David W. Monroe v. E. K. McDaniel

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 Alicemarie H. Stotler, Senior United States District***
Judge for the Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID W. MONROE, et al.,
Plaintiffs - Appellants,
v.
E. K. MCDANIEL, et al.,
Defendants - Appellees.
No. 07-15545
D.C. No. 3:05-cv-00329-HDM-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior United States District Judge, Presiding
Submitted June 16, 2010**
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and STOTLER, District
Judge.***
FILED
JUL 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiffs-Appellants David Monroe and Jared Howes appeal the order of the
district court granting partial summary judgment to Defendants-Appellees on their
First Amendment retaliation claim. Plaintiffs also challenge as improper the
“federal case” arguments made by defense counsel during closing argument at trial.
We affirm.
The district court properly granted summary judgment in favor of defendants
Jones and Brooks on the theory that they retaliated against plaintiffs for their union
activity. There was no evidence in the record that Jones retaliated against Plaintiffs
for participating in protected union activity, and the record contains evidence of
only a single anti-union statement by Brooks. Such an isolated statement is
insufficient to support a retaliation claim as a matter of law. See Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998).
The district court also properly granted summary judgment in favor of Jones,
Brooks, and McDaniel on the retaliation claim relating to the flooding incident.
The content of Plaintiffs’ log entries, reports, and comments during the
investigation of the flooding incident did not pertain to a matter of public concern.
Moreover, Plaintiffs spoke pursuant to their job duties as employees of the Nevada
Department of Corrections. Plaintiffs’ speech was therefore not protected by the

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First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Alaska v.
EEOC, 564 F.3d 1062, 1070 (9th Cir. 2009).
We need not address Plaintiffs’ purported third issue on appeal, whether
the district court erred in deciding that because retaliation was not raised in front of
the administrative hearing officer, the issue could not be raised in the district court.
The district court made no such ruling. To the contrary, the retaliation claim was
before the jury.
Finally, the district court did not commit plain error in allowing defense
counsel’s “federal case” arguments during closing. “The federal courts erect a
‘high threshold’ to claims of improper closing arguments in civil cases raised for
the first time after trial. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193
(quoting Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th
Cir. 1986)). Plain error review requires a plain or obvious error that was
prejudicial or affects substantial rights, and that review be necessary to prevent a
miscarriage of justice. Id. at 1193. Assuming that Plaintiffs’ counsel’s objection
was only with respect to the golden opportunity / rob the bank argument, the
district court did not commit plain error by failing to sua sponte strike the “federal
case” arguments from the record. Defense counsel’s argument drew a fair
inference from the fact that plaintiffs never raised the retaliation argument in

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earlier administrative proceedings and instead decided to raise the argument for the
first time in federal court.
AFFIRMED.

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