F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W E N D Y T H O M

A S ; S E R V I C E E M P L O Y E E S I

N T E R N A T I O N A L U N I O N , L O C AL 721; Plaintiffs-Appellants/ Cross-Appellees
,

v.

C O U N T Y O F R I V E R S I D E ; L A R R Y G R O T E F E N D , individually ; D E

N N I S E R I C K S C H E R T E L L , individually ; R I C K H A L L , individually ; B R I A N M C A R

T H U R , individually ; H E A T H E R W O O D S , individually ; M A R G I E G E M E

N D E , individually ; Defendants-Appellees/ Cross-Appellants

. Nos. 12-55470 12-55812

D.C. No.5:10-CV-01846-VAPDTB

OPI N I ON

Appeal from the United States District Court for the Central District of California Virg inia A. Phillips, District J udg e, Presiding

Arg ued and Submitted J anuary 10, 2014—Pasadena, CaliforniaT H O M A S V

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N T Y O F R I V E R S I D E 2

F iled August 18, 2014

B efore: Alex Koz inski, Chief J udg e , Richard R. Clifton, Circuit J u d g e, and J ed S. Rakoff, Senior District J udg e. *

Per Curiam Opinion

SUMMARY * *

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judg ment a nd r e manded in a n a ction broug ht by an employ ee and her union alleg ing that the employ e e was r etaliated ag ainst in violation of her Fi rst Amendment rig hts.

T h e p anel held, in part, that the district court erred b y dismissing a s trivial evidence o f m u ltiple adverse employ ment a ctions. The panel determined that a reasonable juror mig ht f

ind that the actions, even if viewed in isolation,

c o uld deter protected speech and there was evidence
sug g esting that the actions were taken as part o f a more g eneral ca mpaig n and mig ht in contex t have g reater materiality

than when viewed in isolation.

* T h e Ho n o rab le J ed S. Rak o f f
, Sen io r Dist r i c t J u d g e f or th e U .S. District Co urt f

o r th e So u t

h ern District o f New Yo rk
, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.T H O M A S V

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N T Y O F R I V E R S I D E 3

The p an e l h e ld that a lthoug h defendants offered v arious

n o n-retaliatory business justifications for the employ e e ’s workplace transfers, plaintiffs a d d uced evidence that these transfers came shortly after t h e employ ee’s acts of speech, that the e mploy er had ex pressed opposition to that sp e e ch
, and that the business justifications were pretex tual. T he panel also held that plaintiffs presented a g e nuine factual dispute a s to whether an internal investig ation was retaliatory

. The panel held that the district court e rred in determining that the defendant County was n ot subject to liability under M onell v

. Dep’t of Soc. Servs
, 436 U.S. 658, 694 (1978).

The panel affirmed the district c ourt’s summary judg ment

as to two ot h e r i n t e r

n al investig ations a

nd as to an inquiry about the possibility of limiting the employ ee’s release time. F inally
, the panel dismissed as moot d efendants’ cross-appeal from the district court’s denial of attorney s’ fees.

COUNSEL

Alan Crowley (arg

ued), Vincent A. Harring ton, J r

. and G ary P. Provenc h e r , Weinberg
, Rog e r & Rosenfeld, Alameda, California, for Plaintiffs-Appellants/Cross-Appellees.

Edward P. Z appia ( argued) and Anna Z appia, The Z appia L aw F irm, L os Ang eles, California, f or DefendantsAppellees/Cross-Appellants.T H O M A S V

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N T Y O F R I V E R S I D E 4

OP INION

PER CURI AM:

Plaintiffs W endy Thomas and h er labor union appeal the
g rant of summary judg ment on their F irst A mendment retaliation clai ms, and defendants cross-appeal a later order denying them attorney s’ fees. We review the g r a nt o f
summary judg ment de novo, Crane v. Conoco, Inc. , 41 F .3d 547, 549 (9th Cir. 1 994), and the denial of attorney s’ fees for abuse of discretion, Tutor-Saliba Corp. v. City o f Hailey
, 452 F .3d 1055, 1059 (9th Cir. 2006).

On summary

judg ment in a F irst Amendment retaliation case, a plaintiff must provide e vidence of materially adverse employ ment actions that are “r easonably likely to deter” protected speech. Coszalter v. City of Salem
, 320 F .3d 968, 976 (9th Cir. 2003). Thomas adduced evidence of more than 3 0 adverse employ

ment actions, but the district court dismissed all of them, a n a ly zing nine in s o m e d etail a nd collectively d ismissing the rest as “petty workplace g ripes

. . . [ that] do not rise to the level of retaliatory adverse employ ment actions.”

Adverse employ

men t ac tions that are so trivial as to be leg ally insu f

f i c ient “include o n ly minor acts, such as ‘badmouthing ,’ that cannot reasonably be ex pected to d e ter protected s p eech.” Coszalter
, 320 F .3d at 976. Among the actions the d i s t rict court dismissed as trivial were, e .g. : removing Thomas from a c ommunity colleg e tea ch ing assig nment, costing her some $9,000 per y ear; proh i b i t i ng Thomas from using break time to travel between work sites,
t hereby r equiring her to use unpaid time for work tr a v e l ; rescind ing a previously approved vacation; a nd removingT H O M A S V

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N T Y O F R I V E R S I D E 5

Thomas from an unpaid p osition with the Un i f o r m Committee. A reasonable juror mig ht w ell fin d t h at these actions, even if viewed in isol at ion, could deter protected speech. Even the removal from the unpaid committee, which mig ht at first blush appear tr i v ial, mig ht in contex t be more eg reg ious. As the Supreme Court has recog niz e d, “to retaliate by ex c luding an employ e e from a weekly training lunch that contributes sig nificantly to the employ ee’s professional advancement mig ht w ell deter a reasonable emplo y e e from complainin g a

b o u t discrimination.” B urlington N. & Santa Fe Ry. Co. v. W

hite
, 5 48 U.S. 53, 69 (2006). Moreover, as we have stated, “[ d] epending o n the circumstances
, e v e n minor
acts of reta l i a t i on can infring e on an employ ee’s F irst Amendment r ig hts. ” Coszalter
, 320 F .3d at 975. And here there was evidence sug g esti n g t h a t some of these actions

were taken as part of a mor e ge n eral campaig n and hence mig ht in c ontex t have g reater materiality than w hen viewed in isolation. Thus, at a minimum, this case must be remanded

so that the district court can e valuate on a more detailed basis
t h e incidents that it dismissed collectively as “petty workplace g

r ipes.”

Of the remaining nine incidents, all of which the district
court d id discuss in detail, two — a car-moving incident a nd

an involuntary transfer in April 2009 — are n o t r a i sed on appea l

. A third incident, an inquiry a bout the possibility o f limiting Thomas’s release time, was correctly dismissed b y the d istrict court as unsupported. B ut there were six others

— three involuntary transfers a n d t hr e e internal investig ations

— that the district court properly referred to as “ ar chety pal adverse employ

ment actions” but still dismissed. F our o f these six should have survived summary judg ment.T H O M A S V

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N T Y O F R I V E R S I D E 6

First A mendment r etaliation c ases are g overned by M t

. Healthy City School D i s t rict Board of Education v. Doyle
, 4 2 9 U.S. 2 74 (1977), which provides that, once a plaint i f f makes a showing that p r otected speech was a “substantial” o r

“ motivating ” factor in the e mploy er’s taking a non-tr i v i al adverse employ

ment action, defendants can “escape liability only by sustaining the burden of proving ‘by a preponderance of the evidence that [they ] would have rea c hed the same decision

. . . even in the absence of the [ p laintiff’s] protected conduct.’ ” Allen v

. Iranon
, 283 F .3d 1070, 1074 ( 9 t h Cir. 2002) (quoting Mt. Healthy , 429 U.S. at 287).

Plaintiffs carried their burden of production sufficient to survive summary judg ment as to the three involuntary transfers: the transfer from D ispatch T r a i ning Unit Supervisor
to Course Coordinator in F ebruary 2010, the transfer back to Dispatch F loor Supervisor in November 2 0 10, and the transfer from g r avey ard to d ay shift in 2 0 1 1

. Althoug h d e f e n d a n t s o f

f e r e d v a ri o u s n o n -r et a l i a t o r y b u s i n e s s justifications for these transfers, Thomas adduced evidence that these transfers c ame shortly after h er acts of speech, that her employ er had ex pressed opposition to t h a t speech, a nd that the business justifica t ions were pretex tual. Any one o f these showing s, let a l o ne all three, is sufficient to survive
summary judg ment if it presents a g enuine factual dispute. See Coszalter , 320 F .3d at 977.

The three internal affairs investig ations are more mix ed. The f irst investig ation was initiated by the serious accusations
ag ainst Thomas c ontained in Sparg ur’s resig nation letter. B ut the d efendants establish bey ond dispute that they would have launched this investig ation e v e n a bsent Thomas’s union activity

. Sparg ur’s letter included g rave accusations a nd
g raphic details. She said that T h omas and other CountyT H O M A S V

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N T Y O F R I V E R S I D E 7

employ e es fabricated n e gative performance reviews to push Sparg ur o ut of her job, which c aused h er panic attacks, heart problems, and eve n a m i scarriag e. And while the charg e s ag ainst Thomas proved u n founded, not all Sparg ur’s c laims

were baseless : c h a r g e s w ere sustained ag ainst o ne o f Thomas’s co-workers. T he second investig ation was initiated in response to an u n d isputed violation of department p olicy (Thoma s improperly accessing and removing files) a nd the district court correctly found that there was no plausible inference of retaliation h ere to create a triable issue of f act for a jury

.

The third internal investig ation, b y contrast, does present

a g enuine f

actual dispute. W o ods, Thomas’s supervisor w ho initiated t h i s i nv e s t ig a tion for “rude and discourteous” emails, conceded that there was n o word o r p hrase in the emails that violated Department p olicy
, but instead objected to the underlying “tone” of the emails. T his supposed justi f i cation for the investig ation was sufficiently thin and subjective that

a reasonable juror mig ht, particularly i n lig ht of Thomas’s other alleg ations, find that the supposed jus t i fi cation was in fact pretex tual.

Althoug h urg ed by defendants to address q ualified immunity in the first in stance on appeal because it was not reached belo w , we decline to do so, in favor of the district
court doing so upon remand, f or defendants Grotefend, Sc h ertell, H all, and W oods. F or defendants Gemende a nd McArthur, however, we see no plausible alleg ation that these individuals, who did not supervise or have author i t y o v er Thomas, could hav e committed an adverse employ ment action. According ly
, t h e gr ant of summary judg ment as to Gemende and McArthur is affirmed, thoug h the case will be remanded as to all other defendants.T H O M A S V

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N T Y O F R I V E R S I D E 8

I n this reg ard, the district court also erred in d etermining that the defendant County was not subject to Monell liability

. The district court recited the correct standard for d etermining Monell liability
, which is that it may a ttach when an employ e e is acting pursuant to an ex pressly a dopted offic i al policy
, lo n gs tanding practice or custom, or as a final policy maker. See Monell v. Dep’t of S oc. Servs
, 436 U

. S. 658, 694 (1978); see also W

ebb v

. S loan
, 330 F .3d 1158, 1164 (9th Cir. 2003). Plaintiffs relied on the third option, that there was

a deleg ation of final policy making a uthority to the Sher i f

f’ s Department employ ees who alleg edly r e taliated ag ainst Thomas.

The district court concluded that Thomas “ presents no evidence w hatsoever in support of this alleg ation,” but in fact Thomas did attach a s the fourth ex hibit to h e r Fe bruary 6, 2012 declaration a copy of a Riverside Co u n ty Policy Number C-23 entitled “Disciplinary Pr o c e ss Policy ” that
creates County -wide discipline policie s but states on its second pag e: “The Sheriff’s D epartment is e x empt from this policy
, ex cept that under no c ircumstances may the Sheriff’s disciplinary policies be less strict than the County ’s g eneral disciplinary policies.” W h ether this polic y constitutes a deleg ation of policy

making a uthority to the Department such that the actions of Sheriff Sniff (not himself an individual defendant) o r others below him could result in Monell liability for the County is a factual determination that we do
not make. B ut since the order g r anting summary judg ment

was premised on t h e e rroneous belief that Thomas h ad presented no evidence to sup p o rt the possibility of Monell liability under a final policy maker theory
, it was in error. See,
e.g. , Ulrich v. City & Cnty. of S.F.
, 308 F. 3 d 968, 986 (9th Cir. 2002) (reversing g r ant of summary judg ment t o municipal defendant and remanding for consideration o fT H O M A S V

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N T Y O F R I V E R S I D E 9

whether there was a d e l e ga tion of final policy making authority ). T hus, this too will require re-e v a luation on remand.

F inally
, defendants cross-appeal the lower court’s denial of attorney s’ fees. I n lig ht of the foreg oing
, this cross-appeal is now moot. 1

AF F IRMED IN P ART, R EVERSED IN PART, a nd REMANDED.

1 It is un clear w

h eth er d ef

en d an ts are also cro ss- ap p ealin g th e d istrict

co urt’ s d eterm in atio n t h a t t h e lab or un io n lo cal h ad stan d in g , b u t to th e

ex ten t th at th ey

are, th e d istrict co urt’ s f

in din g o f stan d in g is af

f i rm ed

.