In Thomas v. County of Riverside, ___ F.3d ___ (9th Cir. August 18, 2014), the Ninth Circuit Court of Appeals reversed in part the order of the U.S. District Court for the Central District of California (Judge Phillips), granting summary judgment on plaintiff’s claims of retaliation under the First Amendment to the United States Constitution.

Plaintiff was a Communications Supervisor for Defendant Sheriff’s Department who claimed that she was retaliated against for exercising her first amendment rights; specifically, her participation in union and political activities.  These included serving as a negotiator for her union, giving public speeches, and speaking with the media about union issues.  According to plaintiff, defendant retaliated against her by taking over thirty (30) separate adverse employment actions.  Nevertheless, the district court granted Defendant’s motion for summary judgment on the ground that Plaintiff failed to provide evidence of materially adverse employment actions that would be “reasonably likely to deter” speech protected by the First Amendment.  In so holding, the district court dismissed all of the adverse employment actions identified by Plaintiff, analyzing nine (9) in some detail and collectively dismissing the rest as “petty workplace gripes . . . [that] do not rise to the level of retaliatory adverse employment actions.” Plaintiff appealed.

The appellate court disagreed.  First, it held that the district court erred in dismissing many of the adverse employment actions identified by plaintiff as “trivial” as a matter of law: “the District court erred . . . because “[a] reasonable juror might well find that these actions, even if viewed in isolation, could deter protected speech.” These actions included: (1) removing Plaintiff from a community college teaching assignment, costing her some $9,000 per year; (2) prohibiting Plaintiff from using break time to travel between work sites, thereby requiring her to use unpaid time for work travel; (3) rescinding a previously approved vacation; (4) and removing Plaintiff from an unpaid position with a department committee.  Additionally, of the nine (9) acts of retaliation that the district court did analyze, at least four (4) “should have survived summary judgment.” These acts included three involuntary transfers of Plaintiff to different departments and shifts.  Indeed, Plaintiff “adduced evidence that these transfers came shortly after her acts of speech, that her employer had expressed opposition to that speech, and that the business justifications [that defendant offered for these actions] were pretextual. Any one of these showings, let alone all three, is sufficient to survive summary judgment if it presents a genuine factual dispute.” Accordingly, the action was remanded for further proceedings.