In Desrochers v. City of San Bernardino, (— F.3d —-, C.A.9 (Cal.), July 13, 2009), the United States Court of Appeals considered whether two police officers stated a claim for retaliation under the First Amendment for adverse actions they claim were taken after they made complaints about their supervisors. The Court of Appeals held that the officers failed to state a claim for retaliation because the officers’ speech did not address a matter of public concern.
Michael Desrochers (“Desrochers”) and Steve Lowes (“Lowes”) work for the San Bernardino Police Department (“SBPD”). In June 2006, SBPD transferred Desrochers from the Homicide Unit to the Robbery Unit. Around this same time, Lowes was the subject of an internal affairs investigation and received a two-week suspension. Desrochers and Lowes claim that these adverse actions were taken in retaliation after they engaged in constitutionally protected speech.
On April 19, 2006, Lowes, Desrochers, and two other sergeants filed an informal grievance against their supervisor, Lieutenant Michael Kimball (“Kimball”). The sergeants requested that Kimball be removed from his command, that he receive training on interpersonal relations, and that SBPD monitor his conduct and investigate the charges in the grievance. After Kimball heard about the grievance, he immediately asked for a transfer from the Specialized Enforcement Bureau, a request which SBPD granted. Kimball was replaced by Lieutenant Brian Boom (“Boom”). Captain Frank Mankin (“Mankin”) adjudicated the grievance. The two other sergeants involved in the informal grievance reached an agreement with the Chief of Police, Michael Billdt (“Billdt”).
Lowes and Desrochers filed a formal grievance against Kimball, Billdt, and Mankin in which they alleged that Kimball created a “hostile work environment” and that Billdt and Mankin perpetuated this environment because they failed to take appropriate action. Lowes claimed in his declaration that “Kimball is a very autocratic, controlling and critical supervisor;” Kimball believes that everyone around him is incompetent; Kimball’s approach and tactics are destroying the confidence and morale of his men; and Kimball had implied in the past that another police department they were working with was incompetent. Lowes also claimed that Kimball is a micromanager who insults fellow officers. Desrochers claimed that he had never filed a complaint against another officer but filed one against Kimball “because he ‘believe[d] it to be a necessary step forward in an attempt to change the culture of this police department and the way we treat each other.” He claimed Kimball belittled him in front of others, threw a tantrum in front of a neighboring police force, and that Kimball demonstrated an autocratic style. Desrochers’ and Lowes’ formal grievance was ultimately denied.
Desrochers and Lowes filed a complaint with the Human Resources Department of the City of San Bernardino (“City”). In the complaint, the officers stated their complaints against Kimball, Mankin, and Billdt. Desrochers and Lowes later amended their complaint to include complaints about Boom. The Human Resources Department also denied the relief requested by Desrochers and Lowes, which included a request to remove Boom as supervisor.
Desrochers and Lowes filed a lawsuit in federal district court alleging that Desrochers’ transfer and Lowes’ suspension were administered in retaliation for engaging in speech protected by the First Amendment. The federal district court granted summary judgment to City, Billdt, Mankin, and Boom.
The Court of Appeals affirmed the district court’s decision. The court found Desrochers and Lowes cannot state a First Amendment retaliation claim because they cannot show that their speech, which in this case took the form of grievances against their supervisors, was a matter of public concern.
In order to state a claim for First Amendment retaliation against a government employer, an employee must first show that he or she “spoke on a matter of public concern.” If the employee spoke on a matter of public concern, a court must then inquire whether the employee spoke as a private citizen or public employee. The next question is “whether the [employee’s] protected speech was a substantial or motivating factor in the adverse employment action.” A court must also determine if the “state had an adequate justification for treating the employee differently from other members of the general public” and “whether the state would have taken the adverse action even absent the protected speech.”
Here, the essential question was whether Desrochers’ and Lowes’ speech addressed matters of public, rather than personal, interest. The court held that the officers’ speech did not address a matter of public concern. To address a matter of public concern, the content of Desrochers’ and Lowes’ speech “must involve ‘issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.'” The officers claimed that their grievances implicated “issues such as the ‘competency,’ ‘preparedness,’ ‘efficiency,’ and ‘morale,’ of the SBPD.” The court rejected the officers’ contention and found that “passing references to public safety,” that are only incidental to the message of the speech at issue, weighs against a finding of public concern. The court opined that “the reality that poor interpersonal relationships amongst coworkers might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern.”
The grievances filed by Desrochers and Lowes indicate they “were involved in a personality dispute centered on Kimball’s management style.” Desrochers and Lowes “thought their boss was a bully and said so.” If a person works for the government and says his or her boss is a bully, the fact that a government employer is involved does not turn the matter into a constitutional case. Desrochers’ and Lowes’ speech reflects their dissatisfaction with Kimball’s management style and the ongoing personality dispute that arose from this dissatisfaction.
The court found that the content of the officers’ speech “relates at best only tangentially to matters of public concern.” It further found that the speech was not disseminated to the public, and this “cuts against a finding of public concern.”
Desrochers and Lowes asserted that they were motivated out of concern for the well-being of the SBPD, and not by a personal vendetta against Kimball. Ultimately, the court concluded that the grievances reflect Desrochers’ and Lowes’ “dissatisfaction with their employment situation, a conclusion which [also] weighs against a finding of public concern.” Accordingly, the court held that Desrochers and Lowes could not state a claim for First Amendment retaliation.
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