Lily Keyser Maria Sofia Robledo Richard M. Cisneros v. Sacramento City Unified School District, a Public Entity and and James Sweeney

265 F.3d 741 (9th Cir. 2001) LILY KEYSER; MARIA SOFIA ROBLEDO; RICHARD M. CISNEROS, Plaintiffs-Appellants, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, a public entity; and AND JAMES SWEENEY, Defendants-Appellees. No. 99-17562 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted, October 31, 2000 Filed February 7, 2001 Amended September 12, 2001 NOTE: SEE OPINION AT 238 F.3d 1132 .[Copyrighted Material Omitted] Matthew J. Smith, Wilke, Fleury, Hoffelt, Gould & Birney, Sacramento, California, for the plaintiffs-appellants. Michael W. Pott, Porter, Scott, Weiberg & Delehant, Sacramento, California, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-97-02002-GEB. Garland E. Burrell, Jr., District Judge, Presiding. Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges. ORDER 1 The opinion filed February 7, 2001, is hereby ordered amended as follows: Slip Op. at 1627 [ 238 F.3d at 1140-41 ]: Delete the paragraph beginning with "In the free speech cases . . . . ," and all paragraphs of part IV.B that follow. In their place, add the following new…

Opinion by Judge O’SCANNLAIN; Dissent by Judge BETTY B. FLETCHER

ORDER AND AMENDED OPINION AND AMENDED DISSENT

ORDER

The opinion filed February 7, 2001, is hereby ordered amended as follows:

OPINION

We must decide whether a public employee has qualified immunity from suit for allegedly retaliating against subordinates who accused him of illegally using federal money.

I

The Sacramento City Unified School District (“District”) has a total kindergarten through twelfth grade enrollment of approximately 50,000 students. Defendant Jim Sweeney was hired by the District in August 1994 as Deputy Superintendent of the District. As Deputy Superintendent, he supervised thirteen high level administrators who comprised the Deputy Superintendent’s Cabinet. Until July 1997, among these thirteen administrators were plaintiffs Lily Keyser, who served as Administrator, Consolidated Programs, and Maria Sofia Robledo, who served as Administrator, Curriculum. The third plaintiff, Richard Cisneros, served until July 1997 as Administrator, Employee Relations.

In January 1995, Sweeney conducted mid-year formative evaluations with each of the Cabinet members under his supervision. Several…

concurring in part and dissenting in part:

I respectfully dissent from Part IV.B but concur in the remainder of the revised majority opinion. I commend the majority for revising the opinion to correct and clarify the law on the First Amendment claims in this appeal. However, I must dissent from its failure to consider all of the evidence adduced by Keyser and Rob-ledo and to view the evidence in the light most favorable to them.

In Part IV.B, the majority affirms the district court's grant of summary judgment to Sweeney on Keyser and Robledo's First Amendment claims. The majority contends that Keyser and Robledo have produced only "mere evidence that Sweeney knew of their charges" and that this is not enough to create a genuine issue of material fact as to whether S~eeney's allegedly adverse employment actions were motivated by their charges. Majority Opinion at 751. If that were so, I would agree. However, viewing the evidence in the light most favorable to Keyser and Robledo, as we must, I conclude that they have presented sufficient evidence for their First Amendment claims to survive summary judgment.

The majority asserts that we have held that a plaintiff creates a genuine…