Elmer Skaarup v. City of North Las Vegas

320 F.3d 1040 Elmer SKAARUP, Plaintiff-Appellant, v. CITY OF NORTH LAS VEGAS, Defendant-Appellee. No. 01-17364. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 4, 2002. Filed February 28, 2003. Kirk T. Kennedy, Las Vegas, NV, for the plaintiff-appellant. Robert Freeman, Las Vegas, NV, for the defendant-appellee. Appeal from the United States District Court for the District of Nevada; Roger L. Hunt, District Judge, Presiding. D.C. No. CV-99-00941-RLH. Before NOONAN, BERZON and TALLMAN, Circuit Judges. Opinion by Judge NOONAN; Dissent by Judge BERZON. OPINION NOONAN, Circuit Judge. 1 Elmer ("Joe") Skaarup appeals from the grant of summary judgment to the City of North Las Vegas (the City) in his suit alleging abridgment of his right to free speech. We hold that there are no material issues of disputed fact and that, on the facts established, there was neither abridgment of Skaarup's exercise of speech nor retaliation for this lawsuit. FACTS 2 In early December 1997, Skaarup, then the Chief Fire Marshall of the City, was advised that two of the five inspector positions in his department would be eliminated by the City. One of the two positions was held by…

Opinion by Judge NOONAN; Dissent by Judge BERZON.

OPINION

Elmer (“Joe”) Skaarup appeals from the grant of summary judgment to the City of North Las Vegas (the City) in his suit alleging abridgment of his right to free speech. We hold that there are no material issues of disputed fact and that, on the facts established, there was neither abridgment of Skaarup’s exercise of speech nor retaliation for this lawsuit.

FACTS

In early December 1997, Skaarup, then the Chief Fire Marshall of the City, was advised that two of the five inspector positions in his department would be eliminated by the City. One of the two positions was held by a woman, Mary Griego. Grie-go later called Skaarup in distress that she was being transferred to Planning with what she thought was a substantial loss of salary. Skaarup called his own superior, Fire Chief Michael Massey, to find out what was going on. Massey told him that he “had no idea” but “that a deal must have been struck between IAFF 1607 [the Union] and City Management.” Massey added that the elimination of inspectors “shows the pattern of how [Deputy City Manager Patrick] Importuna treats employees and deals with the union.”

At a staff…

dissenting:

The majority’s opinion does not give appropriate weight to two key facts that weigh in favor of finding Skaarup’s speech protected under the balancing test enunciated in Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983). First, the individuals with whom Skaarup spoke “privately” were not just any coworkers. They were an audience chosen because of their expertise on and interest in issues of equal employment. Second, Skaarup was not promulgating “unsubstantiated rumors” but was repeating information given him by the Fire Chief, his immediate superior. These two considerations, when properly placed on the scales, are sufficient to tip the balance sharply in favor of constitutional protection. I therefore respectfully dissent.

The majority finds it significant that Skaarup’s speech occurred in the context of private conversations with Terri Tarbett and Stephanie Wuthrich, and that Skaarup “made no effort to either address the allegations with his superiors or make them public.” But the law imposes no requirement that an employee’s speech on matters of public concern be aired to superiors or publicly expressed. The First Amendment protects speech on…