Julie Ballou v. James McElvain ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIE BALLOU, No. 20-35416
Plaintiff-Appellee,
D.C. No.
v. 3:19-cv-05002-
RBL
JAMES MCELVAIN, PHD, in his
individual and representative
capacity, ORDER AND
Defendant-Appellant, AMENDED
OPINION
and
CITY OF VANCOUVER, a municipal
corporation,
Defendant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted May 6, 2021
Seattle, Washington
Filed September 28, 2021
Amended March 24, 2022
2 BALLOU V. MCELVAIN
Before: Mary H. Murguia, Chief Judge, and Danny J.
Boggs * and Marsha S. Berzon, Circuit Judges.
Order;
Opinion by Judge Berzon
SUMMARY **
Civil Rights
The panel amended its opinion filed on September 28,
2021, filed an amended opinion, denied a petition for panel
rehearing, denied a petition for rehearing en banc on behalf
of the court, and ordered that no further petitions shall be
entertained.
In the amended opinion, the panel affirmed the district
court’s order denying, on summary judgment, qualified
immunity to Police Chief James McElvain on plaintiff’s
First Amendment and Equal Protection disparate treatment
claim; and remanded for the district court to clarify its ruling
on the question of whether McElvain was entitled to
qualified immunity on plaintiff’s claim that she was
retaliated against, in violation of the Fourteenth
Amendment’s Equal Protection Clause, in an action brought
pursuant to 42 U.S.C. § 1983 alleging retaliation and
employment discrimination.
*
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BALLOU V. MCELVAIN 3
Plaintiff, Julie Ballou, asserted that McElvain
discriminated against her because of her gender by
intentionally subjecting her to internal affairs investigations
to preclude her eligibility for promotion and then declining
to promote her to sergeant even though she was the most
qualified candidate. The panel held that, construing all facts
and inferences in her favor, Ballou sufficiently alleged
unconstitutional sex discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment. Plaintiff
established a prima facie claim for disparate treatment and
the record supported the conclusion that McElvain’s
articulated reasons for not promoting Ballou were
pretextual. The panel rejected, as profoundly mistaken,
McElvain’s argument that to state an equal protection claim,
proof of discriminatory animus alone was insufficient, and
plaintiff must show that defendants treated plaintiff
differently from other similarly situated individuals. The
panel stated that the existence of a comparator is not a
prerequisite to stating a disparate treatment claim under the
Fourteenth Amendment.
The panel held that the actions alleged here were so
closely analogous to those identified in Lindsey v. Shalmy,
29 F.3d 1382, 1385-86 (9th Cir. 1994), and so clearly
covered by the focus on promotion in Bator v. State of
Hawai‘i, 39 F.3d 1021, 1028 (9th Cir. 1994), that any
reasonable officer would recognize that discriminatorily
conducting an investigation to stall a promotion as
unconstitutional under the two cases, read in
combination. McElvain was therefore not entitled to
qualified immunity on the claim that he encouraged and
sustained discriminatory investigations into Ballou’s
workplace performance and thereby denied her promotion at
least in part on the basis of sex. As Ballou’s disparate
treatment claim alleged that McElvain violated her clearly
4 BALLOU V. MCELVAIN
established rights under the Equal Protection Clause,
McElvain was not entitled to qualified immunity on that
claim.
The panel next addressed the question of whether
McElvain was entitled to qualified immunity on the claim
that he violated Ballou’s rights under the Equal Protection
Clause of the Fourteenth Amendment by retaliating against
her for opposing defendants’ sex discrimination. Because
the panel’s jurisdiction under the collateral order doctrine
was limited to reviewing the denial of qualified immunity,
and because the panel could not discern from the district
court’s order whether it granted, denied, or did not address
McElvain’s assertion of qualified immunity as to Ballou’s
Fourteenth Amendment Equal Protection retaliation claim,
the panel remanded to the district court to clarify its order as
to that claim.
Finally, the panel affirmed the denial of qualified
immunity to McElvain on Ballou’s First Amendment
retaliation claim. The panel held that Ballou’s speech
opposing sex discrimination in the workplace was inherently
speech on a matter of public concern and was clearly
protected by the First Amendment. Whether Ballou’s
protected expression actually was the but-for cause of the
adverse employment actions went to the ultimate question of
liability and needed to be resolved by the jury at trial. But it
did not bear on the question before the panel now—whether
retaliating against Ballou for that expression would, as a
matter of law, violate her clearly established constitutional
rights. Because Ballou’s factual account was not “blatantly
contradicted by the record,” the panel would not disturb the
district court’s determination that Ballou’s retaliation claims
were sufficiently supported to survive summary judgment.
BALLOU V. MCELVAIN 5
COUNSEL
Daniel G. Lloyd (argued) and Sara Baynard-Cooke,
Assistant City Attorneys, City Attorney’s Office,
Vancouver, Washington, for Defendant-Appellant.
Matthew C. Ellis (argued), Matthew C. Ellis P.C., Portland,
Oregon; Stephen L. Brischetto, Portland, Oregon; for
Plaintiff-Appellee.
ORDER
The opinion filed on September 28, 2021, and reported
at 14 F.4th 1042, is hereby amended. An amended opinion
is filed concurrently with this order.
With the opinion as amended, the panel unanimously
voted to deny the petition for panel rehearing. Chief Judge
Murguia voted to deny the petition for rehearing en banc,
and Judge Boggs and Judge Berzon so recommended. The
full court has been advised of the petition for rehearing en
banc, and no judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for
panel rehearing and rehearing en banc, Docket No. 42, is
DENIED. No further petitions for panel rehearing or
rehearing en banc will be entertained.
6 BALLOU V. MCELVAIN
OPINION
BERZON, Circuit Judge:
Julie Ballou, a police officer in Vancouver, Washington,
scored high enough on the examination for promotion to
sergeant to be eligible for promotion but was repeatedly
passed over, including when she was highest on the
promotion list. James McElvain, the Police Chief who made
the promotion decisions, instigated a series of investigations
into Ballou’s reporting practices and refused to promote her
while the investigations were pending. Ballou sued, alleging
that McElvain violated the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment by
discriminating against her on the basis of sex in refusing to
promote her and by retaliating against her for objecting to
that discrimination.
We affirm the denial of qualified immunity as to
Ballou’s First Amendment and Equal Protection Clause
disparate treatment claims. As to McElvain’s argument that
he is entitled to qualified immunity on Ballou’s claim that
she was retaliated against in violation of the Equal Protection
Clause of the Fourteenth Amendment, we cannot discern
from the district court’s order whether we have jurisdiction
under the collateral order doctrine to resolve that question,
and so we remand to the district court to clarify its ruling.
I.
In 2017, Julie Ballou and several other Vancouver police
officers took an exam to determine eligibility for promotion
to the rank of sergeant. Under Washington civil service
rules, when a vacancy arises, the Police Chief has discretion
to promote any of the three highest-scoring candidates on the
relevant promotion exam. Rules & Regs., Vancouver Civ.
BALLOU V. MCELVAIN 7
Serv. Comm’n § 11.3(a) (2020). Between 2013 and 2018,
every time he filled a vacancy McElvain promoted the
highest-ranked person on the relevant list.
Ballou scored third-highest in her sitting of the
sergeant’s exam. At the time, there were no sergeant
vacancies available, so no one was promoted.
Three months after the sergeant’s exam, before any
promotions had been made, a citizen called the Vancouver
police department to follow up on a burglary report she had
made to Ballou. Considering the inquiry, Rod Trumpf, the
supervising sergeant, discovered that, in violation of
department policy, Ballou had not written and filed a report
on the incident. Trumpf thereupon initiated an internal
affairs investigation into Ballou’s conduct.
The following month, Chief McElvain asked Barbara
Kipp, an investigating officer, to determine if Ballou’s
failure to file a report “was a one-time incident or [part] of a
pattern.” Kipp reviewed over a year of records and identified
seven incidents for which, in Kipp’s view, Ballou should
have filed a report but did not. In June of 2018, Ballou’s
supervising lieutenant issued her a letter of reprimand.
Two sergeant vacancies arose while the internal affairs
investigation of Ballou was ongoing. McElvain promoted
the two officers ranked higher than Ballou on the eligibility
list, leaving Ballou the highest-ranked officer on the sergeant
list. Shortly after Ballou received her letter of reprimand,
McElvain, citing the internal affairs investigations and
Ballou’s failure to follow protocol, announced that he did not
intend to promote her to sergeant.
This decision caused a stir in the department. The week
following McElvain’s announcement, some women
8 BALLOU V. MCELVAIN
officers—but not Ballou herself—raised at a meeting with
McElvain Ballou’s eligibility for promotion. In that
meeting, officers indicated that it was atypical to initiate a
broad internal affairs investigation into an officer for failing
to follow up on a citizen call. One of the officers in that
meeting, Commander Amy Foster, pointed out that Brian
Ruder, an officer who had received a verbal reprimand for
failing to write a report on a sexual assault call, had not, at
that time, been subjected to an internal affairs investigation,
either into the specific incident or into his reporting practices
generally.
The day after that meeting, McElvain announced that he
would be promoting Erik Jennings, the person ranked
directly below Ballou on the sergeant list. McElvain also
directed that an investigation be opened against Ruder who,
after Jennings’s promotion, was tied with Kevin Barton as
the next-highest-ranked candidate after Ballou.
Shortly thereafter, Ballou sent McElvain and Eric
Holmes, the Vancouver city manager, an email stating that
McElvain’s decision to pass her over for promotion was “a
textbook example of applying a different, and harsher,
standard to women than to men.” In her email, Ballou
asserted that McElvain had “in more than one instance . . .
promoted male candidates who have had sustained [internal
affairs investigation] findings against them for much more
serious violations.” This assertion apparently referred to
Ryan Junker and Jeremy Free, officers who had previously
been promoted to the rank of corporal despite having been
disciplined following internal affairs investigations—in
Junker’s case, for shooting himself in the foot, and in Free’s
case, for obstructing an investigation into an allegation that
he had driven under the influence of alcohol.
BALLOU V. MCELVAIN 9
Ballou’s email contended that she had been “the victim
of gender discrimination at least twice: first by the sergeant
who filed the [internal] complaint against me but not the men
on his shift for the same conduct, and second by the Chief
who chose not to promote me because of a minor policy
violation but who, on at least several occasions, promoted
men with more serious [disciplinary] findings.” She further
stated: “I have been advised to hire a lawyer and file a gender
discrimination suit against the City. I would prefer not to do
that for many reasons, not only because of the cost to the
City, but more importantly, because of the harm it will cause
to the City’s reputation.” She concluded by asking that she
be promoted immediately. Ballou followed up this email
with a list of possible report-writing violations by male
officers.
Following Ballou’s email, McElvain neither promoted
Ballou nor investigated any of the violations by the other
officers she had identified. Ballou continued to be
investigated for violations of department reporting policy.
Between February 2018, when she first became eligible for
promotion to sergeant, and May 2019, when she was
ultimately promoted, Ballou was the subject of eight internal
affairs investigations.
In September 2018, two months after her email to
McElvain but more than seven months before her eventual
promotion, Ballou served a state tort claim on the City,
alleging sex discrimination and seeking damages. Shortly
thereafter, a new sergeant vacancy became available.
McElvain promoted Kevin Barton, a candidate ranked just
below Ballou on the eligibility list and tied with Ruder.
After that promotion, in November 2018, Ballou filed a
second state tort claim, alleging “further sexual
discrimination due to her most recent non-promotion,”
10 BALLOU V. MCELVAIN
“further claims for discriminatory discipline,” and “claims
for retaliation.”
Ballou filed the present suit under 42 U.S.C. § 1983 in
federal court on January 3, 2019, alleging denial of her
constitutional right to equal protection and seeking damages.
The following week, on January 10, McElvain announced
that he intended to promote Ruder, now the second-ranked
candidate, over Ballou. McElvain contends that he
announced this decision before he learned of this lawsuit.
In May 2019, more than a year after she first became
eligible for promotion, McElvain promoted Ballou to the
rank of sergeant.
After Ruder’s promotion, Ballou amended her federal
complaint to add that the ongoing investigations against her
and the decision to promote Ruder had been retaliatory, in
violation of Ballou’s rights under the Petition Clause of the
First Amendment. She also filed a charge with the Equal
Employment Opportunity Commission (EEOC) against the
City of Vancouver and then brought new claims against the
City under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e. The amended complaint retained Ballou’s
assertion that McElvain had violated her right to be free from
sex discrimination under the Equal Protection Clause by
discriminatorily investigating her, passing her over for
promotion, and “retaliating against her for opposing . . . sex
discrimination.”
McElvain filed a motion for partial judgment on the
pleadings, asserting qualified immunity as to Ballou’s
claims of disparate treatment and of retaliation. The district
court denied that motion in its entirety. Both McElvain and
the City of Vancouver then moved for summary judgment,
with McElvain again asserting qualified immunity. The
BALLOU V. MCELVAIN 11
district court denied summary judgment on Ballou’s Equal
Protection and First Amendment claims and denied
McElvain qualified immunity on the ground that “the Equal
Protection Clause prohibits discrimination, and . . . the First
Amendment prohibits retaliation.” The district court also
denied the City’s motion for summary judgment on several
of Ballou’s Title VII and state-law claims but granted
summary judgment on her hostile-work-environment claim.
McElvain moved for reconsideration, which the district
court denied.
McElvain now appeals the denial of qualified immunity.
II.
This case comes before us as an interlocutory appeal
from a denial of summary judgment. Denials of summary
judgment are typically not appealable, as they are not final
orders. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938,
944 (9th Cir. 2017). We may, however, review orders
denying qualified immunity under the collateral order
exception to finality. Plumhoff v. Rickard, 572 U.S. 765,
771–73 (2014); Foster v. City of Indio, 908 F.3d 1204, 1209
(9th Cir. 2018) (per curiam). In such cases, the scope of our
review is “circumscribed.” Foster, 908 F.3d at 1210
(quoting George v. Morris, 736 F.3d 829, 834 (9th Cir.
2013)). Unless the plaintiff’s version of events is “blatantly
contradicted by the record, so that no reasonable jury could
believe it,” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th
Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380
(2007)), we may not review the district court’s determination
that “the pretrial record was sufficient to show a genuine
issue of fact for trial,” Foster, 908 F.3d at 1210 (quoting
Johnson v. Jones, 515 U.S. 304, 307 (1995)). We therefore
lack jurisdiction over any aspects of the present dispute that
turn on that question and instead consider only “whether the
12 BALLOU V. MCELVAIN
defendant would be entitled to qualified immunity as a
matter of law, assuming all factual disputes are resolved, and
all reasonable inferences are drawn, in plaintiff’s favor.”
Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir.
2021) (alterations omitted) (quoting George, 736 F.3d
at 836); see id. at 732.
We review the denial of qualified immunity de novo.
Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). We
must affirm the district court’s denial of qualified immunity
if, resolving all factual disputes and drawing all inferences
in Ballou’s favor, McElvain’s conduct (1) violated a
constitutional right that (2) was clearly established at the
time of the violation. See Estate of Anderson, 985 F.3d
at 731; see also Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011). Conduct violates a “clearly established” right if “the
unlawfulness of the action in question [is] apparent in light
of some pre-existing law.” Benavidez v. Cnty. of San Diego,
993 F.3d 1134, 1151–52 (9th Cir. 2021) (quoting Devereaux
v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)). For a right
to be “clearly established,” there need not be a Supreme
Court or circuit case “directly on point,” but “existing
precedent must place the lawfulness of the conduct beyond
debate.” Tobias v. Arteaga, 996 F.3d 571, 580 (9th Cir.
2021) (alteration and internal quotation marks omitted)
(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018)).
A. Disparate Treatment
We first consider whether McElvain is entitled to
qualified immunity on Ballou’s claim that she was subjected
to discriminatory treatment because of her sex, in violation
of the Equal Protection Clause of the Fourteenth
Amendment. Ballou contends that McElvain discriminated
against her because of her gender by intentionally subjecting
BALLOU V. MCELVAIN 13
her to internal affairs investigations to preclude her
eligibility for promotion and then declining to promote her
to sergeant even though she was the most qualified
candidate.
i.
The district court held that Ballou had produced
sufficient evidence, including circumstantial evidence of
discriminatory intent, to preclude summary judgment on the
first qualified immunity prong, whether McElvain failed to
promote her because of sex. We agree that, construing all
facts and inferences in her favor, Ballou has sufficiently
alleged unconstitutional sex discrimination.
The central inquiry in an Equal Protection Clause claim
is whether a government action was motivated by a
discriminatory purpose. See Ave. 6E Invs., LLC v. City of
Yuma, 818 F.3d 493, 504 (9th Cir. 2016). A plaintiff may
establish discriminatory purpose by “‘produc[ing] direct or
circumstantial evidence demonstrating that a discriminatory
reason more likely tha[n] not motivated’ the defendant and
that the defendant’s actions adversely affected the plaintiff
in some way.” Id. (quoting Pac. Shores Props., LLC v. City
of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)).
Where direct evidence is unavailable, plaintiffs can, and
frequently do, rely on the burden-shifting framework set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
as a way of channeling inquiry into the available
circumstantial evidence. That framework originated in cases
interpreting Title VII of the Civil Rights Act of 1964, which
prohibits employment discrimination based on “race, color,
religion, sex, or national origin,” 42 U.S.C. § 2000e-2, but
its use has since expanded to other discrimination statutes
and to constitutional equal protection, see, e.g., Anthoine v.
14 BALLOU V. MCELVAIN
N. Cent. Cntys. Consortium, 605 F.3d 740, 753 (9th Cir.
2010).
Under McDonnell Douglas, a plaintiff may make out a
prima facie case of discrimination by demonstrating that
“(1) she is a member of a protected class; (2) she was
qualified for her position; (3) she experienced an adverse
employment action; and (4) similarly situated individuals
outside her protected class were treated more favorably.”
Freyd v. Univ. of Oregon, 990 F.3d 1211, 1228 (9th Cir.
2021) (alterations adopted) (quoting Fonseca v. Sysco Food
Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004))
(applying McDonnell Douglas in the Title VII context).
Once a plaintiff has established a prima facie case, the
burden shifts to the defendant to “show a legitimate,
nondiscriminatory reason for the challenged actions.” Id. If
he is able to do so, the burden “returns to the plaintiff, who
must show that the proffered nondiscriminatory reason is
pretextual.” Id.Ballou has established a prima facie claim for disparate
treatment. It is undisputed that once Ballou was listed
among the top three candidates on the sergeant list, she was
eligible for promotion but was passed over for that
promotion several times in favor of male candidates. One
male officer, Ruder, was promoted to the same rank sought
by Ballou—sergeant—despite having been investigated for
precisely the same policy violation for which Ballou was
investigated. Two other officers were promoted to corporal,
a lower rank than sergeant, despite arguably more egregious
violations. The record also indicates that Ballou was
subjected to repeated internal affairs investigations for
failure to write up reports on incidents, while male officers
were not routinely subjected to investigations for the same
conduct, and that the investigations became a purported
BALLOU V. MCELVAIN 15
reason she was not promoted. Drawing all facts and
inferences in her favor, Ballou has readily established the
“minimal” degree of proof required to establish a prima facie
case for discrimination. Wallis v. J.R. Simplot Co., 26 F.3d
885, 889 (9th Cir. 1994) (applying McDonnell Douglas in
the Title VII context).
As Ballou has established a prima facie case, the burden
shifts to McElvain to articulate “legitimate,
nondiscriminatory reason[s]” for the actions Ballou
challenges. Freyd, 990 F.3d at 1228. In his motion for
summary judgment, McElvain asserted that Ballou was not
promoted because she “failed a basic function of policing,
gave conflicting explanations for her actions, and was soon
under investigation for allegations of the identical
misconduct.” Ballou does not dispute that these reasons, if
true and complete, would be legitimate, nondiscriminatory
bases for non-promotion, so we shall assume that they are.
At the third McDonnell Douglas step, Ballou presented
evidence that McElvain’s stated reasons for not promoting
her were “false” and “based on sex stereotypes.”
“Determining whether invidious discriminatory purpose was
a motivating factor” for a government action “demands a
sensitive inquiry into” the available evidence, including the
“background” and “specific sequence of events leading up
to the challenged decision,” “[d]epartures from the normal
procedural sequence,” and “contemporary statements” by
the decision maker. Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977).
Here, normal procedure was for McElvain to promote
the highest-ranked candidate on the sergeant list. Drawing
all inferences in Ballou’s favor, the record indicates that it
was not normal department procedure to initiate a broad
internal affairs investigation into an officer for failing to file
16 BALLOU V. MCELVAIN
a report. Furthermore, the record shows that McElvain’s
request for an expanded investigation into Ballou’s conduct
occurred close in time to when Ballou became the first
woman in McElvain’s tenure to be eligible for promotion to
sergeant.
The record testimony regarding internal departmental
discussions about Ballou further supports her contention that
McElvain’s articulated reasons for failing to promote her
was pretextual. Two women officers who had met with
McElvain in July of 2018 testified that they had specifically
identified both the internal affairs investigations into Ballou
and the decision not to promote her as examples of
discriminatory practices in the department. They and other
officers who attended the meeting expressed concerns about
what they perceived as a discriminatory department culture,
labelled the department’s conduct as “disparate treatment,”
and identified Ruder as a “white male comparator” who had
been treated more favorably than Ballou. Within a day of
this discussion, in which he was urged to “take some time”
to reflect on possible discrimination in the department,
McElvain announced the promotion of Jennings over
Ballou. This sequence of events, together with the departure
from standard department procedure, indicates that
McElvain was at best unconcerned about allegations of
discrimination in the department.
Additionally, the district court determined that the
comparators Ballou identified were sufficiently similar to
her to support an inference of disparate treatment. To
establish similarity under the McDonnell Douglas
framework, the individuals being compared “need not be
identical; they must only be similar ‘in all material
respects.’” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,
1157 (9th Cir. 2010) (quoting Moran v. Selig, 447 F.3d 748,
BALLOU V. MCELVAIN 17
755 (9th Cir. 2006)) (applying McDonnell Douglas to a Title
VII claim). Generally, “individuals are similarly situated
when they have similar jobs and display similar conduct.”
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir.
2003).
Here, Ruder held the same position as Ballou when he
applied for promotion and was promoted to sergeant—the
same promotion Ballou sought. Likewise, Ruder and Ballou
“display[ed] similar conduct.” Id. Although Vasquez held
that officers not accused of “problematic conduct of
comparable seriousness” might not be so similarly situated
as to sustain a case for discrimination under Title VII, id., in
this case Ballou and Ruder were both accused of the same
conduct: failure to write a report. Ruder is therefore
sufficiently “similarly situated” to support an inference of
discriminatory intent.
In sum, the district court concluded that whether
McElvain’s stated reasons for not promoting Ballou were
“valid and non-discriminatory . . . raises numerous questions
of fact precluding summary judgment.” Again, we may not
review that conclusion in the present procedural posture. See
Estate of Anderson, 985 F.3d at 730–31. Assuming, as we
must when reviewing a denial of qualified immunity at
summary judgment, that these factual disputes are resolved
in Ballou’s favor, id. at 731, the record supports the
conclusion that McElvain’s articulated reasons for not
promoting Ballou were pretextual and that Ballou has thus
established a disparate treatment claim under the Equal
Protection Clause.
ii.
McElvain argues vigorously that Ballou’s disparate
treatment claim nonetheless cannot succeed because the
18 BALLOU V. MCELVAIN
male police officers Ballou points to as comparators for her
claim are not sufficiently similar to Ballou to demonstrate
discrimination. He asserts that “proof of discriminatory
animus alone will not suffice to establish an equal protection
violation,” as “proof that others similarly situated in a
constitutional sense were treated more favorably is an
essential element” of such a claim. Because, he argues,
Ballou has not pointed to any male officer “arguably
indistinguishable from Ballou in terms of being promoted to
sergeant despite recent sustained misconduct,” she cannot
state a claim under the Equal Protection Clause, even if she
has presented sufficient evidence that the reason she was not
promoted was that she is a woman—that is, that had she been
a man, she would have been promoted earlier than she was.
McElvain’s account of the requirements for making out
an Equal Protection claim is profoundly incorrect, as it is
squarely contrary both to our precedents and to the basic
precepts underlying the Equal Protection Clause.
The central inquiry in any disparate treatment claim
under the Equal Protection Clause is whether “an ‘invidious
discriminatory purpose was a motivating factor’” in some
government action. Ave. 6E Invs., 818 F.3d at 504 (quoting
Arlington Heights, 429 U.S. at 266) (applying this standard
to claims under both the Equal Protection Clause and the Fair
Housing Act, 42 U.S.C. § 3601 et seq.). A plaintiff may
make out a disparate treatment claim by “simply produc[ing]
direct or circumstantial evidence demonstrating that” a
government action was motivated by a discriminatory
purpose. Id. (quoting Pac. Shores, 730 F.3d at 1158).
“[A]ny indication of discriminatory motive may suffice” to
allow a disparate treatment claim to survive summary
judgment. Arce v. Douglas, 793 F.3d 968, 978 (9th Cir.
BALLOU V. MCELVAIN 19
2015) (emphasis added) (quoting Pac. Shores, 730 F.3d
at 1159).
Plaintiffs bringing disparate treatment claims, either
under the Equal Protection Clause or under
antidiscrimination statutes, may, as we have explained,
supra at 13–14, point to comparators as circumstantial
evidence of unlawful discriminatory intent. But a relevant
comparator is not an element of a disparate treatment claim.
As our precedent makes clear, the existence of a comparator
“is only one way to survive summary judgment on a
disparate treatment claim.” Pac. Shores Props., 730 F.3d
at 1158 (citing McDonnell Douglas, 411 U.S. 792); see also
Purtue v. Wis. Dep’t of Corr., 963 F.3d 598, 602 (7th Cir.
2020). 1 With or without comparator evidence, courts
determine whether a government action was motivated by
discriminatory purpose by engaging in the “sensitive inquiry
into such circumstantial and direct evidence of intent as may
be available.” De La Cruz v. Tormey, 582 F.2d 45, 59 (9th
Cir. 1978) (quoting Arlington Heights, 429 U.S. at 266).
McElvain insists otherwise—that “to state an equal
protection claim of any stripe . . . a plaintiff must show that
the defendant treated the plaintiff differently from similarly
situated individuals,” pointing to Pimentel v. Dreyfus,
670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam) (emphasis
added). In so arguing, McElvain misunderstands the
1
Pacific Shores Properties analyzed the disparate treatment claim
through the lens of the Fair Housing Act. But Avenue 6E Investments
clarified that “[i]f a governmental actor engages in . . . discrimination
[under the Fair Housing Act], such conduct also violates the Equal
Protection Clause,” 818 F.3d at 502 (citing Arlington Heights, 429 U.S.
at 265–66), and that the inquiry into whether disparate treatment has
occurred is the same under both the Fair Housing Act and the Equal
Protection Clause, see id. at 504.
20 BALLOU V. MCELVAIN
significance of Pimentel and also of Furnace v. Sullivan,
705 F.3d 1021 (9th Cir. 2013), another case on which
McElvain relies for his novel proposition.
In Pimentel, we denied a preliminary injunction against
Washington State’s termination of state-funded food
assistance for certain noncitizens. See 670 F.3d at 1098,
1106. In so doing, we held that the state had not engaged in
discrimination, because the repeal of a state measure
adopted to benefit a certain class, without more, does not
necessarily constitute discrimination. See id. at 1107.
Because we held the plaintiffs had not stated an equal
protection claim, we declined to apply strict scrutiny to the
state’s action. Id. at 1106. The language cited by McElvain
appears in the portion of the discussion rejecting an equal
protection claim based solely on repeal of a beneficial
provision; it stands only for the proposition that “[i]n the
absence of an equal protection claim, consideration of the
level of scrutiny . . . necessarily falls out of the analysis.” Id.
Pimentel did not address, and should not be read as
disturbing, Supreme Court and circuit case law establishing
that comparator evidence is not an essential element of a
disparate treatment claim.
In Furnace, we held that the plaintiff had not stated an
Equal Protection claim because he did not establish that he
was part of a class that was being discriminated against. See
705 F.3d at 1030–31. The plaintiff’s failure to point to other
“similarly situated” individuals was fatal because he was not
able to identify the “factor motivating the alleged
discrimination.” Id. at 1030 (quoting Thornton v. City of St.
Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)). No such
problem exists here. Ballou alleges that she was
discriminated against on the basis of sex, and it is undisputed
that sex is a protected classification under the Equal
BALLOU V. MCELVAIN 21
Protection Clause. See Frontiero v. Richardson, 411 U.S.
677, 682 (1973). The cases McElvain cites are therefore
inapposite.
McElvain’s account of the protections of the Fourteenth
Amendment, in addition to being wrong as a matter of law,
is contrary to the amendment’s fundamental guarantee of
“equal protection of the laws.” U.S. Const. amend. XIV, § 1.
Under McElvain’s reading of the Fourteenth Amendment,
no plaintiff could state an equal protection claim “of any
stripe” without an identical comparator, no matter how
strong the direct or circumstantial evidence that the reason
the plaintiff was detrimentally treated was her sex—or, for
that matter, her race. This view of the Constitution’s
protections would sweep so broadly as to undermine decades
of Supreme Court case law striking down government
actions “taken for invidious purposes.” Arlington Heights,
429 U.S. at 267; see id. (collecting cases). Applied to the
present case, McElvain’s account of the scope of the Equal
Protection Clause would mean that, had Ballou presented an
audio recording of McElvain stating that he was declining to
promote Ballou specifically because she was a woman and
that, moreover, he would never promote a woman to
sergeant, this evidence would not support a disparate
treatment claim unless he promoted an identical male
comparator.
As this example confirms, McElvain’s account of Equal
Protection law is profoundly mistaken. The existence of a
comparator is not a prerequisite to stating a disparate
treatment claim under the Fourteenth Amendment. To the
contrary, comparator evidence in disparate treatment claims
can, but need not, be used to support a finding of a
discriminatory motive. It is not a gatekeeping mechanism
essential to plaintiffs’ ability to prove that they have been
22 BALLOU V. MCELVAIN
denied equal protection of the laws by being adversely
treated on the basis of membership in a protected class. See
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985).
iii.
The remaining question on the sex discrimination
disparate treatment claim is whether, assuming all factual
disputes are resolved in Ballou’s favor, McElvain is entitled
to qualified immunity. See Estate of Anderson, 985 F.3d
at 731. He is not.
It is well established that the Equal Protection Clause
“prohibit[s] state actors from engaging in intentional
conduct designed to impede a person’s career advancement
because of her gender.” Lindsey v. Shalmy, 29 F.3d 1382,
1385 (9th Cir. 1994). This prohibition guarantees state
employees “a clearly established constitutional right not to
be refused employment because of their sex,” and to be free
from “denial of a promotion, adverse alteration of job
responsibilities, and other hostile treatment” in the
workplace on account of sex. Bator v. State of Hawai‘i,
39 F.3d 1021, 1028 (9th Cir. 1994) (citing Lowe v. City of
Monrovia, 775 F.3d 998, 1011 (9th Cir. 1985) and Lindsey,
29 F.3d at 1385–86). Ballou contends that McElvain denied
her promotion at least in part on account of her sex; the
conduct she alleges falls squarely within the constitutional
prohibition outlined in Lindsey and Bator.
Given Lindsey and Bator, McElvain is not entitled to
qualified immunity on the claim that he discriminatorily
denied Ballou a promotion. It is “apparent in light of . . .
pre-existing law,” Benavidez, 993 F.3d at 1152 (quoting
Devereaux, 218 F.3d at 1053), that discriminatorily
instigating an internal investigation against a public
BALLOU V. MCELVAIN 23
employee violates that individual’s constitutional rights. In
holding that discriminatory employment actions by a public
employer against a state employee violate that employee’s
constitutional rights, Lindsey specifically identified
“unfavorably altering . . . job assignments,” “unfavorable
performance evaluations” and “displaying a hostile attitude”
toward a plaintiff as examples of adverse employment
actions that, if taken with a discriminatory purpose, would
violate an employee’s “clearly established federal
constitutional rights.” 29 F.3d at 1386.
The actions alleged here are so closely analogous to
those identified in Lindsey and so clearly covered by Bator’s
focus on promotion that any reasonable officer would
recognize discriminatorily conducting an investigation to
stall a promotion as unconstitutional under the two cases,
read in combination. Ballou contends that McElvain
initiated several investigations charging Ballou with
misconduct. These investigations became the stated grounds
for denying Ballou a promotion to which she was otherwise
entitled, thus directly limiting her career progression. The
investigations had a direct material impact on her
employment, by blocking her path to promotion.
McElvain is therefore not entitled to qualified immunity
on the claim that he encouraged and sustained discriminatory
investigations into Ballou’s workplace performance and
thereby denied her promotion at least in part on the basis of
sex. As Ballou’s disparate treatment claim alleged that
McElvain violated her clearly established rights under the
Equal Protection Clause, McElvain is not entitled to
qualified immunity on that claim.
24 BALLOU V. MCELVAIN
B. Fourteenth Amendment Retaliation
McElvain next asks us to consider whether he is entitled
to qualified immunity on the claim that he violated Ballou’s
rights under the Equal Protection Clause of the Fourteenth
Amendment by “retaliating against her for opposing
Defendants’ sex discrimination.” Because our jurisdiction
under the collateral order doctrine is limited to reviewing a
denial of qualified immunity, and because we cannot discern
from the district court’s order whether it granted, denied, or
did not address McElvain’s assertion of qualified immunity
as to Ballou’s Equal Protection retaliation claim, we remand
to the district court to clarify its order as to that claim.
The district court’s dispositions, both on the motion for
partial judgment on the pleadings and on the motion for
summary judgment, addressed McElvain’s assertion of
qualified immunity, as it applied to Ballou’s claims, only
briefly. In the order denying partial judgment on the
pleadings, the district court stated, with respect to Ballou’s
First Amendment retaliation claim, that it is clearly
established “that complaints of gender discrimination
against a public employer are matters of public concern.”
Then, addressing McElvain’s assertion of qualified
immunity generally, the district court stated only that
McElvain knew or should have known “that sexually
discriminating against an employee and retaliating against
her for voicing her concerns, violates her clearly established
constitutional rights.” The district court did not so state with
regard to the Equal Protection retaliation claim in particular.
In his motion for summary judgment, addressing the
merits of Ballou’s Equal Protection retaliation claim,
McElvain argued that the district court should reject that
claim because “there is no binding Ninth Circuit case on
point,” but in the portion of his brief addressing qualified
BALLOU V. MCELVAIN 25
immunity, he did not specifically assert qualified immunity
as to Ballou’s Equal Protection retaliation claim. Instead, he
argued generally that, while “as a general matter, the Equal
Protection Clause prohibits discrimination, and the First
Amendment prohibits retaliation,” he was entitled to
qualified immunity on the “more particularized” questions
whether Ballou’s failure “to take a police report is a
sufficient basis to decline to promote her to a supervisory
position” and “whether Ballou’s original lawsuit is
constitutionally protected.”
Apparently reflecting the structure of the arguments
advanced in McElvain’s motion, the district court’s
summary judgment order stated generally, as to qualified
immunity, that “the Equal Protection Clause prohibits
discrimination, and . . . the First Amendment prohibits
retaliation.” Noting that this qualified immunity argument
“was the subject of a prior Motion and Order,” the district
court denied McElvain’s motion for summary judgment on
qualified immunity. Although this portion of the district
court’s order could be read as denying qualified immunity as
to all of Ballou’s claims, other parts of the district court’s
order indicate otherwise.
Specifically, in addressing the merits of Ballou’s Equal
Protection retaliation claim, the district court stated that the
viability of such a claim is a “close question,” noting that
“there is not a Ninth Circuit (or Supreme Court) case[] flatly
holding that Equal Protection does not apply to a retaliation
claim.” In contrast to the part of the district court’s order
addressing qualified immunity, this reasoning indicates that
the district court believed the law had not clearly established
the right asserted by Ballou. The absence of a case denying
a right cannot establish clearly that there is such a right, nor
would there be a “close question” on the merits if the
26 BALLOU V. MCELVAIN
pertinent law were clearly established. So the district court’s
analysis of the merits of the Equal Protection retaliation
claim is inconsistent with denying qualified immunity on
that claim.
Taking that analysis together with the holdings, we
cannot discern whether the district court granted, denied, or
simply did not address McElvain’s assertion of qualified
immunity on Ballou’s Equal Protection retaliation claim. On
the one hand, the bottom line of the district court’s summary
judgment order generally denied qualified immunity and did
not specifically carve out Ballou’s Equal Protection
retaliation claim. Without more, that conclusion could
suggest the district court intended to deny qualified
immunity as to all of Ballou’s claims. But the district court
did say more. Specifically, the district court’s qualified
immunity analysis—like McElvain’s motion—stated that
“the Equal Protection Clause prohibits discrimination” and
“the First Amendment prohibits retaliation,” without
addressing whether the Equal Protection Clause clearly
prohibits retaliation. And as to that claim, the district
court—addressing the merits of Ballou’s Equal Protection
retaliation claim—indicated that there is not clearly
established law on that constitutional issue, a conclusion
consistent with granting qualified immunity to McElvain on
that claim.
Our jurisdiction under the collateral order doctrine is
limited to reviewing a denial of qualified immunity. See
Plumhoff, 572 U.S. at 771–72; Foster, 908 F.3d at 1209–10.
Where, as here, “we cannot tell for sure” what action the
district court took with respect to McElvain’s assertion of
qualified immunity, “we must either try to discern from the
record” what the district court did “or remand for the district
court to explain its reasoning.” Maropulos v. Cnty. of Los
BALLOU V. MCELVAIN 27
Angeles, 560 F.3d 974, 975 (9th Cir. 2009) (per curiam).
Accordingly, rather than venture a guess about our
jurisdiction, we remand to the district court to clarify what
action, if any, it took with respect to Ballou’s Equal
Protection retaliation claim.
C. First Amendment Retaliation
Finally, Ballou contends that McElvain violated her
rights under the Petition Clause of the First Amendment by
maintaining repeated internal affairs investigations into her
work practices and promoting Ruder over her, in retaliation
for her opposition to sex discrimination in the workplace.
McElvain’s counters are that he is entitled to qualified
immunity on Ballou’s First Amendment claims because
(1) the law does not clearly establish that her speech was on
a matter of public concern and (2) the forms of her
opposition—on his account, internal complaints and state-
law tort claims—were not clearly constitutionally protected.
And, McElvain further contends, the record does not support
the conclusion that Ballou’s speech was a cause of the
adverse employment actions. Each of these arguments fails
at this stage.
First, the content of Ballou’s expression is clearly
protected by the First Amendment. It is long established,
and McElvain does not dispute, that the First Amendment
protects a public employee’s right to speak out against or
petition the government—including via a lawsuit—on
“matters of public concern.” Pickering v. Bd. of Educ.,
391 U.S. 563, 574 (1968). “Whether an employee’s speech
addresses a matter of public concern must be determined by
the content, form, and context” of the expression, Connick v.
Myers, 461 U.S. 138, 147–48 (1983), with content weighing
as the “greatest single factor” in the analysis, Ulrich v. City
& Cnty. of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002)
28 BALLOU V. MCELVAIN
(quoting Havekost v. U.S. Dep’t of the Navy, 925 F.2d 316,
318 (9th Cir. 1991)).
McElvain maintains that Ballou here seeks to
“constitutionalize the employee grievance,” and that her
complaints and lawsuit pertain only to matters of private,
rather than public, concern. See Borough of Duryea v.
Guarnieri, 564 U.S. 379, 392 (2011) (quoting Garcetti v.
Ceballos, 547 U.S. 410, 420 (2006)). Our circuit case law
squarely forecloses McElvain’s position. Public employees’
expression is on a matter of public concern if it “relat[es] to
any matter of political, social, or other concern to the
community,” Barone v. City of Springfield, 902 F.3d 1091,
1102 (9th Cir. 2018) (quoting Lane v. Franks, 573 U.S. 228,
241 (2014)), and not “upon matters only of personal
interest.” Rendish v. City of Tacoma, 123 F.3d 1216, 1223
(9th Cir. 1997) (emphasis added) (quoting Connick, 461 U.S.
at 147). Some subjects both affect a public employee’s
personal interests and implicate matters of public concern.
Rendish held that unlawful discrimination is such a matter,
recognizing that “the public has an interest in unlawful
discrimination” in City government, and that employee
speech about such discrimination therefore involves matters
of public concern even if it arises out of a personal dispute.
Id. at 1224.
We reiterated this principle in Alpha Energy Savers, Inc.
v. Hansen, 381 F.3d 917 (9th Cir. 2004). Alpha Energy held
that “when government employees speak about . . .
wrongdoing [or] misconduct . . . by other government
employees, . . . their speech is inherently a matter of public
concern.” Id. at 926 (final ellipsis in original) (quoting
Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004),
rev’d, 547 U.S. 410 (2006)). And Alpha Energy clarified
that:
BALLOU V. MCELVAIN 29
Th[is] rule applies to invidious
discrimination as well . . . . Disputes over
racial, religious, or other such discrimination
by public officials are not simply individual
personnel matters. They involve the type
of governmental conduct that affects the
societal interest as a whole—conduct
in which the public has a deep and abiding
interest. Litigation seeking to expose such
wrongful governmental activity is, by its very
nature, a matter of public concern.
Id. at 926–27. This rule applies to both administrative and
judicial proceedings seeking to “bring to light potential or
actual discrimination” by government officials, id. at 925
(citing Lytle v. Wondrash, 182 F.3d 1083, 1087–88 (9th Cir.
1999)); see Rendish, 123 F.3d at 1223–24, and controls even
when the plaintiff seeks only private relief for the
vindication of her own rights, see Rendish, 123 F.3d at
1224. 2 This precedent clearly establishes that speech by
public employees about unlawful discrimination in the
workplace is inherently speech on a matter of public
concern. 3
2
In so holding, Alpha Energy Savers explicitly rejected the Seventh
Circuit’s reasoning in Yatvin v. Madison Metro Sch. Dist., 840 F.2d 412(7th Cir. 1988), on which McElvain relies. See 381 F.3d at 926.
3
McElvain argues that our precedent has been cast into doubt by the
Supreme Court’s decision in Borough of Duryea v. Guarnieri, 564 U.S.
379 (2011), which was decided after Alpha Energy. We do not agree
with McElvain’s reading of Borough of Duryea. That case held only that
the “public concern” test outlined in Connick applies to suits under the
Petitions Clause, and that courts should apply the same framework used
in Speech Clause claims to assess claims brought under the Petitions
30 BALLOU V. MCELVAIN
What’s more, the record in this case demonstrates that
Ballou’s allegations concerned considerably more than a
personal matter. The Vancouver Police Department’s
treatment of Ballou generated concern and involvement
among other police officers. As a result of that concern,
several of them met with McElvain to discuss perceived
discriminatory practices in their workplace. Also, Ballou’s
lawsuit was the subject of at least one news story in the local
press. Thus, even if speech alleging discrimination in a
public workplace were not inherently a matter of public
concern—which, as explained supra, our case law
establishes it is—there is sufficient evidence in the record,
drawing all inferences in Ballou’s favor, Estate of Anderson,
985 F.3d at 731, to conclude that the specific expression at
issue here was on a matter of more than private concern. We
therefore reject the argument that the content of Ballou’s
speech is not protected by the First Amendment.
McElvain’s contention to the contrary notwithstanding,
the form of Ballou’s expression is likewise protected by the
First Amendment under clearly established law. The
Petition Clause prohibits retaliating against public
employees for filing lawsuits. See Rendish, 123 F.3d
at 1219–23; Alpha Energy, 381 F.3d at 925. The parties
dispute, as a question of fact, whether McElvain was aware
of Ballou’s federal suit when he passed her over for
promotion in favor of Ruder. Ballou first filed her federal
lawsuit on January 3, 2019, a week before McElvain
promoted Ruder over her. She served it on January 10.
McElvain contends he decided to promote Ruder before he
learned of the lawsuit. But even if that were so, the record
Clause. See id. at 393–95, 398. Borough of Duryea therefore reinforces,
rather than undermines, the relevance of our precedent addressing when
expression involves a matter of public concern.
BALLOU V. MCELVAIN 31
nevertheless shows at least one internal affairs investigation
was opened against Ballou after she filed her federal
complaint. If, at trial, the jury finds that McElvain retaliated
in that respect against Ballou for filing this federal suit, that
retaliation would violate Ballou’s clearly established rights
under the Petition Clause.
McElvain is not entitled to qualified immunity on
Ballou’s First Amendment claims at this stage of the
litigation for another reason as well. McElvain does not
dispute that he was aware of Ballou’s state tort-claim notices
alleging sex discrimination, filed in the autumn of 2018,
several months before Ruder’s promotion. Under
Washington law, the service of a state tort notice is a
necessary first step in filing suit against a local government
entity. Wash. Rev. Code § 4.96.020. As a statutory
prerequisite to filing a state-court action, such notices are
part and parcel of formal litigation proceedings. And, as
established in Rendish, the Petition Clause of the First
Amendment protects the initiation of a state-court lawsuit by
a public employee on a matter of public concern. See
123 F.3d at 1218, 1223–25. Filing a mandatory
administrative complaint to initiate state-court litigation is
thus no doubt a form of speech protected by the Petition
Clause.
Finally, McElvain contends that Ballou has not
established causation—i.e., that she has failed to establish
that any adverse employment actions she suffered were
because of her opposition to sex discrimination in her public
workplace. We lack jurisdiction to address this question.
The district court found that there were disputed questions
of material fact sufficient to deny summary judgment to
McElvain on the causation aspect of the retaliation claim.
We may review that denial of summary judgment only if
32 BALLOU V. MCELVAIN
Ballou’s version of events is “blatantly contradicted by the
record.” Orn, 949 F.3d at 1171 (quoting Scott, 550 U.S.
at 380). It is not.
Ballou contends, as part of her retaliation claim, that she
was subjected to unwarranted internal affairs investigations
in response to her opposition to sex discrimination. The
record indicates that several internal affairs investigations
were initiated against Ballou after McElvain became aware
of the action underlying this suit. Likewise, the record
supports the conclusion that McElvain was aware of
Ballou’s internal complaints and state-court claims when he
passed her over for promotion in favor of Ruder.
Whether Ballou’s protected expression actually was the
but-for cause of the adverse employment actions goes to the
ultimate question of liability and must be resolved by the
jury at trial. But it does not bear on the question before us
now—whether retaliating against Ballou for that expression
would, as a matter of law, violate her clearly established
constitutional rights. Because Ballou’s factual account is not
“blatantly contradicted by the record,” id., we may not
disturb the district court’s determination that Ballou’s
retaliation claims were sufficiently supported to survive
summary judgment.
We therefore affirm the denial of qualified immunity to
McElvain on Ballou’s First Amendment claims.
III.
Because we cannot discern whether the district court
denied McElvain qualified immunity on Ballou’s claim that
she was retaliated against in violation of the Fourteenth
Amendment’s Equal Protection Clause, we remand to the
district court to clarify its summary judgment order on that
BALLOU V. MCELVAIN 33
issue. For the reasons explained, we hold that McElvain is
not entitled to qualified immunity on Ballou’s remaining
claims. We therefore affirm the district court’s denial of
qualified immunity on Ballou’s Equal Protection sex
discrimination and First Amendment claims.
AFFIRMED; REMANDED.