Robert McBurnie v. Prescott, City Of

FILED

NOT FOR PUBLICATION MAR 13 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MCBURNIE, No. 11-16267

Plaintiff - Appellant, D.C. No. 3:09-cv-08139-FJM

v.

MEMORANDUM*

PRESCOTT, CITY OF, a body politic; et al.,

Defendants - Appellees.

ROBERT MCBURNIE, No. 11-16316

Plaintiff - Appellee, D.C. No. 3:09-cv-08139-FJM

v.

PRESCOTT, CITY OF, a body politic,

Defendant - Appellant,

and

ERIC SMITH; et al.,

Defendants.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding

Argued and Submitted November 5, 2012 San Francisco, California

Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.

1. We reverse the district court’s summary judgment for defendants on

McBurnie’s First Amendment retaliation claim. “[T]he determination whether the

speech in question was spoken as a public employee…

MEMORANDUM *

1. We reverse the district court’s summary judgment for defendants on McBur-nie’s First Amendment retaliation claim. “[T]he determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 8b, 546 F.3d 1121, 1129 (9th Cir.2008). “[T]he scope and content of a plaintiffs job responsibilities can and should be found by a trier of fact....” Id. Viewing the evidence at the time of summary judgment in the light most favorable to McBurnie as the non-moving party, he raised a genuine and material dispute over whether his speech, and in particular, his communications with the Arizona Department of Occupational Safety and Health, were beyond the scope of his regular job duties. 1 Although we remand for further proceedings on this claim, we do so without prejudice as to whether defendants may file a renewed motion for summary judgment on the basis of the evidentiary record presented at trial.

2. The district court did not err in giving the jury a “but-for” causation instruction on McBurnie’s FLSA retaliation claim. See Gross v. FBL Fin. Servs., Inc., 557 U.S.…

dissenting:

I concur in parts 2, 4, 5, and 7.1 respectfully dissent from the rest. McBurnie had his day in court and lost. Any error that resulted is harmless and is not grounds for reversal. The majority further errs in remanding the negligent infliction of emotional distress claim when there was no evidence that the city breached a duty when it fired McBurnie.

McBurnie already had a six-day jury trial where the jury rejected his claim for retaliation under the Fair Labor Standards Act. Any error that may have occurred when the judge refused to let certain other claims or theories of liability go to the jury was harmless error under Rule 61 since it did not affect McBurnie’s “substantial rights.”

The jury heard two accounts at trial. McBurnie’s was that he was mistreated by his supervisors for complaining about overtime, and that the city retaliated against McBurnie with trivial annoyances followed by termination. The city’s was that McBurnie was a bad employee who was picked for the routine layoff because he was obstinate and refused to train a coworker. The jury accepted the city’s *627 account. The jury did not believe that McBurnie was fired for complaining about overtime,…