632 F.3d 1091 (9th Cir. 2011), 09-35856, Clairmont v. Sound Mental Health

Docket Nº:09-35856.
Citation:632 F.3d 1091
Opinion Judge:PAEZ, Circuit Judge:
Party Name:Richard CLAIRMONT, Plaintiff-Appellant, v. SOUND MENTAL HEALTH, Defendant, and Joni Wilson, in her individual capacity, Defendant-Appellee.
Attorney:Jesse A. Wing and Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for the plaintiff-appellant. Erin L. Overbey, Assistant City Attorney, Seattle, WA, for the defendant-appellee.
Judge Panel:Before: SUSAN P. GRABER and RICHARD A. PAEZ, Circuit Judges, and LARRY A. BURNS,[*] District Judge.
Case Date:January 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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632 F.3d 1091 (9th Cir. 2011)

Richard CLAIRMONT, Plaintiff-Appellant,

v.

SOUND MENTAL HEALTH, Defendant,

and

Joni Wilson, in her individual capacity, Defendant-Appellee.

No. 09-35856.

United States Court of Appeals, Ninth Circuit.

January 19, 2011

Argued and Submitted July 16, 2010.

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Jesse A. Wing and Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for the plaintiff-appellant.

Erin L. Overbey, Assistant City Attorney, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, Senior District Judge, Presiding. D.C. No. 2:08-cv-00507-TSZ.

Before: SUSAN P. GRABER and RICHARD A. PAEZ, Circuit Judges, and LARRY A. BURNS,[*] District Judge.

OPINION

PAEZ, Circuit Judge:

In this First Amendment retaliation case, Richard Clairmont 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

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company that provides domestic violence 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 Pickering 1 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 summary 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 conclude, 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.

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 perpetrator 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 Treatment 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 Treatment 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 services 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 the Municipal Court probation staff as needed. The contract specifically characterized SMH as an " independent contractor."

On November 8, 2007, Clairmont was subpoenaed to testify as an expert witness

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in a hearing on behalf of a criminal defendant who was enrolled in a Treatment program with a different organization. The Treatment organization had terminated the pre-trial criminal defendant from the program prematurely, 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 status 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 defendant'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 testimony 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 informing Clairmont of his termination stated, in pertinent part:

Sound Mental Health has very recently received further 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 coordination and [to] restore confidence in your management of the program with the probation unit have been 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 beginning immediately. This leaves SMH with no option but to terminate your employment effective today....

In April 2008, Clairmont filed suit against SMH and Wilson 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

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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 terminated 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, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (alteration in original) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)).

In reviewing the district court's legal conclusion that Wilson is entitled to qualified immunity, we apply the familiar analytical framework laid out in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Under Saucier, whether a government official is entitled to qualified immunity is a two-part inquiry: (1) whether the facts alleged, taken in the light most favorable to the party 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, 121 S.Ct. 2151. 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

Before addressing whether Clairmont has demonstrated that Wilson violated his constitutional rights, we must first determine whether...

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