 23, 2006, Desrochers was transferred from the Homicide Unit to the Robbery Unit, an action he viewed as a demotion. Meanwhile, Lowes was the subject of an internal affairs investigation pertaining to an April 27, 2006, arrest. At the conclusion of the investigation, Lowes received a two-week suspension. The parties hotly contest the reasons for these employment actions. The City argues Desrochers was transferred for botching a murder investigation and Lowes was suspended for disobeying orders and endangering a suspect in custody. Desrochers and Lowes claim that both the transfer and the suspension amounted to retaliation for engaging in constitutionally protected speech, as detailed below.

On April 19, 2006, Desrochers and Lowes, along with two other SBPD sergeants (Steve Filson and William Hanley), filed an informal grievance against their supervisor, Lieutenant Mitchal Kimball, who headed the Specialized Enforcement Bureau (“SEB”).1 There is no transcript of the meeting at which they presented their concerns. According to Captain Frank Mankin, who adjudicated the grievance, the complainants alleged that “there was an ongoing and continuing issue relative to a difference of personalities between the four sergeants” and Lieutenant Kimball. Mankin continued: “It was the impression of the four sergeants that the interaction between themselves and Lieutenant Kimball had risen to a level so as to [706]*706impact the operational efficiency and effectiveness of the units over which Lieutenant Kimball had managerial oversight.” The sergeants requested that the department 1) remove Kimball from command of the SEB; 2) formally investigate the charges contained in their grievance; 3) place Kim-ball on a “[w]ork performance contract”; 4) order Kimball to attend “[i]nterpersonal relations training”; and 5) monitor Kim-ball’s conduct in the future.

After learning of the informal grievance, Kimball immediately requested a transfer from the SEB. His transfer request was granted, and Desrochers and Lowes both admit that they had little to no contact with Kimball after the transfer. Lieutenant Brian Boom replaced Kimball.

Meanwhile, Filson and Hanley reached an agreement with the Chief of Police, Michael Billdt, which resolved their concerns. Desrochers and Lowes’ grievance remained outstanding.

Believing that the SBPD had not taken adequate steps to resolve their concerns, Desrochers and Lowes filed a formal grievance against Kimball as well as Billdt and Mankin. The sergeants alleged that Kimball had created a “hostile work environment by his repeated violations” of various internal SBPD policies. The grievance also accused Billdt and Mankin of perpetuating this environment by “failing] to take appropriate action.” Desrochers and Lowes each attached declarations detailing their concerns.

In his declaration, Lowes described the “[p]roblem” as follows:

Lt. Kimball is a very autocratic, controlling and critical supervisor. Everyone that works for him has felt the stress that he brings to every situation! • • • • ] He controls and manipulates every conversation until it concludes to his satisfaction. He absolutely discourages any dissention [sic] from his opinion and gives the definite sense that anyone that disagrees with his approach is incompetent. He often uses the phrase “hammer-nail” to illustrate that he is the hammer and everyone else is the nail .... we do and go where he tells us. These are general descriptions of Lt. Kimball that are well understood by everyone under his control. He operates in the belief that everyone around him is incompetent and that, without his influence, the police department would quickly fail.

In short, Lowes asserted that Kimball’s “approach and tactics were destroying the moral [sic] and confidence of his men.”

Lowes provided examples. On one occasion, Kimball “chewed out” Lowes in front of members of the Rialto Police Department, implying that the other department was “incompeten[t].” Lowes claimed that this incident “undermined [his] effort to build a positive relationship with Rialto PD and assist them ... in a positive way.” On another occasion, “Kimball embarrassed the [San Bernardino] SWAT team by confronting a visiting SWAT team (Riverside PD),” leaving the “definite impression” that he “thought that Riverside PD was incompetent.”

Lowes also described Kimball as a “micro-manage[r],” someone who “insult[s]” fellow officers, one who “undermines ... efforts to develop ... team members,” and a man whose “need to be technically correct and powerful at every turn ultimately destroys relationships.” Lowes admitted that all the incidents he recounted “taken individually may seem minor.” Combined, however, Lowes thought that

[t]hese incidents amount to added stress and distrust in the daily operations of the unit. Individual team members feel [707]*707that Lt. Kimball is making a power play for no other reason than to be powerful. The stress and conflict between [Lowes’] team building values/mission and Lt. Kimball’s need for his definition of power or control make the [Gang Unit] sergeant position unrewarding.

Desrochers stated that while he had never before filed a complaint against any member of the police department, he did so here because he “believe[d] it to be a necessary step forward in an attempt to change the culture of this police department and the way we treat each other.” Throughout the complaint, he repeatedly referenced Kimball’s “management style.” He detailed occasions where he felt Kim-ball “belittled [him] in front of [his] investigators and patrol officers,” indicating that “[Kimball] did not trust [the] judgment” of Desrochers and his fellow officers. He also recounted “tantrum” Kimball threw in front of members of a neighboring police force. Desrochers believed that Kimball’s behavior “did not put the San Bernardino police department in a positive light,” and demonstrated that “Kimball was not eager to work cooperatively with this other agency.”

Desrochers also maintained that Kim-ball’s “autocratic style” and “disregard for [his] rank or authority ... did not inspire ... confidence, and circumvented [Desrochers’] authority with [his] investigators.” As evidence, Desrochers noted situations where Kimball’s orders contradicted his own.

Ultimately, Desrochers concluded that Kimball’s reputation as “an autocratic leader” and his “management style and bullying” affected the Homicide Unit “in a negative way.”2

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Desrochers v. City of San Bernardino, 572 F.3d 703, 29 I.E.R. Cas. (BNA) 645, 2009 U.S. App. LEXIS 15400, 2009 WL 2004388 (9th Cir. 2009).

572 F.3d 703 (Desrochers v. City of San Bernardino) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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