NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC H. KARDELL, No. 14-35817
Plaintiff-Appellant, D.C. No. 6:13-cv-00736-MC
v.
MEMORANDUM*
LANE COUNTY; LIANE RICHARDSON;
ALEX GARDNER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted May 9, 2017
Portland, Oregon
Before: BYBEE and HURWITZ, Circuit Judges, and RAKOFF,** Senior District
Judge.
In this suit, Marc Kardell claims that he was fired from his position in the
Lane County Counsel’s office in retaliation for speech protected by the First
Amendment and in violation of an Oregon whistleblower statute. He also claims
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
that he was denied procedural due process in connection with the termination. The
district court granted summary judgment to defendants Lane County, Liane
Richardson, and Alex Gardner (collectively “the County”). We have jurisdiction of
Kardell’s appeal under 28 U.S.C. § 1291. We affirm as to the procedural due process
claim, but vacate the summary judgment on the First Amendment and whistleblower
claims and remand for further proceedings.
1. To establish First Amendment retaliation, Kardell was required to
demonstrate that his speech addressed an issue of public concern, was made in the
capacity of a private citizen, and was a substantial or motivating factor in an adverse
employment decision. Eng v. Cooley, 552 F.3d 1062, 1070–71 (9th Cir. 2009). If
Kardell met this burden, the County had the burden to establish that legitimate
administrative interests justified restricting Kardell’s speech or that it would have
made the same employment decision absent his speech. Id. at 1071–72.
2. Kardell claims he was fired in retaliation for statements to Human
Resources about his superior. The district court, relying mainly on Kardell’s
description of his statements in his declaration, held that the statements did not
address an issue of public concern. But Kardell’s declaration states that he was
concerned that his superior was “spending money to conduct outside investigations
of meritless allegations” and that he “brought this matter to HR.” Viewed in the
light most favorable to Kardell, see Ellins v. City of Sierra Madre, 710 F.3d 1049,
2
1056 (9th Cir. 2013), the declaration is evidence that Kardell spoke on a matter of
public concern, see Johnson v. Multnomah Cty., 48 F.3d 420, 425–26 (9th Cir.
1995). The district court therefore erred in granting summary judgment on this
claim.1
3. Kardell also contends that he was fired in retaliation for an email to the
Board of County Commissioners about a coworker’s retirement. The district court
correctly held that the email did not address a matter of public concern. See Connick
v. Myers, 461 U.S. 138, 148 (1983) (holding that speech which “reflect[s] one
employee’s dissatisfaction with [an employment decision] and an attempt to turn
that displeasure into a cause célèbre” is not of public concern).
4. The district court held that Kardell’s whistleblowing claim “fails for the
same reasons the retaliation claim fails.” Because we vacate summary judgment on
the retaliation claim with respect to the statements to Human Resources, we also
vacate summary judgment on the whistleblowing claim arising from those
statements.
5. The district court correctly rejected Kardell’s procedural due process
claim. “The essential requirements of due process . . . are notice and an opportunity
1
We decline to address in the first instance whether the County is entitled to
summary judgment on the other Eng factors or whether the individual defendants
are entitled to qualified immunity. The district court may address these issues on
remand.
3
to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Kardell received adequate notice on May 3, 2012, that his position was being
eliminated as of May 18, 2012. Kardell concedes that a pretermination hearing is
not required when an employee is subject to a bona fide layoff, but claims that a
hearing was required here because the purported layoff was pretextual. This claim
fails, because Kardell never requested such a hearing. See Perry v. Sinderman, 408
U.S. 593, 603 (1972) (public employer must “grant a hearing at [the employee’s]
request” if employee has property interest in continued employment); cf. Levine v.
City of Alameda, 525 F.3d 903, 905–06 (9th Cir. 2008) (public employee who
“requested a pretermination hearing regarding his lay off” was entitled to a hearing).
AFFIRMED in part; VACATED and REMANDED in part. Each party
shall bear its own costs.
4