FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD ROBERTS, 

Plaintiff-Appellant, 

 v. 

SPRINGFIELD UTILITY BOARD, a 

Public Body; JEFF NELSON, in his 

individual capacity; BOB FONDREN, 

in his individual capacity; KATHY 

PECK, in her individual capacity; 

DIAN RUBANOFF, in her individual 

capacity; JANIS BREW, in her 

individual capacity, 

Defendants-Appellees.

No. 21-36052 

D.C. No. 6:19-cv01595-MC 

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted February 6, 2023

Portland, Oregon

Filed May 12, 2023
2 ROBERTS V. SPRINGFIELD UTILITY BD. 

Before: MILAN D. SMITH, JR., DANIELLE J. 

FORREST, and JENNIFER SUNG, Circuit Judges. 

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary 

judgment in favor of defendants in an action brought 

pursuant to 42 U.S.C. § 1983 alleging, in part, First 

Amendment violations when plaintiff’s former employer, 

the Springfield Utility Board, restricted him from speaking 

with potential witnesses and other employees as part of an 

internal investigation into plaintiff’s alleged misconduct. 

The panel held that the communication restriction 

complained of by plaintiff did not violate the First 

Amendment because it did not limit plaintiff’s ability to 

speak about matters of public concern. Nothing in 

defendants’ instructions barred him from speaking about any 

alleged mismanagement at the Springfield Utility Board or 

other topics that would potentially relate to a matter of public 

concern. Rather, the restrictions merely barred him from 

personally discussing his own alleged violation of 

Springfield Utility Board policies—a matter of private, 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
ROBERTS V. SPRINGFIELD UTILITY BD. 3 

personal concern—with potential witnesses or fellow 

Springfield Utility Board employees. 

The panel addressed the remainder of the issues in a 

concurrently filed memorandum disposition. 

COUNSEL

Robert E. Franz Jr. (argued), Law Office of Robert E. Franz 

Jr., Springfield, Oregon, for Plaintiff-Appellant. 

Beth F. Plass (argued) and Karen M. Vickers, Vickers Plass 

LLC, Lake Owego, Oregon, for Defendants-Appellees 

Springfield Utility Board, Jeff Nelson, Bob Fondren, and 

Janis Brew.

Janet M. Schroer (argued) and Ruth A. Casby, Hart Wagner 

LLP, Portland, Oregon, for Defendants-Appellees Kathy 

Peck and Dian Rubanoff. 

OPINION

M. SMITH, Circuit Judge: 

Todd Roberts previously worked for the Springfield 

Utility Board (SUB). As part of an internal investigation 

into Roberts’ alleged misconduct, SUB restricted Roberts 

from speaking with potential witnesses and other SUB 

employees regarding the subject of the investigation while it 

was underway. Roberts sued SUB, certain SUB employees, 

and SUB’s retained counsel pursuant to 42 U.S.C. § 1983, 

alleging that the investigation-related speech restrictions 
4 ROBERTS V. SPRINGFIELD UTILITY BD.

violated the First Amendment. The district court granted 

summary judgment in favor of Defendants, and Roberts 

appealed.

We hold that the communication restriction complained 

of by Roberts does not violate the First Amendment because 

it did not limit Roberts’ ability to speak about matters of 

public concern. Rather, it merely barred him personally 

from discussing his own alleged violation of SUB policies—

a matter of private, personal concern—with potential

witnesses or fellow SUB employees. This restriction did not 

violate the First Amendment. We therefore affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

For over two years, Todd Roberts worked as a Safety and 

Environmental Coordinator for SUB. During that time, SUB 

policy stated that “[e]mployees are expected to keep 

unscheduled absences and tardiness to a minimum by 

making every effort to arrive to work as scheduled and return 

from meal and rest periods on time.” SUB further required 

that “[e]xcept in emergency or illness situations, requests for 

[time off] . . . must be submitted to an employee’s supervisor 

in advance.” SUB policy also warned that “[d]ishonesty of 

any type including falsifying any document or verbal 

misrepresentations” is a violation that “should generally 

result in immediate dismissal.” 

In August 2019, Roberts took unscheduled time off. 

That morning, Roberts emailed SUB’s HR Manager: “I will 

be out all today working on the kids school/sport 

1 We address the remainder of the issues Roberts raised on appeal in a 

concurrently filed memorandum disposition.
ROBERTS V. SPRINGFIELD UTILITY BD. 5

registrations and such to ensure they are all ready for school 

next week.” Four minutes later, however, Roberts emailed 

a co-worker: “I’m looking at your boat’s slip right now 

headed to the Pig N Pancake.” The record indicates that 

Roberts later attempted to delete this email. 

After discovering that Roberts may have misrepresented 

the reason for his absence from work, SUB hired two 

attorneys, Kathy Peck and Dian Rubanoff. SUB retained

Rubanoff to investigate Roberts’ suspected “dishonesty 

related to [his] work attendance.” It also retained Peck to 

provide legal advice during that investigation. 

In September 2019, SUB placed Roberts on paid 

administrative leave pending an investigation into whether 

he had been truthful about his unscheduled time off. The 

Notice of Paid Administrative Leave from Defendant Bob 

Fondren, SUB’s Finance Director, read:

“While this matter is being investigated, you 

are prohibited from engaging in 

communication in any form with any 

employees of SUB other than me, unless you 

have received prior written permission from 

me for such communications. Any contact 

with SUB employees, including your 

supervisor, regarding this matter will 

constitute gross insubordination and be 

subject to disciplinary action, including 

immediate termination of employment. The 

directives above are not intended to limit 

your ability to provide information on your 

own behalf. You will be given an 

opportunity to respond to any claims made 

against you.” (Emphasis added.) 
6 ROBERTS V. SPRINGFIELD UTILITY BD.

Rubanoff then interviewed Roberts twice. At the 

beginning of the first interview, Rubanoff instructed 

Roberts: 

“To protect the integrity of the investigation, 

you are restricted from discussing it with 

other employees of SUB while it is ongoing, 

current or former employees. You have 

received a separate notice of paid 

administrative leave, and nothing in my 

introductory notes here is intended to change 

any instructions you were given in that 

notice.” (Emphasis added.) 

After that interview, Roberts’ attorney sent Rubanoff an 

email requesting that SUB remove the communication 

restriction on Roberts on the basis that it prevented him from 

gathering information for his defense. SUB declined the 

request.

During Roberts’ second interview, Rubanoff repeated 

her instruction not to speak with potential witnesses about 

the investigation:

“I’m going to instruct you not to 

communicate with any potential witnesses 

about the information that you’ve given . . . 

Do not communicate with potential 

witnesses we’ve discussed about the 

investigation or about the information 

you’ve provided in the investigation[.]”

(Emphasis added.)

Rubanoff clarified that the communication restriction 

applied only during the pendency of the investigation, did 
ROBERTS V. SPRINGFIELD UTILITY BD. 7

not apply to Roberts’ discussions with his wife, did not 

prevent Roberts’ attorney from contacting witnesses on 

Roberts’ behalf, and that Roberts would have the 

opportunity to contact potential witnesses upon the 

conclusion of the investigation. She further indicated that 

the restriction was intended to prevent Roberts from

potentially interfering with witness statements. 

In December 2019, SUB issued a Notice of Proposed 

Termination to Roberts, which described the findings of the 

investigation and the policies SUB determined that Roberts 

had violated. The notice informed Roberts of the date and 

time of his pre-termination meeting, which Roberts did not 

attend. SUB then tendered a Notice of Termination to 

Roberts the day after his pre-termination meeting was 

scheduled, informing him of his right to seek review of the 

decision in a post-termination hearing. Roberts did not seek 

review of his firing in a post-termination hearing. 

B. Procedural History

During the pendency of SUB’s investigation into his 

conduct, Roberts filed the present lawsuit. Relevant here, 

Roberts asserts a claim pursuant to 42 U.S.C. § 1983 that 

Defendants—SUB, certain SUB employees, and SUB’s 

retained counsel—violated his First Amendment right to free 

speech by instructing him not to speak with other SUB 

employees during the pendency of the investigation. The 

district court granted summary judgment in favor of 

Defendants. It assumed that SUB’s instructions limited 

Roberts’ ability to speak on matters of public concern but 

determined that the restriction was nonetheless permissible 

because it served SUB’s legitimate interest in preventing 

interference with the ongoing investigation into his alleged 

misconduct. Roberts now appeals. 
8 ROBERTS V. SPRINGFIELD UTILITY BD.

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review a district court’s decision to grant summary judgment 

de novo, and we may affirm on any ground supported by the 

record. Barone v. City of Springfield, 902 F.3d 1091, 1097 

(9th Cir. 2018). 

ANALYSIS

The limited speech restrictions that SUB placed on 

Roberts during the pendency of its internal investigation into 

his alleged misconduct did not violate the First 

Amendment.2 A public employer “may impose restraints on 

the job-related speech of public employees that would be 

plainly unconstitutional if applied to the public at large.” 

United States v. Nat’l Treasury Emps. Union (NTEU), 513 

U.S. 454, 465 (1995). When evaluating such governmentemployer restraints, we apply the two-step balancing test 

derived from Pickering v. Board of Education, 391 U.S. 563 

(1968), and its progeny. We first look to “whether the 

employee spoke as a citizen on a matter of public concern.” 

See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If so, 

we then consider “whether the relevant government entity 

had an adequate justification for treating the employee 

differently from any other member of the general public.”

Id. If, on the other hand, the speech did not address a matter 

of public concern, the employee simply has no First 

2 To state a claim pursuant to § 1983, a plaintiff must allege defendants 

acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 

(1980). As a general matter, a person acts under color of state law if her 

conduct is “fairly attributable to the State.” Lugar v. Edmondson Oil 

Co., 457 U.S. 922, 937–38 (1982). We assume without deciding that 

Peck and Rubanoff are state actors for the purpose of analyzing whether 

Roberts can establish § 1983 liability.
ROBERTS V. SPRINGFIELD UTILITY BD. 9

Amendment cause of action under Pickering. Id.; see also

Connick v. Myers, 461 U.S. 138, 146 (1983) (concluding that 

if a plaintiff’s speech “cannot be fairly characterized as 

constituting speech on a matter of public concern, it is 

unnecessary for [a court] to scrutinize the reasons for her 

discharge”). 

“Speech involves matters of public concern when it can 

be fairly considered as relating to any matter of political, 

social, or other concern to the community, or when it is a 

subject of legitimate news interest; that is, a subject of 

general interest and of value and concern to the public.”

Lane v. Franks, 573 U.S. 228, 241 (2014) (cleaned up).

“Whether an employee’s speech addresses a matter of public 

concern must be determined by the content, form, and 

context of a given statement, as revealed by the whole 

record.” Connick, 461 U.S. at 147–48. “Speech that deals 

with ‘individual personnel disputes and grievances’ and that 

would be of ‘no relevance to the public’s evaluation of the 

performance of governmental agencies’ is generally not of 

‘public concern.’” Coszalter v. City of Salem, 320 F.3d 968, 

973 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705 

F.2d 1110, 1114 (9th Cir. 1983)); see also Connick, 461 U.S. 

at 147–48 (determining that communications regarding an 

employee’s various workplace grievances did not constitute 

matters of public concern). 

Where, as here, a public employer instructs an employee 

not to communicate with potential witnesses regarding a 

workplace misconduct investigation during the pendency of 

that investigation, the impacted speech generally is not on a 

matter of public concern under Pickering. Here, the 

communication restriction affected Roberts’ personal ability 

to discuss only the investigation into his own alleged 

violation of SUB personnel policies governing time off and 
10 ROBERTS V. SPRINGFIELD UTILITY BD.

employee dishonesty. Further undercutting Roberts’ claim, 

his attorney was not restricted from contacting any SUB 

employees about Roberts’ alleged actions during the 

pendency of the investigation. Any speech impacted by 

SUB’s instruction concerned a quintessential “individual 

personnel dispute[]” that is of “no relevance to the public’s 

evaluation of [SUB’s] performance.” Coszalter, 320 F.3d at 

973. 

Roberts resists this conclusion by arguing that the 

communication restriction was “[not] limited to topics 

relating to the investigation” and “covered all speech” with 

“his co-employees,” including speech regarding the “abuse 

of employees by management, mismanagement of funds, 

and hostilities in the workplace created by management.”

But this mischaracterizes the record. Contrary to Roberts’ 

assertions, nothing in Defendants’ instructions barred him 

from speaking about any alleged mismanagement at SUB or 

other topics that would potentially relate to a matter of public 

concern. Instead, the restriction placed on Roberts’ speech 

pertained only to communication with SUB employees or 

other potential witnesses regarding the ongoing 

investigation into his alleged misconduct. Roberts was free 

to speak with fellow employees—or anyone else—regarding 

SUB’s “performance” of its duties had he wished to do so. 

See Coszalter, 320 F.3d at 973. Accordingly, his First 

Amendment claim fails.

CONCLUSION

For the foregoing reasons, the district court’s grant of 

summary judgment in favor of Defendants is AFFIRMED.