Ballou v. McElvain

Citation29 F.4th 413
Decision Date28 September 2021
Docket NumberNo. 20-35416,20-35416
Parties Julie BALLOU, Plaintiff-Appellee, v. James MCELVAIN, Phd, in his individual and representative capacity, Defendant-Appellant, and City of Vancouver, a municipal corporation, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Daniel G. Lloyd (argued) and Sara Baynard-Cooke, Assistant City Attorneys, City Attorney's Office, Vancouver, Washington, for Defendant-Appellant.

Matthew C. Ellis (argued), Matthew C. Ellis P.C., Portland, Oregon; Stephen L. Brischetto, Portland, Oregon; for Plaintiff-Appellee.

Before: Mary H. Murguia, Chief Judge, and Danny J. Boggs* and Marsha S. Berzon, Circuit Judges.

ORDER

The opinion filed on September 28, 2021, and reported at 14 F.4th 1042, is hereby amended. An amended opinion is filed concurrently with this order.

With the opinion as amended, the panel unanimously voted to deny the petition for panel rehearing. Chief Judge Murguia voted to deny the petition for rehearing en banc, and Judge Boggs and Judge Berzon so recommended. The full court has been advised of the petition for 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 rehearing en banc, Docket No. 42, is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained.

AMENDED OPINION

BERZON, Circuit Judge:

Julie Ballou, a police officer in Vancouver, Washington, scored high enough on the examination for promotion to sergeant to be eligible for promotion but was repeatedly passed over, including when she was highest on the promotion list. James McElvain, the Police Chief who made the promotion decisions, instigated a series of investigations into Ballou's reporting practices and refused to promote her while the investigations were pending. Ballou sued, alleging that McElvain violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by discriminating against her on the basis of sex in refusing to promote her and by retaliating against her for objecting to that discrimination.

We affirm the denial of qualified immunity as to Ballou's First Amendment and Equal Protection Clause disparate treatment claims. As to McElvain's argument that he is entitled to qualified immunity on Ballou's claim that she was retaliated against in violation of the Equal Protection Clause of the Fourteenth Amendment, we cannot discern from the district court's order whether we have jurisdiction under the collateral order doctrine to resolve that question, and so we remand to the district court to clarify its ruling.

I.

In 2017, Julie Ballou and several other Vancouver police officers took an exam to determine eligibility for promotion to the rank of sergeant. Under Washington civil service rules, when a vacancy arises, the Police Chief has discretion to promote any of the three highest-scoring candidates on the relevant promotion exam. Rules & Regs., Vancouver Civ. Serv. Comm'n § 11.3(a) (2020). Between 2013 and 2018, every time he filled a vacancy McElvain promoted the highest-ranked person on the relevant list.

Ballou scored third-highest in her sitting of the sergeant's exam. At the time, there were no sergeant vacancies available, so no one was promoted.

Three months after the sergeant's exam, before any promotions had been made, a citizen called the Vancouver police department to follow up on a burglary report she had made to Ballou. Considering the inquiry, Rod Trumpf, the supervising sergeant, discovered that, in violation of department policy, Ballou had not written and filed a report on the incident. Trumpf thereupon initiated an internal affairs investigation into Ballou's conduct.

The following month, Chief McElvain asked Barbara Kipp, an investigating officer, to determine if Ballou's failure to file a report "was a one-time incident or [part] of a pattern." Kipp reviewed over a year of records and identified seven incidents for which, in Kipp's view, Ballou should have filed a report but did not. In June of 2018, Ballou's supervising lieutenant issued her a letter of reprimand.

Two sergeant vacancies arose while the internal affairs investigation of Ballou was ongoing. McElvain promoted the two officers ranked higher than Ballou on the eligibility list, leaving Ballou the highest-ranked officer on the sergeant list. Shortly after Ballou received her letter of reprimand, McElvain, citing the internal affairs investigations and Ballou's failure to follow protocol, announced that he did not intend to promote her to sergeant.

This decision caused a stir in the department. The week following McElvain's announcement, some women officers—but not Ballou herself—raised at a meeting with McElvain Ballou's eligibility for promotion. In that meeting, officers indicated that it was atypical to initiate a broad internal affairs investigation into an officer for failing to follow up on a citizen call. One of the officers in that meeting, Commander Amy Foster, pointed out that Brian Ruder, an officer who had received a verbal reprimand for failing to write a report on a sexual assault call, had not, at that time, been subjected to an internal affairs investigation, either into the specific incident or into his reporting practices generally.

The day after that meeting, McElvain announced that he would be promoting Erik Jennings, the person ranked directly below Ballou on the sergeant list. McElvain also directed that an investigation be opened against Ruder who, after Jennings's promotion, was tied with Kevin Barton as the next-highest-ranked candidate after Ballou.

Shortly thereafter, Ballou sent McElvain and Eric Holmes, the Vancouver city manager, an email stating that McElvain's decision to pass her over for promotion was "a textbook example of applying a different, and harsher, standard to women than to men." In her email, Ballou asserted that McElvain had "in more than one instance ... promoted male candidates who have had sustained [internal affairs investigation] findings against them for much more serious violations." This assertion apparently referred to Ryan Junker and Jeremy Free, officers who had previously been promoted to the rank of corporal despite having been disciplined following internal affairs investigations—in Junker's case, for shooting himself in the foot, and in Free's case, for obstructing an investigation into an allegation that he had driven under the influence of alcohol.

Ballou's email contended that she had been "the victim of gender discrimination at least twice: first by the sergeant who filed the [internal] complaint against me but not the men on his shift for the same conduct, and second by the Chief who chose not to promote me because of a minor policy violation but who, on at least several occasions, promoted men with more serious [disciplinary] findings." She further stated: "I have been advised to hire a lawyer and file a gender discrimination suit against the City. I would prefer not to do that for many reasons, not only because of the cost to the City, but more importantly, because of the harm it will cause to the City's reputation." She concluded by asking that she be promoted immediately. Ballou followed up this email with a list of possible report-writing violations by male officers.

Following Ballou's email, McElvain neither promoted Ballou nor investigated any of the violations by the other officers she had identified. Ballou continued to be investigated for violations of department reporting policy. Between February 2018, when she first became eligible for promotion to sergeant, and May 2019, when she was ultimately promoted, Ballou was the subject of eight internal affairs investigations.

In September 2018, two months after her email to McElvain but more than seven months before her eventual promotion, Ballou served a state tort claim on the City, alleging sex discrimination and seeking damages. Shortly thereafter, a new sergeant vacancy became available. McElvain promoted Kevin Barton, a candidate ranked just below Ballou on the eligibility list and tied with Ruder. After that promotion, in November 2018, Ballou filed a second state tort claim, alleging "further sexual discrimination due to her most recent non-promotion," "further claims for discriminatory discipline," and "claims for retaliation."

Ballou filed the present suit under 42 U.S.C. § 1983 in federal court on January 3, 2019, alleging denial of her constitutional right to equal protection and seeking damages. The following week, on January 10, McElvain announced that he intended to promote Ruder, now the second-ranked candidate, over Ballou. McElvain contends that he announced this decision before he learned of this lawsuit.

In May 2019, more than a year after she first became eligible for promotion, McElvain promoted Ballou to the rank of sergeant.

After Ruder's promotion, Ballou amended her federal complaint to add that the ongoing investigations against her and the decision to promote Ruder had been retaliatory, in violation of Ballou's rights under the Petition Clause of the First Amendment. She also filed a charge with the Equal Employment Opportunity Commission (EEOC) against the City of Vancouver and then brought new claims against the City under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. The amended complaint retained Ballou's assertion that McElvain had violated her right to be free from sex discrimination under the Equal Protection Clause by discriminatorily investigating her, passing her over for promotion, and "retaliating against her for opposing ... sex discrimination."

McElvain filed a motion for partial judgment on the pleadings, asserting qualified immunity as to Ballou's claims of disparate treatment and of retaliation. The district court denied that motion in its entirety. Both McElvain and the City of Vancouver then moved for summary judgment, with...

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