FILED

NOT FOR PUBLICATION

FEB 20 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS MANER, No. 16-16488

Plaintiff-Appellant, D.C. No. 1:14-cv-01014-DAD-MJS v.

COUNTY OF STANISLAUS and BIRGIT MEMORANDUM*

FLADAGER,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale Drozd, United States District Judge, Presiding

Submitted February 14, 2018** San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges and LASNIK, Senior District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Douglas Maner appeals the district court’s dismissal of his First Amendment

retaliation and due process claims. The district court found that Maner had failed to

provide evidence from which a jury could reasonably conclude that Maner’s

protected expression was a substantial motivating factor for the adverse

employment actions of which he complains. The district court also found that

Maner was provided all the process that was due. We have jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

Because the parties are familiar with the facts and procedural history of this

case, we need not recount them here. “We review de novo a district court’s grant of

summary judgment.” C.V. by and through Villegas v. City of Anaheim, 823 F.3d

1252, 1255 (9th Cir. 2016). The question for the Court is whether, “viewing the

evidence in the light most favorable to the nonmoving party,” there are any

genuine issues of material fact. Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th

Cir. 2017). All justifiable factual inferences must be drawn in the nonmoving

party’s favor. Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010). “Where

the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S.

557, 586 (2009).

2 The district court properly granted summary judgment to defendants. With

regards to the First Amendment retaliation claim, no reasonable jury could find

that the adverse employment actions of which Maner complains were motivated by

his public support for Judge Cummins in the 2006 election for District Attorney.

Maner has no direct evidence of retaliatory motive or of any expressed opposition

to his protected speech. Nor does a chronological retrospective of his career as a

Deputy District Attorney (“DDA”) support an inference of retaliatory animus.

Maner’s interpersonal difficulties predated his support for Judge Cummins and

continued after defendant Brigit Fladager was elected District Attorney. The

adverse employment actions of which he complains in this litigation were

temporally distant from the election (occurring eight months to seven years after

Fladager became the District Attorney). The temporal relationship of the protected

activity and the employment actions does not raise an inference of retaliatory

animus in the factual context of this case. In fact, the four year period in which no

investigations were initiated and no discipline was imposed raises the contrary

inference that the adverse employment actions were a response to third-party

complaints and personnel issues, not Maner’s protected speech.

Maner’s theory of the case is that defendants’ justifications for the adverse

actions were pretextual, as evidenced by the fact that Fladager supporters were not

3 subjected to investigations and proposed discipline for the same or similar conduct.

See Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 750 (9th Cir. 2010).

Maner has not, however, identified any similarly-situated DDAs who had

supported Fladager. No other DDA attracted the type or quantity of third-party and

staff complaints that Maner did. Nor is there any evidence of another DDA whose

statements threatened the ODA’s working relationships with judges and law

enforcement agencies. As the district court noted, the evidence “establishes that no

one else acted as poorly in their [sic] professional interpersonal relationships as

plaintiff allegedly did, not that plaintiff was disproportionately punished for the

same conduct.” No inference of retaliatory animus arises from the fact that the

ODA investigated complaints and imposed appropriate discipline. There is simply

no reasonable basis on which a jury could conclude that retaliatory animus – as

opposed to Maner’s repeated breaches of protocol and procedure – motivated the

adverse employment actions of which he complains.

With regards to the due process claim, Maner had a protected property

interest in his continued employment. Skelly v. State Personnel Bd., 539 P.2d 774,

783 (Cal. 1975). Due process therefore required some kind of hearing prior to an

unpaid suspension or termination as “an initial check against mistaken decisions,”

with the essential elements being notice and an opportunity to respond. Cleveland

4 Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 545-56 (1985). A pre-discipline

hearing may be conducted by the same person who proposed the suspension or

termination, as long as a post-discipline hearing is provided with an impartial

decisionmaker. Walker v. City of Berkeley, 951 F.2d 182, 183-84 (9th Cir. 1991).

Maner argues that he was deprived of a protected property right when he

was rotated into the collateral support assignment while he was suspended in 2013.

A demotion or, in this case, an alleged constructive demotion can implicate a

protected property right for purposes of the Due Process Clause. See Stiesberg v.

California, 80 F.3d 353, 357 (9th Cir. 1996). There is, however, no evidence that

the collateral support assignment was a demotion. While it is clear that Maner

disliked the job duties associated with the new position, intra-office rotations were

common in the ODA and the change did not affect his salary or benefits. The

position was intended to provide consistent attorney guidance with regards to

procedural aspects of prosecution, records requests, and court inquiries: although it

involved no trial advocacy, it required an experienced attorney. Maner has not

shown that his property interest in his job was implicated by his rotation to the

collateral support assignment.

Maner also argues that Fladager’s involvement in the June 2013 Skelly

conference deprived him of due process, citing Clements v. Airport Authority of

5 Washoe County, 69 F.3d 321, 333 (9th Cir. 1995). In Clements, the employer had

failed to provide adequate pre-termination notice that plaintiff was in danger of

losing her job and provided a post-termination hearing that was infected with bias.

Id. In noting that “[a] biased proceeding is not a procedurally adequate one,” the

Clements panel was referring to post-termination proceedings. Id. In the pre-

termination context, the panel recognized that the decisionmaker need not be

impartial as long as an impartial decisionmaker is provided at the post-termination

hearing. Id. at 333 n.15.

Maner’s due process claim fails as a matter of law. Fladager’s participation

in the initial Skelly conference does not change the fact that Maner was given

notice and an opportunity to respond before discipline was imposed. When the

findings were altered following the supplemental investigation, Maner was again

given notice and an opportunity to respond, this time before Sheriff Adam

Christianson (against whom no allegation of bias has been made). Maner then had

the opportunity to request a post-suspension hearing. He did so, and there is no

allegation or evidence of bias on the part of the unnamed post-deprivation hearing

officer. Although Maner withdrew his appeal before the hearing occurred, he

received all the process that was his due in these circumstances.

AFFIRMED.

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