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David R. Schwartz - #009264

das@udallshumway.com

Kimberly R. Davis - # 030210

krd@udallshumway.com

Attorney for Defendants Maricopa County Community

College District, Maricopa Skill Center and Lisa Hemming

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Schaun Owens,

Plaintiff,

v.

Maricopa County Community College 

District, Maricopa Skill Center, and Lisa 

Hemming, 

Defendants.

NO. CV-15-01769-PHX-SPL

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

Defendants Maricopa County Community College District (“District”) and Lisa 

Hemming (“Hemming”) hereby move for summary judgment on all claims. This motion is 

supported by the Separate Statement of Facts in Support of Defendants’ Motion for 

Summary Judgment (“DSOF”) filed contemporaneously. Plaintiff alleges racial 

discrimination and First Amendment retaliation only in the 2013-14 school year leading up 

to Plaintiff’s February 12, 2014 termination as a Cosmetology Associate Instructor at the 

District’s Maricopa Skill Center’s Northwest Campus. (DSOF ¶ 32-34) Defendant 

1138 NORTH ALMA SCHOOL ROAD, SUITE 101

MESA, ARIZONA 85201

Telephone: 480.461.5300 | Fax: 480.833.9392

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Hemming was Plaintiff’s supervisor during this time. (DSOF ¶ 36) The evidence does not 

support any of the claims asserted, so summary judgment should be granted on each claim.

I. THERE IS NO VALID CLAIM OF RACIAL DISCRIMINATION

Plaintiff asserts racial discrimination claims under 42 U.S.C. § 1981 and 42 U.S.C. § 

1983 (through a claim of equal protection violation). To prevail on a claim of racial 

discrimination under § 1981 and § 1983, a plaintiff must prove intentional discrimination. 

Jefferson v. City of Fremont, 73 F. Supp. 3d 1133, 1144 (N.D. Cal. 2014). Plaintiff cannot 

prove such a claim against the District and/or Hemming.

A. The District Is Not Liable For Alleged Racial Discrimination

Under § 1981 and § 1983, there is no respondeat superior automatic liability of a 

government employer for an employee’s racial discrimination. Monell v. Department of 

Social Services, 436 U.S. 658, 691 (1978) (§ 1983 case); Fed'n of African Am. Contractors 

v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (§ 1981 case); Jefferson v. City of 

Fremont, 73 F. Supp. 3d 1133, 1148 (N.D. Cal. 2014). The Monell liability of a 

governmental entity can be shown by: (1) a policy or custom of the entity which includes 

the decisions of a government's lawmakers, the acts of its policymaking officials, and 

practices so persistent and widespread as to practically have the force of law; (2) the 

individual who committed the constitutional tort was an official with “final policy-making 

authority” and that the challenged action itself thus constituted an act of official 

governmental policy; or (3) an official with final policymaking authority ratified a 

subordinate's unconstitutional decision or action and the basis for it. Gillette v. Delmore, 

979 F.2d 1342, 1346–47 (9th Cir. 1992).

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1. There Is No Policy Or Practice Of Racial Discrimination

Identifying a policy matters, because doing so “ensures that a municipality is held 

liable only for those deprivations resulting from the decisions of its duly constituted 

legislative body or of those officials whose acts may fairly be said to be those of the 

municipality.” Bd. of Cnty. Commis of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403–04 

(1997). Plaintiff certainly has not identified any District policy in favor of racial 

discrimination. The District has an anti-discrimination policy plus internal procedures to 

investigate and deal with alleged discrimination based upon specified protected criteria 

including race.1 (DSOF ¶ 19-24) The policy and the procedures applicable to employees 

such as Plaintiff were available on-line to all employees. (DSOF ¶ 22) Although aware of 

the policy and procedures, Plaintiff never utilized such procedures, and she never told 

anyone at the District that she claimed she was discriminated against due to her race. 

(DSOF ¶ 23, 142-143) Plaintiff also testified in this lawsuit that she did not believe she was 

discriminated against or terminated because of her race. (DSOF ¶ 144) 

Even where there is no formal policy, “persistent and widespread discriminatory 

practices of state officials ... could well be so permanent and well settled as to constitute a 

‘custom or usage’ with the force of law.” Monell v. Department of Social Services, 436 

U.S. 658, 691 (1978) (citation omitted). Plaintiff here has failed to show a widespread 

pattern of repeated racial discrimination. See Gillette v. Delmore, 979 F.2d 1342, 1349 (9th 

Cir. 1992); Jefferson v. City of Fremont, 73 F. Supp. 3d 1133, 1149-50 (N.D. Cal. 2014) (no 

 

1

A probationary employee such as Plaintiff can file a discrimination complaint with the District. (DSOF ¶ 

25)

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pattern of repeated discrimination as to others). The other African-American Cosmetology 

Associate Instructor (Toni Trott) at the Northwest Campus did not feel discriminated against 

in any way due to her race. (DSOF ¶ 139-141) Plaintiff only points to herself as allegedly 

discriminated against due to her race, which is insufficient. Cloes v. City of Mesquite, 582 

Fed. Appx. 721, 724 (9th Cir. 2014).

The requirement to show a policy or practice is established only with “significant 

evidence” to show that a policy existed specifically authorizing or condoning the alleged 

practice. Hazan v. Las Vegas Metropolitan Police Department, 2014 WL 4635588, * 4 (D. 

Nev. 2014), citing, Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir.1989). The 

key focus is on a policy or custom established by the final policymaker for the governmental 

entity. Erdman v. Cochise Cnty., 926 F.2d 877, 882 (9th Cir. 1991); see also Waggy v. 

Spokane Cnty. Washington, 594 F.3d 707, 713 (9th Cir. 2010). The final policymaker here 

would be the Governing Board or the Chancellor of the District, who promulgates 

Administrative Regulations implementing anti-discrimination policies. (DSOF ¶ 6-7, 19-

24) At worst, it is the Vice Chancellor who made the ultimate decision to terminate 

Plaintiff. (DSOF ¶ 188) There is no evidence here that any of them were aware of or 

established any policy or custom for allowing racial discrimination.

2. No Final Policymaker Committed Discrimination

Under the second possible basis for municipal liability, a single act or decision by a 

final policymaker can lead to Monell liability, because “where action is directed by those 

who establish governmental policy, the municipality is equally responsible whether that 

action is to be taken only once or to be taken repeatedly.” Pembaur v. City of Cincinnati, 

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475 U.S. 469, 481 (1986). Liability attaches only where the decision maker possesses final 

authority to establish municipal policy with respect to the action ordered. Id.; Jefferson v. 

City of Fremont, 73 F. Supp. 3d 1133, 1151 (N.D. Cal. 2014). Determining who has 

authority to make final policy is a legal question governed by state law. Id. Monell liability 

is precluded “when an official's discretionary decisions are constrained by policies not of 

that official's making, those policies, rather than the subordinate's departures from them, are 

the act of the municipality.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). The 

“fact that a particular official - even a policymaking official - has discretion in the exercise 

of particular functions does not, without more, give rise to municipal liability based on an 

exercise of that discretion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986).

Here Defendant Hemming recommended Plaintiff’s termination for a variety of 

performance related deficiencies. (DSOF ¶ 178-181) The ultimate decision for termination 

was made by Vice Chancellor Bowers after the approval of a number of administrative 

officials and the human resources department. (DSOF ¶ 179, 182-184, 187-189) Merely 

going along with a subordinate’s recommendation is not a delegation of authority to make 

the final determination. Plaintiff would have to show that Vice Chancellor Bowers 

committed intentional discrimination. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 

1253 (9th Cir. 2010) (noting that “ ‘[t]o hold cities liable under section 1983 whenever 

policymakers fail to overrule the unconstitutional discretionary acts of subordinates would 

simply smuggle respondeat superior liability into section 1983 law’” (quoting Gillette v. 

Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (per curiam)).

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There is no evidence that Vice Chancellor Bowers terminated Plaintiff due to her 

race or knew that any subordinate acted out of racial bias. (DSOF ¶ 187-189) Plaintiff 

herself never alleged she was being discriminated against due to her race. (DSOF ¶ 142-

143) Defendant Hemming never made any statements reflecting racial animus or bias. 

(DSOF ¶ 138) In the absence of knowledge that a subordinate was motivated by unlawful 

discriminatory animus, no Monell liability exists for the action of a final policymaker. 

Jefferson v. City of Fremont, 73 F. Supp. 3d 1133, 1151-52 (N.D. Cal. 2014). 

3. There Is No Evidence Of Ratification

The record here does not reflect ratification. “Praprotnik requires that a policymaker 

approve a subordinate's decision and the basis for it before the policymaker will be deemed 

to have ratified the subordinate's discretionary decision.” Gillette v. Delmore, 979 F.2d 

1342, 1347–48 (9th Cir. 1992) (emphasis in original). There is no evidence to support that 

the Governing Board, the Chancellor, or even the Vice Chancellor knowingly ratified 

discrimination by any subordinate here (DSOF ¶ 187-189). See Bd. of Cnty. Comm'rs of 

Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 414 (1997) (because while inadequate scrutiny 

may raise the likelihood of a violation of rights, it does not compel the inference that failure 

to scrutinize produced a specific constitutional violation). 

Ratification will not be found merely because a plaintiff complains to superiors about 

the alleged discriminatory conduct of an employee, otherwise this would allow for an end 

run to permit respondeat superior liability. Jefferson v. City of Fremont, 73 F. Supp. 3d 

1133, 1153 (N.D. Cal. 2014), quoting, Weisbuch v. Cnty. of Los Angeles, 119 F.3d 778, 

781–82 (9th Cir. 1997). Rather a plaintiff must prove that the final policymaking superior 

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had knowledge that racial animus motivated the decision and actions being challenged. Id. 

Here, in any event, Plaintiff never even complained of alleged racial discrimination making 

ratification almost impossible. (DSOF ¶ 142-143) 

The racial discrimination claims against the District should be dismissed.

B. Defendant Hemming Did Not Engage In Racial Discrimination

Racial discrimination under § 1981 and § 1983 can generally be proven through 

either direct evidence of racial bias2or through the burden shifting framework set forth in 

McDonnell Douglas. Manatt v. Bank of America NA, 339 F.3d 792, 799 (9th Cir. 2003). 

Here there is no direct evidence of any racial bias, as Defendant Hemming never said

anything reflecting racial bias. (DSOF ¶ 139) Under the McDonnell Douglas framework, 

plaintiff must demonstrate by evidence that: (1) that the plaintiff belongs to a protected 

class; (2) that the plaintiff performed his or her job satisfactorily; (3) that the plaintiff 

suffered an adverse employment action; and (4) that the plaintiff's employer treated the 

plaintiff differently than a similarly situated employee who does not belong to the same 

protected class as the plaintiff. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 

1028 (9th Cir. 2006). Even assuming a plaintiff makes a prima facie case of discrimination, 

the burden shifts to a defendant to show a legitimate reason for its actions. Id. A legitimate 

non-discriminatory reason offered by a defendant shifts the burden back to plaintiff to show 

pretext. Schechner v. KPIXTV, 686 F.3d 1018, 1025 (9th Cir. 2012). 

 

2

Direct evidence includes “clearly sexist, racist, or similarly discriminatory statements or actions by the 

employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005).

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“A plaintiff may not defeat a defendant's motion for summary judgment merely by 

denying the credibility of the defendant's proffered reason for the challenged employment 

action.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028, n. 6 (9th Cir. 2006). 

When the evidence on which a plaintiff relies is circumstantial, that evidence must be 

“specific and substantial to defeat the employer's motion for summary judgment.” Anthoine 

v. North Central Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010). To avoid 

summary judgment, a plaintiff must adduce admissible evidence that either a discriminatory 

reason more likely motivated the employer or that the employer's proffered explanation is 

unworthy of credence. Brown v. City of Tucson, 336 F.3d 1181, 1188 (9th Cir. 2003).

At the Northwest Campus, unlike other instructors, Plaintiff committed and/or was 

reported to have committed the following policy violations:

 Failed to follow the curriculum in violation of expectations (DSOF ¶ 58-63)

 Was late to work multiple times in a short period of time in violation of expectations 

(DSOF ¶ 64-71)

 Allowed high school students to leave the closed campus in violation of a safety 

policy (DSOF ¶ 72-78)

 Allowed students in the instructor’s office in violation of policy (DSOF ¶ 79-86)

 Signed off on attendance and assignment sheets after the day concluded in violation 

of policy (DSOF ¶ 87-88)

 Showed a non-cosmetology related movie during instructional time and committed 

fraud by crediting students with hours of instruction (DSOF ¶ 89-97)

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 Allowed food and drink in a classroom in violation of policy and State Cosmetology 

Board Regulations (DSOF ¶ 98-107)

 Sleeping on the job as reported by three other instructors (DSOF ¶ 108-114)

 Failed to follow State regulations and policy regarding monitoring sanitation of clinic 

floor area and student lockers (DSOF ¶ 115-117)

 Improperly allowed students to perform services in violation of policy (DSOF ¶ 118-

127)

These demonstrate that Plaintiff cannot even prove a prima facie case (see factors two and 

four), but would also constitute the non-discriminatory reasons for Plaintiff’s treatment 

(Plaintiff received four Incident Reports3, one of which was replaced with a verbal warning) 

during her employment and the basis for approval of Plaintiff’s termination. (DSOF ¶ 58-

127, 178-182, 188-189) Plaintiff would have been terminated without regard to her race, 

which is the only adverse employment action. (DSOF ¶ 189, 191) Plaintiff and the other 

probationary instructors were warned by Defendant Hemming that the failure to follow the 

rules could lead to dismissal. (DSOF ¶ 177)

There is no evidence to support a claim of pretext here. To demonstrate pretext, a 

party must show that the reason is a lie and completely untrue as opposed to a mistaken 

determination. Vasquez v. Kitsap County, 2009 WL 973335, * 10 (W.D. Wa. 2009), aff’d, 

379 Fed. Appx. 680 (9th Cir. 2010); see Russell v. Acme–Evans Co., 51 F.3d 64, 68 (7th 

Cir.1995) (pretext does not simply mean a “mistake,” but rather “a lie, specifically a phony 

 

3

Incident Reports are not a disciplinary tool, but serve as documentation of written warnings of a violation 

of policy. (DSOF ¶ 17) Incident Reports are not made part of an employee’s personnel file. (DSOF ¶ 18) 

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reason for some action”). The Supreme Court has made clear it is not unlawful to discharge 

or treat an employee differently based upon substantively incorrect information. Waters v. 

Churchill, 511 U.S. 661, 679 (1994) (plurality opinion); Connick v. Myers, 461 U.S. 138, 

146-147 (1983). 

Plaintiff alleged in her complaint that she did not receive written performance 

evaluations during her probationary period as specified in the policies. It is not uncommon 

that employees at the District do not receive the written performance evaluations specified 

in policies. (DSOF ¶ 130) Plaintiff here received the same self-assessment packet from 

Defendant Hemming as the other instructors. (DSOF ¶ 132) No instructor in the 2013-14 

school year received a written evaluation completed by Defendant Hemming. (DSOF ¶ 

133-134) Defendant Hemming herself did not receive a completed written performance 

evaluation from her supervisor that year. (DSOF ¶ 134) So Plaintiff was treated like all of 

the other instructors by Defendant Hemming.

Plaintiff alleged that she alone was singled out and treated differently than her coworkers, including the other African-American instructor. (DSOF ¶ 145) A “class of one” 

equal protection claim is based upon unique treatment rather than membership in a protected 

class. N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). The “class of 

one” theory, however, does not apply to public employment decisions as to an individual 

employee. Engquist v. Oregon Dept. of Agric., 553 U.S. 591, 605, 607–08 (2008). Plaintiff 

being singled out reflects that it was not due to race as Plaintiff was not the only AfricanAmerican instructor.

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The claim of disparate treatment against Defendant Hemming should be dismissed as 

there is no evidence to support a finding of intentional discrimination due to race.

C. There Was No Retaliation For Opposing Racial Discrimination

As explained above, there is no Monell liability of the District demonstrated. This 

test also applies to the claim of retaliation. Schiff v. City and County of San Francisco, 528 

Fed. Appx. 743, 746 (9th Cir. 2013), cert. denied, 134 S. Ct. 935 (2014). No policy or 

practice of retaliation for opposing discrimination has been demonstrated. The retaliation 

claim lacks merit as well so it should be dismissed as to both Defendants.

To establish a retaliation claim in this public employment context, a plaintiff must 

show: (1) involvement in protected activity; (2) an adverse employment action and (3) a 

causal link between the two. See Emeldi v. University of Oregon, 673 F.3d 1218, 1223 (9th 

Cir. 2012), amended in 698 F.3d 715, (9th Cir. 2012), cert. denied, 133 S.Ct. 1997 (2013). 

At that point, the burden of production shifts to the employer to present legitimate reasons 

for the adverse employment action and if that burden is met, plaintiff must demonstrate that 

the reason given was a pretext. Id. at 1224. A defendant can also succeed by establishing a 

“same decision” defense even if the employer had not considered the illegal factor. Vasquez 

v. Kitsap County, 2009 WL 973335, *8 (W.D. Wa. 2009), aff’d, 379 Fed. Appx. 680 (9th

Cir. 2010).

“Ambiguous complaints that do not make the employer aware of alleged 

discriminatory misconduct do not constitute a protected activity.” International Healthcare

Exchange v. Global Healthcare Exchange, LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y. 2007); 

see also Ochei v. Coler/Goldwater Memorial Hospital, 450 F.Supp.2d 275, 287 (S.D.N.Y.

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2006) (where plaintiff made complaints to her employer but never alleged “that she was the 

victim of discrimination” so her “complaints [were] not a protected activity”).

In analyzing the retaliation claim under § 1981 it is important to recall that the statute 

only applies to racial discrimination. Saint Francis College v. Al–Khazraji, 481 U.S. 604, 

613 (1987); Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001). Plaintiff never 

made a claim of racial discrimination whether verbally or in an internal EEO complaint. 

(DSOF ¶ 143-144) As such she was not engaged in protected activity of opposing racial 

discrimination, so no retaliation claim can be maintained. Absent knowledge of a complaint 

alleging or opposing racial discrimination, the retaliation claim must fail.

As pointed out above, the actions of Defendants were supported by legitimate 

reasons and Plaintiff cannot produce evidence to demonstrate that such reasons are a pretext 

for racial discrimination or retaliatory motive. 

Plaintiff cannot allege a claim of retaliation under the § 1983 cause of action because 

claims of workplace retaliation are outside of the scope of equal protection. Brown v. 

Contra Costa County, 2013 WL 1091844, *1, n. 1 (N.D. Cal. 2013); see, e.g., Boyd v. Ill. 

State Police, 384 F.3d 888, 898 (7th Cir. 2004); see also Sizemore v. City of Dallas, 443 

F.Supp.2d 1201, 1204–05 (D. Or. 2009) (holding based on reasoning in decisions from the 

First, Second, Sixth, Seventh, and Tenth Circuits).

The retaliation claim under § 1981and § 1983 for equal protection violation should 

be dismissed as to both Defendants.

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II. THERE IS NO VALID CLAIM FOR FIRST AMENDMENT RETALIATION

Plaintiff asserted a claim under § 1983 for alleged retaliation for the exercise of 

Plaintiff’s First Amendment right to free speech. 

A. The District Is Not Liable For Alleged First Amendment Retaliation

Plaintiff has produced no evidence of a policy or widespread practice of retaliation 

for the exercise of an employee’s First Amendment rights, but instead asserts that she was 

singled out. (DSOF ¶ 146) Plaintiff only points to herself which is insufficient to support a 

constitutional violation under Monell. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) 

(“Plaintiffs cannot satisfy the requirement of a longstanding practice or custom, because 

they allege to the contrary that a county official has singled them out for unique treatment”). 

As was true of the racial discrimination claim discussed above, there is no evidence to show 

that a final policymaker was aware of any alleged First Amendment protected activity and 

committed an act of retaliation for such protected activity. (DSOF ¶ 187-189, 191) There is 

also no evidence to support ratification. (DSOF ¶ 187-189, 191) 

The District should be dismissed from the § 1983 claim based upon alleged First 

Amendment retaliation.

B. Defendant Hemming Did Not Engage In First Amendment Retaliation

To prevail on a First Amendment claim in a public employment context, a plaintiff 

must prove the following five elements: (1) that they spoke on a matter of public concern; 

(2) that they spoke as private citizens rather than as public employees; (3) that their 

protected speech was a substantial or motivating factor in Defendants’ adverse employment 

actions; (4) that Defendants had no adequate justification for treating them differently from 

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other members of the general public; and (5) that Defendants would not have taken the 

adverse employment actions in the absence of their protected speech. Desrochers v. City of 

San Bernardino, 572 F.3d 703, 708–09 (9th Cir. 2009). The plaintiff bears the burden to 

prove that the speech addressed an issue of public concern, that the speech was spoken in 

the capacity of a private citizen and not a public employee, and that the protected speech 

was a substantial or motivating factor in an adverse employment action. Eng v. Cooley, 552 

F.3d 1062, 1070-1071 (9th Cir. 2009). If the plaintiff satisfies the first three prongs of the 

test, then the burden shifts to the employer to show that under the balancing test the state’s 

administrative interests outweigh the employee’s First Amendment rights and/or, even if the 

employer fails the balancing test, that it would have reached the same decision in the 

absence of the employee’s protected speech. Id. at 1071-72 (9th Cir. 2009).

Whether speech is about a matter of public concern is a question of law for the court 

which looks at the content, form and context of a given statement. Desrochers v. City of 

San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009). Speech that deals with individual 

personnel disputes and grievances is not of public concern. Karl v. City of Mountlake 

Terrace, 678 F.3d 1062, 1069 (9th Cir. 2012). Where speech is directed to an employee’s 

supervisor and inside the governmental agency, this weighs against finding protected 

speech. Desrochers v. City of San Bernardino, 572 F.3d 703, 7014 (9th Cir. 2009). The 

context of speech boils down to determining whether the speech seeks to bring to light 

actual or potential wrongdoing, or is it animated by a dissatisfaction with one’s employment 

situation. Id. at 715. 

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To this end, Plaintiff claims that in September 2013 with Defendant Hemming and 

Hemming’s supervisor (Kristina Scott) and again in October 2013 with Hemming’s 

supervisor Scott, she questioned the legality of an alleged directive from Defendant 

Hemming that Plaintiff must tell students in Plaintiff’s class they could not ever speak 

Spanish in the student lounge. (DSOF ¶ 148-151, 156, 160-161) Plaintiff passed along the 

directive to her entire class, most of whom were Hispanic. (DSOF ¶ 152) The directive 

resulted from a complaint about specific students prohibited bullying another student while 

speaking Spanish in the student lounge. (DSOF ¶ 147, 151, 155-156) 

Defendants accept that Plaintiff’s speech (as alleged although disputed) to Defendant 

Hemming and Kristina Scott about problems with the alleged directive for her students not 

to speak Spanish in the student lounge could qualify as speech on matters of public concern. 

(DSOF ¶ 148-151, 156, 160-161) However, Plaintiff’s speech to and with Defendant 

Hemming and Kristina Scott regarding Hemming’s management of Plaintiff and the 

Incident Reports written up by Hemming on Plaintiff were not on matters of public concern. 

(DSOF ¶ 67-71, 83-86, 101-104, 108, 111, 160-164) They were unprotected personnel 

disputes. Plaintiff’s statements about the 90/90 report and where facial training would occur 

related to Plaintiff’s teaching of her cosmetology class and so were also not matters of 

public concern. (DSOF ¶ 165-176) 

In determining whether speech is done as an employee, the inquiry is a practical one 

informed by the job description and actual duties performed. Oyarzo v. Tuolumne Fire 

District, 955 F. Supp. 2d 1038, 1060 (D. Ariz. 2013). Plaintiff’s speech with Defendant 

Hemming and Kristina Scott regarding Hemming’s management of Plaintiff and the 

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Incident Reports written up by Hemming on Plaintiff were done as an employee not a 

citizen. Plaintiff’s statements about the 90/90 report and where facial training would occur 

related to Plaintiff’s teaching of her cosmetology class. (DSOF ¶ 165-176) Because her 

statements related to her job responsibilities, they were not protected.

Plaintiff’s First Amendment claim based upon her speech against the Spanish 

prohibition in the student lounge still fails due to an absence of any causal nexus to any 

adverse employment action. Plaintiff complained about the directive in mid-September 

2013 in a meeting with Defendant Hemming and Kristina Scott. (DSOF ¶ 160) Plaintiff 

then in late October 2013 had a meeting just with Scott about unrelated issues and 

mentioned the Spanish directive in passing. (DSOF ¶ 161) In January 2014, Defendant 

Hemming recommended that Plaintiff be terminated. (DSOF ¶ 178-181) Plaintiff was not 

given any reason for her termination, so she is speculating it was because of her opposition 

to the Spanish directive. (DSOF ¶ 144, 190) When Hemming recommended Plaintiff’s 

termination, none of the reasons provided related to the Spanish directive or any other 

speech which might be considered protected activity. (DSOF ¶ 178-184, 187-189, 191) 

The causal link does require knowledge of the prior protected activity. Cornwell v. 

Electra Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006) (no liability for retaliation 

if unaware of protected activity). There is no evidence that administrative officials who 

approved Plaintiff’s termination were aware of any protected activity. (DSOF ¶ 180-184, 

187-189, 191) Assuming there is knowledge of the protected activity, temporal proximity 

can provide the basis as part of a prima facie case for showing that protected activity was 

the motivating basis for retaliation. However, in Swan v. Bank of America, 360 Fed. Appx. 

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903, 906 (9th Cir. 2009), the Ninth Circuit held a gap of four months was too remote in time 

to support a finding of causation based solely upon temporal proximity. The Supreme Court 

has indicated that temporal proximity must be very close in time to support a prima facie 

claim of retaliation and cited with approval cases holding that a three month period and a 

four month period were insufficient to establish causation when proximity is the only 

evidence. Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001). Here the 

gap from the September 2013 protected activity and the recommendation for termination 

was four months. There is no evidence reflecting Plaintiff’s statements about the Spanish 

directive or any other arguable protected speech played any role in Plaintiff’s termination. 

(DSOF ¶ 178-184, 187-189, 191) Even if a prima facie case could be made, the evidence 

reflects that Plaintiff would have been and was terminated for reasons unrelated to the 

Spanish directive or any protected speech or activity. (DSOF ¶ 187-189, 191)

Plaintiff’s First Amendment claim should be dismissed against Defendant Hemming.

DATED: October 4, 2016. 

UDALL SHUMWAY PLC

/s/ David R. Schwartz

David R. Schwartz

Kimberly Davis

1138 North Alma School Road, Suite 101

Mesa, AZ 85201

Attorneys for Defendants 

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CERTIFICATE OF SERVICE

I hereby certify that on October 4, 2016, I electronically filed the attached document 

using ECF for filing and transmitted the document as follows:

By mail to:

Schaun Owens

16808 N. 20th Street

Phoenix, AZ 85022

Plaintiff

/s/ Kimberly Kershner

Kimberly Kershner

4678787.1 \109883-5\

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