Pamela Mansfield v. Dawn Pfaff ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA MANSFIELD, No. 15-35788
Plaintiff-Appellant, D.C. No. 2:14-cv-00948-JLR
v.
MEMORANDUM*
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.
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.
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.
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