Stewart Handte v. Storey County, a political subdivision of the State of Nevada

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable William H. Stafford, Jr., Senior District Judge for the U.S.***
District Court for Northern Florida, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEWART HANDTE,
Plaintiff - Appellant,
v.
STOREY COUNTY, a political
subdivision of the State of Nevada;
JAMES G. MILLER; GERALD
ANTINORO,
Defendants - Appellees.
No. 10-17745
D.C. No. 3:10-cv-00111-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 7, 2011**
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***
FILED
DEC 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
Stewart Handte, formerly a deputy sheriff with the Storey County Sheriff's
Office, appeals the district court's dismissal of his amended complaint for failure to
state a claim. Although he ultimately resigned from his position as a deputy
sheriff, Handte alleged that he was reprimanded, suspended, and then
constructively discharged for speaking out on matters of public concern. Handte
limits his appeal to the dismissal of his First Amendment retaliation and state law
tortious discharge claims. Because the factual and procedural background is
familiar to the parties, we do not recount it here. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
In Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), this court explained that, in
a First Amendment retaliation case, a court must employ a sequential five-step test,
considering:
(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.
Id. at 1070. Because these are sequential steps, a plaintiff's failure to satisfy any
one of the steps ends the inquiry. Johnson v. Poway Unified Sch. Dist., 658 F.3d

-- 2 of 4 --

3
954, 961-62 (9th Cir. 2011). Here, the district court correctly determined that
Handte failed at Eng's first step, the public concern step.
Handte alleged that the defendants took action against him after he (1)
complained to the defendants about their lack of thoroughness in an Internal
Affairs investigation; (2) criticized the defendants regarding a change in their
overtime policy; and (3) criticized the defendants regarding a new firearms training
practice. As found by the district court, none of Handte's alleged complaints or
criticisms supports a First Amendment retaliation claim. Handte's complaints
about the defendants' investigative process were focused entirely on an internal
investigation into his own conduct, a matter at the core of what is properly
considered an individual grievance and not a matter of public concern. Handte's
vaguely-alleged criticism about the Sheriff's practice "of when an employee starts
and ends overtime" constituted speech about the minutiae of the defendants'
internal employment practices rather than speech about a matter of broad societal
concern. Handte's alleged criticism of the defendants' firearms training
policy—criticism that occurred during the internal affairs investigation into
Handte's discharge of a firearm at the shooting range—was a mere extension of
Handte's dispute with his superiors over a personnel matter and was not intended to
call anyone's attention to a matter of concern to the public.

-- 3 of 4 --

4
Under Nevada law, a claim for tortious constructive discharge requires proof
that an employee's resignation was "induced by actions and conditions that are
violative of public policy." Martin v. Sears, Roebuck and Co., 899 P.2d 551, 553
(Nev. 1995). Here,
the district court correctly dismissed Handte's claim for tortious discharge because
Handte failed to allege any facts to suggest that his resignation was induced by
actions of the defendants that contravened public policy.
AFFIRMED.

-- 4 of 4 --