United States District Court, N.D. California
For Robert Pyke, Plaintiff: Stephen F. Henry, LEAD ATTORNEY, Stephen F. Henry, Attorney at Law, Berkeley, CA; Mark Lewis Mosley, Seiler Epstein Ziegler & Applegate, LLP, San Francisco, CA.
For Arcadis, U.S. Inc., a Colorado corporation, Larry Roth, Defendants: Stacey A. Campbell, LEAD ATTORNEY, Littler Mendelson, P.C., Denver, CO; Angela Joy Rafoth, Littler Mendelson, PC, San Francisco, CA.
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS
CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.
Following the Court's denial in part of Defendant's Motion for Summary Judgment, see Order on Summary Judgment (dkt. 51), one of Plaintiff's claims under 42 U.S.C. § 1983 was set for trial. Because the parties raised an issue for trial that they did not address on summary judgment--whether Plaintiff spoke as a private citizen or public employee--the Court ordered supplemental briefing on the issue. Upon consideration of the parties' supplemental submissions and the entire record of the case, the Court concludes that Defendants are entitled to summary judgment, because there is no evidence that Plaintiff spoke as a private citizen, and his speech is therefore not entitled to First Amendment protection.
A. Factual Background 
Plaintiff is an experienced geotechnical engineer with expertise in water resource management. Pyke Dep. (Campbell Decl. (dkt. 35) Ex. A) at 10:13-15. Defendant ARCADIS is the United States arm of one of the largest environmental consulting companies in the world. Barrett Decl. (dkt. 36) ¶ 3. Plaintiff started working for ARCADIS in August 2008, and spent a substantial percentage of his time on ARCADIS's efforts to build its water resources practices in California. Pyke Dep. at 21:4; Kamber Decl. (dkt. 37) ¶ 5. In April 2010, when ARCADIS hired Larry Roth to manage the development of ARCADIS's water resources practice, Plaintiff began reporting to him. Id. ¶ 7.
In July 2010, the Delta Stewardship Council (" DSC" or " the Council" ), a state agency focused on water management in California, entered into a major consulting engagement with ARCADIS. See generally Macaulay Decl. (dkt. 38). DSC initially hired a company called CH2M Hill to assist it in developing a comprehensive Delta Plan, but that selection created a controversy because CH2M Hill was a contractor on the ongoing preparation of the " Bay Delta Conservation Plan" (" BDCP" ), which the DSC was evaluating for possible inclusion in the new overall Delta Plan. Id. ¶ ¶ 3-4. In response to that controversy, DSC decided to engage a second, " independent" consultant with no prior involvement with the BDCP to review the BDCP on the DSC's behalf. Id. ¶ 4. The DSC requested statements of qualifications (" SOQs" ) from firms interested in winning the consulting contract. Plaintiff " assembled a team of engineers and scientists and directed the preparation of an SOQ that was submitted on ARCADIS's behalf." Pyke Decl. (dkt. 95-1) ¶ 12; Ex. A (" SOQ" ).
In reviewing ARCADIS's bid to be an independent consultant to the DSC, Terry Macaulay, the Supervising Sanitary Engineer for the DSC, asked the CH2M Hill project manager to review a list of proposed ARCADIS personnel for prior BDCP involvement. Macaulay Decl. ¶ 5. CH2M Hill identified two individuals--
Mark Tompkins and Jeremy Thomas--as having been involved in the development of the BDCP when they had previously worked for CH2M Hill. Id.
At the same time that she notified ARCADIS that it was selected to serve as the independent consultant, Macaulay informed ARCADIS that Tompkins and Thomas could not be involved in the project. Id.; Macaulay Decl. Ex. 1 (July 6, 2010 letter from Macaulay to Plaintiff: " These two individuals therefore do not meet the BDCP independence qualifications for this contract, and we request that you remove them from your team." ); Pyke Decl. ¶ 17. Plaintiff did not agree that Tompkins and Thomas had a conflict of interest. Instead,
[Plaintiff] was certain that this objection [to Tompkins and Thomas] was a pretext, and that the real reason Ms. Macaulay did not want either of these scientists working on ARCADIS's team was because they were among the most qualified and capable people on earth to understand and evaluate whether the BDCP had conducted its effects analysis correctly or was, instead, trying to hide something. [Plaintiff] was equally certain there was no conflict because Dr. Tompkins's and Mr. Thomas's work for CH2M Hill had been limited to the preliminary gathering of data, before any analysis was actually conducted. They were therefore uniquely well situated to evaluate whether CH2M Hill had properly analyzed the data that was available to it, or had discarded relevant data because it did not conform to the conclusions it wished to present. Further, both men had left CH2M Hill some months earlier and were now in competition with their former employer. Thus, any assertion that a conflict of interest existed was utterly unfounded and any competent person would immediately recognize that fact.
Pyke Decl. ¶ 17. Plaintiff requested a meeting with Macaulay to discuss Tompkins's and Thomas's inclusion on the team. When Plaintiff started to explain his view that they did not pose a conflict of interest, Macaulay " cut [him] off and said 'but you will exclude them, won't you, or words to that effect.'" Id. ¶ 18. In response, Plaintiff agreed to submit the contract paperwork including only current ARCADIS employees and said he " would raise the issue of additional personnel after the contract was signed." Id.; see also Pyke Dep. at 104:4-5 (" I indicated that we'd leave them off the initial submittal." ). Plaintiff did not tell Macaulay that he intended to ask for them to be added back to the team at a later point. Pyke Dep. at 104:6-11; see also Macaulay Decl. ¶ 6 (" [Plaintiff] agreed to proceed with the contract without Mr. Thomas and Mr. Tompkins, and I understood the matter was closed." ). According to Plaintiff, he then
formed the belief that [he] would be unable to evaluate thoroughly the validity of the BDCP's effects analysis, and that the public interest and the interest of the Council itself (as opposed to the political interests of the [Council] Staff), would be compromised if Dr. Tompkins and Mr. Thomas were excluded from the ARCADIS team. Therefore, on July 21, 2010, after the initial set or personnel had been approved and the first Task Order issued, when [Plaintiff] e-mailed Ms. Macaulay about the need to add additional staff members in five different categories, he [sic] spelled out in detail the reasons why there was in fact no conflict of interest and " insisted" that Dr. Tompkins and Mr. Thomas be restored to the team.
Pyke Decl. ¶ 19; see 7/21/10 email (Pyke Decl., Ex. B) at 2 (" Although I agreed not to push the matter ...