No Immunity For Police Chief As To Claims That He Failed To Promote An Officer Based On Her Sex

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Oct 26, 2021

In 2017, Julie Ballou, a police officer in Vancouver, Washington, took an examination for promotion to the rank of sergeant. Under Washington civil service rules, a chief of police has the discretion to promote any of the three highest-scoring candidates.  Between 2013 and 2018, the Vancouver Police Department’s Chief of Police, James McElvain, promoted the highest-ranked person on the relevant list.

In the months after the sergeant’s promotional exam, McElvain initiated multiple investigations as to Ballou’s alleged violations of the Department’s report writing policy.  While the investigations were pending, McElvain promoted two male officers who ranked lower than Ballou on the promotional list.  After the investigations were concluded, Ballou received a letter of reprimand.  McElvain informed Ballou that he would not promote her due to these investigations even though she was now the highest scoring officer up for promotion.  Previously, two male officers had received promotions to corporal despite having been disciplined after personnel investigations.  Moreover, a third male officer had failed to follow the Department’s report writing policies, but he was not investigated.

Ballou submitted multiple complaints to the City of Vancouver, including an emailed complaint to the City Manager alleging that she was the victim of sex discrimination. In May 2019, more than a year after she first became eligible for promotion, McElvain promoted Ballou to the rank of sergeant.

Ballou sued, alleging that McElvain violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.  She alleged she was discriminated against because of sex as a result of the internal affairs investigations that the Chief said precluded her eligibility for promotion; and the Chief’s decision not to promote her for over a year. Ballou also claimed McElvain retaliated against her for alleging discrimination in her various complaints.

McElvain moved for summary judgment, asserting qualified immunity as to Ballou’s claims. Qualified immunity grants government officials performing discretionary functions immunity from civil suits unless the person suing shows that the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. The district court denied the motion, and McElvain appealed.

The Ninth Circuit Court of Appeals accepted the appeal only as to whether the denial of qualified immunity was appropriate as a matter of law.  The Ninth Circuit did not agree with McElvain’s arguments.  As to Ballou’s sex discrimination claim under the Fourteenth Amendment, the Ninth Circuit found that Ballou’s allegations showed that McElvain’s conduct violated her constitutional right to be free from denial of promotion on account of sex.  The Ninth Circuit further held that any reasonable officer would recognize that using an investigation to stall a promotion on the basis of sex was unconstitutional.

McElvain also alleged that Ballou’s sex discrimination claim failed because the male officers promoted over Ballou were not sufficiently similar to Ballou to demonstrate disparate treatment on the basis of sex. The Ninth Circuit disagreed, holding that the existence of a similar comparator was not the only way to allege disparate treatment.

As to Ballou’s retaliation claim under the First Amendment, McElvain alleged that he was entitled to qualified immunity because Ballou’s speech was not a matter of public concern or constitutionally protected. The Ninth Circuit disagreed.  It held that Ballou’s opposition to sex discrimination in the workplace was inherently speech on a matter of public concern and clearly protected by the First Amendment.

Ballou v. McElvain and City of Vancouver, (9th Cir. 2021) ___ F.4th ___ [2021 WL 4436213].

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