Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, Chief District Judge, Presiding, D.C. No. 2:08-cv-03005-RHW.
The opinion of the court was delivered by: Lucero, Circuit Judge
Argued and Submitted April 8, 2010 -- Seattle, Washington
Before: Michael Daly Hawkins, Carlos F. Lucero,*fn1 and N. Randy Smith, Circuit Judges.
Oscar J. Brownfield appeals the district court's grant of summary judgment in favor of the City of Yakima on his claims for violations of the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA"), and for First Amendment retaliation. We hold that the City did not violate Brownfield's rights under the ADA by requiring a fitness for duty exam ("FFDE") after he repeatedly exhibited emotionally volatile behavior while serving as a police officer, that his complaints regarding a co-worker with whom he shared duties did not address matters of public concern, and that his FMLA claim lacks merit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Brownfield began working as a police officer for the City of Yakima Police Department ("YPD") in November 1999.
Approximately one year later, he suffered a closed head injury in an off-duty car accident. After recovering from symptoms including reduced self-awareness, Brownfield returned to full duty in July 2001. He received positive performance evaluations and was awarded several commendations over the next three years.
In June 2004, Brownfield complained to his superior, Sergeant Amos, about Officer Dejournette, Brownfield's community service partner for Police Athletic League ("PAL") and Drug Abuse Resistance Education ("DARE") matters. In an interoffice memo titled "Unethical work practices," Brown-field wrote that Dejournette neglected his duties with respect to the DARE program to work on fraud matters, forcing Brownfield to complete tasks assigned to Dejournette. Brown-field complained that he "was not recommended for the SWAT team because of PAL and DARE. It seem[ed] unfair that Dejournette [could] work on fraud stuff and disregard DARE." The memo further took issue with Dejournette's use of comp time and overtime. In particular, Brownfield was disturbed that Dejournette was given twenty hours in "time owed" because Lt. Merryman, another superior, requested Brownfield "spend more hours on the development of PAL, but ha[d] never offered [him] time owed as a reward." Brown-field continued, "If Lt. Merryman is giving Dejournette time owed for work with PAL it would be a great dishonor to [a third officer] and [Brownfield] since [they] give an enormous amount of time to PAL without compensation." Finally, Brownfield argued that Dejournette and Merryman were too friendly with each other.
Over the next year, Brownfield compiled notes on Dejournette's perceived shortcomings. These notes detail Dejournette's failure to complete reimbursement requests, grant applications, and time sheets in a punctual manner, his continued use of overtime and comp time, and his generally "lackadaisical approach to PAL duties." In May 2005, after Merryman reprimanded Brownfield for failing to schedule an event, Brownfield forwarded his notes to YPD Chief Sam Granato. Shortly after forwarding his notes, Brownfield composed a second email to Granato complaining that Dejournette closed the PAL facility early for illegitimate reasons.
On May 11, 2005, Brownfield, Merryman, and Amos met to discuss Brownfield's problems with Dejournette. Midway through the meeting, Brownfield used an expletive in stating that he needed to talk to a union representative. Despite an order from Merryman to remain in the room, Brownfield stood up and left. When Amos found Brownfield speaking to another officer, Brownfield swore at him and demanded he leave the room. Brownfield was temporarily suspended for insubordination as a result of this incident. He later explained that he had expected to meet with Granato and was concerned that the meeting included Merryman, who was the subject of some of his complaints. Brownfield stated that he was "consumed" with anger and fear, and that he recognized that he needed to take a break.
In September 2005, four incidents occurred that, together with the above-described confrontation, led the YPD to refer Brownfield for an FFDE. First, Brownfield engaged in a disruptive argument with another officer during muster. A sergeant reported that when Brownfield learned that YPD was investigating him-but not the other officer-he became visibly upset, was swearing, and was "just not really speaking full sentences."
Second, Brownfield reported that he felt "himself losing control" during a traffic stop. According to a YPD sergeant, Brownfield reported that a young child riding in a vehicle he pulled over began taunting him during the stop. Brownfield became upset, his legs began shaking, and he "wasn't sure ...