                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           OCT 25 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

PATRICK LEONARD, an individual and               No.   14-56796
STEVEN BARRETT, an individual,
                                                 D.C. No.
               Plaintiffs-Appellants,            2:13-cv-05867-GW-AJW

 v.
                                                 MEMORANDUM*
CITY OF LOS ANGELES, a Municipal
Corporation,

               Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                            Submitted October 21, 2016**
                                Pasadena, California

Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
      Patrick Leonard and Steven Barrett (Plaintiffs) are firefighters who sued

their employer, the City of Los Angeles, after they failed a psychological exam and

were transferred out of the Arson Counter Terrorism Section of the Los Angeles

Fire Department (Arson). Leonard and Barrett brought procedural due process

claims against the City under 42 U.S.C. § 1983, alleging violations of property and

liberty interests, as well as state claims under the California Peace Officer and

Firefighter Procedural Bill of Rights Acts (POBRA and FFBOR). The district

court granted summary judgment to the City on all claims, so we have jurisdiction

under 28 U.S.C. § 1291. Reviewing de novo, and construing all facts in the light

most favorable to Plaintiffs, see Bravo v. City of Santa Maria, 665 F.3d 1076, 1083

(9th Cir. 2011), we affirm.

      1. Plaintiffs’ property interest claim fails because Plaintiffs do not have a

protected property interest in their assignment to Arson. We have held that

individuals do not have a property interest in a promotion where the promotion is

contingent on meeting certain requirements. Nunez v. City of Los Angeles, 147

F.3d 867, 871–73 (9th Cir. 1998). Here, Plaintiffs did not meet one of the statutory

requirements for an assignment as an investigator with peace officer

powers—passing a psychological exam—so they had no vested rights in their

Arson assignment. See id. Plaintiffs concede that passing this exam was


                                           2
advertised as a requirement for the assignment, that they were told by superiors

they would have to pass the exam to stay in Arson, and that the exam was also a

statutory requirement. Thus, the district court properly granted summary judgment

on Plaintiffs’ property interest claim.

      2. Plaintiffs’ liberty interest claim fails for lack of publication. To succeed

on a liberty interest claim, Plaintiffs must show that the City disseminated

stigmatizing information about them. See Llamas v. Butte Cmty. Coll. Dist., 238

F.3d 1123, 1130–31 (9th Cir. 2001). We agree with the district court that there is

no evidence that the City disseminated information about Plaintiffs’ psychological

disqualifications. The five pages of deposition testimony cited by Plaintiffs as

evidence of publication are insufficient because (1) this evidence is not part of the

record on appeal, see Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1078 (9th

Cir. 1988), and (2) even if we could consider these pages, they provide nothing

more than inadmissible rumors and speculation.

      3. Plaintiffs’ POBRA/FFBOR claims also fail because Plaintiffs were not

subject to punitive action. See Cal. Gov’t Code §§ 3254(b), 3304(b). An

officer/firefighter is not subject to punitive action by being denied a promotion

based on merit during a probationary period, even if the denial leads to a decrease

in pay. Guinn v. Cty. of San Bernardino, 184 Cal. App. 4th 941, 945–47 (2010).


                                           3
Plaintiffs neither completed their probationary period nor met all of the

requirements for an Arson assignment. Thus, they were not subject to punitive

action when they were transferred out of Arson to other positions within the fire

department. See id.

      In light of our disposition, we need not reach the question of whether the

procedures offered to Plaintiffs to contest their transfer were constitutionally

adequate.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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