FILED NOT FOR PUBLICATION DEC 06 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD CANDELARIA and JEFF HAMM, No. 16-16346
Plaintiffs-Appellants, D.C. No. 2:14-cv-02123-JJT
v. MEMORANDUM* CITY OF TOLLESON, Arizona - a municipal corporation of the State of Arizona; GEORGE GOOD, in his individual and official capacities; WENDY JACKSON, in her individual and official capacities; and REYES MEDRANO, in his individual and official capacities,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona John J. Tuchi, District Judge, Presiding
Submitted November 17, 2017** San Francisco, California
* 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). Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,*** District Judge.
Todd Candelaria and Jeff Hamm, firefighters employed by the City of
Tolleson, Arizona, appeal from the district court’s grant of summary judgment
dismissing their retaliation claims under 42 U.S.C. § 1983 and Arizona state law.
They allege that they were disciplined in retaliation for exercising their First
Amendment right to: (1) discuss their union’s provision of relief services
following a massive fire; and (2) participate in their union’s ongoing effort to pass
a meet-and-confer policy with the City. We have jurisdiction under 28 U.S.C.
§ 1291. We review a grant of summary judgment de novo. Ellins v. City of Sierra
Madre, 710 F.3d 1049, 1056 (9th Cir. 2013). We affirm.
To determine whether a public employer impermissibly retaliated against an
employee for engaging in protected speech, the Ninth Circuit employs the five-step
inquiry set forth in Eng v. Cooley, 552 F.3d 1062, 1070–72 (9th Cir. 2009). All of
the Eng factors “are necessary, in the sense that failure to meet any one of them is
*** The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.
2 fatal to the plaintiff’s case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th
Cir. 2013) (en banc). This appeal involves the first and third Eng factors.1
1. The first Eng factor requires the employee to show that he spoke on a
matter of public concern. Eng, 552 F.3d at 1070. We agree with the district court
that plaintiffs’ speech attempting to exclude a non-union member from joining the
fire relief efforts did not address matters of public concern. The speech did not
reference matters that we have previously deemed to be of public concern, such as
government inefficiency, mismanagement, or wrongdoing. See Desrochers v. City
of San Bernardino, 572 F.3d 703, 712 (9th Cir. 2009). Nor did it shed light on the
fire department’s ability to respond effectively to life-threatening emergencies,
given that it did not address the City’s lack of an emergency response plan or
public safety concerns. Cf. Gilbrook v. City of Westminster, 177 F.3d 839, 866
(9th Cir.), as amended on denial of reh’g (9th Cir. 1999) (holding that speech
regarding public safety implications of city’s decision to reduce fire department
1 This case involves hybrid speech/association claims that are evaluated as a single claim rather than as separate freedom of speech and freedom of association claims. See Hudson v. Craven, 403 F.3d 691, 696, 698 (9th Cir. 2005) (applying the balancing test announced in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), to “hybrid speech/association claim” where speech was “so intertwined” with alleged association activity). We note that the Ninth Circuit subsequently adopted the so-called Pickering balancing test as the fourth Eng factor. See Eng, 552 F.3d at 1071–72.
3 budget involved matter of public concern). Furthermore, plaintiffs did not attempt
to publicize their speech beyond the fire department. See Desrochers, 572 F.3d at
714. At most, plaintiffs’ speech expressed their personal disagreement with
personnel decisions made by the City and is thus appropriately characterized as an
“individual personnel dispute[]” that would be of “no relevance to the public’s
evaluation of the performance of government agencies . . . .” Id. at 710 (internal
quotation marks and citations omitted). Plaintiffs’ speech relating to the fire relief
efforts therefore is not entitled to First Amendment protection.
2. The district court determined that, although plaintiffs raised a material
issue of fact as to whether the content of a separate set of speech and association
activity related to the union’s meet-and-confer policy addressed a matter of public
concern, its form and context rendered it unprotected. See id. at 709 (burden on
plaintiff to show speech addressed matter of public concern based on content,
form, and context of a given statement). We need not address this determination
on appeal because we conclude that the evidence was insufficient for a reasonable
jury to conclude that plaintiffs’ meet-and-confer-related activity was a substantial
or motivating factor in the adverse employment action, the third Eng factor. See
infra at 5.
4 3. The third Eng factor requires the employee to show that the protected
speech was a substantial or motivating factor in the adverse employment action.
Eng, 552 F.3d at 1071. To satisfy this factor, an employee 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. Coszalter
v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003).
The district court properly determined that the evidence was insufficient for
a reasonable jury to conclude that plaintiffs’ speech and association activity
relating to the union’s meet-and-confer policy was a substantial or motivating
factor in the City’s adverse employment action. Although plaintiffs claim that the
union intensified its advocacy efforts – made a “hard push” – a few months prior to
the City’s disciplinary action, the record demonstrates that the union had been
pursuing a meet-and-confer policy for over ten years. Plaintiffs’ ongoing efforts to
support the policy were thus not sufficiently proximate in time to give rise to an
inference of retaliation.
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FILED NOT FOR PUBLICATION DEC 06 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD CANDELARIA and JEFF HAMM, No. 16-16346
Plaintiffs-Appellants, D.C. No. 2:14-cv-02123-JJT
v. MEMORANDUM* CITY OF TOLLESON, Arizona - a municipal corporation of the State of Arizona; GEORGE GOOD, in his individual and official capacities; WENDY JACKSON, in her individual and official capacities; and REYES MEDRANO, in his individual and official capacities,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona John J. Tuchi, District Judge, Presiding
Submitted November 17, 2017** San Francisco, California
* 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). Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,*** District Judge.
Todd Candelaria and Jeff Hamm, firefighters employed by the City of
Tolleson, Arizona, appeal from the district court’s grant of summary judgment
dismissing their retaliation claims under 42 U.S.C. § 1983 and Arizona state law.
They allege that they were disciplined in retaliation for exercising their First
Amendment right to: (1) discuss their union’s provision of relief services
following a massive fire; and (2) participate in their union’s ongoing effort to pass
a meet-and-confer policy with the City. We have jurisdiction under 28 U.S.C.
§ 1291. We review a grant of summary judgment de novo. Ellins v. City of Sierra
Madre, 710 F.3d 1049, 1056 (9th Cir. 2013). We affirm.
To determine whether a public employer impermissibly retaliated against an
employee for engaging in protected speech, the Ninth Circuit employs the five-step
inquiry set forth in Eng v. Cooley, 552 F.3d 1062, 1070–72 (9th Cir. 2009). All of
the Eng factors “are necessary, in the sense that failure to meet any one of them is
*** The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.
2 fatal to the plaintiff’s case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th
Cir. 2013) (en banc). This appeal involves the first and third Eng factors.1
1. The first Eng factor requires the employee to show that he spoke on a
matter of public concern. Eng, 552 F.3d at 1070. We agree with the district court
that plaintiffs’ speech attempting to exclude a non-union member from joining the
fire relief efforts did not address matters of public concern. The speech did not
reference matters that we have previously deemed to be of public concern, such as
government inefficiency, mismanagement, or wrongdoing. See Desrochers v. City
of San Bernardino, 572 F.3d 703, 712 (9th Cir. 2009). Nor did it shed light on the
fire department’s ability to respond effectively to life-threatening emergencies,
given that it did not address the City’s lack of an emergency response plan or
public safety concerns. Cf. Gilbrook v. City of Westminster, 177 F.3d 839, 866
(9th Cir.), as amended on denial of reh’g (9th Cir. 1999) (holding that speech
regarding public safety implications of city’s decision to reduce fire department
1 This case involves hybrid speech/association claims that are evaluated as a single claim rather than as separate freedom of speech and freedom of association claims. See Hudson v. Craven, 403 F.3d 691, 696, 698 (9th Cir. 2005) (applying the balancing test announced in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), to “hybrid speech/association claim” where speech was “so intertwined” with alleged association activity). We note that the Ninth Circuit subsequently adopted the so-called Pickering balancing test as the fourth Eng factor. See Eng, 552 F.3d at 1071–72.
3 budget involved matter of public concern). Furthermore, plaintiffs did not attempt
to publicize their speech beyond the fire department. See Desrochers, 572 F.3d at
714. At most, plaintiffs’ speech expressed their personal disagreement with
personnel decisions made by the City and is thus appropriately characterized as an
“individual personnel dispute[]” that would be of “no relevance to the public’s
evaluation of the performance of government agencies . . . .” Id. at 710 (internal
quotation marks and citations omitted). Plaintiffs’ speech relating to the fire relief
efforts therefore is not entitled to First Amendment protection.
2. The district court determined that, although plaintiffs raised a material
issue of fact as to whether the content of a separate set of speech and association
activity related to the union’s meet-and-confer policy addressed a matter of public
concern, its form and context rendered it unprotected. See id. at 709 (burden on
plaintiff to show speech addressed matter of public concern based on content,
form, and context of a given statement). We need not address this determination
on appeal because we conclude that the evidence was insufficient for a reasonable
jury to conclude that plaintiffs’ meet-and-confer-related activity was a substantial
or motivating factor in the adverse employment action, the third Eng factor. See
infra at 5.
4 3. The third Eng factor requires the employee to show that the protected
speech was a substantial or motivating factor in the adverse employment action.
Eng, 552 F.3d at 1071. To satisfy this factor, an employee 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. Coszalter
v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003).
The district court properly determined that the evidence was insufficient for
a reasonable jury to conclude that plaintiffs’ speech and association activity
relating to the union’s meet-and-confer policy was a substantial or motivating
factor in the City’s adverse employment action. Although plaintiffs claim that the
union intensified its advocacy efforts – made a “hard push” – a few months prior to
the City’s disciplinary action, the record demonstrates that the union had been
pursuing a meet-and-confer policy for over ten years. Plaintiffs’ ongoing efforts to
support the policy were thus not sufficiently proximate in time to give rise to an
inference of retaliation. As to the City’s alleged opposition to the speech, a single
email about the meet-and-confer policy written five years earlier by a City official
not directly involved in the disciplinary action is not evidence from which a
5 reasonable jury could conclude that the City opposed the meet-and-confer-related
speech.
Finally, plaintiffs presented insufficient evidence to support their allegation
that the City used its concerns over attempts to exclude non-union members as a
pretext to discipline plaintiffs for their meet-and-confer-related speech. Both
plaintiffs had acknowledged the City’s concerns about their statements regarding
non-union members and acknowledged the relationship between those concerns
and the City’s disciplinary action. Furthermore, despite plaintiffs’ steady advocacy
for the meet-and-confer policy for several years, the City did not discipline
plaintiffs at any time prior to the statements excluding the non-union member, but
did launch an investigation within two weeks of learning of plaintiffs’ statements
attempting to exclude a non-union member from the fire relief efforts.
4. As the district court correctly held, plaintiffs’ state-law retaliation claim
under A.R.S. § 23-1411(A) fails for the same reason that the First Amendment
claims fail: plaintiffs failed to present sufficient evidence that their association
with the union was a substantial or motivating factor in the City’s adverse
employment action. Although Arizona courts have not specified a standard for
evaluating claims under A.R.S. § 23-1411(A), courts assessing retaliation claims
based on similar provisions of Arizona law have adopted the First Amendment
6 retaliation test. See Rowberry v. Wells Fargo Bank NA, No. 14-cv-1801, 2015 WL
7273136, at *5–6 (D. Ariz. Nov. 18, 2015) (adopting First Amendment retaliation
test for retaliation claims based on A.R.S. § 23-1501).
AFFIRMED.
7 FILED Candelaria v City of Tolleson, Case No. 16-16346 DEC 06 2017 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.