Clairmont v. Sound Mental Health

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD CLAIRMONT, 

Plaintiff-Appellant,

v.

No. 09-35856

SOUND MENTAL HEALTH,

Defendant,  D.C. No.

2:08-cv-00507-TSZ

and

OPINION

JONI WILSON, in her individual

capacity,

Defendant-Appellee.



Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted

July 16, 2010—Seattle, Washington

Filed January 19, 2011

Before: Susan P. Graber and Richard A. Paez,

Circuit Judges, and Larry A. Burns,* District Judge.

Opinion by Judge Paez

*The Honorable Larry A. Burns, United States District Judge for the

Southern District of California, sitting by designation.

1021

CLAIRMONT v. SOUND MENTAL HEALTH 1025

COUNSEL

Jesse A. Wing, MacDonald Hoague & Bayless, Seattle,

Washington, for the plaintiff-appellant.

1026 CLAIRMONT v. SOUND MENTAL HEALTH

Erin L. Overbey, Assistant City Attorney, Seattle, Washing-

ton, for the defendant-appellee.

OPINION

PAEZ, Circuit Judge:

In this First Amendment retaliation case, Richard Clair-

mont 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 company that provides domestic vio-

lence 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 Pickering1 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 sum-

mary 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 con-

clude, 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.

1

Pickering v. Bd. of Educ., 391 U.S. 568 (1968).

CLAIRMONT v. SOUND MENTAL HEALTH 1027

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 per-

petrator 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 Treat-

ment 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 Treat-

ment 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 ser-

vices 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

2

The court may defer prosecution of defendants accused of a domestic

violence offense under a stipulated order of continuance, provided that the

defendant voluntarily completes a Treatment program and complies with

other court-ordered conditions. Wash. Rev. Code § 26.50.150; Wash.

Admin. Code § 388-60.

1028 CLAIRMONT v. SOUND MENTAL HEALTH

the Municipal Court probation staff as needed. The contract

specifically characterized SMH as an “independent contrac-

tor.”

On November 8, 2007, Clairmont was subpoenaed to tes-

tify as an expert witness in a hearing on behalf of a criminal

defendant who was enrolled in a Treatment program with a

different organization. The Treatment organization had termi-

nated the pre-trial criminal defendant from the program pre-

maturely, 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 sta-

tus 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 defen-

dant’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 testi-

mony 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 inform-

ing Clairmont of his termination stated, in pertinent part:

Sound Mental Health has very recently received fur-

ther 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 coordina-

tion and [to] restore confidence in your management

of the program with the probation unit have been

CLAIRMONT v. SOUND MENTAL HEALTH 1029

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 begin-

ning immediately. This leaves SMH with no option

but to terminate your employment effective today

....

In April 2008, Clairmont filed suit against SMH and Wil-

son 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

3

Clairmont settled his claims against SMH, which resulted in dismissal

of his suit against SMH.

4

We review de novo a grant of summary judgment on the basis of quali-

fied immunity. Elder v. Holloway, 510 U.S. 510, 516 (1994). In determin-

ing whether summary judgment was appropriate, we must view the

evidence in the light most favorable to the non-moving party. Huppert v.

City of Pittsburgh, 574 F.3d 696, 701 (9th Cir. 2009).

1030 CLAIRMONT v. SOUND MENTAL HEALTH

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 termi-

nated 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 (1972) (alteration in orginal) (quoting Speiser

v. Randall, 357 U.S. 513, 526 (1958)).

In reviewing the district court’s legal conclusion that Wil-

son is entitled to qualified immunity, we apply the familiar

analytical framework laid out in Saucier v. Katz, 533 U.S. 194

(2001), modified by Pearson v. Callahan, 129 S. Ct. 808

(2009). Under Saucier, whether a government official is enti-

tled to qualified immunity is a two-part inquiry: (1) whether

the facts alleged, taken in the light most favorable to the party

Clairmont also challenges (1) the denial of his motion to strike certain

deposition testimony, and (2) the grant of Wilson’s motion to amend her

answer. First, in light of our conclusion that Wilson is not entitled to quali-

fied immunity, we hold that the denial of Clairmont’s motion to strike is

moot. We therefore dismiss Clairmont’s appeal of this issue. Second,

because Clairmont cannot establish that he was prejudiced, we reject

Clairmont’s challenge to the order granting leave to amend. Owens v. Kai-

ser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). Accord-

ingly, we affirm the district court’s ruling granting Wilson’s motion to

amend.

CLAIRMONT v. SOUND MENTAL HEALTH 1031

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. 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

[1] Before addressing whether Clairmont has demonstrated

that Wilson violated his constitutional rights, we must first

determine whether Clairmont should be considered a public

employee or a private citizen. “[T]he State has interests as an

employer in regulating the speech of its employees that differ

significantly from those it possesses in connection with regu-

lation of the speech of the citizenry in general.” Pickering,

391 U.S. at 568. This is because the government, as an

employer, has an interest “in promoting the efficiency of the

public services it performs through its employees.” Id. As a

result, “a governmental employer may impose certain

restraints on the speech of its employees, restraints that would

be unconstitutional if applied to the general public.” City of

San Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam).

When a plaintiff is a public employee, we apply a test that

balances the government’s legitimate administrative interests

as an employer against the employee’s interests in free

speech, to determine whether the government has violated the

employee’s First Amendment right to speak freely. See id.

Accordingly, in evaluating whether a plaintiff should be con-

sidered a public employee, we consider whether the relation-

ship between the parties is analogous to that between an

employer and employee and whether the rationale for balanc-

ing the government’s interests in efficient performance of

public services against public employees’ speech rights

applies. CarePartners, LLC v. Lashway, 545 F.3d 867, 881

(9th Cir. 2008) (citing Blackburn v. City of Marshall, 42 F.3d

1032 CLAIRMONT v. SOUND MENTAL HEALTH

925, 932-34 (5th Cir. 1995)), cert. denied, 129 S. Ct. 2382

(2009).

[2] An independent contractor who provides services to the

government is generally treated like a public employee for

purposes of determining whether the contractor has alleged a

violation of his First Amendment rights. Bd. of Cnty.

Comm’rs. v. Umbehr, 518 U.S. 668, 673-74 (1996). In

Umbehr, the Court noted the similarities between an indepen-

dent contractor and a public employee, recognizing both an

independent contractor’s interests in financially valuable gov-

ernment contract work and the government’s need to be free

to terminate an independent contractor (1) to respond to poor

performance; (2) to improve efficiency, efficacy, and respon-

siveness; and (3) to prevent the appearance of corruption. Id.

at 674. Recognizing that independent contractors are pro-

tected by the First Amendment from retaliatory government

action, the Court held that “the Pickering test, determines the

extent of their protection.” Id. at 673. Thus, “[w]hen a busi-

ness vendor operates under a contract with a public agency,

we analyze its First Amendment retaliation claim under

§ 1983 using the same basic approach that we would use if the

claim had been raised by an employee of the agency.” Alpha

Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir.

2004).

Clairmont was not employed by the Municipal Court; he

worked for SMH, a private company. Therefore, it is not

immediately obvious whether he should be treated as a public

employee, an independent contractor, or as a private citizen.

Clairmont argues that, because he was not employed by the

Municipal Court, he should be treated as a private citizen. As

Clairmont notes, although the Probation Unit relies on the

information it receives from Treatment providers, it provides

no direct funding to these organizations, nor does it have con-

trol over the certification, programming, hiring, or firing by

the various Treatment providers. There is also no evidence in

the record that there was any obligation or even authorization

CLAIRMONT v. SOUND MENTAL HEALTH 1033

for Wilson to threaten SMH that the Probation Unit would

stop making referrals if management did not make the

changes that she wanted, such as removing Clairmont from

his position.5 As Clairmont points out, under the applicable

regulation, the authority to investigate complaints against

Treatment providers and to impose sanctions rests with the

Department of Social and Health Services, not the Probation

Unit. Wash. Admin. Code § 388-60-0615. Thus, under this

regulation, if Wilson had concerns about SMH’s Treatment

program, she could have contacted the Department of Social

and Health Services officials and asked them to conduct an

investigation.

Clairmont argues that SMH, like other Treatment provid-

ers, is simply a licensee that is regulated by the state. This

argument might have some force were it not for the unique

relationship between the Municipal Court and SMH.

Although SMH was licensed by the state as a Treatment pro-

vider, and listed as a provider of such services, it offered its

services at the courthouse and maintained a close relationship

with representatives from the Probation Unit. Under the terms

of its contract with the Municipal Court, SMH “provide[d]

screening and referral case management and consultation to

the Probation Unit.” SMH was also required to provide “staff

coverage in the court Resource Center 40 hours per week.”

Further, “[a]ll SMH staff [had to] submit a monthly report . . .

to document the number of participant’s [sic] served, direct

5

Wilson argues that she had an obligation to contact SMH when she

became concerned about Clairmont’s testimony. She relies on the Wash-

ington Supreme Court’s opinion in Hertog v. City of Seattle, 979 P.2d 400

(Wash. 1999) (en banc), which held that probation counselors have a duty

to protect the public from reasonably foreseeable danger resulting from the

dangerous propensities of probationers under their supervision. Wilson’s

reliance on Hertog is misplaced; the fact that Wilson might be obligated

to monitor carefully the defendants under the Probation Unit’s supervision

does not turn the Probation Unit’s relationship with all of the defendants’

service-providers into an employer-employee relationship for purposes of

First Amendment analysis.

1034 CLAIRMONT v. SOUND MENTAL HEALTH

services rendered, number of service hours, and linkages to

other court and community based services.” The contract fur-

ther provided that SMH’s work “shall, at all times, be subject

to the City’s [through the Municipal Court] general review

and approval.” Finally, as noted above, the contract character-

ized the relationship between SMH and the Municipal Court

as “that of an independent contractor.”

[3] Clairmont was not a signatory to the contract, but SMH

could not provide Treatment services without certified indi-

vidual providers like Clairmont. Although Clairmont was not

a Municipal Court employee, given the nature of the relation-

ship between the court and SMH, the nature of the services

provided by SMH, and Clairmont’s role in the provision of

such services, we conclude that his relationship to the Munici-

pal Court was analogous to that of an employer and

employee. Further, given the Probation Unit’s need to ensure

that SMH’s services were properly provided to court-ordered

Treatment participants, the balance tips in favor of treating

Clairmont as a public employee for purposes of determining

whether he has alleged a viable First Amendment retaliation

claim. We therefore review Clairmont’s First Amendment

retaliation claim using the Pickering balancing test set forth

below.

B. Under the public employee balancing test, Clair-

mont has alleged a First Amendment retaliation

claim

[4] “It is well settled that the state may not abuse its posi-

tion as employer to stifle ‘the First Amendment rights [its

employees] would otherwise enjoy as citizens to comment on

matters of public interest.’ ” Eng v. Cooley, 552 F.3d 1062,

1070 (9th Cir. 2009) (quoting Pickering, 391 U.S. at 568),

cert. denied, 130 S. Ct. 1047 (2010). In applying Pickering’s

balancing test, we employ a sequential five-step inquiry to

determine whether a public employee has alleged a violation

CLAIRMONT v. SOUND MENTAL HEALTH 1035

of his First Amendment rights as a result of government retal-

iation for his speech:

(1) whether the plaintiff spoke on a matter of public

concern; (2) whether the plaintiff spoke as a private

citizen or public employee; (3) whether the plain-

tiff ’s protected speech was a substantial or motivat-

ing factor in the adverse employment action; (4)

whether the state had an adequate justification for

treating the employee differently from other mem-

bers of the general public; and (5) whether the state

would have taken the adverse employment action

even absent the protected speech.

Id. The plaintiff bears the burden of proof on the first three

areas of inquiry, but the burden shifts to the government to

prove the last two. Id. at 1071. If the plaintiff fails to carry his

burden at any step, qualified immunity should be granted to

the defendant. Id. at 1070-72. Here, because Clairmont ulti-

mately prevails at all five steps, we conclude that he has

alleged sufficient facts to establish that he was terminated in

violation of his First Amendment rights.

1. Clairmont’s speech was on a matter of public

concern

“We have defined the scope of the public concern element

broadly and adopted a liberal construction of what an issue of

public concern is under the First Amendment.” Desrochers v.

City of San Bernardino, 572 F.3d 703, 709-10 (9th Cir. 2009)

(internal quotation marks and citations omitted). We have

specifically rejected “rigid multi-part tests” and refused to

“articulate[ ] a precise definition of public concern.” Id. at 709

(internal quotation marks omitted). Rather, we rely on the

framework set forth in Connick v. Myers, which reviews “the

content, form, and context of a given statement, as revealed

by the whole record.” 461 U.S. 138, 147-48 (1983) (emphasis

added); Eng, 552 F.3d at 1070. On the basis of this “general-

1036 CLAIRMONT v. SOUND MENTAL HEALTH

ized analysis of the nature of the speech,” we can place the

speech on a continuum ranging from matters of public con-

cern to matters of purely personal concern. See Desrochers,

572 F.3d at 709. On one end, there is speech that relates to

matters of concern to the community, including political or

social matters. Eng, 552 F.3d at 1070. On the other end, there

are individual grievances and personnel disputes that are irrel-

evant to the public’s evaluation of governmental agencies. Id.

Clairmont argues that, regardless of the subject matter,

truthful testimony given pursuant to a subpoena should be

considered per se a matter of public concern. As we detailed

in Alpha Energy Savers, our sister circuits are split on

“whether the context of a courtroom appearance raises a pub-

lic employee witness’s testimony to the level of public con-

cern, regardless of its content.” 381 F.3d at 926 n.6. There, we

declined to decide whether a public employee’s testimony

was inherently a matter of public concern. Id.

So too here, we need not decide whether truthful testimony

given pursuant to a subpoena is per se a matter of public con-

cern because in this case, the content, form, and context of

Clairmont’s testimony establish that his speech related to a

matter of public concern.

“First and foremost, we consider the content of the speech

the greatest single factor in the Connick inquiry.” Desrochers,

572 F.3d at 710 (internal quotation marks and citation omit-

ted). Speech that deals with the functioning of government is

a “ ‘matter[ ] of inherent public concern.’ ” Eng, 552 F.3d at

1072 (quoting Johnson v. Multnomah County, 48 F.3d 420,

425 (9th Cir. 1995)). In addition, speech that helps the public

evaluate the performance of public agencies addresses a mat-

ter of public concern. Id. at 1073 (citing Freitag v. Ayers, 468

F.3d 528, 545 (9th Cir. 2006)). Thus, for example, speech

alleging that the government engaged in discrimination or

other civil rights violations is on a matter of public concern.

See, e.g., Alpha Energy Savers, 381 F.3d at 925. Finally,

CLAIRMONT v. SOUND MENTAL HEALTH 1037

speech discussing “threats to public safety” is “of vital inter-

est to citizens,” and speech exposing policies that put people

in jeopardy is “ ‘inherently of interest to the public.’ ” Hyland

v. Wonder, 972 F.2d 1129, 1137 (9th Cir. 1992) (quoting Roth

v. Veteran’s Admin., 856 F.2d 1401, 1406 (9th Cir. 1988)).

[5] Here, Clairmont’s testimony dealt with the perfor-

mance of an independent Treatment provider who had been

treating a criminal defendant as part of a court-ordered pro-

gram. Clairmont gave expert testimony regarding how he

would have dealt with a hypothetical Treatment client who

had engaged in the type of conduct the defendant allegedly

committed. Clairmont’s testimony thus dealt with the ways in

which Treatment programs treat charged and convicted

domestic violence offenders, which ultimately implicates the

Municipal Court’s attempts through the Probation Unit to pro-

tect victims of domestic violence—unquestionably a matter of

public concern. See Hyland, 972 F.2d at 1137; cf. Jones v.

Union County, 296 F.3d 417, 426 (6th Cir. 2002) (stating that

“[T]here is no question that combating domestic violence is

a matter of public concern”); Rendish v. City of Tacoma, 123

F.3d 1216, 1224 (9th Cir. 1997) (“A municipal court judge’s

allegedly inappropriate remarks made in domestic violence

cases implicate the public’s interest in the impartial adminis-

tration of the courts.”).

Moreover, it is irrelevant to our analysis whether Clair-

mont’s testimony influenced the judge’s ultimate determina-

tion regarding revocation. Robinson v. York, 566 F.3d 817,

823 (9th Cir. 2009), cert. denied, 130 S. Ct. 1047 (2010). Tes-

timony that addresses a matter of public concern need not

have an effect on the result of the litigation, it need only con-

tribute in some way to the resolution of a proceeding in which

a matter of public concern is at issue. Id.

[6] The form that the speech in question takes is another

factor relevant to whether speech addressed a matter of public

concern. Desrochers, 572 F.3d at 714-15, 715 n.17. Although

1038 CLAIRMONT v. SOUND MENTAL HEALTH

not dispositive, a small or limited audience “ ‘weigh[s]

against [a] claim of protected speech.’ ” Desrochers, 572 F.3d

at 714 (alteration in original) (quoting Roe v. City of San

Francisco, 109 F.3d 578, 585 (9th Cir. 1997)); see also Gar-

cetti v. Ceballos, 547 U.S. 410, 420 (2006). For example,

when speech takes the form of an internal employee griev-

ance, and is not presented to the public, the form “cuts against

a finding of public concern.” Desrochers, 572 F.3d at 715.

Here, the form of Clairmont’s speech was subpoenaed testi-

mony, which was presented in a public courtroom. Thus, the

form of Clairmont’s speech supports a determination that the

speech was on a matter of public concern.

Finally, we consider the context of Clairmont’s testimony

and examine the point of his speech. Id. When a public

employee’s contested speech occurs in the context of an inter-

nal power struggle or personal employment grievance, this

will militate against a finding of public concern. Id. Sworn

courtroom testimony, however, will constitute speech on a

matter of public concern when it “bring[s] to light potential or

actual discrimination, corruption, or other wrongful conduct

by government agencies or officials.” Alpha Energy Savers,

381 F.3d at 925 (citing Lytle v. Wondrash, 182 F.3d 1083,

1087-88 (9th Cir. 1999); Rendish, 123 F.3d at 1223-24).

Indeed, in Alpha Energy Savers, we held that a public

employee’s testimony on behalf of a co-worker’s private

grievance against his union was on a matter of public concern

when he alleged that the union breached its duty of fair repre-

sentation by failing to investigate and pursue a grievance

against the county for employment discrimination on the basis

of race and age. Id. We concluded that, irrespective of the

motivation behind the speech in question, “[s]o long as either

the public employee’s testimony or the underlying lawsuit

meets the public concern test, the employee may, in accord

with Connick, be afforded constitutional protection against

any retaliation that results.” Alpha Energy Savers, 381 F.3d at

927.

CLAIRMONT v. SOUND MENTAL HEALTH 1039

[7] Here, the speech at issue was Clairmont’s expert testi-

mony at a criminal defendant’s revocation hearing. His testi-

mony was offered to help the judge decide whether to allow

the defendant to continue his Treatment. Moreover, Clairmont

spoke not because he volunteered to do so, but because he

was subpoenaed. There is no record evidence that Clairmont

was motivated by anything other than a desire to comply with

the subpoena and to testify truthfully as required by law.

In sum, we conclude that the content, form, and context of

Clairmont’s testimony demonstrate that his speech was on a

matter of public concern. We thus proceed to step two.

2. Clairmont’s testimony was not part of his official

duties

[8] A public employee’s speech is not protected by the

First Amendment when it is part of the employee’s official

job duties. Garcetti, 547 U.S. at 426. Whether an employee’s

disputed speech is part of his official duties presents a mixed

question of fact and law. Posey v. Lake Pend Oreille Sch.

Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). For pur-

poses of considering Wilson’s claim to qualified immunity at

the summary judgment stage, we resolve any material factual

disputes in Clairmont’s favor. Huppert v. City of Pittsburg,

574 F.3d 696, 701 (9th Cir. 2009).

Here, SMH did not ask Clairmont to testify; he testified

because he was subpoenaed by a third party. Moreover, the

only evidence in the record regarding Clairmont’s official job

duties is Clairmont’s “Job Description” attached to Wilson’s

motion for summary judgment.6 Clairmont’s job description

did not include testifying as an expert witness in court pro-

ceedings. Indeed, there is nothing in the job description about

testifying at all, even on behalf of his own clients.

6

At his deposition, Clairmont reviewed the job description and verified

that it “generally describe[d]” his job duties at SMH.

1040 CLAIRMONT v. SOUND MENTAL HEALTH

Wilson argues that it is not unusual for a domestic violence

counselor to testify at a court hearing and supports her argu-

ment by referring to another domestic violence counselor who

testified at the same hearing as Clairmont. As Clairmont

points out, the fact that other domestic violence counselors

from different organizations might testify at court hearings is

irrelevant to whether his official job duties required him to

testify at such hearings. In addition, the other counselor stated

that he testified only because he was ordered to do so by the

judge. Finally, Wilson admits in her summary judgment dec-

laration that “[the probation unit counselor] found it unusual

that Clairmont was testifying in [a] hearing that did not

involve a person he was treating.”

Wilson also argues that Clairmont nonetheless testified as

part of his official duties because the content of Clairmont’s

testimony regarding his treatment philosophy described the

nature of his duties as a contract counselor for SMH. In Gar-

cetti, however, the Supreme Court held that even if the con-

tent of an employee’s speech concerned the subject matter of

his employment, this fact was not dispositive of the employ-

ee’s First Amendment retaliation claim. 547 U.S. at 421. “As

the Court noted in Pickering: ‘Teachers are, as a class, the

members of a community most likely to have informed and

definite opinions as to how funds allotted to the operation of

the schools should be spent. Accordingly, it is essential that

they be able to speak out freely on such questions without fear

of retaliatory dismissal.’ ” Id. (quoting Pickering, 391 U.S. at

572); see also Eng, 552 F.3d at 1073 (holding that Eng’s ver-

sion of the facts plausibly showed that he spoke as a private

citizen because, although he learned about the subject matter

of his speech in the course of his work, he had no official duty

to complain about it to the relevant agency); cf. Huppert, 574

F.3d at 707-08 (granting qualified immunity because testify-

ing in court is part of a California police officer’s official

duties).

[9] Although Clairmont testified about treating a hypothet-

ical Treatment client, there is no evidence that testifying in

CLAIRMONT v. SOUND MENTAL HEALTH 1041

court, whether or not as an expert, was a part of his official

duties at SMH. When viewed in the light most favorable to

Clairmont, Huppert, 574 F.3d at 701, the record evidence sup-

ports a finding that Clairmont was not testifying as part of his

official duties. We therefore continue to step three of the anal-

ysis.

3. Clairmont’s testimony was a substantial or

motivating factor in his termination

[10] The third inquiry—whether Clairmont’s testimony

was a substantial or motivating factor in his termination—“is

purely a question of fact. . . . [W]e must assume the truth of

the plaintiff ’s allegations.” Eng, 552 F.3d at 1071. The par-

ties dispute whether Clairmont was fired as a result of Wil-

son’s comments to Clairmont’s SMH supervisors about his

testimony, or whether his termination resulted from com-

plaints about Clairmont’s performance made by Wilson long

before Clairmont testified. Several emails in the record that,

viewed in the light most favorable to Clairmont, Huppert, 574

F.3d at 701, reasonably could support a finding that Clairmont

was fired because of Wilson’s comments to his supervisor

about Clairmont’s subpoenaed testimony. We therefore pro-

ceed to step four.

4. Wilson failed to give an adequate justification for

treating Clairmont differently than other members

of the general public

The government bears the burden of showing that under the

Pickering balancing test, “the relevant government entity had

an adequate justification for treating the employee differently

from any other member of the general public.” Garcetti, 547

U.S. at 418. “Although the Pickering balancing inquiry is ulti-

mately a legal question, like the private citizen inquiry, its res-

olution often entails underlying factual disputes.” Eng, 552

F.3d at 1071. As we have emphasized, we must view all dis-

1042 CLAIRMONT v. SOUND MENTAL HEALTH

puted facts in the light most favorable to Clairmont. Huppert,

574 F.3d at 701.

[11] Eng holds specifically that the government must

establish that its “legitimate administrative interests outweigh

the employee’s First Amendment rights.” Id. (emphasis

added). These interests include promoting efficiency and

integrity in the discharge of official duties and maintaining

proper discipline in the public service. Connick, 461 U.S. at

150-51. Because Clairmont’s speech is examined in the con-

text of independent contractors, this test is “adjusted to weigh

the government’s interests as contractor rather than as

employer.” Umbehr, 518 U.S. at 673. Cases that analyze

whether the government’s administrative interests outweighed

the plaintiff ’s right to engage in protected speech examine

disruption resulting both from the act of speaking and from

the content of the speech. Here, we conclude that Wilson has

not established disruption of either kind sufficient to outweigh

Clairmont’s First Amendment rights.

In examining whether a public employee’s act of speaking

disrupted the workplace, we review “the manner, time, and

place in which” the employee’s speech took place. Connick,

461 U.S. at 152. In Connick, the fact that the employee’s

speech took place at the office supported the Court’s determi-

nation that the speech disrupted the efficiency of the work-

place. Id. at 153. The Court contrasted the situation with that

in Pickering, where the employee’s speech occurred during

the employee’s free time away from the office. Id. Here,

Clairmont did not speak at the workplace during a Treatment

session or at an office meeting; rather, he testified in a crimi-

nal hearing concerning a person he was not treating.

Relatedly, we consider whether Clairmont’s testimony

impeded his ability to perform his job duties. See id. at 151.

Perhaps because Wilson earlier argued that testifying was one

of Clairmont’s official job responsibilities, Wilson makes no

argument and puts forth no evidence that Clairmont’s act of

CLAIRMONT v. SOUND MENTAL HEALTH 1043

testifying at the revocation hearing prevented him from fulfill-

ing his other work responsibilities.

Wilson does argue, however, that the content of Clair-

mont’s testimony interfered with the working relationship

between SMH and the Probation Unit. In Connick, the Court

held that “[w]hen close working relationships are essential to

fulfilling public responsibilities, a wide degree of deference to

the employer’s judgment is appropriate.” Id. at 151-52. There,

the Court characterized the public employee’s speech as

“causing a mini-insurrection” and as “an act of insubordina-

tion which interfered with working relationships.” Id. at 151.

To prove that an employee’s speech interfered with working

relationships, the government must demonstrate “actual,

material and substantial disruption, or reasonable predictions

of disruption in the workplace.” Robinson, 566 F.3d at 824

(internal quotation marks omitted). And if there are material

factual disputes, we resolve all factual disputes in favor of the

non-moving party, provided that there is evidence that reason-

ably would support such a finding. See CarePartners, 545

F.3d at 875 n.3 (citing Scott v. Harris, 550 U.S. 372, 379-80

(2007)).

[12] Here, although Wilson alleges that Clairmont’s testi-

mony disrupted the Probation Unit’s workplace, she cites no

record evidence to support the allegation. We note, however,

that in support of her motion for summary judgment, Wilson

filed a declaration in which she stated that the Probation

Unit’s staff aired some concerns about the content of Clair-

mont’s testimony at the monthly staff meeting held the day

after Clairmont testified. In speaking to Clairmont’s supervi-

sor, Wilson characterized her staff as distrustful of Clairmont

because “[his] testimony indicated that [he] was still having

the same problems I had discussed with [him earlier].” In

other words, Wilson appears to argue that Clairmont’s testi-

mony was disruptive, because it confirmed his Treatment phi-

losophy, which was the basis for his alleged performance

issues.

1044 CLAIRMONT v. SOUND MENTAL HEALTH

We must construe all evidence in the light most favorable

to Clairmont. Huppert, 574 F.3d at 701. As noted above,

Clairmont produced evidence that disputes Wilson’s allega-

tions of prior poor performance. In addition, Clairmont argues

that the Probation Unit’s expressed distrust is a result not of

what he said (or any alleged prior poor performance), but

rather is a result of the fact that he testified on behalf of a

criminal defendant and thus on the opposite side of the Proba-

tion Unit. We agree with the Fifth Circuit’s statement that “[a]

concept of loyalty that sweeps so broadly is not one that may

legitimately trump compelling interests in speaking on mat-

ters of public concern.” Kinney v. Weaver, 367 F.3d 337, 366

(5th Cir. 2004) (en banc). More importantly, there is no evi-

dence in the summary judgment record substantiating Wil-

son’s allegations of disruption in the workplace.

[13] In balancing Clairmont’s First Amendment right to

testify truthfully pursuant to a subpoena against the justifica-

tions set forth above, we hold that the weak and largely

unsupported administrative interests advanced by Wilson do

not outweigh Clairmont’s First Amendment free speech

rights. Having concluded that Wilson is not entitled to sum-

mary judgment at step 4, we proceed to step 5.

5. Wilson failed to show that Clairmont would have

been terminated even absent his testimony

[14] “[I]f the government fails the Pickering balancing

test, it alternatively bears the burden of demonstrating that it

‘would have reached the same [adverse employment] decision

even in the absence of the [employee’s] protected conduct.’ ”

Eng, 552 F.3d at 1072 (alteration in original) (quoting

Thomas, 379 F.3d at 808).

This question relates to, but is distinct from, the

plaintiff ’s burden to show the protected conduct was

a substantial or motivating factor. It asks whether the

“adverse employment action was based on protected

CLAIRMONT v. SOUND MENTAL HEALTH 1045

and unprotected activities,” and if the state “would

have taken the adverse action if the proper reason

alone had existed.”

Id. (quoting Knickerbocker v. City of Stockton, 81 F.3d 907,

911 (9th Cir. 1996)). This inquiry is “purely a question of

fact” and “we must therefore once again assume the truth of

the plaintiff ’s allegations.” Id.

[15] Here, Clairmont submitted deposition testimony,

emails among staff at SMH, and his termination letter, which

suggest it was only after Clairmont’s testimony and Wilson’s

subsequent threats of reprisal that SMH decided to terminate

Clairmont. Because “[i]mmunity should be granted on this

ground only if the state successfully alleges, without dispute

by the plaintiff,” that it would have taken the adverse action

“even absent the questioned speech,” we conclude that, in

light of all the record evidence, Wilson has not met her bur-

den on this issue and has, therefore, not demonstrated that she

is entitled to summary judgment on this alternative ground.

See id.

[16] In sum, on the basis of the summary judgment record,

we hold that Clairmont has presented sufficient evidence to

establish that his speech was constitutionally protected and

that Wilson violated his First Amendment rights. Therefore,

we must also examine whether it was clearly established that

Clairmont’s speech was constitutionally protected and that a

reasonable official in Wilson’s position would have under-

stood that her actions would violate Clairmont’s First Amend-

ment rights at the time the alleged retaliation took place.

C. It was clearly established that Clairmont’s speech

was protected

As noted earlier, even where a plaintiff has presented suffi-

cient evidence to show that his constitutional rights were vio-

lated, a government official may still be entitled to qualified

1046 CLAIRMONT v. SOUND MENTAL HEALTH

immunity. Saucier, 533 U.S. at 201. “If the right was not

clearly established at the time of the violation, the official is

entitled to qualified immunity.” CarePartners, 545 F.3d at

876 (citing Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir.

2007)). Whether the law was clearly established is an objec-

tive standard; the defendant’s “subjective understanding of

the constitutionality of his or her conduct is irrelevant.” Fogel

v. Collins, 531 F.3d 824, 833 (9th Cir. 2008). Thus, we must

determine only whether, in light of the existing law in 2007,

a reasonable Manager of the Probation Services would have

understood that her actions violated Clairmont’s First Amend-

ment right to free speech. See id.

The plaintiff bears the burden to show that the contours of

the right were clearly established. However, “ ‘closely analo-

gous preexisting case law is not required to show that a right

was clearly established.’ ” Robinson, 566 F.3d at 826 (empha-

sis added) (quoting Hufford v. McEnaney, 249 F.3d 1142,

1148 (9th Cir. 2001)). While “there must be some parallel or

comparable factual pattern[,] . . . the facts of already decided

cases do not have to match precisely the facts with which [the

government employer] is confronted.” Fogel, 531 F.3d at 833;

see also Rivero v. City of San Francisco, 316 F.3d 857, 865

(9th Cir. 2002) (stating that to defeat qualified immunity, a

plaintiff must show that two legal propositions were clearly

established: (1) that the speech was on a matter of public con-

cern, and (2) that the employee’s speech interests outweighed

the government’s legitimate administrative interests); cf.

Moran v. Washington, 147 F.3d 839, 843 (9th Cir. 1998)

(rejecting as overly abstract a district court’s determination

that a constitutional right was clearly established because

“[d]ismissal based upon protected speech is impermissible”).

Because there were cases that would have alerted a reasonable

person in Wilson’s position that it would be unlawful to retali-

ate against an employee for having testified in a criminal pro-

ceeding pursuant to a subpoena, we conclude that Clairmont’s

First Amendment rights were clearly established at the time

of his alleged retaliatory firing.

CLAIRMONT v. SOUND MENTAL HEALTH 1047

[17] In Robinson, we held that, by 2005, it was clearly

established that a public-employee witness had a First

Amendment right to testify in a class-action lawsuit in which

discrimination was at issue. 566 F.3d at 826. We so concluded

because (1) the Supreme Court had already decided Picker-

ing, “establishing that the First Amendment protects

employee speech on matters of legitimate public concern,”

and (2) it was already clearly established that “only a real, not

imagined, disruption might outweigh the expressive interests

of the employee.” Id. (internal quotation marks omitted). In

addition, we noted that the type of testimony given by Robin-

son had been held to be a matter of public concern and that

the justification given by the employer for the alleged retalia-

tion had been held to be insufficient to justify retaliation for

protected speech. Id.

[18] As noted in Part II.B.1, above, we have held previ-

ously that threats to public safety and the impartial judicial

administration of domestic violence cases are issues of public

concern. Rendish, 123 F.3d at 1224; Hyland, 972 F.2d at

1137. And in Robinson, we held that, as early as 2005, it was

clearly established that a public employee’s voluntary testi-

mony relating to discrimination was a matter of public con-

cern. 566 F.3d at 826. In light of our then existing case law,

we conclude that, in 2007, it was clearly established that

Clairmont’s subpoenaed testimony related to an issue of pub-

lic concern.

In addition, as stated in Robinson, it was clearly established

by 2005 that for a government employer’s legitimate adminis-

trative interests to outweigh an employee’s right to engage in

protected speech, the disruption had to be “real, not imag-

ined.” Wilson has not established that there was any disrup-

tion other than some concerns aired at a staff meeting. Indeed,

Wilson’s own declaration suggests that it was Clairmont’s

alleged poor performance that disrupted his working relation-

ship with the Probation Unit and that Clairmont’s testimony

merely confirmed pre-existing concerns.

1048 CLAIRMONT v. SOUND MENTAL HEALTH

[19] Wilson’s claim to qualified immunity can succeed

only if we take the evidence in the light most favorable to her

and draw all competing inferences in her favor; this is fatal to

her argument. When we resolve all factual disputes and draw

all reasonable inferences in Clairmont’s favor, as we must,

there is no support for Wilson’s argument that Clairmont’s

testimony caused workplace disruption the quelling of which

outweighed Clairmont’s interest in engaging in protected

speech. It was clearly established at the relevant time that

Wilson’s proffered evidence of disruption in the workplace

was woefully insufficient. Robinson, 566 F.3d at 826 (holding

that factual disputes about the extent of the workplace disrup-

tion and about whether the justifications asserted by the

defendant were pretextual precluded a finding of disturbance

sufficient to outweigh a public employee’s right to engage in

protected speech). We therefore agree with Clairmont that the

law was clearly established at the time of his alleged retalia-

tory firing.

III. Conclusion

[20] For all of the above reasons, we conclude that Clair-

mont has presented sufficient evidence from which a reason-

able fact-finder could conclude that Wilson violated

Clairmont’s First Amendment rights when she played a sub-

stantial role in Clairmont’s retaliatory firing. Clairmont has

also established that his right to testify truthfully in response

to a subpoena on issues related to public safety and discrimi-

nation was clearly established at the time of his testimony and

termination. Under these circumstances, the district court

erred in concluding that Wilson was entitled to qualified

immunity. Accordingly, we reverse the district court’s grant

of summary judgment to Wilson and remand for trial.

DISMISSED in part; AFFIRMED in part; REVERSED in

part and REMANDED. Plaintiff-Appellant shall recover his

costs on appeal.