                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAY 27 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

VAN A. PENA,                                     No. 10-15326

              Plaintiff - Appellant,             D.C. No. 4:00-cv-04009-CW

  v.
                                                 MEMORANDUM *
TIMOTHY MEEKER; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                       Argued and Submitted April 15, 2011
                              Pasadena, California

Before: REINHARDT and GOULD, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Pena alleges that he was terminated in retaliation for a February 2001 memo

in which he reported suspected mistreatment of a Sonoma Developmental Center

(SDC) patient to the defendant, SDC Medical Director Judith Bjorndal. “[W]hen

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for Central California, sitting by designation.
public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.” Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006). SDC Policy Section 400, “Abuse,

Mistreatment or Neglect Prevention,” requires any SDC staff having knowledge of

patient mistreatment or neglect to “report the events in question to appropriate

authorities.” The reporting requirements direct staff members to report such

incidents to their supervisors, or “[i]f a staff [member] is uncomfortable with

reporting to his/her supervisor, a staff person may report through another channel,

such as program director, program assistant, nursing coordinator, department head,

SDC police, special investigator, quality assurance staff, or a facility

administrator.” Because Pena’s reporting of mistreatment to an SDC superior thus

fell squarely within his official duties as an SDC physician, he was not entitled to

First Amendment protection for that action, and the district court’s grant of

summary judgment to Bjorndal on Pena’s claims arising from the February 2001

memo is affirmed.

      Pena further appeals the district court’s grant of summary judgment to

Bjorndal on his claim that he was fired in retaliation for a confidential complaint

that he submitted to the California Department of Health Services (DHS) regarding


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removal of patient photographs from files at SDC. As a result of Pena’s DHS

complaint, DHS issued a Statement of Deficiencies to SDC, requiring SDC

Executive Director Timothy Meeker to implement a Plan of Correction modifying

SDC policies for removal of patient photographs. Exactly one week after SDC

implemented the Plan of Correction, Pena’s habit of taking patient photographs

was raised as a “big issue” at a meeting of senior SDC officials attended by both

Bjorndal and Meeker, and later that day Bjorndal met with Pena and instructed him

to cease taking such photos without patient consent. Additionally, Pena presented

evidence in opposition to Bjorndal’s motion for summary judgment indicating that

he had a reputation among his superiors at SDC, including Meeker, as a repeat

whistleblower whose complaints of patient mistreatment threatened to subject SDC

to legal liability.

       The district court granted summary judgment against Pena based upon its

conclusion that Pena had failed to raise a genuine issue of material fact as to

whether Bjorndal knew he was the individual responsible for the DHS complaint.

However, “[a]s with all states of mind, knowledge must normally be proven by

circumstantial evidence.” United States v. Jewell, 532 F.2d 697, 708 (9th Cir.

1976) (Kennedy, J., dissenting). That SDC supervisory personnel viewed Pena as

a troublesome whistleblower and that his taking of patient photographs was raised


                                           3
at both an executive committee meeting and in a meeting between Bjorndal and

Pena only one week after the SDC had been compelled by DHS to implement a

Plan of Correction on the subject of patient photographs provides strong

circumstantial evidence from which a reasonable factfinder could infer that SDC

leadership, including Bjorndal, suspected Pena of having filed the DHS complaint

and retaliated against him on that basis. Accordingly, the district court’s grant of

summary judgment to Bjorndal on this claim is reversed.

      Because Pena’s various retaliation claims relative to the exercise of his First

Amendment rights were extremely closely related, the district court’s erroneous

grant of summary judgment regarding the DHS claim requires vacation of the jury

verdict on those of Pena’s retaliation claims that went to trial, so that the related

claims can be heard jointly and the evidence evaluated in its totality. See Lies v.

Farrell Lines, Inc., 641 F.2d 765, 774 (9th Cir. 1981) (“[A]lthough partial new

trials are permitted, the device ‘may not properly be resorted to unless it clearly

appears that the issue to be retried is so distinct and separable from the others that a

trial of it alone may be had without injustice.’” (quoting Gasoline Prods. Co. v.

Champlin Ref. Co., 283 U.S. 494, 500 (1931)).

      Moreover, at trial the district court excluded SDC Police Chief Ed

Contreras’s testimony that Meeker and SDC Clinical Director Patty Rees ordered


                                            4
him to “find dirt” on Pena because they were concerned that Pena’s whistleblowing

activities could subject the SDC to liability. Because a retaliation suit “requires a

showing of an employer’s improper motive and ‘an employer’s true motivations

are particularly difficult to ascertain,” see Casumpang v. Int’l Longshoremen’s and

Warehousemen’s Union, Local 142, 269 F.3d 1042, 1059 (9th Cir. 2001),

retaliation cases often turn upon circumstantial evidence. Here, the fact that SDC

leaders, including Bjorndal’s direct superior, desired Pena’s termination so

strongly that they were willing to engage the SDC Police Chief in a cloak-and-

dagger investigation of Pena would allow a jury to infer that those leaders would

have communicated that desire to Bjorndal. Because Contreras’s evidence is

highly probative and because any undue prejudice could be addressed through

testimony by Bjorndal, Meeker, and Rees, the district court abused its discretion in

excluding Contreras’s testimony.

      Pena further appeals the district court’s refusal to provide the jury with his

proposed response to a note it sent to the court during its deliberations. Because

we vacate the verdict against Pena and remand for retrial for the reasons discussed

above, we do not reach this issue on appeal.

      Costs on appeal are awarded to the plaintiff.

      AFFIRMED in part, REVERSED in part, and REMANDED.


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