Allen v. Iranon

• Decision Date: 13 March 2002
• Docket Number: No. 99-16896.,99-16896.
• Citation: 283 F.3d 1070
• Parties: Terence B. ALLEN, M.D., Plaintiff-Appellee, v. George IRANON, former Director of the Department of Public Safety, State of Hawaii; Eric Penarosa, former Director for Corrections, Department of Public Safety, State of Hawaii; Guy Hall, former Warden for the Halawa D.C. No. Correctional Facility and Administrator of Inspection, Evaluation and Compliance, Department of Public Safety, State of Hawaii, Defendants-Appellants, and Department Of Public Safety, State of Hawaii, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.3d 1070

Terence B. ALLEN, M.D., Plaintiff-Appellee, v. George IRANON, former Director of the Department of Public Safety, State of Hawaii; Eric Penarosa, former Director for Corrections, Department of Public Safety, State of Hawaii; Guy Hall, former Warden for the Halawa D.C. No. Correctional Facility and Administrator of Inspection, Evaluation and Compliance, Department of Public Safety, State of Hawaii, Defendants-Appellants, and Department Of Public Safety, State of Hawaii, Defendant.

No. 99-16896.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2001.

Filed March 13, 2002.

Gary Hynds, Deputy Attorney General, Honolulu, HI, for the defendants-appellants.

Michael K. Livingston, Davis, Levin, Livingston, Grande, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, District Judge, Presiding. D.C. No. CV-97-00175-ACK.

Before: B. FLETCHER, CANBY and PAEZ, Circuit Judges.

OPINION

CANBY, Circuit Judge.

Plaintiff Terence Allen, M.D., a physician formerly employed by the Hawaii Department of Public Safety, brought this action under 42 U.S.C. § 1983 against three state officials who were supervisors within the Department. Allen alleged that the defendants retaliated against him and conspired to retaliate against him in violation of his First Amendment rights because he spoke out on abuse of inmates at the Hawaii correctional facilities where he was employed. Following a bench trial, the district court entered judgment for Allen on all counts of the complaint. The defendants appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Background.

Allen was employed from 1987 through 1997 by the Hawaii Department of Corrections, a subdivision of the Department of Public Safety, to provide medical services to inmates at the high and medium security units at the Halawa Correctional Facility ("Halawa"). He began working at the Department of Corrections on a fee-for-service basis and was hired in January 1995 to fill the part-time permanent position of Physician I at Halawa.

Defendant Guy Hall was Warden of Halawa from November 1993 to November 1995, and then moved to another position in the Department of Public Safety. Defendant George Iranon was Acting Director and then Director of the Department of Public Safety from July 1994 to December 1996. Defendant Eric Penarosa was Deputy Director for Corrections from the early 1990s. He became Acting Warden and then Warden of Halawa in November 1995.

Between 1987 and 1994, Allen publicly disclosed on several occasions the mistreatment of inmates by corrections officers at Halawa. At a legislative committee hearing in 1990, he provided testimony critical of the prison administration. He also had disagreements on occasion with security personnel, generally about medical issues, such as the need for privacy during inmate exams and the need to examine inmates without their being shackled. During one incident in 1990, he tore papers off a bulletin board and set off a fire alarm in anger at being kept too long in a holding unit. Despite such incidents over this seven-year period, Allen was never referred to the Department's Internal Affairs unit, which investigates complaints of employee misconduct, including breaches of security and violations of the Department's Standards of Conduct. Allen also was never "locked out" of (denied access to) the facility during this period. Instead, the district court found, these problems with Allen were "handled administratively."¹

This pattern began to change after Hall became Warden and Allen continued to voice his concerns about the abuse of inmates at Halawa. Allen sent a memo about abuse to Hall in December 1993. Allen then spoke on this topic to Deputy Attorney General Thomas Farrell in March 1994, to the news media in August 1995, and to the Hawaii State Legislature in October 1995. Subsequently, he was subjected to two "lockouts"² from the Halawa facility and to multiple Internal Affairs investigations, and he was passed over for a full-time permanent Physician II position at Halawa in 1997 in favor of a candidate ranked lower after interviews and testing.

Allen brought the present action under 42 U.S.C. § 1983, alleging that the defendants had retaliated against him for exercising his First Amendment right to free speech. After a bench trial, the district court found that the defendants had retaliated against and conspired to retaliate against Allen in violation of his First Amendment rights, engaging in a campaign of harassment and constructively discharging Allen. The district court found that the lockouts were for incidents that should have been handled administratively, that a number of the Internal Affairs investigations were not appropriate matters for Internal Affairs and should have been handled administratively, and that Allen was passed over for the Physician II position without a legitimate reason, despite being qualified and having been recommended by the selection panel. The court found that Allen's speaking out to Farrell, the press, and the legislature about abuse of inmates at Halawa was a motivating factor in the actions taken against him.

The court made these determinations notwithstanding the fact that many of the defendants' actions had been upheld as appropriate by a hearing officer and Internal Affairs investigator, and despite the district court's finding that Allen's own personality and conduct contributed to his problems at Halawa. The court made adverse credibility findings with respect to the testimony of Hall and Iranon regarding the reasons for the actions they took against Allen.

The defendants appeal the judgment entered in favor of Allen on all counts of his complaint. They present two issues for review: (1) whether the district court erred in applying a "mixed-motives" analysis that shifted the burden to the defendants to show, after Allen made out a circumstantial case of retaliation, that the defendants would have taken the challenged actions against Allen even if he had not engaged in the protected conduct; and (2) whether sufficient evidence supports the district court's findings that the defendants retaliated against Allen.³

II. The Mt. Healthy Analysis.

The defendants contend that the district court erroneously applied a "mixed-motive" analysis to this case. This argument refers to the analysis set forth in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Under the Mt. Healthy framework, Allen first had to show that his conduct was constitutionally protected and that the conduct was a "substantial" or "motivating" factor in the defendants' employment decisions. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568. After he made these showings, the defendants could escape liability only by sustaining the burden of proving "by a preponderance of the evidence that[they] would have reached the same decision ... even in the absence of the [plaintiff's] protected conduct." Id. (quoted in Gilbrook v. City of Westminster, 177 F.3d 839, 853-54 (9th Cir.1999)). The defendants would have preferred that the district court apply the Title VII formula of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which allocates burdens of proof more favorably to defendants. Under McDonnell Douglas, after the plaintiff establishes a prima facie case of discrimination, the employer need only articulate a legitimate non-discriminatory reason for its actions, and the plaintiff then has the burden of proving that the employer's neutral reasons for its actions were a pretext for discrimination. See id. at 804-05, 36 L.Ed.2d 668.

Allen's case, however, is one of First Amendment retaliation, as was Mt. Healthy, not of Title VII discrimination. Mt. Healthy governs claims that an employee has been punished in retaliation for exercising First Amendment rights. See, e.g., Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).

The defendants concede, as they must, that we have applied the Mt. Healthy analysis to claims of retaliation for the exercise of First Amendment rights. They contend, however, that the Mt. Healthy analysis is confined to cases in which the plaintiff has proved its prima facie case of retaliation by direct evidence, and that it does not apply when the plaintiff, like Allen, has presented only a circumstantial case of retaliation. For this distinction between circumstantial and direct evidence, the defendants rely primarily on such Title VII cases as Taylor v. Virginia Union University, 193 F.3d 219, 232 (4th Cir.1999) (en banc).

We need not delve into the Title VII cases, however, because it is clear that this circuit has consistently employed the Mt. Healthy analysis in cases of First Amendment retaliation without regard to whether the evidence of retaliatory motive was direct or circumstantial. See, e.g., Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750-53 (9th Cir.2001) (finding that the circumstantial evidence provided was insufficient to show a retaliatory motive); Gilbrook, 177 F.3d at 859(finding a retaliatory motive based on direct and circumstantial evidence); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1315 (9th Cir.1989) (finding a retaliatory motive based on circumstantial evidence); Peacock v. Duval, 694 F.2d 644, 647 (9th Cir.1982) (concluding that there was sufficient direct and circumstantial evidence to support a finding of retaliatory motive); Wagle v. Murray, 560 F.2d 401, 403 (9th Cir.1977) (concluding there was sufficient circumstantial evidence to support a finding of retaliatory motive). These cases did not regard as material any distinction between direct and circumstantial evidence, but simply required the plaintiff to prove that the protected speech was "a ... motivating factor" in the...