904 F2d 710 Engel v. City of Sacramento

904 F.2d 710

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Julius ENGEL, Plaintiff-Appellant,
v.
CITY OF SACRAMENTO; John Kearns; Jerry Finney; Keith
Schiele; Donna Giles, Defendants-Appellees.

No. 89-15676.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 1990.*
Decided June 13, 1990.
As Amended on Denial of Rehearing and Rehearing En Banc Oct. 16, 1990.

Before CANBY, NOONAN and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Plaintiff-Appellant Julius Engel ("Engel") appeals from the district court's grant of summary judgment for defendants-appellees in Engel's 42 U.S.C. Sec. 1983 action. We affirm.

3

* Engel, an unsuccessful applicant for the position of police officer with the City of Sacramento, brought suit under 42 U.S.C. Sec. 1983 against the City of Sacramento; Chief of Police John Kearns; Assistant Chief Jerry Finney; Deputy Chief Keith Schiele; and Donna Giles, the City's Personnel Director, seeking both injunctive relief and monetary damages. Engel contends that he was rejected by the City as an applicant for the position of police officer in 1987, despite having ranked number one on the eligible list for the position in 1983, 1985, and 1987, in retaliation for being outspoken and for filing complaints and lawsuits, and thus in violation of his constitutional rights to free speech and to petition government for redress of grievance.

4

After the district court denied a motion by defendants to dismiss the complaint, defendants filed a motion for summary judgment, supported with affidavits and other documentary materials. Engel filed an opposition to the summary judgment motion, supported by his own affidavit. After reviewing the relevant materials, the district court granted the motion for summary judgment in favor of defendants.

5

As the district court determined, the facts are largely undisputed. Engel applied for the position of police officer with the City of Sacramento in 1983, 1985, and 1987. On each occasion, Engel took the required examinations and was ranked first on the eligible list for the position.1 In 1983, Engel was rejected for vacant police officer positions by the hiring interviewer, Deputy Police Chief Dohm, for reasons specified in the background reports prepared by the investigating officer, Officer Kerrick.2 In 1985, Engel was again rejected by the hiring interviewer, Deputy Chief Mihanovich, for reasons specified in the background report prepared by Officer Kupper.3 In 1987, Engel was once again rejected by the hiring interviewer, Deputy Chief Schiele.4

6

The only dispute of fact involves what was actually said between Engel and Schiele during the 1987 hiring interview. Schiele testified at deposition that at the start of the interview, Engel confronted him with "greetings" from a former Sacramento police officer twice discharged for misconduct, and maintained a confrontational attitude throughout the interview. Engel claims in his declaration that the discharged officer's name was not mentioned until midway through the interview. Engel further suggests that Schiele questioned Engel extensively about his complaints and lawsuits and his intention to appeal an adverse hiring decision, saying "you're putting me on notice [of appeal]" and "I'm pissed about that." Schiele denies making such statements. The district court determined that these disputed facts were not material because, even accepting Engel's factual allegations and drawing all reasonable inferences therefrom in his favor, the evidence is insufficient to permit a reasonable jury to decide that the defendants would not have rejected Engel but for Engel's constitutionally protected activities.5

II

7

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir.1989).

III

8

To make out a cause of action under 42 U.S.C. Sec. 1983, a plaintiff must establish that (1) the defendants acting under color of state law (2) deprived the plaintiff of rights secured by the Constitution or federal statutes. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313-14 (9th Cir.1989). The government may not deny an individual public employment simply in retaliation for the exercise of a constitutionally protected right. See Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In this case, Engel alleges that he was denied employment as a police officer in 1987 in retaliation for the exercise of his rights to free speech and to petition government for redress of grievances.

9

A section 1983 action based upon alleged retaliation for exercising the first amendment right to free speech is evaluated under the standard enunciated in Mount Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ("Mt. Healthy "). See Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989); Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir.1985). A Sec. 1983 claim of retaliation for an exercise of the right to petition government is also evaluated under the Mt. Healthy standard. See Soranno's Gasco, 874 F.2d at 1314.6

10

Mt. Healthy establishes a three-step inquiry for retaliation claims. First, the plaintiff must establish that his conduct was entitled to constitutional protection.7 See Gillette, 886 F.2d at 1197; Gearhart, 768 F.2d at 1073. Second, the plaintiff must demonstrate that his conduct, if protected, was a "substantial" or "motivating" factor in the defendants' hiring decision. Once the plaintiff has met this burden, the burden shifts to the defendants to show by a preponderance of the evidence that they would have reached the same decision even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287; Gillette, 886 F.2d at 1197; Soranno's Gasco, 874 F.2d at 1314; Allen v. Scribner, 812 F.2d 426, 433 (9th Cir.1987), amended, 828 F.2d 1445 (9th Cir.1987).

11

The district court concluded that Engel's expressive activities were constitutionally protected8 and that, drawing all justifiable inferences in favor of Engel, the facts were sufficient to tender a triable issue as to whether the protected activity was a "substantial" or "motivating" factor in the denial of employment. We will assume for purposes of this appeal, without actually deciding these issues, that Engel's expressive activities were entitled to constitutional protection and that a triable issue was raised that the protected activity was a motivating factor in the denial of employment. We nevertheless conclude that the district court correctly determined that the defendants were entitled to summary judgment.

IV

12

Even viewing the evidence in the light most favorable to Engel, and drawing all justifiable inferences therefrom, the evidence is insufficient to permit a reasonable jury to decide that the defendants would not have rejected Engel but for Engel's constitutionally protected activities. In a declaration filed in support of the summary judgment motion, Deputy Chief Schiele, who made the decision not to hire Engel, stated:

13

The lawsuits played no part in my decision not to hire Mr. Engel. I was aware of them, and by his description of them they did tend to support the views of the background investigator. My decision to reject Mr. Engel was based upon his general attitude in this interview, and the comments and recommendations made in the background investigation reports. I believed then, and do believe now, that Mr. Engel would not make a good police officer, and would likely prove to be a liability to the City and a danger to the public for the reasons specified in the background reports. He is insensitive and prone to excessive force, as is demonstrated by his past record.... In Mr. Engel's case, had there been no lawsuit or related activity, I would not have hired him anyway for the reasons expressed above.

14

When asked whether his knowledge of the Stockton lawsuit affected his decision to reject Engel, Schiele testified:

15

Obviously, being aware of it, and knowing that it exists would have to have some implication on the total decision. And the way that it would indicate to me that about his personality is that it would be one stroke or one straw, one might say, in the accumulation of an opinion that was related by other people, that when he was involved in a situation that he would push forward for his point of view whether he was right or wrong. And he would continue on that and not change.

16

Schiele similarly stated regarding the influence of Engel's Miami Beach lawsuit on his hiring decision:

17

As I said, had that been a sole factor by itself, it would not have been against him at all. And as it was, if it exists at all, the only thing it does is to have a very minor part to it.

18

In opposition to this testimony, Engel submitted only his declaration, which provides no substantial evidence contradicting these statements by Schiele.9 Cf. Allen, 812 F.2d 426 (affidavits of plaintiff's co-workers suggesting that defendant's explanation for transfer was pretextual created dispute of fact). The background reports and other information before Schiele at the time of his decision, however, provide ample evidence, without regard to Engel's protected activities, to support Schiele's conclusion that Engel was excessively combative and confrontational.

19

Engel argues for an inference, to be drawn from his number one ranking on the eligible list and his successful employment with the Department of Corrections, that his rejection must have been the result of a retaliatory motive. The district court correctly concluded that such an inference was not justifiable, in view of the undisputed facts that two prior interviewers had previously rejected Engel in 1984 and 1985 (when his litigation activities were not an issue), despite knowing that he ranked first on the eligible list, and that Engel's employment experience had been discounted by the background report as not comparable to that of a Sacramento police officer. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

20

Although it is reasonable to infer that Engel's litigiousness was a "confirming factor" in Schiele's decision not to hire Engel, such an inference does not imply a constitutional violation. As the Supreme Court emphasized in Mt. Healthy:

21

A rule of causation which focuses solely on whether protected conduct played a part, "substantial" or otherwise, in a decision not to [hire], could place an [applicant] in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.... The constitutional principle at stake is sufficiently vindicated if such an [applicant] is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision ... on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

22

429 U.S. at 285-86.

23

Engel had twice before been rejected by the Department, when litigation was not an issue, on the basis of the assessment by the interviewers and investigators that his confrontational personality made him unsuited to be a Sacramento police officer. It is unreasonable to think that Schiele would override these prior rejections and hire Engel, absent evidence of a significant change in Engel's personality, or a significant indication of error in the prior evaluations. No such evidence was before Schiele.

V

24

Engel argues on appeal that the district court erred by considering only whether defendants could have refused to hire Engel, when Mt. Healthy 's third prong requires that the court consider whether the defendants would have rejected him. He suggests that Mt. Healthy requires an inquiry into the subjective motivations of the defendants, which must be conducted by a jury at trial, and is not appropriate for summary judgment. See Schwartzman v. Valenzuela, 846 F.2d 1209, 1212 (9th Cir.1988); Allen, 814 F.2d at 435-37.

25

However, "[s]ummary judgment usually is inappropriate only when 'questions of motive predominate in the inquiry about how big a role the protected behavior played in' the employment decision." Thomas v. Douglas, 877 F.2d 1428, 1433 (9th Cir.1989) (quoting Mabey v. Reagan, 537 F.2d 1036, 1045 (9th Cir.1976)) (emphasis in Thomas ). In this case, questions of motive do not predominate in the relevant inquiry, and the district court correctly determined that there is no triable issue as to whether the defendants would have hired Engel but for his protected activities.10

26

Furthermore, in Allen and in Schwartzman, the plaintiffs came forward in opposition to summary judgment with substantial evidence suggesting that the defendants had improper motivations. See Schwartzman, 846 F.2d at 1212; Allen, 812 F.2d at 434-35. Such evidence is conspicuously absent here.

VI

27

The district court correctly concluded that, viewing the evidence in the light most favorable to Engel, and drawing all justifiable inferences therefrom in his favor, the evidence is insufficient to permit a reasonable jury to decide that the defendants would not have rejected Engel but for Engel's constitutionally protected activities. Because Engel has failed to raise a triable issue that the defendants deprived him of constitutionally protected rights, the court properly granted summary judgment for the defendants on Engel's Sec. 1983 claim.11 Having done so, the court did not err in dismissing Engel's second cause of action, which was premised on pendent jurisdiction. See Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 261 (9th Cir.1977).12

28

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The top three applicants on the list are considered for the position; the Chief of Police or his representative has exclusive discretion to select any one of the three for the vacant position. Hiring decisions are made by a hiring interviewer (generally an assistant or deputy police chief), who selects from among the three on the basis of a personal interview and an extensive background investigation conducted by a police department officer

2

The report related uncorroborated incidents of Engel's use of excessive force while a security guard; several opinions that Engel was overconfident, pushy, or confrontational; and the fact that Engel had been fired from the Miami Beach Police Department for apparent insensitivity toward minorities and females. The report mentioned that Engel had brought suit concerning this discharge, but made no further comments regarding the suit. Kerrick recommended that Engel not be hired, questioning whether Engel had the necessary sensitivity and good judgment needed for the job and expressing concern over Engel's potential to overreact in a physical confrontation in the course of his employment. In 1984, Kerrick prepared an update of the 1983 background report. This report included positive recommendations from new sources, but again recommended against hiring Engel, noting that "the problems which arose in [Engel's] previous background remains [sic] unchanged."

3

Despite finding no new adverse information, discounting some of the prior derogatory comments, and finding some positive aspects in Engel's background, Kupper nevertheless recommended against hiring Engel. Kupper concluded that "I cannot say he meets the qualifications relating to character and personality traits that a Police Officer applicant must possess." The only reference to arguably protected activity was a description of a prior administrative appeal by Engel as "a scathing indictment."

4

The 1987 background report, prepared by Officer Merical, again recommended against hiring Engel, observing that Engel "is arrogant, lacks interpersonal sensitivity, and does not accept responsibility for his own actions." The report noted that Engel demonstrated a distaste for women, minorities, and affirmative action, and mentioned several unfavorable observations about Engel's character by a co-worker, a classmate, and personnel in other law enforcement agencies with which Engel had sought employment

The 1987 Merical report referred more extensively to Engel's potentially protected activities, mentioning that Engel had in the past filed Internal Affairs complaints against background investigators and was currently in litigation with other law enforcement agencies regarding hiring and employment practices. The report referred specifically to Engel's suits against the Miami Beach Police Department and the Stockton Police Department.

5

Engel argues at length on appeal, as he did in the court below, that the background reports are inaccurate and unfair. Whether or not the background reports are correct in their assessments of Engel's fitness to be a police officer is not relevant, however, to the issue of whether, in light of those reports, the defendants' refusal to hire Engel was in retaliation for his constitutionally protected activities

6

The district court characterized Engel's right to petition claim as involving the right of access to the courts, which has been variously described as arising under the first amendment right to petition, see California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the due process clause, see Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and even the privileges and immunities accorded citizens under article IV of the Constitution and the fourteenth amendment, see Chambers v. Baltimore & Ohio R., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907). See generally Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir.1983). Consequently, the district court analyzed Engel's claim under both due process and first amendment standards

To the extent that Engel's claim might arise under the right of access protected by the due process clause, the district court correctly concluded that defendants were entitled to summary judgment. Engel provided no evidence that the defendants impeded him from pursuing his claims in the courts or otherwise denied him adequate, effective, and meaningful access to the courts. See Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); see also Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).

The district court analyzed the first amendment right of access claim using the Mt. Healthy standard, but also suggested that a second causation test might apply. The court cited NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), for the proposition that any practice which discriminates on the basis of valid petitioning activity is unconstitutional absent a compelling state interest.

We think, however, that Engel's claim is properly analyzed as arising directly under the first amendment right to petition government, under which the right of access to the courts is subsumed. See Soranno's Gasco, 874 F.2d at 1314. Engel himself characterized his claim as involving the right to petition, and this court has previously analyzed right of access to the courts claims exclusively in this manner. See id. Deliberate retaliation by state actors against an individual's exercise of this right is actionable under Sec. 1983 and is analyzed under the Mt. Healthy standard. Id. Therefore, we need not consider the alternate analysis employed by the district court.

7

The threshold question is whether the expressive activity involves a matter of public concern, to be determined by the content, form, and context of the statement. Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 146-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Allen v. Scribner, 812 F.2d 426, 430 (9th Cir.1987), amended, 828 F.2d 1445 (9th Cir.1987). If it does, the court must balance the plaintiff's interest as a citizen in commenting upon matters of public concern against any adversely affected interest of the City in promoting the efficiency of the public services it performs through its employees. See Rankin, 483 U.S. at 388; Connick, 461 U.S. at 142; Allen, 812 F.2d at 432

8

The defendants dispute this conclusion on appeal

9

The defendants raised a number of evidentiary objections to Engel's declaration, primarily on the grounds of inadmissibility and relevance. All of these objections were sustained by the district court. Engel does not challenge these evidentiary rulings in his briefs on appeal

10

The cases cited by Engel involve a different factual situation. The plaintiffs in Schwartzman and Allen were already employed by the defendants, and the adverse employment decisions, which altered the preexisting employment relationship, were indicative of a change in the defendants' attitudes or motivations toward the plaintiffs. Here, because the Sacramento Police Department had legitimately made the same decision not to hire Engel twice before, the decision to again reject Engel suggests no change of attitude or motivation from the previous, non-retaliatory motivation

11

Engel's failure to establish a triable issue that he was denied employment in violation of his constitutional rights is fatal to all of his Sec. 1983 claims, against defendants as individuals, or as officials, and against the City

12

Engel also contends that the district judge was improperly biased against him. We have reviewed the full record and find that the district judge's conduct was entirely proper. See In re Corey, 892 F.2d 829, 838-39 (9th Cir.1989); Hansen v. Commissioner, 820 F.2d 1464, 1467 (9th Cir.1987)