Opinion
NOT TO BE PUBLISHED
PETITION for Writ of Mandate and/or Prohibition from an order of the Superior Court of Los Angeles County No. BC357420 James R. Dunn, Judge.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall for Petitioners.
No Appearance for Respondent.
Law Offices of Humberto Guizar and Humberto Guizar for Real Party in Interest.
KITCHING, J.
INTRODUCTION
In this action, plaintiff and real party in interest Alberto Gutierrez, a former teacher at San Fernando High School (SFHS), contends that defendants and petitioners Jose Luis Rodriguez, Kelly Welsh, and Kenneth Lee (collectively defendants), administrators at SFHS during plaintiff’s tenure, violated his First Amendment rights by retaliating against him for his off-campus speech. After the trial court denied defendants’ motion for summary judgment, defendants filed a petition for writ of mandate and/or prohibition, which is the subject of this opinion.
The essential issue before this court is whether defendants are entitled to summary judgment based on the doctrine of qualified immunity. We shall conclude, for reasons we shall explain, that defendants are entitled to qualified immunity and that the trial court erroneously denied the motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff Speaks Critically of SFHS at Public Places in 2003 and 2004
In about October or November 2003, plaintiff organized a meeting with SFHS parents at Richie Valens Park, a public park in Pacoima. At that meeting, plaintiff presented information regarding the correlation of prison construction and high school dropout rates, the severe dropout problem at SFHS, and the SFHS administration’s allowance of “excessive military recruitment” at the school.
Plaintiff claims that a few days later defendant Rodriguez, the principal of SFHS at the time, stated to plaintiff: “I heard about your meeting with the parents, I must remind you of our conversation at orientation, I need you to shut-up with your data, or else I will have to take additional measures.”
Rodriguez was the principal of SFHS from 2002 to August 2006.
In about December 2003, plaintiff attended an off-campus meeting held by the Cesar Chavez Collaborative Committee in the City of San Fernando. At that meeting, plaintiff spoke critically of Rodriguez’s administrative team regarding the excessive military recruitment allowed to occur on the SFHS campus.
In the spring of 2004, plaintiff spoke at Tia Chucha’s, an off-campus coffee shop, and Mission College, regarding the low percentages of Latino high school graduates, the high rates of Latinos incarcerated in California prisons, and the poor performance of local high schools, including SFHS. According to plaintiff, a week after these presentations, Rodriguez approached plaintiff in school and stated: “I don’t appreciate your public presentations. I will make your life miserable here at SFHS if you don’t shut the fuck-up. You are making me look bad!”
Rodriguez denies making threatening statements to plaintiff and contends that he was not aware that plaintiff make public statements critical of SFHS in 2003 and 2004.
2. June 15, 2004, Letter Regarding a Guest Speaker in Plaintiff’s Classroom
SFHS has a written policy regarding guest speakers in classrooms. Teachers must obtain approval from the assistant principal in charge of the teacher’s department and follow certain guidelines before a guest speaker can make a presentation.
On June 2, 2004, a guest speaker invited by plaintiff spoke in plaintiff’s classroom. The speaker, Bob Lentz, called himself “Master of War.” Lentz made a presentation regarding the financial ramifications of war in general and the war in Iraq in particular. Plaintiff did not obtain prior approval from the assistant principal in charge of his department for Lentz’s presentation.
On June 2, 2004, Rodriguez spoke to plaintiff regarding Lentz’s presentation. Rodriguez advised plaintiff that he failed to follow the school’s procedure for guest speakers.
On June 15, 2004, Rodriguez wrote a letter to plaintiff regarding Lentz’s presentation which went in plaintiff’s personnel file. In that letter, Rodriguez asked plaintiff to review the written policy regarding guest speakers. Rodriguez also stated: “At our meeting on June 2, 2004 you stated that you were adding balance on the issue of the war with Iraq by inviting this particular guest speaker as students were hearing the other side from the Army recruiters that visit our campus. I want to remind you that these are two separate issues, and that the manner in which your guest speaker presented his view point on the war with Iraq does not meet the standard of balance and fairness. My expectation is that since your guest speaker’s June 2, 2004 presentation, you have provided your students various opportunities to experience and discuss other points of view.”
3. December 2, 2004, Memorandum Regarding Plaintiff’s Showing of a “R” Rated Movie in his Classroom
SFHS has a written policy regarding the use of audiovisual material in the classroom. A teacher cannot show a film rated “R” without first obtaining written approval from his or her department administrator and written approval from a parent of each student who views the movie.
On November 29, 2004, plaintiff showed the Michael Moore film Fahrenheit 9/11 to his classroom. Plaintiff did not obtain prior approval from the administration or parents to show the film.
On December 2, 2004, Rodriguez wrote a memorandum to plaintiff regarding, inter alia, his showing of Fahrenheit 9/11. This memorandum, which was placed in plaintiff’s personnel file, stated that plaintiff violated the school’s written policy regarding the showing of “R” rated films. The memorandum further stated that the film exposed plaintiff’s students to adult situations involving profanity, violence, and adult humor.
4. November 9, 2005, Memorandum Regarding Plaintiff’s Curriculum and Plaintiff Giving Students Extra Credit for Attending MAPA Conference
In the Fall of 2005, plaintiff gave his students extra credit towards their grade if they attended a conference hosted by the Mexican American Political Association (MAPA). Several students voiced their concern that attending the MAPA conference did not support the school curriculum and that parents were charged $25 to attend the MAPA conference. SFHS policy required that all extra credit assignments be free of charge to students and their parents.
On November 8, 2005, plaintiff, defendant Kelly Welsh, defendant Debra Jelin, and a union representative had a conference relating to plaintiff’s job performance. On the following day—November 9, 2005—Welsh wrote a memorandum to plaintiff summarizing the conference and directing plaintiff to do certain things. The memorandum advised plaintiff, inter alia, that parents accompanying their children to the MAPA conference were charged $25, that all activities assigned by plaintiff must be free of charge to students and their parents, that certain movies plaintiff showed his students did not support the curriculum prescribed by state standards, and that plaintiff was required to follow school district policy and procedures for audiovisual usage. The memorandum concluded by stating that failure to comply with Welsh’s directives may result in disciplinary action, including “an official letter of reprimand.” Nothing in the record indicates that this memorandum was placed in plaintiff’s personnel file.
Welsh was an assistant principal at SFHS between July 2004 and October 2009.
5. Welsh’s Termination of Plaintiff’s Fundraising Campaign
In 2005, plaintiff organized a fundraising campaign to raise money for scholarships to undocumented students. Under a written school policy, collections that are $25 or more, along with the collection form, must be turned in daily to the SFHS administration. Plaintiff, however, was not making regular deposits of all funds generated. Welsh thus terminated plaintiff’s fundraising campaign.
6. May 24, 2006, Memorandum and June 7, 2006, Letter of Reprimand Regarding Plaintiff’s Alleged Unprofessional Conduct
On April 25, 2006, plaintiff had an encounter with a mother of one of his students. When the mother went into plaintiff’s classroom to retrieve her son’s telephone, plaintiff stated: “Where were you? We just had a parent conference. If you cared so much, where were you?” Plaintiff does not deny making these statements to the mother, but contends that the mother disrupted his class and that he did not act improperly.
On April 27, 2006, the same mother asked plaintiff if her son could make up work for an excused absence. In response, plaintiff stated to the mother in front of her 13-year-old daughter: “Where were you when he [her son] was having problems? Mommy needs to come in and save him[?]” Plaintiff does not deny making these statements, but contends that the statements were appropriate in light of the student’s behavior and the mother’s aggressive demeanor.
On April 25, 2006, plaintiff had an encounter with a police officer who was looking for a student. The police officer claims that plaintiff invaded her personal space and stated: “Are you calling me a liar?” Plaintiff claims that the police officer talked to him in a “demanding” tone.
The mother and police officer complained to the administration regarding the incidents on April 25 and April 27, 2006. On May 23, 2006, plaintiff, a teacher’s union representative, Welsh and another individual had a conference regarding these incidents. On May 24, 2006, Welsh wrote a memorandum regarding various matters, including the April 25 and April 27, 2006 incidents, which was placed in plaintiff’s personnel file. The memorandum was critical of plaintiff in a number of ways. It stated that students witnessed plaintiff’s “disrespectful treatment” of the complaining mother; that referring to the complaining mother as “mommy” was unprofessional and demeaning in violation of the school district’s written policies; and that plaintiff’s statement to the police officer and invasion of the officer’s personal space was “confrontational” and “modeled poor judgment and defiance of authority in the presence” of plaintiff’s students.
On June 7, 2006, Rodriguez wrote a letter of reprimand to plaintiff which was put in plaintiff’s personnel file. The letter reviewed the April 25 and April 27, 2006, incidents. It also stated: “I am directing you to behave in a professional manner at all times with all students, parents, and staff. I am also directing you to stop and desist your disrespectful treatment of students, parents, and staff.”
The school district has a policy that requires teachers to behave in a professional manner with students and staff members at all times.
7. The Complaint in this Action
On August 23, 2006, plaintiff commenced this action by filing a complaint against the Los Angeles Unified School District and Jose Luis Rodriguez setting forth seven causes of action, including claims for racial and national origin discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), negligent supervision, intentional infliction of emotional distress and violation of the federal civil rights statute (42 U.S.C. § 1983) (section 1983).
8. Welsh’s Alleged Failure to Order a Textbook for Plaintiff
When the school year began in September 2006, plaintiff did not receive a text book that he had asked Welsh to order. Welsh contends that she did not order the text book until after the semester began because the book had not yet been placed on a list of approved books by the school district. It is undisputed that all text books must be on a list approved by the school district.
9. The Field Trip to City Hall for Plaintiff’s Appointment as a Commissioner
In September 2006, plaintiff was sworn in as a City of Los Angeles commissioner by the mayor. Plaintiff wanted to take his students on a field trip to city hall to observe the swearing-in ceremony.
SFHS policy requires a particular protocol to be met for faculty members who wish to take students on a field trip, including obtaining funding approval and making arrangements for lunches and transportation. A completed packet pertaining to the field trip with the required information must be completed at least three weeks in advance.
Plaintiff’s request for the city hall field trip was untimely. Defendant Kenneth Lee thus asked Welsh to follow-up and assist plaintiff in completing the field trip paperwork.
Lee has been the principal of SFHS since July 2006.
10. Plaintiff’s Removal from the Football Field and Removal as Football Announcer
On September 9, 2006, during the first SFHS football game of the season, defendant Debra Jelin, an assistant principal at the time, asked plaintiff to watch the game from the stands rather than the football field. The school district guidelines preclude any individual who is not identified on a team roster from standing on the sidelines during a sporting event. Jelin claims that she removed plaintiff from the sidelines because the head coach had not yet turned in the official roster. Later, Jelin confirmed that plaintiff was a member of the coaching staff, and plaintiff was issued an apology for the incident.
In the same semester that plaintiff was removed from the football field, SFHS athletic director Jonny Najar apologized to plaintiff for removing him from the varsity announcer position the previous year. According to plaintiff, Najar stated: “It was not up to me, the decision came from the top.”
11. December 22, 2006, Memorandum regarding Plaintiff Requiring Students to Purchase a Book from Plaintiff
In November 2006, two students complained to Welsh that plaintiff was requiring students to read and purchase a book entitled “The Culture of Fear” for plaintiff’s class. The book was purchased directly from plaintiff for $14 or $15. School district policy prohibits teachers from selling books directly to students.
On December 22, 2006, Welsh prepared a memorandum to plaintiff advising him that he should adhere to the district policy of not selling books directly to students.
The record does not clearly indicate whether this memorandum was placed in plaintiff’s personnel file. The memorandum itself states that it will be placed in plaintiff’s “school” file. However, the memorandum is not in the copy of plaintiff’s personnel file attached to the declaration of plaintiff’s counsel.
12. Stull Evaluations
At SFHS a “Stull” evaluator is assigned to each teacher to routinely monitor, evaluate, and guide the teacher in his or her classroom. Welsh was plaintiff’s Stull evaluator. As part of her duties, Welsh was required to perform periodic in-classroom observations and evaluations of plaintiff. After each observation, Welsh had a conference with plaintiff, and then prepared a written memorandum.
13. Plaintiff’s Brother is Given a Citation By a Police Officer
In the spring of 2006, over 300 SFHS students participated in “walkouts.” Plaintiff claims that his brother Alajandro Gutierrez, who participated in the walkouts, “was selectively ticketed three days after the walk outs in order to punish [plaintiff] for [his] off campus speech.” Rodriguez claims that he did not direct any student protestors to be ticketed.
14. Plaintiff Stops Working at SFHS
In July 2007, plaintiff stopped working at SFHS. Plaintiff claims that defendants’ “harassment” became so intolerable that he became physically sick, that he could no longer teach at SFHS without “feeling extreme anxiety and helplessness, ” and that he decided to leave his job for health reasons.
15. Plaintiff’s Third Amended Complaint
On August 22, 2007, plaintiff filed his third amended complaint, which is the operative pleading in this action. The third amended complaint sets forth one cause of action for violation of section 1983 against Rodriguez, Welsh, Lee and Jelin. The gravamen of the third amended complaint is that defendants retaliated against him for exercising his free speech rights under the First Amendment to the United States Constitution.
16. Gutierrez I
The trial court sustained the general demurrer of Rodriguez, Welsh, Lee and Jelin to the third amended complaint and entered a judgment against plaintiff. Plaintiff appealed that judgment to this court. On August 14, 2009, we reversed the judgment, holding that the third amended complaint stated facts sufficient facts to constitute a section 1983 cause of action. (Alberto Gutierrez v. Jose Luis Rodriguez et al. (Aug. 14, 2009, B205542) [nonpub. opn.] (Gutierrez I).)
17. Motion for Summary Judgment
On February 19, 2010, Rodriguez, Welsh, Lee and Jelin filed a motion for summary judgment. On May 7, 2010, the trial court granted the motion with respect to Jelin, but denied the motion with respect to Rodriguez, Welsh and Lee. In a thorough opinion by a well-respected judge, the trial court found that there were triable issues of material fact as to (a) whether defendants took adverse employment actions against plaintiff, (b) whether defendants were aware of plaintiff’s protected speech when they engaged in the alleged adverse employment actions, (c) whether plaintiff’s protected speech was a substantial/motivating factor in defendants’ conduct, (d) whether defendants’ actions would have been taken regardless of plaintiff’s protected speech, (e) whether defendants’ acts were motivated, at least in part, by lawful considerations, such that they would be entitled to qualified immunity under Stanley v. City of Dalton, GA. (11th Cir. 2000) 219 F.3d 1280 (Stanley), and (f) whether, when he made his public comments, plaintiff was speaking as a private citizen or as a teacher.
18. Defendants’ Petition
On May 27, 2010, defendants Rodriguez, Welsh and Lee filed a petition for writ of mandate and/or prohibition. The petition prayed for, inter alia, a stay of the trial scheduled on July 6, 2010, and a writ of mandate commanding the trial court to vacate its order denying defendants’ motion for summary judgment and to enter a new order granting that motion. On June 4, 2010, we ordered that the trial be stayed pending further order of this court. Then on July 16, 2010, we issued an order to all parties to show cause why the relief in the petition should or should not be granted.
DISCUSSION
1. Standard of Review
In Gutierrez I, we reviewed a judgment following the sustaining of a demurrer without leave to amend. For purposes of the demurrer, this court and the trial court were required to accept all of the material allegations in plaintiff’s third amended complaint as true, and could not consider facts outside of plaintiff’s pleadings. The same is not true this time. In determining whether a motion for summary judgment should be granted, the trial court and this court must consider declarations and other admissible evidence. (Code Civ. Proc., § 437c, subd. (b)(1).)
“ ‘An order denying a motion for summary judgment may be reviewed by way of a petition for a writ of mandate. [Citation.] Where the trial court’s denial of a motion for summary judgment will result in a trial on nonactionable claims, a writ of mandate will issue. [Citation.] Since a motion for summary judgment “involves pure matters of law, ” we review a ruling on the motion independently. [Citation.] Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.]’ ” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1294-1295.)
2. Section 1983 First Amendment Retaliation Claims By Public School Teachers
The First Amendment, applicable to the states by virtue of the Fourteenth Amendment, protects the free speech rights of public school teachers. (Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 44.) Retaliation against a public school teacher for exercising his or her free speech rights is actionable as a civil rights violation under section 1983. (See Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1277.)
Section 1983 provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 in an action at law, suit in equity, or other proper proceeding for redress....”
Where, as here, a teacher at a public school asserts a section 1983 free speech claim against a school official, the court must “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering v. Board of Education (1968) 391 U.S. 563, 568.) In such a suit, the plaintiff bears the initial burden of showing that his or her conduct was protected by the First Amendment, and that this conduct was a “substantial factor” or “motivating factor” in the decision by the defendant to take an adverse employment action against the plaintiff. (Mt. Healthy City School District Board of Ed. v. Doyle (1977) 429 U.S. 274, 287 (Mt. Healthy).) If the plaintiff meets this burden, the defendant must show by a preponderance of the evidence that he or she would have taken the same adverse employment action even in the absence of protected conduct. (Ibid; accord Allen v. Iranon (9th Cir. 2002) 283 F.3d 1070, 1075 [holding that Mt. Healthy mixed-motive analysis applies to First Amendment retaliation claims regardless of whether evidence is direct or circumstantial].)
As we explained in Gutierrez I, in order to adjudicate a First Amendment retaliation claim by a public school teacher, the court must resolve five questions: “ ‘(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.’ (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1070.)” (Gutierrez I, supra, at [p. 6].)
For purposes of their petition, defendants do not dispute that plaintiff’s alleged off-campus statements were matters of public concern, that plaintiff made such statements as a private citizen, and that the statements were protected by the First Amendment. In their motion for summary judgment, defendants asserted that they would have taken the same alleged adverse employment actions against plaintiff regardless of plaintiff’s alleged critical public statements about SFHS and its administration. Plaintiff disputed that contention. As stated, the trial court found that this was a triable issue of fact.
Defendants argue that “regardless of whether real party in interest [plaintiff] was able to raise a triable issue of fact to show he was treated differently than other teachers because of his protected speech or that the petitioners’ [defendants] actions against him were based upon improper retaliatory motives, petitioners are entitled to qualified immunity as the undisputed record establishes there were lawful considerations to support their conduct.” This argument is based in large part on Stanley. We shall discuss the qualified immunity doctrine and Stanley in sections 3 and 4, post.
Defendant Lee also argues that he is entitled to qualified immunity and summary judgment because his alleged actions do not constitute adverse employment actions against plaintiff under clearly established law. We shall discuss adverse employment actions in section 5, post.
3. The Doctrine of Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Citation.] Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’ [Citation.]” (Pearson v. Callahan (2009) __ U.S. __, 129 S.Ct. 808, 815 (Pearson).) Whether a government employee is protected by qualified immunity turns on “ ‘the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time it was taken.’ ” (Wilson v. Layne (1999) 526 U.S. 603, 614.)
“Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability... it is effectively lost if a case is erroneously permitted to go to trial.’ ” (Pearson, supra, 129 S.Ct. at p. 815.) Accordingly, the United States Supreme Court has repeatedly stressed “ ‘the importance of resolving immunity questions at the earliest possible stage in litigation.’ ” (Ibid.)
A defendant may be entitled to qualified immunity even if he or she violated the plaintiff’s constitutional rights. (Safford Unified School Dist. No. 1 v. Redding (2009) __ U.S. __, 129 S.Ct. 2633, 2637-2638 [holding that school officials violated student’s Fourth Amendment right against unlawful searches, but because the violation was not clearly established, the school officials had qualified immunity].) Thus there are two parts of a qualified immunity analysis. “First, a court must decide whether the facts that a plaintiff has alleged [citation] or shown [citation] make out a violation of a constitutional right. [Citation.] Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct. [Citation.] Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.” (Pearson, supra, 129 S.Ct. at p. 815-816.) These two steps, however, need not necessarily be decided in sequence. The court may, in its discretion, first decide whether the right at issue was “clearly established.” (Id. at p. 817.)
4. Qualified Immunity in Mixed Motive Cases
In some cases the defendant has mixed motives to take an adverse employment action against the plaintiff, that is, the defendant has both lawful reasons and unlawful, unconstitutional reasons for his action. In such cases, the defendant has qualified immunity “only where, among other things, the record indisputably establishes that the defendant in fact was motivated, at least in part, by lawful considerations.” (Stanley, supra, 219 F.3d at p. 1296, citing Foy v. Holston (11th Cir. 1996) 94 F.3d 1528, 1535; accord Rioux v. City of Atlanta, GA. (11th Cir. 2008) 520 F.3d 1269, 1283-1284).
In Stanley, the plaintiff, a police officer, told an investigating bureau about his “theory” that another officer, the defendant, stole public property. Later, after the defendant became the chief of police, the defendant terminated the plaintiff, ostensibly for violating police department policies. The plaintiff then filed a section 1983 action for violation of his First Amendment rights alleging that the defendant terminated him in retaliation for accusing the defendant of theft. (Stanley, supra, 219 F.3d at p. 1285.)
The defendant brought a motion for summary judgment on the ground that he had qualified immunity. The district court denied the motion but the United States Court of Appeals for the Eleventh Circuit reversed. (Stanley, supra, 219 F.3d at p. 1282.) The appellate court ruled that the defendant had qualified immunity because the plaintiff did not demonstrate that a reasonable police chief, faced with the same evidence of the plaintiff’s conduct and acting at least in part with a lawful motive, would have known that terminating the plaintiff violated clearly established law. (Id. at pp. 1297-1298.)
5. Adverse Employment Actions
The phrase “adverse employment action” is a term of art used in a number of contexts, including First Amendment retaliation cases. It is generally used as a shorthand description of the kind of adverse treatment imposed upon an employee that will support a cause of action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035-1036 (Yanowitz).)
In Gutierrez I, we explained: “ ‘The precise nature of the retaliation is not critical to the inquiry in First Amendment retaliation cases. The goal is to prevent, or redress, actions by a government employer that “chill the exercise of protected” First Amendment rights. [Citation.] Various kinds of employment actions may have an impermissible chilling effect. Depending on the circumstances, even minor acts of retaliation can infringe on an employee’s First Amendment rights. [Citation.]’ (Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 974-975 (Coszalter).)
“ ‘To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of removal of a benefit or the imposition of a burden.’ (Coszalter, supra, 320 F.3d at p. 975.) If the plaintiffs ‘can establish that the actions taken by the defendants were “reasonably likely to deter [them] from engaging in protected activity [under the First Amendment, ]” they will have established a valid claim under § 1983.’ (Id. at p. 976.)
“ ‘Any sanction imposed for the exercise of protected First Amendment conduct must be viewed as having a chilling effect on speech and on the right of teachers to engage in those activities which are protected by the First Amendment. Lesser penalties than dismissal can effectively silence teachers and compel them to forego exercise of the rights guaranteed them by our Constitution.’ (Adcock v. Bd. of Education (1973) 10 Cal.3d 60, 66 (Adcock).)
“The courts have repeatedly held that a written reprimand placed in an employee’s personnel file can constitute an adverse employment action for purposes of a First Amendment retaliation claim. This is particularly true where... the reprimand harms the plaintiff’s reputation and employment prospects. For example, in Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, a physician at a public hospital asserted a First Amendment retaliation claim after the hospital subjected him to an investigation, threatened to revoke his clinical privileges, refused to rescind his resignation, and ‘filed an adverse action report against him, marring his employment record.’ (Id. at p. 977.) The court held: ‘Although these decisions by the hospital could have been taken for a number of reasons, if they were in retaliation for his protected speech activity then the First Amendment was violated.’ (Ibid.)
“In Baca v. Sklar (10th Cir. 2005) 398 F.3d 1210, an employee of a public university alleged that his supervisor retaliated against him for exercising his First Amendment rights. The plaintiff claimed that the defendant reprimanded him in violation of university protocol, used the charge to demand plaintiff’s resignation, and deprived the plaintiff of an opportunity to supervise another employee whom he had recruited. (Id. at p. 1221.) The court held: ‘These allegations, if true, could be found to constitute adverse employment actions in the First Amendment context.’ (Ibid.) “Similarly, in Coszalter, city workers sued a city under [section 1983] for allegedly violating their First Amendment rights by retaliating against them for publicly disclosing health and safety hazards. The court held: ‘Under the “reasonably likely to deter” test, some, perhaps all, of the following acts, considered individually, were adverse employment actions for purposes of plaintiffs’ First Amendment retaliation suit:... a reprimand containing a false accusation....’ (Coszalter, supra, 320 F.3d at p. 976; see also Harris v. Victoria Independent School Dist. (5th Cir. 1999) 168 F.3d 216, 221 [‘we have repeatedly held that reprimands and demotions constitute adverse employment decisions’]; Morris v. Lindau (2nd Cir. 1999) 196 F.3d 102, 110 [‘Adverse employment actions include... reprimand’].)” (Gutierrez I, supra, at [pp. 7-8].)
We also noted in Gutierrez I that we did not need to decide whether plaintiff was constructively terminated because plaintiff “is not required to show an adverse employment action as severe as termination in order to maintain his First Amendment retaliation claim. (See Adcock, supra, 10 Cal.3d at p. 66; Coszalter, supra, 320 F.3d at pp. 974-975.)” (Gutierrez I, supra, at [pp. 9-10].)
Although the parties have not cited, and we have not found, any cases that expressly reject the “reasonably-likely-to-deter” test for First Amendment retaliation claims, some courts have used different, or additional language describing what constitutes an adverse employment action. For example, courts have held that in order to be adverse employment action, the employer’s conduct must “materially” affect the terms of employment (e.g. Birch v. Cuyahoga County Probate Court (6th Cir. 2004) 392 F.3d 151, 169; Shockency v. Ramsey County (8th Cir. 2007) 493 F.3d 941, 948 (Shockency)) or must involve an “important” condition of employment (e.g. Akins v. Fulton County, GA. (11th Cir. 2005) 420 F.3d 1293, 1300). The United States Court of Appeals for the Second Circuit has held that “the proper legal test in determining whether an employment action is adverse in First Amendment retaliation cases is whether the alleged acts ‘would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.’ ” (Dillon v. Morano (2nd Cir. 2007) 497 F.3d 247, 254 (Dillon).)
Defendants cite Yanowitz, supra, 36 Cal.4th at pp. 1051-1052, footnote 10 and Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 614, which relies on Yanowitz. In Yanowitz, the California Supreme Court held that for purposes of a retaliation claim under the FEHA, an adverse employment action is conduct that materially affects the terms and conditions of employment. (Yanowitz, supra, 36 Cal.4th at p. 1036.) Yanowitz did not discuss what constitutes an adverse employment action in a First Amendment retaliation case.
6. Lee is Entitled to Qualified Immunity and Summary Judgment Because He Did Not Take Any Adverse Employment Actions Against Plaintiff Under Clearly Established Law
In response to form interrogatories, plaintiff identified four purported categories of adverse employment actions taken by Lee against plaintiff: (1) Lee declined plaintiff’s request to remove and replace Welsh as his administrative evaluator; Lee “justified ongoing evaluations of plaintiff”; Lee “failed to warn plaintiff of evaluation visits”; (2) Lee “justified [Jelin] kicking plaintiff off the football field”; (3) Lee “downplayed [Jelin’s] behavior of encouraging students to file a complaint against him”; and (4) Lee “provided a list of excuses why plaintiff could not take students to Los Angeles City Hall for his [plaintiff’s] Commissioner appointment and then ‘stalled the process’ by ordering plaintiff to see [Welsh].”
None of these actions constitute adverse employment actions under clearly established law. Indeed, courts have held that arguably more severe actions by employers do not constitute adverse employment actions for purposes of First Amendment retaliation claims. (See e.g. Jones v. Fitzgerald (8th Cir. 2002) 285 F.3d 705, 714-715 [holding that involuntary transfers of employee, factually accurate memoranda placed in employee’s personnel file, and two internal investigations were legally insufficient to constitute adverse employment actions]; Dillon, supra, 497 F.3d at pp. 254-255 [holding that assignment of menial tasks, transfer to different unit, and exclusion from staff meetings were not adverse employment actions].)
A reasonable school principal in Lee’s shoes would not have known in 2006 and 2007, when his alleged misconduct occurred, that the actions he took toward plaintiff amounted to adverse employment actions under clearly established law. Lee therefore has qualified immunity from plaintiff’s section 1983 cause of action. (Shockency, supra, 493 F.3d at p. 950 [holding that police officer was entitled to qualified immunity from First Amendment retaliation claim because the actions he took were not adverse employment actions under clearly established law].)
7. Rodriguez is Entitled to Qualified Immunity and Summary Judgment
a. Except for Rodriguez’s Written Reprimands, Rodriguez’s Actions Did Not Amount to Adverse Employment Actions under Clearly Established Law
Plaintiff contends that Rodriguez took the following adverse employment actions against him: (1) Rodriguez continuously placed negative memos in plaintiff’s file; (2) Rodriguez “directed” Welsh to evaluate plaintiff every year for frivolous reasons; (3) Rodriguez ordered Jonny Najar to terminate plaintiff from announcing the varsity football games; and (4) Rodriguez ordered “that student protestors be ticketed days after protesting ended.”
As stated ante, written reprimands constitute adverse employment actions for purposes of a First Amendment retaliation claim if they are reasonably likely to deter free speech. Plaintiff alleges that Rodriguez’s letter dated June 15, 2004, regarding the guest speaker incident, Rodriguez’s memorandum dated December 2, 2004, regarding the showing of a “R” rated film, and Rodriguez’s June 7, 2006, memorandum regarding plaintiff’s alleged unprofessional conduct (collectively Rodriguez’s Written Reprimands) were placed in plaintiff’s employment file in retaliation for plaintiff’s off-campus speech. We hold that Rodriguez’s Written Reprimands were sufficiently harmful to plaintiff’s status at SFHS and his teaching career to constitute adverse employment actions under clearly established law.
Plaintiff, however, has not cited, and we have not found, any cases that hold evaluating a teacher too often constitutes an adverse employment action. A reasonable school principal in Rodriguez’s shoes would not have known that this conduct amounted to an adverse employment action under clearly established law. Rodriguez therefore has qualified immunity from a section 1983 suit based on this conduct.
With respect to Najar’s alleged statement that Rodriguez ordered him to terminate plaintiff as the varsity announcer, plaintiff’s hearsay objection is well taken. (Evid. Code, §1200.) Plaintiff thus cannot base his section 1983 claim on this alleged conduct.
The trial court did not rule on defendants’ evidentiary objections.
With respect to Rodriguez’s alleged order that unidentified police officers ticket student protestors and selectively ticket plaintiff’s brother, plaintiff offers no admissible evidence that Rodriguez controlled the actions of police officers or that students similarly situated to plaintiff’s brother were not ticketed. Moreover, Rodriguez’s purported action did not concern the terms and conditions of plaintiff’s employment. Rodriguez therefore has qualified immunity from a section 1983 suit based on the alleged ticketing of student protesters because a reasonable school principal would not have known that such conduct was an adverse employment action under clearly established law.
b. Rodriguez Has Qualified Immunity from Liability for Writing His Written Reprimands Because He Was Motivated at Least in Part by Lawful Considerations
Plaintiff’s cause of action against Rodriguez thus rests wholly on Rodriguez’s Written Reprimands. Each of Rodriguez’s Written Reprimands, however, discussed plaintiff’s violation of school or school district policy. In his letter dated June 15, 2004, Rodriguez asked plaintiff to review the school’s written policy requiring teachers to obtain administrative approval of guest speakers. Plaintiff concedes that he did not follow school protocol regarding guest speaker Bob Lentz. Similarly, Rodriguez’s memorandum dated December 2, 2004, advised plaintiff that he violated the schools’ written policy by showing a “R” rated film without prior administrative and parental approval. Plaintiff does not dispute that school policy requires administrative and parental approval prior to showing a “R” rated film. Finally, Rodriguez’s June 7, 2006, memorandum discussed plaintiff’s alleged unprofessional conduct toward a parent and a police officer working on campus. Plaintiff does not dispute that school district policy requires teachers to behave in a professional manner to students and staff members at all times.
We hold that, as a matter of law, Rodriguez’s Written Reprimands were at least partly motivated by lawful considerations. Moreover, plaintiff did not demonstrate that a reasonable principal, faced with the same evidence of plaintiff’s conduct and acting at least in part with a lawful motive, would have known that writing Rodriguez’s Written Reprimands violated clearly established law. Accordingly, Rodriguez is entitled to qualified immunity and summary judgment under the reasoning and holding of Stanley, which we adopt here.
Plaintiff argues that this case is factually distinguishable from Stanley. He relies heavily on Rodriguez’s alleged threatening statements to plaintiff, which he claims shows Rodriguez’s retaliatory intent. However, in Stanley, the defendant also made a statement indicating that he had a retaliatory intent. After the defendant, a police chief, issued a written reprimand to the plaintiff, a police officer, he asked the plaintiff: “ ‘How does it feel to be put under the microscope of suspicion?’ “ (Stanley, supra, 219 F.3d at p. 1283.)
Plaintiff also claims that this case is different than Stanley because there was evidence that Rodriguez’s letter of June 15, 2004, was merely pretextual because he was treated differently than other teachers. Two other teachers at SFHS—Lydia Soto and Robert Mitchell—stated in their declarations that Bob Lentz spoke in their classes in the Spring of 2004 without administrative or parental approval but they did not receive reprimands by Rodriguez. However, in Stanley, there was similar evidence of unequal treatment. After an altercation with another police officer, Cooper, the plaintiff was given a written reprimand and ordered to serve a six-day suspension. But no disciplinary action was taken against Cooper. (Stanley, supra, 219 F.3d at p. 1284.)
Finally, plaintiff argues that this case is distinguishable from Stanley because the time gap between his exercise of his free speech rights and Rodriguez’s adverse employment actions was substantially less than the four-year time gap in Stanley. However, the Stanley court acknowledged that the four-year time gap did not preclude the plaintiff from showing that the defendant acted in substantial part because of the plaintiff’s protected speech. (Stanley, supra, 219 F.3d at p. 1297.) Thus the time gap, while important, was not dispositive. Rather, it was the totality of the circumstances, including the fact that the plaintiff was involved in multiple acts of misconduct that led the Stanely court to conclude that the defendant’s conduct was motivated, at least in part, by lawful considerations. (Ibid.)
The same is true here. Plaintiff engaged in a pattern and practice of violating school and school district policy over the course of a number of years. No reasonable trier of fact could conclude that Rodriguez’s conduct was not motivated at least in part by lawful considerations. Accordingly, Rodriguez is entitled to qualified immunity and summary judgment.
8. Welsh Is Entitled to Qualified Immunity and Summary Judgment
a. Except for Welsh’s Written Reprimands, Welsh’s Actions Did Not Amount to Adverse Employment Actions under Clearly Established Law
Plaintiff contends that Welsh took the following adverse employment actions against him: (1) Welsh “followed the command” of Rodriguez and continuously evaluated plaintiff; (2) Welsh encouraged parents and students to complain about plaintiff; (3) Welsh singled plaintiff out and “wrote him up” for giving extra credit to students to attend a MAPA conference; (4) Welsh terminated a fundraising campaign organized by plaintiff to give scholarships to undocumented students; (5) Welsh never warned plaintiff of the date and time of an evaluation; and (6) Welsh did not order a course book for plaintiff’s class until after the semester began.
We agree with plaintiff that some of Welsh’s actions constituted adverse employment actions. Like Rodriguez’s Written Reprimands, Welsh’s November 9, 2005, memorandum regarding the MAPA conference and plaintiff’s deviation from the school curriculum, Welsh’s May 24, 2006, memorandum regarding plaintiff’s alleged unprofessional conduct, and Welsh’s December 22, 2006, memorandum regarding students purchasing books from plaintiff (collectively Welsh’s Written Reprimands) were sufficiently damaging to plaintiff’s position at SFHS and his teaching career that they constituted adverse employment actions under clearly established law. However, Welsh’s other alleged conduct did not result in a loss of pay, title, job responsibilities, benefits, hours, or other material term of employment, nor did it result in a negative evaluation in plaintiff’s employment record. A reasonable assistant principal would not have known that such conduct constituted adverse employment actions under clearly established law. Welsh therefore has qualified immunity from plaintiff’s cause of action based on conduct other than Welsh’s Written Reprimands.
b. There is No Substantial Evidence That Welsh Was Aware of Plaintiff’s Off-Campus Statements When She Wrote the November 9, 2005 and May 24, 2006, Memoranda
Welsh stated in her declaration supporting her motion for summary judgment that she was not aware of plaintiff’s off-campus critical statements of SFHS and its administration when she wrote her November 9, 2005 and May 24, 2006, memoranda. Plaintiff contends that Welsh wrote these written reprimands in retaliation for plaintiff’s off-campus statements.
In support of his contention that Welsh knew about plaintiff’s off-campus statements prior to writing her November 9, 2005 and May 24, 2006, memoranda, plaintiff cites certain memoranda in his personnel file. However, these memoranda do not mention plaintiff’s off-campus statements.
Plaintiff also cites his own declaration and deposition testimony. In his declaration, plaintiff stated: “Other teachers that also gave their students extra credit for attending events at Tia Chucha’s were never counseled or otherwise admonished in any manner.” This statement, however, does not show that Welsh knew about plaintiff’s statements at Tia Chucha’s, or that she supervised other teachers who allegedly spoke at Tia Chucha’s. Plaintiff also stated in his declaration and deposition that Welsh did not fully “investigate” the April 2006 parent and police officer complaints that were the subject of her May 24, 2006, memorandum. These conclusionary statements are not substantial evidence that Welsh knew about plaintiff’s off-campus statements or had a retaliatory motive.
In addition, plaintiff relies on the declaration of Lydia Soto, a teacher at SFHS. Soto testified that in the Fall of 2004, she and other teachers offered extra credit to students to attend a MAPA conference, but she was not counseled or reprimanded for doing so. Plaintiff contends that this shows that Welsh’s negative statements in her November 9, 2005, memorandum were merely pretextual. Welsh’s memorandum, however, related to a MAPA conference that occurred in 2005, not 2004. Further, Welsh’s memorandum advised plaintiff that he should not request students to attend a conference which charges accompanying parents a fee. However, there is no evidence in the record that parents were charged a fee to attend the 2004 conference that Soto’s students attended. Moreover, there is no evidence that Welsh knew that Soto allowed her students to attend a MAPA conference in 2004 or that Welsh was Soto’s supervisor in 2004. Accordingly, Soto’s statement does not show that Welsh knew about plaintiff’s off-campus statements or had a retaliatory motive.
Soto also stated that in her “opinion” plaintiff “was singled out for publically speaking on the deficiencies of SFHS.” Defendants objected to this statement on, among other grounds, that Soto did not lay a proper foundation for her personal knowledge about this subject matter, and that this testimony was improperly argumentative and speculative. These objections should have been sustained by the trial court.
Plaintiff also relies on the declarations of Mayra Dessaint and Janet Ceja, former students at SFHS. Dessaint and Ceja essentially testified that they complained to the SFHS administration about various issues, but the administration was not responsive. This testimony does not show that Welsh had knowledge of plaintiff’s off-campus statements at the time she wrote her November 9, 2005 and May 24, 2006, memoranda, or that she had a retaliatory motive.
Finally, plaintiff cites the declaration of Luis Cendejaz as evidence that Welsh knew about plaintiff’s off-campus statements when she wrote her November 9, 2005 and May 24, 2006, memoranda. Cendejaz, a former student at SFHS, stated that in May of 2007, he witnessed a verbal exchange between Police Officer Monroy and plaintiff, and that during that exchange Monroy was “disrespectful” to plaintiff. It is unclear whether Cendejaz is referring to the same incident that is the subject of Welsh’s May 24, 2006, memorandum because Cendejaz testified that the incident he witnessed occurred more than a year after the memorandum was written. In any case, this testimony at most ameliorates plaintiff’s alleged unprofessional conduct toward Monroy; it does not show that Welsh knew about plaintiff’s off-campus statements or had a retaliatory motive when Welsh wrote her November 9, 2005 and May 24, 2006, memoranda.
c. There is No Substantial Evidence That Plaintiff Wrote the December 22, 2006, Memorandum for Retaliatory Reasons
Plaintiff filed his complaint in this action before Welsh wrote her December 22, 2006, memorandum concerning students purchasing books from plaintiff. Although the complaint did not name Welsh as a defendant, Welsh does not deny that after the complaint was filed, she knew that plaintiff accused Rodriguez of retaliating against him for making off-campus statements. Nonetheless, Welsh stated in her declaration that she did not write her memorandum in retaliation for plaintiff’s off-campus statements regarding SFHS.
Plaintiff contends that the December 22, 2006, memorandum was motivated by Welsh’s desire to retaliate against him. In support of this contention, plaintiff cites Welsh’s May 24, 2006, memorandum, Rodriguez’s June 7, 2006 letter of reprimand, and plaintiff’s June 21, 2006, letter to Rodriguez. Nothing in these documents, however, show that Welsh had a retaliatory motive in writing the December 22, 2006, memorandum.
Plaintiff also relies on a paragraph in his own declaration. There, plaintiff described the difficulties he had with his class in the Fall of 2006 and how Welsh allegedly did not fairly handle conflicts plaintiff had with his students. While this testimony arguably shows that Welsh treated plaintiff unfairly with respect to incidents unrelated to this lawsuit, it does not consist of evidence of a linkage between plaintiff’s off-campus statements and Welsh’s decision to write a memorandum about plaintiff requiring his students to purchase books from him.
Plaintiff also cites statements in the declarations of Natalia Guzman and Gabriel Turcios, former students at SFHS. Guzman and Turcios essentially stated that Welsh solicited information regarding plaintiff’s conduct and pressured the students to sign complaints against plaintiff. This testimony does not constitute substantial evidence that Welsh wrote the December 22, 2006, memorandum in retaliation for plaintiff’s off-campus statements.
Finally, plaintiff relies on a statement made in Lydia Soto’s declaration. Soto claimed that in the Spring of 2004, she invited Bob Lentz to speak to one of her classes, but she was not reprimanded or admonished for doing so. However, the December 22, 2006, memorandum did not relate to plaintiff’s invitation of Lentz to speak to his classroom. Rather, it related to plaintiff requiring his students to purchase books directly from plaintiff and other violations of written school policies. Soto’s statement therefore does not support an inference that plaintiff wrote the December 22, 2006, memorandum in retaliation for plaintiff’s off-campus statements.
d. Welsh Has Qualified Immunity from Liability for Writing Her Written Reprimands Because She Was Motivated at Least in Part By Lawful Considerations
Each of Welsh’s Written Reprimands discussed plaintiff’s violation of school or school district policy. Welsh’s November 9, 2005, memorandum discussed plaintiff giving students extra credit for attending a MAPA conference. Plaintiff does not dispute parents were charged a fee to accompany their children at the MAPA conference, and that school policy requires that all extra credit assignments be free of charge to students and their parents. Likewise, Welsh’s May 24, 2006, memorandum discussed plaintiff’s alleged unprofessional conduct toward a parent and a police officer working on campus. Plaintiff does not dispute that school district policy requires teachers to behave in a professional manner to students and staff members at all times. Finally, Welsh’s December 22, 2006, memorandum discussed plaintiff requiring students to purchase books directly from him. Plaintiff concedes that school district policy prohibits teachers from selling books directly to students.
We hold that no reasonable trier of fact could conclude that Welsh’s Written Reprimands were completely motivated by unlawful considerations, that is, by plaintiff’s off-campus statements concerning SFHS and its administration. Rather, the record establishes without dispute that Welsh was motivated, at least in part, by plaintiff’s violations of school and school district policy. Moreover, plaintiff did not demonstrate that a reasonable assistant principal, faced with the same evidence of plaintiff’s conduct and acting at least in part with a lawful motive, would have known that writing Welsh’s Written Reprimands violated clearly established law. Accordingly, Welsh has qualified immunity from plaintiff’s cause of action based on the Welsh’s Written Reprimands. (Stanley, supra, 219 F.3d at p. 1297-1298.)
DISPOSITION
Let the peremptory writ issue directing the trial court to vacate its order denying the motion for summary judgment of Rodriguez, Welsh and Lee and to enter a new order granting the motion for summary judgment of Rodriguez, Welsh and Lee. The stay of the trial is lifted. No costs are awarded.
We concur: KLEIN, P. J., ALDRICH, J.