Steven K. Castello v. City of Seattle, a municipal corporation;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.**
District Court for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN K. CASTELLO,
Plaintiff - Appellant,
v.
CITY OF SEATTLE, a municipal
corporation; et al.,
Defendants - Appellees.
No. 12-35027
D.C. No. 2:10-cv-01457-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted May 9, 2013
Seattle, Washington
Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**
Steven K. Castello appeals the district court’s grant of summary judgment in
favor of the City of Seattle and the Seattle Fire Department on his claims for
FILED
JUN 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We do not consider defendants’ argument, raised for the first time on1
appeal, that Castello’s conduct was motivated by personal animosity. We therefore
grant defendants’ motion to strike the appendix attached to the reply brief because
it was not a part of the record before the district court.
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retaliation against the exercise of his right to free speech under 42 U.S.C. § 1983.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Assuming without deciding that Castello’s speech was on a matter of public
concern, defendants have met their burden under Pickering v. Board of Education,
391 U.S. 563 (1968), to show that their legitimate administrative interests
outweighed Castello’s interest in this particular speech. Defendants have a
legitimate interest in running the fire department efficiently without disruption or
interference. See Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (“[T]he
Government, as an employer, must have wide discretion and control over the
management of its personnel and internal affairs. This includes the prerogative to
remove employees whose conduct hinders efficient operation and to do so with
dispatch.”). Their assessment that Castello’s survey caused disruption or, at a
minimum, was potentially disruptive was reasonable, given the complaints they
received from two of Castello’s co-workers, both of whom had also complained
just prior to the survey that one of them was being targeted by Castello. “When1
close working relationships are essential to fulfilling public responsibilities, a wide

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degree of deference to the employer’s judgment is appropriate. Furthermore, we
do not see the necessity for an employer to allow events to unfold to the extent that
the disruption of the office and the destruction of working relationships is manifest
before taking action.” Connick v. Myers, 461 U.S. 138, 151–52 (1983); see also
Waters v. Churchill, 511 U.S. 661, 673 (1994) (“[Courts] have given substantial
weight to government employers’ reasonable predictions of disruption.”); Moran v.
Washington, 147 F.3d 839, 846 (9th Cir. 1998) (“[C]ourts should not require
government employers to demonstrate that an employee’s speech actually
disrupted efficient office operation; rather, ‘reasonable predictions of disruption’
are sufficient.” (quoting Waters, 511 U.S. at 673)).
Viewing the totality of the circumstances, defendants have demonstrated
under Pickering’s balancing test that their “interest in the effective and efficient
fulfillment of [their] responsibilities to the public” outweigh Castello’s speech.
Connick, 461 U.S. at 150. Accordingly, we find that the district court did not err in
granting defendants summary judgment.
For the same reasons, the district court did not abuse its discretion in
denying Castello’s motion for reconsideration.
AFFIRMED.

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