FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD ROBINSON, 

No. 07-56312 Plaintiff-Appellee,

D.C. No.

v.  CV-06-02409-GAF

MARGARET YORK; WILLIAM NASH;

ORDER AND VICTOR TURNER,

OPINION Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

November 20, 2008—Pasadena, California

Filed April 27, 2009

Before: Richard D. Cudahy,* Harry Pregerson, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

4903
COUNSEL

Jin Suk Choi (presented arguments and authored briefs), Franscell, Strickland, Roberts & Lawrence, Glendale, California,

for the defendants-appellants. 

Sanjay Bansal (presented arguments) and Michael A. McGill

(authored brief), Lackie & Dammeier, Upland, California, for

the plaintiff-appellee. 

ORDER

Appellee’s request for publication is GRANTED. The

Memorandum disposition, filed January 8, 2009, is withdrawn. A published Opinion will be filed concurrently with

this Order.

OPINION

HAWKINS, Circuit Judge: 

Plaintiff Richard Robinson (“Robinson”), a sergeant with

the Los Angeles County Office of Public Safety (“OPS”),

filed a civil rights complaint under 42 U.S.C. § 1983 against

ROBINSON v. YORK 4907
the County of Los Angeles (“Los Angeles”) and several OPS

officers (“Defendants”) alleging that he was denied promotion

in violation of his First and Fourteenth Amendment rights

because he reported misconduct within his department.

Defendants appeal from the denial of qualified immunity. For

the reasons that follow, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Robinson alleges that he was not promoted because he

spoke out or filed reports about misconduct in his department

between 2002 and 2006. In addition to testifying in a class

action lawsuit alleging discrimination by OPS, Robinson also

filed misconduct reports pertaining to various problematic

behavior, some of which he observed while off duty. The

reports described (1) a fellow officer who allegedly worked

for an outside employer while on the clock, (2) officers who

appeared to be drinking alcohol during work hours, (3) OPS

officers who wore distinctive tattoos possibly indicative of

anti-Semitic attitudes, (4) cases of potential battery or excessive force, and (5) a “Parking for Irish Only” sign allegedly

placed by OPS officers and directed at a fellow officer. After

failing to receive what he considered an adequate response

from OPS, Robinson took several steps following-up on these

reports, including emailing internal affairs and discussing the

details of the complaints with superior officers. 

Robinson alleges that he participated in several conversations in which his superior officers suggested he stop filing

misconduct reports. In one such conversation, a supervising

officer told him that “if [Robinson] didn’t bring so many

issues forward . . . maybe that would help in terms of getting

promoted to lieutenant.” 

Robinson took an examination for promotion to lieutenant

in 2003. Despite placing in the highest band of candidates and

receiving favorable work reviews, Robinson was not promoted before the eligibility list expired in 2006. 

4908 ROBINSON v. YORK
After failing to obtain a promotion, Robinson filed this

action alleging that he had been denied promotion in retaliation for exercising his First Amendment rights. Defendants

moved for summary judgment, arguing that Robinson’s

reports were not protected speech because they were made as

part of his professional duties or because he failed to present

the reports through the chain of command as required by written department policy. The district court denied the motion,

finding genuine issues of material fact on the scope of Robinson’s job duties and holding that a violation of a written chain

of command policy was not dispositive, but merely one of the

factors to be considered as part of the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 571

(1968). The named Defendants timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We review de novo a district court’s denial of summary

judgment based upon a claim of qualified immunity. Moran

v. Washington, 147 F.3d 839, 844 (9th Cir. 1998). Although

a district court’s denial of qualified immunity is subject to

immediate appeal as a collateral order, our appellate jurisdiction is limited to questions of law. Id. at 843 (citing Mitchell

v. Forsyth, 472 U.S. 511, 528 & n.9 (1985)) (“A publicofficial defendant may appeal the ‘purely legal’ issue

‘whether the facts alleged . . . support a claim of [violation of]

clearly established law.’ ”). “Where disputed facts exist, we

assume that the version of the material facts asserted by [the]

Plaintiff[ ], as the non-moving party, is correct.” KRL v.

Estate of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). Our

review is therefore limited to whether the Defendants would

be entitled to qualified immunity as a matter of law assuming

all factual disputes were resolved in Robinson’s favor. 

III. DISCUSSION 

[1] Determining whether officials are owed qualified

immunity involves two inquiries: (1) whether, taken in the

ROBINSON v. YORK 4909
light most favorable to the party asserting the injury, the facts

alleged show the official’s conduct violated a constitutional

right; and (2) if so, whether the right was clearly established

in light of the specific context of the case. Saucier v. Katz,

533 U.S. 194, 201 (2001); see also Pearson v. Callahan, 129

S. Ct. 808, 818 (2009) (courts may decide which of the two

prongs should be addressed first in light of the particular circumstances).

[2] In evaluating a First Amendment retaliation claim, we

address “a sequential five-step series of questions.” Eng v.

Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). First, the plaintiff bears the burden of showing: “(1) whether the plaintiff

spoke on a matter of public concern; (2) whether the plaintiff

spoke as a private citizen or public employee; [and] (3)

whether the plaintiff’s protected speech was a substantial or

motivating factor in the adverse employment action.”

1

Id.

Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: “(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.” Id. at 1070-73.

Public Concern

To warrant First Amendment protection, an employee’s

speech must address “a matter of legitimate public concern.”

Pickering, 391 U.S. at 571. The public concern inquiry is

purely a question of law, which we review de novo. Berry v.

Dep’t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006). 

[3] As a matter of law, “the competency of the police force

1We need not address the third question at the summary stage because

Defendants concede that there is a material factual dispute regarding

whether Robinson’s speech was a substantial or motivating factor in the

adverse employment action. 

4910 ROBINSON v. YORK
is surely a matter of great public concern.” McKinley v. City

of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). Only speech

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.” Id. 

Robinson alleges Defendants retaliated against him for,

among other things, testifying in a class action lawsuit that the

County had engaged in systematic discrimination and harassment against OPS officers, reporting numerous instances of

possible corruption, discrimination, or misconduct by fellow

OPS officers, and following up on those complaints. With the

exception of the three incidents identified by the district court

as individual personnel disputes, each of these is clearly a

“matter of public concern.” See Thomas v. City of Beaverton,

379 F.3d 802, 809 (9th Cir. 2004) (“Unlawful conduct by a

government employee or illegal activity within a government

agency is a matter of public concern.”); Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995) (citing Roth v.

Veteran’s Admin., 856 F.2d 1401, 1405 (9th Cir. 1988)) (The

“misuse of public funds, wastefulness, and inefficiency in

managing and operating government entities are matters of

inherent public concern.”); see also Connick v. Myers, 461

U.S. 138, 148 (1983) (speech merits stronger protection when

employee seeks “to bring to light actual or potential wrongdoing or breach of public trust”). 

Defendants concede that some of Robinson’s “internal

reports of certain alleged misconduct involved matters of public concern,” but contend that others did not. They specifically

argue that Robinson’s follow-up communications pressing his

reports of misconduct are not “matters of public concern,” citing Douglas v. Lexington-Fayette Urban County Gov’t, 2007

U.S. Dist. LEXIS 82818, at *18 (E.D. Ky. Nov. 7, 2007),

which held that plaintiffs’ complaints are not matters of public concern where they are “about the job performance of their

coworkers” and “the intent of the plaintiffs [is] not to protect

ROBINSON v. YORK 4911
public safety, but rather to complain about the management’s

response to the situation.”

2

[4] Robinson’s misconduct reports, unlike the plaintiffs’

speech in Douglas, did not merely contain “passing references

to public safety [that] were ‘incidental to the message conveyed,’ ” id., but rather related to the danger the misconduct

posed and the need to respond to it. Whether OPS treats complaints of misconduct seriously or fails to followup is also a

matter of “relevance to the public’s evaluation of the performance of governmental agencies” and consequently independently a matter of public concern. Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003). Robinson’s email to the

office in charge of internal affairs discussing the possibility of

an interview about his prior complaints, and his conversations

with superior officers reviewing the details of those complaints, clearly addressed at least two matters of public concern: the misconduct itself and the distinct question of

whether the investigating officers were, as Robinson argued,

sweeping misconduct under the rug. 

[5] Defendants suggest that two of Robinson’s misconduct

reports — one regarding an officer suspected of working for

an outside employer while on the clock and another alleging

discrimination by one officer against another — addressed

individual personnel disputes, not matters of public concern.

Reports pertaining to others, even if they concern personnel

matters including discriminatory conduct, can still be “protected under the public concern test.” Thomas, 379 F.3d at

808 (explaining that an employee’s speech can be protected

even though it “concerned a personnel matter” because “it did

not pertain to [her] own job status”); see also Alpha Energy

2Defendants also cite Akins v. Gates, 2007 U.S. Dist. LEXIS 68439

(N.D. Ga. Sept. 17, 2007), in support of this proposition, but the plaintiffs’

speech in Akins was in fact held to be on matters of public concern, but

was deemed unprotected only because it was included in the plaintiffs’ job

duties. 

4912 ROBINSON v. YORK
Savers, Inc. v. Hansen, 381 F.3d 917, 926 (9th Cir. 2004)

(holding “invidious discrimination” inherently a matter of

public concern “whether it consists of a single act or a pattern

of conduct”); Cochran v. City of Los Angeles, 222 F.3d 1195,

1201 (9th Cir. 2000) (“Although focused on one employee

and not addressed directly to the public, the speech here did

concern matters which are relevant to the public’s evaluation

of its police department.”). 

[6] Robinson’s testimony in a class action against the

County is also of public concern, regardless of whether it had

an impact on the result of that litigation. Alpha Energy Savers,

381 F.3d at 927 (“[A] public employee’s testimony addresses

a matter of public concern if it contributes in some way to the

resolution of a judicial or administrative proceeding in which

discrimination or other significant government misconduct is

at issue — even if the speech itself would not . . . in isolation.”). 

Scope of Job Duties

[7] Defendants also argue that Robinson’s reports were

made in conjunction with his official job duties and therefore

were not protected by the First Amendment under Garcetti v.

Ceballos, 547 U.S. 410 (2006). The scope of Robinson’s job

duties is a question of fact. Posey v. Lake Pend Oreille Sch.

Dist. No. 84, 546 F.3d 1121, 1130 (9th Cir. 2008). “[W]hen

there are genuine and material disputes as to the scope and

content of the plaintiff’s job responsibilities, the court must

reserve judgment . . . until after the fact-finding process.” Id.

at 1131. We lack jurisdiction to review the district court’s

finding of a genuine of issue of material fact regarding

whether the scope of Robinson’s duties included reporting

police misconduct. Johnson v. Jones, 515 U.S. at 319-20.

Instead, we assume the resolution of this dispute in the nonmoving party’s favor. Eng, 552 F.3d at1067. 

ROBINSON v. YORK 4913
Adequate Justification under Pickering

[8] Under the balancing-test mandated by Pickering, 391

U.S. 563, the First Amendment interests of employees must

be weighed against the “interest of the State, as an employer,

in promoting the efficiency of the public services it performs

through its employees.” Id. at 568. “For us to find that the

government’s interest as an employer in a smoothly-running

office outweighs [an employee’s] first amendment right,

defendants must demonstrate actual, material and substantial

disruption,” or “reasonable predictions of disruption” in the

workplace. Roth, 856 F.2d at 1407; Waters v. Churchill, 511

U.S. 661, 673 (1994); see also Keyser v. Sacramento City

Unified Sch. Dist., 265 F.3d 741, 749 (9th Cir. 2001) (noting

that “a showing of actual disruption will weigh more heavily”). “[T]he workplace disruption hurdle for government

employers is higher in cases, like this one, where the speech

involved unlawful activities rather than policy differences.”

Keyser, 265 F.3d at 749 (citing Moran, 147 F.3d at 849 n.6).

[9] When applying Pickering to an “employee’s reports of

‘wastefulness, mismanagement, unethical conduct, violations

of regulations, and incompetence’ ” to his supervisors, we

have held “that the public’s interest in learning about illegal

conduct by public officials and other matters at the core of

First Amendment protection outweighs a state employer’s

interest in avoiding a mere potential disturbance to the workplace.” Keyser, 265 F.3d at 747-48 (discussing Gilbrook v.

City of Westminster, 177 F.3d 839, 867-70 (9th Cir. 1999);

Roth, 856 F.2d at 1403-08; and Johnson, 48 F.3d at 425-27).

In the context of “good-faith whistleblowing” involving

reports within a government department rather than to the

public, “the breadth of one’s audience is irrelevant” because

“[i]t would be absurd to extend First Amendment protection

only to those whistleblowers who immediately appear on the

local news.” Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th

Cir. 2001). 

4914 ROBINSON v. YORK
[10] In the Defendants’ view, an exception to this clearly

established law applies here because there is “no constitutional violation in requiring officers to communicate ‘through

channels’ before enlisting public opinion to their cause.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir.

1990). Sanchez limited its holding, however, to cases where

the “channels” policy “is reasonable and not arbitrary.” Id.

“[E]ven in a police department, the complained-of disruption

must be ‘real, [and] not imagined’ ” and the “disruption

exception cannot ‘serve as a pretext for stifling legitimate

speech or penalizing public employees for expressing unpopular views.’ ” Allen v. Scribner, 812 F.2d 426, 432 (9th Cir.

1987) (citing McKinley, 705 F.2d at 1115); accord Brockell

v. Norton, 732 F.2d 664, 667 (8th Cir. 1984) (courts cannot

“decide in the abstract, however, that a chain-of-command

policy designed to protect [a police department’s] interest will

always take precedence over the interest of a public employee

in open communication” and “must look to the particular circumstances of each case to determine the importance of

enforcing the chain of command against an employee whose

speech breaches that policy”). 

[11] Under some factual circumstances, therefore, the Pickering balancing test can favor protected speech even where

the speech violates the employer’s written policy requiring

speech to occur through specified channels. Anderson v. Central Point School Dist., 746 F.2d 505, 506 (9th Cir. 1984); see

also Connick, 461 U.S. at 153 n.14 (violation of a rule governing the circumstances when speech is permitted would

strengthen a claimant’s position in the Pickering balance, but

alone would not be dispositive). 

[12] Although we have sometimes found a police department’s interests in discipline and esprit de corps to outweigh

First Amendment interests, genuine factual disputes here —

including, for example, the extent of potential workplace disruption and whether the justifications Defendants assert for

their actions were pretextual — preclude such a determination

ROBINSON v. YORK 4915
at this stage of the litigation. See, e.g., Cochran, 222 F.3d at

1196 (city’s interest in the proper functioning of its police

department outweighed plaintiffs’ expressive interests, but

only after a detailed factual discussion); Kannisto v. San

Francisco, 541 F.2d 841, 843-44 (9th Cir. 1976) (noting that

“[t]he facts in this case sharply contrast with those in Pickering”). 

[13] Given the evidence that Defendants may have been

more concerned with the nature and frequency of Robinson’s

reports of misconduct than his adherence to the formal chain

of command, a fact-finder could conclude that Defendants’

application of the chain of command policy was pretextual

and not based on Defendants’ interest in avoiding workplace

disruption. If a fact-finder did so conclude, then Robinson’s

speech interests would outweigh Defendants’ interests under

Pickering. Where, as here, the Pickering test must be applied

and “there are underlying factual issues regarding the extent

of office disruption,” it is proper to deny a motion for summary judgment. Roth, 856 F.2d at 1408.

But-For Causation

Defendants may avoid liability by showing that Robinson’s

protected speech was not a but-for cause of the adverse

employment action. See Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Mt. Healthy

but-for causation inquiry is, however, purely a question of

fact. Wagle v. Murray, 560 F.2d 401, 403 (9th Cir. 1977) (per

curium) (“Mt. Healthy indicates the ‘trier-of-fact’ should

determine whether the firing would have occurred without the

protected conduct.”)

[14] Although Defendants are free to argue at trial that they

would have taken the same adverse employment actions

against Robinson regardless of his speech, Robinson has adequately alleged that the “chain of command” policy was used

as a pretext and that the adverse actions against him occurred

4916 ROBINSON v. YORK
because of the content of his protected speech, not the manner

in which he filed his complaints. This factual dispute cannot

be resolved on summary judgment. 

Clearly Established

[15] Where a “constitutional right would have been violated were [the plaintiff’s] allegations established,” a court

must also determine whether the right was clearly established.

Saucier, 533 U.S. 194; see also Pearson, 129 S. Ct. 808.

“Whether an official protected by qualified immunity may be

held personally liable for an allegedly unlawful official action

generally turns on the ‘objective legal reasonableness’ of the

action assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v. Creighton,

483 U.S. 635, 639 (1987) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818-19 (1982)). 

[16] The plaintiff “bears the burden of proving that the

rights [he] claims were ‘clearly established’ at the time of the

alleged violation.” Moran, 147 F.3d at 844. The “contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640. “Notwithstanding this particularity requirement, ‘closely analogous preexisting case law is not

required to show that a right was clearly established.’ ” Hufford, 249 F.3d at 1148 (citing White v. Lee, 227 F.3d 1214,

1238 (9th Cir. 2000)). 

[17] All of the relevant decisions defining the scope of

Robinson’s constitutional rights were decided well before

April of 2005, when Robinson first might have been considered for promotion to lieutenant, giving Defendants adequate

notice that their actions would violate those rights. The

Supreme Court had decided Pickering, establishing that the

First Amendment protects employee speech on matters of “legitimate public concern,” in 1968. Pickering, 391 U.S. at 571-

72. It was also already clear that only a “real, not imagined,

ROBINSON v. YORK 4917
disruption” might outweigh the expressive interests of the

employee, that this exception cannot serve as a “pretext,” and

that “employers would be required to make an even ‘stronger

showing’ of disruption when the speech dealt . . . directly with

issues of public concern.” McKinley, 705 F.2d at 1114. 

An employer’s written policy requiring speech to occur

through specified “channels” had been held insufficient to justify retaliation motivated by protected speech. Anderson, 746

F.2d at 506. “[M]isuse of public funds, wastefulness, and

inefficiency in managing and operating government entities”

had been held “matters of inherent public concern.” Roth, 856

F.2d at 1405. 

Therefore, at the time defendants acted in 2005 and 2006,

both the constitutional protection of employee speech and a

First Amendment cause of action for retaliation against protected speech were clearly established and potentially applicable to Defendants’ conduct.3

The district court’s denial of summary judgment is therefore 

AFFIRMED. 

3Although the Supreme Court recently carved out an exception to this

clearly established law for “expressions employees make pursuant to their

professional duties” in Garcetti, 547 U.S. at 426, Garcetti does not affect

whether Defendants are entitled to qualified immunity at this stage of the

proceedings. Assuming a fact-finder resolves the factual dispute regarding

Robinson’s job duties in Robinson’s favor, the clearly established law that

existed at the time Defendants acted will apply, materially unaltered by

Garcetti. 

4918 ROBINSON v. YORK