Thomas v. City of Beaverton

• Citation: 379 F.3d 802
• Decision Date: 16 August 2004
• Docket Number: No. 03-35120.,03-35120.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: Annette THOMAS, Plaintiff-Appellant, v. CITY OF BEAVERTON; Linda Adlard; Sandra Miller, Defendants-Appellees.

379 F.3d 802

Annette THOMAS, Plaintiff-Appellant, v. CITY OF BEAVERTON; Linda Adlard; Sandra Miller, Defendants-Appellees.

No. 03-35120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2004.

Filed August 16, 2004.

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Thomas M. Steenson and Beth Creighton, Steenson, Schumann, Tewksbury & Rose, P.C., Portland, OR, for the plaintiff-appellant.

Marjorie A. Speirs, Hoffman, Hart & Wagner, LLP, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-01-01183-ALH/DCA.

Before: GOODWIN, McKEOWN and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Annette Thomas was the municipal court administrator for the City of Beaverton, Oregon. Her supervisor, Sandy Miller, placed her on extended probation after Thomas refused to pass over a subordinate employee, Susie Perry, for a promotion to senior court clerk in 2001 despite Miller's initial insistence that Perry should not be promoted. Perry, an African American, had previously sued the City for failing to promote her to the same position in 1996 and 1997, and the jury had found that the City had unlawfully retaliated against her for complaining of racial discrimination. After the City terminated Thomas, she sued the City, Miller and other city employees for violations of the First and Fourteenth Amendments, Title VII, Oregon Revised Statute §§ 659A.030, 652.355 and for common law wrongful discharge. The district court granted summary judgment to the defendants.

We hold that Thomas has offered sufficient evidence to create a genuine issue of material fact as to whether her refusal to facilitate Miller's allegedly unlawful retaliatory treatment of Perry in the hiring process constituted expressive conduct on a matter of public concern. For similar reasons, we hold that Thomas has offered sufficient evidence that she engaged in an activity protected under Title VII by opposing retaliation against Perry on account of Perry's own Title VII suit. Therefore, we reverse the grant of summary judgment on her First Amendment and Title VII retaliation claims. We affirm summary judgment, however, on her equal protection claim, because there is insufficient evidence of racial animus, as well as on her remaining claims.

I. FACTS

In October 2000, Annette Thomas was hired as the municipal court administrator for the City of Beaverton and placed on a standard six-month probationary period for new employees.¹ Her job duties included supervising and hiring court clerks, one of whom was Susie Perry. Before Thomas joined the municipal court, Perry had made complaints of racial discrimination against Linda Adlard, Beaverton mayor's chief of staff, who was then in charge of the municipal court's personnel matters. After Perry was passed over for a promotion to the position of senior court clerk in 1996 and 1997, she filed suit against Adlard and the City, alleging racial discrimination and retaliation for complaining about racial discrimination in violation of Title VII and other state and federal statutes. A jury found that Perry had not been discriminated against because of her race but had been retaliated against for her complaints about racial discrimination. The judge, who tried one of the state claims, specifically found that Perry was qualified for the senior court clerk position and that the City's reasons for not promoting Perry were pretextual. After the suit, Mayor Robert Drake transferred Adlard's authority to make personnel decisions to Sandy Miller, the human resources director.

In early 2001, a senior court clerk position opened up again. As Thomas was preparing to recruit applicants for the position, Miller told her to be "ready for a lawsuit when we don't hire [Perry]." Thomas responded by asking whether Miller meant "[i]f we don't hire [Perry]." Miller looked confused at first but then said, "[R]ight, but go ahead and start documenting every incident or problem with [Perry], no matter how small." Miller had never instructed Thomas to document incidents with any other employee in the hiring process. Thomas consequently refused to document incidents involving Perry because she thought it was unfair to Perry and there was nothing substantial to document.

After interviewing the candidates, the interviewers, who included Thomas, concluded that Perry had interviewed the best, was the most qualified for the position and should be promoted to the position. When Thomas recommended to Miller that Perry should be promoted, Miller said that Perry would not be a good senior court clerk and that if Perry were promoted "there would be problems with Ms. Adlard because of the previous lawsuit." Thomas responded that she could not justify not promoting Perry.

Afterwards, Gaye Fortier, the human resources staffing representative and one of the interviewers, told Thomas, "I am warning you. [Miller] will not hire [Perry] for the position." Thomas asked Fortier what she thought about that, and Fortier said that Miller was wrong.

Instead of accepting the interviewers' recommendation, Miller arranged a second interview with Perry, which Miller conducted with Thomas present. Afterwards, Miller said, "I don't think she did a good job at all; I think we should reopen the job and keep looking." Thomas disagreed and said so to Miller.

Miller still did not approve Perry's promotion and instead required her to work "out-of-class" in the senior court clerk position for two months under probation status in order to determine whether she would meet the criteria for the position. After Perry successfully performed all the tasks and tests that were required of her, Thomas kept after Miller to promote Perry. Although Miller continued to be critical of Perry, she eventually approved Perry's promotion on May 7, 2001.

During Perry's probationary period, Miller met with Thomas and informed her that she was also being placed on extended probation because she needed improvement in two areas: attendance and data analysis. Before that time, Thomas had not been informed of any problems with her job performance, nor were other court or city employees aware of any such problems. Shortly after the meeting, Thomas sent Miller an eight-page written response (the "first addendum"). In it she detailed many of the accomplishments she had achieved and the obstacles that she had faced when she first started the job, including what she described as "staff personnel issues," "a total breakdown of Court policies and procedures" and "clear violations of law."

On May 22, Miller provided Thomas with a formal written appraisal. The primary problems that the appraisal identified were Thomas' computer skills, data analysis and attendance. Miller explained that she was extending Thomas' probation due to her deficiencies in data analysis. After receiving the written appraisal, Thomas sent Miller a memorandum on May 25, 2001 (the "second addendum"), criticizing Miller. In Miller's opinion, the second addendum reflected Thomas' unwillingness to accept responsibility for her performance deficiencies and to raise her work performance despite the extension of her probationary period. Miller terminated Thomas' employment on May 31.

Thomas sued the City for unlawful retaliation under Title VII and Oregon Revised Statute § 659A.030, wage retaliation under Oregon Revised Statute § 652.355 and wrongful discharge. She also brought a 42 U.S.C. § 1983 claim against the City, Adlard and Miller in their individual and official capacities for violating the First and Fourteenth Amendments. The defendants moved for summary judgment, which the district court granted based on the magistrate judge's findings and recommendations. Thomas now appeals. We have jurisdiction under 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. See Alexander v. City & County of San Francisco, 29 F.3d 1355, 1359 (9th Cir.1994). "Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law." Id.

III. FIRST AMENDMENT RETALIATION

Thomas contends that the defendants retaliated against her for supporting Perry's promotion.² In order to establish a prima facie case of retaliation under the First Amendment, Thomas must show that (1) she engaged in protected speech; (2) the defendants took an "adverse employment action" against her; and (3) her speech was a "substantial or motivating" factor for the adverse employment action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003); see also Ulrich v. City & County of San Francisco, 308 F.3d 968, 976 (9th Cir.2002). Under the first element, Thomas' speech is protected only if she spoke "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." Roe v. City of San Diego, 356 F.3d 1108, 1112 (9th Cir.2004); see Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

If Thomas can establish a prima facie claim, the burden shifts to the employer to demonstrate either that, under the balancing test established by Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the employer's legitimate administrative interests outweigh the employee's First Amendment rights or that, under the mixed motive analysis established by 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), the employer "would have reached the same decision even in the absence of the [employee's] protected conduct." Ulrich, 308 F.3d at 976-77; see Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).

The district court,...