Friday, August 14, 2020
Page 4
Ninth Circuit:
Plaintiff Failed to Show Retaliation, Not Gossiping, Caused Ouster As Fire Chief
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment in favor of a city in the Antelope Valley that terminated services of its fire chief for gossiping about the mayor’s alleged love affair with a police lieutenant.
That reason for the firing, plaintiff Justin Vincent claimed, was pretextual. The actual basis, he asserted, was retaliation for his resistance to directives “to be ‘business friendly’ to the cannabis businesses”—including issuing permits to such businesses despite noncompliance with the Fire Code—and his whistleblowing activity.
Vincent sued under 42 U.S.C. §1983, a federal civil rights statute, and under California law.
In granting summary judgment on Aug. 2, 2019 to California City, in Kern County, Magistrate Judge Jennifer L. Thurston of the Eastern District of California devoted most of her attention to Vincent’s civil rights claim based on alleged First Amendment violations. She concluded that gossiping about an alleged affair between then-Mayor Jennifer Wood and Lieutenant Frank Huizar was not protected activity.
California Law
However, the Ninth Circuit’s memorandum opinion, filed Wednesday, does not deal with the First Amendment, confining its attention to whether the claim of unlawful retaliation, under California law, should be reinstated.
The panel—comprised of Circuit Judges Daniel Aaron Bress and Susan P. Graber, joined by District Court Judge Robert T. Dawson of the Western District of Arkansas, sitting by designation—answered in the negative. Vincent failed to show that the stated reason for his being fired was pretextual, the judges declared, saying:
“Plaintiff asserts that Defendant’s explanation based on ‘gossiping’ is pretextual because the mayor’s alleged affair was common knowledge. But, even if the affair was well-known. Plaintiff had been instructed by then-City Manager Tom Weil to “stop spreading the rumor.” Plaintiff nevertheless discussed the rumor with his staff and others, and another employee reported that Plaintiff discussed the rumor loudly in city hall.”
City Hall Confrontation
The opinion goes on to say:
“Plaintiff asserts that Defendant’s next explanation, that Plaintiff was terminated because two city residents filed a complaint with the city manager after having a confrontation with Plaintiff in city hall, is pretextual because part of their complaint concerned Plaintiff’s allegations that one of the residents had attempted to bribe Plaintiff. But the record establishes that the complaint set forth several allegations, including that Plaintiff had threatened to give false information to the residents’ insurance company and that Plaintiff, in uniform and on duty, ‘went to a woman’s home and publically [sic] demanded that she stop discussing Plaintiff’s affairs.”
The case is Vincent v. City of California City, 19-16666.
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