Unreported / Non-Citable
Background
David Shenbaum and Timothy O’Brien sued the City of Manhattan Beach, asserting two First Amendment retaliation claims. The first alleged that the City entered a 2020 agreement altering compensation for the Battalion Chief position in retaliation for the plaintiffs’ role in an early 2018 Vote of No Confidence against a past fire chief. The second alleged that their failure of a 2023 promotional exam for the Division Chief position was retaliation for filing this lawsuit. The district court, with a magistrate judge presiding, granted summary judgment to the City on both claims, and the plaintiffs appealed.
On the first claim, the plaintiffs argued the 2020 Agreement was an adverse action because they would face a lower salary if ever promoted to the permanent Battalion Chief position. They also relied on an alleged March 2018 text exchange among firefighters about the vote to show employer opposition to their speech, though the district court had refused to admit those messages into evidence. On the second claim, they alleged the City designed the 2023 exam so that they would fail, and that they did fail. The City pointed to financial concerns about the fire chief’s compensation and overtime calculations amid pandemic uncertainty, and to outside panelists who attested they knew nothing of the lawsuit. The Ninth Circuit reviewed the summary judgment rulings de novo.
The Court’s Holding
The panel affirmed. On the 2020 Agreement claim, it held the plaintiffs failed to create a triable issue on adverse action and causation. It was uncontested that the agreement had no effect on any position the plaintiffs actually held, so it could not negatively affect their compensation, and speculation about a hypothetical future position could not create a triable issue. The court added that even assuming an adverse action, the plaintiffs could not show the vote was a substantial motivating factor. The alleged text exchange occurred more than two years before the agreement, and the court cited Keyser, which rejected a retaliation claim where the employer’s knowledge of protected speech predated the alleged adverse action by over two years.
The court also found no showing of pretext. Pandemic-era uncertainty bolstered the City’s financial concerns about the fire chief’s compensation and overtime calculations. The plaintiffs suggested the City restored the cut to longevity pay once the 2023 exam made them ineligible for the position. But that restoration came two years after the agreement and almost five years after the vote.
On the 2023 exam claim, the court found no causation. The outside panelists all attested they lacked knowledge of the lawsuit, and the plaintiffs did not effectively create a material dispute about those facts. The panelists unanimously failed the plaintiffs for multiple non-retaliatory reasons, and the use of independent panelists broke any causal chain. Because the underlying constitutional claims failed, the Monell claims against the City failed too. Finally, any error in refusing to admit the 2018 text messages was harmless, because the 2020 Agreement claim fails even considering them.
Key Takeaways
- A compensation change tied to a position the employee does not hold was not a triable adverse action here, because speculation about a hypothetical future promotion is not enough.
- A gap of more than two years between the alleged evidence of employer opposition to protected speech and the challenged action weighed against causation, as in Keyser.
- Independent outside decisionmakers who attest they did not know of the plaintiff’s protected activity, and whose attestations the plaintiff does not meaningfully dispute, can defeat causation on a promotion-related retaliation claim.
- Monell claims against the City fell with the underlying constitutional claims, so no separate municipal-liability analysis was needed.
- An evidentiary exclusion is harmless when the claim would fail even if the excluded evidence were considered.
Why It Matters
This is a non-precedential memorandum under Ninth Circuit Rule 36-3, so it binds no one and serves mainly as an illustration of how the court applies existing retaliation precedent at summary judgment. It shows that public-employee plaintiffs must tie the challenged action to an actual effect on a position they hold, and must offer evidence of motive that is not stale.
The ruling also shows the practical value of independent decisionmaking. Employers that use outside evaluators with no knowledge of the protected activity can strengthen their causation defense. The disposition resolves only the summary judgment record before the court. It does not decide whether the underlying speech was protected, and the district court judgment stands as affirmed.