                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAR 01 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHENETTA TONEY,                                  No.    17-15395

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-01225-WBS-AC
 v.

NEIL YOUNG and BILL ATTERBERRY,                  MEMORANDUM*

              Defendants-Appellees.


                    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-

      *
             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.
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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