Opinion by Judge NOONAN; Dissent by Judge BERZON.
OPINION
NOONAN, Circuit Judge.
Elmer (“Joe”) Skaarup appeals from the grant of summary judgment to the City of North Las Vegas (the City) in his suit alleging abridgment of his right to free speech. We hold that there are no material issues of disputed fact and that, on the facts established, there was neither abridgment of Skaarup’s exercise of speech nor retaliation for this lawsuit.
FACTS
In early December 1997, Skaarup, then the Chief Fire Marshall of the City, was advised that two of the five inspector positions in his department would be eliminated by the City. One of the two positions was held by a woman, Mary Griego. Grie-go later called Skaarup in distress that she was being transferred to Planning with what she thought was a substantial loss of salary. Skaarup called his own superior, Fire Chief Michael Massey, to find out what was going on. Massey told him that he “had no idea” but “that a deal must have been struck between IAFF 1607 [the Union] and City Management.” Massey added that the elimination of inspectors “shows the pattern of how [Deputy City Manager Patrick] Importuna treats employees and deals with the union.”
At a staff meeting the following day, Chief Massey said that the union would fight for Griego’s job. He also told Skaar-up “that he was not surprised that the City had developed a pattern of conduct toward female employees.” Skaarup was upset personally and upset because Dominic Gonzales, the man transferred out of his unit, and Mary Griego were his “best producers.” Skaarup at no time spoke to the women Massey claimed were part of this pattern about whether they felt they had been victims of discrimination.
[1042]*1042On December 11, 1997, Skaarup called Captain Stephanie Wuthrich into his office and, separately, Engineer Terri Tarbett. Neither of these employees of the City’s fire department were in his unit. Skaarup said he called them in because “I like both of them. I wanted to find what their opinions were. What their insight might be. And that’s why I did it.” As he repeated in his deposition as to Wuthrich, “This was a private conversation ... I wanted to get her take on this. I wanted to see how somebody else viewed this.” The conversation with Wuthrich lasted only a few minutes.
Skaarup told Wuthrich and Tarbett that the Union had “sold Mary Griego down the road” and that her elimination was an example of Deputy City Manager Importu-na firing women over forty who were single heads of households. Skaarup ascribed this view to Fire Chief Massey and said, “Massey’s right, they’re targeting women.” Running into Wuthrich in the hall later, Skaarup talked to her in the captains’ hall, where others were present, about why government would operate this way, referring to the transfers of both Griego and Gonzalez. In January 1995, Wuthrich and Tarbett sent memos to Im-portuna relating the substance of their conversations with Skaarup; the women did not express an opinion on what they had heard.
On April 28, 1998, Skaarup was charged with violating the Fire Department’s Rules of Conduct, Administrative Regulations, § 1005. A disciplinary hearing was held on May 5, 1998, with Skaarup and his lawyer present. On May 21, 1998, the new Fire Chief, Robert Dodge, sustained the charges against Skaarup. Chief Dodge found the statement about the Union making a deal to be untrue and the statement about a discriminatory pattern being established by Importuna to be untrue. The Chief found both statements derogatory of City Management, “so disrespectful of your employer as to seriously impair the maintenance of discipline, undermine City Management and discredit the Fire Department,” and divisive in relation to the Union. Taking into account two previous occasions on which Skaarup had been disciplined (for abusive speech to an employee and for setting fire to a homeless person’s camp and belongings), the Chief suspended Skaarup without pay for eight days. Skaarup did not appeal. It is out of this suspension that Skaarup has made a federal case.
On April 7, 1999, the City Council voted to approve an independent audit of all the City’s departments, to be conducted by Ralph Anderson & Associates, a national consulting group. On October 5, 1999, the consultants filed their report. It included 92 recommendations as to budget, financial management, restructuring of several city departments, the addition and deletion of various staff positions, and a reallocation of the resources of the Fire Department, including the reclassification of the Fire Marshall to Fire Inspector.
The day the report was presented, the City Council voted to accept it and directed staff to begin to implement its recommendation. On February 15, 2000, Skaar-up was informed that the reclassification of his position to the lower position of Fire Inspector would be carried out.
PROCEEDINGS
On July 26, 1999, Skaarup filed this suit. On April 10, 2000, he amended his complaint to charge that the reclassification of his position was retaliation for the suit. He alleged, under 42 U.S.C. § 1983 and the Nevada Constitution, violation of his free speech rights; breach of the implied covenant of good faith and fair dealing; and “retaliatory conduct,” without refer[1043]*1043ence to any particular statute or constitution.
On June 28, 2001, Skaarup moved for partial summary judgment on his free speech claim. On June 29, 2001, the City moved for summary judgment on all claims. On October 9, 2001, the district court denied Skaarup’s motion and granted the City’s motion. The court applied “a balancing test” to Skarrup’s First Amendment claim. The court doubted that Skaarup’s comments were of public concern when he took no steps to make them public knowledge. On the other side of the balancing test, the City had a right to run an efficient fire department and Skaarup’s comments were divisive in a way that “would affect the efficient operation and morale” of the department. The court held there was no violation of Skaarup’s right to free speech, no breach of the implied covenant of good faith, and no evidence that the city-wide audit was a ruse to target Skaarup.
On November 8, 2001, Skaarup filed this appeal.
ANALYSIS
Two elements of Skaarup’s free speech claim are established beyond dispute: he incurred the adverse employment action of eight days suspension, and he incurred it because of his speech. See Ulrich v. City and County of San Francisco, 308 F.3d 968, 976 (9th Cir.2002). A portion of his speech—that the City was discriminating against women and particularly women over 40—touched on a matter of public concern. See id. Therefore, it was appropriate for the district court to balance his right to speak against the City’s interest in effective government.
The balancing that must be undertaken to find constitutional protection for the speech is “particularized” and depends “upon the nature of the employee’s expression.” Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by Judge NOONAN; Dissent by Judge BERZON.
OPINION
NOONAN, Circuit Judge.
Elmer (“Joe”) Skaarup appeals from the grant of summary judgment to the City of North Las Vegas (the City) in his suit alleging abridgment of his right to free speech. We hold that there are no material issues of disputed fact and that, on the facts established, there was neither abridgment of Skaarup’s exercise of speech nor retaliation for this lawsuit.
FACTS
In early December 1997, Skaarup, then the Chief Fire Marshall of the City, was advised that two of the five inspector positions in his department would be eliminated by the City. One of the two positions was held by a woman, Mary Griego. Grie-go later called Skaarup in distress that she was being transferred to Planning with what she thought was a substantial loss of salary. Skaarup called his own superior, Fire Chief Michael Massey, to find out what was going on. Massey told him that he “had no idea” but “that a deal must have been struck between IAFF 1607 [the Union] and City Management.” Massey added that the elimination of inspectors “shows the pattern of how [Deputy City Manager Patrick] Importuna treats employees and deals with the union.”
At a staff meeting the following day, Chief Massey said that the union would fight for Griego’s job. He also told Skaar-up “that he was not surprised that the City had developed a pattern of conduct toward female employees.” Skaarup was upset personally and upset because Dominic Gonzales, the man transferred out of his unit, and Mary Griego were his “best producers.” Skaarup at no time spoke to the women Massey claimed were part of this pattern about whether they felt they had been victims of discrimination.
[1042]*1042On December 11, 1997, Skaarup called Captain Stephanie Wuthrich into his office and, separately, Engineer Terri Tarbett. Neither of these employees of the City’s fire department were in his unit. Skaarup said he called them in because “I like both of them. I wanted to find what their opinions were. What their insight might be. And that’s why I did it.” As he repeated in his deposition as to Wuthrich, “This was a private conversation ... I wanted to get her take on this. I wanted to see how somebody else viewed this.” The conversation with Wuthrich lasted only a few minutes.
Skaarup told Wuthrich and Tarbett that the Union had “sold Mary Griego down the road” and that her elimination was an example of Deputy City Manager Importu-na firing women over forty who were single heads of households. Skaarup ascribed this view to Fire Chief Massey and said, “Massey’s right, they’re targeting women.” Running into Wuthrich in the hall later, Skaarup talked to her in the captains’ hall, where others were present, about why government would operate this way, referring to the transfers of both Griego and Gonzalez. In January 1995, Wuthrich and Tarbett sent memos to Im-portuna relating the substance of their conversations with Skaarup; the women did not express an opinion on what they had heard.
On April 28, 1998, Skaarup was charged with violating the Fire Department’s Rules of Conduct, Administrative Regulations, § 1005. A disciplinary hearing was held on May 5, 1998, with Skaarup and his lawyer present. On May 21, 1998, the new Fire Chief, Robert Dodge, sustained the charges against Skaarup. Chief Dodge found the statement about the Union making a deal to be untrue and the statement about a discriminatory pattern being established by Importuna to be untrue. The Chief found both statements derogatory of City Management, “so disrespectful of your employer as to seriously impair the maintenance of discipline, undermine City Management and discredit the Fire Department,” and divisive in relation to the Union. Taking into account two previous occasions on which Skaarup had been disciplined (for abusive speech to an employee and for setting fire to a homeless person’s camp and belongings), the Chief suspended Skaarup without pay for eight days. Skaarup did not appeal. It is out of this suspension that Skaarup has made a federal case.
On April 7, 1999, the City Council voted to approve an independent audit of all the City’s departments, to be conducted by Ralph Anderson & Associates, a national consulting group. On October 5, 1999, the consultants filed their report. It included 92 recommendations as to budget, financial management, restructuring of several city departments, the addition and deletion of various staff positions, and a reallocation of the resources of the Fire Department, including the reclassification of the Fire Marshall to Fire Inspector.
The day the report was presented, the City Council voted to accept it and directed staff to begin to implement its recommendation. On February 15, 2000, Skaar-up was informed that the reclassification of his position to the lower position of Fire Inspector would be carried out.
PROCEEDINGS
On July 26, 1999, Skaarup filed this suit. On April 10, 2000, he amended his complaint to charge that the reclassification of his position was retaliation for the suit. He alleged, under 42 U.S.C. § 1983 and the Nevada Constitution, violation of his free speech rights; breach of the implied covenant of good faith and fair dealing; and “retaliatory conduct,” without refer[1043]*1043ence to any particular statute or constitution.
On June 28, 2001, Skaarup moved for partial summary judgment on his free speech claim. On June 29, 2001, the City moved for summary judgment on all claims. On October 9, 2001, the district court denied Skaarup’s motion and granted the City’s motion. The court applied “a balancing test” to Skarrup’s First Amendment claim. The court doubted that Skaarup’s comments were of public concern when he took no steps to make them public knowledge. On the other side of the balancing test, the City had a right to run an efficient fire department and Skaarup’s comments were divisive in a way that “would affect the efficient operation and morale” of the department. The court held there was no violation of Skaarup’s right to free speech, no breach of the implied covenant of good faith, and no evidence that the city-wide audit was a ruse to target Skaarup.
On November 8, 2001, Skaarup filed this appeal.
ANALYSIS
Two elements of Skaarup’s free speech claim are established beyond dispute: he incurred the adverse employment action of eight days suspension, and he incurred it because of his speech. See Ulrich v. City and County of San Francisco, 308 F.3d 968, 976 (9th Cir.2002). A portion of his speech—that the City was discriminating against women and particularly women over 40—touched on a matter of public concern. See id. Therefore, it was appropriate for the district court to balance his right to speak against the City’s interest in effective government.
The balancing that must be undertaken to find constitutional protection for the speech is “particularized” and depends “upon the nature of the employee’s expression.” Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 152-53, 103 S.Ct. 1684.
Skaarup spoke privately to two individuals; he made no effort either to address the allegations with his superiors or to make them public. Compare Gilbrook v. City of Westminster, 177 F.3d 839, 867 (9th Cir.1999) and Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 981(9th Cir.1998). Skaarup was given the opportunity to present to the City of North Las Vegas anything relevant to the incident at his May 5, 1998 hearing. He presented no evidence at that hearing that he spoke to Tarbett and Wuthrich because of their expertise in women’s issues. At the time of his suspension, the City had had no reason to believe that he had contacted these women because of their connection with the women firefighter’s group; that assertion, emerged only in his deposition in this case a year and eight months later. The January 1998 memos from Tarbett and Wuthrich to Importuna do not indicate in the slightest that Skaar-up approached them because of their interest in equal employment issues.
Furthermore, when Skaarup made his statements, he lacked the first-hand knowledge of the truth of the allegations. No per se rule exists that speech to be protected must be truthful. Johnson v. Multnomah County, 48 F.3d 420, 424(9th Cir.1995). But it is equally clear that untruthful information about government is not helpful to the public. In this case, after a hearing from which he did not appeal, Skaarup was found to have made untruthful statements about the policy of the City and about the Union representing the firefighters. While latitude is extended to inexactitude in political discourse, the [1044]*1044public interest in such unsubstantiated rumors is small. At best, Skaarup was taking sides with Fire Chief Massey in a dispute with Deputy City Manager Impor-tuna, in the course of which Massey seized on the transfer of two employees, one a woman and the other a man, to try to make the issue one of gender. The public interest in bureaucratic infighting is also small.
On the other side of the balance was the City’s interest in not disrupting relations with the Union, the City’s interest in protecting the good name of its deputy city manager, and the City’s interest in not having its own reputation besmirched by comments attributed to its fire chief. The City’s interest was heightened by Skaar-up’s relatively prominent position and his quotation of an even higher city official, the fire chief. See Pool v. Vanrheen, 297 F.3d 899, 908 (9th Cir.2002). As a matter of law, these interests of the City outweighed Skaarup’s right to retail the fire chiefs and his own suspicions, especially given the narrow focus and the limited audience of two to whom Skaarup spoke. Gilbrook, 177 F.3d at 868.
The second cause of action, for breach of the covenant of good faith and fair dealing, falls with the first. The third cause of action, for retaliation, is entirely unsupported. It seeks to turn a city-wide reorganization, based on a study initiated before this lawsuit, into the satisfaction of a grudge against Skaarup. The lack of showing here is attributed to a cutoff of discovery, but Skaarup had nearly two months to investigate the facts before he made this baseless addition to his suit.
AFFIRMED.