Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—9th Cir.: Public works director who criticized mayor cannot revive First Amendment claims, (Jul 28, 2025)

By Todd Harrison, J.D.

He had created a proposal and advocated for the creation of a city administrator position to address the mayor’s alleged shortcomings and had a yard sign supporting the opposition candidate.

Affirming a grant of summary judgment against the Section 1983 and state-law claims brought by a former public works director for the City of Chubbuck, Idaho, the Ninth Circuit determined that his retaliation claim failed as matter of law. Although his speech addressed a matter of public concern and his sign supporting another mayoral candidate was protected speech, his criticism of the mayor’s policies and performance and advocacy for adding a city administrator were made pursuant to his official duties and were thus unprotected. Further, the city showed that it had adequate justification for its adverse actions—including asking the director to resign, transferring his duties and reducing his workload—and would have reached the same employment decisions had he never erected the yard sign (Burch v. City of Chubbuck, No. 24-3646 (9th Cir. July 25, 2025)).

In 2015, the mayor of Chubbuck appointed the employee to be the city’s public works director. This role was expansive, encompassing many different areas. The director believed that his workload equated to approximately 2.5 full-time positions.

Relationship sours. For the first six years of the director’s tenure, he and the mayor had a good working relationship. However, things took a turn in 2021 when the director proposed switching the city’s management structure from a “strong mayor” system to a “weak mayor” system. This goal would be effectuated by the creation of a city administrator position. The director reached this determination because he felt that mayor had failed to properly implement the director’s 2018 strategic plan.

In early 2021, the director began to discuss alternative city management approaches with the mayor and the HR director. He also discussed his proposals with members of the city council. On June 1, 2021, he sent the mayor an “options memo” criticizing the mayor’s policies and performance.

After receiving the options memo, the mayor told the director that he no longer supported the proposal to add a city administrator and asked the director to stop advocating for it. At this point, the director believed that the mayor’s attitude began to cool towards him and that he was being cut out of meetings and decisions.

Yard sign. During the 2021 mayoral election campaign, the director decided to support an opponent’s candidacy and placed a campaign sign for the candidate in his yard. The mayor and the director never discussed the director’s support for the candidate or his yard sign prior to the election. The mayor ended up winning re-election.

Resignation request. On November 5, 2021, the mayor met with the director and asked him to resign, stating he no longer had confidence in the director. The director opted to retain his position. The mayor then scheduled an executive session of the city council to argue for the director’s removal. The city council refused to remove the director.

“Moving forward.” Shortly thereafter, the mayor sent the director an email with the subject line “Moving forward” asking the director how he viewed their working relationship and whether he had suggestions for how the two could move forward. The director stated that he would focus solely on his role and would cease further private conversations with council members about the mayor’s performance.

At this point, the director alleged that his role had changed in three key respects: (1) the city’s finance director began bringing finance and budgeting issues to a subordinate department head; (2) all of his planning responsibilities were transferred to another department head; and (3) his responsibility for conducting a leadership training was transferred to the HR director. By March 2022, the director claimed that his workload was reduced to 70-80 percent of a full-time position.

Resignation. On March 3, 2022, the director submitted his resignation effective the following month. He also sent a letter to HR explaining, among things, that he was resigning because the mayor had retaliated against him based on his protected speech.

Subsequently, the director filed this lawsuit. The district court granted summary judgment in favor of the city and the mayor, leading to this appeal.

Public concern. As a matter of law, the court found that the director’s yard sign addressed a matter of public concern. So too did his criticisms of the mayor’s policies and performance, as well as his advocacy for the creation of a city administrator position.

Dahlia factors. Having established that the director’s speech addressed matters of public concern, the court turned its attention to whether the speech was made by the director as a public employee or a private citizen. To help reach this determination, the court applied the three factors it had established in Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (en banc). Those three factors are: (1) whether or not the employee confined his communications to his chain of command; (2) examining the subject matter of the communication; and (3) asking whether the employee spoke in direct contravention of his supervisor’s orders.

Chain of command. Applying the first factor, the court found the yard sign weighed in favor of the director’s speech being protected. The sign was displayed to the general public and the director’s support of the mayor’s opposition candidate was not discussed at the workplace. However, the court found the opposite to be true with regard to the director’s criticisms of the mayor and his advocacy for the creation of a city administrator position, noting that the two primary audiences for this speech were the mayor and the city council, both of which were in the director’s chain of command.

Routine speech. Turning to the second Dahlia factor, the court explained this factor asks whether a public employee’s speech is more akin to a “routine” report or function of their position, rather than an attempt to raise alarm bells on an issue not normally within their purview. Routine speech is less likely to be protected, said the court.

Here, the court again found that the yard sign weighed in favor of the director’s speech being protected. However, the court again found the opposite to be true of his criticisms and city administrator proposal, noting that this speech was akin to a routine function of his role.

Contravening orders. As to the final Dahlia factor—whether a public employee spoke in direct contravention to his supervisor’s orders—the court found this factor weighed against the director’s speech being protected, insofar as his speech concerned his criticisms and city administrator advocacy. The director admitted he stopped advocating for a city administrator after the mayor told him to drop the matter and stopped criticizing the mayor to city council members after the mayor called for an executive session.

The court again reached an opposite conclusion with regard to the yard sign, noting there was no genuine dispute that the director did not erect his yard sign pursuant to his official duties. Thus, this speech was protected. However, the court explained that this did not mean that the director had established a First Amendment violation based on that speech.

Adverse employment actions. Having established that the yard sign constituted protected speech, the court applied the remaining Pickering factors to that speech to determine whether the director’s First Amendment retaliation claim could survive, beginning with whether the director had suffered an adverse employment action.

Here, the court noted that a reasonable factfinder could determine that the mayor’s requests for the director to resign and his subsequent attempt to remove him via the city council constituted adverse employment actions and could reasonably deter employees from engaging in constitutionally protected speech. The court also assumed without deciding that the transfer of some of the director’s duties constituted adverse employment actions. However, the court found that there was no genuine dispute that these activities amounted to a constructive discharge.

According to the director, he maintained 70-80 percent of a full-time position. While he may have preferred to maintain all of his duties, constructive discharge cannot be based on an employee’s subjective preference for one role over another, explained the court. Further, the director stated that he had no negative interactions with the mayor at the time of his resignation.

Motivating factor. Next, the court determined that a reasonable factfinder could find that the director’s yard sign was a “substantial or motivating factor” in at least one of the adverse employment actions, noting that the timeline of events could support a causal connection between the mayor’s learning of the sign and the adverse employment actions.

Here, no more than eight months had passed between when the mayor learned of the sign and the occurrence of the adverse employment actions. These actions occurred in “proximity in time” to when the mayor learned of the yard sign, and there remained a genuine issue as to whether the sign was a “substantial or motivating factor” in the adverse employment actions. However, the court pointed out that this still did not mean that the director had established a First Amendment violation based on that speech.

Adequate justification. Turning to the fourth and fifth Pickering factors—whether the city had an adequate justification for the adverse employment actions or would have reached the same decision absent the protected speech—the court found the city had satisfied its burden.

There was no genuine dispute that the mayor was motivated, at least in part, by the director’s “options memo” in asking for his resignation and later trying to remove him via the city council. As this was unprotected speech, there was no genuine dispute that the mayor was justified in trying to remove the director based on it.

As to the transfer of the director’s duties and his reduction in decision-making, the court found there was a plausible explanation as to why this occurred, namely that the director had been trying to get department heads to have more influence over their own budgets. Further, the director had complained to the mayor that he was working the equivalent of 2.5 full-time positions, hoping the mayor might transfer some of his duties. The director did not raise material facts to create a genuine issue as to whether the city had an adequate justification for these actions nor whether it would have taken the same actions had he not erected the yard sign. Accordingly, the decision of the district court was affirmed.

The case is No. 24-3646.

Judge: Tallman, R.

Attorneys: Amanda E. Ulrich (Casperson Ulrich Dustin) for Rodney Burch. Blake G. Hall (Hall Angell & Associates) for City of Chubbuck.

Companies: City of Chubbuck

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