Nunez v. Davis

• Decision Date: 12 March 1999
• Docket Number: No. 98-15137,98-15137
• Citation: 169 F.3d 1222
• Parties: 14 IER Cases 1563, 99 Cal. Daily Op. Serv. 1827, 1999 Daily Journal D.A.R. 2360 Georgia NUNEZ, Plaintiff-Appellee, v. Gary F. DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1222

169 F.3d 1222

14 IER Cases 1563, 99 Cal. Daily Op. Serv. 1827,

1999 Daily Journal D.A.R. 2360

Georgia NUNEZ, Plaintiff-Appellee, v. Gary F. DAVIS, Defendant-Appellant.

No. 98-15137.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1998.

Decided March 12, 1999.

Peter M. Angulo, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, Nevada, for the defendant-appellant.

Kristina S. Holman, Las Vegas, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Nevada David W. Hagen, District Judge, Presiding. D.C. No. CV-93-01212-DWH-RLH.

Before: HARRY PREGERSON and MELVIN BRUNETTI, Circuit Judges, and ANN L. AIKEN, ^* District Judge.

PREGERSON, Circuit Judge:

Georgia Nunez is a former court administrator for the City of North Las Vegas Municipal Court. In 1993, a conflict developed between Nunez and her supervisor, Judge Gary Davis, who instructed Nunez to limit attendees at training seminars to those court employees who had worked in his reelection campaign. In protest, Nunez arranged for two court clerks who did not work in Davis's reelection campaign to attend a training seminar. Davis fired Nunez. She brought a 42 U.S.C. § 1983 action against Davis and against the City of North Las Vegas. Nunez's complaint charged that Davis, acting under color of state law, violated her First Amendment right to free speech when he fired her. The district court denied Davis's repeated motions for qualified immunity. The court granted the city's motion to dismiss on the ground that the municipal court system has Eleventh Amendment immunity. The case then proceeded to trial against Davis. The jury returned a verdict in Nunez's favor for $141,446.31.

Davis appeals from the judgment entered against him, the denial of a motion for summary judgment, and the denial of a renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. He makes three arguments on appeal: (1) that Nunez's conduct in allowing the two court clerks to attend the training seminar is not constitutionally protected speech; (2) that the district court erred in denying Davis' motions for qualified immunity and in declining to submit the qualified immunity issue to the jury; and (3) that the district court erred in submitting the First Amendment "public concern" issue and the issue whether Nunez's conduct was speech to the jury. We address each of Davis's arguments in turn and affirm the district court for the following reasons.

I.

A. Nunez's conduct implicates the First Amendment.

To determine whether a public employee's supervisor violated an employee's First Amendment right to free speech, we must first determine whether speech was involved at all. Davis argues that Nunez's conduct in allowing the two court clerks to attend the training seminar was not speech because she merely refused to follow his orders and her conduct did not communicate any particular message. But we "have long recognized that [First Amendment] protection does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Non-verbal conduct implicates the First Amendment when it is intended to convey a "particularized message" and the likelihood is great that the message would be so understood. Id. Nunez testified that she intended by her conduct to convey a message to the court clerks and co-workers that Davis should not condition court clerks's benefits on working in his reelection campaign. The court clerks, as well as co-employees, testified that they understood that message. Thus, Nunez's expressive conduct (hereafter "symbolic speech" or "speech") possessed "sufficient communicative elements to bring the First Amendment into play." Texas, 491 U.S. at 404, 109 S.Ct. 2533.

Another critical inquiry is whether the public employee's speech addresses a matter of public concern. See Allen v. Scribner, 812 F.2d 426, 430 (9th Cir.1987). ¹ Whether a public employee's speech or expressive conduct involves a matter of public concern depends upon "the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). A public employee's speech or expressive conduct deals with a matter of public concern when it "can be fairly considered as relating to a matter of political, social, or other concern to the community." Voigt v. Savell, 70 F.3d 1552, 1559 (9th Cir.1995). Speech that deals with "complaints over internal office affairs" is not protected when it is not relevant to the public's evaluation of a governmental agency's performance. Connick, 461 U.S. at 149, 103 S.Ct. 1684.

The Supreme Court has held that speech similar to Nunez's inherently concerns the public interest. In Connick, the Court considered whether an internal office questionnaire distributed by an assistant district attorney who objected to being transferred constituted protected speech on a matter of public concern. The questionnaire concerned "office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns." Id. at 141, 103 S.Ct. 1684. The Court determined that all items in the questionnaire-except the political campaign question-were matters that addressed internal office policy and did not involve speech on a matter that would potentially concern the public. See id. at 148, 103 S.Ct. 1684.

In contrast, the Court in Connick determined that whether any assistant district attorney felt pressured to work in political campaigns did involve a matter of potential public concern because "there is a demonstrated interest in this country that government service should depend upon meritorious performance rather than political service." Id. at 149, 103 S.Ct. 1684. The Court further noted that such speech involved a matter of public concern because "official pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights." Id. (citing Branti v. Finkel, 445 U.S. 507, 515-516, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Thus, the Court concluded that the issue "whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal." Connick, 461 U.S. at 149, 103 S.Ct. 1684.

Nunez spoke out to protect the rights of court employees pressured by Davis to work on his reelection campaign. ² She did not act to further her own personal interests. See Brewster v. Board of Educ., 149 F.3d 971, 980 (9th Cir.1998); McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983). In addition, her symbolic speech was relevant to the public's evaluation of the performance of a public official and the court system. See Voigt, 70 F.3d at 1560 (finding that court clerk's speech regarding possible hiring bias against out-of-state applicants touched on a matter of public concern because the public has an interest in knowing whether the court treats its job applicants fairly).

Davis argues that while the content of Nunez's symbolic speech may have addressed a matter of inherent public concern, the form and context of her speech did not make it sufficiently "public" to trigger First Amendment protection. Davis contends that Nunez's conduct arose out of a fit of spite, and did not communicate any message to her co-workers. In addition, Davis points out that Nunez did not express her concerns to the press or to any other public official.

But Davis's argument has no basis in law or fact. Nunez did communicate a message through her symbolic speech. One of the clerks attending the seminar testified she was aware of Davis's "policy" disallowing individuals who did not help in his campaign from attending training seminars, and that she was surprised she was allowed to attend. Marilyn Bell, a court employee, testified that everyone in the office knew of Davis' policy and that Nunez took a risk by sending the clerks to the seminar. Further, the fact that Nunez did not take her concerns to the press "does not vitiate the status of the statement as addressing a matter of public concern." Rankin v. McPherson, 483 U.S. 378, 386-87 n. 11, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). There is no legal requirement that a public employee's speech be made public in order to constitute speech on a matter of public concern. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413-17, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (stating that First Amendment protection applies when a public employee arranges to communicate privately with employer rather than express his views publicly).

Davis also argues that Nunez's conduct is not protected speech but unprotected insubordination. As this court has held, "[i]ssuance of unauthorized orders by an employee, on behalf of the institution, is not protected speech." Nelson v. Pima Community College, 83 F.3d 1075, 1081 (9th Cir.1996). But the cases Davis cites for this proposition are inapposite. In Nelson, this court considered whether a college administrator who disagreed with the college's affirmative action policy could receive First Amendment protection for actions she took to undermine the policy. The employee in that case had fundamental differences with her supervisor and official college policy. On numerous occasions, she ordered departments to halt hiring faculty so she could first review their affirmative action records, despite instructions from her superiors that she had no authority to make such demands. Nelson's disagreement with the college president and the college policy, and her...