Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1987)

No. 89-16491.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and NOONAN, Circuit Judges, JONES,*  District Judge.

James Barlow appeals the district court's order granting summary judgment in favor of defendants, Sheriff Jim Vick and Lyon County. We affirm.

We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a district court's grant of summary judgment. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313 (9th Cir. 1989) (citation omitted).

FACTS

Barlow was hired by the Lyon County Sheriff's Department in July of 1983. In August of 1985, Barlow was promoted to corporal of the jail division.

Barlow was a member of the Lyon County Sheriff Employees' Association (Employees' Association). The Employees' Association operated under the terms of a collective bargaining agreement (Agreement) with Lyon County and the sheriff.

In January of 1987, Jim Vick replaced Gene Wilhelm as Sheriff of Lyon County.

In February of 1987, Barlow experienced breathing difficulties at work. Barlow subsequently missed ten days of work in February and ten days of work in March.

On May 18, 1987, Vick advised Barlow that Barlow's accrued sick leave would be fully used after May 19th. Vick further advised that Barlow and Vick should meet to discuss Barlow's employment status. This meeting did not occur.

The Lyon County Comptroller informed Barlow that Barlow was fired as of May 21, 1987. No hearing was held before or after Barlow's termination. Although the Agreement provided Barlow with an opportunity to grieve his termination, Barlow did not avail himself of this procedure.

Barlow argues that he has a constitutionally protected property interest in continued employment and that Vick unconstitutionally fired him in retaliation for exercising his first amendment rights.

DUE PROCESS

An employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the benefit of continued employment. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Laws, rules, or understandings derived from independent sources, such as state law, create such claims of entitlement. Id.

"A state law which limits the grounds upon which an employee may be discharged, such as conditioning dismissal on a finding of cause, creates a reasonable expectation of continued employment, and thus a protected property right." Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988) citing Dorr v. County of Butte, 795 F.2d 875, 878 (9th Cir. 1986). "Where state employees serve at the will of the appointing authority, however, there is no such reasonable expectation of continued employment, and thus no property right." Id.

When Vick fired Barlow, NRS 248.040(3) provided " [e]xcept as provided in subsections 4 and 5, the sheriff may remove his deputy or deputies at pleasure." According to the rule in Brady, supra, NRS 248.040(3) does not create a claim of entitlement to continued employment, subject to subsections (4) and (5).

Neither subsection (4) nor (5) of NRS 248.040 apply to Barlow. NRS 248.040(3) gives Sheriff Vick discretion to fire Barlow at will. Barlow does not have a legitimate claim of entitlement to continued employment.

Pursuant to NRS 288.150,1  the Employees' Association entered into the Agreement. The Agreement contains criteria, standards, procedures and restricts the grounds on which an employee may be discharged by requiring that an employer can only dismiss an employee for cause. According to the rule in Brady, supra, the Agreement creates a claim of entitlement to continued employment.

To resolve the apparent conflict between NRS 248.040(3) and the Agreement, article 44 of the Agreement states:

[i]t is not the intention of either party hereto to violate any laws, rulings, or regulations of any governmental authority or agency having jurisdiction of the subject matter of this Agreement; and the parties agree that, in the event that any provisions of the Agreement are finally held or determined to be illegal or void as being in contravention of such laws, rulings or regulations, nevertheless, the remainder of the Agreement shall remain in full force and effect unless the part so found to be void cannot be separated from the remaining portion of this Agreement are held to be illegal or void, they will then promptly enter into lawful negotiations concerning the substance thereof.

The intent of the parties to the Agreement is clear. NRS 248.040(3) prevails over the Agreement.

Barlow's other arguments in support of a constitutionally protected property interest in continued employment also fail. NRS 248.040(3) clearly, without challenge, provides that the sheriff may remove his deputies at pleasure. The district court properly granted summary judgment on this issue.

RETALIATORY DISCHARGE

A plaintiff "may ... establish a claim ... if the decision ... [to fire] him was made by reason of his exercise of constitutionally protected [f]irst [a]mendment freedoms." Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283 (1977). In Mt. Healthy, the Supreme Court developed a three-part test to determine if an employee's termination is in retaliation for the employee's exercise of constitutionally protected rights:

1. Plaintiff must show that his conduct was constitutionally protected;

2. Plaintiff must establish that his conduct was a substantial or motivating factor in his employer's decision; and

3. Once plaintiff has met this burden, defendant must show that he would have reached the same decision regarding plaintiff's employment in the absence of the constitutionally protected conduct.

Id. at 287.

Barlow claims that Vick removed him from his position as deputy in retaliation for Barlow's support of the incumbent sheriff, Gene Wilhelm. Barlow also claims Vick fired him in retaliation for Barlow's criticism of new jail policies instituted by Vick shortly after Vick took office.

The Constitution protects an employee's assertion of political patronage. Elrod v. Burns, 427 U.S. 347 (1976). The Constitution protects Barlow's support for incumbent Gene Wilhelm.

The Constitution also protects an employee's speech that concerns an issue of public concern. Pickering v. Board of Educ., 391 U.S. 563 (1968). A court determines whether an employee's speech addresses a matter of public concern by the context, content and form of the statement. Connick v. Myers, 461 U.S. 138, 147-48 (1983). Plaintiff's criticisms of defendant Vick's jail policies were that the policies violated prisoners' civil rights. Matters involving the violation of civil rights by an elected official are issues of public concern protected by the first amendment. The Constitution protects Barlow's criticisms of Vick's jail policies.

The second part of the Mt. Healthy test requires a plaintiff to establish that his exercise of constitutionally protected conduct was a substantial or motivating factor in defendant's decision to fire plaintiff. In Barlow's affidavit, he states that it is his opinion that Vick fired him in retaliation for Barlow's support for Gene Wilhelm and for his criticism of Vick's jail policies. Barlow does not base his opinion on anything other than his beliefs.

Fed. R. Civ. P. 56(e) requires that the nonmoving party in a motion for summary judgment go beyond the pleadings and set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Barlow's affidavit only contains opinion evidence that is insufficient to establish a genuine issue for trial. See Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir. 1989). The district court properly granted summary judgment on this issue.

CONCLUSION

The decision of the district court is AFFIRMED.

 *

The Honorable Robert E. Jones, United States District Court Judge for the District of Oregon, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

NRS 288.150 requires local government employers to negotiate in good faith with recognized employee organizations