                                                                               FILED
                             NOT FOR PUBLICATION                                DEC 13 2011

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



STEWART HANDTE,                                     No. 10-17745

               Plaintiff - Appellant,               D.C. No. 3:10-cv-00111-LRH-
                                                    RAM
   v.

STOREY COUNTY, a political                          MEMORANDUM *
subdivision of the State of Nevada;
JAMES G. MILLER; GERALD
ANTINORO,

               Defendants - Appellees.


                     Appeal from the United States District Court
                              for the District of Nevada
                      Larry R. Hicks, District Judge, Presiding

                            Submitted December 7, 2011 **
                              San Francisco, California

Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 William H. Stafford, Jr., Senior District Judge for the U.S.
District Court for Northern Florida, sitting by designation.
      Stewart Handte, formerly a deputy sheriff with the Storey County Sheriff's

Office, appeals the district court's dismissal of his amended complaint for failure to

state a claim. Although he ultimately resigned from his position as a deputy

sheriff, Handte alleged that he was reprimanded, suspended, and then

constructively discharged for speaking out on matters of public concern. Handte

limits his appeal to the dismissal of his First Amendment retaliation and state law

tortious discharge claims. Because the factual and procedural background is

familiar to the parties, we do not recount it here. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

      In Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), this court explained that, in

a First Amendment retaliation case, a court must employ a sequential five-step test,

considering:

               (1) whether the plaintiff spoke on a matter of public
               concern; (2) whether the plaintiff spoke as a private
               citizen or public employee; (3) whether the plaintiff's
               protected speech was a substantial or motivating factor in
               the adverse employment action; (4) whether the state had
               an adequate justification for treating the employee
               differently from other members of the general public; and
               (5) whether the state would have taken the adverse
               employment action even absent the protected speech.

Id. at 1070. Because these are sequential steps, a plaintiff's failure to satisfy any

one of the steps ends the inquiry. Johnson v. Poway Unified Sch. Dist., 658 F.3d



                                            2
954, 961-62 (9th Cir. 2011). Here, the district court correctly determined that

Handte failed at Eng's first step, the public concern step.

      Handte alleged that the defendants took action against him after he (1)

complained to the defendants about their lack of thoroughness in an Internal

Affairs investigation; (2) criticized the defendants regarding a change in their

overtime policy; and (3) criticized the defendants regarding a new firearms training

practice. As found by the district court, none of Handte's alleged complaints or

criticisms supports a First Amendment retaliation claim. Handte's complaints

about the defendants' investigative process were focused entirely on an internal

investigation into his own conduct, a matter at the core of what is properly

considered an individual grievance and not a matter of public concern. Handte's

vaguely-alleged criticism about the Sheriff's practice "of when an employee starts

and ends overtime" constituted speech about the minutiae of the defendants'

internal employment practices rather than speech about a matter of broad societal

concern. Handte's alleged criticism of the defendants' firearms training

policy—criticism that occurred during the internal affairs investigation into

Handte's discharge of a firearm at the shooting range—was a mere extension of

Handte's dispute with his superiors over a personnel matter and was not intended to

call anyone's attention to a matter of concern to the public.



                                           3
      Under Nevada law, a claim for tortious constructive discharge requires proof

that an employee's resignation was "induced by actions and conditions that are

violative of public policy." Martin v. Sears, Roebuck and Co., 899 P.2d 551, 553

(Nev. 1995). Here,

the district court correctly dismissed Handte's claim for tortious discharge because

Handte failed to allege any facts to suggest that his resignation was induced by

actions of the defendants that contravened public policy.

      AFFIRMED.




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