Robinson v. County of Los Angeles ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ROBINSON,  No. 07-56312
Plaintiff-Appellee,
D.C. No.
v.
 CV-06-02409-GAF
MARGARET YORK; WILLIAM NASH;
ORDER AND
VICTOR TURNER,
OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
November 20, 2008—Pasadena, California
Filed April 27, 2009
Before: Richard D. Cudahy,* Harry Pregerson, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
4903
ROBINSON v. YORK 4907
COUNSEL
Jin Suk Choi (presented arguments and authored briefs), Fran-
scell, Strickland, Roberts & Lawrence, Glendale, California,
for the defendants-appellants.
Sanjay Bansal (presented arguments) and Michael A. McGill
(authored brief), Lackie & Dammeier, Upland, California, for
the plaintiff-appellee.
ORDER
Appellee’s request for publication is GRANTED. The
Memorandum disposition, filed January 8, 2009, is with-
drawn. A published Opinion will be filed concurrently with
this Order.
OPINION
HAWKINS, Circuit Judge:
Plaintiff Richard Robinson (“Robinson”), a sergeant with
the Los Angeles County Office of Public Safety (“OPS”),
filed a civil rights complaint under 42 U.S.C. § 1983 against
4908 ROBINSON v. YORK
the County of Los Angeles (“Los Angeles”) and several OPS
officers (“Defendants”) alleging that he was denied promotion
in violation of his First and Fourteenth Amendment rights
because he reported misconduct within his department.
Defendants appeal from the denial of qualified immunity. For
the reasons that follow, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Robinson alleges that he was not promoted because he
spoke out or filed reports about misconduct in his department
between 2002 and 2006. In addition to testifying in a class
action lawsuit alleging discrimination by OPS, Robinson also
filed misconduct reports pertaining to various problematic
behavior, some of which he observed while off duty. The
reports described (1) a fellow officer who allegedly worked
for an outside employer while on the clock, (2) officers who
appeared to be drinking alcohol during work hours, (3) OPS
officers who wore distinctive tattoos possibly indicative of
anti-Semitic attitudes, (4) cases of potential battery or exces-
sive force, and (5) a “Parking for Irish Only” sign allegedly
placed by OPS officers and directed at a fellow officer. After
failing to receive what he considered an adequate response
from OPS, Robinson took several steps following-up on these
reports, including emailing internal affairs and discussing the
details of the complaints with superior officers.
Robinson alleges that he participated in several conversa-
tions in which his superior officers suggested he stop filing
misconduct reports. In one such conversation, a supervising
officer told him that “if [Robinson] didn’t bring so many
issues forward . . . maybe that would help in terms of getting
promoted to lieutenant.”
Robinson took an examination for promotion to lieutenant
in 2003. Despite placing in the highest band of candidates and
receiving favorable work reviews, Robinson was not pro-
moted before the eligibility list expired in 2006.
ROBINSON v. YORK 4909
After failing to obtain a promotion, Robinson filed this
action alleging that he had been denied promotion in retalia-
tion for exercising his First Amendment rights. Defendants
moved for summary judgment, arguing that Robinson’s
reports were not protected speech because they were made as
part of his professional duties or because he failed to present
the reports through the chain of command as required by writ-
ten department policy. The district court denied the motion,
finding genuine issues of material fact on the scope of Robin-
son’s job duties and holding that a violation of a written chain
of command policy was not dispositive, but merely one of the
factors to be considered as part of the balancing test estab-
lished in Pickering v. Board of Education, 391 U.S. 563, 571
(1968). The named Defendants timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We review de novo a district court’s denial of summary
judgment based upon a claim of qualified immunity. Moran
v. Washington, 147 F.3d 839, 844 (9th Cir. 1998). Although
a district court’s denial of qualified immunity is subject to
immediate appeal as a collateral order, our appellate jurisdic-
tion is limited to questions of law. Id. at 843 (citing Mitchell
v. Forsyth, 472 U.S. 511, 528 & n.9 (1985)) (“A public-
official defendant may appeal the ‘purely legal’ issue
‘whether the facts alleged . . . support a claim of [violation of]
clearly established law.’ ”). “Where disputed facts exist, we
assume that the version of the material facts asserted by [the]
Plaintiff[ ], as the non-moving party, is correct.” KRL v.
Estate of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). Our
review is therefore limited to whether the Defendants would
be entitled to qualified immunity as a matter of law assuming
all factual disputes were resolved in Robinson’s favor.
III. DISCUSSION
[1] Determining whether officials are owed qualified
immunity involves two inquiries: (1) whether, taken in the
4910 ROBINSON v. YORK
light most favorable to the party asserting the injury, the facts
alleged show the official’s conduct violated a constitutional
right; and (2) if so, whether the right was clearly established
in light of the specific context of the case. Saucier v. Katz,
533 U.S. 194, 201 (2001); see also Pearson v. Callahan, 129
S. Ct. 808, 818 (2009) (courts may decide which of the two
prongs should be addressed first in light of the particular cir-
cumstances).
[2] In evaluating a First Amendment retaliation claim, we
address “a sequential five-step series of questions.” Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). First, the plain-
tiff bears the burden of showing: “(1) whether the plaintiff
spoke on a matter of public concern; (2) whether the plaintiff
spoke as a private citizen or public employee; [and] (3)
whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action.”1 Id.Next, if the plaintiff has satisfied the first three steps, the bur-
den shifts to the government to show: “(4) whether the state
had an adequate justification for treating the employee differ-
ently 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 1070-73.
Public Concern
To warrant First Amendment protection, an employee’s
speech must address “a matter of legitimate public concern.”
Pickering, 391 U.S. at 571. The public concern inquiry is
purely a question of law, which we review de novo. Berry v.
Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006).
[3] As a matter of law, “the competency of the police force
1
We need not address the third question at the summary stage because
Defendants concede that there is a material factual dispute regarding
whether Robinson’s speech was a substantial or motivating factor in the
adverse employment action.
ROBINSON v. YORK 4911
is surely a matter of great public concern.” McKinley v. City
of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). Only speech
that deals with “individual personnel disputes and grievances”
and that would be of “no relevance to the public’s evaluation
of the performance of governmental agencies” is generally not
of “public concern.” Id.Robinson alleges Defendants retaliated against him for,
among other things, testifying in a class action lawsuit that the
County had engaged in systematic discrimination and harass-
ment against OPS officers, reporting numerous instances of
possible corruption, discrimination, or misconduct by fellow
OPS officers, and following up on those complaints. With the
exception of the three incidents identified by the district court
as individual personnel disputes, each of these is clearly a
“matter of public concern.” See Thomas v. City of Beaverton,
379 F.3d 802, 809 (9th Cir. 2004) (“Unlawful conduct by a
government employee or illegal activity within a government
agency is a matter of public concern.”); Johnson v. Multno-
mah County, 48 F.3d 420, 425 (9th Cir. 1995) (citing Roth v.
Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988)) (The
“misuse of public funds, wastefulness, and inefficiency in
managing and operating government entities are matters of
inherent public concern.”); see also Connick v. Myers, 461
U.S. 138, 148 (1983) (speech merits stronger protection when
employee seeks “to bring to light actual or potential wrongdo-
ing or breach of public trust”).
Defendants concede that some of Robinson’s “internal
reports of certain alleged misconduct involved matters of pub-
lic concern,” but contend that others did not. They specifically
argue that Robinson’s follow-up communications pressing his
reports of misconduct are not “matters of public concern,” cit-
ing Douglas v. Lexington-Fayette Urban County Gov’t, 2007
U.S. Dist. LEXIS 82818, at *18 (E.D. Ky. Nov. 7, 2007),
which held that plaintiffs’ complaints are not matters of pub-
lic concern where they are “about the job performance of their
coworkers” and “the intent of the plaintiffs [is] not to protect
4912 ROBINSON v. YORK
public safety, but rather to complain about the management’s
response to the situation.”2
[4] Robinson’s misconduct reports, unlike the plaintiffs’
speech in Douglas, did not merely contain “passing references
to public safety [that] were ‘incidental to the message con-
veyed,’ ” id., but rather related to the danger the misconduct
posed and the need to respond to it. Whether OPS treats com-
plaints of misconduct seriously or fails to followup is also a
matter of “relevance to the public’s evaluation of the perfor-
mance of governmental agencies” and consequently indepen-
dently a matter of public concern. Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003). Robinson’s email to the
office in charge of internal affairs discussing the possibility of
an interview about his prior complaints, and his conversations
with superior officers reviewing the details of those com-
plaints, clearly addressed at least two matters of public con-
cern: the misconduct itself and the distinct question of
whether the investigating officers were, as Robinson argued,
sweeping misconduct under the rug.
[5] Defendants suggest that two of Robinson’s misconduct
reports — one regarding an officer suspected of working for
an outside employer while on the clock and another alleging
discrimination by one officer against another — addressed
individual personnel disputes, not matters of public concern.
Reports pertaining to others, even if they concern personnel
matters including discriminatory conduct, can still be “pro-
tected under the public concern test.” Thomas, 379 F.3d at
808 (explaining that an employee’s speech can be protected
even though it “concerned a personnel matter” because “it did
not pertain to [her] own job status”); see also Alpha Energy
2
Defendants also cite Akins v. Gates, 2007 U.S. Dist. LEXIS 68439(N.D. Ga. Sept. 17, 2007), in support of this proposition, but the plaintiffs’
speech in Akins was in fact held to be on matters of public concern, but
was deemed unprotected only because it was included in the plaintiffs’ job
duties.
ROBINSON v. YORK 4913
Savers, Inc. v. Hansen, 381 F.3d 917, 926 (9th Cir. 2004)
(holding “invidious discrimination” inherently a matter of
public concern “whether it consists of a single act or a pattern
of conduct”); Cochran v. City of Los Angeles, 222 F.3d 1195,
1201 (9th Cir. 2000) (“Although focused on one employee
and not addressed directly to the public, the speech here did
concern matters which are relevant to the public’s evaluation
of its police department.”).
[6] Robinson’s testimony in a class action against the
County is also of public concern, regardless of whether it had
an impact on the result of that litigation. Alpha Energy Savers,
381 F.3d at 927 (“[A] public employee’s testimony addresses
a matter of public concern if it contributes in some way to the
resolution of a judicial or administrative proceeding in which
discrimination or other significant government misconduct is
at issue — even if the speech itself would not . . . in isola-
tion.”).
Scope of Job Duties
[7] Defendants also argue that Robinson’s reports were
made in conjunction with his official job duties and therefore
were not protected by the First Amendment under Garcetti v.
Ceballos, 547 U.S. 410 (2006). The scope of Robinson’s job
duties is a question of fact. Posey v. Lake Pend Oreille Sch.
Dist. No. 84, 546 F.3d 1121, 1130 (9th Cir. 2008). “[W]hen
there are genuine and material disputes as to the scope and
content of the plaintiff’s job responsibilities, the court must
reserve judgment . . . until after the fact-finding process.” Id.
at 1131. We lack jurisdiction to review the district court’s
finding of a genuine of issue of material fact regarding
whether the scope of Robinson’s duties included reporting
police misconduct. Johnson v. Jones, 515 U.S. at 319-20.
Instead, we assume the resolution of this dispute in the non-
moving party’s favor. Eng, 552 F.3d at1067.
4914 ROBINSON v. YORK
Adequate Justification under Pickering
[8] Under the balancing-test mandated by Pickering, 391
U.S. 563, the First Amendment interests of employees must
be weighed against the “interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.” Id. at 568. “For us to find that the
government’s interest as an employer in a smoothly-running
office outweighs [an employee’s] first amendment right,
defendants must demonstrate actual, material and substantial
disruption,” or “reasonable predictions of disruption” in the
workplace. Roth, 856 F.2d at 1407; Waters v. Churchill, 511
U.S. 661, 673 (1994); see also Keyser v. Sacramento City
Unified Sch. Dist., 265 F.3d 741, 749 (9th Cir. 2001) (noting
that “a showing of actual disruption will weigh more heavi-
ly”). “[T]he workplace disruption hurdle for government
employers is higher in cases, like this one, where the speech
involved unlawful activities rather than policy differences.”
Keyser, 265 F.3d at 749 (citing Moran, 147 F.3d at 849 n.6).
[9] When applying Pickering to an “employee’s reports of
‘wastefulness, mismanagement, unethical conduct, violations
of regulations, and incompetence’ ” to his supervisors, we
have held “that the public’s interest in learning about illegal
conduct by public officials and other matters at the core of
First Amendment protection outweighs a state employer’s
interest in avoiding a mere potential disturbance to the work-
place.” Keyser, 265 F.3d at 747-48 (discussing Gilbrook v.
City of Westminster, 177 F.3d 839, 867-70 (9th Cir. 1999);
Roth, 856 F.2d at 1403-08; and Johnson, 48 F.3d at 425-27).
In the context of “good-faith whistleblowing” involving
reports within a government department rather than to the
public, “the breadth of one’s audience is irrelevant” because
“[i]t would be absurd to extend First Amendment protection
only to those whistleblowers who immediately appear on the
local news.” Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th
Cir. 2001).
ROBINSON v. YORK 4915
[10] In the Defendants’ view, an exception to this clearly
established law applies here because there is “no constitu-
tional violation in requiring officers to communicate ‘through
channels’ before enlisting public opinion to their cause.” San-
chez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir.
1990). Sanchez limited its holding, however, to cases where
the “channels” policy “is reasonable and not arbitrary.” Id.“[E]ven in a police department, the complained-of disruption
must be ‘real, [and] not imagined’ ” and the “disruption
exception cannot ‘serve as a pretext for stifling legitimate
speech or penalizing public employees for expressing unpop-
ular views.’ ” Allen v. Scribner, 812 F.2d 426, 432 (9th Cir.
1987) (citing McKinley, 705 F.2d at 1115); accord Brockell
v. Norton, 732 F.2d 664, 667 (8th Cir. 1984) (courts cannot
“decide in the abstract, however, that a chain-of-command
policy designed to protect [a police department’s] interest will
always take precedence over the interest of a public employee
in open communication” and “must look to the particular cir-
cumstances of each case to determine the importance of
enforcing the chain of command against an employee whose
speech breaches that policy”).
[11] Under some factual circumstances, therefore, the Pick-
ering balancing test can favor protected speech even where
the speech violates the employer’s written policy requiring
speech to occur through specified channels. Anderson v. Cen-
tral Point School Dist., 746 F.2d 505, 506 (9th Cir. 1984); see
also Connick, 461 U.S. at 153 n.14 (violation of a rule gov-
erning the circumstances when speech is permitted would
strengthen a claimant’s position in the Pickering balance, but
alone would not be dispositive).
[12] Although we have sometimes found a police depart-
ment’s interests in discipline and esprit de corps to outweigh
First Amendment interests, genuine factual disputes here —
including, for example, the extent of potential workplace dis-
ruption and whether the justifications Defendants assert for
their actions were pretextual — preclude such a determination
4916 ROBINSON v. YORK
at this stage of the litigation. See, e.g., Cochran, 222 F.3d at
1196 (city’s interest in the proper functioning of its police
department outweighed plaintiffs’ expressive interests, but
only after a detailed factual discussion); Kannisto v. San
Francisco, 541 F.2d 841, 843-44 (9th Cir. 1976) (noting that
“[t]he facts in this case sharply contrast with those in Picker-
ing”).
[13] Given the evidence that Defendants may have been
more concerned with the nature and frequency of Robinson’s
reports of misconduct than his adherence to the formal chain
of command, a fact-finder could conclude that Defendants’
application of the chain of command policy was pretextual
and not based on Defendants’ interest in avoiding workplace
disruption. If a fact-finder did so conclude, then Robinson’s
speech interests would outweigh Defendants’ interests under
Pickering. Where, as here, the Pickering test must be applied
and “there are underlying factual issues regarding the extent
of office disruption,” it is proper to deny a motion for sum-
mary judgment. Roth, 856 F.2d at 1408.
But-For Causation
Defendants may avoid liability by showing that Robinson’s
protected speech was not a but-for cause of the adverse
employment action. See Mt. Healthy City School Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Mt. Healthy
but-for causation inquiry is, however, purely a question of
fact. Wagle v. Murray, 560 F.2d 401, 403 (9th Cir. 1977) (per
curium) (“Mt. Healthy indicates the ‘trier-of-fact’ should
determine whether the firing would have occurred without the
protected conduct.”)
[14] Although Defendants are free to argue at trial that they
would have taken the same adverse employment actions
against Robinson regardless of his speech, Robinson has ade-
quately alleged that the “chain of command” policy was used
as a pretext and that the adverse actions against him occurred
ROBINSON v. YORK 4917
because of the content of his protected speech, not the manner
in which he filed his complaints. This factual dispute cannot
be resolved on summary judgment.
Clearly Established
[15] Where a “constitutional right would have been vio-
lated were [the plaintiff’s] allegations established,” a court
must also determine whether the right was clearly established.
Saucier, 533 U.S. 194; see also Pearson, 129 S. Ct. 808.
“Whether an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official action
generally turns on the ‘objective legal reasonableness’ of the
action assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken.” Anderson v. Creighton,
483 U.S. 635, 639 (1987) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818-19 (1982)).
[16] The plaintiff “bears the burden of proving that the
rights [he] claims were ‘clearly established’ at the time of the
alleged violation.” Moran, 147 F.3d at 844. The “contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson, 483 U.S. at 640. “Notwithstanding this particular-
ity requirement, ‘closely analogous preexisting case law is not
required to show that a right was clearly established.’ ” Huf-
ford, 249 F.3d at 1148 (citing White v. Lee, 227 F.3d 1214,
1238 (9th Cir. 2000)).
[17] All of the relevant decisions defining the scope of
Robinson’s constitutional rights were decided well before
April of 2005, when Robinson first might have been consid-
ered for promotion to lieutenant, giving Defendants adequate
notice that their actions would violate those rights. The
Supreme Court had decided Pickering, establishing that the
First Amendment protects employee speech on matters of “le-
gitimate public concern,” in 1968. Pickering, 391 U.S. at 571-
72. It was also already clear that only a “real, not imagined,
4918 ROBINSON v. YORK
disruption” might outweigh the expressive interests of the
employee, that this exception cannot serve as a “pretext,” and
that “employers would be required to make an even ‘stronger
showing’ of disruption when the speech dealt . . . directly with
issues of public concern.” McKinley, 705 F.2d at 1114.
An employer’s written policy requiring speech to occur
through specified “channels” had been held insufficient to jus-
tify retaliation motivated by protected speech. Anderson, 746
F.2d at 506. “[M]isuse of public funds, wastefulness, and
inefficiency in managing and operating government entities”
had been held “matters of inherent public concern.” Roth, 856
F.2d at 1405.
Therefore, at the time defendants acted in 2005 and 2006,
both the constitutional protection of employee speech and a
First Amendment cause of action for retaliation against pro-
tected speech were clearly established and potentially applica-
ble to Defendants’ conduct.3
The district court’s denial of summary judgment is there-
fore
AFFIRMED.
3
Although the Supreme Court recently carved out an exception to this
clearly established law for “expressions employees make pursuant to their
professional duties” in Garcetti, 547 U.S. at 426, Garcetti does not affect
whether Defendants are entitled to qualified immunity at this stage of the
proceedings. Assuming a fact-finder resolves the factual dispute regarding
Robinson’s job duties in Robinson’s favor, the clearly established law that
existed at the time Defendants acted will apply, materially unaltered by
Garcetti.