Provided by James R. Touchstone Esq
In the case of Ballou v. McElvain, the Ninth Circuit Court of Appeals affirmed the denial of qualified immunity to a police chief on an officer’s First Amendment retaliation claim, holding that the officer’s speech opposing workplace sex discrimination was inherently speech on a matter of public concern and was clearly protected by the First Amendment. The Court also affirmed the denial, on summary judgment, of qualified immunity to the chief on plaintiff’s Equal Protection disparate treatment claim.
In 2017, Julie Ballou, a police officer with the Vancouver Police Department in Washington, scored third highest on an exam to determine eligibility for promotion to the rank of sergeant. However, there were no sergeant vacancies at the time, so no one was promoted. Police Chief James McElvain made promotion decisions at the time of the facts in this case. Between 2013 and 2018, every time he filled a vacancy, Chief McElvain promoted the highest-ranked person on the relevant list. Months after the sergeant’s exam, and before any promotions had been made, a supervising sergeant initiated an internal affairs investigation into Ballou’s conduct after learning that Ballou had failed to write and file a burglary report. Chief McElvain asked an investigating officer to determine if Ballou’s failure to file a report “was a one-time incident or [part] of a pattern.” After several incidents were identified in which Ballou should have filed a report but did not, Ballou was issued a letter of reprimand in June 2018. The two officers ranked higher than Ballou were promoted by McElvain when two sergeant vacancies arose while the investigation of Ballou was ongoing. Thus, Ballou was left as the highest-ranked officer on the sergeant list. Shortly after Ballou received her letter of reprimand, Chief McElvain, citing the internal affairs investigations and Ballou’s failure to follow protocol, announced that he did not intend to promote her to sergeant.
In a July 2018 meeting with Chief McElvain the following week, some female officers (though not Ballou herself) raised Ballou’s eligibility for promotion. The 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 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 for such conduct. The day after that meeting, Chief McElvain announced that he would be promoting a different officer ranked directly below Ballou on the sergeant list. After that officer’s promotion, Ballou remained the highest-ranked officer. Ruder himself, tied with another officer, was then ranked directly below Ballou.
Shortly thereafter, Ballou emailed Chief McElvain and the Vancouver city manager, stating that Chief McElvain’s decision to pass Ballou over for promotion was gender discrimination and that Chief 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” – an apparent reference to two officers who had previously been promoted to corporal rank despite having been disciplined following internal affairs investigations, one for shooting himself in the foot, and the other for obstructing an investigation into an allegation that he had driven under the influence of alcohol. Ballou’s email asserted that the Chief “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 threatened to file a gender discrimination suit against the city and asked to be promoted immediately. Ballou followed up this email with a list of possible report-writing violations by male officers. Chief 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.
In September 2018, two months after her email to Chief McElvain, Ballou served a state tort claim on the City of Vancouver, alleging sex discrimination and seeking damages. When a new sergeant vacancy became available shortly thereafter, Chief McElvain promoted the 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 and “claims for retaliation.” In January 2019, Ballou filed suit under 42 U.S.C. section 1983 in federal court alleging denial of her constitutional equal protection rights. The following week, Chief McElvain announced that he intended to promote Ruder, now the second-ranked candidate, over Ballou.
In May 2019, more than a year after she first became eligible for promotion, Chief McElvain promoted Ballou to the rank of sergeant. 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 her amended federal complaint (amended after Ruder’s promotion), Ballou alleged that Chief 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.
The District Court denied, in its entirety, Chief McElvain’s motion for partial judgment on the pleadings, in which he asserted qualified immunity as to Ballou’s claims of disparate treatment and of retaliation. The District Court further denied Chief McElvain and the City’s subsequent motion for summary judgment on Ballou’s Equal Protection and First Amendment claims and denied Chief McElvain qualified immunity on the ground that “the Equal Protection Clause prohibits discrimination, and . . . the First Amendment prohibits retaliation.” The District Court also denied Chief McElvain’s later motion for reconsideration. Chief McElvain appealed the denial of qualified immunity.
The Ninth Circuit Court of Appeals initially observed that the case arrived as an interlocutory appeal from the lower court’s denial of summary judgment. Although such a denial is not a final order, the appellate court may review orders denying qualified immunity under the collateral order exception to finality. However, in such cases, the scope of appellate court review is “circumscribed” such that, unless the plaintiff’s version of events is “blatantly contradicted by the record, so that no reasonable jury could believe it,” the appellate court may not review the lower court’s determination that “the pretrial record was sufficient to show a genuine issue of fact for trial.” The Ninth Circuit thus considered only the issue of “whether the 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 v. Morris, 736 F.3d 829, 836 (9th Cir. 2013)).
The Ninth Circuit explained that it must affirm the District Court’s denial of qualified immunity if, resolving all factual disputes and drawing all inferences in Ballou’s favor, Chief 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. County 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)).
Equal Protection Disparate Treatment
The Court first considered whether Chief McElvain was entitled to qualified immunity on Ballou’s claim that she was subjected to discriminatory treatment because of her sex, in violation of the Fourteenth Amendment’s Equal Protection Clause. Ballou argued that Chief McElvain discriminated against her because of her gender by intentionally subjecting Ballou 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 District Court had held that Ballou had produced sufficient evidence, including circumstantial evidence of discriminatory intent, to preclude summary judgment on the first qualified immunity prong in her allegation of unconstitutional sex discrimination.
The Ninth Circuit explained that the central inquiry in an Equal Protection Clause claim is whether “an ‘invidious discriminatory purpose was a motivating factor’” in some government action. 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.” “[A]ny indication of discriminatory motive may suffice” to allow a disparate treatment claim to survive summary judgment. The Court noted that where direct evidence is unavailable, plaintiffs may, and often do, rely on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as a way of focusing inquiry upon the available circumstantial evidence.
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). If a plaintiff has established a prima facie case, the burden then shifts to the defendant to “show a legitimate, nondiscriminatory reason for the challenged actions.” Id. If the defendant can do so, the burden “returns to the plaintiff, who must show that the proffered nondiscriminatory reason is pretextual.” Id.
Ballou presented evidence that she was listed as one of the top three candidates for promotion and was eligible for promotion but passed over several times in favor of male candidates. One male officer was promoted to the same rank sought by Ballou despite having been investigated for exactly the same policy violation for which Ballou was investigated. Two other male officers were promoted (although to a lower rank than the one Ballou sought) despite arguably more egregious violations. Moreover, the record demonstrated 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 reason she was not promoted. The Ninth Circuit thus found that Ballou had established a prima facie claim for disparate treatment under the McDonnell Douglas analysis. The Court next considered whether Chief McElvain could articulate “legitimate, non-discriminatory reason[s]” for the actions Ballou challenged.
In his motion for summary judgment, Chief McElvain had 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 had presented evidence that Chief McElvain’s stated reasons for not promoting her were “false” and “based on sex stereotypes.” The Court of Appeals observed that “[d]etermining 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.
The Ninth Circuit observed that normal procedure here was for Chief McElvain to promote the highest-ranked candidate on the sergeant list, and that it was not normal department procedure to initiate a broad internal affairs investigation into an officer for failing to file a report. The record also showed that Chief McElvain’s request for an expanded investigation into Ballou’s conduct occurred close in time to when Ballou became the first woman in Chief McElvain’s tenure to be eligible for promotion to sergeant. Moreover, the Court noted that the record testimony regarding internal departmental discussions about Ballou – including Chief McElvain’s July 2018 meeting with the female officers – provided further support for Ballou’s contention that Chief McElvain’s articulated reasons for failing to promote her was pretextual.
The Ninth Circuit also agreed with the lower court that Ruder was sufficiently “similarly situated” under the McDonnell Douglas framework to support an inference of discriminatory intent against Ballou. The Court of Appeals explained that generally, “individuals are similarly situated when they have similar jobs and display similar conduct.” Ruder held the same position as Ballou when he applied for promotion and was promoted to sergeant—the same promotion Ballou sought. Ruder and Ballou also displayed similar “problematic conduct of comparable seriousness” as they were both accused of the same conduct: failure to write a report.
The District Court had concluded that whether Chief McElvain’s stated reasons for not promoting Ballou were “valid and non-discriminatory . . . raises numerous questions of fact precluding summary judgment.” The Ninth Circuit noted that it could not review that conclusion because its review was circumscribed in reviewing a denial of qualified immunity at summary judgment. Assuming therefore that these factual disputes were resolved in Ballou’s favor, the Ninth Circuit concluded that the record supported the conclusion that Chief McElvain’s articulated reasons for not promoting Ballou were pretextual; and that Ballou had thus established a disparate treatment claim under the Equal Protection Clause.
The Ninth Circuit then turned to whether Chief McElvain was entitled to qualified immunity on the sex discrimination disparate treatment claim. The Court explained that was 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.2d 998, 1011 (9th Cir. 1985) and Lindsey, 29 F.3d at 1385-86). Ballou contended that Chief McElvain denied her promotion at least in part on account of her sex.
The Court declared that pursuant to pre-existing law, discriminatorily instigating an internal investigation against a public employee violates that individual’s constitutional rights. The Court held that the actions alleged here were so closely analogous to those identified in Lindsey, and so clearly covered by the focus on promotion in Bator, that any reasonable officer would recognize that discriminatorily conducting an investigation to stall a promotion was unconstitutional under the two cases, read in combination. Chief 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 Chief McElvain violated her clearly established rights under the Equal Protection Clause, Chief McElvain was not entitled to qualified immunity on that claim.
Equal Protection Retaliation Claim
The Court held that it lacked jurisdiction to consider whether Chief McElvain was entitled to qualified immunity on the claim that he violated Ballou’s rights under the Equal Protection Clause by retaliating against her for opposing the alleged sex discrimination. In addressing the merits of the Equal Protection retaliation claim in the summary-judgment order, the District Court had concluded that the viability of such a claim is a “close question” because “there is not a Ninth Circuit (or Supreme Court) case flatly holding that Equal Protection does not apply to a retaliation claim.” The Ninth Circuit read this as the District Court finding that there was no clearly established law on the Equal Protection retaliation issue, and thus the District Court did not deny Chief McElvain qualified immunity on Ballou’s Equal Protection retaliation claim. Because the Court’s jurisdiction under the collateral order doctrine was limited to reviewing the denial of qualified immunity, the Court declined to reach the question of whether Chief McElvain was entitled to qualified immunity on the Equal Protection retaliation claim.
First Amendment Retaliation Claim
The Ninth Circuit next considered the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim. The Court explained 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.” “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context” of the expression, with content weighing as the “greatest single factor” in the analysis.
Ballou contended that Chief 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. Chief McElvain responded that he was entitled to qualified immunity on this claim because the law did not clearly establish that her speech was on a matter of public concern and the forms of her opposition were not clearly constitutionally protected. Chief McElvain also claimed that the record did not support the conclusion that Ballou’s speech was a cause of the adverse employment actions.
The Ninth Circuit determined that circuit case law “squarely foreclose[d]” Chief McElvain’s contention that Ballou’s complaints and lawsuit pertained only to matters of private concern. Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997), held that unlawful discrimination is a subject that affects a public employee’s personal interests yet also implicates matters of public concern, 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. Moreover, Alpha Energy Savers, Inc. v. Hansen held that “when government employees speak about . . . wrongdoing [or] misconduct . . . by other government employees, . . . their speech is inherently a matter of public concern.” Alpha Energy clarified that “[d]isputes over racial, religious, or other such discrimination by public officials…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.” The Ninth Circuit held that this precedent clearly established that speech by public employees about unlawful discrimination in the workplace is inherently speech on a matter of public concern. Accordingly, the Court affirmed the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim.
The Ninth Circuit stated that 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. That issue did not, however, bear on the question before the Court of Appeals here – 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 Court of Appeals would not disturb the District Court’s determination that Ballou’s retaliation claims were sufficiently supported to survive summary judgment.
In sum, the Ninth Circuit Court of Appeals affirmed the District Court’s denial of qualified immunity on Ballou’s Equal Protection sex discrimination and First Amendment claims. Because the District Court did not deny Chief McElvain qualified immunity on Ballou’s Equal Protection retaliation claim and because the Court of Appeals was limited to reviewing the denial of qualified immunity, the Ninth Circuit declined to reach the question of whether Chief McElvain was entitled to qualified immunity on Ballou’s Equal Protection retaliation.
HOW THIS AFFECTS YOUR AGENCY
Agencies should observe that the Ninth Circuit held that Circuit precedent clearly established that a public employee’s speech about unlawful discrimination, in this case gender discrimination, in the workplace was inherently a matter of public concern. Agencies will also note that the Court repeatedly noted that Chief McElvain’s actions were soon after email communication and his meeting with other officers as factors in determining that the Chief’s purported reasons for repeatedly denying the plaintiff’s promotion were pretextual. In other words, timing matters significantly in cases of this nature. Promoting lower-ranked officers who had similar, comparable, or worse misconduct over the plaintiff provided the Court with readily identifiable comparisons to consider in contemplation of the allegations of discrimination.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at firstname.lastname@example.org or by telephone at (714) 446-1400.
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 2021 U.S. App. LEXIS 29267 (9th Cir. Sep. 28, 2021).
 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).
 Foster, 908 F.3d at 1210 (quoting George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013)).
 Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
 Foster, supra, at p. 1210 (quoting Johnson v. Jones, 515 U.S. 304, 307 (1995)).
 Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 504 (9th Cir. 2016) (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)) (applying this standard to claims under both the Equal Protection Clause and the Fair Housing Act, 42 U.S.C. section 3601 et seq.).
 Id. (quoting Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)).
 Arce v. Douglas, 793 F.3d 968, 978 (9th Cir. 2015) (quoting Pac. Shores, 730 F.3d at 1159).
 Village of Arlington Heights, supra, at pp. 266-68.
 Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
 The Ninth Circuit nonetheless 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 Court stated that the existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment.
 Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).
 Connick v. Myers, 461 U.S. 138, 147-48 (1983).
 Ulrich v. City & County of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002) (quoting Havekost v. U.S. Dep’t of the Navy, 925 F.2d 316, 318 (9th Cir. 1991)).
 381 F.3d 917 (9th Cir. 2004).
 Id. at 926 (quoting Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004), rev’d, 547 U.S. 410 (2006)).
 Id. at 926-27.
 Moreover, even if precedent had not clearly been established, the Court found that there was sufficient evidence in the record – such as other officers’ meeting with McElvain to discuss perceived discriminatory practices in their workplace including the Vancouver Police Department’s treatment of Ballou, and Ballou’s lawsuit was the subject of at least one news story in the local press – to conclude that the specific expression at issue here was on a matter of more than private concern.
 Orn, 949 F.3d at 1171 (quoting Scott, 550 U.S. at 380).
ation in original).