Nichols v. Dancer ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN NICHOLS, 
Plaintiff-Appellant,
v.
No. 07-15654
LAURA DANCER, in her official
D.C. No.
capacity and individual capacity;
JAMES L. HAGER, in his official  CV-04-00559-
capacity and individual capacity; LRH/LRL
and WASHOE COUNTY SCHOOL OPINION
DISTRICT, a political subdivision of
the State of Nevada,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
October 23, 2008—San Francisco, California
Filed May 18, 2009
Before: J. Clifford Wallace, Sidney R. Thomas and
Susan P. Graber, Circuit Judges.
Opinion by Judge Thomas
5965
NICHOLS v. DANCER 5967
COUNSEL
Jeffrey S. Blanck, Reno, Nevada, for the appellant.
C. Robert Cox, Christopher D. Jaime, Maupin, Cox & LeGoy,
Reno, Nevada, for the appellees.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether the patronage
dismissal doctrine immunizes public employers who termi-
nate employees on the basis of perceived lack of personal loy-
alty. We conclude that it does not and remand for further
proceedings.
I
Kathleen Nichols worked for the Washoe County School
District for nine years, her last six as an administrative assis-
5968 NICHOLS v. DANCER
tant to the General Counsel for the district, Jeffrey Blanck.
Over the course of the six years that Nichols worked for
Blanck, they became friends. In her position as assistant to
Blanck, Nichols was privy to sensitive information about con-
fidential negotiations as well as information about employees,
their backgrounds, and disciplinary measures. By all accounts,
the school district had no problems with Nichols or her job
performance. In job evaluations, Nichols received only “com-
mendable” and “competent” marks, the two highest marks.
Blanck began having problems with the School District
Superintendent James Hager. The District transferred Nichols
to a job in Human Resources in January 2004 while it decided
whether to terminate Blanck. By that time, Nichols had
learned that Blanck had hired legal counsel in case he was ter-
minated.
The District’s Board of Trustees held an open meeting to
discuss Blanck’s future with the District, among other items.
The day before the meeting, Nichols spoke with Laura
Dancer, the Assistant Superintendent in charge of Human
Resources, about her job security. Dancer told Nichols that
after the board meeting, Nichols “would be restored to her
position as administrative assistant to general counsel, whom-
ever that general counsel was to be.”
Nichols testified that she attended the board meeting for
two reasons: to support a friend in a different department who
was to receive an award and to see what would happen to her
employer, Blanck. In Nichols’s words:
I wanted to find out what was going to happen with
[Blanck’s] position with the District . . . . I had been
in at the beginning of the formation of the legal divi-
sion and . . . I felt that it was of great interest to me
to see whether or not that division was going to be
continuing or not . . . . Nichols denies that she
attended the meeting to support Blanck. No one
NICHOLS v. DANCER 5969
alleges that Nichols spoke publicly during the meet-
ing.
When Nichols arrived at the meeting, the room was
crowded. Nichols sat next to Blanck, who was already seated.
Later in the meeting, the Board voted to terminate Blanck.
The next day, Dancer reconsidered her promise to reinstate
Nichols as the assistant to the new Legal Counsel. Dancer
stated that:
After the night of the meeting, it was clear to me that
Mrs. Nichols’ continued contact and support and
interest in Mr. Blanck posed a conflict for her to be
in the legal counsel office . . . . After attending the
open meeting, I did reconsider my earlier decision
about her placement and determined that her place-
ment needed to be other than the legal counsel
office.
Aside from Nichols’s seat next to Blanck at the open meeting,
the record provides no other reason why Dancer would recon-
sider her earlier statement to Nichols.
Nichols met with Dancer the day after the meeting. Dancer
told Nichols that she would not be transferred back to the
Legal Counsel’s office and that her salary would be frozen at
its current level for one year. According to Nichols, Dancer
said that they were “forced to question” her loyalty. Nichols
expressed her unhappiness with that decision, and Dancer
asked Nichols whether she had considered retirement as an
alternative to continuing work in the Human Resources
department. Nichols had never spoken to Dancer about the
possibility of retirement. Nichols stated that she had the feel-
ing that she “really wasn’t wanted around there.”
Soon after the board meeting, Nichols was in her office
when Blanck called her. Nichols informed Blanck that she
5970 NICHOLS v. DANCER
would be taking some time off, that outside counsel was com-
ing into the office, and that Dancer had requested a list of
ongoing matters. Dancer considered this communication to
contain “very sensitive information, including information
pertaining to Mr. Blanck’s own case” against the District for
wrongful termination. Dancer considered the contact “inap-
propriate.” After Nichols gave Blanck this information, the
District claims that some files went missing. Following the
phone exchange between Nichols and Blanck, Nichols took
some time away from work. She eventually decided to retire,
allegedly “to her severe financial detriment.”
Nichols sued Dancer, Hager, and the Washoe County
School District for First Amendment retaliation and claimed
that by firing her, Defendants violated her First Amendment
right to associate with Blanck. The district court granted
Defendants’ motion for summary judgment, holding that
Nichols was a confidential employee vulnerable to a patron-
age dismissal without regard for her First Amendment rights.
II
A
[1] A public employer may not unduly abridge an employ-
ee’s First Amendment rights. Keyishian v. Bd. of Regents, 385
U.S. 589, 605-06 (1967). However, government employers
may restrict their employees’ speech more than the govern-
ment may restrict the speech of it constituents. Hudson v.
Craven, 403 F.3d 691, 696 n.1 (9th Cir. 2005) (“[T]he gov-
ernment as employer indeed has broader powers to regulate
speech than does the government as sovereign.”).
To establish a prima facie case of First Amendment retalia-
tion, a government employee must show that “(1) she engaged
in protected speech; (2) the defendants took an ‘adverse
employment action’ against her; and (3) her speech was a
‘substantial or motivating’ factor for the adverse employment
NICHOLS v. DANCER 5971
action.” Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th
Cir. 2004) (quoting Coszalter v. City of Salem, 320 F.3d 968,
973 (9th Cir. 2003)).
In the paradigmatic case, if the government employee can
succeed in her prima facie claim, the burden shifts to the gov-
ernmental defendants
to demonstrate either that, under the balancing test
established by Pickering v. Board of Education . . .
the employer’s legitimate administrative interests
outweigh the employee’s First Amendment rights or
that, under the mixed motive analysis established by
Mt. Healthy City School District Board of Education
v. Doyle . . . the employer “would have reached the
same decision even in the absence of the [employ-
ee’s] protected conduct.”
Thomas, 379 F.3d at 808 (citations omitted).
In Pickering, the Supreme Court stated that in First Amend-
ment cases against a state entity, “[t]he problem . . . is to
arrive at a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the effi-
ciency of the public services it performs through its employ-
ees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
[2] Under certain circumstances, a public employer is per-
mitted to take adverse employment action against an
employee for engaging in speech that is normally protected by
the First Amendment, and the court need not conduct a Pick-
ering balancing test. For example, the patronage dismissal
doctrine allows public employers to terminate certain public
employees on the basis of their political beliefs and loyalties.
See generally Branti v. Finkel, 445 U.S. 507 (1980). Here, the
district court found that Nichols was a confidential employee
and that her termination was a patronage dismissal. Accord-
5972 NICHOLS v. DANCER
ingly, the district court granted summary judgment without
conducting a full First Amendment examination or a Picker-
ing balancing analysis. However, because Nichols was termi-
nated for a perceived lack of personal loyalty, rather than
political loyalty, we conclude that the patronage dismissal
doctrine does not apply to her termination. We therefore must
vacate the summary judgment and remand the case to the dis-
trict court so that it may conduct a traditional First Amend-
ment analysis.
B
[3] An employer engages in patronage dismissals when a
newly elected or appointed public officer fires existing
employees on the basis of their political beliefs or loyalties.
Elrod v. Burns, 427 U.S. 347, 353 (1976). In Elrod, a newly
elected Democratic sheriff fired four Republican employees
in the sheriff’s office because of their political beliefs. Id. at
350-51. To keep their jobs, the employees were required to
“pledge their political allegiance to the Democratic Party,
work for the election of other candidates of the Democratic
Party, contribute a portion of their wages to the Party, or
obtain the sponsorship of a member of the Party.” Id. at 355.
In Elrod, the plurality noted that “[i]t is not only belief and
association which are restricted where political patronage is
the practice. The free functioning of the electoral process also
suffers.” Id. at 356. For that reason, patronage dismissals sur-
vive constitutional challenge only when they “further some
vital government end by a means that is least restrictive of
freedom of belief and association in achieving that end, and
the benefit gained . . . outweigh[s] the loss of constitutionally
protected rights.” Id. at 363. Justices Stewart and Blackmun,
limiting the decision with their concurrence, held that “a non-
policymaking, nonconfidential government employee [can-
not] be discharged or threatened with discharge from a job
that he is satisfactorily performing upon the sole ground of his
political beliefs.” Id. at 375.
NICHOLS v. DANCER 5973
[4] The Supreme Court refined the patronage dismissal
doctrine in Branti v. Finkel, 445 U.S. 507 (1980). In Branti,
the Court held that a newly appointed Democratic Public
Defender could not fire two Republican assistant public
defenders on the basis of their political beliefs. Id. at 519-20.
Although the new Public Defender was not elected himself,
he had been appointed by a legislature with a newly Demo-
cratic majority. The Court abandoned the policymaking/
confidential distinction and instead held that “the ultimate
inquiry is not whether the label ‘policymaker’ or ‘confiden-
tial’ fits a particular position; rather, the question is whether
the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Id. at 518.
[5] In both of these seminal cases, the constitutional analy-
sis about party affiliation and job requirement was premised
on dismissal motivated by political beliefs. See also Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990) (holding that pro-
motion and transfer denials as well as failure to hire on the
basis of political belief may also trigger the patronage dis-
missal doctrine’s protection).
We have adhered to the guidance of the Supreme Court. In
Fazio v. City and County of San Francisco, 125 F.3d 1328,
1334 (9th Cir. 1997), we held that a District Attorney could
fire an Assistant District Attorney for running against him in
an election. We reasoned that “[t]he rationale utilized to per-
mit patronage dismissals in Elrod and Branti may also be
applicable in the context of dismissals that are based on a
public employee’s political activities, such as running for
office against an employer.” Id. at 1331-32 (emphasis added).
Although Fazio did not concern a newly elected official, it did
concern a dismissal motivated by expressly political activities.
We have reached similar conclusions in other cases. See
Walker v. City of Lakewood, 272 F.3d 1114, 1131-33 (9th Cir.
2001) (holding that a policymaking city contractor could not
5974 NICHOLS v. DANCER
bring a First Amendment § 1983 claim against the city after
it was terminated for criticizing the city in a political register);
Biggs v. Best, Best & Krieger, 189 F.3d 989, 993-97 (9th Cir.
1999) (holding that an employee of a law firm responsible for
some city functions could not bring a First Amendment
§ 1983 claim against the firm after she was terminated for the
political statements of her family members). The conduct for
which the employees in these cases were terminated was
overtly political.
In concluding that the patronage dismissal doctrine applied
and that Nichols was a confidential employee subject to
abridged First Amendment rights, the district court relied on
Hobler v. Brueher, 325 F.3d 1145 (9th Cir. 2003). In Hobler,
we considered the dismissal of two assistants to a County
Prosecutor. The plaintiffs were the former right-hand employ-
ees of the outgoing County Prosecutor and were terminated
by the incoming Prosecutor “for expressing their political sup-
port for his election rival.” Id. at 1148. We rejected the assis-
tants’ § 1983 claims because political loyalty was a
requirement for the effective performance of the assistants’
jobs.
[6] Hobler is distinguishable. The confidential secretaries
in Hobler were fired because of their political beliefs and
political support for the previous County Prosecutor. Nichols
was fired because of her perceived personal association with
the outgoing General Counsel; she never expressed her politi-
cal loyalties.
[7] We hold that the patronage dismissal doctrine does not
extend to adverse employment actions motivated by the
employee’s personal, rather than political, loyalties. The
patronage dismissal doctrine is designed to ensure the integ-
rity of the political process. To force a public official to work
towards his or her goals with the assistance of employees who
may be working against those goals has the potential to frus-
trate the will of the electorate. Personal disagreements do not
NICHOLS v. DANCER 5975
give rise to the same potential for electoral frustration. Some
personal conflict exists in nearly every workplace, and severe
personal conflicts may be resolved through performance eval-
uations or by resorting to the balancing test set out in Picker-
ing. Extending the patronage dismissal doctrine to matters of
personal loyalty would give public employers unjustified
power to abridge their employees’ First Amendment rights.
We decline to extend the doctrine in that way.
In so holding, we join the analysis of the Fifth Circuit. In
Correa v. Fischer, 982 F.2d 931 (5th Cir. 1993), the Fifth Cir-
cuit made a similar distinction between termination on the
basis of political beliefs and termination on the basis of per-
sonal loyalty and compatibility. The court rejected the § 1983
claims of four staff members in the County Attorney’s office
who had been fired by an incoming County Attorney. The
employees had previously worked for the outgoing County
Attorney who opposed, but did not run against, the new
County Attorney. However, the court found that the incoming
and outgoing County Attorneys had a personal rather than a
political conflict, and that the four employees were dismissed
on the basis of personal disloyalty and incompatibility, not
their political beliefs. Id. at 933-34. The court concluded that
the political patronage dismissal doctrine did not apply to the
employees and thus a policymaker/confidential analysis was
unnecessary. Id. at 936.
For all these reasons, we conclude that the patronage dis-
missal doctrine does not apply to claims involving personal
rather than political loyalty. Given our conclusion, we need
not—and do not—reach the questions of whether Nichols was
a policymaking/confidential employee or whether party affili-
ation was an appropriate requirement for her job.
III
[8] Because the patronage dismissal doctrine does not
apply, we must remand to the district court for re-
5976 NICHOLS v. DANCER
consideration of the claims under the traditional First Amend-
ment government employee analysis. Although the parties
invite us to conduct such an examination ourselves, we
decline to do so. The district court did not reach that issue and
we are not confident that the record is complete. Thus, the
inquiry is more appropriate for the district court. We remand
to allow the district court to conduct such an analysis in the
first instance. We do not prejudge the outcome of that inquiry.
REVERSED AND REMANDED.