                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 13 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT MCBURNIE,                                 No. 11-16267

              Plaintiff - Appellant,             D.C. No. 3:09-cv-08139-FJM

  v.
                                                 MEMORANDUM*
PRESCOTT, CITY OF, a body politic; et
al.,

              Defendants - Appellees.



ROBERT MCBURNIE,                                 No. 11-16316

              Plaintiff - Appellee,              D.C. No. 3:09-cv-08139-FJM

  v.

PRESCOTT, CITY OF, a body politic,

              Defendant - Appellant,

  and

ERIC SMITH; et al.,

              Defendants.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                      Argued and Submitted November 5, 2012
                             San Francisco, California

Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.

      1. We reverse the district court’s summary judgment for defendants on

McBurnie’s First Amendment retaliation claim. “[T]he determination whether the

speech in question was spoken as a public employee or a private citizen presents a

mixed question of fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546

F.3d 1121, 1129 (9th Cir. 2008). “[T]he scope and content of a plaintiff’s job

responsibilities can and should be found by a trier of fact . . . .” Id. Viewing the

evidence at the time of summary judgment in the light most favorable to McBurnie

as the nonmoving party, he raised a genuine and material dispute over whether his

speech, and in particular, his communications with the Arizona Department of

Occupational Safety and Health, were beyond the scope of his regular job duties.1



      1
         We have observed that “the right to complain . . . to an independent state
agency is guaranteed to any citizen in a democratic society regardless of his status
as a public employee,” and the employee does not lose that right “simply because
[he] initiated the communications while at work or because they concerned the
subject matter of [his] employment.” Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir.
2006).

                                           2
Although we remand for further proceedings on this claim, we do so without

prejudice as to whether defendants may file a renewed motion for summary

judgment on the basis of the evidentiary record presented at trial.

      2. The district court did not err in giving the jury a “but-for” causation

instruction on McBurnie’s FLSA retaliation claim. See Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 176 (2009).2

      3. The district court erred in limiting the scope of McBurnie’s FLSA

retaliation claim as a matter of law and instructing the jury that it could only

consider whether McBurnie’s discharge was retaliatory. An action taken by an

employer is retaliatory if “a reasonable employee would have found the challenged

action materially adverse, which in this context means it well might have dissuaded

a reasonable worker from making or supporting a” FLSA complaint. Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks




      2
        Our earlier cases are not to the contrary. In Lambert v. Ackerley, 180 F.3d
997 (9th Cir. 1999) (en banc), the district court had given a “substantial motivating
factor” FLSA retaliation jury instruction, but Lambert neither approves nor
disapproves of that instruction, because it holds that retaliation was the but-for
cause of plaintiffs’ termination on the record. See id. at 1008-10. Knickerbocker v.
City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996), enunciated a dual motive
standard, but then held that FLSA retaliation plaintiffs must show that “the adverse
actions would not have been taken ‘but for’ the protected activities.”

                                           3
omitted) (construing Title VII anti-retaliation provision, which is substantially

identical to FLSA anti-retaliation provision).

      The district court concluded as a matter of law that all of the actions taken

against McBurnie, short of his discharge, were too trivial to meet the material

adversity standard. But from the evidence presented at trial, a reasonable jury could

have concluded otherwise. McBurnie presented evidence of a department-wide

email singling him out for his complaints about the overtime policy; heckling;

ostracism; rescheduling and reassignment of job duties; loss of seniority for

purposes of requesting vacation time; and surveillance by supervisors. Whether

these actions occurred, whether they were retaliatory, and whether they were

materially adverse under the particular circumstances of McBurnie’s employment

situation should be decided by a trier of fact. “[T]he significance of any given act

of retaliation will often depend upon the particular circumstances,” and an action

that would be trivial in one employment context may be materially adverse in

another. Id. at 69.

      4. We affirm the district court’s judgment as a matter of law for defendants

on McBurnie’s Arizona state law claim of intentional interference with contract.

Under Arizona law, “[d]efendants who are acting within the scope of their

authority, for the benefit of their employer, are the employer and cannot interfere


                                          4
with their own contract.” Spratt v. N. Auto. Corp., 958 F. Supp. 456, 464 (D. Ariz.

1996) (citations omitted). The evidence at trial showed that defendants were acting

within the scope of their authority when they terminated McBurnie’s employment.

      5. We affirm the district court’s judgment as a matter of law for defendants

on McBurnie’s Arizona state law wrongful discharge claims. First, Arizona no

longer recognizes a common law tort of wrongful discharge. See Powell v.

Washburn, 125 P.3d 373, 380 (Ariz. 2006) (en banc) (recognizing supersession by

statute of Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025 (Ariz. 1985) (en

banc)); see also Chaboya v. Am. Nat’l Red Cross, 72 F. Supp. 2d 1081, 1092 (D.

Ariz. 1999) (noting that “the Arizona Employment Protection Act, A.R.S. § 23-

1501 et seq., overruled Wagenseller and limited the grounds under which an

employee could claim wrongful discharge”). Second, McBurnie did not establish a

predicate for statutory wrongful discharge under Arizona Revised Statutes § 23-

1501. McBurnie alleged that he was terminated in violation of the Arizona

Constitution. While Arizona’s wrongful discharge statute bars termination “in

violation of a statute of [Arizona],” A.R.S. § 23-1501(3)(b), or “in retaliation for . .

. [t]he refusal by [an] employee to commit an act or omission that would violate the

Constitution of Arizona,” id. § 23-1501(3)(c), it does not bar termination in

violation of the Arizona Constitution.


                                           5
      6. We reverse the district court’s judgment as a matter of law on McBurnie’s

Arizona state law negligent infliction of emotional distress claim (“NIED”). Under

Arizona law, lasting mental or emotional disturbances may establish NIED. Harris

v. Maricopa Cnty. Sup. Ct., 631 F.3d 963, 978 (9th Cir. 2011). NIED may lie in the

employment context. See Loos v. Lowe’s HIW, Inc., 796 F. Supp. 2d 1013, 1020

(D. Ariz. 2011).

      Viewing the evidence in the light most favorable to McBurnie and drawing

all reasonable inferences in his favor, see Martin v. Cal. Dep’t of Veterans Affairs,

560 F.3d 1042, 1046 (9th Cir. 2009), we conclude that a reasonable jury could

have found that McBurnie suffered lasting emotional disturbances as a result of

defendants’ actions. McBurnie testified that he experienced difficulty eating,

sleeplessness, anxiety, panic attacks, and headaches for the 18 months leading up

to his termination and after his termination. His wife testified that he became

depressed and withdrawn after his termination, sought some psychological

treatment, and had panic attacks two to three times a month. Whether defendants

were negligent in causing these disturbances, so as to establish NIED under

Arizona law, should be decided by the trier of fact.

      7. We reverse the grant of attorney’s fees for work on an informal settlement

of McBurnie’s FLSA claim, which was never filed in court. When a plaintiff


                                          6
brings a FLSA action in court, “[t]he court in such action shall . . . allow a

reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29

U.S.C. § 216(b) (emphasis added). But “[n]o separate action is maintainable under

[FLSA] for the collection of attorney’s fees.” Rural Fire Prot. Co. v. Hepp, 366

F.2d 355, 362 (9th Cir. 1966).

      In sum, we affirm in part, reverse in part, and remand for further

proceedings on McBurnie’s First Amendment retaliation claim, FLSA retaliation

claim, and Arizona state law NIED claim.

      The parties shall bear their own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




                                           7
                                                                                   FILED
McBurnie v. Prescott, 11-16267                                                     MAR 13 2013

                                                                                MOLLY C. DWYER, CLERK
KLEINFELD, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS




      I concur in parts 2, 4, 5, and 7. I respectfully dissent from the rest.

McBurnie had his day in court and lost. Any error that resulted is harmless and is

not grounds for reversal. The majority further errs in remanding the negligent

infliction of emotional distress claim when there was no evidence that the city

breached a duty when it fired McBurnie.



       McBurnie already had a six-day jury trial where the jury rejected his claim

for retaliation under the Fair Labor Standards Act. Any error that may have

occurred when the judge refused to let certain other claims or theories of liability

go to the jury was harmless error under Rule 61 since it did not affect McBurnie’s

“substantial rights.”



      The jury heard two accounts at trial. McBurnie’s was that he was mistreated

by his supervisors for complaining about overtime, and that the city retaliated

against McBurnie with trivial annoyances followed by termination. The city’s was

that McBurnie was a bad employee who was picked for the routine layoff because

                                           1
he was obstinate and refused to train a coworker. The jury accepted the city’s

account. The jury did not believe that McBurnie was fired for complaining about

overtime, and it would not have believed that his complaint was the reason for any

of the other supposedly adverse employment actions, such as increased

supervision, and being transferred to another department after he himself requested

transfer. Error, if any, was harmless. It made no difference that the jury never

heard the First Amendment retaliation claim because the jury concluded that the

city did not have a retaliatory motive for firing McBurnie.



      Negligent infliction of emotional distress would not be a valid claim in the

employment context in Arizona under Mack v. McDonnell Douglas Helicopter

Co.1 The elements of negligent infliction of emotional distress under Arizona law

are 1) the defendant was negligent; 2) the defendant’s negligence created an

unreasonable risk of bodily harm to the plaintiff; 3) the defendant’s negligence was

a cause of emotional distress to the plaintiff; 4) the plaintiff’s emotional distress




      1
         Mack v. McDonnell Douglas Helicopter Co., 880 P.2d 1173, 1177 (Ariz.
Ct. App. 1994) (“In the absence of a tort claim recognized by Wagenseller, Mack’s
effort, to enlarge his employment rights through the device of a negligence action,
must fail.”).
                                           2
resulted in physical injury or illness.2 McBurnie lacked a prima facie case on at

least the first three of the four elements.




      2
       Revised Arizona Jury Instructions (Civil) 4th Negligence 9.
                                              3
