Oyarzo v. Tuolumne Fire District (955 F. Supp. 2d 1038, 2013)

United States District Court for the Eastern District of California 2013-07-01

Citations

Full opinion text

MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOCS. 66, 67, 69, 70, 71 & 72).

LAWRENCE J. O’NEILL, District Judge.

I. INTRODUCTION

This case concerns events that took place within the Tuolumne Fire Department (“TFD”) in 2010. Plaintiffs Benjamin Oyarzo and Nicholas Hart, former employees of TFD, allege that certain of their superiors, both within TFD and on TFD’s Board of Directors, retaliated against them for and took steps to deter them from exercising their First Amendment rights, retaliated against them for complaining about workplace safety issues, and violated their rights under the Firefighters Procedural Bill of Rights. (Second Amended Complaint (“SAC”), Doc. 25.)

Before the Court for decision are six motions for summary judgment. The Court first addresses four sets of motions for summary judgment filed by the four remaining Individual Defendants: Joseph Turner (Doc. 69), Darlene Hutchins (Doc. 70), Kenneth Hockett (Doc. 67), and Toney Powers (Doc. 66). Along with these motions, Defendants filed a joint statement of facts, independent statements of undisputed fact for each Individual Defendants’ motion, and voluminous supporting documents. Plaintiffs filed an opposition to Defendant Powers’ motion (Doc. 78) and a consolidated opposition to the remaining Individual Defendants’ motions (Doc. 82), along with responses to Defendants’ statements of fact and equally voluminous supporting documents. Defendants replied (Docs. 81 & 90) and filed objections to evidence (Docs. 81-1 & 90-1). Upon preliminary review of the pleadings, the Court requested and received supplemental briefing on two issues related to Plaintiff Oyarzo’s First Amendment claims. (See Docs. 96 & 98-101,103.)

Next, the Court addresses two motions for summary judgment filed by Defendant TFD, one against Plaintiff Oyarzo’s claims (Doc. 72), the other against Plaintiff Hart’s claims (Doc. 71). Plaintiffs filed a consolidated opposition to TFD’s motions along with a consolidated response to TFD’s Statement of Undisputed Fact. (Docs. 88 & 91.) TFD filed a consolidated reply, along with 56 pages of objections to evidence. (Docs. 95 & 95-1.)

The motions were originally set for hearing in late May and early June 2013, but the hearings were vacated to permit extended filing deadlines; the matters were then submitted for decision on the papers pursuant to Local Rule 230(g). (Doc. 75.) The Court finds that the extensive briefing thoroughly addresses the relevant issues, obviating the need to re-set oral argument.

II. BACKGROUND

A. The Defendants.

TFD is a public agency and fire district composed of approximately 1,200 acres in Tuolumne County, California. (Joint Statement of Undisputed Fact (“JSUF”), Doc. 67-2, # A). TFD is governed by a five-member board of directors. (Master Statement of Undisputed Fact for Individual Defendants’ Motions (“MSUF”), Doc. 83, # 1.)

Defendant Hutchins became a member of TFD’s Board in 2005 and served continuously as director until her resignation on August 81, 2010. (MSUF #19.) She served as Secretary from 2009 to August 31, 2010. (MSUF #20.) In November 2010, she was re-elected to the Board and remained on the Board at least through the filing of the motions addressed in this Memorandum Decision and Order. (MSUF # 21.)

Defendant Turner was elected Chair of TFD’s board in December 2007 and served until his resignation on August 3, 2010. (MSUF # 3.)

On August 17, 2010, Defendant Hockett was appointed to TFD’s Board. (MSUF # 14.) He was appointed Chair of the Board on August 30, 2010, and served as Chair until November 8, 2011. (MSUF #13.)

Defendant Powers started as a Relief Engineer with TFD in August 2008; he was hired as a full time Engineer in November 2008. (Powers’ Statement of Undisputed Fact (“PSUF”), reflected in Plaintiffs’ response thereto at Doc. 78-1, ## 5-6.) Throughout all of the relevant events in this case, Oyarzo was Powers’ superior, while Powers was Hart’s superi- or. (PSUF ##7-8.)

B. Plaintiff Oyarzo’s Employment History & Asserted Protected Activities.

Plaintiff Oyarzo first began working for TFD in 2006. (MSUF # 2.) He was promoted to Captain in 2007. (Oyarzo Decl. ¶ 3.) The TFD Board voted to appoint Oyarzo as TFD’s Fire Chief in May 2008. (MSUF #4.) In February 2009, Oyarzo was given a favorable performance evaluation. (MSUF #5.)

In 2009, Oyarzo, with the assistance of Plaintiff Hart, began working to annex land from the County of Tuolumne into the jurisdiction of the Tuolumne Fire District. (See MSUF # 27; Oyarzo Decl. ¶ 9; JSUF # J.) The Parties dispute whether Oyarzo held himself out as a representative of TFD during his work on this annexation project and/or whether his work on annexation fell within his job description.

It is undisputed that, at first, Oyarzo’s work on annexation was fully supported by the TFD Board. (MSUF #28.) It is also undisputed that, later, Tuolumne County and other fire protection organizations expressed displeasure with TFD’s attempt to annex territory. (See MSUF ##28-29.) In February 2010, after a meeting with these other entities, TFD’s annexation effort was placed on hold until June 2010. (MSUF # 29.) The hold was put in place at the request of Tuolumne County, so that the County could complete a County-wide first responder study. (MSUF # 30.) TFD stopped pursuing annexation in February 2010, and the effort never resumed during Oyarzo’s employment with TFD. (MSUF # 31.)

In March 2010, Oyarzo claims that he “discovered that two self-contained breathing apparatuses [ ] had not been properly tested by the firefighting staff and posed a safety risk to the firefighters.” (Oyarzo TFD Decl., Doc. 89-4, ¶ 36.) After discovering that the units had not been inspected as required by the firefighters, Oyarzo “verbally admonished the firefighting staff and reported the safety violation to the TFD Board.” (Id.)

In mid-April 2010, Oyarzo claims that he visited Defendant Turner’s house and spoke with Turner about annexation. During that conversation, Oyarzo expressed his intent to continue with annexation after June 30, 2010, in part because he had a personal interest in seeing the additional territory (which included his personal residence) annexed into TFD’s jurisdiction. According to Oyarzo, Turner informed Oyarzo that he no longer supported annexation and became angry with Oyarzo when Oyarzo stated his intent to continue pursuing annexation. (See Oyarzo Decl. ¶¶ 12-13.)

In early June 2010, certain TFD firefighters and interns submitted written complaints to the Board regarding Oyarzo. (PSUF #31.) Plaintiffs assert that Defendant Powers worked with Defendants Turner and Hutchins to solicit these complaints in retaliation for Oyarzo’s First Amendment activities. Defendant Powers testified at his deposition that numerous interns had been complaining about Oyarzo. (Powers Depo. 59-7:9.) Powers informed Defendant Turner of the complaints. (Id. at 59:9-10.) First, Turner told Powers to inform Oyarzo of the complaints to “give him a chance to correct them.” (Id. at 50:12-15.) Later, Turner directed Powers to have the complainants document their concerns in writing. (Id. at 50:20-22.) After Powers collected a number of written complaints, Turner met privately with several board members, including Hutchins, to convince them to terminate Oyarzo. (See Hutchins Depo. 77:4-84:10 ; Burns Depo. 83:30-85:8, 92:16-24, 204:ll-206:22.) On June 8, 2010, Turner threatened to resign if the Board did not terminate Oyarzo. (Burns Depo. 85:2-4, 90:1-6, 207:16-20.) Finally, when the Board refused to vote to immediately terminate Oyarzo, Turner placed Oyarzo on a three-week forced vacation and told Oyarzo not to contact anyone at TFD. (Burns Depo. 225:15-227:12; Hart Depo. 126:18-127:8; Pltf. Ex. D7.) On June 28, 2010, TFD’s Board voted to place Oyarzo on paid administrative leave. (MSUF # 6.)

Meanwhile, in July 2010, Oyarzo filed a reverse validation action challenging several Board members, including Joe Turner. (JSF O; Pltf. Ex. A4.) The action also requested invalidation of all votes taken since on or about May 2008 in which Joe Turner participated as part of a three-person majority. (Id.) Joe Turner resigned from the Board on August 3, 2010. (JSF O; Turner Depo. 126:20-127:1.) On August 30, 2010, the TFD Board reconsidered all of the prior votes called into question by Oyarzo’s validation action, including the previous vote “appointing Ben Oyarzo Fire Chief effective May 12, 2008.” (Pltf. Ex. A2 (TFD 836).) Although many of the confirming votes passed, the motion to retroactively confirm Oyarzo’s appointment to the position of “Chief’ in May 2008 did not pass. (Id.)

On September 6, 2010, Oyarzo returned to work at the rank of Captain. (MSUF #9.)

On September 14, 2010, the Board appointed Hockett and fellow Board member Ben Orr to handle TFD’s day-to-day operations, with some limitations as to their authority over employees. (MSUF # 15.) Hockett served in this capacity until April 11,2011. (Id.)

On September 27, 2010, Oyarzo went on medical leave. (MSUF # 11.)

At the October 11, 2010 Board meeting, TFD was informed that it was approximately $50,000 “in the red,” and that Tuolumne County was loaning TFD money. (MSUF # 102.) The Board considered potential changes to staffing levels and employee hours to save money. (Id.) At the November 8, 2010 board meeting, staff-reorganization was again discussed. (MSUF # 103.) Among many options, a motion was made to offer all employees the classification of Engineer at the rate of $12.00 per hour for the five paid staff. (Id.) The motion did not pass at that meeting. (Id.) However, at the December 13, 2010 meeting, the Board voted to lay off the least senior firefighter and offer the remaining firefighters Engineer positions at $12.00 per hour. (MSUF #104.) Oyarzo, who returned from medical leave on December 11, 2010 (MSUF # 11), was offered continued employment at TFD as an Engineer at $12.00 per hour (JSUF # J). He refused the offer. (Id.) His last day of employment with TFD was December 31, 2010. (Id.)

A previous Order in Hart v. Fire District, 1:12-cv-01271 LJO DLB (Doc. 24), issued before that case was consolidated with Oyarzo’s parallel action, found that the Individual Defendant Board Members were absolutely immune from claims arising out of their votes to reorganize TFD.

C. Hart’s Employment History & Asserted Protected Activity.

Plaintiff Nicholas Hart was hired as a full time employee of TFD in February 2009. (JSUF # H.) Hart claims that Defendant Powers approached Hart for assistance in Powers’ “effort ... to force Mr. Oyarzo from his employment with the TFD.” (Hart TFD Decl., Doc. 89-3, ¶ 3.) Hart claims that he refused to assist Powers and informed Powers of his belief that such activity was illegal. (Id. at ¶ 4.) Hart believed that Powers was retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Hart Depo. at 171:9-15.) The record further indicates that Hart told members of TFD’s board about his belief that Powers was improperly retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Id. at 171:9-13.) In August 2010, Hart submitted a letter in support of Oyarzo’s continued employment to Virginia Van Bolt, Ben Orr, and Stephenie Burns, all of whom were TFD Board Members. (Hart TFD Decl. ¶ 7.)

Hart claims that during the summer of 2010, Powers began to retaliate against him for supporting Oyarzo. Among other things, he asserts Powers removed Hart from positions of responsibility, transferred those positions to others, including interns, encouraged others in the firehouse to mock and ostracize Hart, and purposefully failed to communicate information about a public appearance Hart was supposed to make on behalf of TFD, knowing Hart would be disciplined for failing to make that appearance. (See Doc. 78 at 7-8.)

Hart claims he informed Defendant Hockett of these retaliatory acts (Hart Decl. ¶ 8), but asserts Hockett did nothing to prevent further retaliation, and in fact committed additional retaliatory acts, including forcing Hart to work 48-hour shifts on his own, and disciplining Hart on two occasions (see Doc. 82 at 20-23).

The nature, severity, and motivation for these asserted acts of retaliation are hotly disputed. It is undisputed, however, that as a result of the November 8, 2010 reorganization vote, Hart (the least senior firefighter at TFD) was laid off; his last day was December 31, 2010. (MSUF # 146.)

III. STANDARD OF DECISION

Summary judgment is proper if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The moving party bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the moving party would bear the burden of proof on an issue at trial, that party must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by “merely pointing out that there is an absence of evidence to support the non-moving party’s case.” Id. When the moving party meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material facts by either:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing, that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c).

In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Rather, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed.R.Civ.P. 56(c)(2). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at 984.

IV. ANALYSIS OF INDIVIDUAL DEFENDANTS’ MOTIONS.

A. First Amendment Claims.

The SAC’s Second and Third Causes of Action, brought by both Plaintiffs, allege First Amendment deterrence and retaliation, respectively, against all Defendants. (SAC ¶¶ 70-76 (deterrence); SAC ¶¶ 77-80 (retaliation).)

1. First Amendment Claims/Issues No Longer in Dispute.

a. Oyarzo’s First Amendment Claims Against Powers.

Defendant Powers moves for summary judgment on both First Amendment claims brought by Oyarzo against him. Oyarzo does not object, conceding that discovery has demonstrated that Powers’ “animus toward Oyarzo stemmed not from Oyarzo’s protected First Amendment activities but from Powers’ anger with Oyarzo for citing and reporting safety violations in the workplace.” (Doc. 78 at 12.) Defendant Powers’ motion for summary judgment as to Oyarzo’s Second and Third Causes of Action is GRANTED.

b. Oyarzo’s First Amendment Claims Against Hockett.

Defendant Hockett moves for summary judgment on both First Amendment claims brought by Oyarzo against him. (Doc. 67-1 at 9 — 14.) Hockett also argued that he was protected by qualified immunity. (Id. at 14.) Oyarzo’s opposition offered no response to Hockett’s motion. Accordingly, Hockett’s motion for summary judgment on Oyarzo’s First Amendment Claims (contained in the Second and Third Causes of action) is’GRANTED;

c. Defendants Hockett and Hutchins are Absolutely Immune for Their Motion and Vote to Reorganize TFD.

The August 30, 2011 Order in Hart, l:12-cv-01271 (Doc. 24), found TFD Board of Directors are entitled to absolute (legislative) immunity for voting to reorganize TFD. (See id. at 11-12.) Based upon this ruling, Defendants Hockett and Hutchins move for summary judgment on any First Amendment claim based upon their votes to reorganize TFD. (Doc. 67-1 at 8; Doc. 70-1 at 7.) Plaintiffs do not object. Hutch-ins and Hockett were members of TFD’s Board at the time of their votes to reorganize TFD. For the reasons set forth in the August 30, 2011 Order, they are entitled to absolute immunity for this act. Nor can they be held liable for any damages flowing from that act. Their motions for summary judgment as to any First Amendment claim based upon this conduct are GRANTED.

d. Oyarzo’s Claim of Retaliation Based on His Validation Action.

Oyarzo’s Third Cause of Action is based in part on his July 2010 validation action. (SAC ¶ 78.) -Turner, Hutchins, and Hockett each move for summary judgment on this issue, arguing there is no evidence to support a retaliation claim based upon Oyarzo’s validation action. (Doc. 67-1 at 12-13; Doc. 69-3 at 12; Doc. 70-1 at 12.) Oyarzo does not address this point in opposition. Accordingly, Turner’s, Hutch-ins’, and Hockett’s motions for summary judgment as to any First Amendment claim brought by Oyarzo based upon Oyarzo’s validation action are GRANTED,

e. Hart’s Claims Against Turner and Hutchins.

Hart’s Second and Fourth Causes of Action for deterrence and retaliation were pleaded against all defendants. Defendants Turner and Hutchins move for summary judgment as to these causes of action, arguing that there is no evidence they were involved in any conduct that could violate Hart’s First Amendment rights. (Doc. 69-3 at 16-22; Doc. 70-1 at 17-22.) Hart offered no opposition. Accordingly, Defendants Turner’s and Hutchins’ motions for summary judgment as to these claims are GRANTED,

f. Hart’s Claim of Deterrence and Retaliation Based Upon His Participation in the Annexation Effort.

Hart’s Second and Fourth Causes of Action are based in part on his participation in the annexation effort. Defendants Powers, Turner, Hutchins, and Hockett move for summary judgment on this theory of liability, arguing Hart acted as a private citizen in connection with annexation, there was no evidence of any deterrence or retaliation based upon Hart’s participation in the annexation effort, and that they were protected by qualified immunity. (Doc. 66-3 at 16, Doc. 67-1 at 18, 20-22; Doc. 69-3 at 16-17, 19-22; Doc. 70-1 at 18, 20-22.) Hart did not respond do these arguments, and maintains only that Hart was deterred and retaliated against based upon his support for Oyarzo. (See Doc. 78 at 5, Doc. 82 at 20-24.) Defendants Powers’, Turner’s, Hutchins’, and Hockett’s motion for summary judgment on any First Amendment claim based upon Hart’s annexation effort theory of liability is GRANTED.

2. Remaining First Amendment Retaliation Claims Against Remaining Individual Defendants.

a. General Legal Standard.

“The Supreme Court has clearly stated that public employees do not shed their First Amendment rights simply because they are employed by the government.” Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir.2009). The Ninth Circuit articulated the relevant general standards applicable to a First Amendment retaliation claim in Huppert:

“The First Amendment shields a public employee if he speaks as a citizen on a matter of public concern.” See, e.g., [Garcetti v.] Ceballos, 547 U.S. [410,] 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 [ (2006) ]; Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 142-143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Twp. High School Dist. 205, Will Cty., 391 U.S. 563, 569-70, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). While this protection is applicable to such individuals, “when 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.” Ceballos, 547 U.S. at 421, 126 S.Ct. 1951. “The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Recently, in Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), [the Ninth Circuit] distilled the Supreme Court’s prior holdings on this issue into “a sequential five-step” inquiry:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

Id.

Eng provides additional detail about how the five-step inquiry is to be implemented and the relative burdens' of each party.

• First, the “plaintiff bears the burden of showing that the speech addressed an issue of public concern.” Id. at 1070 (internal citations and quotations omitted). The specific requirements for speech to qualify as an “issue of public concern” are discussed in detail below. “If the speech in question does not address a matter of public concern, then the speech is unprotected.... ” Id. at 1070-71.

• Second, “the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” Id. at 1071. Again, the specific distinctions between these categories of speech are discussed below. In general, however, if the evidence “demonstrate[s] an official duty to utter the speech at issue, then the speech is unprotected....” Id.

• Third, “the plaintiff bears the burden of showing the state took adverse employment action and that the speech was a substantial or motivating factor in the adverse action.” Id. If plaintiff fails to meet this burden “there can be no recovery....” Id.

• Fourth, if the plaintiff has passed the first three steps, “the burden shifts to the government to show that under the balancing test established by [Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)], the state’s legitimate administrative interests outweigh the employee’s First Amendment rights.” Eng, 552 F.3d at 1071 (internal citations and quotations omitted). “This inquiry, known as the Pickering balancing test, asks “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” ” Id. (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951). If the evidence, viewed in light most favorable to the non-moving party, indicates an adequate justification for suppressing the employee’s speech, the moving party is entitled to summary judgment. Id. at 1071-72.

• Fifth “if the government fails the Pickering balancing test, it alternatively bears the burden of demonstrating that it would have reached the same adverse employment decision even in the absence of the employee’s protected conduct.” Id. at 1072 (internal citation and quotation omitted). “In other words, it may avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.” Id. (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). “This question relates to, but is distinct from, the plaintiffs burden to show the protected conduct was a substantial or motivating factor. It asks whether the adverse employment action was based on protected and unprotected activities, and if the state would have taken the adverse action if the proper reason alone had existed.” Id. (internal citation and quotation omitted). Summary judgment should be granted if the public entity presents undisputed evidence “that it would have made the same employment decisions even absent the questioned speech.” Id.

b. Oyarzo’s First Amendment Claims

(1) Did Oyarzo Speak on a Matter of Public Concern?

Defendants do not dispute that Oyarzo’s expressive conduct in connection with pursuing annexation addressed a matter of public concern.

(2) Did Oyarzo Speak as a Private Citizen or a Public Employee?

Defendants Hockett, Turner, and Hutch-ins move for summary judgment on Oyarzo’s First Amendment claims, arguing that Oyarzo’s speech and activities regarding annexation were performed as part of his official duties. (Doc. 67-1 at 9-10; Doc. 69-8 at 7-8; Doc. 70-1 at 7-8.)

The plaintiff “bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.” Eng, 552 F.3d at 1071 (citing Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951). “Statements are made in the speaker’s capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n. 2 (9th Cir.2008) (internal citations and quotations omitted).

While the question of the scope and content of a plaintiffs job responsibilities is a question of fact, the ultimate constitutional significance of the facts as found is a question of law. In evaluating whether a plaintiff spoke as a private citizen, we must therefore assume the truth of the facts as alleged by the plaintiff with respect to employment responsibilities. If the allegations demonstrate an official duty to utter the speech at issue, then the speech is unprotected, and qualified immunity should be granted.

Eng, 552 F.3d at 1071 (internal citations and quotations omitted). Put another way: “[Wjhether the plaintiff spoke as a public employee or a private citizen-is a mixed question of fact and law.” Posey, 546 F.3d at 1129. If the pleadings and evidence “present genuine disputes of material fact regarding the scope and content” of a plaintiffs job responsibilities, summary judgment is inappropriate. Id.

“[T]he inquiry into whether employee speech is pursuant to employment duties is a practical one.” Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir. 2007). While a formal job description is by no means “dispositive” in determining whether a given task is within the scope of an employee’s professional duties, it is nevertheless “informative.” See id. at 933; see also Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951 (“We reject ... the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions____ Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes”). A court should also “look beyond the job description to the duties the employee actually performs.” Huppert, 574 F.3d at 704. “Speech which has no official significance and bears similarities to actions taken by numerous citizens everyday falls outside the ambit of an employee’s job duties and would be protected by the First Amendment.” Id. (internal citations and quotations omitted).

(a) Oyarzo’s Rank.

The Parties spend a great deal of time discussing whether speaking on the issue of annexation fell within Oyarzo’s job description. It is undisputed that Oyarzo was appointed “Fire Chief’ by TFD’s Board in May 2008. (Pltf. Ex. Dl (OH 281-283).) However, Oyarzo disputes the validity of that appointment and maintains he was at all relevant times actually serving as the lower-ranked “Captain.” This debate is not purely academic. The job description of Fire Chief provides that the Chief is to “plan, organize, direct, supervise, coordinate, and review all the activities and operations of the Fire District____” (Pltf. Ex. D6.) The duties of Captain are more limited. (Pltf. Ex. D5 (Job description for Fire Captain includes responsibility for the “day-to-day operation of the fire station” and other, related operational duties).)

Plaintiff Oyarzo argues he was never legally a “Fire Chief’ because one of the three TFD Board members who voted for his appointment did not satisfy the requirements for Board membership. (Doc. 82 at 8-9.) More than two years later, in July 2010, Oyarzo filed a reverse validation action challenging several Board members, including Joe Turner. (JSF O; Pltf. Ex. A4.) The action also requested invalidation of all votes taken since on or about May 2008 in which Joe Turner participated as part of a three-person majority. (Id.) Joe Turner resigned from the Board on August 3, 2010. (JSF O; Turner Depo. 126:20-127:1.) On August 30, 2010, the TFD Board reconsidered all of the prior votes called into question by Oyarzo’s validation action, including the previous vote “appointing Ben Oyarzo Fire Chief effective May 12, 2008.” (Pltf. Ex. A2, TFD 836.) Although many of the confirming votes passed, the motion to retroactively confirm Oyarzo’s appointment to the position of “Chief’ in May 2008 did not pass. (Id.)

California Health and Safety Code § 13806 requires that actions to determine the validity of any action taken by a fire protection district be brought under the provisions of California Code of Civil Procedure § 860, et seq. Section § 860 allows a public agency to bring a validating proceeding (often referred to as a “reverse validation” action) “to determine the validity” of its own action. A related provision permits “any interested person” to bring a similar action within 60 days of the challenged action. CaLCode Civ. Pro. § 863. Absent a timely challenge to the validity of an action, such actions “become immune from attack” by interested persons, “whether it is legally valid or not.” McLeod v. Vista Unified Sch. Dist., 158 Cal.App.4th 1156, 1166, 71 Cal.Rptr.3d 109 (2008). Oyarzo’s validation challenge, filed in July 2010, was far too late to fall within the 60-day window to challenge his own appointment to Chief in May 2008.

Although § 860 does indicate on its face that public agencies are also subject to the 60-day limitations period, Plaintiffs argue that such agencies are nevertheless free to disregard the statute of limitations by virtue of language in CaLCode Civ. Pro. § 869, which provides that the availability of a § 860 validating proceeding does not preclude any agency from utilizing other available remedies to determine the validity of a thing or matter, citing Kaatz v. City of Seaside, 143 Cal.App.4th 13, 30, 49 Cal.Rptr.3d 95 (2006). Plaintiffs maintain that the May 2008 appointment of Oyarzo as Chief was invalidated not by Oyarzo’s lawsuit but by the TFD Board’s own action to reconsider all of the challenged votes and then reject Oyarzo’s reappointment as Chief.

Kaatz does not support this contention. Kaatz concerned whether the 60-day limitations period set forth in the validation statute applied to a taxpayer’s challenge to a municipality’s purchase of residential property on a decommissioned military base and immediate resale of that property to a developer at a deep discount. Id. at 19, 49 Cal.Rptr.3d 95. The court concluded that the transaction was simply not subject to the validation statute, but confirmed the general rule that actions which are covered by the validation statute are automatically deemed valid if neither the acting public entity nor any interested person challenges the act within the 60-day window. Nonetheless, in a footnote, Kaatz explained:

We note that while “any interested person” must bring a validating proceeding within 60 days, “no such restriction is placed on the [public] agency itself, which is in effect authorized by section 869 to disregard the 60-day statute of limitations imposed by section 860.” [City of Ontario v. Superior Court, 2 Cal.3d 335, 341, 85 Cal.Rptr. 149, 466 P.2d 693 (1970) (fn. omitted.) ] This is the case because the second sentence of section 869 provides: “The availability to any public agency, including any local agency, or to its officers or agents, of the remedy provided by this chapter, shall not be construed to preclude the use by such public agency or its officers or agents, of mandamus or any other remedy to determine the validity of any thing or matter.”

Id. at 30 n. 17, 49 Cal.Rptr.3d 95. Although this language suggests that a public agency could use other legal remedies bearing different statutes of limitations to invalidate a prior action of its own outside the 60-day statute of limitations, Plaintiffs point to no applicable remedy that was invoked in this case. The Board’s post hoc “reconsideration” of its vote to promote Oyarzo is a far cry from the kind of remedy referenced section 869 (e.g., mandamus). To hold otherwise would totally ignore the California Supreme Court’s more general observation that: “[A]n agency may indirectly but effectively ‘validate’ its action by doing nothing to validate it; unless an ‘interested person’ brings an action of his own under section 863 within the 60-day period, the agency’s action will become immune from attack whether it is legally valid or not....” City of Ontario, 2 Cal.3d at 341-42, 85 Cal.Rptr. 149, 466 P.2d 693.

TFD’s Board meeting minutes from 2009 and the first six months of 2010 repeatedly refer to Oyarzo as “Chief Oyarzo.” (Turner Ex. Cl.) In February 2009, Oyarzo was given a written evaluation as “Fire Chief Oyarzo.” (Turner Ex. B3.) In March 13, 2010, he issued a letter to Hart as “Benjamin C. Oyarzo, Fire Chief.” (Turner Ex. A1 Suppl. (attached to Doc. 90-2).) Oyarzo himself admitted that he was at the very least the “doing the Chiefs duties” from the time of his appointment in May 2008 through his return from leave as Captain in September 2010. (Oyarzo Depo: 35: 18-36:3.) During this time, Oyarzo wore a Chiefs uniform, and drove a Chiefs vehicle. (Id. at 39:6-7, 197:5-6.) He was a member of the California Fire Chiefs Association, and attended Tuolumne County Fire Chiefs meetings, although he claims to have done so in his capacity as “administrative captain.” (Id. a. 49:24-50:2; 100:6-101:2.)

There is simply no evidence that Oyarzo was anything other than the “Fire Chief’ from the time of his promotion to that position in 2008 through his placement on administrative leave in late June 2010. He did not file his validation action until July 2010, which was far too late to invalidate his promotion to Chief. He was treated as the Chief and acted as the Chief. He cannot now escape the plain language of the Fire Chiefs job description, which describes a Fire Chiefs general duties to include “plan[ning], organizing], directing], supervising], coordinating], and reviewing] all the activities and operations of the Fire District....” (Pltf. Ex. D6.) Specific duties “include[e]” but are “not limited to” “providing] highly responsible and complex administrative support to the Board of Directors,” “coordinating] Fire Distriet activities with other departments and outside agencies, [and] ... act[ing] as public and intergovernmental relations representative....”Id.

(b) Oyarzo’s Subjective Perception of His Duties.

Oyarzo states in his declaration that:

At no time during my employment with TFD did anyone communicate to me that I was expected to pursue annexation of County land as part of my job duties. At no time during my employment with TFD did anyone instruct me to pursue annexation of County land as part of my job duties.

(Oyarzo Decl. ¶¶ 6-7.) Rather, he perceived his daily duties as “management and supervision of the fire station and personnel, acting as duty officer while on shift, responding to and organizing TFD’s response to emergency calls, organizing and participating in fire prevention activities, and repairing the fire district’s equipment.” (Id. at ¶ 5.) Defendants argue these assertions in Oyarzo’s declaration should be disregarded because they contradict his prior deposition testimony, where Oyarzo admitted he took direction from TFD’s board regarding the pursuit of annexation:

Q: Did you work with any other agencies with respect to this annexation effort?

A. The board brought up Amy Augustine, a planner that we used on the west side property annexation, and they were pleased with her work on that and they said — they told me to go ahead and contact her and get her involved with it so we can get it filed with LAFCO.

(Oyarzo Depo. 114 at 19-25.)

A party cannot “create a triable issue of fact, and thus survive summary judgment, merely by contradicting his or her own sworn deposition testimony with a later declaration.” Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir.1998). This is because “if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish thé utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). The sham affidavit rule may be invoked only if a district court makes “a factual determination that the contradiction was actually a sham” and “the inconsistency between a party’s deposition testimony and subsequent affidavit ... [is] clear and unambiguous.” Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009). Here, Oyarzo’s declaration is not clearly and unambiguously in conflict with this deposition testimony. Nothing in his deposition addresses the specific ■ issue raised by his declaration, namely, whether anyone at TFD told Oyarzo pursuit of annexation was part of his job duties or instructed him to pursue annexation as part of his job.

For the purposes of summary judgment, the Court must assume the truth of Oyarzo’s version of events (i.e., that he honestly believed his duties did not include pursuit of annexation). What remains unclear is whether an employee’s self-serving testimony about his own subjective perception of his job duties can create a material dispute over whether he spoke as a public employee under the circumstances presented here, namely, where the job description of Chief plainly encompasses pursuit of annexation and Oyarzo admits that he pursued'annexation at the direction of TFD’s Board.

(c) Other Relevant Facts.

According to Defendants, Oyarzo’s work on annexation was always pursued in his capacity as a representative of TFD. In California, petitions for annexation of territory by a local government agency are governed by the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. Cal. Gov.Code § 56000 et seq. Pursuant to that statute, annexation can only be initiated by a government agency or by a petition signed by at least 25% of the registered voters or landowners in the affected area. Cal. Gov.Code §§ 56654(b), 56700, 56864(a). It is undisputed that in this case, it was TFD that initiated the annexation process. Amy Augustine, a land use consultant, was hired by TFD’s Board to prepare the annexation application for TFD. (Turner Ex. Cl (TFD 764).) The minutes of the February 18, 2010 Board meeting acknowledge that the meeting which resulted in the annexation being put on hold was between “Craig Pedro [County Administrative Officer], County Fire, Cal Fire, Tribal Fire and Tuolumne Fire.” (Id. at TFD 775.) There is no evidence that any group of citizens initiated or participated in an annexation petition, let alone that Oyarzo was a member of any such group.

Defendants also point to evidence indicating that Oyarzo pursued annexation as a representative of TFD. The sign in sheet for the February 10, 2010 meeting discloses that everyone, including Oyarzo, appeared in a representative capacity. (Hutchins Ex. A9 (“Ben Oyarzo” signed in for “Tuolumne Fire District”).) The minutes of the February 18, 2010 TFD Board meeting indicate that “Joe Turner asked Chief Oyarzo to set up a meeting with Kevin Day, Tribal Chairman, to discuss the annexation again____” (Turner Ex. Cl (TFD 775).) Craig Pedro testified that in carrying forward the annexation effort, Oyarzo represented himself as having the authority of TFD’s board. (Pedro Depo. at 98:1-16.) Mr. Pedro indicated that when Oyarzo was dealing with him, Mr. Pedro believed he was dealing with “the chief of the department.” (Id. at 98:6-9.)

Oyarzo testified at his Deposition that he did not identify himself as the Chief of TFD during meetings with representatives of the Local Area Formation Commission, but instead identified himself by name only. (Oyarzo Depo. at 118: 7-12.) But, this testimony, which amounts only to an assertion about how Oyarzo introduced himself to LAFCO representatives, cannot be considered in a vacuum. As explained above, Oyarzo admitted to working with and under the direction of TFD’s board regarding the pursuit of annexation. (Id. at 114: 19-25.)

Plaintiffs admit that Hart participated in the annexation effort and that his work on the annexation effort was done for TFD. (MSUF # 109.) It is not logical for Plaintiffs to assert that Hart worked for TFD in support of annexation while Oyarzo, Hart’s superior, did not.

The above analysis demonstrates that there is no substantive evidence to support Oyarzo’s contention that his speech in favor of annexation through February 2010 was made in his capacity as a private citizen. Accordingly, the Court makes a finding that any such speech is not protected conduct. However, such a finding is not required to rule on Defendants’ motion. Even if one assumes, arguendo, that Oyarzo has presented evidence that raises a material dispute as to whether his speech in favor of annexation before February 2010 was as a private citizen, he does not complain that he was retaliated against for any of his speech in favor of annexation prior to February 2010. It is undisputed that TFD’s Board of Directors fully supported the annexation effort through February 2010, at which time annexation was placed on hold. (MSUF ## 28-29.)

(d) Oyarzo’s Threat to Speak in his Capacity as a Private Citizen.

The source of Oyarzo’s entire First Amendment retaliation claim is the conversation he had with Defendant Turner in April 2010. According to Oyarzo’s Declaration:

11. On April 13, 2010, the annexation effort was placed on hold until June 30, 2010 at the request of Tuolumne County representatives. I intended at that time to resume my annexation efforts immediately after the June 30, 2010 deadline.

12. The following week, I communicated my intent to continue pursuing the annexation to Joe Turner while visiting him at his house. Mr. Turner informed me that he no longer supported the annexation and became visibly angry with me when I stated my intent to continue pursuing the annexation after June 30, 2010. I explained to Mr. Turner that the annexation was important to me because I lived within the area that would be annexed, and the annexation would greatly increase the safety of my and hundreds of other homes in the area, which, consequently, would reduce insurance rates for all homeowners in the area.

(Oyarzo Decl. ¶¶ 11-12.)

According to Oyarzo’s Declaration, his interest in annexation was more than just professional. His own personal residence was located just outside TFD’s jurisdiction and within the area subject to annexation. Because annexation had the potential to lower the fire rating of those properties to be annexed, annexation had the potential to lower Oyarzo’s own insurance costs substantially. (Oyarzo Decl. ¶¶ 17-18.) The combination of the fact that Oyarzo threatened to speak out on an issue in contravention of the Board’s wishes and the fact that he had a personal (rather than purely professional) reason for doing so supports a finding that Oyarzo threatened to engage in speech that would have been protected.

However, this claim cannot proceed because Plaintiffs entirely failed to disclose this theory of First Amendment liability in discovery. Defendants’ Fourth interrogatory asked Plaintiff to “describe all protected political activity to which [Oyarzo] referfed] in paragraph 71 of the Complaint.” (TFD Ex. A4, A5, Interrogatory # 4.) Oyarzo’s initial response was:

Plaintiff lobbied the County of Tuolumne for the annexation of territory from the county to Tuolumne Fire District. Plaintiff participated in meetings with officials of the County of Tuolumne for the purpose of achieving annexation of the land and contributed time and energy to planning and detailing the methods by which the land would be annexed.

(TFD Ex. A4, Response to Interrogatory

# 4.) Oyarzo’s supplemental response was as follows:

Beginning in 2009 and continuing through approximately May 2010, Plaintiff lobbied the County of Tuolumne for the annexation of territory from the county to the Tuolumne Fire District, which, had Plaintiff been successful, would have included the land on which Plaintiffs home was built. In 2009 and 2010, Plaintiff participated in meetings with officials of the County of Tuolumne, including Craig Pedro, Deborah Russell, and Larry Houseburg, for the purpose of achieving annexation of the land. Throughout this time, Plaintiff met with community groups who would be impacted by and supported the annexation of county land into TFD’s territory, prepared and directed the completion of documentation necessary for annexation of the land, and attempted to build and maintain- support of the community and community leaders, through outreach, personal advocacy, and through the media.

(TFD Ex. A5, Response to Interrogatory #4.)

Defendants are correct that Plaintiff cannot, without substantial justification, now rely on a new theory of liability first raised in his Declaration. Fed.R.Civ.P. 37(c)(1) addresses failure to make discovery disclosures:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e) [duty to supplement disclosures], the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Plaintiffs’ new theory of recovery was introduced for the first time in Oyarzo’s Declaration, filed in response to Defendants’ motions for summary judgment on May 24, 2010.

A court may refuse to allow new theories in response to a summary judgment motion where doing so would deprive the defendant the right to conduct discovery on the claim or to make pretrial motions regarding the theory of liability. Harry A. v. Duncan, 351 F.Supp.2d 1060, 1067 (D.Mont.2005); Ortiz v. Lopez, 688 F.Supp.2d 1072, 1082 (E.D.Cal.2010) (“[A] plaintiff cannot oppose summary judgment based on a new theory of liability because it would essentially blind side the defendant with a new legal issue after the bulk of discovery has likely been completed.”). Although the operative complaint and discovery do raise First Amendment retaliation and deterrence claims, the factual basis for Plaintiffs “threat to speak after June 30, 2010” theory is entirely new, and was never disclosed in discovery. -Defendants’ discovery (including the . questions posed at depositions) and opening motions papers focused on the disclosed evidence.

The Tenth Circuit succinctly articulated the problem with Plaintiffs’ approach to this litigation:

As a general rule, a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover, “provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219 at 194 (1990) [now § 1219 at 282-83 (2004) [¶]... .We do not believe, however, that the liberalized pleading rules permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case. This practice, if permitted, would waste the parties’ resources, as well as judicial resources, on discovery aimed at ultimately unavailing legal theories and would unfairly surprise defendants, requiring the court to grant further time for discovery or continuances.

Zokari v. Gates, 561 F.3d 1076, 1087 (10th Cir.2009).

Plaintiffs have been on notice since at least May 24, 2013 that Defendants believed this was a new theory of liability. (Doc. 90 at 11 (Defendants, in consolidated Reply brief, arguing that Oyarzo’s Declaration is a sham).) Yet, Plaintiffs have neither offered an excuse for failing to disclose this new theory of recovery nor any basis for a finding of harmlessness. See also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir.2001) (party seeking to offer undisclosed evidence bars the burden of proving the delay was harmless). To permit Plaintiffs to proceed on this previously undisclosed theory would reward Plaintiff for waiting until the last minute to refine the theories upon which they intend to build their case and unfairly surprises defendants. Paragraphs 11 and 12 of Oyarzo’s declaration will therefore be excluded.

As a result, Plaintiff Oyarzo has no evidentiary foundation for his First Amendment retaliation claim. Accordingly, Individual Defendants’ motions for summary judgment on Oyarzo’s First Amendment claim are GRANTED,

c. Hart’s First Amendment Claims Based Upon Speech in Support of Oyarzo.

(1) Did Hart Speak on a Matter of Public Concern?

Hart claims that in June 2010 Defendant Powers approached Hart for assistance in Powers’ “effort ... to force Mr. Oyarzo from his employment with the TFD.” (Hart TFD Deck, Doc. 89-3, ¶ 3.) Hart claims that he refused to assist Powers and informed Powers of his belief that such activity was illegal. (Id. at ¶ 4.) Hart believed that Powers was retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Hart Depo. at 171:9-15.) Hart told members of TFD’s board about his belief that Powers was improperly retaliating against Oyarzo because Oyarzo disciplined and reported firefighters for safety violations. (Id. at 171:9-13.) In August 2010, Hart submitted a letter in support of Oyarzo’s continued employment to Virginia Van Bolt, Ben Orr, and Stephenie Burns, all of whom were TFD Board Members. (Hart TFD Deck ¶ 7.)

All Individual Defendants argue that Hart’s speech on behalf of Oyarzo was not a matter of public concern. (Doc. 66-3 at 17-18; Doc. 67-1 at 19-20; Doc. 69-3 at 17-18; Doc. 70-1 at 18-20.) The Ninth Circuit has “not articulated a precise definition of ‘public concern,’ ” but instead recognizes that the inquiry “is not an exact science.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009) (internal citations omitted). In this Circuit, Courts must avoid “rigid multipart tests that would shoehorn communication into ill-fitting categories,” and should instead rely “on a generalized analysis of the nature of the speech.” Id. The “essential question is whether the speech addressed matters of ‘public’ as opposed to ‘personal’ interest,” and courts commonly examine “the content, form, and context of a given statement, as revealed by the whole record.” Id. (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Whether speech is a matter of public interest is “purely a question of law” on which plaintiffs bear the burden of proof. Id. (internal citations omitted).

The Ninth Circuit has defined the “scope of the public concern element broadly and adopted a liberal construction of what an issue of public concern is under the First Amendment.” Id. at 709-10 (internal citations and quotations omitted). “But there are limits. In a close case, when the subject matter of a statement is only marginally related to issues of public concern, the fact that it was made because of a grudge or other private interest or to coworkers rather than to the press may lead the court to conclude that the statement does not substantially involve a matter of public concern.” Id. (internal citations and quotations omitted).

(a) Content of the Speech.

“The “content” element is the greatest single factor in the Connick inquiry.” Id. at 710 (internal quotations omitted). To address a matter of public concern, the content of the speech must involve “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Id. (internal quotation omitted); see also Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989) (describing “matter[s] of political, social, or other concern to the community” as matters of public concern). “On the other hand, speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public’s evaluation of the performance of governmental agencies is generally not of ‘public concern.” Id. (internal quotations omitted). “The same is true of ‘speech that relates to internal power struggles within the workplace,’ and speech which is of no interest ‘beyond the employee’s bureaucratic niche.’ ” Id. (quoting Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir.1996)).

In Desrochers, two veteran police officers filed an internal, informal grievance about their supervising Lieutenant, complaining about his management style. Id. at 705. According to the officer who adjudicated the grievance, there was “an ongoing and continuing issue relative to a difference of personalities.” Id. Learning of the grievance, the supervising Lieutenant requested and was granted a voluntary transfer, but the two officers did not believe this sufficiently addressed their grievance, so they filed a formal grievance against the Lieutenant and two of his superiors. Id. at 706. Their formal grievance again complained of the Lieutenant’s management style, accusing him of, among other things, being “autocratic, controlling and critical.” Id. One of the officers described several incidents in which the Lieutenant acted as a “micro-manager, who insults fellow officers [and] undermines efforts to develop team members.” Id. Admitting that “taken individually” the incidents might “seem minor,” the officer nonetheless thought the “incidents amount to added stress and distrust in the daily operations of the unit.” Id. The formal grievance also asserted that the Lieutenant’s superiors failed to take steps to remedy the “hostile work environment” created by the Lieutenant. Id. at 707. Repeatedly referencing the Lieutenant’s “management style” in his grievance, the other officer believed complaining was “a necessary step forward in an attempt to change the culture of this police department and the way we treat each other.” Id. The formal grievance was denied. Id.

Shortly thereafter, the two officers filed a confidential complaint with the municipality’s human resources department. In addition to referencing their prior complaints, they raised concerns about the performance of the replacement Lieutenant, indicating they feared he would be used as a tool to retaliate against them. Id. The officers later amended their complaint, accusing the replacement Lieutenant of having a “long history of inappropriate and harassing comments given to coworkers, peers and subordinates,” including making an offensive comment about one complainant’s wife and, on another occasion, making a similar offensive comment as to the other complainant’s daughter. Id.

Within weeks of filing their human resources complaint, one of the officers was transferred (an action he viewed as a demotion), while the other was suspended upon the conclusion of an internal affairs investigation involving a previous arrest. Id. at 705. Their lawsuit for First Amendment retaliation followed. Id. at 708. On appeal from a summary judgment ruling in favor of defendants, the officers attempted to “characterize their grievances as necessarily implicating issues such as the competency, preparedness, efficiency, and morale” of their department. Id. at 710 (internal quotations omitted). The Ninth Circuit rejected this rationale, reasoning that “a simple reference to government functioning” has never been held to “automatically qualif[y] as speech on a matter of public concern. To the contrary ... the fact that speech contains passing references to public safety, incidental to the message conveyed weighs against a finding of public concern.” Id. at 711 (internal quotation omitted).

For example, what if we judges prohibited our law clerks from taking coffee breaks? Suppose they responded with a memorandum complaining about the action. While they might assert — perhaps fairly — that caffeine deprivation would adversely affect their performance, morale, efficiency, and thus, their competency, no one would seriously contend that such speech addressed a matter of public concern, [citation] Similarly, the reality that poor interpersonal relationships amongst coworkers might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern.

Id. Moreover, a court must “look to what the employees actually said, not what they say they said after the fact.” Id. “[T]he plain language of the grievances” in Desrochers did “not directly address police competence ... but rather indicates that [the officers] were involved in a personality dispute centered on [the Lieutenant]’s management style.” Id. at 712.

The speech in question is largely devoid of reference to matters we have deemed to be of public concern. There are no allegations of conduct amounting to “actual or potential wrongdoing or breach of public trust.” Connick, 461 U.S. at 148, 103 S.Ct. 1684.

Id. at 712. In sum, the Ninth Circuit concluded:

[W]hen working for the government, saying one’s boss is a bully does not necessarily a constitutional case make. “[T]he content of the communication must be of broader societal concern. [Our] focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” [Roe v. City & County of S.F., 109 F.3d 578, 585 586 (9th Cir.1997)] (emphases added). On the facts of this case, we cannot say that the public would be truly interested that two police sergeants believed their supervisor was a “micro-manager,” “autocratic” and “controlling,” or even that he dressed them down in front of their colleagues and neighboring police forces. Such speech, “if released to the public, would convey no information at all other than the fact that [two] employee[s were] upset with the status quo,” Connick, 461 U.S. at 148, 103 S.Ct. 1684, and is of no relevance “beyond the employee[s’] bureaucratic niche,” Tucker, 97 F.3d at 1210.

Id. at 713.

A different outcome may be appropriate where an employee complains ab