and Submitted June 5, 2018 Portland, Oregon
from the United States District Court for the District of
Oregon Ann L. Aiken, District Judge, Presiding D.C. No.
Lewinter (argued), Eugene, Oregon, for Plaintiff-Appellant.
C. Sherman (argued) and Janet M. Schroer, Hart Wagner LLP,
Portland, Oregon, for Defendants-Appellees.
Before: MILAN D. SMITH, JR. and MARY H. MURGUIA, Circuit
Judges, and ALVIN K. HELLERSTEIN, [*] District Judge.
panel affirmed in part and reversed in part the district
court's summary judgment and remanded in an action
brought pursuant to 42 U.S.C. § 1983 alleging that
plaintiff was retaliated against in her employment as a
Community Service Officer for the Springfield Police
Department, in violation of her First Amendment rights.
asserted that appellees retaliated against her after she
responded at a public event to a citizen inquiry about racial
profiling by the Police Department. The panel held that
plaintiff's retaliation claim failed because she spoke as
a public employee, so her speech was not protected by the
First Amendment. The panel noted that plaintiff's speech
at the event clearly fell within her job duties. Plaintiff
was aware that she was speaking as a representative of the
Department and discussing her work with the Department.
Moreover, the panel noted that the speech at issue was a
response to an inquiry about racial profiling complaints, a
type of complaint plaintiff regularly received in her
capacity as a Community Service Officer.
panel next held that an amended Last Chance Agreement which
plaintiff was required to sign before returning to work was
an unconstitutional prior restraint. Paragraph 5(g) of the
amended Agreement barred plaintiff from saying or writing
anything negative about the Department, the City or its
employees. The panel held that Paragraph 5(g) restrained
plaintiff's speech as a private citizen on matters of
public concern, and appellees had not presented
justifications sufficient to warrant Paragraph 5(g)'s
overbroad restrictions. The panel thus held that Paragraph
5(g)'s prospective restriction violated the First
plaintiff's claim of municipal liability under Monell
v. Department of Social Services, 436 U.S. 658 (1978),
the panel held that there was a genuine issue of material
fact about whether the City Manager delegated final
policymaking authority over employee discipline to the Police
Chief. If such authority was delegated, the City would be
liable under Monell. The panel therefore reversed
and remanded for consideration of whether the City could be
held liable for the Police Chief's conduct in requiring
plaintiff to sign the amended Agreement.
SMITH, CIRCUIT JUDGE
Barone brought this 42 U.S.C. § 1983 action against the
City of Springfield and several of its employees
(collectively, Appellees). Barone now appeals from the
district court's order granting summary judgment in favor
of Appellees on all of her claims. We affirm the district
court respecting her First Amendment retaliation claim,
reverse the district court concerning her prior restraint
claim, and reverse and remand on the issue of Monell
AND PROCEDURAL BACKGROUND
March 2003, Barone began working for the Springfield Police
Department (Department) as a Community Service Officer II
(CSO II). She focused on victim advocacy, and served as a
Department liaison to the City's minority communities.
Throughout her tenure, members of the Latino community
complained to Barone about racial profiling by the
Department. She relayed these complaints to Department
complaints became more frequent beginning in spring 2013.
Around that same time, the Department was in the midst of a
leadership transition, which led to, among other things, Tim
Doney's appointment as Chief of Police. As directed,
Barone drafted her job description and sent it to Chief
2014, the Department began investigating Barone in connection
with two Department-related incidents. The first incident
involved a school tour Barone led through the Department.
During the tour, some students took photos of restricted
areas, where no photo taking was permitted. Department
employees disputed whether Barone had asked for, and
received, approval for the students to photograph each unit.
In the second incident, a Latina notified Barone of a
potential crime. Barone was unable to reach a sergeant about
this crime, but she left a message with the dispatchers and
asked the sergeant to return her call. The sergeant never
returned her call because he said he did not know the phone
call pertained to a possible crime. The parties disputed
whether Barone informed the dispatchers that she wanted to
speak to the sergeant about an alleged crime.
February 5, 2015, Barone spoke at a City Club of Springfield
event headlined "Come Meet Thelma Barone from the
Springfield Police Department." The Department paid her
to attend the event; she wore her uniform; and her supervisor
attended. She understood that she attended and participated
in the event as a representative of the Department. A member
of the audience at the event asked her whether she was aware
of increasing community racial profiling complaints. She said
that she "had heard such complaints."
later, Chief Doney placed Barone on administrative leave due
to her alleged untruthfulness in connection with
investigations into the two pre-2015 occurrences. Almost a
month later, the Department found that Barone had violated
several sections of the Department's code of conduct, and
she remained on administrative leave.
Department's investigation of the two incidents continued
into the summer. In July 2015, the Department suspended
Barone for four weeks without pay, and informed her that she
would be required to sign a Last Chance Agreement (the
Agreement) when she returned to work. Barone, her union
representative, and Chief Doney met to discuss the Agreement
on the day that Barone returned to work. At the meeting,
Chief Doney provided Barone with a copy of the Agreement,
told her to review it, and told her that the Department would
terminate her if she did not sign it. A week later, Barone
refused to sign the original Agreement because it prohibited
her from reporting on racial profiling and discrimination.
subsequent meeting, Chief Doney provided Barone with an
amended Agreement that addressed her stated concerns with the
original Agreement. Paragraph 5(g) of the amended Agreement
barred Barone from saying or writing anything negative about
the Department, the City, or their employees. However, she
could report complaints involving discrimination or profiling
by the Department. The amended Agreement also provided that
Barone would remain subject to a generally applicable order
that barred her from publicly criticizing or ridiculing the
Department and barred her from releasing confidential
second meeting, Barone did not express concern about any
particular provision of the amended Agreement. Nevertheless,
after speaking with her representative, Barone refused to
sign the Agreement as amended. Because Barone refused to sign
the amended Agreement, Chief Doney terminated her employment
with the Department.
42 U.S.C. § 1983, Barone sued the City, Chief Doney,
Department Lieutenant Tom Rappe, City Manager Gino Grimaldi,
and Human Resources Director Greta Utecht for First Amendment
retaliation, and imposing an unlawful prior restraint. In May
2016, the district court denied Barone's motion for
partial summary judgment on her prior restraint claim. In
April 2017, the district court granted summary judgment in
favor of Appellees on Barone's claims. Barone timely
jurisdiction over this appeal pursuant to 28 U.S.C. §
1291. We review de novo a district court's grant of
summary judgment. Beaver v. Tarsadia Hotels, 816
F.3d 1170, 1177 (9th Cir. 2016). We may affirm on any ground
supported by the record. Facebook, Inc. v. Power
Ventures, Inc., 844 F.3d 1058, 1064 (9th Cir. 2016).
First Amendment Retaliation
first to Barone's First Amendment retaliation claim, in
which she asserts that Appellees retaliated against her after
she spoke at the February 2015 City Club event. We affirm the
district court, and conclude that Barone's First
Amendment retaliation claim fails because she spoke as a
public employee, so her speech was not protected by the First
Amendment retaliation claims are analyzed under the
five-factor inquiry described in Eng v. Cooley, 552
F.3d 1062 (9th Cir. 2009). Barone must show that (1) she
spoke on a matter of public concern; (2) she spoke as a
private citizen rather than a public employee; and (3) the
relevant speech was a substantial or motivating factor in the
adverse employment action. Coomes v. Edmonds Sch. Dist.
No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (citing
Eng, 552 F.3d at 1070-71). If Barone establishes
such a prima facie case, the burden shifts to the government
to demonstrate that (4) it had an adequate justification for
treating Barone differently than other members of the general
public; or (5) it would have taken the adverse employment
action even absent the ...