UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED

JAN 06 2010

JOAN G. UHL, No. 08-15865

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Plaintiff - Appellant, D.C. No. 3:06-CV-01084-JAT District of Arizona, v. Phoenix

LAKE HAVASU CITY, a municipal corporation and body politic; MAUREEN ORDER

ROSE GEORGE; DENNIS VAUGHAN,

Defendants - Appellees.

Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, * District Judge.

The memorandum disposition filed November 17, 2009, is hereby amended

as follows:

1. Page 7, ln. 1: Add footnote <1> after with the following text:

Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), is not to the contrary. Neither Gillette nor the cases on which it relied addresses a situation in which a municipal actor’s disciplinary decisions are unreviewable, as George’s were, as opposed to initially discretionary. See Gillette, 979 F.2d at 1348 (suggesting in a separate context that the City Manager could have overruled the Fire Chief’s decision but did not); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (discussing in dictum a Board of County Commissioners’

* The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation. decision to leave “discretion” to a sheriff to hire and fire employees but not specifying whether such discretion was reviewable); Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir. 1988) (addressing a scenario under which a police sergeant had “discretion to recommend hiring, firing, and discipline” (emphasis added)).

2. Page 7, line 3: Add the following text after <(9th Cir. 1983).>:

It is not sufficient that a city personnel rule in theory bound George to comply with the law. See Lytle, 382 F.3d at 984–85 (holding that a school superintendent and assistant superintendent were final policymakers with respect to employee discipline where their decisions were unreviewable, even though the Board of Trustees had delegated such power to be exercised in accordance with “laws, board policies, and regulations”).

With these amendments, the panel has unanimously voted to deny

Defendants-Appellees’ petition for rehearing. Judge Berzon and Judge Schroeder

have voted to deny the petition for rehearing en banc. Judge Shadur recommends

denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for panel rehearing is DENIED and the petition for rehearing

en banc is DENIED. No further petitions for rehearing or rehearing en banc may

be filed.

2

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JAN 06 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOAN G. UHL, No. 08-15865

Plaintiff - Appellant, D.C. No. 3:06-CV-01084-JAT

v.

MEMORANDUM *

LAKE HAVASU CITY, a municipal corporation and body politic; MAUREEN

ROSE GEORGE; DENNIS VAUGHAN,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted October 9, 2009** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, *** District Judge.

Plaintiff-Appellant Joan Uhl appeals the district court’s grant of summary

judgment to Defendants-Appellees Lake Havasu City (“the City”), Maureen

George, and Dennis Vaughan (collectively “LHC”) on Uhl’s First Amendment

retaliation claim. We reverse and remand.

1. LHC first urges that the district court’s grant of summary judgment be

upheld because “[Uhl] did not engage in protected free speech.” Whether speech is

protected by the First Amendment depends on (1) whether the speech addresses a

matter of public concern and (2) whether the speech was made outside of an

employee’s job duties. See Freitag v. Ayers, 468 F.3d 528, 543–46 (9th Cir. 2006).

We consider only the first of these two factors as it was the only one advanced by

LHC at summary judgment.

Uhl “bear[s] the burden of showing that [her] speech addressed an issue of

public concern, based on the content, form, and context of a given statement, as

revealed by the whole record.” Desrochers v. City of San Bernardino, 572 F.3d

703, 709 (9th Cir. 2009) (internal citations, quotation marks, and alterations

omitted). The content of Uhl’s speech—potential misuse of public funds—is a

*** The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

2 matter of public concern. See Robinson v. York, 566 F.3d 817, 822, 823 (9th Cir.

2009); Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 747 (9th Cir.

2001); Roth v. Veteran’s Admin., 856 F.2d 1401, 1406 (9th Cir. 1988). That

Ashley was later investigated for criminal misconduct further suggests the content

of the speech was of public concern, as does the local media’s coverage of the prior

felony conviction of Miers, the director of the Social Services Interagency Council.

The district court determined that, despite the content of Uhl’s speech, its

context and form made the speech unprotected. We disagree. First, the district

court relied too heavily on the fact that Uhl spoke to her supervisor rather than to

the public. Although an employee’s intended audience is a relevant factor in the

form and context inquiry, see Havekost v. U.S. Dep’t of the Navy, 925 F.2d 316,

319 (9th Cir. 1991), speech within the workplace can be protected, see, e.g.,

Rankin v. McPherson, 483 U.S. 378, 386 n.11 (1987); Chateaubriand v. Gaspard,

97 F.3d 1218, 1223 (9th Cir. 1996).

Second, contrary to the district court’s conclusion, the frequency of Uhl’s

statements and the fact that they were made to George, who Uhl knew had direct

contact with the City Council, suggest that Uhl attempted to influence indirectly

individuals with power to correct the circumstances of which she spoke.

3 Finally, the district court’s conclusion that Uhl’s last report to George did

“not indicate an attempt ‘to bring wrongdoing to light,’” because the information

had already appeared in a newspaper, rests on an erroneous factual premise. With

Uhl’s allegations taken as true, Uhl’s first report to George of Miers’ prior

conviction preceded the newspaper account. Moreover, government employees’

speech can be protected even if it does not expose wrongdoing for the first time.

See, e.g., Rankin, 483 U.S. at 381, 386–87 (holding that an employee’s comment,

“If they go for him again, I hope they get him,” was protected speech when made

in the context of a private conversation with a coworker about the Reagan

administration’s policies and a well-known assassination attempt on the President).

The considerations that Uhl’s speech was not made for personal gain and was not

in response to an internal dispute favor holding the speech protected even if it did

not expose previously unknown wrongdoing. See Nunez v. Davis, 169 F.3d 1222,

1227 (9th Cir. 1999).

2. Whether Uhl’s speech was a substantial motivating factor in George’s

decision to withhold Uhl’s review and terminate her “involves questions of fact

that normally should be left for trial.” Ulrich v. City & County of San Francisco,

308 F.3d 968, 979 (9th Cir. 2002). With the evidence viewed in the light most

favorable to Uhl, summary judgment is not warranted.

4 Uhl introduced sufficient circumstantial evidence to create an inference that

George harbored a forbidden motive for the adverse employment actions.

“[C]ircumstantial evidence showing motive may fall into three, nonexclusive

categories: (1) proximity in time between the protected speech and the alleged

retaliation; (2) the employer’s expressed opposition to the speech; and (3) other

evidence that the reasons proffered by the employer for the adverse employment

action were false and pretextual.” Id. at 980 (internal quotation marks omitted).

Here, the last instance of protected speech was within months of Uhl’s

termination, timing sufficiently “within the range” to support an inference of

retaliatory motive. See Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir.

2003); Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002); Schwartzman v.

Valenzuela, 846 F.2d 1209, 1212 (9th Cir. 1988). Uhl also provided evidence

indicating George’s opposition to Uhl’s speech: Uhl stated that George said “Yeah,

so?” in response to Uhl’s statement that she thought she was suspended based on

her reports about Miers and Ashley.

Further, the evidence supports an inference that the investigation of Uhl was

a pretext to justify Uhl’s termination. See Allen, 283 F.3d at 1078. The office had

never handled complaints about employees by commissioning external

investigations, and George was not sure she had the written external investigation

5 results at the time that she fired Uhl. With respect to the Lietz-Aldridge incident,

George had engaged in a conversation with a city employee potentially facing

criminal charges that was similar to the conversation between Uhl and Lietz-

Aldridge. Moreover, the State Bar of Arizona dismissed George’s complaint

against Uhl regarding this incident without finding wrongdoing.

In sum, a reasonable jury could find that Uhl’s protected speech was a

substantial motivating factor for her late review and her discharge.

3. On this summary judgment record, we hold as a matter of law, see Christie

v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999), that Lake Havasu City was not

entitled to summary judgment on the alternative ground that the standards for

municipal liability were not met. The record indicates that George acted with final

policymaking authority delegated by the LHC City Council when she terminated

Uhl.

Final policymaking authority is determined by state law. See Ulrich, 308

F.3d at 985. Lake Havasu City Code § 2.16.010 delegated to George the ultimate

authority to appoint and terminate city prosecutors at George’s “pleasure.”

George’s own testimony confirms that her decision to fire Uhl was unreviewable.

Because the city council delegated to George the “authority in a particular area, or

on a particular issue,” George was acting as a final policymaker for the city when

6 she fired Uhl.1 Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004) (internal quotation

marks and alterations omitted); see also McKinley v. City of Eloy, 705 F.2d 1110,

1116 (9th Cir. 1983). It is not sufficient that a city personnel rule in theory bound

George to comply with the law. See Lytle, 382 F.3d at 984–85 (holding that a

school superintendent and assistant superintendent were final policymakers with

respect to employee discipline where their decisions were unreviewable, even

though the Board of Trustees had delegated such power to be exercised in

accordance with “laws, board policies, and regulations”).

4. On the current record, George is not entitled to qualified immunity on the

grounds advanced at summary judgment. A state or local government official is

not subject to suit under § 1983 in her personal capacity unless the constitutional

right she is alleged to have violated was clearly established. “[T]he inquiry into

whether or not a claimed right was clearly established must focus upon the right

1 Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), is not to the contrary. Neither Gillette nor the cases on which it relied addresses a situation in which a municipal actor’s disciplinary decisions are unreviewable, as George’s were, as opposed to initially discretionary. See Gillette, 979 F.2d at 1348 (suggesting in a separate context that the City Manager could have overruled the Fire Chief’s decision but did not); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (discussing in dictum a Board of County Commissioners’ decision to leave “discretion” to a sheriff to hire and fire employees but not specifying whether such discretion was reviewable); Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir. 1988) (addressing a scenario under which a police sergeant had “discretion to recommend hiring, firing, and discipline” (emphasis added)).

7 not in a general, abstract sense, but rather in a practical, particularized sense.”

Moran v. Washington, 147 F.3d 839, 845 (9th Cir. 1998) (internal quotation marks

omitted).

In 2004, “both the constitutional protection of employee speech and a First

Amendment cause of action for retaliation against protected speech were clearly

established.” Coszalter, 320 F.3d at 979. Moreover, as early as 2001, Keyser v.

Sacramento City Unified School District, 265 F.3d at 745, 747–48, held that

employee speech made to a non-public audience regarding misuse of funds was

protected by the First Amendment. The legal precedents were thus sufficiently

specific to put George on notice that her actions were unconstitutional. George is

therefore not entitled to qualified immunity.

CONCLUSION

We REVERSE the district court’s grant of summary judgment, DENY

summary judgment on alternative grounds raised on appeal by LHC, and

REMAND for further proceedings consistent with this opinion.

8