NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA MANSFIELD, 

Plaintiff-Appellant, 

 v. 

DAWN JONES PFAFF, an individual; 

JESSICA REICHOW, an individual; MARA 

FLETCHER, an individual; JERRY 

PALMER, M.D., an individual; UNITED 

STATES OF AMERICA, 

Defendants-Appellees.

No. 15-35788 

D.C. No. 2:14-cv-00948-JLR 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted December 7, 2017 

Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

This appeal stems from the University of Washington’s (“UW”) decision to 

terminate Pamela Mansfield’s employment as a research nurse in a Veterans’

Administration-affiliated diabetes research study led by Dr. Jerry Palmer, a UW 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 19 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Professor of Medicine. Mansfield was terminated after accusing her subordinate, 

Dawn Jones-Pfaff, of assault. Because the parties are familiar with the facts, we do 

not repeat them here.

Mansfield filed a complaint in state court asserting common-law tort claims

against Pfaff and another co-worker, Jessica Reichow, and a First Amendment 

retaliation claim under 42 U.S.C. § 1983 against Dr. Palmer and Mara Stevens, a

UW Human Resources manager. Pursuant to the Federal Employees Liability 

Reform and Tort Compensation Act, 28 U.S.C. § 2679 (the “Westfall Act”), the 

U.S. Attorney General certified that defendants Pfaff and Reichow were federal 

employees acting within the scope of employment at all times relevant to 

Mansfield’s common-law tort claims, substituted the United States as sole 

defendant, and removed the action to federal district court. 

The district court upheld the Westfall Act certification, concluding that 

Mansfield failed to carry her burden of proof as to whether Pfaff assaulted 

Mansfield or whether Pfaff and Reichow conspired to lie about the incident to get 

Mansfield fired. The district court also granted the motion filed by Dr. Palmer and 

Stevens for summary judgment on Mansfield’s First Amendment retaliation claim. 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
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1. Evidentiary Hearing on Westfall Act Certification

The district court correctly understood that an evidentiary hearing to review 

the Attorney General’s Westfall Act certification is discretionary. Arthur v. United 

States, 45 F.3d 292, 296 (9th Cir. 1995) (“[W]hen a district court is reviewing a 

certification question under the Westfall Act, it must identify and resolve disputed 

issues of fact necessary to its decision before entering its order. In doing so, it 

should hold . . . hearings as appropriate (including an evidentiary hearing if 

necessary), and make the findings necessary to bind the parties by its decision and 

enable them to appeal the certification decision if they deem an appeal necessary.”

(emphasis added)). In two separate orders, the district court explained its 

reasoning. These orders made “findings necessary to bind the parties . . . and 

enable them to appeal the certification decision.” Id. The district court did not 

abuse its discretion in declining to hold an evidentiary hearing on the certification.

2. Westfall Act Immunity

The district court properly upheld Pfaff’s Westfall Act immunity because 

Mansfield failed to carry her burden of proving by a preponderance of the evidence 

that Pfaff assaulted her or agreed with Reichow to lie about it. See Saleh v. Bush, 

848 F.3d 880, 889 (9th Cir. 2017) (“[T]he party seeking review bears the burden of 

presenting evidence and disproving the Attorney General’s decision to grant or deny 

scope of employment certification by a preponderance of the evidence.” (quoting 
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Green v. Hall, 8 F.3d 695, 695 (9th Cir. 1993))). The question is not whether 

Mansfield was assaulted; rather, the only question is whether Mansfield carried her 

burden to demonstrate that Pfaff was more likely than not the attacker. We agree 

with the district court that the evidence, including the circumstantial evidence

presented by Mansfield, does not establish by a preponderance of evidence that Pfaff 

was Mansfield’s attacker or that Pfaff and Reichow agreed to lie about the attack in 

order to get Mansfield fired. Accordingly, the district court properly upheld Pfaff’s

and Reichow’s Westfall Act immunity with respect to Mansfield’s common-law tort 

claims.

3. First Amendment Retaliation Claim

To survive a summary judgment motion, a plaintiff alleging a First 

Amendment retaliation claim under 42 U.S.C. § 1983 must raise a triable issue of 

fact on five separate factors:

(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 plaintiff’s protected speech was a 

substantial or motivating factor in the adverse employment 

action; (4) whether the state had an adequate justification for 

treating the employee differently from other members of the 

general public; and (5) whether the state would have taken the 

adverse employment action even absent the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Assuming for the sake of 

argument that Mansfield spoke on matters of public concern, the district court 

properly granted summary judgment to Dr. Palmer and Stevens because Mansfield 
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failed to raise a triable issue of fact whether she spoke as a private citizen and 

whether her speech was a substantial or motivating factor in her termination.

“Statements are made in the speaker’s capacity as a citizen if the speaker had 

no official duty to make the questioned statements, or if the speech was not the 

product of performing the tasks the employee was paid to perform.” Id. at 1071

(quoting Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n.2 

(9th Cir. 2008)). The court answers that mixed question of law and fact in two 

parts. Posey, 546 F.3d at 1129. “First, a factual determination must be made as to 

the ‘scope and content of a plaintiff’s job responsibilities.’” Johnson v. Poway 

Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011) (quoting Eng, 552 F.3d at 

1071). “Second, the ‘ultimate constitutional significance’ of those facts must be 

determined as a matter of law.” Id. (quoting Eng, 552 F.3d at 1071).

The district court correctly found that all of Mansfield’s reports to Dr. 

Palmer, the University’s Human Subjects Division (“HSD”), and the University 

Institutional Review Board (“IRB”) regarding alleged protocol violations were 

made in her capacity as a public employee. Additionally, there is no genuine 

dispute that Mansfield made her reports “pursuant to her official duties,” Freitag v. 

Ayers, 468 F.3d 528, 546 (9th Cir. 2006)—that is, that her speech was “the product 

of performing the tasks [she] was paid to perform,” Eng, 552 F.3d at 1071 (quoting 

Posey, 546 F.3d at 1127 n.2). 
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Mansfield’s reports to the Washington State Auditor, however, were private 

speech. See Freitag, 468 F.3d at 545 (recognizing that the “right to complain . . . 

to an independent state agency is guaranteed to any citizen in a democratic society 

regardless of [her] status as a public employee” (citing Pickering v. Bd. Of Educ., 

391 U.S. 563, 568 (1968))). Nevertheless, private speech must have been “a 

substantial or motivating factor in the adverse employment action” in order to 

establish a claim of First Amendment retaliation. Eng, 552 F.3d at 1070. None of 

the admissible evidence Mansfield cites, however, supports the conclusion that Dr. 

Palmer knew of Mansfield’s contact with the Auditor before he recommended her 

termination. Accordingly, Mansfield failed to carry her burden of proof with 

respect to this factor. 

Finally, Mansfield’s claim against Stevens was predicated on a theory of 

imputed First Amendment retaliation. See Poland v. Chertoff, 494 F.3d 1174, 

1182 (9th Cir. 2007). Because Mansfield failed to raise a triable issue of fact as to 

whether Dr. Palmer intentionally retaliated against her, Mansfield’s First 

Amendment retaliation claim against Stevens fails as well.

AFFIRMED.