Fisk v. Maricopa, County of

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Benjamin Fisk, No. CV-21-01914-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 County of Maricopa, et al., 13 Defendants. — 14 — 15 Before the Court are Plaintiff’s Partial Motion for Summary Judgment (Counts 1 16 and 2) (Doc. 78) and Defendants’ Amended Motion for Summary Judgment (Doc. 80). The 17 Motions are fully briefed. (Docs. 78, 80, 82, 83, 92, 93, 98.) The Court held oral argument 18 on February 7, 2024. The Court rules as follows. 19 I. FACTS 20 Plaintiff Benjamin Fisk is a detention sergeant employed by the Maricopa County 21 Sheriff’s Office (“MCSO”). (Doc. 78-1 at 7.) In 2019, he founded the Maricopa County 22 Law Enforcement Association (“MCLEA”). (Id. at 7, 12-13.) At the time of the events at 23 issue, he served as its president. (Id. at 7, 12-13, 32, 69, 235-36, 238, 250.) 24 Plaintiff describes MCLEA as “a nonprofit employee association established . . . . to 25 promote a positive role of the police, deputy, detention, and probation profession through 26 education, communication, and support of members.” (Id. at 7.) It “is a membership 27 organization, which advances its members’ interest[s] by securing rights and benefits 28 through diligent representation.” (Doc. 78 at 2; see also Doc. 78-1 at 7.) 1 On May 26, 2020, Plaintiff petitioned MCSO for permission to speak to his 2 coworkers about MCLEA. (Doc. 78-1 at 3-4.) His request stated: 3 I would like to request that permission be granted to speak to the recruit classes and other staff members about the benefits 4 of being a member of MCLEA. Maricopa County Policy and Sheriff’s Office Policy allow for this to take place. The intent 5 is to approach the recruit classes during their lunch period for about 15 minutes. Other employees would be contacted before 6 briefings in non-work areas. — 7 — (Id. at 3 (cleaned up).) Ultimately, on August 6, 2020, the request was denied pursuant to — 8 — newly enacted Office Policy CP-2.32. (Id. at 333.) — 9 — Around the same time, Plaintiff made two statements to the media about COVID-19 — 10 — within MCSO. (Doc. 83-1 at 148; Doc. 83-2 at 3.) On July 7, 2020, Plaintiff said that two — 11 — recently deceased MCSO employees had been ailing from COVID-19. (Doc. 83-1 at 148.) — 12 — On July 20, 2020, Plaintiff told a reporter that several MCSO employees had contracted — 13 — COVID-19, that tensions were high at MCSO, and that “[t]here are things that can be done — 14 — that the sheriff’s office can do better and they’re just not being done.” (Doc. 83-2 at 3.) — 15 — Many of Plaintiff’s superiors were aware of, and surprised by, Plaintiff’s statements. — 16 — (Doc. 83-1 at 117.) — 17 — Shortly thereafter, Plaintiff became the subject of a disciplinary investigation. (See — 18 — Doc. 80-5 at 12.) In July and August 2020, MCSO received five complaints alleging that — 19 — Plaintiff had violated office policy. (Doc. 80-4 at 27-28, 30, 32, 34, 36.) MCSO initiated — 20 — an investigation and Plaintiff was placed on paid administrative leave. (Doc. 80-5 at 12.) — 21 — In August 2020, the investigation was assigned to an outside investigator for review and — 22 — follow up. (Id.) The investigator determined that Plaintiff was not a candidate for major — 23 — discipline, and he was returned to active duty. (Doc. 29 ¶ 36; Doc. 80 at 5.) The — 24 — investigation is still ongoing. (Doc. 80 at 5.) — 25 — In December 2020, Plaintiff received a negative employee performance appraisal — 26 — (“EPA”) from Lt. Deana Wierschem. (Doc. 80-5 at 14-26.) Lt. Wierschem was not — 27 — Plaintiff’s direct supervisor but conducted his EPA because Plaintiff had filed a complaint — 28 — against his direct supervisor. (Doc. 80-1 at 24.) Lt. Wierschem concluded that Plaintiff had 1 not met minimum performance standards because he failed to complete his daily 2 paperwork and meet assigned deadlines. (Doc. 80-5 at 14, 18.) Because of the unfavorable 3 EPA, Plaintiff was not eligible for a merit-based pay increase. (Doc. 29 ¶ 85; Doc. 80-5 at 4 14, 17, 19-20.) On administrative review, however, MCSO agreed to amend the EPA to 5 reflect that Plaintiff had met minimum performance standards. (Doc. 80-1 at 24-26; Doc. 6 80-5 at 28-32.) Plaintiff received the associated raise, retroactive to the original date of 7 eligibility. (Doc. 29 ¶¶ 49-50; Doc. 80 at 5.) 8 Plaintiff filed this lawsuit in November 2021. (Doc. 1.) In his Amended Complaint, 9 Plaintiff asserts three claims under 42 U.S.C. § 1983 : (1) violation of his First Amendment 10 right to freedom of speech; (2) violation of his First Amendment right to freedom of 11 association; and (3) retaliation for his exercise of his First Amendment right to freedom of 12 speech. (Doc. 29 ¶¶ 51-90.) Now, Plaintiff moves for summary judgment on the first two 13 claims. (Doc. 78.) Defendants move for summary judgment on all claims. (Doc. 80.) 14 II. LEGAL STANDARD 15 Summary judgment is appropriate if the evidence, viewed in the light most favorable 16 to the nonmoving party, demonstrates “that there is no genuine dispute as to any material 17 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 18 genuine issue of material fact exists if “the evidence is such that a reasonable jury could 19 return a verdict for the nonmoving party,” and material facts are those “that might affect 20 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 21 U.S. 242 , 248 (1986). At the summary judgment stage, “[t]he evidence of the non-movant 22 is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255 ; 23 see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (“The 24 court must not weigh the evidence or determine the truth of the matters asserted but only 25 determine whether there is a genuine issue for trial.”). 26 “[A] party seeking summary judgment always bears the initial responsibility of 27 informing the district court of the basis for its motion, and identifying those portions of 28 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 1 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment 2 must “cit[e] to particular parts of materials in the record” establishing a genuine dispute or 3 “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. 4 R. Civ. P. 56(c)(1). The Court does not have a duty “to scour the record in search of a 5 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 6 III. DISCUSSION 7 A. Freedom of Speech Violation 8 “[C]itizens do not surrender their First Amendment rights by accepting public 9 employment.” Lane v. Franks, 573 U.S. 228 , 231 (2014). “[T]he First Amendment protects 10 a public employee’s right, in certain circumstances, to speak as a citizen addressing matters 11 of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). But the Supreme Court 12 has also recognized that this right has limits. Indeed, “a governmental employer may 13 impose certain restraints on the speech of its employees, restraints that would be 14 unconstitutional if applied to the general public.” City of San Diego, California v. Roe, 543 15 U.S. 77 , 80 (2004). 16 “The problem in any case is to arrive at a balance between the interests of the 17 [employee], as a citizen, in commenting upon matters of public concern and the interest of 18 the State, as an employer, in promoting the efficiency of the public services it performs 19 through its employees.” Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty., Il., — 20 — 391 U.S. 563, 568 (1968). This inquiry is known as the Pickering balancing test, and it 21 “provides the framework for analyzing whether the employee’s interest or the 22 government’s interest should prevail in cases where the government seeks to curtail the 23 speech of its employees.” Lane, 573 U.S. at 236. 24 In the First Amendment retaliation context, the Ninth Circuit has distilled Pickering 25 and its progeny into a five-step analysis: 26 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public 27 employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment 28 action; (4) whether the state had an adequate justification for treating the employee differently from other members of the 1 general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. — 2 — 3 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). When the inquiry is limited to whether 4 a First Amendment violation occurred, as is the case with Plaintiff’s first claim, only steps 5 one, two, and four are relevant. See e.g., Hernandez v. City of Phoenix, 43 F.4th 966 , 6 976-79 (9th Cir. 2022); Berry v. Dept. of Soc. Servs., 447 F.3d 642, 649-52 (9th Cir. 2006); 7 Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204, 1210-14 (9th Cir. 1996); Johnson v. 8 Multnomah County, Oregon, 48 F.3d 420, 422-27 (9th Cir. 1995). Because this test 9 provides the exclusive means for determining whether an employee’s freedom of speech 10 rights have been violated by their government employer, the Court does not rely on the 11 portion of the parties’ briefing that applies a traditional forum analysis. See Johnson v. 12 Poway Unified Sch. Dist., 658 F.3d 954 , 960-64 (9th Cir. 2011). 13 At step one, the plaintiff bears the burden of demonstrating that his or her speech 14 addressed an issue of public concern. Eng, 552 F.3d at 1070 ; see also Connick v. Myers, — 15 — 461 U.S. 138 (1983). Speech involves a matter of public concern if it “can fairly be 16 considered as relating to any matter of political, social, or other concern to the community 17 or is a subject of legitimate news interest; that is, a subject of general interest and of value 18 and concern to the public.” Lane, 573 U.S. at 241 (cleaned up); see also Johnson, 48 F.3d 19 at 422 . In contrast, “speech that deals with individual personnel disputes and grievances 20 and that would be of no relevance to the public’s evaluation of the performance of 21 governmental agencies is generally not of public concern.” Coszalter v. City of Salem, 320 22 F.3d 968 , 973 (9th Cir. 2003) (cleaned up). 23 Here, Plaintiff’s request to speak about “the benefits of being a member of 24 [MCLEA]” did not involve a matter of public concern. (Doc. 78-1 at 3.) Plaintiff did not 25 request to speak about a newsworthy event, engage in political or social debate, expose 26 government inefficiency or corruption, or discuss anything else that at least some members 27 of the general public would have been interested in. See e.g., Rankin v. McPherson, 483 28 U.S. 378 (1987); Pickering, 391 U.S. 563 ; Lane, 573 U.S. 228 . Instead, he merely sought 1 to expand membership in his private business. MCLEA’s expansion is not of concern to 2 the public, and it is “of no relevance to the public’s evaluation of the performance of” 3 MCSO’s duties. Coszalter, 320 F.3d at 973. 4 Plaintiff argues that his speech involved a matter of public concern because 5 “[s]olicitation for membership in a group, including requests to pay, contribute, or support 6 a group, is constitutionally protected speech” and “[i]ndustrial relations are also a matter 7 of public concern.” (Doc. 78 at 13.) Plaintiff relies on cases that do not apply. First, Village 8 of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), is inapposite. 9 That case did not involve Pickering or restrictions on employee speech by a government 10 employer. Village of Schaumberg, 444 U.S. 620 . Second, while Thornhill v. State of 11 Alabama, 310 U.S. 88, 102-04 (1940), and Smith v. Arkansas State Highway Employees, — 12 — Local 1315, 441 U.S. 463, 464-65 (1979), arguably recognize Plaintiff’s First Amendment 13 right to disseminate facts surrounding labor disputes and advocate on behalf of his fellow 14 MCLEA members, those cases do not suggest that Plaintiff’s attempts to expand 15 membership in MCLEA are a matter of public concern. 16 Because Plaintiff’s request to speak to his fellow employees about the benefits of 17 joining MCLEA did not involve a matter of public concern, the Court grants summary 18 judgment in Defendants’ favor on Plaintiff’s first claim. Johnson, 658 F.3d at 961-62 19 (“Because [Eng prescribes] sequential steps, a plaintiff’s failure to satisfy a single one 20 necessarily concludes [the] inquiry.”) (internal quotations omitted). 21 B. Freedom of Association Violation 22 The First Amendment also protects Plaintiff’s right to associate with others “for the 23 purpose of engaging in protected activity.” Santopietro v. Howell, 73 F.4th 1016 , 1025 (9th 24 Cir. 2023). But here, the record lacks any evidence that Defendants prohibited Plaintiff 25 from associating with MCLEA or its members. Plaintiff makes no argument to the contrary. 26 (See generally Docs. 78, 83, 93.) To the extent Plaintiff argues that MCSO’s denial of his 27 request to speak also violated his right to freedom of association, that argument fails for 28 the reasons already discussed. Hudson v. Craven, 403 F.3d 691, 695-98 (9th Cir. 2005) 1 (applying the same Pickering-based analysis to plaintiff’s freedom of speech and freedom 2 of association claims in a case where those claims were intertwined). Accordingly, the 3 Court grants summary judgment in Defendants’ favor on Plaintiff’s second claim. 4 C. Freedom of Speech Retaliation 5 Plaintiff contends that he was retaliated against because of statements he made to 6 the media during the COVID-19 pandemic. (Doc. 83 at 8-10, 14.) While the parties analyze 7 this claim using the traditional test for freedom of speech retaliation, the Ninth Circuit has 8 made clear that, where the government is both sovereign and employer, the test set forth in 9 Eng applies. See e.g., Hernandez, 43 F.4th at 976 ; Howard v. City of Coos Bay, 871 F.3d 10 1032, 1044-45 (9th Cir. 2017); Rodriguez-Malfavon v. Clark Cnty. Sch. Dist., 706 Fed. 11 Appx. 348, 348 (9th Cir. 2017). 12 First, Plaintiff’s statements to the media, as reported on July 7 and 20, 2020, entirely 13 addressed a matter of public concern—the impact of COVID-19 on MCSO and its 14 employees. “Subjects that receive media coverage ‘almost by definition involve matters of 15 public concern.’” Hernandez, 43 F.4th at 978 (quoting Roe v. City and County of San 16 Francisco, 109 F.3d 578, 585 (9th Cir. 1997)) (cleaned up). Defendants argue that 17 Plaintiff’s statements merely reported facts and expressed general dissatisfaction, but the 18 relative “value” of Plaintiff’s speech does not factor into the Court’s determination of 19 whether, and to what extent, that speech addressed a matter of public concern. 20 Second, Plaintiff has demonstrated that he spoke as a private citizen rather than as 21 a public employee. Eng, 552 F.3d at 1071 . “Statements are made in the speaker’s capacity 22 as citizen if the speaker had no official duty to make the questioned statements, or if the 23 speech was not the product of performing the tasks the employee was paid to perform.” 24 Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121 , 1127 n.2 (9th Cir. 2008) 25 (cleaned up). Here, Plaintiff had no official duty to speak to the media about the impact of 26 COVID-19 on MCSO and its employees. Nor was his speech the product of performing 27 his official job duties. Thus, he spoke as a private citizen. Defendants do not argue 28 otherwise. (See generally Docs. 80, 92.) 1 Third, a reasonable jury could conclude that Plaintiff’s protected speech was a 2 substantial or motivating factor for his negative EPA and ongoing disciplinary 3 investigation. Plaintiff bears the burden at this step, and the question is “purely [one] of 4 fact.” Eng, 552 F.3d at 1071 . To demonstrate that retaliation was a substantial or motivating 5 factor behind an employer’s adverse employment actions, 6 [A]n employee may introduce evidence that: (1) the speech and adverse action were proximate in time, such that a jury could 7 infer that the action took place in retaliation for the speech; (2) the employer expressed opposition to the speech, either to the 8 speaker or to others; or (3) the preferred explanations for the adverse action were false and pretextual. — 9 — 10 Candelaria v. City of Telleson, Arizona, 721 Fed. Appx. 588 , 590-91 (9th Cir. 2017). 11 Plaintiff has presented evidence that the adverse employment actions occurred just 12 a few months after his statements to the media (See Doc. 80-5 at 12, 14-26) and that his 13 supervisors were aware of his speech prior to taking the adverse employment actions (Doc. 14 83-1 at 117). A reasonable jury may infer from these circumstances that Plaintiff’s 15 statements were a substantial or motivating factor for the adverse employment actions that 16 came shortly thereafter. See e.g., Anthoine v. North Central Cntys. Consortium, 605 F.3d 17 740, 751 (9th Cir. 2010) (“We have held that proximity in time may support an inference 18 of retaliation sufficient to survive summary judgment.”). 19 Fourth, Defendants lacked an adequate justification for treating Plaintiff differently 20 than members of the general public. On this step, the burden shifts back to Defendants to 21 demonstrate that MCSO’s “legitimate administrative interests outweigh[ed Plaintiff’s] 22 First Amendment rights.” Eng, 552 F.3d at 1071 . Where the speech substantially (or, as 23 here, entirely) involves a matter of public concern, a stronger showing of government 24 interests is necessary. Lane, 573 U.S. at 242. 25 Defendants argue that Plaintiff’s statements to the media were vague, unhelpful, and 26 carried a limited First Amendment interest compared to MCSO’s powerful interest “in the 27 peaceful and efficient operation of its detention facilities.” (Doc. 80 at 11.) But again, 28 because Plaintiff’s speech entirely addressed a matter of public interest—the impact of a 1 global pandemic on sensitive local government operations—it carried a strong First 2 Amendment interest. Lane, 573 U.S. at 242. And while MCSO’s articulated interests are 3 likewise strong, Plaintiff’s tame and uninflammatory statements presented a very minimal 4 threat to those interests. 5 Fifth, and finally, a reasonable jury could conclude that Defendants would not have 6 taken the adverse employment actions absent the protected speech. Defendants bear the 7 burden on this “pure[] question of fact.” Eng, 552 F.3d at 1072 . As for the negative EPA, 8 Defendants argue that Plaintiff would have received the same review absent his comments 9 to the media because Lt. Wierschem had a justified and independent basis for it—that 10 Plaintiff was not timely completing his paperwork. (Doc. 80 at 13.) But a reasonable jury 11 may reject this explanation and find instead, based on the evidence in the record (including 12 the negative EPA’s temporal proximity to Plaintiff’s protected speech), that it is pretextual. 13 Additionally, Defendants argue that Plaintiff’s disciplinary investigation would 14 have occurred regardless of his statements to the media because, once MCSO received 15 complaints against Plaintiff, it was required by policy to open an investigation. (Id. at 16 14-15.) But like the plaintiff in Eng, Plaintiff here suggests that the “apparently baseless 17 charges were themselves motivated by his exercise of his First Amendment rights.” 552 18 F.3d at 1074 (emphasis in original). For example, the first (and longest) complaint against 19 Plaintiff was received just one day following Plaintiff’s second statement to the media. 20 (Doc. 80-4 at 27.) The other complaints were received shortly afterward. (Id. at 30, 32, 34, 21 36.) Moreover, a reasonable jury could find that the investigation, once begun, was handled 22 unfavorably or unjustifiably extended because of Plaintiff’s protected speech. 23 Because a reasonable jury could find for Plaintiff on his freedom of speech 24 retaliation claim, the Court denies summary judgment on that claim. 25 IV. CONCLUSION 26 A reasonable jury could not find that Defendants violated Plaintiff’s First 27 Amendment right to freedom of speech by denying his request to speak to his coworkers 28 about the benefits of joining MCLEA. Nor could one find that Defendants violated 1|| Plaintiff's First Amendment right to freedom of association. A reasonable jury could, 2|| however, find that Defendants retaliated against Plaintiff for his protected remarks to the || media about COVID-19’s impact on MCSO and its employees. 4 Accordingly, 5 IT IS ORDERED that Plaintiff's Partial Motion for Summary Judgment (Counts 1 6|| and 2) (Doc. 78) is denied. 7 IT IS FURTHER ORDERED that Defendants’ Amended Motion for Summary 8 || Judgment (Doc. 80) is granted in part and denied in part as follows: 9 1. The Court enters summary judgment in favor of Defendants on □□□□□□□□□□□ || claims for violations of his First Amendment rights to freedom of speech and freedom of 11 |} association. 12 2. Plaintiffs claim for retaliation for his exercise of his First Amendment right 13 || to freedom of speech shall remain pending. 14 IT IS FURTHER ORDERED that, consistent with this Order, Defendants Brian □□ C. Lee, Tiffany Shaw, Andrew Mesquita, and Barry Roska are dismissed. The Clerk of 16 || Court shall not enter judgment at this time. 17 IT IS FINALLY ORDERED that the Court will set a trial setting conference by 18 || separate order. 19 Dated this 23rd day of February, 2024. — 20 — Wichal T. Hburde 22 Michael T. Liburdi 23 United States District Judge — 24 — — 25 — — 26 — — 27 — — 28 — -10-