James v. Apache Junction, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 David James, No. CV-23-00832-PHX-KML 10 Plaintiff, ORDER 11 v. 12 City of Apache Junction, et al., 13 Defendants. [14] 15 Plaintiff David James worked as a police officer for defendant City of Apache 16 Junction (the “City”) from 2012 until his termination in 2022. Believing his termination 17 was unlawful, James filed this lawsuit against the City, Police Chief Michael Pooley, and 18 City Manager Bryant Powell. 19 James alleges he was terminated because of his disability and involvement in 20 protected activity. Defendants counter that James was fired for his dishonesty surrounding 21 the events of a traffic stop. Defendants are entitled to summary judgment on the federal 22 claims and the parties must file statements explaining whether the court should remand the 23 remaining claims to state court. 24 I. Background 25 The undisputed facts of the events are outlined below. When disputed, James’s 26 version of events is accepted. 27 As of March 2021, James was serving as a police officer for the City. He had 28 previously been the president of the Apache Junction Police Association (the 1 “Association”). (Doc. 74-2 at 62.) In his role as immediate past president of the 2 Association, James sent a memorandum (the “Association Memo”) to City leadership 3 expressing concerns about police department management. (Doc. 74-2 at 62, 80–86.) The 4 memo stated the Association believed “an immediate change in leadership” was necessary. 5 (Doc. 74-2 at 86.) James contends the Association Memo marked the beginning of the City 6 leadership’s desire to terminate him. (Doc. 74-2 at 73.) When James sent the memo, 7 Thomas Kelly—who is not a defendant here—was the police chief. Defendant Bryant 8 Powell was the city manager and remained in that position throughout the alleged events. 9 In August 2021, James was involved in a traffic stop at a gas station. (Doc. 67-1 at 10 43.) The events of that traffic stop, and James’s initial descriptions of those events, are 11 central to this case. According to surveillance video of the encounter,1 a member of the 12 public not involved in the traffic stop (later identified as Karl Williams) was recording the 13 traffic stop when James entered the frame and walked toward him. (Doc. 69-1, Ex. B at 14 3:05.) That prompted Williams to move laterally. (Doc. 69-1, Ex. B at 3:16–18.) James 15 then continued to approach Williams, who moved backward. (Doc. 69-1, Ex. B at 3:18– 16 3:19.) After the two seemed to talk while Williams continued filming, James grabbed 17 Williams (Doc. 69-1, Ex. B at 3:27–29), who was then wrestled to the ground and arrested 18 by James and another officer. (Doc. 69-1, Ex. B at 3:39–43.) 19 The police report James prepared presented a different version of events. (See Doc. 20 67-1 at 54–55.) According to the report, another officer warned James three times that 21 Williams was approaching him. (Doc. 67-1 at 54; see also Doc. 67-1 at 106.) Each time 22 James turned to check, Williams was closer than before. (Doc. 67-1 at 54.) Crucially, the 23 report claims that when James turned to fully face Williams, Williams was already within 24 arm’s reach, meaning Williams approached James (instead of the other way around). (Doc. 25 67-1 at 54.) James ordered Williams to move away from the scene but Williams did not, 26 then also did not put his hands behind his back when ordered to. (Doc. 67-1 at 54–55.) [27] 1 A deposition references two surveillance videos from the gas station. (Doc. 67-2 at 33.) 28 A different deposition mentions only one. (Doc. 74-2 at 30.) Only one video was provided as an exhibit, so that is the one described here. (Doc. 69-1, Ex. B.) 1 When three officers could not restrain Williams’s arms behind his back, he was taken to 2 the ground and handcuffed. (Doc. 67-1 at 110.) Afterward, Williams requested medical 3 attention, was evaluated by the fire department, and was taken into police custody. (Doc. 4 67-1 at 106.) 5 Williams was charged with criminal nuisance, resisting arrest, and hindering 6 prosecution. (Doc 74-4 at 67.) While preparing for trial, Williams’s defense attorney 7 “attempted several times to schedule an interview with Sgt. James, who refused to complete 8 the interview [until] mandated [to do so] by the municipal court.” (Doc. 67-1 at 104.) 9 During the interview (Doc. 67-2 at 40), James reiterated he did not advance toward 10 Williams. (Doc. 67-1 at 58.) The city prosecutor ultimately dropped all charges against 11 Williams due to a lack of evidence. (Doc. 67-2 at 6.) 12 Approximately two months after the incident with Williams, James oversaw a call 13 involving a potential suicide. (Doc. 74-2 at 19.) James requested the SWAT team’s 14 deployment along with a commander’s presence. (Doc. 74-2 at 19.) Another member of 15 the police department called the SWAT team off. (Doc. 74-3 at 25, 27.) While James “had 16 no issues with how the incident played out . . . [h]e did have issues with conversations that 17 followed [it].” (Doc. 67-3 at 4.) Those conversations began after James sent an email to 18 certain supervisors and administrative staff in which he was “critical of personnel and the 19 Department protocol regarding the activation/response of SWAT.” (Doc. 67-3 at 2, 3.) This 20 email led to tension and an exchange of insults with Sgt. B. Rollins, who felt the email was 21 disrespectful and unprofessional. (Doc. 67-3 at 3.) 22 James left work without permission the day of the SWAT incident but sent his 23 commander a text requesting time off. (Docs. 67-3 at 2, 5, 74-3 at 28, 50.) James also turned 24 in his department identification card but said it was not an indication he was resigning and 25 instead because he needed some time off. (Doc. 67-3 at 4.) James also claims he told the 26 commander about his history of post-traumatic stress disorder (“PTSD”)—which he claims 27 was exacerbated due to the incident (Doc. 74 at 4)—and that he was going to see his doctor. 28 (Doc. 74-2 at 19.) 1 Former Police Chief Kelly “initiated an internal investigation into [James’s] 2 conduct” on the day of the SWAT incident, which was conducted by an independent third 3 party (Pinal County). (Doc. 67 at 17.) The investigation found James violated the police 4 department’s policies and procedures, including by leaving work without being excused 5 and by sending a disrespectful email to department members. (Doc. 67-3 at 4–5.) The report 6 also “strongly suggested that the Police Department have a fitness for duty evaluation . . . 7 before Sgt. James is returned to full duty.” (Doc. 67-3 at 5.) That finding was partially 8 based on James “demonstrat[ing]” and “verbally express[ing] that he has difficulty dealing 9 with the stressors of his position and interpersonal co-worker relationships that affect his 10 ability to perform his supervisory function at the Police Department.” (Doc. 67-3 at 5.) The 11 evaluation determined James was “fit for duty with considerations” such as a suggestion 12 that he be required to attend a psychological counseling visit. (Doc. 74-3 at 61.) James 13 believes the fit-for-duty exam was merely the administration’s attempt to “get rid of [him] 14 in an easy way.” (Doc. 74-2 at 73.) 15 On November 3, 2021, then-police chief Kelly provided the Pinal County chief 16 investigator with a document detailing allegations from two detectives “who believed that 17 Sgts James” and two others “committed fraud schemes and theft from the City in recent 18 pay scale negotiations.” (Doc. 74-3 at 65.) The detectives believed James and other 19 sergeants had “mis-represented themselves as [Association] representatives on the City 20 recognized ‘Pay Committee’ and improperly acted to [e]nsure most Sergeants received 21 better raises than the Officers and Corporals they were supposed to also represent.” (Doc. 22 74-3 at 65.) After investigating, Pinal County did not find James or the other sergeants 23 committed any wrongdoing. (Doc. 74-3 at 67.) James believes the combination of the 24 Association Memo and his disclosure of his PTSD diagnosis led the police department to 25 refer him for these criminal charges. (Doc. 74 at 5.) 26 On January 24, 2022—the same day Pooley replaced Kelly as the City’s police chief 27 (Doc. 74-2 at 30)—Williams served the City with a notice of claim alleging wrongful [28] 1 arrest.2 (Doc. 67-1 at 36.) After reviewing the claim, Pooley ordered Lieutenant Seth 2 Painter to conduct an internal investigation. (Doc. 67-1 at 36–37.) Painter found James had 3 committed multiple violations of police department policies. (Doc. 67-1 at 120–124.) He 4 concluded there were “clear discrepancies” between James’s report and the video evidence, 5 noting James had “clearly” approached Williams despite stating repeatedly that he had not. 6 (Doc. 67-1 at 119.) James has no quarrel with how the internal investigation was conducted. 7 When asked whether he believed Painter had an improper motive against him, James said 8 “[n]one whatsoever . . . I had a very good relationship with [Painter].” (Doc. 67-1 at 89.) 9 As a result of the Painter investigation, Pooley notified James of a pre-disciplinary 10 meeting and gave him notice that “discipline is contemplated against you up to and 11 including termination” based on policy violations related to Williams’s arrest. (Doc. 67-1 12 at 126–127.) In response, James acknowledged the video showed he “took a few steps in 13 [Williams’s] direction” though he did “not recall walking towards him.” (Doc. 74-4 at 47.) 14 James maintained his actions resulted in a “lawful arrest.” (Doc. 74-4 at 46.) 15 In May 2022, Pooley informed James of his termination, citing the video evidence, 16 witness statements, and discrepancies in James’s accounts of the traffic stop. (Docs. 67-1 17 at 39–40, 67-2 at 5.) Pooley stated the evidence was “sufficient on [its] own to sustain the 18 misconduct at issue here”—meaning James’s dishonesty surrounding the traffic stop.3 19 (Doc. 67-1 at 39–40.) James appealed his termination to Powell, who upheld Pooley’s 20 decision. (Doc. 67-2 at 16–17.) Powell stated it was “clear” by a preponderance of the 21 evidence that James’s recollection of events was inaccurate because “[u]nder no realistic 22 set of circumstances could David James have believed or remembered that Mr. Williams 23 approached him to within arm’s length” as James had claimed on multiple occasions. (Doc. 24 67-2 at 16–17.) James appealed to a neutral hearing officer who reviewed both parties’ [25] 2 The City and Williams settled. (Doc. 67-1 at 61.) 26 3 James said in his deposition that Pooley also brought up the pay scale fraud accusations “several times” in that conversation. When asked for more details, he said in “some of the 27 termination documents [Pooley] talked about how there was, you know, felony charges filed against me.” (Doc. 74-2 at 70.) James provides no evidence for this claim and the 28 termination documents do not mention the pay scale allegations. (See Docs. 67-1 at 126– 128, 67-2 at 5–9, 16–18.) 1 arguments, witness testimony, and supporting evidence and then affirmed Pooley’s 2 decision to terminate James. (Doc. 67-1 at 4–25.) 3 James contends his termination was inconsistent with how other officers were 4 treated in similar situations. (Doc. 74-2 at 20.) 5 II. Procedural History 6 James filed this case in state court and defendants removed it to federal court. (Doc. 7 1.) Defendants answered the original complaint (Doc. 3), but James then filed a second 8 (Doc. 21) and third amended complaint (Doc. 27). James’s third amended complaint 9 asserted seven claims. (Doc. 27 at 7–13.) Defendants’ motion to dismiss most of those 10 claims is still pending. (Doc. 28.) James’s motion to amend/correct his third amended 11 complaint—filed just six days after he filed the complaint—is also pending. (Doc. 30.) 12 The third amended complaint asserts some claims solely against the City and others 13 against Pooley and Powell. The claims against the City include: (1) wrongful discharge, 14 (2) violation of Arizona’s protections for public safety employees, (3) defamation, (4) false 15 light – invasion of privacy, (5) a special action appeal (also brought against Powell), and 16 (6) disability discrimination under the Americans with Disabilities Act (“ADA”). James 17 also asserts a First Amendment claim against the City, Pooley in his individual and official 18 capacity, and (read generously) Powell in his official capacity. (Doc. 27 at 7–13.) 19 Defendants move for summary judgment on all claims. 20 Summary judgment is granted in favor of defendants on James’s First Amendment 21 and ADA claims. Because this case is in federal court based on federal question jurisdiction 22 and summary judgment is granted in defendants’ favor on both federal claims, the parties 23 must file statements explaining whether the court should remand this case to state court. 24 III. Analysis 25 Defendants’ partial motion to dismiss is directed at James’s First Amendment and 26 state-law claims, while the motion for summary judgment addresses all claims. 27 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 28 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, [1] 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 2 (internal citations omitted)). This is not a “probability requirement,” but a requirement that 3 the factual allegations show “more than a sheer possibility that a defendant has acted 4 unlawfully.” Id. A claim is facially plausible “when the plaintiff pleads factual content that 5 allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. 7 A court must grant summary judgment “if the movant shows that there is no genuine 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 9 Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 322–23 (1986). The 10 movants (here the defendants) bear the burden of presenting the basis for their motion and 11 identifying evidence they believe demonstrates the absence of a genuine issue of material 12 fact. Id. at 323 . A genuine dispute exists if “the evidence is such that a reasonable jury 13 could return a verdict for the nonmoving party,” and material facts are those “that might 14 affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., [15] 477 U.S. 242, 248 (1986). 16 A. First Amendment Claim 17 Defendants’ partial motion to dismiss (Doc. 28) is pending. It will be discussed 18 briefly because it successfully forecloses two of the methods by which James can assert a 19 Monell claim against the City. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 20 James’s Monell claim and First Amendment claim against Pooley in his individual capacity 21 both fail at the summary judgment stage.4 22 The third amended complaint attempts to assert a First Amendment claim against 23 the City, Pooley, in his individual and official capacities, and Powell in his official capacity 24 via 42 U.S.C. § 1983 . (Doc. 27 at 8–9.) James’s motion to amend seeks to add Powell (in 25 his individual capacity) as a defendant for this claim. (Doc. 30.) Although not entirely clear, 26 it appears James is attempting to assert the City and its alleged policymakers have a policy [27] 4 Official-capacity claims against municipal officers like Pooley and Powell are treated as 28 claims against the City for Monell purposes. See Ctr. For Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008). 1 or practice of treating those who voice concerns about the police department differently 2 than those who do not. 3 To state a Monell claim, James must allege (1) he “had a constitutional right of 4 which he was deprived; (2) the municipality had a policy; (3) the policy amounts to 5 deliberate indifference to his constitutional right; and (4) ‘the policy is the moving force 6 behind the constitutional violation.’” Gordon v. Cnty. of Orange, 6 F.4th 961 , 973 (9th Cir. 7 2021) (quoting Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). A 8 governmental policy is “a deliberate choice to follow a course of action . . . by the official 9 or officials responsible for establishing final policy with respect to the subject matter in 10 question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). 11 James can satisfy Monell’s policy requirement in one of three ways. See Thomas v. 12 County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (per curiam). First, a local 13 government may be held liable when it acts “pursuant to an expressly adopted official 14 policy[.]” Id. (citing Monell, 436 U.S. at 694 ). Second, a public entity may be held liable 15 for a “longstanding practice or custom.” Id. (citing Monell, 436 U.S. at 694 ). Third, a local 16 government may be held liable when “the individual who committed the constitutional tort 17 was an official with final policy-making authority[5] or such an official ratified a 18 subordinate’s unconstitutional decision or action and the basis for it.” Gordon, 6 F.4th at 19 974 (quotation marks and citation omitted). In some circumstances, “a single action by the 20 final decisionmaker may be sufficient to establish that a municipality has a policy that 21 infringes on a person’s constitutional rights.” Los Angeles Police Protective League v. 22 Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citing City of St. Louis v. Praprotnik, 485 U.S. 23 112, 123 (1988)). 24 James argues the third amended complaint sufficiently alleges all three ways of 25 satisfying the Monell policy requirement. (See Doc. 27 at 9.) In the pending motion to 26 dismiss, defendants argue James did not plausibly plead the City itself had such a policy [27] 5 Courts use “final decisionmaker” interchangeably with “final policy-making authority.” 28 See Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citing City of St. Louis v. Praprotnik, 485 U.S. 112 , 123–24 (1988)). 1 whether expressly adopted or as a longstanding practice. (Doc. 28 at 4.) They are correct. 2 James does not plausibly allege the City acted “pursuant to an expressly adopted 3 official policy” or that it had a “longstanding practice or custom” of treating those who 4 voice concerns about the police department differently than those who do not. Thomas, 763 5 F.3d at 1170 (citation omitted). To survive a 12(b)(6) motion to dismiss in the Monell 6 policy/custom context, a plaintiff must at the very least “identif[y] the challenged 7 policy/custom, explain[ ] how the policy/custom was deficient,” and “explain[ ] how the 8 policy/custom caused the plaintiff harm[.]” Young v. City of Visalia, 687 F. Supp. 2d 1141 , 9 1149 (E.D. Cal. 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 682 (9th Cir. 2001)). 10 James’s complaint is devoid of any of these facts, merely alleging that defendants’ 11 “unlawful actions, decisions and omissions . . . were based on [its] policy, custom and 12 practice.” (Doc. 27 at 9.) These conclusory allegations are insufficient to support a claim 13 at the motion to dismiss stage. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice” to 15 survive a motion to dismiss). 16 James’s response to the motion to dismiss seems to limit his claim to the third type 17 of policy that may give rise to Monell liability, that is, the actions of or ratifications of 18 subordinates’ actions by an individual with final policy-making authority. (See Doc. 35 at 19 2 (alleging the “policy” at issue is defendants’ “ability to exercise final policy and decision20 making authority with respect to Police Department employees, including their 21 discharges.”).) But even assuming James’s complaint sufficiently alleges Pooley or Powell 22 “committed [a] constitutional tort” and that one of them had “final policy-making 23 authority,” summary judgment is granted for defendants on this theory because the 24 undisputed facts show that the basis for terminating James was not unconstitutional. 25 Gordon, 6 F.4th at 974 (quotation marks and citation omitted). 26 James claims his termination was unlawful retaliation for protected speech in 27 violation of the First Amendment. (Doc. 27 at 8.) He identifies the protected speech at issue 28 as the Association Memo (Doc. 74 at 3) in which he criticized the police department’s 1 leadership. (Doc. 74 at 13.) 2 The Ninth Circuit has established a sequential five-step series of questions for courts 3 analyzing a public employee’s First Amendment retaliation claim: 4 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the 5 plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate 6 justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse 7 employment action even absent the protected speech. [8] Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019) (quoting Eng v. Cooley, 552 F.3d 9 1062, 1070 (9th Cir. 2009)). The plaintiff bears the burden on the first three questions. Id. [10] (citing Eng, 552 F.3d at 1070–71). If the plaintiff meets this burden, the burden shifts to [11] the defendant on the last two questions. Id. (citing Eng, 552 F.3d at 1071–72). [12] In seeking summary judgment, defendants challenge only whether James has shown [13] his protected speech “was a substantial or motivating factor” in his termination. Id. (See [14] Doc. 67 at 10–12.) It appears James is asserting Pooley was motivated to fire him because [15] of his protected speech and Powell ratified the decision. James acknowledges he did not [16] believe Powell himself had such a motive. (See Doc. 67-1 at 84 (James replying “I don’t [17] believe Bryant [Powell] did” in response to a deposition question asking whether James [18] believed “Powell had an improper motive to terminate” him).)6 So, the only question is [19] whether there is evidence showing Pooley had an improper motive to terminate James. [20] Such a motive could still make the City liable assuming Powell was the final decisionmaker [21] regarding James’s termination and that he ratified Pooley’s allegedly unconstitutional basis [22] for the termination. See Gordon, 6 F.4th at 974 (quotation marks and citation omitted) (a [23] 24 6 This admission undermines any claim against Powell in his individual capacity, so James’s motion to amend his complaint to add such a claim is denied. (See Doc. 30.) James 25 cannot create a factual dispute to avoid summary judgment by stating in his response that he believed Powell had a retaliatory motive in firing him when he previously admitted in 26 his deposition that he did not hold such a belief. See Bodett v. CoxCom, Inc., 366 F.3d 736, 748 (9th Cir. 2004) (holding a plaintiff did not raise an issue of material fact when her 27 affidavit contradicted her deposition). And “courts have denied leave to amend where the plaintiff makes allegations that are contrary to facts of which he has personal knowledge 28 or are verifiably false” as is the case here given James’s deposition testimony. Blagman v. Apple, Inc., 307 F.R.D. 107, 112 (S.D.N.Y. 2015) (collecting cases). 1 local government may be held liable when an official with final policy-making authority 2 “ratifie[s] a subordinate’s unconstitutional decision or action and the basis for it.”). 3 James relies solely on circumstantial evidence to show Pooley had a retaliatory 4 motive. Circumstantial evidence can create “a genuine issue of material fact on the question 5 of retaliatory motive” to defeat summary judgment when the plaintiff provides “evidence 6 that his employer knew of his speech”7 and further “produce[s] evidence of at least one of 7 the following three types”: (1) a “proximity in time between the protected action and the 8 allegedly retaliatory employment decision” such that a “jury logically could infer [that the 9 plaintiff] was terminated in retaliation for his speech”; (2) “that his employer expressed 10 opposition to his speech . . . to him or to others”; or (3) that “his employer’s proffered 11 explanations for the adverse employment action were false and pretextual.” Howard v. City 12 of Coos Bay, 871 F.3d 1032, 1045 (9th Cir. 2017) (quoting Keyser v. Sacramento City 13 Unified Sch. Dist., 265 F.3d 741 , 751–52 (9th Cir. 2001) (internal quotation marks 14 omitted)). Speculation alone is insufficient to sustain a retaliation claim. Wood v. Yordy, [15] 753 F.3d 899, 905 (9th Cir. 2014) (citing cases). 16 James argues the third method applies here in that the stated reason for his 17 termination—his dishonesty about the traffic stop incident—was pretextual. (Doc. 74 at 18 12–13.) Pretext may be shown when the stated reasons for an adverse employment action 19 are demonstrably false or, even if true, are insufficient to justify the type of action taken by 20 the employer. Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002); see also Ulrich v. City 21 & Cnty. of San Francisco, 308 F.3d 968, 981 (9th Cir. 2002). Additionally, pretext has 22 been found when an employee’s conduct, though repeated, only led to discipline after they 23 engaged in protected speech. Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740 , 751 24 (9th Cir. 2010). James has presented no such evidence here. Instead, defendants have 25 provided undisputed evidence showing James was dishonest about the traffic stop and that 26 the dishonesty led to his termination. 27 7 Defendants argue Pooley had not “seen” the memorandum until after James was fired. (Doc. 67 at 10.) But Pooley testified at his deposition that he knew about the memo’s 28 contents (Doc. 67-2 at 12), so the court assumes James meets the employer-knowledge requirement. 1 James believes the true reason Pooley terminated him was because of the 2 Association Memo which he sent fourteen months prior to his termination, before Pooley 3 was Chief of Police.8 (Doc. 74 at 12–13.) But it is undisputed that James did not come 4 forward soon after the traffic stop, or even after having reviewed the surveillance video, to 5 admit he made inaccurate statements in his police report and interview with Williams’s 6 attorney. Even by the time of his deposition, James was sticking to his guns. He 7 acknowledged telling Williams’s attorney he did not approach Williams and that the 8 statement was inaccurate “according to the [surveillance] video.” (Doc. 67-1 at 47.) But 9 when asked whether the statement was accurate “according to reality[,]” James said 10 “[p]erception is my reality” and reiterated that he stood by his police report because “[t]hat 11 perception of those events was my reality.” (Doc. 67-1 at 47.) 12 The parties’ dispute about how quickly James should have come forward about the 13 inaccuracy to prevent his termination (compare Doc. 74 at 8–9, 13–14 with Doc. 75 at 4– 14 5) is immaterial. Defendants have presented undisputed evidence that James was 15 terminated for his dishonesty, which persisted through the time of his interview with 16 Williams’s attorney months later. Although James argues that reason was pretextual 17 because he eventually admitted to his dishonesty, he has produced no evidence showing he 18 was fired because of the Association Memo. Rather, his months-long dishonesty about the 19 traffic stop is a legally-sufficient and “obvious alternative explanation” for why he was 20 fired. See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 21 2014) (holding a plaintiff could not “overcome the plausible and obvious explanation” that 22 the defendant did not knowingly submit false claims in violation of the False Claims Act). 23 As such, James’s argument about that he finally admitted his dishonesty is immaterial. 24 Two methods remain for James to attempt to show through circumstantial evidence 25 that Pooley had a retaliatory motive for firing him. See Howard, 871 F.3d at 1032 [26] 8 James also mentions “[t]he pay [scale] allegations” leveled against him “directly resulted 27 from” that protected speech. (Doc. 74 at 13.) But even assuming the City’s referral of James for criminal charges was an adverse employment action, James has not shown a causal link 28 between the Association Memo and that referral as required for a First Amendment claim. See Greisen, 925 F.3d at 1108 . 1 (simplified). James could show a “proximity in time between the protected action and the 2 allegedly retaliatory employment decision” such that a “jury logically could infer [the 3 plaintiff] was terminated in retaliation for his speech” or he could show “that his employer 4 expressed opposition to his speech . . . to him or to others.” Id. James has shown neither 5 here and does not argue otherwise. His termination was fourteen months after he sent the 6 Association Memo, and this is not a case in which a plaintiff repeatedly engaged in the 7 same conduct (i.e., dishonesty regarding a traffic stop) but was only disciplined after the 8 protected speech had taken place. Cf. Anthoine, 605 F.3d at 751 . James also provides no 9 evidence showing Pooley expressed opposition to the Association Memo. Although James 10 argues Pooley “was skeptical of [the] good faith concerns” he raised in the memo (Doc. 74 11 at 2), the evidence James cites does not reflect skepticism about James’s allegations of 12 dishonesty and fraud. (See Doc. 74-2 at 28–31.) Rather, defendants cite uncontroverted 13 evidence that Pooley believed some of the memo’s points were valid. (See Doc. 75 at 3– 14 4.) 15 James has not shown Pooley had a retaliatory motive for terminating him. 16 Accordingly, he has failed to meet his burden to show his protected speech was a 17 substantial or motivating factor for his termination. Greisen, 925 F.3d at 1108 . Pooley is 18 therefore entitled to summary judgment in his official and individual capacities on James’s 19 First Amendment claim. 20 Because James admitted Powell did not have a retaliatory motive to fire him, James 21 “must prove” that Powell, the alleged final decisionmaker, “approved” of Pooley’s 22 “decision and the basis for it.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999) 23 (emphasis added) (simplified). So, James must show Powell had “knowledge of [Pooley’s] 24 alleged constitutional violation,” id., meaning he must have known of Pooley’s retaliatory 25 motive. See, e.g., Reardon v. Danley, 74 F.4th 825 , 828 (7th Cir. 2023) (for a First 26 Amendment Monell claim to succeed, the city must have approved both the adverse 27 conduct and the basis for it, i.e., the motivation). To survive summary judgment James had 28 to provide evidence showing Powell knew Pooley’s termination decision was made in 1 retaliation for sending the Association Memo, but that Powell terminated James 2 nonetheless. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (citation 3 omitted). James has not done so here, so Powell is entitled to summary judgment on his 4 First Amendment claim. 5 James presents additional arguments that he believes are relevant to his First 6 Amendment claim, but they have no bearing on it. He mentions other employees who he 7 believes advocated for his dismissal and had improper motives for doing so, but none of 8 them are defendants here. (Doc. 67-1 at 84.) And James does not argue how these non9 parties influenced Pooley’s decision to terminate him or Powell’s decision to affirm the 10 termination. 11 James also argues “[d]efendants’ treatment of [him] was [ ] markedly different than 12 its treatment of others” such as “another officer involved in [the traffic stop who] was not 13 terminated despite recalling and telling the same events of the day as [James].” (Doc. 74 at 14 7.) To the extent comparators are relevant in First Amendment analyses, James has not 15 shown his alleged comparators were similarly-situated. Cf. Chuang v. Univ. of California 16 Davis, Bd. Of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (comparing plaintiff to other 17 similarly situated individuals at the summary judgment stage of a Title VII case). As 18 defendants point out, the other officers involved in the traffic incident “did not prepare the 19 police report containing misrepresentations, nor were they interviewed by Williams’s 20 attorney and provided a false account.” (Doc. 75 at 7 n.2.) Nor was the other officer James 21 cites as a comparator accused of lying or dishonesty; the officer was investigated for using 22 excessive force. (Docs. 75 at 7 n.2, 74-2 at 49–50.) 23 Because Pooley and Powell are entitled to summary judgment on this claim and for 24 Monell purposes official-capacity claims against municipal officers are treated as claims 25 against the City, the City is also entitled to summary judgment. See Ctr. For Bio-Ethical 26 Reform, Inc. v. Los Angeles Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008). 27 For all these reasons, summary judgment is granted in favor of the City and in favor 28 of Pooley in his individual capacity on James’s First Amendment claim. 1 B. Americans with Disabilities Act Claim 2 James also claims defendants terminated him “because of his disability” in violation 3 of the ADA. (Doc. 74 at 19.) “To prevail on an ADA claim of unlawful discharge, the 4 plaintiff must establish a prima facie case by showing that: (1) he is a disabled person 5 within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) 6 he suffered an adverse employment action because of his disability.” Hutton v. Elf Atochem 7 N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001) (simplified). James asserts he is a “qualified 8 individual” with a disability based on his PTSD diagnosis. Defendants do not dispute this 9 point. The parties only disagree about whether James was fired because of his PTSD. 10 James claims Pooley fired him and Powell affirmed the decision not because he was 11 dishonest about the traffic stop incident but because he has PTSD. (Doc. 74 at 19.) It is not 12 even clear James’s ADA claim would survive a motion to dismiss. He makes only one 13 relevant allegation and provides no factual support for it in his complaint. (See Doc. 27 at 14 12–13.) But even assuming James’s ADA claim is pleaded sufficiently, it fails at summary 15 judgment. To succeed on his ADA claim, James “must show that the adverse employment 16 action would not have occurred but for [his] disability.” Murray v. Mayo Clinic, 934 F.3d 17 1101, 1105 (9th Cir. 2019) (emphasis added). In his one-paragraph response opposing 18 summary judgment on his ADA claim, James cites only one piece of evidence: that “Pooley 19 was well aware of [his] disability before his decision to discharge [James], including 20 requiring him to undergo an unnecessary [fit-for-duty] exam.” (Doc. 74 at 19.) But James 21 does not cite anything supporting this assertion and the undisputed evidence refutes it. 22 James said in his deposition that he could not “say for certain when [Pooley] would 23 have found out” about his PTSD “or if he was [ ] one hundred percent informed on it.” 24 (Doc. 67-1 at 87.) Rather, James believed Pooley “should have known with the fitness for 25 duty” examination that he had PTSD. (Doc. 67-1 at 87.) When asked whether he thought 26 Pooley decided to terminate him upon learning about his PTSD, James’s response was: “I 27 can’t speculate” as to that. (Doc. 67-1 at 87.) 28 Even assuming Pooley knew about James’s PTSD diagnosis before firing him, 1 James has still not provided evidence to support his ADA claim because he must show he 2 was fired because of his PTSD, not merely that someone knew about his disability before 3 firing him. See id.; see also Austin v. Horizon Hum. Servs. Inc., No. CV-12-02233-PHX4 FJM, 2014 WL 1053620 , at *5 (D. Ariz. Mar. 19, 2014) (noting speculation without 5 specific or substantial evidence cannot satisfy the causation standard for an ADA claim.) 6 James has provided no meaningful argument, nor any evidence, on this point. The same 7 reasoning applies to James’s argument that Powell “rubber stamped” Pooley’s decision 8 “despite available evidence that contradicted Pooley’s alleged reason for firing” him. (Doc. 9 74 at 19.) Defendants provide undisputed evidence that Powell did not know James had 10 PTSD while James was still employed by the police department (Doc. 67-3 at 8), and James 11 has provided no evidence to show Pooley fired him because of his PTSD. The City is 12 entitled to summary judgment on his ADA claim. 13 IV. Supplemental Jurisdiction 14 Eliminating the sole bases for federal jurisdiction requires the court to address 15 whether to exercise supplemental jurisdiction over the remaining state-law claims. 28 16 U.S.C. § 1367 (c)(3). The court must decide if “remanding the [remaining] state claims 17 comports with the underlying objective of most sensibly accommodat[ing] the values of 18 economy, convenience, fairness, and comity.” Exec. Software N. Am., Inc. v. U.S. Dist. Ct. 19 for Cent. Dist. of California, 24 F.3d 1545 , 1557 (9th Cir. 1994) (simplified), overruled on 20 other grounds by California Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th 21 Cir. 2008)). “[I]n the usual case in which all federal-law claims are eliminated before trial, 22 the balance of factors . . . will point toward declining to exercise jurisdiction over the 23 remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 , 350 n.7 24 (1988), superseded by statute on other grounds by 28 U.S.C. § 1447 (c). 25 The remaining disputes are state-law claims against the City and one state claim 26 against Powell. The parties debate whether the notice of claim James submitted to the 27 City—which is required before James can pursue claims against the City—was valid. (See 28 Docs. 28 at 7–10, 35 at 7–10, 36 at 4–5.) These state-law claims involve a state-law 1 question which has not been definitively answered by the Arizona Supreme Court, 2 specifically whether Arizona law governing the exemption of prohibitory injunctions from 3 Arizona’s notice-of-claim statute extends to mandatory injunctions like the one James 4 sought. See State v. Mabery Ranch, Co., L.L.C., 165 P.3d 211, 245 (Ariz. Ct. App. 2007) 5 (holding that Arizona’s notice of claim statute does not apply to claims “in which a private 6 party seeks an injunction restraining conduct by a public entity.”). Although this case has 7 already meaningfully progressed in federal court, the court would have to conduct an Erie 8 guess as to what the Arizona Supreme Court would decide on this issue. See Thornell v. 9 Seattle Serv. Bureau, Inc., 742 F. App’x 189 , 191 (9th Cir. 2018) (citing Erie R. Co. v. 10 Tompkins, 304 U.S. 64, 78 (1938)). And the Supreme Court recently reiterated that federal 11 courts should ordinarily “kick the case to state court” if it raises a novel issue of state law. 12 Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. ----, 2025 WL 96212 , at *5 (U.S. Jan. 13 15, 2025.) 14 At present, the balance of factors tilts in favor of declining to exercise jurisdiction 15 over the remaining state-law claims. The unresolved state-law question further tips the 16 balance that way. As a result, the parties must file statements providing their position on 17 remanding the remaining claims to state court. 18 V. Conclusion 19 James failed to adequately plead the existence of a City policy or custom, so the 20 City’s motion to dismiss is granted to the extent it makes that argument. As to what remains 21 of James’s Monell claim, the undisputed material facts show defendants are entitled to 22 summary judgment because James failed to show the exercise of his First Amendment 23 rights was a substantial or motivating factor in his termination. James’s motion to amend 24 his complaint to add a claim against Powell in his individual capacity is denied because 25 James cannot allege Powell violated his First Amendment rights consistently with the 26 undisputed evidence. Summary judgment is also granted to defendants on James’s bare27 bones ADA claim because, even construing those facts in his favor, James failed to show 28 his PTSD was the but-for cause of his termination. 1 Accordingly, 2 IT IS ORDERED the Motion to Dismiss (Doc. 28) is GRANTED IN PART and 3 || DEFERRED IN PART. 4 IT IS FURTHER ORDERED the Motion to Amend (Doc. 30) is DENIED. 5 IT IS FURTHER ORDERED the Motion for Summary Judgment (Doc. 67) is || GRANTED IN PART and DEFERRED IN PART. 7 IT IS FURTHER ORDERED no later than February 14, 2025, the parties shall 8 || file statements addressing whether the court should exercise supplemental jurisdiction over 9|| the remaining state-law claims. 10 Dated this 30th day of January, 2025. [11] 13 LAA ALALLA me Honorable Krissa M. Lanham 14 United States District Judge [28] -18-