Ballou v. McElvain, No. 20-35416 (9th Cir. 2021)
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Ballou filed suit, 42 U.S.C. 1983, asserting that Police Chief 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 Ninth Circuit affirmed the denial of McElvain’s qualified immunity summary judgment motion. Ballou sufficiently alleged unconstitutional sex discrimination in violation of the Equal Protection Clause and established a prima facie claim for disparate treatment. McElvain’s articulated reasons for not promoting Ballou were pretextual. The court rejected, as “profoundly mistaken,” McElvain’s argument that to state an equal protection claim, proof of discriminatory animus alone was insufficient. The existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment. Based on Circuit precedent, any reasonable officer would recognize that discriminatorily conducting an investigation to stall a promotion is unconstitutional. The court held that it lacked jurisdiction to consider whether McElvain was entitled to qualified immunity on the Equal Protection claim that she suffered retaliation for opposing sex discrimination. The court affirmed the denial of qualified immunity on Ballou’s First Amendment retaliation claim. Ballou’s speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern, protected by the First Amendment.
Court Description: Civil Rights. 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 held that it lacked jurisdiction under the collateral order doctrine to resolve the question of whether McElvain was entitled to qualified immunity on plaintiff’s claim that she was retaliated against, in violation of the Equal Protection Clause of the Fourteenth Amendment, in an action brought pursuant to 42 U.S.C. § 1983 alleging retaliation and employment discrimination. 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 * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. BALLOU V. MCELVAIN 3 unconstitutional sex discrimination in violation of the Equal Protection Cause 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 established rights under the Equal Protection Clause, McElvain was not entitled to qualified immunity on that claim. The panel held that it lacked jurisdiction to consider 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 4 BALLOU V. MCELVAIN discrimination. The panel stated that the district court did not deny McElvain qualified immunity on Ballou’s Equal Protection retaliation claim because the district court had determined that there was no clearly established law on the constitutional issue. Because the panel’s jurisdiction under the collateral order doctrine was limited to reviewing the denial of qualified immunity, the panel declined to reach that question. 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.
The court issued a subsequent related opinion or order on March 24, 2022.
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