(CN) – The 9th Circuit rejected the retaliation claims of two San Bernardino police sergeants, saying their criticisms of their supervisor had more to do with a “difference of personalities” than constitutionally protected speech.
The city claimed it transferred Michael Desrochers, the sergeant in charge of the homicide unit, to the robbery division after he botched a murder investigation. It also suspended Steven Lowes, head of the gang unit, for two weeks for allegedly disobeying orders and endangering a suspect in custody.
But Lowes and Desrochers claimed they were demoted and suspended for filing a grievance against Lt. Mitchal Kimball, whom they described as a “very autocratic, controlling and critical supervisor.”
They and two other sergeants presented their initial concerns at a meeting, mediated by Capt. Frank Mankin.
Although there wasn’t a transcript of the meeting, Mankin explained that “there was an ongoing and continuing issue relative to a difference of personalities between the four sergeants” and Kimball.
When Kimball heard about the grievance, he requested a transfer from the Specialized Enforcement Bureau. Lowes and Desrochers admittedly had little contact with him after the transfer.
But the sergeants, believing the department had largely ignored their complaints, filed a formal grievance against Kimball, Mankin and Police Chief Michael Billdt. Lowes called Kimball a “micro-manager” whose “need to be technically correct and powerful at every turn ultimately destroys relationships.”
Desrochers claimed that Mankin and Billdt did nothing to change the hostile work environment, partly because “Mankin was more concerned about Lieutenant Kimball’s future promotion than he was about our issues.”
Mankin ultimately tossed out the formal grievance.
The sergeants also filed a complaint against Kimball’s replacement, Brian Boom, saying they feared he would be used as a tool to retaliate against them.
When they were again rebuffed by the department, they took up their claims in federal court in Los Angeles.
The federal judge dismissed their First Amendment retaliation claim, saying their speech didn’t address matters of public concern. A three-judge appellate panel in San Francisco voted 2-1 to affirm.
“[T]he plain language of the grievances does not ‘directly address police competence,'” Judge O’Scannlain wrote, “but rather indicates that Desrochers and Lowes were involved in a personality dispute centered on Kimball’s management style. The speech in question is largely devoid of reference to matters we have deemed to be of public concern.”
Dissenting Judge Wardlaw argued that the plaintiffs’ speech was protected.
“Issues of performance, discipline, and morale in public safety organizations are especially matters of public concern,” Wardlaw wrote, “given the direct impact of such entities on the well-being of the public.”