Shenetta Toney v. NEIL YOUNG and BILL ATTERBERRY

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHENETTA TONEY,
Plaintiff-Appellant,
v.
NEIL YOUNG and BILL ATTERBERRY,
Defendants-Appellees.
No. 17-15395
D.C. No.
2:15-cv-01225-WBS-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted February 12, 2018
San Francisco, California
Before: SCHROEDER and WATFORD, Circuit Judges, and ILLSTON,** District
Judge.
This case involves an unusual claim of retaliation for the exercise of First
Amendment rights. Plaintiff-Appellant Shenetta Toney (“Ms. Toney”) appeals
from the district court’s order granting summary judgment to Defendants-
FILED
MAR 01 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.

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Appellees Neil Young and Bill Atterberry, school district officials at the time of
the underlying incident. Our appellate jurisdiction rests on 28 U.S.C. § 1291, and
we AFFIRM.
Ms. Toney was terminated on the basis of allegations concerning her
behavior during a melee that took place in the parking lot of Bear Creek High
School, where she was employed as a campus supervisor. The melee began with
multiple fights between various students and non-students. Police from two
different communities were called and responded to the scene. It is not disputed
that Ms. Toney’s job duties as a campus supervisor included helping to maintain an
orderly and safe environment for the students. It is further undisputed that the
incident in question led to physical altercations between students and police. The
district court record includes, among other things, a video of the chaotic scene, as
well as documentation of the administrative investigations and proceedings that led
to her termination.
On the basis of the entire record, we must conclude the district court
properly found Ms. Toney’s First Amendment retaliation claim fails. This is
because, to the extent her behavior during the episode included speech, she spoke
in her capacity as a public employee. The Supreme Court, in a seminal decision on
the First Amendment rights of public employees, emphasized that the “First
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Amendment does not prohibit managerial discipline based on an employee’s
expressions made pursuant to official responsibilities.” Garcetti v. Ceballos, 547
U.S. 410, 424 (2006). This rule applies “no matter how much a matter of public
concern” the speech addresses. Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d
1255, 1260 (9th Cir. 2016).
Ms. Toney contends that she did not speak in her capacity as an employee
because her duties did not specifically include declaring police brutality and
instructing students to film it. This argument is unavailing. Her comments were
made during the course of her duties as a campus supervisor to maintain campus
order and safety. As the Supreme Court said in Garcetti, his superiors retained the
“authority to take proper corrective action” if they “thought his memo was
inflammatory or misguided.” Garcetti, 547 U.S. at 423. Ms. Toney’s superiors
were in a similar position.
Ms. Toney’s judicial estoppel argument is also without merit. There is no
inconsistency between the school district’s position in the arbitration proceeding
that she went beyond her duties, and the position taken here that the episode
occurred during the time when she was on duty as a campus supervisor. See
Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 994 (9th
Cir. 2012).
AFFIRMED.
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