Glen Anderson v. City of Rialto, a municipal corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN ANDERSON,
Plaintiff-Appellant,
v.
CITY OF RIALTO, a municipal
corporation; et al.,
Defendants-Appellees.
No. 18-55710
D.C. No.
5:16-cv-01915-JGB-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 6, 2019
Pasadena, California
Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges.
Glen Anderson appeals the district court’s grant of summary judgment in
favor of defendants, the City of Rialto, Randy De Anda, and Ed Scott, for claims
brought pursuant to 42 U.S.C. § 1983 and Cal. Lab. Code § 1102.5. The parties are
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
DEC 10 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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familiar with the facts, so we do not repeat them here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s grant of summary judgment. See Ah
Quin v. Cty. of Kauai Dep't of Transp., 733 F.3d 267, 270 (9th Cir. 2013). The
Ninth Circuit applies a five-step test to determine whether a public employee has
an actionable First Amendment retaliation claim: “(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.” Eng v. Cooley, 552 F.3d
1062, 1070 (9th Cir. 2009).
The plaintiff bears the burden of presenting evidence to satisfy the first three
steps. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Once
this burden is met, the government must present evidence that satisfies one of the
two remaining steps. Ulrich v. City and County of San Francisco, 308 F.3d 968,
976-77 (9th Cir. 2002). Under the fifth step, the government may avoid liability by
showing, by a preponderance of evidence, that the employee's protected speech
was not a but-for cause of the adverse employment action. Soranno's Gasco, 874

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F.2d at 1315 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285 (1977)).
Taking Anderson’s version of the facts as true, the government meets its
burden under step five. The district court did not err in granting summary judgment
on both First Amendment retaliation claims under § 1983. Anderson’s claims
against Scott are derivative of his claims against the City of Rialto and De Anda
and thus fail for the same reason.
The district court also did not err in granting summary judgment of the
whistleblower retaliation claim because §1102.5 does not protect individuals who
report a publicly known fact. Mize-Kurzman v. Marin Cmty. Coll. Dist., 202 Cal.
App. 4th 832, 858 (2012). Anderson’s alleged disclosure concerned a conversation
that occurred during a public, televised city council meeting.
AFFIRMED.

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