FILED

NOT FOR PUBLICATION

AUG 31 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA HOWE; L. JANI No. 21-16665

SHEPPARD; CAROL MORGAN,

D.C. No. 1:21-cv-00935-RMI Plaintiffs-Appellants,

v. MEMORANDUM*

COUNTY OF MENDOCINO; TAMMY

MOSS CHANDLER; WILLIAM

SCHURTZ; SHARON CONVERY;

KATHERINE FENGELR,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Robert M. Illman, Magistrate Judge, Presiding

Submitted August 29, 2022** San Francisco, California

Before: W. FLETCHER, BYBEE, and VANDYKE, Circuit Judges.

* 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). Plaintiffs Barbara Howe, L. Jani Sheppard, and Carol Morgan appeal from

the district court’s grant of the 12(b)(6) motion to dismiss of Defendants County of

Mendocino, Tammy Moss Chandler, William Schurtz, Sharon Convery, Katherine

Fengler, and 70 unknown individuals. Plaintiffs allege, under 42 U.S.C. § 1983,

that Defendants’ actions during the course of Plaintiffs’ employment by the

Mendocino County Health and Human Services (“HHSA”) violated Plaintiffs’

rights under the First Amendment and Fourteenth Amendment. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

We review the grant of a Rule 12(b)(6) motion de novo. Lacey v. Maricopa

County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc). To survive a motion to

dismiss, the complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility requirement is met where the complaint “pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

1. Plaintiffs argue that Defendants retaliated against them in violation of the

First Amendment for engaging in protected speech. In order to state a claim of

2 retaliation, Plaintiffs bear the burden to show that they (1) “spoke on a matter of

public concern,” (2) “spoke as . . . private citizen[s]” rather than as “public

employee[s],” and (3) that their “protected speech was a substantial or motivating

factor in the adverse employment action.” Eng v. Cooley, 552 F.3d 1062, 1070

(9th Cir. 2009).

Plaintiffs fail to carry their burden as to the second requirement. All of

Plaintiffs’ allegedly protected conduct related to and occurred as a consequence of

their official duties as HHSA employees. Howe disparaged Chandler, her

supervisor, at a training day organized and run by HHSA that she attended as part

of her duties as Assistant Director of HHSA. Howe and Sheppard refused to

amend an employee performance review in defiance of Schurtz’s and Chandler’s

explicit directives. Sheppard repeatedly disparaged Chandler at monthly meetings

with County partners, and she defied Chandler’s repeated prohibition on

communicating with members of the County Board of Supervisors. Morgan

refused to comply with Convery’s instruction to fill out a pro forma questionnaire.

Plaintiffs thus spoke as public employees. Their speech is therefore not protected

by the First Amendment. Id. at 1071 (holding that conduct is not protected where

it is “the product of ‘performing the tasks the employee was paid to perform’”

(quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2

3 (9th Cir. 2008))); see Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen

public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.”). The district

court did not err in dismissing Plaintiffs’ First Amendment claims.

2. Plaintiffs argue that Defendants deprived them of protected property

interests without due process of law in violation of the Fourteenth Amendment. “A

‘procedural due process claim hinges on proof of two elements: (1) a protectible

liberty or property interest . . . ; and (2) a denial of adequate procedural

protections.’” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005)

(quoting Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)).

Plaintiffs fail to plead sufficient facts to state a due process claim because

they fail to identify what process was allegedly due and not provided. Following

repeated acts of insubordination, Howe took advantage of the opportunity to resign

in lieu of formal termination and Sheppard was demoted. Morgan was simply

passed over for a promotion and subsequently resigned from her position. None of

these occurrences rises to a denial of procedural protections for a protectable

property interest. The complaint thus “lacks a cognizable legal theory or sufficient

facts to support a cognizable legal theory” to state a due process claim. Mendiondo

4 v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). The district

court did not err in dismissing Plaintiffs’ due process claims.

3. Plaintiffs argue that non-County Defendants discriminated against them

on the basis of age, race, and sexual orientation in violation of their right to equal

protection under the Fourteenth Amendment. “To state a § 1983 claim for

violation of the Equal Protection Clause, ‘[Plaintiffs] must show that [Defendants]

acted with an intent or purpose to discriminate against [Plaintiffs] based upon

membership in a protected class.’” Thornton, 425 F.3d at 1167 (quoting Lee v.

City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)).

The complaint contains numerous conclusory allegations of discriminatory

intent by Defendants against Plaintiffs, but it fails to plead sufficient facts in

support of such allegations. These conclusory allegations do not suffice to state an

equal protection claim. See Iqbal, 556 U.S. at 678. The district court did not err

in so holding.

4. To state a § 1983 claim against the County, Plaintiffs bear the burden to

show that the County’s employees or agents acted pursuant to an official custom,

pattern, policy, or practice that violates Plaintiffs’ rights. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978). Plaintiffs fail to identify any policy that,

when effected by County employees or agents, deprived them of constitutional

5 rights. The core of Plaintiffs’ Monell claims appears to be that the County had a

policy of letting its agents and employees commit constitutional violations without

repercussion. Such allegations suffice to state a claim for municipal liability

provided that the alleged actions of County employees do, in fact, amount to

constitutional violations. See Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.

1992) (“A section 1983 plaintiff may attempt to prove the existence of a custom or

informal policy with evidence of repeated constitutional violations for which the

errant municipal officials were not discharged or reprimanded.”). However,

because Plaintiffs fail to plead sufficient facts that amount to a constitutional

violation, they also fail to state a Monell claim, and dismissal of the claims against

the County was proper.

AFFIRMED.

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