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Stilwell v. City of Williams

United States Court of Appeals, Ninth Circuit

August 5, 2016

Ronnie D. Stilwell; Courtney Stilwell, husband and wife, Plaintiffs-Appellants,
City of Williams, an Arizona Municipal Corporation; Joseph Duffy, Interim City Manager of the City of Williams; Lyda Duffy, husband and wife; Raymond Glenn Cornwell, former Public Works Director of the City of Williams; Elsie Cornwell, husband and wife; Billy Pruitt; Bessie Pruitt, husband and wife; Tracy Fuller; Kathy Fuller, husband and wife, Defendants-Appellees.

          Argued and Submitted March 14, 2016 San Francisco, California

         Appeal from the United States District Court No. 3:12-cv-08053-HRH for the District of Arizona H. Russel Holland, District Judge, Presiding

          Charles Anthony Shaw (argued), Law Offices of Charles Anthony Shaw, PLLC, Prescott, Arizona, for Plaintiffs-Appellants.

          Kenneth H. Brendel (argued), Mangum, Wall, Stoops & Warden, PLLC, Flagstaff, Arizona, for Defendants-Appellees.

          Before: Ferdinand F. Fernandez, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.


         Civil Rights/Age Discrimination in Employment Act

         The panel reversed the district court's summary judgment and remanded in an action brought by a City of Williams employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination.

         The panel first held that plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern.

         The panel held that the retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff's 42 U.S.C. § 1983 First Amendment retaliation claim. The panel held that the disparities between the rights and protections of the ADEA's retaliation provision and the First Amendment as enforced through § 1983 - including differences in who may sue and be sued, the standards for liability, and the damages available - which made the ADEA's protections narrower than the First Amendment's in some respects, led the panel to conclude that Congress did not intend to preclude § 1983 First Amendment retaliation suits when it enacted the ADEA.

         Dissenting, Judge Fernandez stated that this court was bound by Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009), which held that "the ADEA precludes the assertion of age discrimination in employment claims, even those seeking to vindicate constitutional rights, under § 1983."


          FRIEDLAND, Circuit Judge.

         Plaintiff-Appellant Ronnie Stilwell sued his city employer for retaliation, alleging that he was fired for planning to testify against the City in a lawsuit relating to age discrimination. Stilwell asserted that his termination violated both the First Amendment and the retaliation provision of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d). The question we must answer is whether the retaliation provision of the ADEA precludes a plaintiff such as Stilwell from bringing a First Amendment retaliation claim under 42 U.S.C. § 1983. We hold that it does not.


         Stilwell became Superintendent of the Water Department of the City of Williams, Arizona (the "City"), in 1991, and he served in that position until his termination in January 2011. It is the events surrounding his termination that gave rise to the instant lawsuit.[1] Those events began when Stilwell became aware of a lawsuit against the City filed by Carolyn Smith, the City's former Human Resources Director (the "Smith suit"). Smith alleged that the City retaliated against her in violation of the retaliation provision of the ADEA, after she complained about age discrimination against a different city employee, Glen Cornwell. In August 2009, Stilwell signed a sworn statement that supported Smith's ADEA retaliation claim, and agreed to testify in Smith's lawsuit. Later that month, a formal disclosure regarding Stilwell's involvement as a witness was served upon the City as well as on then-Assistant City Manager Joe Duffy.

         Stilwell alleges that following this agreement to testify, Duffy took numerous negative actions towards him that constituted retaliation. Between August and December 2009, Duffy sent Stilwell emails with negative comments, including emails attacking his job performance. In December 2009, Duffy became Interim City Manager and met with Stilwell to discourage him from testifying in the Smith suit.

         In June 2010, the judge in the Smith suit denied a motion from the City Attorney to prevent Stilwell's testimony. Duffy then had another meeting with Stilwell, in which Duffy stated that he wanted Stilwell to find a way out of testifying.

         In September 2010, at a meeting with another city department head, the issue of Stilwell's anticipated testimony for the Smith suit arose again. Stilwell explained that he would tell the truth if he was called to the stand, including by describing how Duffy had retaliated against Smith. Duffy and Stilwell subsequently had another confrontation in which Duffy expressed displeasure about Stilwell's agreeing to testify. Following that confrontation, Duffy began to express additional concerns about Stilwell's job performance.

         In October 2010, Duffy continued to find problems with Stilwell's job performance, including criticizing Stilwell's handling of a situation in which the City's water turned brown. Duffy also sent the City Council a memo accusing Stilwell of neglecting security concerns at the City's water plant. Stilwell asserted that these issues were not his fault.

         In December 2010, Stilwell was placed on paid administrative leave, pending an investigation into Duffy's allegations. In January 2011, the City terminated Stilwell's employment based on the results of that investigation.

         Stilwell sued the City and Duffy, among others, in the United States District Court for the District of Arizona. The suit asserted sixteen claims, including retaliation in violation of the ADEA and the First Amendment.[2] Stilwell moved for partial summary judgment, and Defendants cross-moved for summary judgment as to all claims. The district court granted Defendants' motion, and Stilwell appealed the rulings on eight claims.[3]


         The district court granted summary judgment in favor of Defendants on Stilwell's § 1983 First Amendment claim on the sole ground that the retaliation provision of the ADEA, 29 U.S.C. § 623(d), precluded a § 1983 First Amendment retaliation claim such as Stilwell's. We review the district court's decision de novo. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Applying the framework set forth in Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), for determining the preclusive effect of a statute on § 1983 actions to remedy constitutional violations, we hold that Stilwell's § 1983 First Amendment lawsuit is not precluded.


         As a threshold matter, before turning to the preclusion question, we reject the City's argument that Stilwell's speech was not "speech as a citizen on a matter of public concern" and so fell outside the First Amendment's protections. Lane v. Franks, 134 S.Ct. 2369, 2378 (2014). Stilwell's sworn statement and imminent testimony were "outside the scope of his ordinary job duties, " which means that he was engaged in "speech as a citizen for First Amendment purposes." Id. (explaining that an employee's testimony in response to a subpoena about his employer's practices was "outside the scope of his ordinary job duties" and thus "speech as a citizen"). And Stilwell's sworn statement and planned testimony about the City's retaliatory conduct were on a matter of public concern. See Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 927 (9th Cir. 2004) ("[W]e hold that a public employee's testimony addresses a matter of public concern if it contributes in some way to the resolution of a judicial or administrative proceeding in which discrimination or other significant government misconduct is at issue.").

         Moreover, contrary to the City's argument, the fact that Stilwell had submitted only an affidavit and did not ultimately testify in court does not foreclose First Amendment protection. In Alpha Energy Savers, we held that although the plaintiff, a city contractor, never actually testified in a former associate's federal discrimination lawsuit because the suit settled, the conduct that occurred prior to the settlement was protected under the First Amendment. 381 F.3d at 922, 923-24. That conduct included "not only the affidavit that [the contractor] filed on [the associate's] behalf and his testimony at [the associate's] grievance hearing but also [the contractor's] agreement to be listed as a witness in the judicial proceedings." Id. at 923- 24. Similarly, Stilwell's sworn statement on a matter of public concern and his express plan to testify in court along the same lines, fall within the purview of the First Amendment. Cf. Heffernan v. City of Paterson, N.J., 136 S.Ct. 1412, 1418 (2016) (holding that whether the protected speech was actually engaged in by the employee is not determinative because it is the perception of the employer as to whether that protected activity occurred that matters to a First Amendment retaliation claim).


         Congress enacted the ADEA in order to "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b). Although nearly all of the ADEA focuses on direct age discrimination, it contains a retaliation provision as well:

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

29 U.S.C.A. § 623(d).

         Section 1983, in contrast, is not itself a source of substantive rights, but is a mechanism for vindicating federal statutory or constitutional rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Specifically, § 1983 provides that "[e]very person who, under color of [State law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983.

         Despite § 1983's broad wording, that section's availability as a remedy for violations of federal statutory or constitutional rights may be foreclosed in the event that Congress enacts a statutory scheme indicating an intent to preclude § 1983 suits. In a line of cases beginning with Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), the Supreme Court has set forth principles for determining when a § 1983 cause of action is precluded. Because this line of cases, and particularly Fitzgerald, 555 U.S. 246, the most recent of them, provides the framework for our analysis here, we describe the cases in some detail.

         In Sea Clammers, the Court addressed whether the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act precluded § 1983 suits to remedy violations of those Acts. To divine Congress's intent, the Court examined "the remedial devices provided in [each] particular Act, " to determine if they were "sufficiently comprehensive" to indicate a "congressional intent to preclude the remedy of suits under § 1983." Sea Clammers, 453 U.S. at 20. The Court observed the "unusually elaborate enforcement provisions" in each Act- which provided for civil as well as criminal penalties that could be assessed by the Environmental Protection Agency, and included citizen suit provisions that required private plaintiffs to "comply with specified procedures" before filing in court. Id. at 13-14. The Court held that these comprehensive remedial provisions demonstrated that Congress intended to preclude § 1983 lawsuits to remedy a violation of the statutory rights created in those same Acts. Thus, the Court held that a plaintiff could not bring a § 1983 suit to remedy a violation of either the Federal Water Pollution Control Act or the Marine Protection, Research, and Sanctuaries Act.

         In Smith v. Robinson, 468 U.S. 992, 1013 (1984), superseded on other grounds by Handicapped Children's Protection Act, Pub. L. No. 99-372, § 2, 100 Stat. 796 (1986) (codified at 20 U.S.C. § 1415(1)), the Supreme Court considered a related, but distinct question-whether a statute precluded a § 1983 suit to enforce a constitutional right. In Smith, the Court examined whether the Education of the Handicapped Act (the "EHA") precluded § 1983 suits alleging Fourteenth Amendment equal protection violations based on disability discrimination in education. 468 U.S. at 1013.[4] In holding that such suits were precluded, the Court first explained that constitutional equal protection rights and the rights protected by the EHA were essentially coextensive. See id. at 1009. Such congruence was unsurprising given that the EHA was enacted as a response to a series of court cases that established the "right to an equal education opportunity for handicapped children, " id. at 1010, and that "Congress perceived the EHA as the most effective vehicle for protecting the constitutional right of a handicapped child to a public education" recognized in those cases. Id. at 1013. Indeed, the Senate Report on the EHA described the statute as having "incorporated the major principles of th[ose] right to education cases." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 194 n.18 (1982). After concluding that the statutory and constitutional claims were "virtually identical, " Smith, 468 U.S. at 1009, the Supreme Court turned to the EHA's remedial scheme, explaining that "the Act establishes an elaborate procedural mechanism to protect the rights of handicapped children, " that "begins on the local level and includes ongoing parental involvement, detailed procedural safeguards, and a right to judicial review." Id. at ...

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