Julie Ballou v. James McElvain

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIE BALLOU, No. 20-35416

Plaintiff-Appellee,

D.C. No.

v. 3:19-cv-05002-

RBL

JAMES MCELVAIN, PhD, in his

individual and representative

capacity, OPINION

Defendant-Appellant,

and

CITY OF VANCOUVER, a municipal

corporation,

Defendant.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted May 6, 2021

Seattle, Washington

Filed September 28, 2021

2 BALLOU V. MCELVAIN

Before: Danny J. Boggs, * Marsha S. Berzon, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Berzon

SUMMARY **

Civil Rights

The panel affirmed the district court’s order denying, on

summary judgment, qualified immunity to Police Chief

James McElvain on plaintiff’s First Amendment and Equal

Protection disparate treatment claim; and held that it lacked

jurisdiction under the collateral order doctrine to resolve the

question of whether McElvain was entitled to qualified

immunity on plaintiff’s claim that she was retaliated against,

in violation of the Equal Protection Clause of the Fourteenth

Amendment, in an action brought pursuant to 42 U.S.C.

§ 1983 alleging retaliation and employment discrimination.

Plaintiff, Julie Ballou, asserted that McElvain

discriminated against her because of her gender by

intentionally subjecting her to internal affairs investigations

to preclude her eligibility for promotion and then declining

to promote her to sergeant even though she was the most

qualified candidate. The panel held that, construing all facts

and inferences in her favor, Ballou sufficiently alleged

*

The Honorable Danny J. Boggs, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BALLOU V. MCELVAIN 3

unconstitutional sex discrimination in violation of the Equal

Protection Cause of the Fourteenth Amendment. Plaintiff

established a prima facie claim for disparate treatment and

the record supported the conclusion that McElvain’s

articulated reasons for not promoting Ballou were pretextual.

The panel rejected, as profoundly mistaken, McElvain’s

argument that to state an equal protection claim, proof of

discriminatory animus alone was insufficient, and plaintiff

must show that defendants treated plaintiff differently from

other similarly situated individuals. The panel stated that the

existence of a comparator is not a prerequisite to stating a

disparate treatment claim under the Fourteenth Amendment.

The panel held that the actions alleged here were so

closely analogous to those identified in Lindsey v. Shalmy,

29 F.3d 1382, 1385-86 (9th Cir. 1994), and so clearly

covered by the focus on promotion in Bator v. State of

Hawai‘i, 39 F.3d 1021, 1028 (9th Cir. 1994), that any

reasonable officer would recognize that discriminatorily

conducting an investigation to stall a promotion as

unconstitutional under the two cases, read in combination.

McElvain was therefore not entitled to qualified immunity

on the claim that he encouraged and sustained discriminatory

investigations into Ballou’s workplace performance and

thereby denied her promotion at least in part on the basis of

sex. As Ballou’s disparate treatment claim alleged that

McElvain violated her clearly established rights under the

Equal Protection Clause, McElvain was not entitled to

qualified immunity on that claim.

The panel held that it lacked jurisdiction to consider

whether McElvain was entitled to qualified immunity on the

claim that he violated Ballou’s rights under the Equal

Protection Clause of the Fourteenth Amendment by

retaliating against her for opposing Defendants’ sex

4 BALLOU V. MCELVAIN

discrimination. The panel stated that the district court did

not deny McElvain qualified immunity on Ballou’s Equal

Protection retaliation claim because the district court had

determined that there was no clearly established law on the

constitutional issue. Because the panel’s jurisdiction under

the collateral order doctrine was limited to reviewing the

denial of qualified immunity, the panel declined to reach that

question.

Finally, the panel affirmed the denial of qualified

immunity to McElvain on Ballou’s First Amendment

retaliation claim. The panel held that Ballou’s speech

opposing sex discrimination in the workplace was inherently

speech on a matter of public concern and was clearly

protected by the First Amendment. Whether Ballou’s

protected expression actually was the but-for cause of the

adverse employment actions went to the ultimate question of

liability and needed to be resolved by the jury at trial. But it

did not bear on the question before the panel now—whether

retaliating against Ballou for that expression would, as a

matter of law, violate her clearly established constitutional

rights. Because Ballou’s factual account was not “blatantly

contradicted by the record,” the panel would not disturb the

district court’s determination that Ballou’s retaliation claims

were sufficiently supported to survive summary judgment.

COUNSEL

Daniel G. Lloyd (argued) and Sara Baynard-Cooke,

Assistant City Attorneys, City Attorney’s Office,

Vancouver, Washington, for Defendant-Appellant.

BALLOU V. MCELVAIN 5

Matthew C. Ellis (argued), Matthew C. Ellis P.C., Portland,

Oregon; Stephen L. Brischetto, Portland, Oregon; for

Plaintiff-Appellee.

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 hold that we lack

jurisdiction under the collateral order doctrine to resolve that

question.

I.

In 2017, Julie Ballou and several other Vancouver police

officers took an exam to determine eligibility for promotion

6 BALLOU V. MCELVAIN

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 V. MCELVAIN 7

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

8 BALLOU V. MCELVAIN

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.

BALLOU V. MCELVAIN 9

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

10 BALLOU V. MCELVAIN

court denied that motion in its entirety. Both McElvain and

the City of Vancouver then moved for summary judgment,

with McElvain again asserting qualified immunity. The

district court denied summary judgment on Ballou’s Equal

Protection and First Amendment claims and denied

McElvain qualified immunity on the ground that “the Equal

Protection Clause prohibits discrimination, and . . . the First

Amendment prohibits retaliation.” The district court also

denied the City’s motion for summary judgment on several

of Ballou’s Title VII and state-law claims but granted

summary judgment on her hostile-work-environment claim.

McElvain moved for reconsideration, which the district

court denied.

McElvain now appeals the denial of qualified immunity.

II.

This case comes before us as an interlocutory appeal

from a denial of summary judgment. Denials of summary

judgment are typically not appealable, as they are not final

orders. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938,

944 (9th Cir. 2017). We may, however, review orders

denying qualified immunity under the collateral order

exception to finality. Plumhoff v. Rickard, 572 U.S. 765,

771–73 (2014); Foster v. City of Indio, 908 F.3d 1204, 1209

(9th Cir. 2018) (per curiam). In such cases, the scope of our

review is “circumscribed.” Foster, 908 F.3d at 1210

(quoting George v. Morris, 736 F.3d 829, 834 (9th Cir.

2013)). Unless the plaintiff’s version of events is “blatantly

contradicted by the record, so that no reasonable jury could

believe it,” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th

Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)), we may not review the district court’s determination

that “the pretrial record was sufficient to show a genuine

issue of fact for trial,” Foster, 908 F.3d at 1210 (quoting

BALLOU V. MCELVAIN 11

Johnson v. Jones, 515 U.S. 304, 307 (1995)). We therefore

lack jurisdiction over any aspects of the present dispute that

turn on that question and instead consider only “whether the

defendant would be entitled to qualified immunity as a

matter of law, assuming all factual disputes are resolved, and

all reasonable inferences are drawn, in plaintiff’s favor.”

Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir.

2021) (alterations omitted) (quoting George, 736 F.3d

at 836); see id. at 732.

We review the denial of qualified immunity de novo.

Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). We

must affirm the district court’s denial of qualified immunity

if, resolving all factual disputes and drawing all inferences

in Ballou’s favor, McElvain’s conduct (1) violated a

constitutional right that (2) was clearly established at the

time of the violation. See Estate of Anderson, 985 F.3d

at 731; see also Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011). Conduct violates a “clearly established” right if “the

unlawfulness of the action in question [is] apparent in light

of some pre-existing law.” Benavidez v. County of San

Diego, 993 F.3d 1134, 1151–52 (9th Cir. 2021) (quoting

Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000)).

For a right to be “clearly established,” there need not be a

Supreme Court or circuit case “directly on point,” but

“existing precedent must place the lawfulness of the conduct

beyond debate.” Tobias v. Arteaga, 996 F.3d 571, 580 (9th

Cir. 2021) (alteration and internal quotation marks omitted)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590

(2018)).

A. Disparate Treatment

We first consider whether McElvain is entitled to

qualified immunity on Ballou’s claim that she was subjected

to discriminatory treatment because of her sex, in violation

12 BALLOU V. MCELVAIN

of the Equal Protection Clause of the Fourteenth

Amendment. Ballou contends that McElvain discriminated

against her because of her gender by intentionally subjecting

her to internal affairs investigations to preclude her

eligibility for promotion and then declining to promote her

to sergeant even though she was the most qualified

candidate.

i.

The district court held that Ballou had produced

sufficient evidence, including circumstantial evidence of

discriminatory intent, to preclude summary judgment on the

first qualified immunity prong, whether McElvain failed to

promote her because of sex. We agree that, construing all

facts and inferences in her favor, Ballou has sufficiently

alleged unconstitutional sex discrimination.

The central inquiry in an Equal Protection Clause claim

is whether a government action was motivated by a

discriminatory purpose. See Ave. 6E Invs., LLC v. City of

Yuma, 818 F.3d 493, 504 (9th Cir. 2016). A plaintiff may

establish discriminatory purpose by “‘produc[ing] direct or

circumstantial evidence demonstrating that a discriminatory

reason more likely tha[n] not motivated’ the defendant and

that the defendant’s actions adversely affected the plaintiff

in some way.” Id. (quoting Pac. Shores Props., LLC v. City

of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)).

Where direct evidence is unavailable, plaintiffs can, and

frequently do, rely on the burden-shifting framework set out

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

as a way of channeling inquiry into the available

circumstantial evidence. That framework originated in cases

interpreting Title VII of the Civil Rights Act of 1964, which

prohibits employment discrimination based on “race, color,

religion, sex, or national origin,” 42 U.S.C. § 2000e-2, but

BALLOU V. MCELVAIN 13

its use has since expanded to other discrimination statutes

and to constitutional equal protection, see, e.g., Anthoine v.

N. Cent. Cntys. Consortium, 605 F.3d 740, 753 (9th Cir.

2010).

Under McDonnell Douglas, a plaintiff may make out a

prima facie case of discrimination by demonstrating that

“(1) she is a member of a protected class; (2) she was

qualified for her position; (3) she experienced an adverse

employment action; and (4) similarly situated individuals

outside her protected class were treated more favorably.”

Freyd v. Univ. of Oregon, 990 F.3d 1211, 1228 (9th Cir.

2021) (alterations adopted) (quoting Fonseca v. Sysco Food

Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004))

(applying McDonnell Douglas in the Title VII context).

Once a plaintiff has established a prima facie case, the

burden shifts to the defendant to “show a legitimate,

nondiscriminatory reason for the challenged actions.” Id. If

he is able to do so, the burden “returns to the plaintiff, who

must show that the proffered nondiscriminatory reason is

pretextual.” Id.

Ballou has established a prima facie claim for disparate

treatment. It is undisputed that once Ballou was listed

among the top three candidates on the sergeant list, she was

eligible for promotion but was passed over for that

promotion several times in favor of male candidates. One

male officer, Ruder, was promoted to the same rank sought

by Ballou—sergeant—despite having been investigated for

precisely the same policy violation for which Ballou was

investigated. Two other officers were promoted to corporal,

a lower rank than sergeant, despite arguably more egregious

violations. The record also indicates that Ballou was

subjected to repeated internal affairs investigations for

failure to write up reports on incidents, while male officers

14 BALLOU V. MCELVAIN

were not routinely subjected to investigations for the same

conduct, and that the investigations became a purported

reason she was not promoted. Drawing all facts and

inferences in her favor, Ballou has readily established the

“minimal” degree of proof required to establish a prima facie

case for discrimination. Wallis v. J.R. Simplot Co., 26 F.3d

885, 889 (9th Cir. 1994) (applying McDonnell Douglas in

the Title VII context).

As Ballou has established a prima facie case, the burden

shifts to McElvain to articulate “legitimate,

nondiscriminatory reason[s]” for the actions Ballou

challenges. Freyd, 990 F.3d at 1228. In his motion for

summary judgment, McElvain asserted that Ballou was not

promoted because she “failed a basic function of policing,

gave conflicting explanations for her actions, and was soon

under investigation for allegations of the identical

misconduct.” Ballou does not dispute that these reasons, if

true and complete, would be legitimate, nondiscriminatory

bases for non-promotion, so we shall assume that they are.

At the third McDonnell Douglas step, Ballou presented

evidence that McElvain’s stated reasons for not promoting

her were “false” and “based on sex stereotypes.”

“Determining whether invidious discriminatory purpose was

a motivating factor” for a government action “demands a

sensitive inquiry into” the available evidence, including the

“background” and “specific sequence of events leading up

to the challenged decision,” “[d]epartures from the normal

procedural sequence,” and “contemporary statements” by

the decision maker. Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977).

Here, normal procedure was for McElvain to promote

the highest-ranked candidate on the sergeant list. Drawing

all inferences in Ballou’s favor, the record indicates that it

BALLOU V. MCELVAIN 15

was not normal department procedure to initiate a broad

internal affairs investigation into an officer for failing to file

a report. Furthermore, the record shows that McElvain’s

request for an expanded investigation into Ballou’s conduct

occurred close in time to when Ballou became the first

woman in McElvain’s tenure to be eligible for promotion to

sergeant.

The record testimony regarding internal departmental

discussions about Ballou further supports her contention that

McElvain’s articulated reasons for failing to promote her

was pretextual. Two women officers who had met with

McElvain in July of 2018 testified that they had specifically

identified both the internal affairs investigations into Ballou

and the decision not to promote her as examples of

discriminatory practices in the department. They and other

officers who attended the meeting expressed concerns about

what they perceived as a discriminatory department culture,

labelled the department’s conduct as “disparate treatment,”

and identified Ruder as a “white male comparator” who had

been treated more favorably than Ballou. Within a day of

this discussion, in which he was urged to “take some time”

to reflect on possible discrimination in the department,

McElvain announced the promotion of Jennings over

Ballou. This sequence of events, together with the departure

from standard department procedure, indicates that

McElvain was at best unconcerned about allegations of

discrimination in the department.

Additionally, the district court determined that the

comparators Ballou identified were sufficiently similar to

her to support an inference of disparate treatment. To

establish similarity under the McDonnell Douglas

framework, the individuals being compared “need not be

identical; they must only be similar ‘in all material

16 BALLOU V. MCELVAIN

respects.’” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,

1157 (9th Cir. 2010) (quoting Moran v. Selig, 447 F.3d 748,

755 (9th Cir. 2006)) (applying McDonnell Douglas to a Title

VII claim). Generally, “individuals are similarly situated

when they have similar jobs and display similar conduct.”

Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th

Cir. 2003).

Here, Ruder held the same position as Ballou when he

applied for promotion and was promoted to sergeant—the

same promotion Ballou sought. Likewise, Ruder and Ballou

“display[ed] similar conduct.” Id. Although Vasquez held

that officers not accused of “problematic conduct of

comparable seriousness” might not be so similarly situated

as to sustain a case for discrimination under Title VII, id., in

this case Ballou and Ruder were both accused of the same

conduct: failure to write a report. Ruder is therefore

sufficiently “similarly situated” to support an inference of

discriminatory intent.

In sum, the district court concluded that whether

McElvain’s stated reasons for not promoting Ballou were

“valid and non-discriminatory . . . raises numerous questions

of fact precluding summary judgment.” Again, we may not

review that conclusion in the present procedural posture. See

Estate of Anderson, 985 F.3d at 730–31. Assuming, as we

must when reviewing a denial of qualified immunity at

summary judgment, that these factual disputes are resolved

in Ballou’s favor, id. at 731, the record supports the

conclusion that McElvain’s articulated reasons for not

promoting Ballou were pretextual and that Ballou has thus

established a disparate treatment claim under the Equal

Protection Clause.

BALLOU V. MCELVAIN 17

ii.

McElvain argues vigorously that Ballou’s disparate

treatment claim nonetheless cannot succeed because the

male police officers Ballou points to as comparators for her

claim are not sufficiently similar to Ballou to demonstrate

discrimination. He asserts that “proof of discriminatory

animus alone will not suffice to establish an equal protection

violation,” as “proof that others similarly situated in a

constitutional sense were treated more favorably is an

essential element” of such a claim. Because, he argues,

Ballou has not pointed to any male officer “arguably

indistinguishable from Ballou in terms of being promoted to

sergeant despite recent sustained misconduct,” she cannot

state a claim under the Equal Protection Clause, even if she

has presented sufficient evidence that the reason she was not

promoted was that she is a woman—that is, that had she been

a man, she would have been promoted earlier than she was.

McElvain’s account of the requirements for making out

an Equal Protection claim is profoundly incorrect, as it is

squarely contrary both to our precedents and to the basic

precepts underlying the Equal Protection Clause.

The central inquiry in any disparate treatment claim

under the Equal Protection Clause is whether “an ‘invidious

discriminatory purpose was a motivating factor’” in some

government action. Ave. 6E Invs., 818 F.3d at 504 (quoting

Arlington Heights, 429 U.S. at 266) (applying this standard

to claims under both the Equal Protection Clause and the Fair

Housing Act, 42 U.S.C. § 3601 et seq.). A plaintiff may

make out a disparate treatment claim by “simply produc[ing]

direct or circumstantial evidence demonstrating that” a

government action was motivated by a discriminatory

purpose. Id. (quoting Pac. Shores, 730 F.3d at 1158).

“[A]ny indication of discriminatory motive may suffice” to

18 BALLOU V. MCELVAIN

allow a disparate treatment claim to survive summary

judgment. Arce v. Douglas, 793 F.3d 968, 978 (9th Cir.

2015) (emphasis added) (quoting Pac. Shores, 730 F.3d

at 1159).

Plaintiffs bringing disparate treatment claims, either

under the Equal Protection Clause or under

antidiscrimination statutes, may, as we have explained,

supra at 12–13, point to comparators as circumstantial

evidence of unlawful discriminatory intent. But a relevant

comparator is not an element of a disparate treatment claim.

As our precedent makes clear, the existence of a comparator

“is only one way to survive summary judgment on a

disparate treatment claim.” Pac. Shores Props., 730 F.3d

at 1158 (citing McDonnell Douglas, 411 U.S. 792); see also

Purtue v. Wis. Dep’t of Corr., 963 F.3d 598, 602 (7th Cir.

2020). 1 With or without comparator evidence, courts

determine whether a government action was motivated by

discriminatory purpose by engaging in the “sensitive inquiry

into such circumstantial and direct evidence of intent as may

be available.” De La Cruz v. Tormey, 582 F.2d 45, 59 (9th

Cir. 1978) (quoting Arlington Heights, 429 U.S. at 266).

McElvain insists otherwise—that “to state an equal

protection claim of any stripe . . . a plaintiff must show that

the defendant treated the plaintiff differently from similarly

situated individuals,” pointing to Pimentel v. Dreyfus,

1

Pacific Shores Properties analyzed the disparate treatment claim

through the lens of the Fair Housing Act. But Avenue 6E Investments

clarified that “[i]f a governmental actor engages in . . . discrimination

[under the Fair Housing Act], such conduct also violates the Equal

Protection Clause,” 818 F.3d at 502 (citing Arlington Heights, 429 U.S.

at 265–66), and that the inquiry into whether disparate treatment has

occurred is the same under both the Fair Housing Act and the Equal

Protection Clause, see id. at 504.

BALLOU V. MCELVAIN 19

670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam) (emphasis

added). In so arguing, McElvain misunderstands the

significance of Pimentel and also of Furnace v. Sullivan,

705 F.3d 1021 (9th Cir. 2013), another case on which

McElvain relies for his novel proposition.

In Pimentel, we denied a preliminary injunction against

Washington State’s termination of state-funded food

assistance for certain noncitizens. See 670 F.3d at 1098,

1106. In so doing, we held that the state had not engaged in

discrimination, because the repeal of a state measure

adopted to benefit a certain class, without more, does not

necessarily constitute discrimination. See id. at 1107.

Because we held the plaintiffs had not stated an equal

protection claim, we declined to apply strict scrutiny to the

state’s action. Id. at 1106. The language cited by McElvain

appears in the portion of the discussion rejecting an equal

protection claim based solely on repeal of a beneficial

provision; it stands only for the proposition that “[i]n the

absence of an equal protection claim, consideration of the

level of scrutiny . . . necessarily falls out of the analysis.” Id.

Pimentel did not address, and should not be read as

disturbing, Supreme Court and circuit case law establishing

that comparator evidence is not an essential element of a

disparate treatment claim.

In Furnace, we held that the plaintiff had not stated an

Equal Protection claim because he did not establish that he

was part of a class that was being discriminated against. See

705 F.3d at 1030–31. The plaintiff’s failure to point to other

“similarly situated” individuals was fatal because he was not

able to identify the “factor motivating the alleged

discrimination.” Id. at 1030 (quoting Thornton v. City of St.

Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)). No such

problem exists here. Ballou alleges that she was

20 BALLOU V. MCELVAIN

discriminated against on the basis of sex, and it is undisputed

that sex is a protected classification under the Equal

Protection Clause. See Frontiero v. Richardson, 411 U.S.

677, 682 (1973). The cases McElvain cites are therefore

inapposite.

McElvain’s account of the protections of the Fourteenth

Amendment, in addition to being wrong as a matter of law,

is contrary to the amendment’s fundamental guarantee of

“equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Under McElvain’s reading of the Fourteenth Amendment,

no plaintiff could state an equal protection claim “of any

stripe” without an identical comparator, no matter how

strong the direct or circumstantial evidence that the reason

the plaintiff was detrimentally treated was her sex—or, for

that matter, her race. This view of the Constitution’s

protections would sweep so broadly as to undermine decades

of Supreme Court case law striking down government

actions “taken for invidious purposes.” Arlington Heights,

429 U.S. at 267; see id. (collecting cases). Applied to the

present case, McElvain’s account of the scope of the Equal

Protection Clause would mean that, had Ballou presented an

audio recording of McElvain stating that he was declining to

promote Ballou specifically because she was a woman and

that, moreover, he would never promote a woman to

sergeant, this evidence would not support a disparate

treatment claim unless he promoted an identical male

comparator.

As this example confirms, McElvain’s account of Equal

Protection law is profoundly mistaken. The existence of a

comparator is not a prerequisite to stating a disparate

treatment claim under the Fourteenth Amendment. To the

contrary, comparator evidence in disparate treatment claims

can, but need not, be used to support a finding of a

BALLOU V. MCELVAIN 21

discriminatory motive. It is not a gatekeeping mechanism

essential to plaintiffs’ ability to prove that they have been

denied equal protection of the laws by being adversely

treated on the basis of membership in a protected class. See

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985).

iii.

The remaining question on the sex discrimination

disparate treatment claim is whether, assuming all factual

disputes are resolved in Ballou’s favor, McElvain is entitled

to qualified immunity. See Estate of Anderson, 985 F.3d

at 731. He is not.

It is well established that the Equal Protection Clause

“prohibit[s] state actors from engaging in intentional

conduct designed to impede a person’s career advancement

because of her gender.” Lindsey v. Shalmy, 29 F.3d 1382,

1385 (9th Cir. 1994). This prohibition guarantees state

employees “a clearly established constitutional right not to

be refused employment because of their sex,” and to be free

from “denial of a promotion, adverse alteration of job

responsibilities, and other hostile treatment” in the

workplace on account of sex. Bator v. State of Hawai‘i,

39 F.3d 1021, 1028 (9th Cir. 1994) (citing Lowe v. City of

Monrovia, 775 F.3d 998, 1011 (9th Cir. 1985) and Lindsey,

29 F.3d at 1385–86). Ballou contends that McElvain denied

her promotion at least in part on account of her sex; the

conduct she alleges falls squarely within the constitutional

prohibition outlined in Lindsey and Bator.

Given Lindsey and Bator, McElvain is not entitled to

qualified immunity on the claim that he discriminatorily

denied Ballou a promotion. It is “apparent in light of . . .

pre-existing law,” Benavidez, 993 F.3d at 1152 (quoting

22 BALLOU V. MCELVAIN

Devereaux, 218 F.3d at 1053), that discriminatorily

instigating an internal investigation against a public

employee violates that individual’s constitutional rights. In

holding that discriminatory employment actions by a public

employer against a state employee violate that employee’s

constitutional rights, Lindsey specifically identified

“unfavorably altering . . . job assignments,” “unfavorable

performance evaluations” and “displaying a hostile attitude”

toward a plaintiff as examples of adverse employment

actions that, if taken with a discriminatory purpose, would

violate an employee’s “clearly established federal

constitutional rights.” 29 F.3d at 1386.

The actions alleged here are so closely analogous to

those identified in Lindsey and so clearly covered by Bator’s

focus on promotion that any reasonable officer would

recognize discriminatorily conducting an investigation to

stall a promotion as unconstitutional under the two cases,

read in combination. Ballou contends that McElvain

initiated several investigations charging Ballou with

misconduct. These investigations became the stated grounds

for denying Ballou a promotion to which she was otherwise

entitled, thus directly limiting her career progression. The

investigations had a direct material impact on her

employment, by blocking her path to promotion.

McElvain is therefore not entitled to qualified immunity

on the claim that he encouraged and sustained discriminatory

investigations into Ballou’s workplace performance and

thereby denied her promotion at least in part on the basis of

sex. As Ballou’s disparate treatment claim alleged that

McElvain violated her clearly established rights under the

Equal Protection Clause, McElvain is not entitled to

qualified immunity on that claim.

BALLOU V. MCELVAIN 23

B. Fourteenth Amendment Retaliation

McElvain next asks us to consider whether he is entitled

to qualified immunity on the claim that he violated Ballou’s

rights under the Equal Protection Clause of the Fourteenth

Amendment by “retaliating against her for opposing

Defendants’ sex discrimination.” We lack jurisdiction to

resolve this question. The district court did not deny

McElvain qualified immunity on Ballou’s Equal Protection

retaliation claim.

The district court’s dispositions, both on the motion for

partial judgment on the pleadings and on the motion for

summary judgment, addressed McElvain’s assertion of

qualified immunity, as it applied to Ballou’s claims, only

briefly. In the order denying partial judgment on the

pleadings, the district judge stated, with respect to qualified

immunity, that McElvain knew or should have known “that

sexually discriminating against an employee and retaliating

against her for voicing her concerns, violates her clearly

established constitutional rights;” he did not so state with

regard to the Equal Protection retaliation claim. At summary

judgment, the district judge stated, as to qualified immunity,

that “the Equal Protection Clause prohibits discrimination,

and . . . the First Amendment prohibits retaliation.”

Elsewhere in the summary-judgment order, the district judge

addressed the merits of the Equal Protection retaliation

claim. In doing so, he concluded that the viability of such a

claim is a “close question” because “there is not a Ninth

Circuit (or Supreme Court) case[] flatly holding that Equal

Protection does not apply to a retaliation claim.” We read

these holdings, taken together, as denying qualified

immunity to McElvain on Ballou’s Fourteenth Amendment

sex discrimination claim and on her First Amendment

retaliation claim, but not on her Equal Protection retaliation

24 BALLOU V. MCELVAIN

claim. As to the latter, the district court, addressing the

substance of the second prong of the qualified immunity

standard—whether there is clearly established law on the

constitutional issue—determined that there is not.

Our jurisdiction under the collateral order doctrine is

limited to reviewing a denial of qualified immunity. See

Plumhoff, 572 U.S. at 771–72; Foster, 908 F.3d at 1209–10.

Here, there was no such denial as to Ballou’s Equal

Protection retaliation claim. We therefore do not reach the

question.

C. First Amendment Retaliation

Finally, Ballou contends that McElvain violated her

rights under the Petition Clause of the First Amendment by

maintaining repeated internal affairs investigations into her

work practices and promoting Ruder over her, in retaliation

for her opposition to sex discrimination in the workplace.

McElvain’s counters are that he is entitled to qualified

immunity on Ballou’s First Amendment claims because

(1) the law does not clearly establish that her speech was on

a matter of public concern and (2) the forms of her

opposition—on his account, internal complaints and state-

law tort claims—were not clearly constitutionally protected.

And, McElvain further contends, the record does not support

the conclusion that Ballou’s speech was a cause of the

adverse employment actions. Each of these arguments fails

at this stage.

First, the content of Ballou’s expression is clearly

protected by the First Amendment. It is long established,

and McElvain does not dispute, that the First Amendment

protects a public employee’s right to speak out against or

petition the government—including via a lawsuit—on

“matters of public concern.” Pickering v. Bd. of Educ.,

BALLOU V. MCELVAIN 25

391 U.S. 563, 574 (1968). “Whether an employee’s speech

addresses a matter of public concern must be determined by

the content, form, and context” of the expression, Connick v.

Myers, 461 U.S. 138, 147–48 (1983), with content weighing

as the “greatest single factor” in the analysis, Ulrich v. City

& County of San Francisco, 308 F.3d 968, 979 (9th Cir.

2002) (quoting Havekost v. U.S. Dep’t of the Navy, 925 F.2d

316, 318 (9th Cir. 1991)).

McElvain maintains that Ballou here seeks to

“constitutionalize the employee grievance,” and that her

complaints and lawsuit pertain only to matters of private,

rather than public, concern. See Borough of Duryea v.

Guarnieri, 564 U.S. 379, 392 (2011) (quoting Garcetti v.

Ceballos, 547 U.S. 410, 420 (2006)). Our circuit case law

squarely forecloses McElvain’s position. Public employees’

expression is on a matter of public concern if it “relat[es] to

any matter of political, social, or other concern to the

community,” Barone v. City of Springfield, 902 F.3d 1091,

1102 (9th Cir. 2018) (quoting Lane v. Franks, 573 U.S. 228,

241 (2014)), and not “upon matters only of personal

interest.” Rendish v. City of Tacoma, 123 F.3d 1216, 1223

(9th Cir. 1997) (emphasis added) (quoting Connick, 461 U.S.

at 147). Some subjects both affect a public employee’s

personal interests and implicate matters of public concern.

Rendish held that unlawful discrimination is such a matter,

recognizing that “the public has an interest in unlawful

discrimination” in City government, and that employee

speech about such discrimination therefore involves matters

of public concern even if it arises out of a personal dispute.

Id. at 1224.

We reiterated this principle in Alpha Energy Savers, Inc.

v. Hansen, 381 F.3d 917 (9th Cir. 2004). Alpha Energy held

that “when government employees speak about . . .

26 BALLOU V. MCELVAIN

wrongdoing [or] misconduct . . . by other government

employees, . . . their speech is inherently a matter of public

concern.” Id. at 926 (final ellipsis in original) (quoting

Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004),

rev’d, 547 U.S. 410 (2006)). And Alpha Energy clarified

that:

Th[is] rule applies to invidious

discrimination as well . . . . Disputes over

racial, religious, or other such discrimination

by public officials are not simply individual

personnel matters. They involve the type

of governmental conduct that affects the

societal interest as a whole—conduct

in which the public has a deep and abiding

interest. Litigation seeking to expose such

wrongful governmental activity is, by its very

nature, a matter of public concern.

Id. at 926–27. This rule applies to both administrative and

judicial proceedings seeking to “bring to light potential or

actual discrimination” by government officials, id. at 925

(citing Lytle v. Wondrash, 182 F.3d 1083, 1087–88 (9th Cir.

1999)); see Rendish, 123 F.3d at 1223–24, and controls even

when the plaintiff seeks only private relief for the

vindication of her own rights, see Rendish, 123 F.3d at

1224. 2 This precedent clearly establishes that speech by

public employees about unlawful discrimination in the

2

In so holding, Alpha Energy Savers explicitly rejected the Seventh

Circuit’s reasoning in Yatvin v. Madison Metro Sch. Dist., 840 F.2d 412

(7th Cir. 1988), on which McElvain relies. See 381 F.3d at 926.

BALLOU V. MCELVAIN 27

workplace is inherently speech on a matter of public

concern. 3

What’s more, the record in this case demonstrates that

Ballou’s allegations concerned considerably more than a

personal matter. The Vancouver Police Department’s

treatment of Ballou generated concern and involvement

among other police officers. As a result of that concern,

several of them met with McElvain to discuss perceived

discriminatory practices in their workplace. Also, Ballou’s

lawsuit was the subject of at least one news story in the local

press. Thus, even if speech alleging discrimination in a

public workplace were not inherently a matter of public

concern—which, as explained supra, our case law

establishes it is—there is sufficient evidence in the record,

drawing all inferences in Ballou’s favor, Estate of Anderson,

985 F.3d at 731, to conclude that the specific expression at

issue here was on a matter of more than private concern. We

therefore reject the argument that the content of Ballou’s

speech is not protected by the First Amendment.

McElvain’s contention to the contrary notwithstanding,

the form of Ballou’s expression is likewise protected by the

First Amendment under clearly established law. The

Petition Clause prohibits retaliating against public

3

McElvain argues that our precedent has been cast into doubt by the

Supreme Court’s decision in Borough of Duryea v. Guarnieri, 564 U.S.

379 (2011), which was decided after Alpha Energy. We do not agree

with McElvain’s reading of Borough of Duryea. That case held only that

the “public concern” test outlined in Connick applies to suits under the

Petitions Clause, and that courts should apply the same framework used

in Speech Clause claims to assess claims brought under the Petitions

Clause. See id. at 393–95, 398. Borough of Duryea therefore reinforces,

rather than undermines, the relevance of our precedent addressing when

expression involves a matter of public concern.

28 BALLOU V. MCELVAIN

employees for filing lawsuits. See Rendish, 123 F.3d

at 1219–23; Alpha Energy, 381 F.3d at 925. The parties

dispute, as a question of fact, whether McElvain was aware

of Ballou’s federal suit when he passed her over for

promotion in favor of Ruder. Ballou first filed her federal

lawsuit on January 3, 2019, a week before McElvain

promoted Ruder over her. She served it on January 10.

McElvain contends he decided to promote Ruder before he

learned of the lawsuit. But even if that were so, the record

nevertheless shows at least one internal affairs investigation

was opened against Ballou after she filed her federal

complaint, based on an anonymous tip that the district court

called “baseless.” If, at trial, the jury finds that McElvain

retaliated in that respect against Ballou for filing this federal

suit, that retaliation would violate Ballou’s clearly

established rights under the Petition Clause.

McElvain is not entitled to qualified immunity on

Ballou’s First Amendment claims at this stage of the

litigation for another reason as well. McElvain does not

dispute that he was aware of Ballou’s state tort-claim notices

alleging sex discrimination, filed in the autumn of 2018,

several months before Ruder’s promotion. Under

Washington law, the service of a state tort notice is a

necessary first step in filing suit against a local government

entity. Wash. Rev. Code § 4.96.020. As a statutory

prerequisite to filing a state-court action, such notices are

part and parcel of formal litigation proceedings. And, as

established in Rendish, the Petition Clause of the First

Amendment protects the initiation of a state-court lawsuit by

a public employee on a matter of public concern. See

123 F.3d at 1218, 1223–25. Filing a mandatory

administrative complaint to initiate state-court litigation is

thus no doubt a form of speech protected by the Petition

Clause.

BALLOU V. MCELVAIN 29

Finally, McElvain contends that Ballou has not

established causation—i.e., that she has failed to establish

that any adverse employment actions she suffered were

because of her opposition to sex discrimination in her public

workplace. We lack jurisdiction to address this question.

The district court found that there were disputed questions

of material fact sufficient to deny summary judgment to

McElvain on the causation aspect of the retaliation claim.

We may review that denial of summary judgment only if

Ballou’s version of events is “blatantly contradicted by the

record.” Orn, 949 F.3d at 1171 (quoting Scott, 550 U.S.

at 380). It is not.

Ballou contends, as part of her retaliation claim, that she

was subjected to unwarranted internal affairs investigations

in response to her opposition to sex discrimination. The

record indicates that several internal affairs investigations

were initiated against Ballou after McElvain became aware

of the action underlying this suit. Likewise, the record

supports the conclusion that McElvain was aware of

Ballou’s internal complaints and state-court claims when he

passed her over for promotion in favor of Ruder.

Whether Ballou’s protected expression actually was the

but-for cause of the adverse employment actions goes to the

ultimate question of liability and must be resolved by the

jury at trial. But it does not bear on the question before us

now—whether retaliating against Ballou for that expression

would, as a matter of law, violate her clearly established

constitutional rights. Because Ballou’s factual account is not

“blatantly contradicted by the record,” id., we may not

disturb the district court’s determination that Ballou’s

retaliation claims were sufficiently supported to survive

summary judgment.

30 BALLOU V. MCELVAIN

We therefore affirm the denial of qualified immunity to

McElvain on Ballou’s First Amendment claims.

III.

We do not reach whether McElvain 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. For the reasons explained, he is not

entitled to qualified immunity on Ballou’s remaining claims.

We therefore affirm the district court’s denial of qualified

immunity on Ballou’s Equal Protection sex discrimination

and First Amendment claims.

AFFIRMED and REMANDED.