Julie Ballou v. James McElvain
29 F.4th 413
| 9th Cir. | 2021Background
- Julie Ballou, a Vancouver police officer, scored third on the 2017 sergeant promotion exam and was repeatedly passed over for promotion while the chief, James McElvain, promoted higher‑ranked (male) candidates.
- Shortly after the exam an internal affairs inquiry began into Ballou’s failure to file incident reports; McElvain ordered expanded investigations and cited them as reasons not to promote her.
- Ballou emailed the chief alleging sex discrimination, served state tort notices asserting discrimination, and filed a federal § 1983 suit alleging Equal Protection sex discrimination and retaliation plus First Amendment (Petition/Speech) retaliation; she later added Title VII claims against the City.
- The district court denied McElvain qualified immunity on Ballou’s Equal Protection disparate‑treatment and First Amendment retaliation claims and left unresolved the question of Equal Protection retaliation; McElvain appealed the qualified immunity denials.
- The Ninth Circuit reviewed only whether, assuming Ballou’s version of facts, McElvain violated clearly established law; it affirmed denial of qualified immunity as to Equal Protection disparate treatment and First Amendment retaliation, and declined to address qualified immunity for the Equal Protection retaliation claim for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection — disparate treatment (denial of promotion) | Ballou: McElvain initiated investigations and passed her over because she is a woman. | McElvain: Nonpromotion was for legitimate, nondiscriminatory reasons (failure to file reports, investigations). | Court: Ballou alleged sufficient circumstantial evidence (procedural departures, comparators, timing) to defeat qualified immunity; denial affirmed. |
| Equal Protection — retaliation for opposing sex discrimination | Ballou: She was retaliated against (investigations, nonpromotion) for opposing sex discrimination. | McElvain: Qualified immunity applies; insufficient precedent/clearly established law. | Court: Did not decide qualified immunity on this claim; no jurisdiction to review because district court did not deny immunity on it. |
| First Amendment (Petition/Speech) — retaliation | Ballou: Emails, state tort notices, and a federal suit protesting discrimination are protected petition/speech; adverse actions were retaliatory. | McElvain: Speech was private/personal, or not protected; causation lacking. | Court: Speech (complaints, tort notice, suit) addressed public concern and was protected; factual causation disputed but not plainly contradicted — qualified immunity denial affirmed. |
| Qualified immunity scope / interlocutory review | N/A | McElvain: Entitled to qualified immunity as a matter of law on these claims and appellate review should resolve it. | Court: Applying collateral‑order limits, reviewed only claims where denial of immunity was actually decided below; affirmed on Equal Protection disparate treatment and First Amendment claims. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden‑shifting framework for circumstantial discrimination evidence)
- Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (U.S. 1977) (sensitive inquiry into discriminatory intent; consider background and sequence of events)
- Lindsey v. Shalmy, 29 F.3d 1382 (9th Cir. 1994) (Equal Protection forbids intentional career‑impeding actions based on gender)
- Bator v. State of Hawai‘i, 39 F.3d 1021 (9th Cir. 1994) (constitutional right not to be refused promotion because of sex)
- Pickering v. Board of Educ., 391 U.S. 563 (U.S. 1968) (public employee speech on matters of public concern protected)
- Connick v. Myers, 461 U.S. 138 (U.S. 1983) (test for whether employee speech addresses public concern)
- Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917 (9th Cir. 2004) (employee speech about governmental wrongdoing/discrimination is inherently public concern)
- Plumhoff v. Rickard, 572 U.S. 765 (U.S. 2014) (collateral‑order review of qualified immunity denials)
- Scott v. Harris, 550 U.S. 372 (U.S. 2007) (exception where plaintiff’s version is blatantly contradicted by the record)