Richard Clairmont v. SOUND MENTAL HEALTH, D.C. No.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RICHARD CLAIRMONT,
Plaintiff-Appellant,
v. No. 09-35856
SOUND MENTAL HEALTH, D.C. No.
Defendant,  2:08-cv-00507-TSZ
and OPINION
JONI WILSON, in her individual
capacity,
Defendant-Appellee. 
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted
July 16, 2010—Seattle, Washington
Filed January 19, 2011
Before: Susan P. Graber and Richard A. Paez,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Paez
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
1021

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COUNSEL
Jesse A. Wing, MacDonald Hoague & Bayless, Seattle,
Washington, for the plaintiff-appellant.
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Erin L. Overbey, Assistant City Attorney, Seattle, Washing-
ton, for the defendant-appellee.
OPINION
PAEZ, Circuit Judge:
In this First Amendment retaliation case, Richard Clair-
mont appeals the district court’s grant of summary judgment
to Defendant Joni Wilson, the Manager of Probation Services
at the Seattle Municipal Court. Before filing suit, Clairmont
was employed as a domestic violence counselor for Sound
Mental Health, a private company that provides domestic vio-
lence prevention treatment programs to criminal defendants in
Seattle. He alleges that he was fired in retaliation for giving
truthful subpoenaed testimony in a criminal proceeding.
Although Clairmont was not employed directly by the Seattle
Municipal Court, the district court determined that, because
his employer was an independent contractor for the court, his
First Amendment claim should be evaluated as if he were a
public employee. Applying the Pickering1 public employee
balancing test, the district court determined that the Seattle
Municipal Court’s interests outweighed Clairmont’s First
Amendment interests, and granted Wilson’s motion for sum-
mary judgment on the basis of qualified immunity.
As we explain below, we agree with the district court that,
for the purposes of this suit, Clairmont’s retaliation claim
should be evaluated as if he were a public employee. We con-
clude, however, that Clairmont’s First Amendment interests
outweigh the administrative interests of the Seattle Municipal
Court and that his rights were clearly established at the time
of the alleged violation. We therefore reverse and remand.
1Pickering v. Bd. of Educ., 391 U.S. 568 (1968).
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I. Background
Sound Mental Health (“SMH”) is a private company that is
regulated and certified by the Washington Department of
Social and Health Services to provide domestic violence per-
petrator treatment (“Treatment”) to defendants charged with
or convicted of domestic violence offenses. Id. Clairmont was
employed by SMH from December 2005 to late November
2007 as a “Program Manager.” In this position, Clairmont
was responsible for coordinating and supervising SMH’s
Treatment program.
Certified Treatment providers are placed on a list that the
Domestic Violence Probation Unit (“Probation Unit”) of the
Seattle Municipal Court (“Municipal Court”) distributes to
pretrial and convicted defendants who must complete a Treat-
ment program.2 The staff in the Probation Unit do not make
referrals to specific providers, but they do inform potential
participants whether a provider has special services that might
be of interest to a defendant. Defendants choose which Treat-
ment program they want to attend and pay the provider
directly; the Municipal Court is not involved in the monetary
transaction between a defendant and a Treatment provider.
Unlike other Treatment providers on the list, SMH had a
contract with the Municipal Court during the time in question.
Under the terms of the contract, SMH provided specified ser-
vices to the general public and to Treatment participants. In
return for its services, the Municipal Court provided SMH
with equipment and office space at the courthouse; there were
no direct payments between the parties. In addition, SMH
agreed to submit monthly reports and to attend meetings with
2The court may defer prosecution of defendants accused of a domestic
violence offense under a stipulated order of continuance, provided that the
defendant voluntarily completes a Treatment program and complies with
other court-ordered conditions. Wash. Rev. Code § 26.50.150; Wash.
Admin. Code § 388-60.
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the Municipal Court probation staff as needed. The contract
specifically characterized SMH as an “independent contrac-
tor.”
On November 8, 2007, Clairmont was subpoenaed to tes-
tify as an expert witness in a hearing on behalf of a criminal
defendant who was enrolled in a Treatment program with a
different organization. The Treatment organization had termi-
nated the pre-trial criminal defendant from the program pre-
maturely, and the Probation Unit accordingly sought to
revoke the continuance of his prosecution and to impose jail
time and other sanctions. The defendant’s counsel believed
that her client had been treated differently because of his sta-
tus as a Spanish-speaking defendant and informally consulted
with Clairmont before the hearing about the reasons that the
Treatment provider had given for the termination. The defen-
dant’s counsel later subpoenaed Clairmont to testify at the
revocation hearing. At the hearing, Clairmont qualified as an
expert witness and the parties posed hypothetical questions to
him concerning when it might be appropriate to terminate a
participant from a Treatment program.
A Probation Unit staff member heard Clairmont’s testi-
mony and brought it to the attention of her supervisor, Joni
Wilson, Manager of Probation Services for the Municipal
Court. On November 14, 2007, Wilson contacted Clairmont’s
supervisor at SMH regarding Clairmont’s testimony and, on
November 29, 2007, Clairmont was fired. The letter inform-
ing Clairmont of his termination stated, in pertinent part:
Sound Mental Health has very recently received fur-
ther critical feedback from the City of Seattle
Domestic Violence Probation Officers Unit about
your performance and program management. Your
advocacy for clients remains strong. However, prior
attempts to improve accountability, care coordina-
tion and [to] restore confidence in your management
of the program with the probation unit have been
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unsuccessful. The unit reports that they have lost
trust in the integrity of the program and consider that
the situation is not salvageable. The program is in
jeopardy. They have proposed a stop-referral begin-
ning immediately. This leaves SMH with no option
but to terminate your employment effective today
. . . .
In April 2008, Clairmont filed suit against SMH and Wil-
son under 42 U.S.C. § 1983, alleging that he was terminated
by SMH in violation of his First Amendment right to free
speech and asserting various state-law claims against SMH.3
Wilson filed a motion for summary judgment asserting that
she was entitled to qualified immunity. She argued that, in
light of the factual record, Clairmont had failed to establish a
violation of his First Amendment free speech rights and, even
if he had, the law was not clearly established when Clairmont
was fired. Wilson also argued that Clairmont was fired, not
because of his testimony, but because of his poor performance
as a program manager.
The district court, analyzing the facts as if Clairmont were
a public employee, concluded that Clairmont’s testimony was
not protected speech, both because it was not on a matter of
public concern and because Clairmont’s speech was of such
“minimal value” that it was outweighed by the Probation
Unit’s interests in addressing victim safety and civil liability.
The district court held, in the alternative, that “Clairmont’s
First Amendment right was not so ‘clearly established’ as to
preclude qualified immunity for Ms. Wilson.” Clairmont
timely appealed.4
3Clairmont settled his claims against SMH, which resulted in dismissal
of his suit against SMH.
4We review de novo a grant of summary judgment on the basis of quali-
fied immunity. Elder v. Holloway, 510 U.S. 510, 516 (1994). In determin-
ing whether summary judgment was appropriate, we must view the
evidence in the light most favorable to the non-moving party. Huppert v.
City of Pittsburgh, 574 F.3d 696, 701 (9th Cir. 2009).
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II. Discussion
As a preliminary matter, Wilson argues that she could not
have violated Clairmont’s First Amendment rights because
she did not have any governmental authority over him. More
specifically, Wilson argues that she lacked the authority to
fire Clairmont or to order the Probation Unit to stop referring
clients to SMH. Regardless of Wilson’s actual authority, the
factual record could reasonably support a finding that Wilson
threatened SMH with the possibility that the Probation Unit
would stop referring defendants to SMH unless SMH termi-
nated Clairmont. In addition, First Amendment protection
does not depend on whether the governmental action is direct
or indirect. Where the government may not prohibit certain
speech, it also may not threaten to exert economic pressure on
a private employer in order to “ ‘produce a result which [it]
could not command directly.’ ” Perry v. Sindermann, 408
U.S. 593, 597 (1972) (alteration in orginal) (quoting Speiser
v. Randall, 357 U.S. 513, 526 (1958)).
In reviewing the district court’s legal conclusion that Wil-
son is entitled to qualified immunity, we apply the familiar
analytical framework laid out in Saucier v. Katz, 533 U.S. 194
(2001), modified by Pearson v. Callahan, 129 S. Ct. 808
(2009). Under Saucier, whether a government official is enti-
tled to qualified immunity is a two-part inquiry: (1) whether
the facts alleged, taken in the light most favorable to the party
Clairmont also challenges (1) the denial of his motion to strike certain
deposition testimony, and (2) the grant of Wilson’s motion to amend her
answer. First, in light of our conclusion that Wilson is not entitled to quali-
fied immunity, we hold that the denial of Clairmont’s motion to strike is
moot. We therefore dismiss Clairmont’s appeal of this issue. Second,
because Clairmont cannot establish that he was prejudiced, we reject
Clairmont’s challenge to the order granting leave to amend. Owens v. Kai-
ser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). Accord-
ingly, we affirm the district court’s ruling granting Wilson’s motion to
amend.
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asserting the injury, show that the official’s conduct violated
a constitutional right; and (2) whether that right was clearly
established “in light of the specific context of the case.” Id.
at 201. We address these questions in turn. See Pearson, 129
S. Ct. at 818 (holding that courts may consider the two prongs
in either order).
A. The public employee balancing test applies
[1] Before addressing whether Clairmont has demonstrated
that Wilson violated his constitutional rights, we must first
determine whether Clairmont should be considered a public
employee or a private citizen. “[T]he State has interests as an
employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with regu-
lation of the speech of the citizenry in general.” Pickering,
391 U.S. at 568. This is because the government, as an
employer, has an interest “in promoting the efficiency of the
public services it performs through its employees.” Id. As a
result, “a governmental employer may impose certain
restraints on the speech of its employees, restraints that would
be unconstitutional if applied to the general public.” City of
San Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam).
When a plaintiff is a public employee, we apply a test that
balances the government’s legitimate administrative interests
as an employer against the employee’s interests in free
speech, to determine whether the government has violated the
employee’s First Amendment right to speak freely. See id.
Accordingly, in evaluating whether a plaintiff should be con-
sidered a public employee, we consider whether the relation-
ship between the parties is analogous to that between an
employer and employee and whether the rationale for balanc-
ing the government’s interests in efficient performance of
public services against public employees’ speech rights
applies. CarePartners, LLC v. Lashway, 545 F.3d 867, 881
(9th Cir. 2008) (citing Blackburn v. City of Marshall, 42 F.3d
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925, 932-34 (5th Cir. 1995)), cert. denied, 129 S. Ct. 2382
(2009).
[2] An independent contractor who provides services to the
government is generally treated like a public employee for
purposes of determining whether the contractor has alleged a
violation of his First Amendment rights. Bd. of Cnty.
Comm’rs. v. Umbehr, 518 U.S. 668, 673-74 (1996). In
Umbehr, the Court noted the similarities between an indepen-
dent contractor and a public employee, recognizing both an
independent contractor’s interests in financially valuable gov-
ernment contract work and the government’s need to be free
to terminate an independent contractor (1) to respond to poor
performance; (2) to improve efficiency, efficacy, and respon-
siveness; and (3) to prevent the appearance of corruption. Id.
at 674. Recognizing that independent contractors are pro-
tected by the First Amendment from retaliatory government
action, the Court held that “the Pickering test, determines the
extent of their protection.” Id. at 673. Thus, “[w]hen a busi-
ness vendor operates under a contract with a public agency,
we analyze its First Amendment retaliation claim under
§ 1983 using the same basic approach that we would use if the
claim had been raised by an employee of the agency.” Alpha
Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir.
2004).
Clairmont was not employed by the Municipal Court; he
worked for SMH, a private company. Therefore, it is not
immediately obvious whether he should be treated as a public
employee, an independent contractor, or as a private citizen.
Clairmont argues that, because he was not employed by the
Municipal Court, he should be treated as a private citizen. As
Clairmont notes, although the Probation Unit relies on the
information it receives from Treatment providers, it provides
no direct funding to these organizations, nor does it have con-
trol over the certification, programming, hiring, or firing by
the various Treatment providers. There is also no evidence in
the record that there was any obligation or even authorization
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for Wilson to threaten SMH that the Probation Unit would
stop making referrals if management did not make the
changes that she wanted, such as removing Clairmont from
his position.5 As Clairmont points out, under the applicable
regulation, the authority to investigate complaints against
Treatment providers and to impose sanctions rests with the
Department of Social and Health Services, not the Probation
Unit. Wash. Admin. Code § 388-60-0615. Thus, under this
regulation, if Wilson had concerns about SMH’s Treatment
program, she could have contacted the Department of Social
and Health Services officials and asked them to conduct an
investigation.
Clairmont argues that SMH, like other Treatment provid-
ers, is simply a licensee that is regulated by the state. This
argument might have some force were it not for the unique
relationship between the Municipal Court and SMH.
Although SMH was licensed by the state as a Treatment pro-
vider, and listed as a provider of such services, it offered its
services at the courthouse and maintained a close relationship
with representatives from the Probation Unit. Under the terms
of its contract with the Municipal Court, SMH “provide[d]
screening and referral case management and consultation to
the Probation Unit.” SMH was also required to provide “staff
coverage in the court Resource Center 40 hours per week.”
Further, “[a]ll SMH staff [had to] submit a monthly report . . .
to document the number of participant’s [sic] served, direct
5Wilson argues that she had an obligation to contact SMH when she
became concerned about Clairmont’s testimony. She relies on the Wash-
ington Supreme Court’s opinion in Hertog v. City of Seattle, 979 P.2d 400
(Wash. 1999) (en banc), which held that probation counselors have a duty
to protect the public from reasonably foreseeable danger resulting from the
dangerous propensities of probationers under their supervision. Wilson’s
reliance on Hertog is misplaced; the fact that Wilson might be obligated
to monitor carefully the defendants under the Probation Unit’s supervision
does not turn the Probation Unit’s relationship with all of the defendants’
service-providers into an employer-employee relationship for purposes of
First Amendment analysis.
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services rendered, number of service hours, and linkages to
other court and community based services.” The contract fur-
ther provided that SMH’s work “shall, at all times, be subject
to the City’s [through the Municipal Court] general review
and approval.” Finally, as noted above, the contract character-
ized the relationship between SMH and the Municipal Court
as “that of an independent contractor.”
[3] Clairmont was not a signatory to the contract, but SMH
could not provide Treatment services without certified indi-
vidual providers like Clairmont. Although Clairmont was not
a Municipal Court employee, given the nature of the relation-
ship between the court and SMH, the nature of the services
provided by SMH, and Clairmont’s role in the provision of
such services, we conclude that his relationship to the Munici-
pal Court was analogous to that of an employer and
employee. Further, given the Probation Unit’s need to ensure
that SMH’s services were properly provided to court-ordered
Treatment participants, the balance tips in favor of treating
Clairmont as a public employee for purposes of determining
whether he has alleged a viable First Amendment retaliation
claim. We therefore review Clairmont’s First Amendment
retaliation claim using the Pickering balancing test set forth
below.
B. Under the public employee balancing test, Clair-
mont has alleged a First Amendment retaliation
claim
[4] “It is well settled that the state may not abuse its posi-
tion as employer to stifle ‘the First Amendment rights [its
employees] would otherwise enjoy as citizens to comment on
matters of public interest.’ ” Eng v. Cooley, 552 F.3d 1062,
1070 (9th Cir. 2009) (quoting Pickering, 391 U.S. at 568),
cert. denied, 130 S. Ct. 1047 (2010). In applying Pickering’s
balancing test, we employ a sequential five-step inquiry to
determine whether a public employee has alleged a violation
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of his First Amendment rights as a result of government retal-
iation for his speech:
(1) whether the plaintiff spoke on a matter of public
concern; (2) whether the plaintiff spoke as a private
citizen or public employee; (3) whether the plain-
tiff ’s protected speech was a substantial or motivat-
ing factor in the adverse employment action; (4)
whether the state had an adequate justification for
treating the employee differently from other mem-
bers of the general public; and (5) whether the state
would have taken the adverse employment action
even absent the protected speech.
Id. The plaintiff bears the burden of proof on the first three
areas of inquiry, but the burden shifts to the government to
prove the last two. Id. at 1071. If the plaintiff fails to carry his
burden at any step, qualified immunity should be granted to
the defendant. Id. at 1070-72. Here, because Clairmont ulti-
mately prevails at all five steps, we conclude that he has
alleged sufficient facts to establish that he was terminated in
violation of his First Amendment rights.
1. Clairmont’s speech was on a matter of public
concern
“We have defined the scope of the public concern element
broadly and adopted a liberal construction of what an issue of
public concern is under the First Amendment.” Desrochers v.
City of San Bernardino, 572 F.3d 703, 709-10 (9th Cir. 2009)
(internal quotation marks and citations omitted). We have
specifically rejected “rigid multi-part tests” and refused to
“articulate[ ] a precise definition of public concern.” Id. at 709
(internal quotation marks omitted). Rather, we rely on the
framework set forth in Connick v. Myers, which reviews “the
content, form, and context of a given statement, as revealed
by the whole record.” 461 U.S. 138, 147-48 (1983) (emphasis
added); Eng, 552 F.3d at 1070. On the basis of this “general-
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ized analysis of the nature of the speech,” we can place the
speech on a continuum ranging from matters of public con-
cern to matters of purely personal concern. See Desrochers,
572 F.3d at 709. On one end, there is speech that relates to
matters of concern to the community, including political or
social matters. Eng, 552 F.3d at 1070. On the other end, there
are individual grievances and personnel disputes that are irrel-
evant to the public’s evaluation of governmental agencies. Id.
Clairmont argues that, regardless of the subject matter,
truthful testimony given pursuant to a subpoena should be
considered per se a matter of public concern. As we detailed
in Alpha Energy Savers, our sister circuits are split on
“whether the context of a courtroom appearance raises a pub-
lic employee witness’s testimony to the level of public con-
cern, regardless of its content.” 381 F.3d at 926 n.6. There, we
declined to decide whether a public employee’s testimony
was inherently a matter of public concern. Id.
So too here, we need not decide whether truthful testimony
given pursuant to a subpoena is per se a matter of public con-
cern because in this case, the content, form, and context of
Clairmont’s testimony establish that his speech related to a
matter of public concern.
“First and foremost, we consider the content of the speech
the greatest single factor in the Connick inquiry.” Desrochers,
572 F.3d at 710 (internal quotation marks and citation omit-
ted). Speech that deals with the functioning of government is
a “ ‘matter[ ] of inherent public concern.’ ” Eng, 552 F.3d at
1072 (quoting Johnson v. Multnomah County, 48 F.3d 420,
425 (9th Cir. 1995)). In addition, speech that helps the public
evaluate the performance of public agencies addresses a mat-
ter of public concern. Id. at 1073 (citing Freitag v. Ayers, 468
F.3d 528, 545 (9th Cir. 2006)). Thus, for example, speech
alleging that the government engaged in discrimination or
other civil rights violations is on a matter of public concern.
See, e.g., Alpha Energy Savers, 381 F.3d at 925. Finally,
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speech discussing “threats to public safety” is “of vital inter-
est to citizens,” and speech exposing policies that put people
in jeopardy is “ ‘inherently of interest to the public.’ ” Hyland
v. Wonder, 972 F.2d 1129, 1137 (9th Cir. 1992) (quoting Roth
v. Veteran’s Admin., 856 F.2d 1401, 1406 (9th Cir. 1988)).
[5] Here, Clairmont’s testimony dealt with the perfor-
mance of an independent Treatment provider who had been
treating a criminal defendant as part of a court-ordered pro-
gram. Clairmont gave expert testimony regarding how he
would have dealt with a hypothetical Treatment client who
had engaged in the type of conduct the defendant allegedly
committed. Clairmont’s testimony thus dealt with the ways in
which Treatment programs treat charged and convicted
domestic violence offenders, which ultimately implicates the
Municipal Court’s attempts through the Probation Unit to pro-
tect victims of domestic violence—unquestionably a matter of
public concern. See Hyland, 972 F.2d at 1137; cf. Jones v.
Union County, 296 F.3d 417, 426 (6th Cir. 2002) (stating that
“[T]here is no question that combating domestic violence is
a matter of public concern”); Rendish v. City of Tacoma, 123
F.3d 1216, 1224 (9th Cir. 1997) (“A municipal court judge’s
allegedly inappropriate remarks made in domestic violence
cases implicate the public’s interest in the impartial adminis-
tration of the courts.”).
Moreover, it is irrelevant to our analysis whether Clair-
mont’s testimony influenced the judge’s ultimate determina-
tion regarding revocation. Robinson v. York, 566 F.3d 817,
823 (9th Cir. 2009), cert. denied, 130 S. Ct. 1047 (2010). Tes-
timony that addresses a matter of public concern need not
have an effect on the result of the litigation, it need only con-
tribute in some way to the resolution of a proceeding in which
a matter of public concern is at issue. Id.
[6] The form that the speech in question takes is another
factor relevant to whether speech addressed a matter of public
concern. Desrochers, 572 F.3d at 714-15, 715 n.17. Although
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not dispositive, a small or limited audience “ ‘weigh[s]
against [a] claim of protected speech.’ ” Desrochers, 572 F.3d
at 714 (alteration in original) (quoting Roe v. City of San
Francisco, 109 F.3d 578, 585 (9th Cir. 1997)); see also Gar-
cetti v. Ceballos, 547 U.S. 410, 420 (2006). For example,
when speech takes the form of an internal employee griev-
ance, and is not presented to the public, the form “cuts against
a finding of public concern.” Desrochers, 572 F.3d at 715.
Here, the form of Clairmont’s speech was subpoenaed testi-
mony, which was presented in a public courtroom. Thus, the
form of Clairmont’s speech supports a determination that the
speech was on a matter of public concern.
Finally, we consider the context of Clairmont’s testimony
and examine the point of his speech. Id. When a public
employee’s contested speech occurs in the context of an inter-
nal power struggle or personal employment grievance, this
will militate against a finding of public concern. Id. Sworn
courtroom testimony, however, will constitute speech on a
matter of public concern when it “bring[s] to light potential or
actual discrimination, corruption, or other wrongful conduct
by government agencies or officials.” Alpha Energy Savers,
381 F.3d at 925 (citing Lytle v. Wondrash, 182 F.3d 1083,
1087-88 (9th Cir. 1999); Rendish, 123 F.3d at 1223-24).
Indeed, in Alpha Energy Savers, we held that a public
employee’s testimony on behalf of a co-worker’s private
grievance against his union was on a matter of public concern
when he alleged that the union breached its duty of fair repre-
sentation by failing to investigate and pursue a grievance
against the county for employment discrimination on the basis
of race and age. Id. We concluded that, irrespective of the
motivation behind the speech in question, “[s]o long as either
the public employee’s testimony or the underlying lawsuit
meets the public concern test, the employee may, in accord
with Connick, be afforded constitutional protection against
any retaliation that results.” Alpha Energy Savers, 381 F.3d at
927.
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[7] Here, the speech at issue was Clairmont’s expert testi-
mony at a criminal defendant’s revocation hearing. His testi-
mony was offered to help the judge decide whether to allow
the defendant to continue his Treatment. Moreover, Clairmont
spoke not because he volunteered to do so, but because he
was subpoenaed. There is no record evidence that Clairmont
was motivated by anything other than a desire to comply with
the subpoena and to testify truthfully as required by law.
In sum, we conclude that the content, form, and context of
Clairmont’s testimony demonstrate that his speech was on a
matter of public concern. We thus proceed to step two.
2. Clairmont’s testimony was not part of his official
duties
[8] A public employee’s speech is not protected by the
First Amendment when it is part of the employee’s official
job duties. Garcetti, 547 U.S. at 426. Whether an employee’s
disputed speech is part of his official duties presents a mixed
question of fact and law. Posey v. Lake Pend Oreille Sch.
Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). For pur-
poses of considering Wilson’s claim to qualified immunity at
the summary judgment stage, we resolve any material factual
disputes in Clairmont’s favor. Huppert v. City of Pittsburg,
574 F.3d 696, 701 (9th Cir. 2009).
Here, SMH did not ask Clairmont to testify; he testified
because he was subpoenaed by a third party. Moreover, the
only evidence in the record regarding Clairmont’s official job
duties is Clairmont’s “Job Description” attached to Wilson’s
motion for summary judgment.6 Clairmont’s job description
did not include testifying as an expert witness in court pro-
ceedings. Indeed, there is nothing in the job description about
testifying at all, even on behalf of his own clients.
6At his deposition, Clairmont reviewed the job description and verified
that it “generally describe[d]” his job duties at SMH.
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Wilson argues that it is not unusual for a domestic violence
counselor to testify at a court hearing and supports her argu-
ment by referring to another domestic violence counselor who
testified at the same hearing as Clairmont. As Clairmont
points out, the fact that other domestic violence counselors
from different organizations might testify at court hearings is
irrelevant to whether his official job duties required him to
testify at such hearings. In addition, the other counselor stated
that he testified only because he was ordered to do so by the
judge. Finally, Wilson admits in her summary judgment dec-
laration that “[the probation unit counselor] found it unusual
that Clairmont was testifying in [a] hearing that did not
involve a person he was treating.”
Wilson also argues that Clairmont nonetheless testified as
part of his official duties because the content of Clairmont’s
testimony regarding his treatment philosophy described the
nature of his duties as a contract counselor for SMH. In Gar-
cetti, however, the Supreme Court held that even if the con-
tent of an employee’s speech concerned the subject matter of
his employment, this fact was not dispositive of the employ-
ee’s First Amendment retaliation claim. 547 U.S. at 421. “As
the Court noted in Pickering: ‘Teachers are, as a class, the
members of a community most likely to have informed and
definite opinions as to how funds allotted to the operation of
the schools should be spent. Accordingly, it is essential that
they be able to speak out freely on such questions without fear
of retaliatory dismissal.’ ” Id. (quoting Pickering, 391 U.S. at
572); see also Eng, 552 F.3d at 1073 (holding that Eng’s ver-
sion of the facts plausibly showed that he spoke as a private
citizen because, although he learned about the subject matter
of his speech in the course of his work, he had no official duty
to complain about it to the relevant agency); cf. Huppert, 574
F.3d at 707-08 (granting qualified immunity because testify-
ing in court is part of a California police officer’s official
duties).
[9] Although Clairmont testified about treating a hypothet-
ical Treatment client, there is no evidence that testifying in
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court, whether or not as an expert, was a part of his official
duties at SMH. When viewed in the light most favorable to
Clairmont, Huppert, 574 F.3d at 701, the record evidence sup-
ports a finding that Clairmont was not testifying as part of his
official duties. We therefore continue to step three of the anal-
ysis.
3. Clairmont’s testimony was a substantial or
motivating factor in his termination
[10] The third inquiry—whether Clairmont’s testimony
was a substantial or motivating factor in his termination—“is
purely a question of fact. . . . [W]e must assume the truth of
the plaintiff ’s allegations.” Eng, 552 F.3d at 1071. The par-
ties dispute whether Clairmont was fired as a result of Wil-
son’s comments to Clairmont’s SMH supervisors about his
testimony, or whether his termination resulted from com-
plaints about Clairmont’s performance made by Wilson long
before Clairmont testified. Several emails in the record that,
viewed in the light most favorable to Clairmont, Huppert, 574
F.3d at 701, reasonably could support a finding that Clairmont
was fired because of Wilson’s comments to his supervisor
about Clairmont’s subpoenaed testimony. We therefore pro-
ceed to step four.
4. Wilson failed to give an adequate justification for
treating Clairmont differently than other members
of the general public
The government bears the burden of showing that under the
Pickering balancing test, “the relevant government entity had
an adequate justification for treating the employee differently
from any other member of the general public.” Garcetti, 547
U.S. at 418. “Although the Pickering balancing inquiry is ulti-
mately a legal question, like the private citizen inquiry, its res-
olution often entails underlying factual disputes.” Eng, 552
F.3d at 1071. As we have emphasized, we must view all dis-
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puted facts in the light most favorable to Clairmont. Huppert,
574 F.3d at 701.
[11] Eng holds specifically that the government must
establish that its “legitimate administrative interests outweigh
the employee’s First Amendment rights.” Id. (emphasis
added). These interests include promoting efficiency and
integrity in the discharge of official duties and maintaining
proper discipline in the public service. Connick, 461 U.S. at
150-51. Because Clairmont’s speech is examined in the con-
text of independent contractors, this test is “adjusted to weigh
the government’s interests as contractor rather than as
employer.” Umbehr, 518 U.S. at 673. Cases that analyze
whether the government’s administrative interests outweighed
the plaintiff ’s right to engage in protected speech examine
disruption resulting both from the act of speaking and from
the content of the speech. Here, we conclude that Wilson has
not established disruption of either kind sufficient to outweigh
Clairmont’s First Amendment rights.
In examining whether a public employee’s act of speaking
disrupted the workplace, we review “the manner, time, and
place in which” the employee’s speech took place. Connick,
461 U.S. at 152. In Connick, the fact that the employee’s
speech took place at the office supported the Court’s determi-
nation that the speech disrupted the efficiency of the work-
place. Id. at 153. The Court contrasted the situation with that
in Pickering, where the employee’s speech occurred during
the employee’s free time away from the office. Id. Here,
Clairmont did not speak at the workplace during a Treatment
session or at an office meeting; rather, he testified in a crimi-
nal hearing concerning a person he was not treating.
Relatedly, we consider whether Clairmont’s testimony
impeded his ability to perform his job duties. See id. at 151.
Perhaps because Wilson earlier argued that testifying was one
of Clairmont’s official job responsibilities, Wilson makes no
argument and puts forth no evidence that Clairmont’s act of
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testifying at the revocation hearing prevented him from fulfill-
ing his other work responsibilities.
Wilson does argue, however, that the content of Clair-
mont’s testimony interfered with the working relationship
between SMH and the Probation Unit. In Connick, the Court
held that “[w]hen close working relationships are essential to
fulfilling public responsibilities, a wide degree of deference to
the employer’s judgment is appropriate.” Id. at 151-52. There,
the Court characterized the public employee’s speech as
“causing a mini-insurrection” and as “an act of insubordina-
tion which interfered with working relationships.” Id. at 151.
To prove that an employee’s speech interfered with working
relationships, the government must demonstrate “actual,
material and substantial disruption, or reasonable predictions
of disruption in the workplace.” Robinson, 566 F.3d at 824
(internal quotation marks omitted). And if there are material
factual disputes, we resolve all factual disputes in favor of the
non-moving party, provided that there is evidence that reason-
ably would support such a finding. See CarePartners, 545
F.3d at 875 n.3 (citing Scott v. Harris, 550 U.S. 372, 379-80
(2007)).
[12] Here, although Wilson alleges that Clairmont’s testi-
mony disrupted the Probation Unit’s workplace, she cites no
record evidence to support the allegation. We note, however,
that in support of her motion for summary judgment, Wilson
filed a declaration in which she stated that the Probation
Unit’s staff aired some concerns about the content of Clair-
mont’s testimony at the monthly staff meeting held the day
after Clairmont testified. In speaking to Clairmont’s supervi-
sor, Wilson characterized her staff as distrustful of Clairmont
because “[his] testimony indicated that [he] was still having
the same problems I had discussed with [him earlier].” In
other words, Wilson appears to argue that Clairmont’s testi-
mony was disruptive, because it confirmed his Treatment phi-
losophy, which was the basis for his alleged performance
issues.
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We must construe all evidence in the light most favorable
to Clairmont. Huppert, 574 F.3d at 701. As noted above,
Clairmont produced evidence that disputes Wilson’s allega-
tions of prior poor performance. In addition, Clairmont argues
that the Probation Unit’s expressed distrust is a result not of
what he said (or any alleged prior poor performance), but
rather is a result of the fact that he testified on behalf of a
criminal defendant and thus on the opposite side of the Proba-
tion Unit. We agree with the Fifth Circuit’s statement that “[a]
concept of loyalty that sweeps so broadly is not one that may
legitimately trump compelling interests in speaking on mat-
ters of public concern.” Kinney v. Weaver, 367 F.3d 337, 366
(5th Cir. 2004) (en banc). More importantly, there is no evi-
dence in the summary judgment record substantiating Wil-
son’s allegations of disruption in the workplace.
[13] In balancing Clairmont’s First Amendment right to
testify truthfully pursuant to a subpoena against the justifica-
tions set forth above, we hold that the weak and largely
unsupported administrative interests advanced by Wilson do
not outweigh Clairmont’s First Amendment free speech
rights. Having concluded that Wilson is not entitled to sum-
mary judgment at step 4, we proceed to step 5.
5. Wilson failed to show that Clairmont would have
been terminated even absent his testimony
[14] “[I]f the government fails the Pickering balancing
test, it alternatively bears the burden of demonstrating that it
‘would have reached the same [adverse employment] decision
even in the absence of the [employee’s] protected conduct.’ ”
Eng, 552 F.3d at 1072 (alteration in original) (quoting
Thomas, 379 F.3d at 808).
This question relates to, but is distinct from, the
plaintiff ’s burden to show the protected conduct was
a substantial or motivating factor. It asks whether the
“adverse employment action was based on protected
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and unprotected activities,” and if the state “would
have taken the adverse action if the proper reason
alone had existed.”
Id. (quoting Knickerbocker v. City of Stockton, 81 F.3d 907,
911 (9th Cir. 1996)). This inquiry is “purely a question of
fact” and “we must therefore once again assume the truth of
the plaintiff ’s allegations.” Id.
[15] Here, Clairmont submitted deposition testimony,
emails among staff at SMH, and his termination letter, which
suggest it was only after Clairmont’s testimony and Wilson’s
subsequent threats of reprisal that SMH decided to terminate
Clairmont. Because “[i]mmunity should be granted on this
ground only if the state successfully alleges, without dispute
by the plaintiff,” that it would have taken the adverse action
“even absent the questioned speech,” we conclude that, in
light of all the record evidence, Wilson has not met her bur-
den on this issue and has, therefore, not demonstrated that she
is entitled to summary judgment on this alternative ground.
See id.
[16] In sum, on the basis of the summary judgment record,
we hold that Clairmont has presented sufficient evidence to
establish that his speech was constitutionally protected and
that Wilson violated his First Amendment rights. Therefore,
we must also examine whether it was clearly established that
Clairmont’s speech was constitutionally protected and that a
reasonable official in Wilson’s position would have under-
stood that her actions would violate Clairmont’s First Amend-
ment rights at the time the alleged retaliation took place.
C. It was clearly established that Clairmont’s speech
was protected
As noted earlier, even where a plaintiff has presented suffi-
cient evidence to show that his constitutional rights were vio-
lated, a government official may still be entitled to qualified
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immunity. Saucier, 533 U.S. at 201. “If the right was not
clearly established at the time of the violation, the official is
entitled to qualified immunity.” CarePartners, 545 F.3d at
876 (citing Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir.
2007)). Whether the law was clearly established is an objec-
tive standard; the defendant’s “subjective understanding of
the constitutionality of his or her conduct is irrelevant.” Fogel
v. Collins, 531 F.3d 824, 833 (9th Cir. 2008). Thus, we must
determine only whether, in light of the existing law in 2007,
a reasonable Manager of the Probation Services would have
understood that her actions violated Clairmont’s First Amend-
ment right to free speech. See id.
The plaintiff bears the burden to show that the contours of
the right were clearly established. However, “ ‘closely analo-
gous preexisting case law is not required to show that a right
was clearly established.’ ” Robinson, 566 F.3d at 826 (empha-
sis added) (quoting Hufford v. McEnaney, 249 F.3d 1142,
1148 (9th Cir. 2001)). While “there must be some parallel or
comparable factual pattern[,] . . . the facts of already decided
cases do not have to match precisely the facts with which [the
government employer] is confronted.” Fogel, 531 F.3d at 833;
see also Rivero v. City of San Francisco, 316 F.3d 857, 865
(9th Cir. 2002) (stating that to defeat qualified immunity, a
plaintiff must show that two legal propositions were clearly
established: (1) that the speech was on a matter of public con-
cern, and (2) that the employee’s speech interests outweighed
the government’s legitimate administrative interests); cf.
Moran v. Washington, 147 F.3d 839, 843 (9th Cir. 1998)
(rejecting as overly abstract a district court’s determination
that a constitutional right was clearly established because
“[d]ismissal based upon protected speech is impermissible”).
Because there were cases that would have alerted a reasonable
person in Wilson’s position that it would be unlawful to retali-
ate against an employee for having testified in a criminal pro-
ceeding pursuant to a subpoena, we conclude that Clairmont’s
First Amendment rights were clearly established at the time
of his alleged retaliatory firing.
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[17] In Robinson, we held that, by 2005, it was clearly
established that a public-employee witness had a First
Amendment right to testify in a class-action lawsuit in which
discrimination was at issue. 566 F.3d at 826. We so concluded
because (1) the Supreme Court had already decided Picker-
ing, “establishing that the First Amendment protects
employee speech on matters of legitimate public concern,”
and (2) it was already clearly established that “only a real, not
imagined, disruption might outweigh the expressive interests
of the employee.” Id. (internal quotation marks omitted). In
addition, we noted that the type of testimony given by Robin-
son had been held to be a matter of public concern and that
the justification given by the employer for the alleged retalia-
tion had been held to be insufficient to justify retaliation for
protected speech. Id.
[18] As noted in Part II.B.1, above, we have held previ-
ously that threats to public safety and the impartial judicial
administration of domestic violence cases are issues of public
concern. Rendish, 123 F.3d at 1224; Hyland, 972 F.2d at
1137. And in Robinson, we held that, as early as 2005, it was
clearly established that a public employee’s voluntary testi-
mony relating to discrimination was a matter of public con-
cern. 566 F.3d at 826. In light of our then existing case law,
we conclude that, in 2007, it was clearly established that
Clairmont’s subpoenaed testimony related to an issue of pub-
lic concern.
In addition, as stated in Robinson, it was clearly established
by 2005 that for a government employer’s legitimate adminis-
trative interests to outweigh an employee’s right to engage in
protected speech, the disruption had to be “real, not imag-
ined.” Wilson has not established that there was any disrup-
tion other than some concerns aired at a staff meeting. Indeed,
Wilson’s own declaration suggests that it was Clairmont’s
alleged poor performance that disrupted his working relation-
ship with the Probation Unit and that Clairmont’s testimony
merely confirmed pre-existing concerns.
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[19] Wilson’s claim to qualified immunity can succeed
only if we take the evidence in the light most favorable to her
and draw all competing inferences in her favor; this is fatal to
her argument. When we resolve all factual disputes and draw
all reasonable inferences in Clairmont’s favor, as we must,
there is no support for Wilson’s argument that Clairmont’s
testimony caused workplace disruption the quelling of which
outweighed Clairmont’s interest in engaging in protected
speech. It was clearly established at the relevant time that
Wilson’s proffered evidence of disruption in the workplace
was woefully insufficient. Robinson, 566 F.3d at 826 (holding
that factual disputes about the extent of the workplace disrup-
tion and about whether the justifications asserted by the
defendant were pretextual precluded a finding of disturbance
sufficient to outweigh a public employee’s right to engage in
protected speech). We therefore agree with Clairmont that the
law was clearly established at the time of his alleged retalia-
tory firing.
III. Conclusion
[20] For all of the above reasons, we conclude that Clair-
mont has presented sufficient evidence from which a reason-
able fact-finder could conclude that Wilson violated
Clairmont’s First Amendment rights when she played a sub-
stantial role in Clairmont’s retaliatory firing. Clairmont has
also established that his right to testify truthfully in response
to a subpoena on issues related to public safety and discrimi-
nation was clearly established at the time of his testimony and
termination. Under these circumstances, the district court
erred in concluding that Wilson was entitled to qualified
immunity. Accordingly, we reverse the district court’s grant
of summary judgment to Wilson and remand for trial.
DISMISSED in part; AFFIRMED in part; REVERSED in
part and REMANDED. Plaintiff-Appellant shall recover his
costs on appeal.
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