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.
and Submitted March 14, 2016 San Francisco, California
from the United States District Court No. 3:12-cv-08053-HRH
for the District of Arizona H. Russel Holland, District
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.
Rights/Age Discrimination in Employment Act
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.
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.
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
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.
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.
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. 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.
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.
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
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.
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.
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.
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. 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
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.
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.").
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).
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).
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.
§ 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.
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.
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. 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 ...