FILED
NOT FOR PUBLICATION
APR 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA WAYMAN-TRUJILLO, No. 17-15814
Plaintiff-Appellee, D.C. No. 3:16-cv-08182-SPL
v.
MEMORANDUM*
COUNTY OF YAVAPAI; YAVAPAI
COUNTY BOARD OF SUPERVISORS;
ARLO G. DAVIS,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted April 9, 2018
San Francisco, California
Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges.
Defendants-Appellants County of Yavapai, Yavapai County Board of
Supervisors, and Arlo G. Davis (“County,” “Board,” and “Davis” respectively, and
collectively, “Defendants”) appeal the partial denial of their motion to dismiss
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
based on Davis’s qualified immunity defense. We have jurisdiction under 28
U.S.C. § 1291. We reverse the partial denial, holding that Davis is entitled to
qualified immunity.
Davis is entitled to qualified immunity if (1) the facts alleged show that his
conduct did not violate a constitutional right, or (2) the right allegedly violated was
not clearly established at the time. Saucier v. Katz, 533 U.S. 194, 200 (2001),
modified on other grounds, Pearson v. Callahan, 555 U.S. 223 (2009). We may
begin our analysis with either prong. Pearson, 555 U.S. at 236.
Here, we begin with the first prong. “Speech made by public employees in
their official capacity is not insulated from employer discipline by the First
Amendment but speech made in their private capacity as a citizen is.” Brandon v.
Maricopa Cty., 849 F.3d 837, 843 (9th Cir. 2017). A determination that Plaintiff-
Appellee Ana Wayman-Trujillo (“Wayman-Trujillo”) spoke at all relevant times in
her capacity as a public employee would be “fatal” to her claims for relief. See
Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013) (en banc). The
district court noted that the scope of Wayman-Trujillo’s job responsibilities is in
dispute. At this stage, “our task is not to resolve any factual dispute,” but we must
still “determine whether [Wayman-Trujillo’s] allegations support a reasonable
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inference that [s]he acted outside of h[er] professional duties,” as she describes
them in the complaint. Id. at 1076.
In evaluating whether Wayman-Trujillo spoke as a public employee or
private citizen, we look to several “guiding principles.” Id. at 1074–76. First,
“generally, when a public employee raises complaints or concerns up the chain of
command at his workplace about his job duties, that speech is undertaken in the
course of performing his job.” Id. at 1074 (internal citation and quotation marks
omitted). Second, “[w]hen an employee prepares a routine report, pursuant to
normal departmental procedure, about a particular incident or occurrence, the
employee’s preparation of that report is typically within his job duties.” Id. at
1075. Third, we consider whether a public employee spoke “in direct
contravention to his supervisor’s orders,” which suggests that the speech fell
“outside of the speaker’s professional duties,” or pursuant to those orders. Id. at
1075–76.
We conclude that Wayman-Trujillo spoke as a public employee during the
incidents that allegedly prompted Davis’s adverse actions against her. First,
Wayman-Trujillo spoke as a public employee when she met with Davis on July 1,
2015. Wayman-Trujillo alleges that she reported directly to the Board, of which
Davis was a member. As Special Districts Coordinator, Wayman-Trujillo was
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specifically responsible for “reviewing the invoices of . . . outside services related
to special districts” and informing the Board of “special district information.” The
concerns she raised on July 1 were about the invoices and accounting practices of
an outside contractor that provided administrative services for two special districts.
Thus, in discussing her concerns with Davis, Wayman-Trujillo acted “pursuant to
[her] duties.” See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
We recognize that Wayman-Trujillo alleges that Davis recused himself from
participating at several Board meetings at which Wayman-Trujillo’s concerns were
discussed. But that does not mean that Wayman-Trujillo was no longer
responsible for keeping Davis informed about “special district information.” Nor
does Davis’s recusal from certain Board meetings transform Wayman-Trujillo’s
conversations with him about the special districts for which she was responsible
into speech made in her private capacity as a citizen.
We also recognize that Wayman-Trujillo’s allegations suggest that she
raised concerns about government waste and potential misconduct when she spoke
to Davis. But even speech “[e]xposing governmental inefficiency and misconduct”
can fall outside the First Amendment’s protection if the speech is made “pursuant
to [an employee’s] professional duties.” Garcetti, 547 U.S. at 425–26; see also
Dahlia, 735 F.3d at 1075 (noting that raising concerns “about corruption or
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systemic abuse” can still fall within “an employee’s regular job duties” if she is
responsible for “investigating such conduct”). Here, the issues reported by
Wayman-Trujillo fell squarely within her responsibilities.
Second, Wayman-Trujillo spoke as a public employee when she made
presentations to the Board during several meetings in 2015. Wayman-Trujillo
alleges that her job required her to “present[] special district information at Board
meetings.” Moreover, the specific presentations she gave were at the behest of the
Board, which set aside time for her to present her concerns.
Third, Wayman-Trujillo spoke as a public employee when she sent her
notice of constructive discharge on October 16, 2015. The voicing of “individual
personnel disputes and grievances” internally to an employee’s supervisor and the
human resources department does not qualify as protected private speech. See
Turner v. City and Cty. of S.F., 788 F.3d 1206, 1211–12 (9th Cir. 2015).
Last, at oral argument, Wayman-Trujillo clarified that she does not claim
relief based on anonymous letters she alleges she sent to the Arizona Auditor
General and Arizona Attorney General.
In holding that Davis did not violate Wayman-Trujillo’s rights on the facts
alleged, we necessarily also hold that the County and Board are not liable for any
ratification of Davis’s actions. See Cunningham v. Gates, 229 F.3d 1271, 1285
5
(9th Cir. 2000) (permitting the exercise of pendent jurisdiction when a decision on
the issue of qualified immunity “necessarily resolves the pendent issue”).
REVERSED
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