United States v. 2011-09-15 | 10-15359 | KATHLEEN NICHOLS V. LAURA DANCER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KATHLEEN NICHOLS, No. 10-15359
Plaintiff-Appellant, D.C. No.
v. 3:04-cv-00559-
 LRH-LRLLAURA DANCER; JAMES L. HAGAR;
WASHOE COUNTY SCHOOL DISTRICT, ORDER AND
Defendants-Appellees. OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
March 17, 2011—San Francisco, California
Filed September 15, 2011
Before: Thomas M. Reavley,* M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Reavley
*The Honorable Thomas M. Reavley, Fifth Circuit Court of Appeals,
sitting by designation.
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COUNSEL
Jeffrey S. Blanck, Esq., Law Office of Jeffrey S. Blanck,
Reno, Nevada, for the appellant.
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C. Robert Cox, Esq. and Christopher D. Jaime, Esq., Maupin,
Cox & LeGoy, Reno, Nevada, for the appellee.
ORDER
The opinion filed June 24, 2011 is withdrawn and replaced
with the accompanying opinion.
With these amendments, Judge McKeown and Judge Paez
vote to deny the petition for panel rehearing and Judge Reav-
ley votes to grant the petition for panel rehearing.
Judge McKeown and Judge Paez vote to deny the petition
for rehearing en banc and Judge Reavley recommends grant-
ing the petition for rehearing en banc.
The full court has been advised of the petition for rehearing
and 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 petition for rehearing
en banc are denied. No further petitions for en banc or panel
rehearing shall be permitted.
OPINION
McKEOWN, Circuit Judge:
This case tests the bounds of a public employer’s right to
discharge or demote an employee for taking action on a mat-
ter of public concern. Under the balancing test in Pickering v.
Board of Education of Township High School District 205,
391 U.S. 563, 568 (1968), we have long given public employ-
ers significant discretion to discipline employees if their con-
duct disrupts the workplace. That discretion, however, has
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never been unfettered. An employer may not interfere with an
employee’s First Amendment rights unless there is evidence
that the employee’s actions have actually disrupted the work-
place or are reasonably likely to do so in the future. Simply
saying that there has been or will be disruption, without sup-
porting evidence, is not enough. In the face of Pickering, the
“because I said so” approach is insufficient to establish a rea-
sonable prediction of disruption, let alone actual disruption.
Kathleen Nichols, a former employee of the Washoe
County School District (“District”), was forced to take early
retirement after attending a school board meeting at which her
boss was fired. The District claimed it was concerned that her
association with her former boss would create conflicts in the
office. Viewing the record in the light most favorable to Nich-
ols, however, it appears the triggering factor in the District’s
action was simply Nichols’s decision to sit next to her boss
at the public board meeting, without even speaking to him.
Because the District produced no evidence that Nichols’s
association with her boss actually disrupted the office or her
performance, or reasonably threatened to cause future disrup-
tion, the District has failed to show that its interests in work-
place efficiency outweigh Nichols’s First Amendment
interests. Accordingly, we reverse the district court’s grant of
summary judgment in favor of the District.
I. BACKGROUND
Nichols worked for the District for nine years. During her
last six years, she served as the administrative assistant to Jef-
frey Blanck, the District’s General Counsel. In this position,
Nichols reported directly to Blanck and had a variety of
responsibilities related to the District’s legal matters, includ-
ing providing litigation support and managing case files.
Nichols and Blanck were friends and would sometimes social-
ize outside the office.
In late 2003, a dispute developed between Blanck and
James Hager, the District Superintendent, over allegations by
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Blanck that Hager had misused District funds. On January 16,
2004, Blanck was suspended as General Counsel. Laura
Dancer, the head of Human Resources for the District, told
Nichols about Blanck’s suspension and instructed her that she
should no longer take direction from Blanck, but only from
Hager or Dancer.
After Blanck was suspended, Nichols was transferred to a
temporary position in the Human Resources department,
while decisions were made about the future of the General
Counsel’s office. She got along well with her colleagues in
Human Resources and there were no reports of any problems
with her work.
On March 23, 2004, the Board of Trustees of the District
held a meeting to discuss a variety of matters, including
Blanck’s employment. The day before the meeting, Dancer
informed Nichols that she would be returned to her position
in the General Counsel’s office, regardless of whether Blanck
was fired.
The March 23 meeting was an open, public meeting. Nich-
ols attended because a friend of hers was receiving an award
and because she wanted to see if Blanck would keep his job.
Nichols sat next to Blanck at the meeting, but did not speak
to him. At the meeting, the Board announced that Blanck
would not be retained as General Counsel.
The next day, Dancer called Nichols into her office and
told her that she would not be returned to the General Coun-
sel’s office because she had attended the March 23 meeting
and there were questions about her loyalty to the District.
Dancer told Nichols that she could remain in Human
Resources, where her salary would be frozen, or take early
retirement. Nichols chose to retire early.
Following her retirement, Nichols filed a lawsuit under 42
U.S.C. § 1983 against Dancer, Hager and the District (collec-
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tively, the “District”), claiming that she had been demoted in
retaliation for exercising her First Amendment rights by
attending the March 23 meeting and sitting next to Blanck.
The District moved for summary judgment, arguing that
Nichols’s conduct was not entitled to First Amendment pro-
tection because it was not related to a matter of public con-
cern and because the District’s interests in an efficient
workplace outweighed Nichols’s First Amendment interests.
The district court granted the District’s motion, holding that
the District’s efficiency interests were greater than Nichols’s
interest in free association.
II. ANALYSIS
To prevail on her First Amendment claim, Nichols must
show that her association with Blanck was constitutionally
protected and that it was a substantial and motivating factor
in her transfer from the General Counsel’s office. Brewster v.
Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971,
978 (9th Cir. 1998). Only the first part of this test—whether
Nichols’s conduct is protected by the First Amendment—is at
issue in this appeal.1
[1] It is by now black letter law that “a state cannot condi-
tion public employment on a basis that infringes the employ-
ee’s constitutionally protected interest in freedom of
expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). At
the same time, however, public employees such as Nichols do
not enjoy an absolute right to free speech. See Brewster, 149
F.3d at 978. Rather, as the Supreme Court acknowledged dec-
ades ago, “the State has interests as an employer in regulating
1The District moved for summary judgment only on the question of
whether Nichols’s association with Blanck was constitutionally protected
and thus the district court did not reach the second part of the test. On
appeal, we do not consider and take no position on whether any constitu-
tionally protected conduct was a substantial and motivating factor in Nich-
ols’s transfer from the General Counsel’s office.
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the speech of its employees that differ significantly from
those it possesses in connection with regulation of the speech
of the citizenry in general.” Pickering, 391 U.S. at 568. To
determine whether Nichols’s conduct receives First Amend-
ment protection, we must engage in the Pickering balancing
test,2 which requires us to seek “a balance between the inter-
ests of [Nichols], as a citizen, in commenting upon matters of
public concern and the interest of the [District], as an
employer, in promoting the efficiency of the public services
it performs through its employees.”3 Id.
[2] In striking the Pickering balance, we “must give [pub-
lic] employers wide discretion and control over the manage-
ment of their personnel and internal affairs,” including “the
prerogative to remove employees whose conduct hinders effi-
cient operation and to do so with dispatch.” Brewster, 149
F.3d at 979 (internal citation and quotation marks omitted). In
broad terms, Pickering favors the employer if the employee’s
conduct “impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working rela-
tionships for which personal loyalty and confidence are neces-
sary, or impedes the performance of the [employee’s] duties
2A public employee’s conduct falls within the First Amendment’s ambit
only if it touches on a matter of public concern. Connick, 461 U.S. at 145-
46. Prior to engaging in the Pickering balancing test, therefore, a court
must determine whether the conduct at issue involves a matter of public
concern. Id. Here, the district court held that Nichols’s attendance at the
March 23 school board meeting constituted expressive conduct touching
on a matter of public concern, namely Blanck’s allegations against Hager
and Blanck’s employment with the District. We agree and note that the
District does not contest this holding on appeal. The sole question before
us is whether the District has established, as a matter of law, that the Pick-
ering balancing test tips in its favor.
3Although the Pickering balancing test is ultimately a question of law,
its application often requires resolving underlying questions of fact, such
as the extent to which the employee’s conduct actually disrupted office
operations. See Eng v. Cooley, 552 F.3d 1062, 1071-72 (9th Cir. 2009)
(“Although the Pickering balancing inquiry is ultimately a legal question
. . . its resolution often entails underlying factual disputes.”).
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or interferes with the regular operation of the enterprise.”
Rankin v. McPherson, 483 U.S. 378, 388 (1987); see also Gil-
brook v. City of Westminster, 177 F.3d 839, 867-68 (9th Cir.
1999). The employer need not establish that the employee’s
conduct actually disrupted the workplace—“reasonable pre-
dictions of disruption” are sufficient. Brewster, 149 F.3d at
979 (internal citation and quotation marks omitted).
The fact that public employers have significant leeway to
regulate employee speech, however, does not mean that their
discretion is without bounds. While acknowledging the
importance of workplace efficiency, we have never given
public employers carte blanche to retaliate against employees
whose conduct does not reasonably threaten to disrupt opera-
tions. See Brewster, 149 F.3d at 979 (evidence of actual dis-
ruption or “reasonable predictions of disruption” are required
(internal citation and quotation marks omitted)) (emphasis
added). Pickering, after all, is a balancing test—it requires us
to weigh efficiency concerns against an employee’s legitimate
interest in engaging on matters of public concern. See Picker-
ing, 391 U.S. at 568. We cannot abdicate this responsibility
simply because an employer raises the specter of disruption.
[3] Although we accord significant weight to an employ-
er’s reasonable judgments about the workplace, an employer
cannot prevail under Pickering based on mere speculation that
an employee’s conduct will cause disruption. See Nunez v.
Davis, 169 F.3d 1222, 1229 (9th Cir. 1999) (“[R]eal, not
imagined, disruption is required.”) (internal citation and quo-
tation marks omitted). It is no surprise, then, that other cir-
cuits have determined that a disruption claim must be
supported by some evidence, not rank speculation or bald
allegation. See Gustafson v. Jones, 290 F.3d 895, 909 (7th
Cir. 2002) (“Pickering balancing is not an exercise in judicial
speculation.”); Kinney v. Weaver, 367 F.3d 337, 363 (5th Cir.
2004) (“[E]ngaging in Pickering balancing is not like per-
forming rational basis review, where we uphold government
action as long as there is some imaginable legitimate basis for
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it.”). An employer must provide some evidence by which we
can measure whether its claims of disruption are reasonable.
If the evidence establishes that the employer’s interests are
reasonably threatened, then will we tip the Pickering scales in
its favor.
[4] Because the District moved for summary judgment, we
must view the record in the light most favorable to Nichols.
See Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009).
Doing so, we find no evidence to suggest that Nichols’s asso-
ciation with Blanck actually disrupted the District’s operations.4
Nor is there anything in the record to the effect that their asso-
ciation interfered with Nichols’s job performance or nega-
tively affected her relationships with Dancer or other co-
workers. Nichols testified that she got along well with Dancer
and her colleagues in the human resources department and the
record does not reveal otherwise. See Nunez, 169 F.3d at 1229
(“A public employer cannot claim disruption of a close per-
sonal relationship to cover up animus toward an employee’s
speech and a desire to silence the employee.”). Indeed, noth-
ing supports the dissent’s suggestion that Nichols had a “con-
fidential relationship” with Blanck or that any of their
“continued communication” was the basis for any claim of dis-
ruption.5 See Dissent at 17595.
4The District claims that certain legal files “went missing” after Blanck
was suspended and suggests that Nichols or Blanck had something to do
with their disappearance. Nothing in the record supports this assertion.
Apparently, outside counsel that was hired to deal with pending legal mat-
ters in Blanck’s absence could not find certain files when they arrived at
the General Counsel’s office following Blanck’s suspension. Dancer testi-
fied that the files were later located in a file room. There is no evidence
that Nichols or Blanck moved the files or had anything to do with outside
counsel’s delay in locating them.
5In a petition for rehearing filed after we issued our initial opinion in
this case, the District argued that we misapplied the Pickering test by con-
sidering only the evidence available to the District at the time that Nichols
took early retirement, and by refusing to consider the evidence discovered
thereafter. Relying on Lytle v. City of Haysville, 138 F.3d 857 (10th Cir.
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[5] Of course, the District is not required to establish actual
disruption, but only reasonable predictions of future disrup-
tion. That the District may rely on the possibility of future dis-
ruption, however, does not mean that we will rubberstamp its
decision based on an assertion that Nichols’s association with
Blanck might have caused problems or been a reflection of
the level of her loyalty to the District. The District did not
produce evidence to establish that its predictions of disruption
or disloyalty are anything but speculation. The District asserts
that Nichols’s association with Blanck would have created a
conflict because, in the General Counsel’s office, Nichols
would have had access to information about a wrongful termi-
nation lawsuit that Blanck filed against the District after he
was fired. In the absence of any evidence of disloyalty, it is
pure speculation to claim that Nichols was likely—or even
inclined—to divulge this information to Blanck or otherwise
misuse it.6 The record offers no support for the claim that
1998), and Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc),
the District takes the position that we must consider all of the evidence
uncovered to date when deciding whether the District had adequate sup-
port for its conclusion that Nichols had disrupted and that her actions
threatened future disruption to the workplace. The District misapprehends
the extent of our consideration. We reviewed fully all of the District’s dis-
covery evidence, including the evidence uncovered after Nichols took
early retirement, but none of that evidence supports the District’s claim
that Nichols’s conduct disrupted the workplace or threatened to do so in
the future. We therefore need not and do not decide whether, as a general
matter, courts must consider evidence acquired after the adverse employ-
ment action when performing the Pickering balancing test.
6The District places great stock in a phone conversation that Nichols
had with Blanck on the day he was suspended, in which Nichols men-
tioned that outside counsel would be coming into the office to review
pending matters. The District asserts that the information about outside
counsel was sensitive and that it is reasonable to believe that Nichols
would have provided confidential information to Blanck in the future. It
is not clear, however, that Nichols was told—or should have known—that
the information about outside counsel was confidential. Nichols was never
told not to speak to Blanck, only to stop taking direction from him. Nota-
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Nichols’s contact with Blanck threatened to disrupt the Dis-
trict’s operations, or that Nichols was predisposed to cause
problems down the road. The District’s bare assertions of
future conflict are insufficient to carry the day at the summary
judgment stage. See Lindsey v. City of Orrick, 491 F.3d 892,
900 (8th Cir. 2007) (“Mere allegations the speech disrupted
the workplace or affected morale, without evidentiary sup-
port, are insufficient.”); Kinney, 367 F.3d at 363 (“We do not
let the governmental defendant prevail, on summary judg-
ment, by relying on interests that, viewing the record in the
non-movant’s favor, are not reasonably threatened in the
case.”) (emphasis in original); Andersen v. McCotter, 100
F.3d 723, 729 (10th Cir. 1996) (employer failed to “provide
evidence sufficient to assess the character and weight of [its]
interests”).
[6] The long and short of it is that Nichols is an employee
caught in the crossfire between the District and her former
boss. In the absence of any evidence that she was disloyal,
had disrupted the office or was even reasonably likely to
cause disruption in the future—and, viewing the record in the
light most favorable to Nichols, there is no such evidence—
the District sanctioned her for simply showing up at a public
meeting and sitting next to Blanck. Even under the deferential
Pickering test, this allegation is insufficient to tip the balance
in the District’s favor. We conclude that the District failed to
produce adequate evidence to establish, as a matter of law,
that its interests in workplace efficiency outweighed Nichols’s
First Amendment interest in associating with Blanck. At a
bly, the telephone call took place two months before the March 23 meet-
ing. Not only was the call never an issue, there is no evidence of any
problems during this intervening period. The passage of time free of inci-
dent undermines the District’s claim that Nichols’s conversation with
Blanck was a harbinger of future conflict. See Gustafson, 290 F.3d at 911
(stating that predictions of disruption were unpersuasive “given that four
months had passed without any evidence of ill effects from the speech
before [the negative employment action] took place”).
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minimum, material questions of fact remain on this point. See
Robinson, 556 F.3d at 825 (“Where . . . ‘there are underlying
factual issues regarding the extent of office disruption’, it is
proper to deny a motion for summary judgment” (quoting
Roth v. Veteran’s Admin. of Gov’t of U.S., 856 F.2d 1401,
1408 (9th Cir. 1988)). Accordingly, we reverse the grant of
summary judgment in the District’s favor and remand to the
district court for further proceedings consistent with this opin-
ion.
REVERSED AND REMANDED.
REAVLEY, Circuit Judge, dissenting:
I would affirm. With the litigation between the District and
Blanck pending, I see no constitutional objection to the
change of Nichols’ position from the legal office where
records sensitive to the litigation were located, especially
since she sided with Blanck in his conflict with the District
Board. Because our prior opinion remanded for the district
court to decide the Pickering balancing issue, I move to that
and agree with the district court’s decision that her continued
communication and confidential relationship with Blanck jus-
tified the legitimate administrative interest in moving her
from the legal office. Pickering balancing is a question of law,
not fact. We should rule and affirm. See Loya v. Desert Sands
Unified School Dist., 721 F.2d 279, 281 (9th Cir. 1983).
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