Opinion
No. 05-35472.
Augustyn's request for oral argument is denied because the panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 28, 2007.
Kevin T. Lafky, Esq., Lafky Lafky, Salem, OR, for Plaintiff-Appellant.
Marc Abrams, AGOR — Office of the Oregon Attorney General, Brendan C. Dunn, Esq., Salem, OR, for Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-06170-TMC.
The parties consented in writing to proceed before a magistrate judge.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Thomas Augustyn appeals from the district court's summary judgment in favor of defendant Jones in his 42 U.S.C. § 1983 action alleging Jones violated his First Amendment rights by issuing a memorandum clarifying expectations after Augustyn told an off-color joke at a work conference. We have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment de novo, Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003), and we affirm.
The district court properly granted summary judgment, because the evidence fails to create a triable issue as to whether Augustyn's behavior constituted speech on a matter of public concern, see City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004), or whether he suffered an adverse employment action as a result of this behavior, see Nunez v. City of Los Angeles, 147 F.3d 867, 874-75 (9th Cir. 1998). Accordingly, Augustyn failed to show the requisite elements of his First Amendment retaliation claim. See Alpha