                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 20 2013

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




                            FOR THE NINTH CIRCUIT



STEVEN K. CASTELLO,                              No. 12-35027

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01457-MJP

  v.
                                                 MEMORANDUM *
CITY OF SEATTLE, a municipal
corporation; et al.,

              Defendants - Appellees.



                  Appeal from the United States District Court
                     for the Western District of Washington
                Marsha J. Pechman, Chief District Judge, Presiding

                        Argued and Submitted May 9, 2013
                               Seattle, Washington

Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**

       Steven K. Castello appeals the district court’s grant of summary judgment in

favor of the City of Seattle and the Seattle Fire Department on his claims for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
retaliation against the exercise of his right to free speech under 42 U.S.C. § 1983.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Assuming without deciding that Castello’s speech was on a matter of public

concern, defendants have met their burden under Pickering v. Board of Education,

391 U.S. 563 (1968), to show that their legitimate administrative interests

outweighed Castello’s interest in this particular speech. Defendants have a

legitimate interest in running the fire department efficiently without disruption or

interference. See Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (“[T]he

Government, as an employer, must have wide discretion and control over the

management of its personnel and internal affairs. This includes the prerogative to

remove employees whose conduct hinders efficient operation and to do so with

dispatch.”). Their assessment that Castello’s survey caused disruption or, at a

minimum, was potentially disruptive was reasonable, given the complaints they

received from two of Castello’s co-workers, both of whom had also complained

just prior to the survey that one of them was being targeted by Castello.1 “When

close working relationships are essential to fulfilling public responsibilities, a wide



      1
          We do not consider defendants’ argument, raised for the first time on
appeal, that Castello’s conduct was motivated by personal animosity. We therefore
grant defendants’ motion to strike the appendix attached to the reply brief because
it was not a part of the record before the district court.

                                           2
degree of deference to the employer’s judgment is appropriate. Furthermore, we

do not see the necessity for an employer to allow events to unfold to the extent that

the disruption of the office and the destruction of working relationships is manifest

before taking action.” Connick v. Myers, 461 U.S. 138, 151–52 (1983); see also

Waters v. Churchill, 511 U.S. 661, 673 (1994) (“[Courts] have given substantial

weight to government employers’ reasonable predictions of disruption.”); Moran v.

Washington, 147 F.3d 839, 846 (9th Cir. 1998) (“[C]ourts should not require

government employers to demonstrate that an employee’s speech actually

disrupted efficient office operation; rather, ‘reasonable predictions of disruption’

are sufficient.” (quoting Waters, 511 U.S. at 673)).

      Viewing the totality of the circumstances, defendants have demonstrated

under Pickering’s balancing test that their “interest in the effective and efficient

fulfillment of [their] responsibilities to the public” outweigh Castello’s speech.

Connick, 461 U.S. at 150. Accordingly, we find that the district court did not err in

granting defendants summary judgment.

      For the same reasons, the district court did not abuse its discretion in

denying Castello’s motion for reconsideration.

      AFFIRMED.




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