FILED

NOT FOR PUBLICATION

DEC 06 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD CANDELARIA and JEFF HAMM, No. 16-16346

Plaintiffs-Appellants, D.C. No. 2:14-cv-02123-JJT

v.

MEMORANDUM*

CITY OF TOLLESON, Arizona - a municipal corporation of the State of Arizona; GEORGE GOOD, in his individual and official capacities; WENDY JACKSON, in her individual and official capacities; and REYES MEDRANO, in his individual and official capacities,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona John J. Tuchi, District Judge, Presiding

Submitted November 17, 2017** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,*** District Judge.

Todd Candelaria and Jeff Hamm, firefighters employed by the City of

Tolleson, Arizona, appeal from the district court’s grant of summary judgment

dismissing their retaliation claims under 42 U.S.C. § 1983 and Arizona state law.

They allege that they were disciplined in retaliation for exercising their First

Amendment right to: (1) discuss their union’s provision of relief services

following a massive fire; and (2) participate in their union’s ongoing effort to pass

a meet-and-confer policy with the City. We have jurisdiction under 28 U.S.C.

§ 1291. We review a grant of summary judgment de novo. Ellins v. City of Sierra

Madre, 710 F.3d 1049, 1056 (9th Cir. 2013). We affirm.

To determine whether a public employer impermissibly retaliated against an

employee for engaging in protected speech, the Ninth Circuit employs the five-step

inquiry set forth in Eng v. Cooley, 552 F.3d 1062, 1070–72 (9th Cir. 2009). All of

the Eng factors “are necessary, in the sense that failure to meet any one of them is

*** The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.

2 fatal to the plaintiff’s case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th

Cir. 2013) (en banc). This appeal involves the first and third Eng factors.1

1. The first Eng factor requires the employee to show that he spoke on a

matter of public concern. Eng, 552 F.3d at 1070. We agree with the district court

that plaintiffs’ speech attempting to exclude a non-union member from joining the

fire relief efforts did not address matters of public concern. The speech did not

reference matters that we have previously deemed to be of public concern, such as

government inefficiency, mismanagement, or wrongdoing. See Desrochers v. City

of San Bernardino, 572 F.3d 703, 712 (9th Cir. 2009). Nor did it shed light on the

fire department’s ability to respond effectively to life-threatening emergencies,

given that it did not address the City’s lack of an emergency response plan or

public safety concerns. Cf. Gilbrook v. City of Westminster, 177 F.3d 839, 866

(9th Cir.), as amended on denial of reh’g (9th Cir. 1999) (holding that speech

regarding public safety implications of city’s decision to reduce fire department

1 This case involves hybrid speech/association claims that are evaluated as a single claim rather than as separate freedom of speech and freedom of association claims. See Hudson v. Craven, 403 F.3d 691, 696, 698 (9th Cir. 2005) (applying the balancing test announced in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), to “hybrid speech/association claim” where speech was “so intertwined” with alleged association activity). We note that the Ninth Circuit subsequently adopted the so-called Pickering balancing test as the fourth Eng factor. See Eng, 552 F.3d at 1071–72.

3 budget involved matter of public concern). Furthermore, plaintiffs did not attempt

to publicize their speech beyond the fire department. See Desrochers, 572 F.3d at

714. At most, plaintiffs’ speech expressed their personal disagreement with

personnel decisions made by the City and is thus appropriately characterized as an

“individual personnel dispute[]” that would be of “no relevance to the public’s

evaluation of the performance of government agencies . . . .” Id. at 710 (internal

quotation marks and citations omitted). Plaintiffs’ speech relating to the fire relief

efforts therefore is not entitled to First Amendment protection.

2. The district court determined that, although plaintiffs raised a material

issue of fact as to whether the content of a separate set of speech and association

activity related to the union’s meet-and-confer policy addressed a matter of public

concern, its form and context rendered it unprotected. See id. at 709 (burden on

plaintiff to show speech addressed matter of public concern based on content,

form, and context of a given statement). We need not address this determination

on appeal because we conclude that the evidence was insufficient for a reasonable

jury to conclude that plaintiffs’ meet-and-confer-related activity was a substantial

or motivating factor in the adverse employment action, the third Eng factor. See

infra at 5.

4 3. The third Eng factor requires the employee to show that the protected

speech was a substantial or motivating factor in the adverse employment action.

Eng, 552 F.3d at 1071. To satisfy this factor, an employee may introduce evidence

that: (1) the speech and adverse action were proximate in time, such that a jury

could infer that the action took place in retaliation for the speech; (2) the employer

expressed opposition to the speech, either to the speaker or to others; or (3) the

proffered explanations for the adverse action were false and pretextual. Coszalter

v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003).

The district court properly determined that the evidence was insufficient for

a reasonable jury to conclude that plaintiffs’ speech and association activity

relating to the union’s meet-and-confer policy was a substantial or motivating

factor in the City’s adverse employment action. Although plaintiffs claim that the

union intensified its advocacy efforts – made a “hard push” – a few months prior to

the City’s disciplinary action, the record demonstrates that the union had been

pursuing a meet-and-confer policy for over ten years. Plaintiffs’ ongoing efforts to

support the policy were thus not sufficiently proximate in time to give rise to an

inference of retaliation. As to the City’s alleged opposition to the speech, a single

email about the meet-and-confer policy written five years earlier by a City official

not directly involved in the disciplinary action is not evidence from which a

5 reasonable jury could conclude that the City opposed the meet-and-confer-related

speech.

Finally, plaintiffs presented insufficient evidence to support their allegation

that the City used its concerns over attempts to exclude non-union members as a

pretext to discipline plaintiffs for their meet-and-confer-related speech. Both

plaintiffs had acknowledged the City’s concerns about their statements regarding

non-union members and acknowledged the relationship between those concerns

and the City’s disciplinary action. Furthermore, despite plaintiffs’ steady advocacy

for the meet-and-confer policy for several years, the City did not discipline

plaintiffs at any time prior to the statements excluding the non-union member, but

did launch an investigation within two weeks of learning of plaintiffs’ statements

attempting to exclude a non-union member from the fire relief efforts.

4. As the district court correctly held, plaintiffs’ state-law retaliation claim

under A.R.S. § 23-1411(A) fails for the same reason that the First Amendment

claims fail: plaintiffs failed to present sufficient evidence that their association

with the union was a substantial or motivating factor in the City’s adverse

employment action. Although Arizona courts have not specified a standard for

evaluating claims under A.R.S. § 23-1411(A), courts assessing retaliation claims

based on similar provisions of Arizona law have adopted the First Amendment

6 retaliation test. See Rowberry v. Wells Fargo Bank NA, No. 14-cv-1801, 2015 WL

7273136, at *5–6 (D. Ariz. Nov. 18, 2015) (adopting First Amendment retaliation

test for retaliation claims based on A.R.S. § 23-1501).

AFFIRMED.

7

FILED

Candelaria v City of Tolleson, Case No. 16-16346

DEC 06 2017

Rawlinson, Circuit Judge, concurring:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.