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Barone v. City of Springfield

United States Court of Appeals, Ninth Circuit

September 5, 2018

Thelma Barone, an individual, Plaintiff-Appellant,
City of Springfield, Oregon, a municipal corporation; Tim Doney, individually, and as Chief of Police of the Springfield Police Department; Tom Rappe, individually, and as a Lieutenant of the Springfield Police Department; Gino Grimaldi, individually, and as City Manager of the City of Springfield; Greta Utecht, individually, as Director of Human Resources for the City of Springfield, Defendants-Appellees.

          Argued and Submitted June 5, 2018 Portland, Oregon

          Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding D.C. No. 6:15-cv-01552-AA

          Andrew Lewinter (argued), Eugene, Oregon, for Plaintiff-Appellant.

          Mark 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.

         SUMMARY [**]

         Civil Rights

         The 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.

         Plaintiff 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.

         The 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 Amendment.

         Addressing 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.



         Thelma 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 liability.


         In 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 leadership.

         These 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 Doney.

         In 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.

         On 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."

         A week 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.

         The 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.

         At a 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 information.

         At the 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.

         Citing 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 appealed.[1]


         We have 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).


         I. First Amendment Retaliation

         We turn 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.

         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 ...

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