Laura Conklin v. City of Reno

FILED
NOT FOR PUBLICATION MAY 12 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LAURA CONKLIN, No. 10-15482

Plaintiff - Appellant, D.C. No. 3:08-cv-00452-LRH-
RAM
v.

CITY OF RENO and PETER RINALDO, MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Argued and Submitted April 15, 2011
Pasadena, California

Before: REINHARDT and GOULD, Circuit Judges, and TIMLIN, Senior District
Judge.**

To defeat summary judgment on her claim that she was retaliated against for

protected speech in violation of the First Amendment, Conklin must show that her

speech addressed matters of public concern. Eng v. Cooley, 552 F.3d 1062, 1070

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for Central California, sitting by designation.
(9th Cir. 2009). To determine whether speech addresses matters of private or

public concern, we must “examine the ‘content, form, and context’ of that speech,

‘as revealed by the whole record.’” Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011)

(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761

(1985)) (internal quotation marks omitted). The content of Conklin’s “war stories”

had, at most, a minimal bearing on matters of public concern. Conklin’s anecdotes

addressed limited harassment at the hands of a trainer almost ten years earlier.

Given the limited scope of the harassment she described and the amount of time

that had elapsed, Conklin’s “war stories” would have had minimal, if any, value to

the public in evaluating “the functioning of government” or “the performance of

public agencies.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103-04 (9th

Cir. 2011). The form and context of the “war stories” likewise weighs against a

finding that they addressed a matter of public concern: Conklin’s speech was

communicated to an audience of one with the apparent intention of entertaining a

co-worker, not of illuminating governmental deficiencies or otherwise “serv[ing]

the public values of the First Amendment.” Desrochers v. City of San Bernadino,

572 F.3d 703, 714 (9th Cir. 2009) (internal quotation marks and citation omitted).

Similarly, Conklin’s 1998 statement to her training supervisor, which was

made in response to his direct question, constituted a limited “individual personnel

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. . . grievance[],” Eng, 552 F.3d at 1070 (internal quotation marks and citation

omitted), rather than speech capable of informing “the public’s evaluation of the

performance of governmental agencies,” id. (internal quotation marks and citation

omitted), Conklin testified that had she known her training supervisor would

reassign her away from Rinaldo, she would not have answered his question

truthfully, suggesting that her speech was not intended to improve the department’s

functioning or otherwise “serve the public values of the First Amendment.”

Desrochers, 572 F.3d at 714. Because Conklin’s speech did not address a matter

of public concern, the district court’s grant of summary judgment to Rinaldo on

Conklin’s First Amendment claim is affirmed.

Conklin further claims that she was subjected to a hostile workplace in

violation of the Fourteenth Amendment by “an ongoing behind the scenes

attack . . . by Rinaldo, with sexually charged and lesbian charged remarks affecting

her reputation,” as well as “Rinaldo’s shop talk degrading appellant with gender-

based derogation, and his repeated and unnecessary entering of her workplace.”

However, behind-the-back comments and “entering of [an employee’s] workplace”

clearly do not amount to “conduct which a reasonable woman would consider

sufficiently severe or pervasive to alter the conditions of employment and create an

abusive working environment.” Ellison v. Brady, 924 F.2d 872, 879 (9th Cir.

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1991). The district court’s grant of summary judgment to Rinaldo on Conklin’s

hostile workplace claim is therefore affirmed.

Finally, Conklin alleges that Rinaldo’s filing of an internal affairs complaint

against her was an act of sex discrimination in violation of the Fourteenth

Amendment’s Equal Protection Clause. Conklin alleges that as a result of

Rinaldo’s filing of the complaint she was subjected to a prolonged investigation

that placed her job in jeopardy; was advised by a veteran officer to secure an

attorney (which she did); was subjected to a restrictive supervisory directive that

interfered with her ability to discharge her professional responsibilities; and

received a formal oral reprimand from a superior even after being cleared of any

wrongdoing. Regardless of whether such harms would suffice to allege a change

in “compensation, terms, conditions, or privileges of employment,” under Title

VII, 42 U.S.C. § 2000e-2(a)(1), a government employee’s use of official channels

to subject an individual, based upon her sex, to a months-long investigation that

places her job in jeopardy, compels her to obtain legal representation, interferes

with her professional responsibilities, and results in a documented oral disciplinary

action, would, if proven, clearly constitute a deprivation of equal protection of the

laws in violation of the Fourteenth Amendment. The district court was therefore

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mistaken in concluding that Conklin failed to establish a genuine issue of fact as to

whether she had suffered an adverse employment action.

Moreover, while Rinaldo has proffered a legitimate non-discriminatory

explanation for filing the internal affairs complaint—namely, that Conklin related

disparaging anecdotes about him to their mutual colleagues—“[c]learly sexist,

racist, or similarly discriminatory statements or actions” can provide direct

evidence of discriminatory intent sufficient to raise a jury question as to whether

such explanations are pretextual. Coghlan v. Am. Seafoods Co., 413 F.3d 1090,

1095 (9th Cir. 2004). Rinaldo testified in his deposition that he “may have”

referred to Conklin as a “cunt” and “dike,” and that “cunt” was a word he reserved

for “the [women] [he] dislike[s] the most.” In light of these “[c]learly sexist”

statements, there is a genuine issue of fact as to whether Rinaldo’s proffered

explanation for filing the internal affairs complaint was merely a pretext for

sexism. See id. The district court’s grant of summary judgment to Rinaldo on

Conklin’s Fourteenth Amendment discrimination claim is therefore reversed.

The parties shall each bear their own costs.

AFFIRMED in part, REVERSED in part, and REMANDED.

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