FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR J. BROWNFIELD, No. 09-35628
Plaintiff-Appellant, D.C. No.
v. 2:08-cv-03005-
CITY OF YAKIMA, RHW
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Chief District Judge, Presiding
Argued and Submitted
April 8, 2010—Seattle, Washington
Filed July 27, 2010
Before: Michael Daly Hawkins, Carlos F. Lucero,* and
N. Randy Smith, Circuit Judges.
Opinion by Judge Lucero
*The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
10815
10818 BROWNFIELD v. CITY OF YAKIMA
COUNSEL
John G. Bergmann, Helsell Fetterman, LLP, Seattle, Wash-
ington, and Lish Whitson, Lish Whitson, PLLC, Seattle,
Washington, for the plaintiff-appellant.
Jerry J. Moberg, Jerry Moberg & Associates, Ephrata, Wash-
ington, for the defendant-appellee.
OPINION
LUCERO, Circuit Judge:
Oscar J. Brownfield appeals the district court’s grant of
summary judgment in favor of the City of Yakima on his
claims for violations of the Americans with Disabilities Act
(“ADA”) and the Family Medical Leave Act (“FMLA”), and
for First Amendment retaliation. We hold that the City did not
violate Brownfield’s rights under the ADA by requiring a fit-
ness for duty exam (“FFDE”) after he repeatedly exhibited
emotionally volatile behavior while serving as a police offi-
cer, that his complaints regarding a coworker with whom he
shared duties did not address matters of public concern, and
that his FMLA claim lacks merit. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I
A
Brownfield began working as a police officer for the City
of Yakima Police Department (“YPD”) in November 1999.
BROWNFIELD v. CITY OF YAKIMA 10819
Approximately one year later, he suffered a closed head injury
in an off-duty car accident. After recovering from symptoms
including reduced self-awareness, Brownfield returned to full
duty in July 2001. He received positive performance evalua-
tions and was awarded several commendations over the next
three years.
B
In June 2004, Brownfield complained to his superior, Ser-
geant Amos, about Officer Dejournette, Brownfield’s commu-
nity service partner for Police Athletic League (“PAL”) and
Drug Abuse Resistance Education (“DARE”) matters. In an
interoffice memo titled “Unethical work practices,” Brown-
field wrote that Dejournette neglected his duties with respect
to the DARE program to work on fraud matters, forcing
Brownfield to complete tasks assigned to Dejournette. Brown-
field complained that he “was not recommended for the
SWAT team because of PAL and DARE. It seem[ed] unfair
that Dejournette [could] work on fraud stuff and disregard
DARE.” The memo further took issue with Dejournette’s use
of comp time and overtime. In particular, Brownfield was dis-
turbed that Dejournette was given twenty hours in “time
owed” because Lt. Merryman, another superior, requested
Brownfield “spend more hours on the development of PAL,
but ha[d] never offered [him] time owed as a reward.” Brown-
field continued, “If Lt. Merryman is giving Dejournette time
owed for work with PAL it would be a great dishonor to [a
third officer] and [Brownfield] since [they] give an enormous
amount of time to PAL without compensation.” Finally,
Brownfield argued that Dejournette and Merryman were too
friendly with each other.
Over the next year, Brownfield compiled notes on Dejour-
nette’s perceived shortcomings. These notes detail Dejour-
nette’s failure to complete reimbursement requests, grant
applications, and time sheets in a punctual manner, his contin-
ued use of overtime and comp time, and his generally “lacka-
10820 BROWNFIELD v. CITY OF YAKIMA
daisical approach to PAL duties.” In May 2005, after
Merryman reprimanded Brownfield for failing to schedule an
event, Brownfield forwarded his notes to YPD Chief Sam
Granato. Shortly after forwarding his notes, Brownfield com-
posed a second email to Granato complaining that Dejournette
closed the PAL facility early for illegitimate reasons.
On May 11, 2005, Brownfield, Merryman, and Amos met
to discuss Brownfield’s problems with Dejournette. Midway
through the meeting, Brownfield used an expletive in stating
that he needed to talk to a union representative. Despite an
order from Merryman to remain in the room, Brownfield
stood up and left. When Amos found Brownfield speaking to
another officer, Brownfield swore at him and demanded he
leave the room. Brownfield was temporarily suspended for
insubordination as a result of this incident. He later explained
that he had expected to meet with Granato and was concerned
that the meeting included Merryman, who was the subject of
some of his complaints. Brownfield stated that he was “con-
sumed” with anger and fear, and that he recognized that he
needed to take a break.
C
In September 2005, four incidents occurred that, together
with the above-described confrontation, led the YPD to refer
Brownfield for an FFDE. First, Brownfield engaged in a dis-
ruptive argument with another officer during muster. A ser-
geant reported that when Brownfield learned that YPD was
investigating him—but not the other officer—he became visi-
bly upset, was swearing, and was “just not really speaking full
sentences.”
Second, Brownfield reported that he felt “himself losing
control” during a traffic stop. According to a YPD sergeant,
Brownfield reported that a young child riding in a vehicle he
pulled over began taunting him during the stop. Brownfield
became upset, his legs began shaking, and he “wasn’t sure
BROWNFIELD v. CITY OF YAKIMA 10821
what he was going to do.” Brownfield calmed down when a
backup officer arrived.
Third, the YPD received a domestic violence call from
Brownfield’s estranged wife, Leticia.1 Leticia reported that
she and Brownfield began arguing when she stopped at his
apartment to see their children. As she was backing out of a
doorway, Brownfield allegedly struck her by slamming the
door. Brownfield disputed this version of events, and no
charges were filed.
Finally, a YPD officer reported that Brownfield made sev-
eral statements that caused him concern. The officer told a
YPD captain that Brownfield made comments such as “It’s
not important anyway,” “I’m not sure if it’s worth it,” and “It
doesn’t matter how this ends.” After hearing this report, Cap-
tain Copeland placed Brownfield on administrative leave and
ordered him to undergo an FFDE.
D
Dr. Decker conducted the FFDE on October 19, 2005. She
diagnosed Brownfield as suffering from “Mood Disorder due
to a General Medical Condition with mixed features,” which
manifested itself in “poor judgment, emotional volatility, and
irritability” and which could be related to Brownfield’s 2000
head injury. Dr. Decker concluded that Brownfield was unfit
for police duty and that his disability was permanent. Brown-
field was transferred from administrative to FMLA leave.
In December 2005, Brownfield was injured in another off-
duty car accident. He suffered minor back and neck injuries
that were treated by his primary care physician, Dr. Gondo.
On February 3, 2006, Dr. Gondo signed a release form stating
that Brownfield “[could] perform the physical activities
described in the job analysis” and referencing his FMLA
1
Brownfield was going through a divorce at the time.
10822 BROWNFIELD v. CITY OF YAKIMA
leave status. A report attached to the document described
Brownfield’s recent injuries, but not his preexisting psycho-
logical problems. YPD forwarded Dr. Decker’s report to Dr.
Gondo and asked whether he would defer to its findings, and
if not, to provide his mental health qualifications and basis for
disagreement. Dr. Gondo stated that he would not defer, but
failed to respond to the latter inquiries.
In May 2006, the City informed Brownfield that it would
hold a pre-termination hearing with respect to his employment
with the YPD. In response, Brownfield emailed a YPD cap-
tain reiterating his complaints about Dejournette and insinuat-
ing that Dejournette may have stolen PAL funds. Brownfield
advised: “I don’t think it would be a good choice for the chief
to fire me prior to the independent audit, but that’s just me.”
Prior to the hearing, Brownfield obtained a second opinion
from a Dr. Mar. Dr. Mar agreed with Dr. Decker that Brown-
field was unfit for duty due to his “emotional, cognitive,
behavioral, and physical problems.” However, Dr. Mar
believed that Brownfield’s problems might be amenable to
treatment. The City continued Brownfield’s pre-termination
hearing pending treatment and further evaluation by Dr. Mar
and Dr. Decker.
In December 2006, Dr. Mar reported that Brownfield was
progressing well and would be able to return to duty at an
unspecified date with continued treatment. Brownfield
refused to return to Dr. Decker, leading YPD to order an
FFDE with another doctor, Dr. Ekemo. Brownfield attended
an initial exam in February 2007, and Dr. Ekemo scheduled
a second visit with Brownfield to complete his evaluation.
However, Brownfield refused to attend the follow-up session.
The City informed Brownfield that he would likely be ter-
minated unless he cooperated in the FFDE, but Brownfield
again refused. A pre-termination hearing was held on March
19, 2007. City Manager Richard Zais determined that Brown-
BROWNFIELD v. CITY OF YAKIMA 10823
field was insubordinate and unfit for duty. Brownfield was
terminated on April 10, 2007.
E
On January 8, 2008, Brownfield filed suit in federal court
alleging violations of the ADA and FMLA, First Amendment
retaliation, and related state law claims. The district court
granted summary judgment in favor of the City, dismissed
Brownfield’s federal claims with prejudice, and declined to
exercise supplemental jurisdiction over the state law claims.
Brownfield appealed.
II
We review a district court’s grant of summary judgment de
novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d
1013, 1019 (9th Cir. 2004). In doing so, “[w]e must deter-
mine, 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.” EEOC v. Luce, Forward, Ham-
ilton & Scripps, 345 F.3d 742, 746 (9th Cir. 2003).
A
[1] Brownfield alleges that the City violated the ADA by
requiring him to submit to the FFDEs. Under 42 U.S.C.
§ 12112(d)(4)(A), an employer may not require a medical
examination to determine whether an employee is disabled
“unless such examination or inquiry is shown to be job-
related and consistent with business necessity.” In interpreting
the “business necessity” standard in another ADA context, we
have cautioned that it “is quite high, and is not to be confused
with mere expediency.” Cripe v. City of San Jose, 261 F.3d
877, 890 (9th Cir. 2001) (quotations and alteration omitted)
(discussing “business necessity” with respect to qualification
standards).
10824 BROWNFIELD v. CITY OF YAKIMA
Relying on Yin v. California, 95 F.3d 864 (9th Cir. 1996),
Brownfield contends that the business necessity standard can-
not be met without a showing that an employee’s job perfor-
mance has suffered as a result of health problems. We
disagree. In Yin, we considered only “whether the state may
compel an employee with a prolonged and egregious history
of absenteeism and a record of on-the-job illnesses to undergo
a fitness-for-duty medical examination.” Id. at 866. Faced
with an employee whose job performance was affected by
medical issues, we held that “when health problems have had
a substantial and injurious impact on an employee’s job per-
formance, the employer can require the employee to undergo
a physical examination designed to determine his or her abil-
ity to work.” Id. at 868. We did not hold that these are the
only circumstances that constitute business necessity.
[2] Although this circuit has yet to address whether an
employer may preemptively require a medical examination,
other courts have answered in the affirmative. In Watson v.
City of Miami Beach, 177 F.3d 932 (11th Cir. 1999), the Elev-
enth Circuit considered the legality of an FFDE for a police
officer who displayed “unusually defensive and antagonistic
behavior towards his co-workers and supervisors,” but whose
job performance was otherwise satisfactory. Id. at 934. Rec-
ognizing that “[p]olice departments place armed officers in
positions where they can do tremendous harm if they act irra-
tionally,” the court held that the ADA does not “require a
police department to forego a fitness for duty examination to
wait until a perceived threat becomes real or questionable
behavior results in injuries.” Id. at 935; see also Cody v.
CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th
Cir. 1998) (“Employers need to be able to use reasonable
means to ascertain the cause of troubling behavior without
exposing themselves to ADA claims . . . .”).
Several district courts have reached similar conclusions. In
Mickens v. Polk County School Board, 430 F. Supp. 2d 1265
(M.D. Fla. 2006), the court noted that an employer could sub-
BROWNFIELD v. CITY OF YAKIMA 10825
ject itself to liability for negligent hiring or retention by turn-
ing a blind eye toward an employee’s erratic behavior. Id. at
1280. It held that, “[a]s a matter of law, a school board’s psy-
chological examination of an employee is both job-related and
consistent with a business necessity if that employee exhibits
even mild signs of paranoid or agitated behavior that causes
the school administration to question the employee’s ability to
perform essential job duties.” Id. (quotations omitted). Simi-
larly, in Miller v. Champaign Community Unit School District
Number 4, 983 F. Supp. 1201 (C.D. Ill. 1997), the court con-
doned a psychiatric examination of an elementary school cus-
todian. Focusing on the employee’s daily interactions with
school-aged children, the court ruled that “a psychiatric exam-
ination is job-related and consistent with business necessity in
any case where an elementary school employee exhibits para-
noid or agitated behavior that causes the school administration
to be concerned about the personal safety of those in contact
with the employee.” Id. at 1206-07.
We agree with these courts that prophylactic psychological
examinations can sometimes satisfy the business necessity
standard, particularly when the employer is engaged in dan-
gerous work. However, we must be keen to guard against the
potential for employer abuse of such exams. Section
12112(d)(4)(A) prohibits employers from using medical
exams as a pretext to harass employees or to fish for non-
work-related medical issues and the attendant “unwanted
exposure of the employee’s disability and the stigma it may
carry.” EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089,
1094 n.8 (6th Cir. 1998).
[3] We reiterate that the business necessity standard “is
quite high, and is not to be confused with mere expediency.”
Cripe, 261 F.3d at 890 (quotations and alteration omitted).
Nevertheless, we hold that the business necessity standard
may be met even before an employee’s work performance
declines if the employer is faced with
10826 BROWNFIELD v. CITY OF YAKIMA
significant evidence that could cause a reasonable
person to inquire as to whether an employee is still
capable of performing his job. An employee’s
behavior cannot be merely annoying or inefficient to
justify an examination; rather, there must be genuine
reason to doubt whether that employee can perform
job-related functions.
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.
1999) (quotation omitted); see also Conroy v. N.Y. State Dep’t
of Corr. Servs., 333 F.3d 88, 98 (2d Cir. 2003) (medical
examination permissible “when the employer can identify
legitimate, non-discriminatory reasons to doubt the employ-
ee’s capacity to perform his or her duties”).
[4] As the “reasonable person” language suggests, this test
is objective. See Tice v. Centre Area Transp. Auth., 247 F.3d
506, 518 (3d Cir. 2001) (“The ADA’s requirement that [a
medical examination] be consistent with business necessity is
an objective one.”). The employer bears the burden of demon-
strating business necessity. See Thomas v. Corwin, 483 F.3d
516, 527 (8th Cir. 2007); Conroy, 333 F.3d at 97.
[5] We agree with the district court that the City had an
objective, legitimate basis to doubt Brownfield’s ability to
perform the duties of a police officer. Undisputed facts show
that Brownfield exhibited highly emotional responses on
numerous occasions in 2005, four occurring in a single month
immediately prior to his referral: He swore at a superior after
abruptly leaving a meeting despite a direct order to the con-
trary; he engaged in a loud argument with a coworker and
became extremely angry when he learned the incident was
being investigated; he reported that his legs began shaking
and he felt himself losing control during a traffic stop; his
wife called police to report a domestic altercation with
Brownfield; and he made several comments to a coworker
such as “It doesn’t matter how this ends.”
BROWNFIELD v. CITY OF YAKIMA 10827
[6] Brownfield attempts to explain away each incident by
providing background facts suggesting his reactions were
entirely reasonable and by challenging the third-party reports
as factually inaccurate, but he does not dispute that he reacted
as described or that the third-party reports were made to the
YPD. Although a minor argument with a coworker or isolated
instances of lost temper would likely fall short of establishing
business necessity, Brownfield’s repeated volatile responses
are of a different character. Moreover, our consideration of
the FFDEs’ legitimacy is heavily colored by the nature of
Brownfield’s employment. Police officers are likely to
encounter extremely stressful and dangerous situations during
the course of their work. See Watson, 177 F.3d at 935 (“Police
departments place armed officers in positions where they can
do tremendous harm if they act irrationally.”). When a police
department has good reason to doubt an officer’s ability to
respond to these situations in an appropriate manner, an FFDE
is consistent with the ADA. Reasonable cause to question
Brownfield’s ability to serve as a police officer was present
here.2
B
[7] Brownfield also appeals the district court’s dismissal of
his First Amendment retaliation claim. Although public
employees “do not shed their First Amendment rights simply
because they are employed by the government,” courts con-
sidering a claim such as Brownfield’s must carefully balance
“the interests of the public employee, as a citizen, in com-
menting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the pub-
2
Brownfield also argues that he was discharged in retaliation for pro-
tected ADA activity, i.e., refusing an unlawful request that he submit to
a medical examination. However, Brownfield concedes that his ADA
retaliation claim must stand or fall with his § 12112(d)(4)(A) claim.
Because we conclude that the referral was not unlawful, Brownfield’s
retaliation claim also fails.
10828 BROWNFIELD v. CITY OF YAKIMA
lic services it performs through its employees.” Huppert v.
City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009) (quota-
tion and alteration omitted). To conduct this balancing, we
employ a sequential five-step test, considering:
(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 plain-
tiff’s protected speech was a substantial or motivat-
ing factor in the adverse employment action; (4)
whether the state had an adequate justification for
treating the employee differently from other mem-
bers of the general public; and (5) whether the state
would have taken the adverse employment action
even absent the protected speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
The district court determined that Brownfield failed at the
first step of the Eng test. Whether an employee’s speech
addresses a matter of public concern is a question of law, id.,
that “must be determined by the content, form, and context of
a given statement, as revealed by the whole record,” Connick
v. Myers, 461 U.S. 138, 147-48 (1983).
[8] This court has broadly described two categories of
speech: that which “can fairly be considered to relate to any
matter of political, social, or other concern to the communi-
ty,” Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.
1995) (quotation omitted); and that which “deals with individ-
ual personnel disputes and grievances” such that “the infor-
mation would be of no relevance to the public’s evaluation of
the performance of governmental agencies,” McKinley v. City
of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). The former is
protected; the latter is not. “[T]he essential question is
whether the speech addressed matters of ‘public’ as opposed
to ‘personal’ interest.” Desrochers v. City of San Bernardino,
BROWNFIELD v. CITY OF YAKIMA 10829
572 F.3d 703, 709 (9th Cir. 2009) (quoting Connick, 461 U.S.
at 147).
[9] We conclude that it was proper for the district court to
hold that the speech at issue was decidedly personal. Brown-
field complained that his community services partner, Dejour-
nette, was lazy and incompetent and that he was forced to
complete duties assigned to Dejournette. Brownfield also
claimed that his supervisor, Merryman, was too friendly with
Dejournette, and that Merryman unfairly awarded comp time
and preferable assignments to Dejournette rather than to
Brownfield. This is the stuff of “internal power struggles
within the workplace . . . which is of no interest beyond the
employee’s bureaucratic niche.” Desrochers, 572 F.3d at 710
(quotation omitted); see also Havekost v. U.S. Dep’t of Navy,
925 F.2d 316, 319 (9th Cir. 1991) (“These matters are the
minutiae of workplace grievances.”).
Brownfield cites to several cases in which we have
described the bounds of public concern in expansive terms.
For example, in Gillette v. Delmore, 886 F.2d 1194 (9th Cir.
1989), we held that “the manner in which police and fire
fighters performed their duties on a particular occasion” was
a matter of public concern because such information could
“raise questions concerning whether persons should be taken
to the hospital against their will, what notice they should
receive, and what degree of force is appropriate.” Id. at 1197,
1198. Similarly, in Hyland v. Wonder, 972 F.2d 1129 (9th Cir.
1992), we concluded that the “incompetence of public law
enforcement officials at Juvenile Hall” was a matter of public
concern. Id. at 1137; see also Gilbrook v. City of Westminster,
177 F.3d 839, 866 (9th Cir. 1999) (“[A]n opinion about the
preparedness of a vital public-safety institution . . . goes to the
core of what constitutes speech on matters of public con-
cern.”); Allen v. Scribner, 812 F.2d 426, 431 (9th Cir. 1987)
(“[T]he competency of . . . management as well as the effi-
cient performance of [government] duties” are matters of pub-
lic concern); McKinley, 705 F.2d at 1114 (“[T]he competency
10830 BROWNFIELD v. CITY OF YAKIMA
of [a] police force is surely a matter of great public con-
cern.”).
Although we acknowledged this “broad language” in Des-
rochers, we clarified “that a simple reference to government
functioning” does not “automatically qualif[y] as speech on a
matter of public concern.” 572 F.3d at 711; see also Roth v.
Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988) (“We
do not necessarily suggest that all speech concerning public
monies or government inefficiency automatically deserves
protection.”) overruled in part by Garcetti v. Ceballos, 547
U.S. 410, 417 (2006). To the contrary, “the content of the
communication must be of broader societal concern. The
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 San Francisco, 109 F.3d 578, 585
(9th Cir. 1997).
Brownfield’s communications regarding Dejournette and
Merryman fail this test. Nothing in the statements at issue
would be of even modest relevance to the public in evaluating
the functioning of the YPD. They simply concern the alloca-
tion of work between Brownfield and his partner in running
a PAL facility. Cf. Gilbrook, 177 F.3d at 866 (statements call-
ing into question a “fire department’s ability to respond effec-
tively to life-threatening emergencies” addressed a matter of
public concern); Hyland, 972 F.2d at 1138 (communications
were public rather than personal in part because they “did not
concern [plaintiff’s] dissatisfaction with his own position or
on-the-job treatment”); Gillette, 886 F.2d at 1196, 1198 (fire-
man’s complaints regarding police use of excessive force
addressed a matter of public concern). Brownfield frames his
complaints as uncovering “irregularities” in PAL bank
accounts, but his characterization is inconsistent with the
record. At worst, Brownfield’s communications show that a
PAL check bounced due to Dejournette’s failure to transfer
funds from a sub-account. However, Brownfield did not claim
BROWNFIELD v. CITY OF YAKIMA 10831
that Dejournette had committed any type of malfeasance, and
the overdraft charge was refunded.3
We also acknowledge the context of Brownfield’s speech:
He complained only to his superiors concerning individuals
with whom he shared duties or who supervised him. Cf. Gil-
brook, 177 F.3d at 866 (plaintiff made statements to the
press); Allen, 812 F.2d at 431 (communications at issue made
to public); McKinley, 705 F.2d at 1115 (“[P]laintiff’s speech
was specifically and purposefully directed to the public
. . . .”). “In a close case, . . . the fact that it was made because
of a grudge or other private interest or to co-workers rather
than to the press may lead the court to conclude that the state-
ment does not substantially involve a matter of public con-
cern.” Desrochers, 572 F.3d at 710 (quotation omitted); see
also Gilbrook, 177 F.3d at 866 (“An employee’s motivation
and the audience chosen for the speech also are relevant to the
public-concern inquiry.”).
[10] Looking to the “content, form, and context of”
Brownfield’s complaints, Connick, 461 U.S. at 147-48, we
agree with the district court that the speech addressed matters
of personal rather than public concern, see Desrochers, 572
F.3d at 709. Accordingly, the speech was not protected, and
summary judgment in favor of the City was proper.
C
Finally, Brownfield argues that the district court erred in
dismissing his FMLA claim. Under FMLA regulations, “[n]o
second or third opinions on a fitness-for-duty certification
may be required.” 29 C.F.R. § 825.312(b). Brownfield con-
tends the City violated this provision by requiring him to sub-
3
After he was found to be unfit for duty, and just after he received a pre-
termination notice, Brownfield alleged that Dejournette may have stolen
funds from PAL. Because of the timing of the allegation, however, it
could not have prompted YPD’s actions.
10832 BROWNFIELD v. CITY OF YAKIMA
mit to an FFDE after his primary care physician, Dr. Gondo,
allegedly cleared Brownfield for duty. We disagree. No rea-
sonable juror could misread Dr. Gondo’s letter as stating that
Brownfield had recovered from the psychological issues that
rendered him unfit for duty. Dr. Gondo’s transmittal refers to
the relatively minor injuries Brownfield suffered in a Decem-
ber 2005 car accident and states that “the injured worker can
perform the physical activities described in the job analysis.”
Dr. Gondo makes no mention of Brownfield’s psychological
issues.
[11] After the City received Dr. Gondo’s letter, it
requested that he defer to Dr. Decker’s diagnosis or state his
psychological credentials and basis for disagreement.
Although Dr. Gondo responded that he would not acquiesce,
he did not purport to pass on Brownfield’s psychological
problems. Rather than insisting on a “second or third opin-
ion,” 29 C.F.R. § 825.312(b), the City’s referrals of Brown-
field to Drs. Mar and Ekemo after Dr. Decker found him
permanently unfit for duty simply provided Brownfield addi-
tional opportunities to obtain a proper clearance. The FMLA
does not impose liability for such conduct.
Brownfield also asserts a claim for FMLA retaliation prem-
ised upon his theory that Dr. Gondo certified him for return
from FMLA leave. Because we reject this theory, it follows
that his retaliation claim lacks merit.4
4
Brownfield argues in passing that the City also violated the FMLA by
transmitting Dr. Decker’s report to Dr. Gondo. He asserts that this was a
“prima facie violation of the FMLA,” but does not explain how this viola-
tion harmed him. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 89 (2002) (FMLA’s non-disclosure provision “provides no relief
unless the employee has been prejudiced by the violation: The employer
is liable only for compensation and benefits lost by reason of the viola-
tion”). In any event, we decline to address this argument because it was
inadequately briefed. “We review only issues which are argued specifi-
cally and distinctly in a party’s opening brief. We will not manufacture
arguments for an appellant, and a bare assertion does not preserve a claim,
particularly when, as here, a host of other issues are presented for review.”
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citations omitted).
BROWNFIELD v. CITY OF YAKIMA 10833
III
For the foregoing reasons, the judgment of the district court
is AFFIRMED.