Ninth Circuit Holds Alleged Retaliatory Actions Must Be Viewed in Context For Purposes of a First Amendment Retaliation Claim

In Wendy Thomas, et al v. County of Riverside, et al, the Ninth Circuit considered whether the District Court properly granted summary judgment of an employee’s First Amendment retaliation claim in favor of the employer. Concluding a reasonable juror could find the employer’s actions were retaliatory when viewed in context, rather than in isolation as the District Court viewed them, the Ninth Circuit reversed and remanded in part.  (Thomas v. County of Riverside (9th Cir., Aug. 18, 2014) — F.3d —, 2014 WL 4056546).


From 1996 to January 2013, the employee (“Thomas”) worked as a Sheriff's Communications Supervisor, or Dispatch Supervisor, with the County of Riverside and was an active member of the SEIU.  In her complaint, Thomas alleged that the County retaliated against her for making comments about the status of the collective bargaining negotiations that were protected by the First Amendment.  In support of her claim, Thomas presented evidence of more than thirty distinct adverse employment actions.  Those adverse actions included such things as transferring Thomas involuntarily, conducting internal investigations of her, removing her from a higher-paid community college teaching assignment, prohibiting her from using break time to travel between work sites thereby requiring her to use unpaid time for work travel, rescinding a previously approved vacation, and removing her from an unpaid position with the uniform committee. 

In its opinion, the District Court addressed the alleged involuntary transfers and internal investigations individually, among other actions, and then collectively dismissed the remaining actions set forth above as “petty workplace gripes” that could not be considered retaliatory adverse employment actions.  The Ninth Circuit disagreed with the District Court's approach, emphasizing that alleged retaliatory actions, even seemingly innocuous ones, must be viewed in context.


At the outset, the Ninth Circuit explained that in a First Amendment retaliation case, a plaintiff must demonstrate the employer’s actions would be reasonably likely to deter an employee from engaging in protected speech.  It affirmed that certain minor acts, such as “bad mouthing,” may be too trivial as a matter of law to deter someone from protected speech. On the other hand, the Court acknowledged that whether adverse employment actions are trivial depends on the circumstances. 

Turning to the actions alleged by Thomas, the Ninth Circuit concluded the District Court’s dismissal of those actions it characterized as “petty workplace gripes” was improper.  It noted that plaintiff presented “evidence suggesting that some of these actions were taken as part of a more general campaign and hence might in context have greater materiality than when viewed in isolation.” 

The Ninth Circuit also found that the District Court improperly dismissed from consideration some of the involuntary transfers and one of the internal investigations.  While the County offered evidence of legitimate business justifications for those actions, Thomas presented evidence that the transfers came shortly after she made her protected comments, and that the investigation was not initiated because she violated any policies, but because her supervisor objected to the “tone” of her emails.  The Ninth Circuit concluded that this evidence was sufficient to raise a triable issue of fact as to whether the County’s proffered justifications were pretextual.

What This Case Means to You

This case serves as a reminder to employers that retaliatory actions are not limited to traditional  actions such as termination or demotion.  Even small employment actions, when viewed in the aggregate, may be considered evidence of unlawful retaliation. 


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David W. Tyra, Shane R. Larsen or Corrie L. Erickson | 916.321.4500