FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR J. BROWNFIELD,  No. 09-35628

Plaintiff-Appellant, D.C. No.

v.  2:08-cv-03005-

CITY OF YAKIMA,

RHW

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, Chief District Judge, Presiding

Argued and Submitted

April 8, 2010—Seattle, Washington

Filed July 27, 2010

Before: Michael Daly Hawkins, Carlos F. Lucero,* and

N. Randy Smith, Circuit Judges.

Opinion by Judge Lucero

*The Honorable Carlos F. Lucero, United States Circuit Judge for the

Tenth Circuit, sitting by designation. 

10815
COUNSEL

John G. Bergmann, Helsell Fetterman, LLP, Seattle, Washington, and Lish Whitson, Lish Whitson, PLLC, Seattle,

Washington, for the plaintiff-appellant.

Jerry J. Moberg, Jerry Moberg & Associates, Ephrata, Washington, for the defendant-appellee.

OPINION

LUCERO, Circuit Judge:

Oscar J. Brownfield appeals the district court’s grant of

summary judgment in favor of the City of Yakima on his

claims for violations of the Americans with Disabilities Act

(“ADA”) and the Family Medical Leave Act (“FMLA”), and

for First Amendment retaliation. We hold that the City did not

violate Brownfield’s rights under the ADA by requiring a fitness for duty exam (“FFDE”) after he repeatedly exhibited

emotionally volatile behavior while serving as a police officer, that his complaints regarding a coworker with whom he

shared duties did not address matters of public concern, and

that his FMLA claim lacks merit. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I

A

Brownfield began working as a police officer for the City

of Yakima Police Department (“YPD”) in November 1999.

10818 BROWNFIELD v. CITY OF YAKIMA
Approximately one year later, he suffered a closed head injury

in an off-duty car accident. After recovering from symptoms

including reduced self-awareness, Brownfield returned to full

duty in July 2001. He received positive performance evaluations and was awarded several commendations over the next

three years.

B

In June 2004, Brownfield complained to his superior, Sergeant Amos, about Officer Dejournette, Brownfield’s community service partner for Police Athletic League (“PAL”) and

Drug Abuse Resistance Education (“DARE”) matters. In an

interoffice memo titled “Unethical work practices,” Brownfield wrote that Dejournette neglected his duties with respect

to the DARE program to work on fraud matters, forcing

Brownfield to complete tasks assigned to Dejournette. Brownfield complained that he “was not recommended for the

SWAT team because of PAL and DARE. It seem[ed] unfair

that Dejournette [could] work on fraud stuff and disregard

DARE.” The memo further took issue with Dejournette’s use

of comp time and overtime. In particular, Brownfield was disturbed that Dejournette was given twenty hours in “time

owed” because Lt. Merryman, another superior, requested

Brownfield “spend more hours on the development of PAL,

but ha[d] never offered [him] time owed as a reward.” Brownfield continued, “If Lt. Merryman is giving Dejournette time

owed for work with PAL it would be a great dishonor to [a

third officer] and [Brownfield] since [they] give an enormous

amount of time to PAL without compensation.” Finally,

Brownfield argued that Dejournette and Merryman were too

friendly with each other. 

Over the next year, Brownfield compiled notes on Dejournette’s perceived shortcomings. These notes detail Dejournette’s failure to complete reimbursement requests, grant

applications, and time sheets in a punctual manner, his continued use of overtime and comp time, and his generally “lackaBROWNFIELD v. CITY OF YAKIMA 10819
daisical approach to PAL duties.” In May 2005, after

Merryman reprimanded Brownfield for failing to schedule an

event, Brownfield forwarded his notes to YPD Chief Sam

Granato. Shortly after forwarding his notes, Brownfield composed a second email to Granato complaining that Dejournette

closed the PAL facility early for illegitimate reasons. 

On May 11, 2005, Brownfield, Merryman, and Amos met

to discuss Brownfield’s problems with Dejournette. Midway

through the meeting, Brownfield used an expletive in stating

that he needed to talk to a union representative. Despite an

order from Merryman to remain in the room, Brownfield

stood up and left. When Amos found Brownfield speaking to

another officer, Brownfield swore at him and demanded he

leave the room. Brownfield was temporarily suspended for

insubordination as a result of this incident. He later explained

that he had expected to meet with Granato and was concerned

that the meeting included Merryman, who was the subject of

some of his complaints. Brownfield stated that he was “consumed” with anger and fear, and that he recognized that he

needed to take a break.

C

In September 2005, four incidents occurred that, together

with the above-described confrontation, led the YPD to refer

Brownfield for an FFDE. First, Brownfield engaged in a disruptive argument with another officer during muster. A sergeant reported that when Brownfield learned that YPD was

investigating him—but not the other officer—he became visibly upset, was swearing, and was “just not really speaking full

sentences.” 

Second, Brownfield reported that he felt “himself losing

control” during a traffic stop. According to a YPD sergeant,

Brownfield reported that a young child riding in a vehicle he

pulled over began taunting him during the stop. Brownfield

became upset, his legs began shaking, and he “wasn’t sure

10820 BROWNFIELD v. CITY OF YAKIMA
what he was going to do.” Brownfield calmed down when a

backup officer arrived.

Third, the YPD received a domestic violence call from

Brownfield’s estranged wife, Leticia.1 Leticia reported that

she and Brownfield began arguing when she stopped at his

apartment to see their children. As she was backing out of a

doorway, Brownfield allegedly struck her by slamming the

door. Brownfield disputed this version of events, and no

charges were filed. 

Finally, a YPD officer reported that Brownfield made several statements that caused him concern. The officer told a

YPD captain that Brownfield made comments such as “It’s

not important anyway,” “I’m not sure if it’s worth it,” and “It

doesn’t matter how this ends.” After hearing this report, Captain Copeland placed Brownfield on administrative leave and

ordered him to undergo an FFDE. 

D

Dr. Decker conducted the FFDE on October 19, 2005. She

diagnosed Brownfield as suffering from “Mood Disorder due

to a General Medical Condition with mixed features,” which

manifested itself in “poor judgment, emotional volatility, and

irritability” and which could be related to Brownfield’s 2000

head injury. Dr. Decker concluded that Brownfield was unfit

for police duty and that his disability was permanent. Brownfield was transferred from administrative to FMLA leave. 

In December 2005, Brownfield was injured in another offduty car accident. He suffered minor back and neck injuries

that were treated by his primary care physician, Dr. Gondo.

On February 3, 2006, Dr. Gondo signed a release form stating

that Brownfield “[could] perform the physical activities

described in the job analysis” and referencing his FMLA

1Brownfield was going through a divorce at the time. 

BROWNFIELD v. CITY OF YAKIMA 10821
leave status. A report attached to the document described

Brownfield’s recent injuries, but not his preexisting psychological problems. YPD forwarded Dr. Decker’s report to Dr.

Gondo and asked whether he would defer to its findings, and

if not, to provide his mental health qualifications and basis for

disagreement. Dr. Gondo stated that he would not defer, but

failed to respond to the latter inquiries. 

In May 2006, the City informed Brownfield that it would

hold a pre-termination hearing with respect to his employment

with the YPD. In response, Brownfield emailed a YPD captain reiterating his complaints about Dejournette and insinuating that Dejournette may have stolen PAL funds. Brownfield

advised: “I don’t think it would be a good choice for the chief

to fire me prior to the independent audit, but that’s just me.”

Prior to the hearing, Brownfield obtained a second opinion

from a Dr. Mar. Dr. Mar agreed with Dr. Decker that Brownfield was unfit for duty due to his “emotional, cognitive,

behavioral, and physical problems.” However, Dr. Mar

believed that Brownfield’s problems might be amenable to

treatment. The City continued Brownfield’s pre-termination

hearing pending treatment and further evaluation by Dr. Mar

and Dr. Decker. 

In December 2006, Dr. Mar reported that Brownfield was

progressing well and would be able to return to duty at an

unspecified date with continued treatment. Brownfield

refused to return to Dr. Decker, leading YPD to order an

FFDE with another doctor, Dr. Ekemo. Brownfield attended

an initial exam in February 2007, and Dr. Ekemo scheduled

a second visit with Brownfield to complete his evaluation.

However, Brownfield refused to attend the follow-up session.

The City informed Brownfield that he would likely be terminated unless he cooperated in the FFDE, but Brownfield

again refused. A pre-termination hearing was held on March

19, 2007. City Manager Richard Zais determined that Brown10822 BROWNFIELD v. CITY OF YAKIMA
field was insubordinate and unfit for duty. Brownfield was

terminated on April 10, 2007.

E

On January 8, 2008, Brownfield filed suit in federal court

alleging violations of the ADA and FMLA, First Amendment

retaliation, and related state law claims. The district court

granted summary judgment in favor of the City, dismissed

Brownfield’s federal claims with prejudice, and declined to

exercise supplemental jurisdiction over the state law claims.

Brownfield appealed.

II

We review a district court’s grant of summary judgment de

novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d

1013, 1019 (9th Cir. 2004). In doing so, “[w]e must determine, viewing the evidence in the light most favorable to the

nonmoving party, whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law.” EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 746 (9th Cir. 2003).

A

[1] Brownfield alleges that the City violated the ADA by

requiring him to submit to the FFDEs. Under 42 U.S.C.

§ 12112(d)(4)(A), an employer may not require a medical

examination to determine whether an employee is disabled

“unless such examination or inquiry is shown to be jobrelated and consistent with business necessity.” In interpreting

the “business necessity” standard in another ADA context, we

have cautioned that it “is quite high, and is not to be confused

with mere expediency.” Cripe v. City of San Jose, 261 F.3d

877, 890 (9th Cir. 2001) (quotations and alteration omitted)

(discussing “business necessity” with respect to qualification

standards). 

BROWNFIELD v. CITY OF YAKIMA 10823
Relying on Yin v. California, 95 F.3d 864 (9th Cir. 1996),

Brownfield contends that the business necessity standard cannot be met without a showing that an employee’s job performance has suffered as a result of health problems. We

disagree. In Yin, we considered only “whether the state may

compel an employee with a prolonged and egregious history

of absenteeism and a record of on-the-job illnesses to undergo

a fitness-for-duty medical examination.” Id. at 866. Faced

with an employee whose job performance was affected by

medical issues, we held that “when health problems have had

a substantial and injurious impact on an employee’s job performance, the employer can require the employee to undergo

a physical examination designed to determine his or her ability to work.” Id. at 868. We did not hold that these are the

only circumstances that constitute business necessity. 

[2] Although this circuit has yet to address whether an

employer may preemptively require a medical examination,

other courts have answered in the affirmative. In Watson v.

City of Miami Beach, 177 F.3d 932 (11th Cir. 1999), the Eleventh Circuit considered the legality of an FFDE for a police

officer who displayed “unusually defensive and antagonistic

behavior towards his co-workers and supervisors,” but whose

job performance was otherwise satisfactory. Id. at 934. Recognizing that “[p]olice departments place armed officers in

positions where they can do tremendous harm if they act irrationally,” the court held that the ADA does not “require a

police department to forego a fitness for duty examination to

wait until a perceived threat becomes real or questionable

behavior results in injuries.” Id. at 935; see also Cody v.

CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th

Cir. 1998) (“Employers need to be able to use reasonable

means to ascertain the cause of troubling behavior without

exposing themselves to ADA claims . . . .”). 

Several district courts have reached similar conclusions. In

Mickens v. Polk County School Board, 430 F. Supp. 2d 1265

(M.D. Fla. 2006), the court noted that an employer could sub10824 BROWNFIELD v. CITY OF YAKIMA
ject itself to liability for negligent hiring or retention by turning a blind eye toward an employee’s erratic behavior. Id. at

1280. It held that, “[a]s a matter of law, a school board’s psychological examination of an employee is both job-related and

consistent with a business necessity if that employee exhibits

even mild signs of paranoid or agitated behavior that causes

the school administration to question the employee’s ability to

perform essential job duties.” Id. (quotations omitted). Similarly, in Miller v. Champaign Community Unit School District

Number 4, 983 F. Supp. 1201 (C.D. Ill. 1997), the court condoned a psychiatric examination of an elementary school custodian. Focusing on the employee’s daily interactions with

school-aged children, the court ruled that “a psychiatric examination is job-related and consistent with business necessity in

any case where an elementary school employee exhibits paranoid or agitated behavior that causes the school administration

to be concerned about the personal safety of those in contact

with the employee.” Id. at 1206-07. 

We agree with these courts that prophylactic psychological

examinations can sometimes satisfy the business necessity

standard, particularly when the employer is engaged in dangerous work. However, we must be keen to guard against the

potential for employer abuse of such exams. Section

12112(d)(4)(A) prohibits employers from using medical

exams as a pretext to harass employees or to fish for nonwork-related medical issues and the attendant “unwanted

exposure of the employee’s disability and the stigma it may

carry.” EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089,

1094 n.8 (6th Cir. 1998). 

[3] We reiterate that the business necessity standard “is

quite high, and is not to be confused with mere expediency.”

Cripe, 261 F.3d at 890 (quotations and alteration omitted).

Nevertheless, we hold that the business necessity standard

may be met even before an employee’s work performance

declines if the employer is faced with 

BROWNFIELD v. CITY OF YAKIMA 10825
significant evidence that could cause a reasonable

person to inquire as to whether an employee is still

capable of performing his job. An employee’s

behavior cannot be merely annoying or inefficient to

justify an examination; rather, there must be genuine

reason to doubt whether that employee can perform

job-related functions.

Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.

1999) (quotation omitted); see also Conroy v. N.Y. State Dep’t

of Corr. Servs., 333 F.3d 88, 98 (2d Cir. 2003) (medical

examination permissible “when the employer can identify

legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties”).

[4] As the “reasonable person” language suggests, this test

is objective. See Tice v. Centre Area Transp. Auth., 247 F.3d

506, 518 (3d Cir. 2001) (“The ADA’s requirement that [a

medical examination] be consistent with business necessity is

an objective one.”). The employer bears the burden of demonstrating business necessity. See Thomas v. Corwin, 483 F.3d

516, 527 (8th Cir. 2007); Conroy, 333 F.3d at 97. 

[5] We agree with the district court that the City had an

objective, legitimate basis to doubt Brownfield’s ability to

perform the duties of a police officer. Undisputed facts show

that Brownfield exhibited highly emotional responses on

numerous occasions in 2005, four occurring in a single month

immediately prior to his referral: He swore at a superior after

abruptly leaving a meeting despite a direct order to the contrary; he engaged in a loud argument with a coworker and

became extremely angry when he learned the incident was

being investigated; he reported that his legs began shaking

and he felt himself losing control during a traffic stop; his

wife called police to report a domestic altercation with

Brownfield; and he made several comments to a coworker

such as “It doesn’t matter how this ends.” 

10826 BROWNFIELD v. CITY OF YAKIMA
[6] Brownfield attempts to explain away each incident by

providing background facts suggesting his reactions were

entirely reasonable and by challenging the third-party reports

as factually inaccurate, but he does not dispute that he reacted

as described or that the third-party reports were made to the

YPD. Although a minor argument with a coworker or isolated

instances of lost temper would likely fall short of establishing

business necessity, Brownfield’s repeated volatile responses

are of a different character. Moreover, our consideration of

the FFDEs’ legitimacy is heavily colored by the nature of

Brownfield’s employment. Police officers are likely to

encounter extremely stressful and dangerous situations during

the course of their work. See Watson, 177 F.3d at 935 (“Police

departments place armed officers in positions where they can

do tremendous harm if they act irrationally.”). When a police

department has good reason to doubt an officer’s ability to

respond to these situations in an appropriate manner, an FFDE

is consistent with the ADA. Reasonable cause to question

Brownfield’s ability to serve as a police officer was present

here.2

B

[7] Brownfield also appeals the district court’s dismissal of

his First Amendment retaliation claim. Although public

employees “do not shed their First Amendment rights simply

because they are employed by the government,” courts considering a claim such as Brownfield’s must carefully balance

“the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the pub2Brownfield also argues that he was discharged in retaliation for protected ADA activity, i.e., refusing an unlawful request that he submit to

a medical examination. However, Brownfield concedes that his ADA

retaliation claim must stand or fall with his § 12112(d)(4)(A) claim.

Because we conclude that the referral was not unlawful, Brownfield’s

retaliation claim also fails. 

BROWNFIELD v. CITY OF YAKIMA 10827
lic services it performs through its employees.” Huppert v.

City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009) (quotation and alteration omitted). To conduct this balancing, we

employ a sequential five-step test, considering:

(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 plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4)

whether the state had an adequate justification for

treating the employee differently from other members of the general public; and (5) whether the state

would have taken the adverse employment action

even absent the protected speech. 

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). 

The district court determined that Brownfield failed at the

first step of the Eng test. Whether an employee’s speech

addresses a matter of public concern is a question of law, id.,

that “must be determined by the content, form, and context of

a given statement, as revealed by the whole record,” Connick

v. Myers, 461 U.S. 138, 147-48 (1983). 

[8] This court has broadly described two categories of

speech: that which “can fairly be considered to relate to any

matter of political, social, or other concern to the community,” Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.

1995) (quotation omitted); and that which “deals with individual personnel disputes and grievances” such that “the information would be of no relevance to the public’s evaluation of

the performance of governmental agencies,” McKinley v. City

of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). The former is

protected; the latter is not. “[T]he essential question is

whether the speech addressed matters of ‘public’ as opposed

to ‘personal’ interest.” Desrochers v. City of San Bernardino,

10828 BROWNFIELD v. CITY OF YAKIMA
572 F.3d 703, 709 (9th Cir. 2009) (quoting Connick, 461 U.S.

at 147). 

[9] We conclude that it was proper for the district court to

hold that the speech at issue was decidedly personal. Brownfield complained that his community services partner, Dejournette, was lazy and incompetent and that he was forced to

complete duties assigned to Dejournette. Brownfield also

claimed that his supervisor, Merryman, was too friendly with

Dejournette, and that Merryman unfairly awarded comp time

and preferable assignments to Dejournette rather than to

Brownfield. This is the stuff of “internal power struggles

within the workplace . . . which is of no interest beyond the

employee’s bureaucratic niche.” Desrochers, 572 F.3d at 710

(quotation omitted); see also Havekost v. U.S. Dep’t of Navy,

925 F.2d 316, 319 (9th Cir. 1991) (“These matters are the

minutiae of workplace grievances.”). 

Brownfield cites to several cases in which we have

described the bounds of public concern in expansive terms.

For example, in Gillette v. Delmore, 886 F.2d 1194 (9th Cir.

1989), we held that “the manner in which police and fire

fighters performed their duties on a particular occasion” was

a matter of public concern because such information could

“raise questions concerning whether persons should be taken

to the hospital against their will, what notice they should

receive, and what degree of force is appropriate.” Id. at 1197,

1198. Similarly, in Hyland v. Wonder, 972 F.2d 1129 (9th Cir.

1992), we concluded that the “incompetence of public law

enforcement officials at Juvenile Hall” was a matter of public

concern. Id. at 1137; see also Gilbrook v. City of Westminster,

177 F.3d 839, 866 (9th Cir. 1999) (“[A]n opinion about the

preparedness of a vital public-safety institution . . . goes to the

core of what constitutes speech on matters of public concern.”); Allen v. Scribner, 812 F.2d 426, 431 (9th Cir. 1987)

(“[T]he competency of . . . management as well as the efficient performance of [government] duties” are matters of public concern); McKinley, 705 F.2d at 1114 (“[T]he competency

BROWNFIELD v. CITY OF YAKIMA 10829
of [a] police force is surely a matter of great public concern.”). 

Although we acknowledged this “broad language” in Desrochers, we clarified “that a simple reference to government

functioning” does not “automatically qualif[y] as speech on a

matter of public concern.” 572 F.3d at 711; see also Roth v.

Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988) (“We

do not necessarily suggest that all speech concerning public

monies or government inefficiency automatically deserves

protection.”) overruled in part by Garcetti v. Ceballos, 547

U.S. 410, 417 (2006). To the contrary, “the content of the

communication must be of broader societal concern. The

focus must be upon whether the public or community is likely

to be truly interested in the particular expression, or whether

it is more properly viewed as essentially a private grievance.”

Roe v. City & County of San Francisco, 109 F.3d 578, 585

(9th Cir. 1997). 

Brownfield’s communications regarding Dejournette and

Merryman fail this test. Nothing in the statements at issue

would be of even modest relevance to the public in evaluating

the functioning of the YPD. They simply concern the allocation of work between Brownfield and his partner in running

a PAL facility. Cf. Gilbrook, 177 F.3d at 866 (statements calling into question a “fire department’s ability to respond effectively to life-threatening emergencies” addressed a matter of

public concern); Hyland, 972 F.2d at 1138 (communications

were public rather than personal in part because they “did not

concern [plaintiff’s] dissatisfaction with his own position or

on-the-job treatment”); Gillette, 886 F.2d at 1196, 1198 (fireman’s complaints regarding police use of excessive force

addressed a matter of public concern). Brownfield frames his

complaints as uncovering “irregularities” in PAL bank

accounts, but his characterization is inconsistent with the

record. At worst, Brownfield’s communications show that a

PAL check bounced due to Dejournette’s failure to transfer

funds from a sub-account. However, Brownfield did not claim

10830 BROWNFIELD v. CITY OF YAKIMA
that Dejournette had committed any type of malfeasance, and

the overdraft charge was refunded.3

We also acknowledge the context of Brownfield’s speech:

He complained only to his superiors concerning individuals

with whom he shared duties or who supervised him. Cf. Gilbrook, 177 F.3d at 866 (plaintiff made statements to the

press); Allen, 812 F.2d at 431 (communications at issue made

to public); McKinley, 705 F.2d at 1115 (“[P]laintiff’s speech

was specifically and purposefully directed to the public

. . . .”). “In a close case, . . . the fact that it was made because

of a grudge or other private interest or to co-workers rather

than to the press may lead the court to conclude that the statement does not substantially involve a matter of public concern.” Desrochers, 572 F.3d at 710 (quotation omitted); see

also Gilbrook, 177 F.3d at 866 (“An employee’s motivation

and the audience chosen for the speech also are relevant to the

public-concern inquiry.”). 

[10] Looking to the “content, form, and context of”

Brownfield’s complaints, Connick, 461 U.S. at 147-48, we

agree with the district court that the speech addressed matters

of personal rather than public concern, see Desrochers, 572

F.3d at 709. Accordingly, the speech was not protected, and

summary judgment in favor of the City was proper.

C

Finally, Brownfield argues that the district court erred in

dismissing his FMLA claim. Under FMLA regulations, “[n]o

second or third opinions on a fitness-for-duty certification

may be required.” 29 C.F.R. § 825.312(b). Brownfield contends the City violated this provision by requiring him to sub3After he was found to be unfit for duty, and just after he received a pretermination notice, Brownfield alleged that Dejournette may have stolen

funds from PAL. Because of the timing of the allegation, however, it

could not have prompted YPD’s actions. 

BROWNFIELD v. CITY OF YAKIMA 10831
mit to an FFDE after his primary care physician, Dr. Gondo,

allegedly cleared Brownfield for duty. We disagree. No reasonable juror could misread Dr. Gondo’s letter as stating that

Brownfield had recovered from the psychological issues that

rendered him unfit for duty. Dr. Gondo’s transmittal refers to

the relatively minor injuries Brownfield suffered in a December 2005 car accident and states that “the injured worker can

perform the physical activities described in the job analysis.”

Dr. Gondo makes no mention of Brownfield’s psychological

issues. 

[11] After the City received Dr. Gondo’s letter, it

requested that he defer to Dr. Decker’s diagnosis or state his

psychological credentials and basis for disagreement.

Although Dr. Gondo responded that he would not acquiesce,

he did not purport to pass on Brownfield’s psychological

problems. Rather than insisting on a “second or third opinion,” 29 C.F.R. § 825.312(b), the City’s referrals of Brownfield to Drs. Mar and Ekemo after Dr. Decker found him

permanently unfit for duty simply provided Brownfield additional opportunities to obtain a proper clearance. The FMLA

does not impose liability for such conduct. 

Brownfield also asserts a claim for FMLA retaliation premised upon his theory that Dr. Gondo certified him for return

from FMLA leave. Because we reject this theory, it follows

that his retaliation claim lacks merit.4

4Brownfield argues in passing that the City also violated the FMLA by

transmitting Dr. Decker’s report to Dr. Gondo. He asserts that this was a

“prima facie violation of the FMLA,” but does not explain how this violation harmed him. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81, 89 (2002) (FMLA’s non-disclosure provision “provides no relief

unless the employee has been prejudiced by the violation: The employer

is liable only for compensation and benefits lost by reason of the violation”). In any event, we decline to address this argument because it was

inadequately briefed. “We review only issues which are argued specifically and distinctly in a party’s opening brief. We will not manufacture

arguments for an appellant, and a bare assertion does not preserve a claim,

particularly when, as here, a host of other issues are presented for review.”

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citations omitted).

10832 BROWNFIELD v. CITY OF YAKIMA
III

For the foregoing reasons, the judgment of the district court

is AFFIRMED. 

BROWNFIELD v. CITY OF YAKIMA 10833