                                                                              FILED
                           NOT FOR PUBLICATION                                  MAY 04 2011

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



                            FOR THE NINTH CIRCUIT


RICK EATON,                                      No. 09-17907

              Plaintiff - Appellee,              D.C. No. 2:07-cv-00315-FCD-
                                                 KJM
  v.

MARK J. SIEMENS; CARLOS A.                       MEMORANDUM*
URRUTIA; CITY OF ROCKLIN,

              Defendants - Appellants.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Frank C. Damrell, Senior District Judge, Presiding

                       Argued and Submitted April 14, 2011
                              Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       Rick Eaton, a former Rocklin Police Department sergeant, was subjected to

discipline and termination because, he alleges, he was part of a group of employees

that was uncooperative with, or declined to join, prevalent misconduct in the

department. Eaton sued Mark Siemens, the police chief, Carlos Urrutia, the city


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
manager, and the City of Rocklin, pursuant to 42 U.S.C. § 1983, alleging

deprivation of equal protection, among other things. Siemens and Urrutia sought

summary judgment on the ground of qualified immunity, and the City sought

summary judgment on the ground that Eaton lacked evidence to establish liability

under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district

court denied the motions. Eaton v. Siemens, No. 07-315, 2009 WL 4929262, at

*2–7 (E.D. Cal. Dec. 14, 2009). Defendants appeal pursuant to our jurisdiction

under 28 U.S.C. § 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527

(1985). We affirm.

      Siemens and Urrutia argue that they are entitled to qualified immunity.

First, they contend that Eaton’s allegations do not establish an actionable

constitutional violation because, they say, the class of employees that Eaton claims

was subjected to discrimination—dubbed “non-team players” by the district

court—is not a “discrete and objectively identifiable” group. But Engquist v.

Oregon Department of Agriculture, 553 U.S. 591 (2008), on which Siemens and

Urrutia rely, does not provide that only discrimination against discrete and

objectively identifiable groups can give rise to a public employee’s equal

protection claim. Rather, Engquist holds that public employees cannot assert

“class of one” equal protection claims against their employers. See id. at 607


                                          2
(“[T]he class-of-one theory of equal protection has no application in the public

employment context—and that is all we decide . . . .” (emphasis added)). The

class of employees allegedly singled out for punishment because they were

perceived as being uncooperative with department misconduct do not lack an equal

protection remedy merely because their circumstances vary. Cf. Navarro v. Block,

72 F.3d 712, 717 (9th Cir. 1996) (holding that for equal protection purposes,

victims of domestic violence are a cognizable class, discrimination against which is

subjected to rational basis review, notwithstanding variability within the class).

      Second, Siemens and Urrutia argue that the law does not clearly establish

that their alleged misconduct violates equal protection. But reasonable officials

would surely know that they are acting unlawfully by subjecting employees

perceived as being uncooperative with department misconduct to discriminatory

discipline and termination.1 See Elliot-Park v. Manglona, 592 F.3d 1003, 1008–09

(9th Cir. 2010) (“‘The constitutional right to be free from such invidious

discrimination is so well established and so essential to the preservation of our

constitutional order that all public officials must be charged with knowledge of

it.’” (quoting Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980))). Further, the



      1
       For purposes of this analysis, we assume the truth of Eaton’s allegations.
See Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
                                          3
novel arguments of Siemens and Urrutia that are based on Engquist, which does

not govern this case, do not render the controlling law unclear or in flux. See Groh

v. Ramirez, 540 U.S. 551, 565 (2004) (“Absent any support for such an exception

in our cases, he cannot reasonably have relied on an expectation that we would

[create one].”).

      We take no position on the merits of Eaton’s claims. Our jurisdiction over

this interlocutory appeal is limited to the “purely legal issue[s]” of whether Eaton’s

allegations make out an equal protection claim and what law is clearly established.

Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (internal quotation omitted). We do

not review the district court’s determination that Eaton’s evidence of his individual

capacity claims against Siemens and Urrutia and of his Monell claim against the

City is sufficient to raise genuine issues of material fact, for we consider those

issues to be beyond our present jurisdiction.2

      AFFIRMED.



      2
        “[W]here the district judge identifies disputes of fact or makes inferences
from the record, we do not have jurisdiction to evaluate those determinations by
making an independent review of the record.” Collins v. Jordan, 110 F.3d 1363,
1372 n.7 (9th Cir. 1997). Although we may exercise pendent jurisdiction over
such issues when they are “inextricably intertwined” with the qualified immunity
issues presented for interlocutory appeal, Swint v. Chambers Cnty. Comm’n, 514
U.S. 35, 51 (1995), we conclude that the fact issues here are not inextricably
intertwined with the legal issues on qualified immunity that we resolve.
                                           4
