Rod Edwards v. Multnomah County Sheriff Dept.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 16-35566
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ROD EDWARDS, No. 16-35566

Plaintiff-Appellant, D.C. No. 3:14-cv-00531-AC

v. MEMORANDUM* MULTNOMAH COUNTY SHERIFF DEPARTMENT; JENNIFER OTT; TIM MOORE; JASON GATES; DANIEL STATON,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted May 11, 2018** Portland, Oregon

Before: RAWLINSON and CHRISTEN, Circuit Judges, and BLOCK,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Plaintiff-Appellant Rod Edwards (Edwards) appeals the district court’s grant

of summary judgment in favor of Defendants-Appellees Multnomah County

Sheriff Department (MCSO), Sheriff Daniel Staton (Staton), Director of Human

Resources Jennifer Ott (Ott), Under Sheriff Tim Moore (Moore), and Chief Deputy

Jason Gates (Gates). Edwards, a Sergeant with MCSO, applied for, but did not

receive, a promotion to lieutenant in 2012. Edwards subsequently filed an action

pursuant to 42 U.S.C. § 1983, alleging that, in retaliation for Edwards’s separate

lawsuit against MCSO in 2003, MCSO officials intentionally misapplied a disabled

veteran’s preference to which Edwards was entitled during the 2012 promotional

process. Edwards asserts on appeal that a genuine issue of material fact remains as

to whether MCSO officials failed to afford Edwards the veteran’s preference in

retaliation for his engagement in protected speech (filing the prior lawsuit). We

review the district court’s decision to grant summary judgment de novo, and

affirm. See Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013).

To establish a prima facie case of retaliation on the basis of protected

speech, a plaintiff must demonstrate “that (1) he spoke on a matter of public

concern, (2) he spoke as a private citizen rather than a public employee, and (3) the

relevant speech was a substantial or motivating factor in the adverse employment

action.” Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 822 (9th Cir. 2017).

2 Only the third requirement, whether Edwards’s speech was a substantial or

motivating factor in the adverse employment action, is at issue.

“To establish that retaliation was a substantial or motivating factor behind an

adverse employment action, a plaintiff may introduce evidence that (1) the speech

and adverse action were proximate in time, such that a jury could infer that the

action took place in retaliation for the speech; (2) the employer expressed

opposition to the speech, either to the speaker or to others; or (3) the proffered

explanations for the adverse action were false and pretextual. . . .” Ellins, 710 F.3d

at 1062 (citation omitted).

The length of time between Edwards’s speech and the misapplication

of his veteran’s preference does not raise a material issue of fact regarding

retaliation. Cf. Ellins, 710 F.3d at 1062-63 (addressing a “four-to-five month

period”). Approximately nine years passed between the initiation of Edwards’s

prior lawsuit in 2003 and his candidacy for promotion in 2012. During this period,

Edwards received the benefit of favorable employment decisions: he applied for

and received a promotion to sergeant in 2005 and applied for and received a

transfer to the River Patrol Unit in 2010. Cf. Flores v. City of Westminster, 873

F.3d 739, 750 (9th Cir. 2017) (“[E]vidence of a series of adverse employment

decisions over the course of several years may itself be probative of the elusive

3 factual question of intent. . . .”) (citation, alterations, and internal quotation marks

omitted).

Edwards also failed to raise a material issue of fact regarding MCSO

officials’ opposition to his speech. Staton, who made the ultimate promotion

decision, did not know of Edwards’s prior lawsuit, and Edwards points to nothing

in the record to indicate that Ott, Moore, or Gates were influenced by the prior

lawsuit. Cf. Ellins, 710 F.3d at 1063. Thus, Edwards failed to raise a genuine

issue of material fact as to whether MCSO officials retaliated against him because

of the lawsuit. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 646 (9th Cir.

2004), as amended (requiring the showing of a causal link).

Finally, Edwards did not raise a material issue of fact regarding pretext. Ott

explained that application of the veteran’s preference, though ultimately in

violation of Oregon’s requirements, was done in an attempt to better tailor the

promotional process to the particular position. Edwards was considered the top

candidate going into each stage of the interview process. Edwards points to

nothing in the record to undermine or contradict this explanation. Cf. Thomas v.

Cty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (observing that a genuine

issue of material fact existed where the “supposed justification for the [challenged]

investigation was sufficiently thin and subjective that a reasonable juror might,

4 particularly in light of [the plaintiff’s] other allegations, find that the supposed

justification was in fact pretextual”), amended, 776 F.3d 1020 (9th Cir. 2015).

AFFIRMED.