Delayed Raise May Link Chief to Retaliation

(CN) - A California police officer can advance claims that the chief delayed his pay increase in retaliation for union activity, the 9th Circuit ruled Friday.

John Ellins, a police officer in Sierra Madre, Calif., sued Police Chief Marilyn Diaz in 2009, alleging that she had improperly refused to sign off on a 5 percent raise he had earned by completing a training program.

Ellins, who was head of the local police union chapter at the time, claimed the delay was retaliation for his role in leading a no-confidence vote against the chief.

The union membership had initiated the vote because of Diaz's "lack of leadership, wasting of citizens' tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job," according to Ellins' complaint, as quoted in the ruling.

Diaz said that she delayed signing Ellins' pay increase because she felt he "lacked the requisite good moral character." At the time, Ellins had been investigated three times by Internal Affairs, and Diaz had recently "provided the district attorney's office with information about Ellins's alleged sales and use of anabolic steroids, assault with his duty weapons, and other matters 'relating to sexual misconduct while on duty,'" which she claimed to have received from an unnamed fellow police chief. Diaz eventually signed off on the raise after learning that charges against Ellins would not be filed. She retired in 2011.

After Diaz approved the raise, a federal judge in Los Angeles granted her and Sierra Madre's motion for summary judgement on Ellins' claims.

The court found that Ellins had failed to show that he was acting as a private citizen when he led the no-confidence vote against Diaz, and that the chief had immunity.

The federal appeals court in Pasadena reversed on Friday, finding that Ellins had showed enough evidence of potential First Amendment retaliation to survive summary judgment.

Furthermore, "a jury could find that Ellins spoke in his capacity as a private citizen," according to ruling, which also denied Diaz qualified immunity.

"In light of the Supreme Court's longstanding and unequivocal precedents protecting employee speech, we conclude that a reasonable official in Diaz's position would have known that delaying Ellins's application to the P.O.S.T. program because of his union activity, which resulted in a lower salary than that to which he otherwise would have been entitled, violated Ellins's First Amendment rights; that in leading a union vote Ellins acted as a private citizen addressing a matter of public concern; and that depriving Ellins of salary in retaliation for his protected speech was unconstitutional," Judge Kim McLane Wardlaw wrote for a three-judge panel.

The panel reversed summary judgment as to Diaz and remanded the issue back to the District Court, but agreed that Ellins had failed to make a case against the city.

Concurring in the judgment, Judge Johnnie Rawlinson wrote separately to question whether the majority had exceeded its jurisdictional bounds.

"Having determined that material issues of fact remain for trial, I would go no further," Rawlinson wrote. "Because the record is void regarding whether the activities Ellins undertook as union president were within the realm of his official duties, the determination regarding whether his activities were undertaken as a private citizen is more appropriately made by the factfinder."

She refused to "join the majority's discussion of whether Ellins established a First Amendment retaliation claim, and its conclusion that Ellins spoke in his capacity as a private citizen rather than as a public employee."

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