FILED

NOT FOR PUBLICATION

APR 27 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANA WAYMAN-TRUJILLO, No. 17-15814

Plaintiff-Appellee, D.C. No. 3:16-cv-08182-SPL

v.

MEMORANDUM*

COUNTY OF YAVAPAI; YAVAPAI

COUNTY BOARD OF SUPERVISORS;

ARLO G. DAVIS,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted April 9, 2018 San Francisco, California

Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges.

Defendants-Appellants County of Yavapai, Yavapai County Board of

Supervisors, and Arlo G. Davis (“County,” “Board,” and “Davis” respectively, and

collectively, “Defendants”) appeal the partial denial of their motion to dismiss

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. based on Davis’s qualified immunity defense. We have jurisdiction under 28

U.S.C. § 1291. We reverse the partial denial, holding that Davis is entitled to

qualified immunity.

Davis is entitled to qualified immunity if (1) the facts alleged show that his

conduct did not violate a constitutional right, or (2) the right allegedly violated was

not clearly established at the time. Saucier v. Katz, 533 U.S. 194, 200 (2001),

modified on other grounds, Pearson v. Callahan, 555 U.S. 223 (2009). We may

begin our analysis with either prong. Pearson, 555 U.S. at 236.

Here, we begin with the first prong. “Speech made by public employees in

their official capacity is not insulated from employer discipline by the First

Amendment but speech made in their private capacity as a citizen is.” Brandon v.

Maricopa Cty., 849 F.3d 837, 843 (9th Cir. 2017). A determination that Plaintiff-

Appellee Ana Wayman-Trujillo (“Wayman-Trujillo”) spoke at all relevant times in

her capacity as a public employee would be “fatal” to her claims for relief. See

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013) (en banc). The

district court noted that the scope of Wayman-Trujillo’s job responsibilities is in

dispute. At this stage, “our task is not to resolve any factual dispute,” but we must

still “determine whether [Wayman-Trujillo’s] allegations support a reasonable

2 inference that [s]he acted outside of h[er] professional duties,” as she describes

them in the complaint. Id. at 1076.

In evaluating whether Wayman-Trujillo spoke as a public employee or

private citizen, we look to several “guiding principles.” Id. at 1074–76. First,

“generally, when a public employee raises complaints or concerns up the chain of

command at his workplace about his job duties, that speech is undertaken in the

course of performing his job.” Id. at 1074 (internal citation and quotation marks

omitted). Second, “[w]hen an employee prepares a routine report, pursuant to

normal departmental procedure, about a particular incident or occurrence, the

employee’s preparation of that report is typically within his job duties.” Id. at

1075. Third, we consider whether a public employee spoke “in direct

contravention to his supervisor’s orders,” which suggests that the speech fell

“outside of the speaker’s professional duties,” or pursuant to those orders. Id. at

1075–76.

We conclude that Wayman-Trujillo spoke as a public employee during the

incidents that allegedly prompted Davis’s adverse actions against her. First,

Wayman-Trujillo spoke as a public employee when she met with Davis on July 1,

2015. Wayman-Trujillo alleges that she reported directly to the Board, of which

Davis was a member. As Special Districts Coordinator, Wayman-Trujillo was

3 specifically responsible for “reviewing the invoices of . . . outside services related

to special districts” and informing the Board of “special district information.” The

concerns she raised on July 1 were about the invoices and accounting practices of

an outside contractor that provided administrative services for two special districts.

Thus, in discussing her concerns with Davis, Wayman-Trujillo acted “pursuant to

[her] duties.” See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

We recognize that Wayman-Trujillo alleges that Davis recused himself from

participating at several Board meetings at which Wayman-Trujillo’s concerns were

discussed. But that does not mean that Wayman-Trujillo was no longer

responsible for keeping Davis informed about “special district information.” Nor

does Davis’s recusal from certain Board meetings transform Wayman-Trujillo’s

conversations with him about the special districts for which she was responsible

into speech made in her private capacity as a citizen.

We also recognize that Wayman-Trujillo’s allegations suggest that she

raised concerns about government waste and potential misconduct when she spoke

to Davis. But even speech “[e]xposing governmental inefficiency and misconduct”

can fall outside the First Amendment’s protection if the speech is made “pursuant

to [an employee’s] professional duties.” Garcetti, 547 U.S. at 425–26; see also

Dahlia, 735 F.3d at 1075 (noting that raising concerns “about corruption or

4 systemic abuse” can still fall within “an employee’s regular job duties” if she is

responsible for “investigating such conduct”). Here, the issues reported by

Wayman-Trujillo fell squarely within her responsibilities.

Second, Wayman-Trujillo spoke as a public employee when she made

presentations to the Board during several meetings in 2015. Wayman-Trujillo

alleges that her job required her to “present[] special district information at Board

meetings.” Moreover, the specific presentations she gave were at the behest of the

Board, which set aside time for her to present her concerns.

Third, Wayman-Trujillo spoke as a public employee when she sent her

notice of constructive discharge on October 16, 2015. The voicing of “individual

personnel disputes and grievances” internally to an employee’s supervisor and the

human resources department does not qualify as protected private speech. See

Turner v. City and Cty. of S.F., 788 F.3d 1206, 1211–12 (9th Cir. 2015).

Last, at oral argument, Wayman-Trujillo clarified that she does not claim

relief based on anonymous letters she alleges she sent to the Arizona Auditor

General and Arizona Attorney General.

In holding that Davis did not violate Wayman-Trujillo’s rights on the facts

alleged, we necessarily also hold that the County and Board are not liable for any

ratification of Davis’s actions. See Cunningham v. Gates, 229 F.3d 1271, 1285

5 (9th Cir. 2000) (permitting the exercise of pendent jurisdiction when a decision on

the issue of qualified immunity “necessarily resolves the pendent issue”).

REVERSED

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