Wendy Thomas and her labor union filed suit against the County of Riverside and various County employees claiming she was retaliated against for exercising her First Amendment rights.  The district court granted summary judgment in favor of Defendants, and Thomas appealed.

In a First Amendment retaliation case, a plaintiff must provide evidence that she was subjected to materially adverse employment actions that are "reasonably likely to deter" protected speech. Minor acts such as bad-mouthing are usually insufficient to constitute an adverse action.

Thomas presented evidence of more than 30 alleged adverse employment actions, but the district court dismissed all of them as "petty workplace gripes" that did not rise to the level of an adverse employment action.  For example, Thomas alleged that she was removed from a community college teaching position which cost her approximately $9,000 per year; she was prohibited from using break time to travel between work sites and she was removed from an unpaid position with the Uniform Committee.  The trial court concluded these alleged actions as insufficient to constitute adverse actions.

The Ninth Circuit Court of Appeals disagreed with the trial court and held that a reasonable juror could find that these adverse actions, even if viewed in isolation, could deter protected speech.  Further, there was evidence that some of the actions were taken as part of a more general campaign, and thus may have greater materiality than if viewed in isolation.  Thus, the Court held that, at minimum, the case should be remanded so that the district court could analyze the incidents in greater detail.

The Ninth Circuit also looked at six additional alleged adverse actions that were dismissed by the district court– three involuntary transfers and three internal investigations against Thomas – and determined that only two of these actions should have been dismissed on summary judgment. 

With regards to the involuntary transfers, Defendants offered various non-retaliatory business justifications for the transfers. Thomas presented evidence that the transfers came shortly after her protected speech, that her employer expressed opposition to the speech, and that the business justifications were pretextual.  The Court held that any one of these showings was sufficient to survive summary judgment because it presented a genuine factual dispute. 

As for the investigations, the County presented evidence that it would have initiated two of the investigations against Thomas regardless of whether she engaged in protected speech.  One investigation was initiated because an employee alleged that Thomas and other County employees fabricated negative performance reviews in order to push her out of the job.  The second investigation was initiated because Thomas improperly accessed and removed files, an undisputed violation of department policy.  Thus, the district court properly found no plausible inference of retaliation as to these two investigations and the Ninth Circuit agreed.

However, the third investigation presented a factual dispute. Thomas's supervisor initiated an investigation for "rude and discourteous emails," but conceded that no words or phrases in the emails violated policy.  Only the tone of the emails was objectionable.  Because a reasonable juror could have found this justification was subjective, thin, and pretext for retaliation, this issue should have survived summary judgment.

Note:

The Ninth Circuit relied upon prior Supreme Court cases which held that even minor acts may be sufficient to deter a reasonable employee from exercising his or her free speech rights.  One of the interesting issues addressed by the Ninth Circuit is whether the investigations against Thomas constituted adverse actions.  Though the investigations themselves were sufficient to constitute adverse actions, the Ninth Circuit held that the County demonstrated it would have undertaken two of the investigations even in the absence of any protected speech on Thomas's part because the investigations were triggered by third party complaints or a clear rules violation.  However, the last investigation survived summary judgment since the County was not able to articulate a compelling basis for the investigation.

Retaliation claims often are based, in part, upon an allegation that a government agency initiated an investigation against an employee for retaliatory reasons.  This case illustrates the importance of thoroughly documenting the reasons for initiating an investigation and for establishing a legitimate basis for initiating an investigation, such as third-party complaints, substantial evidence, or other credible information.

Thomas v. County of Riverside (9th Cir. 2014) __ F.3d __ [2014 WL 4056546].