Karl v. City of Mountlake Terrace

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA KARL, 

Plaintiff-Appellee,

v. No. 11-35343

CITY OF MOUNTLAKE TERRACE,

Defendant,  D.C. No.

2:09-cv-01806-RSL

and OPINION

CHARLES CAW, also known as Pete,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

March 5, 2012—Seattle, Washington

Filed May 8, 2012

Before: Ferdinand F. Fernandez and Richard A. Paez,

Circuit Judges, and Lucy H. Koh, District Judge.*

Opinion by Judge Koh

*The Honorable Lucy H. Koh, District Judge for the U.S. District Court

for the Northern District of California, sitting by designation.

4915

KARL v. CITY OF MOUNTLAKE TERRACE 4919

COUNSEL

Joseph R. Shaeffer (argued), Andrea Brenneke, MacDonald

Hoague & Bayless, Seattle, Washington, for the plain-

tiff-appellee Martha Karl.

Brenda L. Bannon (argued), Mark R. Bucklin, Keating Buck-

lin & McCormack Inc. P.S., Seattle, Washington, for the

defendant City of Mountlake Terrace & the defen-

dant-appellant Charles Caw.

OPINION

KOH, District Judge:

Defendant Charles “Pete” Caw (“Caw”), Assistant Chief of

Police in the City of Mountlake Terrace Police Department,

appeals from the denial of qualified immunity in Plaintiff

Martha Karl’s (“Karl”) 42 U.S.C. § 1983 action alleging First

Amendment retaliation. The district court held it was clearly

established in December 2008 that a supervisor cannot retali-

ate against a public employee for his or her subpoenaed depo-

sition testimony offered as a citizen in the context of a civil

rights lawsuit. We affirm.

I. Background

Karl began working for the City of Mountlake Terrace

Police Department (“Police Department”) in April 2003 as the

Confidential Administrative Assistant to the Chief of Police,

who at that time was Scott Smith (“Smith”). Her job duties

were primarily clerical and included processing time cards,

attending and taking minutes at meetings, organizing train-

ings, answering the phone, and photocopying.

In 2008, Karl was subpoenaed to give deposition testimony

in a federal civil rights suit filed by former Police Department

4920 KARL v. CITY OF MOUNTLAKE TERRACE

employee Sgt. Jonathan Wender (“Wender”) against the City

of Mountlake Terrace (the “City”), Smith, and others.

Wender’s lawsuit was brought under 42 U.S.C. § 1983 for

purported violations of his Fourteenth Amendment right to

due process and his First Amendment right to free speech.

Specifically, Wender alleged that he had been discharged

without due process and in retaliation for his outspoken criti-

cism of the “war on drugs.”

Karl was deposed by Wender’s counsel in May 2008 and

again in July 2008. Among other things, Karl testified that

Wender was outspoken about his views on the need for drug

policy reform; that Smith and Caw disapproved of his com-

ments to the press and his involvement in the organization

“Law Enforcement Against Prohibition;” and that Caw urged

Smith to terminate Wender because other local police agen-

cies were watching to see whether Smith would take a strong

stance on drug law enforcement. Karl further testified that

Wender had a reputation for honesty, while Smith had a repu-

tation for being dishonest, and Caw had a reputation as a

“smooth talker” and a “back stabber.” After Karl’s deposition,

Caw was overheard commenting that Karl’s testimony “really

hurt” the City, that she could not be trusted anymore, and that

the Police Department would have to find a way to “get rid

of her.”

In September 2008, Smith was replaced by Greg Wilson

(“Wilson”) as Chief of Police. Caw told Wilson he had some

concerns about Karl’s work performance as an administrative

assistant. Shortly thereafter, Karl was involuntarily transferred

to a part-time “records specialist” position within the Police

Department, where she was subject to a six-month probation-

ary period and was placed under Caw’s direct supervision.

Karl’s new position involved computer data entry of reports,

citations, and warrant information, though she had no prior

similar data entry experience. According to one veteran

records specialist, a new records specialist with no prior rele-

vant experience typically requires six to nine months of full-

KARL v. CITY OF MOUNTLAKE TERRACE 4921

time work to become proficient at the job. Nevertheless, just

nine weeks after Karl’s transfer, Caw warned Karl that failure

to meet certain previously undisclosed performance targets

within three weeks would likely result in her termination.

One week later, Wilson sent Karl home on administrative

leave following a verbal altercation between Karl and another

new records specialist. Wilson disciplined only Karl for this

incident. Wilson stated that his decision was based, in part, on

information Caw had relayed to Wilson about Karl’s criticism

of the records specialist training program. After Karl was

placed on leave, Wilson reviewed her training records, spoke

with Caw, and recommended to City Manager John Caulfield

(“Caulfield”) — the only person with authority to hire and fire

employees — that Caulfield terminate Karl’s employment. On

Wilson’s recommendation, Caulfield terminated Karl’s

employment with the Police Department in January 2009.

Karl filed this action in December 2009 under 42 U.S.C.

§ 1983, alleging retaliation in violation of her First Amend-

ment rights.1 The district court issued an order on January 11,

2011, granting in part and denying in part Caw’s motion for

partial summary judgment. With respect to Karl’s First

Amendment retaliation claim, the court determined that:

Karl’s deposition testimony in the Wender lawsuit constituted

speech on a matter of public concern, and Karl’s deposition

testimony was given in her capacity as a private citizen, not

as a public employee. On April 15, 2011, the district court

issued another order granting in part and denying in part

Caw’s second motion for partial summary judgment. The

court concluded that there was a triable issue of fact as to

whether Caw harbored retaliatory animus based on Karl’s tes-

timony in the Wender lawsuit, and whether Caw set in motion

a series of actions that caused Karl’s termination. Finally, the

1

The other defendants named in Karl’s complaint have either been dis-

missed from the case or have not appealed. Likewise, no other claims

alleged in Karl’s complaint are before the court.

4922 KARL v. CITY OF MOUNTLAKE TERRACE

court held that Karl’s constitutional right to be free from retal-

iation because of her testimony was clearly established in

2008. Caw thereafter filed this interlocutory appeal solely

challenging the denial of his claim to qualified immunity.

II. Jurisdiction and Standard of Review

Although a denial of summary judgment is ordinarily not

a final appealable order, we have jurisdiction under 28 U.S.C.

§ 1291 to review a district court’s denial of a claim of quali-

fied immunity to the extent the denial turns on an issue of

law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Under the

collateral order doctrine, “[o]ur interlocutory jurisdiction . . .

is limited exclusively to questions of law, which we review de

novo.” Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)

(citing Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004)). “A

district court’s determination that the parties’ evidence pre-

sents genuine issues of material fact is categorically unre-

viewable on interlocutory appeal.” Id. (citing Lee, 363 F.3d at

932). Where there are disputed issues of material fact, our

review is limited to 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. Mattos v. Agarano, 661 F.3d 433, 439 (9th

Cir. 2011) (en banc).

III. Discussion

The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their con-

duct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.’ ” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A

public official is entitled to qualified immunity unless (1) “the

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

asserting the injury, show that the official’s conduct violated

a constitutional right;” and (2) the right at issue “was clearly

KARL v. CITY OF MOUNTLAKE TERRACE 4923

established ‘in light of the specific context of the case’ at the

time of the alleged misconduct.” Clairmont v. Sound Mental

Health, 632 F.3d 1091, 1100 (9th Cir. 2011) (quoting Saucier

v. Katz, 533 U.S. 194, 201 (2001)). We exercise our discretion

to consider prong one of the qualified immunity analysis first.

See Pearson, 555 U.S. at 236 (noting that the sequential Sau-

cier inquiry, while no longer mandatory, “is often beneficial”

in part because “it promotes the development of constitutional

precedent”).

A. Constitutional Violation

[1] The First Amendment shields public employees from

employment retaliation for their protected speech activities.

See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Connick

v. Myers, 461 U.S. 138, 140 (1983). Out of recognition for

“the State’s interests as an employer in regulating the speech

of its employees,” Connick, 461 U.S. at 140, however, we

must “arrive at a balance between the interests of the [public

employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in pro-

moting the efficiency of the public services it performs

through its employees,” Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968). We strike this balance when evaluating a

First Amendment retaliation claim by asking “a sequential

five-step series of questions.” Eng, 552 F.3d at 1070. First, we

consider whether the plaintiff has engaged in protected speech

activities, which requires the plaintiff to show that the plain-

tiff: (1) spoke on a matter of public concern; and (2) spoke as

a private citizen and not within the scope of her official duties

as a public employee. If the plaintiff makes these two show-

ings, we ask whether the plaintiff has further shown that she

(3) suffered an adverse employment action, for which the

plaintiff’s protected speech was a substantial or motivating

factor. If the plaintiff meets her burden on these first three

steps, thereby stating a prima facie claim of First Amendment

retaliation, then the burden shifts to the government to escape

liability by establishing either that: (4) the state’s legitimate

4924 KARL v. CITY OF MOUNTLAKE TERRACE

administrative interests outweigh the employee’s First

Amendment rights; or (5) the state would have taken the

adverse employment action even absent the protected speech.

See Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009); Eng,

552 F.3d at 1070; see also Lakeside-Scott v. Multnomah

Cnty., 556 F.3d 797, 803 (9th Cir. 2009).

Here, the parties’ dispute concerns only the first, second,

and fifth steps of the analysis.

1. Public Concern

Whether an employee’s speech addresses a matter of public

concern is a pure question of law that must be determined “by

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

revealed by the whole record.” Connick, 461 U.S. at 147-48

& n.7. Of these three factors, the content of the speech is gen-

erally the most important. Clairmont, 632 F.3d at 1103.

“[S]peech that deals with ‘individual personnel disputes and

grievances’ and that would be of ‘no relevance to the public’s

evaluation of the performance of governmental agencies’ is

generally not of ‘public concern.’ ” Coszalter v. City of

Salem, 320 F.3d 968, 973 (9th Cir. 2003) (quoting McKinley

v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). By con-

trast, “[s]peech involves a matter of public concern when it

can fairly be considered to relate to ‘any matter of political,

social, or other concern to the community.’ ” Johnson v. Mult-

nomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting Con-

nick, 461 U.S. at 146).

[2] Applying these principles to a public employee’s

speech in the context of a judicial or administrative proceed-

ing, we have identified two categories of speech that satisfy

the public concern doctrine.2 First, an employee’s testimony

2

We have previously declined to decide whether a public employee’s

testimony is per se a matter of public concern regardless of its content or

the type of proceeding in which it is offered. See Clairmont, 632 F.3d at

KARL v. CITY OF MOUNTLAKE TERRACE 4925

may be a matter of public concern if its specific content

exposes government wrongdoing or helps the public evaluate

the performance of public agencies, irrespective of the nature

of the judicial or administrative proceeding in which the testi-

mony is offered. Alpha Energy Savers, 381 F.3d at 927; cf.

Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.

2004) (holding that a public employee’s expressive conduct in

support of a co-worker in her personnel dispute was a matter

of public concern because it helped expose potential govern-

ment misconduct). Alternatively, an employee’s testimony

may be a matter of public concern “if it contributes in some

way to the resolution of a judicial or administrative proceed-

ing in which discrimination or other significant government

misconduct is at issue — even if the speech itself would not

otherwise meet the Connick test were we to consider it in iso-

lation.” Alpha Energy Savers, 381 F.3d at 927; see Robinson,

566 F.3d at 823 (holding that a police sergeant’s testimony in

a class action discrimination lawsuit addressed a matter of

public concern, regardless of the specific content of the testi-

mony or its impact on the outcome of the suit). Just as speech

whose content exposes potential government misconduct is

speech on a matter of public concern, so too is speech made

in the context of litigation brought to expose such wrongful

conduct. See Alpha Energy Savers, 381 F.3d at 926-27. “So

long as either the public employee’s testimony or the underly-

ing lawsuit meets the public concern test, the employee may,

in accord with Connick, be afforded constitutional protection

against any retaliation that results.” Id. at 927.

[3] This is not a “close case.” Johnson, 48 F.3d at 425.

Karl’s testimony rises to the level of a public concern because

it was offered in the course of a § 1983 lawsuit alleging viola-

1103; Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 926 n.6 (9th

Cir. 2004). We again decline to decide this question because in this case,

as in our previous ones, the content, form, and context of Karl’s testimony

establish that her speech related to a matter of public concern.

4926 KARL v. CITY OF MOUNTLAKE TERRACE

tion of constitutional rights. Wender’s allegations that the

City and Chief of Police violated his First and Fourteenth

Amendment rights clearly implicated the exposure of “signifi-

cant government misconduct,” Alpha Energy Savers, 381 F.3d

at 927, and the allegations involved more than “a simple ref-

erence to government functioning,” Desrochers v. City of San

Bernardino, 572 F.3d 703, 711 (9th Cir. 2009). Caw’s attempt

to characterize Wender’s lawsuit as merely a “private griev-

ance” about a personnel matter is therefore without merit.

Compare Brownfield v. City of Yakima, 612 F.3d 1140, 1147-

48 (9th Cir. 2010) (police officer’s interoffice memo criticiz-

ing his colleague’s competence and complaining of favoritism

in work assignments was “the stuff of internal power strug-

gles within the workplace” and “decidedly personal”) (inter-

nal quotation marks and citation omitted); Desrochers, 572

F.3d at 711 (police sergeants’ formal grievance criticizing

their supervisor’s management style, read in context,

addressed only private grievances). Furthermore, because

Karl’s deposition testimony was offered in the context of a

judicial proceeding addressing a matter of public concern, it

is immaterial to our public concern analysis whether the spe-

cific content of Karl’s testimony independently exposed

potential government wrongdoing or even “whether it had an

impact on the result” of Wender’s litigation. Robinson, 566

F.3d at 823.

[4] Finally, we see no material distinction between subpoe-

naed deposition testimony and testimony in open court, where

both are offered in the context of a judicial or administrative

proceeding alleging government misconduct. Caw argues that

testimony given during a deposition, which is often conducted

in the private confines of a law firm, differs from testimony

elicited in court, which is open to the public. We have recog-

nized that the public has a lesser First Amendment interest in

accessing pretrial discovery materials. See Kamakana v. City

& Cnty. of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006)

(holding parties to a lower standard when they seek to file

under seal documents attached to non-dispositive rather than

KARL v. CITY OF MOUNTLAKE TERRACE 4927

dispositive motions); see also Seattle Times Co. v. Rhinehart,

467 U.S. 20, 33 (1984) (holding that a protective order pro-

hibiting the disclosure of pretrial discovery does not offend

the First Amendment). We see no basis, however, for afford-

ing a lower level of First Amendment protection to a subpoe-

naed deponent than to a witness at trial. Both offer sworn

testimony. Both have the potential to “ ‘bring[ ] to light poten-

tial or actual discrimination, corruption, or other wrongful

conduct by government agencies or officials.’ ” Clairmont,

632 F.3d at 1104 (quoting Alpha Energy Savers, 381 F.3d at

925). Both “contribute in some way to the resolution of a pro-

ceeding in which a matter of public concern is at issue.” Id.

(quoting Robinson, 566 F.3d at 823). Furthermore, while the

public may not have immediate access to private deposition

testimony, such testimony may later become a matter of pub-

lic judicial record, for example if attached to a summary judg-

ment motion. See Kamakana, 447 F.3d at 1179-80. At that

point, the deposition testimony would reach as broad an audi-

ence as would the courtroom testimony. Cf. Desrochers, 572

F.3d at 714 (explaining that, while not dispositive, one factor

to be weighed is whether the speech is made publicly or to a

limited audience). A rule protecting an employee from retalia-

tion for her deposition testimony only after the testimony had

been made part of the public record would be both unwork-

able and unjustified.3

3

In a recent decision extending absolute immunity under 42 U.S.C.

§ 1983 to grand jury witnesses, the Supreme Court “[saw] no sound reason

to draw a distinction for this purpose between grand jury and trial witness-

es,” notwithstanding the secrecy of grand jury proceedings. Rehberg v.

Paulk, 132 S. Ct. 1497, 1500 (2012). Trial witnesses have long been

afforded absolute immunity from civil suit based on their testimony

because without such immunity, “the truth-seeking process at trial would

be impaired.” Id. at 1505. The Court reasoned in Rehberg that “[t]he fac-

tors that justify absolute immunity for trial witnesses apply with equal

force to grand jury witnesses.” Id. Although here we deal with a different

form of speech protection, we similarly hold that the factors justifying

First Amendment protection against retaliation for trial witnesses apply

with equal force to subpoenaed deposition witnesses.

4928 KARL v. CITY OF MOUNTLAKE TERRACE

[5] In sum, we conclude that the content, form, and context

of Karl’s testimony support the district court’s conclusion that

her speech was on a matter of public concern.

2. Speaker Status

Next, we consider whether Karl’s deposition testimony was

given in her capacity as a private citizen or pursuant to her

official job duties, which is a mixed question of law and fact.

Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121,

1129 (9th Cir. 2008). The scope and content of a plaintiff’s

job responsibilities is a question of fact over which we lack

jurisdiction, while “the ultimate constitutional significance of

the [undisputed] facts” is a question of law. Id.; see Eng, 552

F.3d at 1071. Here, Karl testified that her duties did not

include reporting police misconduct, nor did they include

reporting or testifying about the City’s internal investigation

processes. We lack jurisdiction to review the district court’s

finding of a genuine issue of material fact regarding the scope

of Karl’s duties. Instead, we assume resolution of this dispute

in Karl’s favor, and confine our review only to the district

court’s conclusion, as a matter of law, that Karl was speaking

as a private citizen during her deposition in the Wender litiga-

tion, and not as a government employee.4 See Robinson, 566

F.3d at 824.

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

First Amendment when it is made pursuant to the employee’s

official job responsibilities. Garcetti, 547 U.S. at 426. The

Supreme Court has explained that “work product” which

4

We note that, unlike the plaintiff in Huppert v. City of Pittsburg, 574

F.3d 696 (9th Cir. 2009), Karl is not a police officer whose duty under

state law is to testify truthfully as part of her professional responsibilities.

See 574 F.3d at 707-08 (holding that, under California law, “[t]estifying

before a grand jury charged with investigating corruption is one part of an

officer’s job,” and therefore “any speech Huppert gave during his grand

jury testimony was pursuant to his duties as a police officer”) (internal

quotation marks and brackets omitted).

KARL v. CITY OF MOUNTLAKE TERRACE 4929

“owes its existence to a public employee’s professional

responsibilities” is not protected by the First Amendment

because an employer may “exercise . . . control over what the

employer itself has commissioned or created.” Id. at 421-22;

see Eng, 552 F.3d at 1075. “[I]f the public employee was paid

for the speech — e.g., drafting a memorandum, creating a

report, advising a supervisor — then that compensation might

be indicative of the nature of the speech.” Huppert, 574 F.3d

at 704. Conversely, a public employee’s speech on a matter

of public concern is protected “if the speaker ‘had no official

duty’ to make the questioned statements, . . . or if the speech

was not the product of ‘perform[ing] the tasks [the employee]

was paid to perform.’ ” Posey, 546 F.3d at 1127 n.2 (some

internal quotation marks omitted; alterations added in Posey)

(quoting, respectively, Marable v. Nitchman, 511 F.3d 924,

932-33 (9th Cir. 2007), and Freitag v. Ayers, 468 F.3d 528,

544 (9th Cir. 2006)).

[7] Caw suggests two reasons why he thinks Karl’s testi-

mony “owes its existence” to her job: (1) her relevant knowl-

edge was acquired by virtue of her position as the

Confidential Administrative Assistant to the Chief of Police,

and (2) she was paid her regular salary during her deposition.

Both of these arguments miss the mark. While Karl’s knowl-

edge about certain work-related matters may owe its existence

to her job as a confidential assistant, her testimony in the

Wender litigation does not. That Karl was subpoenaed to tes-

tify on matters related to her employment is not dispositive.

The Supreme Court has reiterated that “[t]he First Amend-

ment protects some expressions related to the speaker’s job.”

Garcetti, 547 U.S. at 421; see also Clairmont, 632 F.3d at

1105. Furthermore, though her employer may have paid her

regular salary while she was being deposed, Karl’s testimony

in the Wender litigation was the product of a subpoena and

cannot fairly be characterized as “commissioned or created”

by the City. Garcetti, 547 U.S. at 422. The district court did

not err in determining that Karl spoke as a private citizen in

the Wender litigation and not pursuant to her official job

4930 KARL v. CITY OF MOUNTLAKE TERRACE

duties. See Clairmont, 632 F.3d at 1105 (holding, on similar

facts, that the evidence supported a finding that the plaintiff’s

subpoenaed testimony was spoken as a private citizen).

3. But-For Causation

If the plaintiff satisfies her burden at the third step of estab-

lishing that her protected speech was a substantial or motivat-

ing factor behind the adverse employment action, the

government’s burden at the fifth step is to show that: (1) “the

‘adverse employment action was based on protected and

unprotected activities;’ ” and (2) “the state ‘would have taken

the adverse action if the proper reason alone had existed.’ ”

Eng, 552 F.3d at 1072 (quoting Knickerbocker v. City of

Stockton, 81 F.3d 907, 911 (9th Cir. 1996)) (emphasis added

in Eng). Known as the “Mt. Healthy5 but-for causation inqui-

ry,” the fifth step of our analysis is purely a question of fact

and requires us to assume, on summary judgment, the truth of

the plaintiff’s version of disputed issues. Id. “Immunity

should be granted on this ground only if the state successfully

alleges, without dispute by the plaintiff, that it would have

made the same employment decisions even absent the ques-

tioned speech.” Id.

Caw argues that, even if a jury were to agree with Karl that

Caw was motivated in part by retaliatory animus, he is enti-

tled to qualified immunity because, as a subordinate supervi-

sor, he merely forwarded objective evaluations of Karl’s job

performance, and these negative reviews provided the non-

retaliatory basis for Karl’s discipline and termination. A sub-

ordinate officer who is not the final decision maker can still

be liable under § 1983 if he “ ‘set[s] in motion a series of acts

by others which the actor knows or reasonably should know

would cause others to inflict the constitutional injury.’ ” Gil-

brook v. City of Westminster, 177 F.3d 839, 854 (9th Cir.

5

See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977).

KARL v. CITY OF MOUNTLAKE TERRACE 4931

1999) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

Cir. 1978)) (explaining that a final decision maker’s nonret-

aliatory employment decision “does not automatically immu-

nize a subordinate against liability for her retaliatory acts”).

Nonetheless, Caw may avoid liability if he shows that a “final

decision maker’s independent investigation and termination

decision, responding to a biased subordinate’s initial report of

misconduct, . . . negate[s] any causal link” between his retal-

iatory motive and the adverse employment action. Lakeside-

Scott, 556 F.3d at 804. This is because a final decision

maker’s wholly independent investigation and decision estab-

lish that “the employee’s protected speech was not a but-for

cause of the adverse employment action.” Eng, 552 F.3d at

1072 (citing Mt. Healthy, 429 U.S. at 287).

[8] Here, the record before the district court revealed evi-

dence that Caw was motivated by retaliatory animus in: (1)

relating to the new Chief of Police that Karl’s work as a Con-

fidential Administrative Assistant was deficient; (2) seeking

to transfer Karl to a position where he could directly supervise

her; (3) encouraging her to accept the position by reminding

her she could be fired if she refused; (4) imposing unreason-

able and arbitrary performance targets on Karl alone; and (5)

advising Wilson that Karl was critical of the training program

and had made inadequate progress in her new position as a

records specialist. The court further found disputed issues of

material fact as to whether Wilson conducted an independent

investigation into Karl’s performance that would sever the

causal link between Caw’s retaliatory motive and Karl’s ter-

mination. Although Caulfield was the only individual with

authority to terminate Karl, the district court determined that

Karl adequately adduced evidence showing that Caulfield’s

decision was based wholly on Wilson’s recommendation,

which, in turn, was based on information provided by Caw.

These findings of disputed issues of material fact are unre-

viewable on interlocutory appeal. See Eng, 552 F.3d at 1067.

Thus, viewing the record in the light most favorable to Karl,

we cannot say that Caw has met his burden to show that the

4932 KARL v. CITY OF MOUNTLAKE TERRACE

City would have fired Karl even in the absence of her pro-

tected speech activities. The district court therefore correctly

held that Karl adequately alleged a violation of her First

Amendment free speech rights, and that Caw is not entitled to

qualified immunity on this ground.

B. Clearly Established

[9] Having determined that Karl has alleged a constitu-

tional violation, we next consider whether the “contours” of

Karl’s First Amendment right were “ ‘sufficiently clear’ that

every ‘reasonable official would have understood that what he

is doing violates that right.’ ” Ashcroft v. al-Kidd, ___ U.S.

___, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “Whether the law was

clearly established is an objective standard; the defendant’s

‘subjective understanding of the constitutionality of his or her

conduct is irrelevant.’ ” Clairmont, 632 F.3d at 1109 (quoting

Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008)). Quali-

fied immunity is designed “to ensure that before they are sub-

jected to suit, officers are on notice their conduct is unlawful.”

Saucier, 533 U.S. at 206. We therefore consider whether

existing law at the time of Caw’s conduct in 2008 provided

him “fair notice” that the First Amendment prohibits retaliat-

ing against an employee for providing subpoenaed deposition

testimony during another person’s civil rights lawsuit. Hope

v. Pelzer, 536 U.S. 730, 739 (2002). In answering this ques-

tion, we bear in mind that “ ‘closely analogous preexisting

case law is not required to show that a right was clearly estab-

lished.’ ” Robinson, 566 F.3d at 826 (quoting Hufford v.

McEnaney, 249 F.3d 1142, 1148 (9th Cir. 2001)); see Fogel,

531 F.3d at 833. Indeed, “officials can still be on notice that

their conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741; see Porter v. Bowen,

496 F.3d 1009, 1026 (9th Cir. 2007). On the other hand, we

recognize that the claimed right cannot be defined at too high

a “level of generality.” Anderson, 483 U.S. at 639.

KARL v. CITY OF MOUNTLAKE TERRACE 4933

Although there is no case in our circuit with the same facts

as those presented here, a reasonable official in Caw’s posi-

tion would have known that it was unlawful to retaliate

against an employee for providing subpoenaed deposition tes-

timony in connection with a civil rights lawsuit alleging gov-

ernment misconduct.

[10] First, a reasonably competent official would have

known that a public employee’s subpoenaed deposition testi-

mony addresses a matter of public concern when it is given

in connection with a judicial or administrative proceeding

involving allegations of “significant government misconduct.”

Alpha Energy Savers, 381 F.3d at 927. It has been clearly

established since at least 2004 that judicial and administrative

proceedings are matters of public concern when they seek to

expose “potential or actual discrimination, corruption, or

other wrongful conduct by government agencies or officials.”

Id. at 925; see also Robinson, 566 F.3d at 823. Caw was

therefore on notice that Wender’s § 1983 action was a matter

of public concern, for any reasonable official would know that

unlawfully retaliating against a public employee for his pro-

tected speech activities constitutes “significant government

misconduct.” Furthermore, we have held that it was clearly

established since at least 2007 that testifying pursuant to a

subpoena in a judicial or administrative proceeding of public

concern constitutes protected speech. See Clairmont, 632 F.3d

at 1109. Although none of our earlier cases specifically

addressed subpoenaed deposition testimony as opposed to tes-

timony in open court, our holdings have not been so narrowly

cabined that Caw could reasonably have believed subpoenaed

deposition testimony was excluded from the First Amend-

ment’s ambit of protection.6 See, e.g., Alpha Energy Savers,

6

Caw’s attempt to seek shelter in what he characterizes as an out-of-

circuit split of authority is equally unavailing. Compare Morales v. Jones,

494 F.3d 590, 595 (7th Cir. 2007) (holding that a police officer’s deposi-

tion in a fellow officer’s § 1983 action alleging unlawful retaliation was

protected speech), with Morris v. Crow, 142 F.3d 1379, 1382-83 (11th Cir.

4934 KARL v. CITY OF MOUNTLAKE TERRACE

381 F.3d at 925 (holding that not only the employee’s testi-

mony at the grievance hearing, but also “the affidavit that he

filed and his agreement to be listed as a potential witness,”

were entitled to protection).

[11] Second, a reasonable official would also have known

that a public employee’s speech on a matter of public concern

is protected if the speech is not made pursuant to her official

job duties, even if the testimony itself addresses matters of

employment. See Garcetti, 547 U.S. at 421; Eng, 552 F.3d at

1075-76 (citing Mt. Healthy, 429 U.S. at 284; Pickering, 391

U.S. at 568); Posey, 546 F.3d at 1126-27. Caw argues that

Garcetti “materially altered . . . [t]he legal landscape of public

employment constitutional law” by constraining the scope of

a public employee’s protected speech activities. As we

explained in Eng, however, “Garcetti concluded only that

‘work product’ that ‘owes its existence to [an employee]’s

professional responsibilities’ is not protected by the First

Amendment.” Eng, 552 F.3d at 1075 (quoting Garcetti, 547

U.S. at 422). Notwithstanding Garcetti, we held in Eng, as we

do here, that “[t]here could be no confusion . . . that when

[plaintiff] commented upon matters of public concern as a cit-

izen and not pursuant to his job responsibilities, his speech

was protected by the First Amendment — that rule had long

been the law of the land.” Id. (internal quotation marks, cita-

1998) (per curiam) (holding that a police officer’s deposition testimony in

another individual’s wrongful death suit was not protected speech where

the testimony merely parroted the contents of an accident report “gener-

ated in the normal course of his duties as an accident investigator”). Far

from creating a circuit split regarding the protected status of deposition

testimony per se, the different conclusions reached in Morales and Morris

merely illustrate the different treatment afforded speech made as a private

citizen and speech made pursuant to one’s official duties. See Huppert,

574 F.3d at 709 (discussing Morales approvingly and explaining that

“California’s courts have never said that it expects its police officers to

assist others in their individual civil suits against present or former

employers”).

KARL v. CITY OF MOUNTLAKE TERRACE 4935

tions, and alterations omitted). Garcetti in no way altered

Karl’s clearly established First Amendment right to give sub-

poenaed deposition testimony in the Wender litigation in her

capacity as a private citizen, without facing retaliation as a

result.

[12] Finally, it was clearly established at the time of Caw’s

conduct that a subordinate officer can be liable under § 1983

for retaliating against an employee even if he also has legiti-

mate, non-retaliatory motives. Under the “mixed motive”

analysis established by Mt. Healthy, the intensely fact-bound

question is simply whether the employer “would have reached

the same [adverse employment] decision even in the absence

of the [employee’s] protected conduct.” Ulrich v. City &

Cnty. of S.F., 308 F.3d 968, 976-77 (9th Cir. 2002); accord

Mt. Healthy, 429 U.S. at 287; Thomas, 379 F.3d at 808. Fur-

thermore, we held in 1999 that “a subordinate cannot use the

nonretaliatory motive of a superior as a shield against liability

if that superior never would have considered a dismissal but

for the subordinate’s retaliatory conduct.” Gilbrook, 177 F.3d

at 855.

[13] Thus, the relevant principles were all clearly estab-

lished long before the events in question, such that “every rea-

sonable official would have understood that what he is doing

violate[d]” Karl’s First Amendment right to be free from

retaliation.” Al-Kidd, 131 S. Ct. at 2083 (citation and internal

quotation marks omitted).

IV. Conclusion

For the reasons discussed herein, the district court’s denial

of summary judgment on the basis of qualified immunity is

AFFIRMED.