Appeal from the United States District Courtfor the Southern District of NevadaDavid W. Hagen, District Judge, PresidingArgued and SubmittedDecember 8, 1998--San Francisco, CaliforniaFiled March 12, 1999Before: Harry Pregerson and Melvin Brunetti,Circuit Judges, and Ann L. Aiken,* District Judge.Opinion by Judge Pregerson
______________________COUNSEL Peter M. Angulo, Rawlings, Olson, Cannon, Gormley & Des-ruisseaux, Las Vegas, Nevada, for the defendant-appellant.Kristina S. Holomon, Las Vegas, Nevada, for the plaintiff-appellee.
_____________________________OPINION PREGERSON, Circuit Judge:Georgia Nunez is a former court administrator for the Cityof North Las Vegas Municipal Court. In 1993, a conflictdeveloped between Nunez and her supervisor, Judge GaryDavis, who instructed Nunez to limit attendees at trainingseminars to those court employees who had worked in hisreelection campaign. In protest, Nunez arranged for two courtclerks who did not work in Davis's reelection campaign toattend a training seminar. Davis fired Nunez. She brought a42 U.S.C. S 1983 action against Davis and against the City ofNorth Las Vegas. Nunez's complaint charged that Davis, act-ing under color of state law, violated her First Amendmentright to free speech when he fired her. The district courtdenied Davis's repeated motions for qualified immunity. Thecourt granted the city's motion to dismiss on the ground thatthe municipal court system has Eleventh Amendment immu-nity. The case then proceeded to trial against Davis. The juryreturned a verdict in Nunez's favor for $141,446.31.Davis appeals from the judgment entered against him, thedenial of a motion for summary judgment, and the denial ofa renewed motion for judgment as a matter of law under Fed-eral Rule of Civil Procedure 50. He makes three arguments onappeal: (1) that Nunez's conduct in allowing the two courtclerks to attend the training seminar is not constitutionallyprotected speech; (2) that the district court erred in denyingDavis' motions for qualified immunity and in declining tosubmit the qualified immunity issue to the jury; and (3) thatthe district court erred in submitting the First Amendment"public concern" issue and the issue whether Nunez's conductwas speech to the jury. We address each of Davis's argumentsin turn and affirm the district court for the following reasons.I.A. Nunez's conduct implicates the First Amendment .[1] To determine whether a public employee's supervisorviolated an employee's First Amendment right to free speech,we must first determine whether speech was involved at all.Davis argues that Nunez's conduct in allowing the two courtclerks to attend the training seminar was not speech becauseshe merely refused to follow his orders and her conduct didnot communicate any particular message. But we "have longrecognized that [First Amendment] protection does not end atthe spoken or written word." Texas v. Johnson,
491 U.S. 397
,404 (1989). Non-verbal conduct implicates the First Amend-ment when it is intended to convey a "particularized message"and the likelihood is great that the message would be sounderstood. Id. Nunez testified that she intended by her con-duct to convey a message to the court clerks and co-workersthat Davis should not condition court clerks's benefits onworking in his reelection campaign. The court clerks, as wellas co-employees, testified that they understood that message.Thus, Nunez's expressive conduct (hereafter "symbolicspeech" or "speech") possessed "sufficient communicativeelements to bring the First Amendment into play. " Texas, 491U.S. at 404.[2] Another critical inquiry is whether the public employ-ee's speech addresses a matter of public concern. See Allen v.Scribner, 812 F.2d 426, 430 (9th Cir. 1987). 1 Whether a pub-lic employee's speech or expressive conduct involves a matterof public concern depends upon "the content, form, and con-text of a given statement, as revealed by the whole record."Connick v. Myers,
461 U.S. 138, 147
-48 (1983). A publicemployee's speech or expressive conduct deals with a matterof public concern when it "can be fairly considered as relatingto a matter of political, social, or other concern to thecommunity." Voigt v. Savell, 70 F.3d 1552, 1559 (9th Cir.1995). Speech that deals with "complaints over internal officeaffairs" is not protected when it is not relevant to the public'sevaluation of a governmental agency's performance. Connick,
461 U.S. at 149
.[3] The Supreme Court has held that speech similar toNunez's inherently concerns the public interest. In Connick,the Court considered whether an internal office questionnairedistributed by an assistant district attorney who objected tobeing transferred constituted protected speech on a matter ofpublic concern. The questionnaire concerned "office transferpolicy, office morale, the need for a grievance committee, thelevel of confidence in supervisors, and whether employeesfelt pressured to work in political campaigns." Id. at 141. TheCourt determined that all items in the questionnaire--exceptthe political campaign question--were matters that addressedinternal office policy and did not involve speech on a matterthat would potentially concern the public. See id. at 148.In contrast, the Court in Connick determined that whetherany assistant district attorney felt pressured to work in politi-cal campaigns did involve a matter of potential public concernbecause "there is a demonstrated interest in this country thatgovernment service should depend upon meritorious perfor-mance rather than political service." Id. at 149. The Court fur-ther noted that such speech involved a matter of publicconcern because "official pressure upon employees to workfor political candidates not of the worker's own choice consti-tutes a coercion of belief in violation of fundamental constitu-tional rights." Id. (citing Branti v. Finkel,
445 U.S. 507
, 515-516 (1980); Elrod v. Burns,
427 U.S. 347
(1976)). Thus, theCourt concluded that the issue "whether assistant districtattorneys are pressured to work in political campaigns is amatter of interest to the community upon which it is essentialthat public employees be able to speak out freely without fearof retaliatory dismissal." Connick,
461 U.S. at 149
.[4] Nunez spoke out to protect the rights of court employ-ees pressured by Davis to work on his reelection campaign.2She did not act to further her own personal interests. SeeBrewster v. Board of Educ., 149 F.3d 971, 980 (9th Cir.1998); McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9thCir. 1983). In addition, her symbolic speech was relevant tothe public's evaluation of the performance of a public officialand the court system. See Voigt, 70 F.3d at 1560 (finding thatcourt clerk's speech regarding possible hiring bias againstout-of-state applicants touched on a matter of public concernbecause the public has an interest in knowing whether thecourt treats its job applicants fairly).Davis argues that while the content of Nunez's symbolicspeech may have addressed a matter of inherent public con-cern, the form and context of her speech did not make it suffi-ciently "public" to trigger First Amendment protection. Daviscontends that Nunez's conduct arose out of a fit of spite, anddid not communicate any message to her co-workers. In addi-tion, Davis points out that Nunez did not express her concernsto the press or to any other public official.[5] But Davis's argument has no basis in law or fact. Nunezdid communicate a message through her symbolic speech.One of the clerks attending the seminar testified she wasaware of Davis's "policy" disallowing individuals who didnot help in his campaign from attending training seminars,and that she was surprised she was allowed to attend. MarilynBell, a court employee, testified that everyone in the officeknew of Davis' policy and that Nunez took a risk by sendingthe clerks to the seminar. Further, the fact that Nunez did nottake her concerns to the press "does not vitiate the status ofthe statement as addressing a matter of public concern."Rankin v. McPherson,
483 U.S. 378
, 386-87 n.11 (1986).There is no legal requirement that a public employee's speechbe made public in order to constitute speech on a matter ofpublic concern. See, e.g., Givhan v. Western Line Consol. Sch.Dist.,
439 U.S. 410, 413
-17 (1979) (stating that First Amend-ment protection applies when a public employee arranges tocommunicate privately with employer rather than express hisviews publicly).Davis also argues that Nunez's conduct is not protectedspeech but unprotected insubordination. As this court hasheld, "[i]ssuance of unauthorized orders by an employee, onbehalf of the institution, is not protected speech. " Nelson v.Pima Community College, 83 F.3d 1075, 1081 (9th Cir.1996). But the cases Davis cites for this proposition are inap-posite. In Nelson, this court considered whether a collegeadministrator who disagreed with the college's affirmativeaction policy could receive First Amendment protection foractions she took to undermine the policy. The employee inthat case had fundamental differences with her supervisor andofficial college policy. On numerous occasions, she ordereddepartments to halt hiring faculty so she could first reviewtheir affirmative action records, despite instructions from hersuperiors that she had no authority to make such demands.Nelson's disagreement with the college president and the col-lege policy, and her refusal to perform her duties in accor-dance with their instructions, "threw the whole college intoturmoil." Id. at 1080.Another case cited by Davis, Kotwica v. City of Tucson,801 F.2d 1182 (9th Cir. 1986), involved a recreation supervi-sor in the city parks department who, against the direct ordersof her supervisor, used an official press interview to contra-dict agency policy. This court found the employee did nothave a First Amendment right to appropriate an official inter-view for her own purposes and to misrepresent the city's posi-tion, because the city also had a "vital speech interest" in the"accurate announcement of its own policy." Id. at 1184.[6] Unlike the employees in these cases, Nunez expressedherself as a public citizen about what she believed to beDavis's unjust practice concerning attendance at training sem-inars. Second, in contrast to Nelson, where the subordinateemployee had broad, philosophical, and political differenceswith the president and the college employing her, Nunez didnot disagree with Davis on general matters of court policy.Nunez only disagreed with Davis on one matter of public con-cern--his conditioning of attendance at training seminars onassistance in his reelection campaign. Her conduct should notbe labeled as insubordination, but rather, symbolic speech ona matter of public concern.B. Nunez's conduct is constitutionally protected underthe Pickering balancing test.[7] Even where a public employee's speech implicates agenuine matter of public concern, a public employer may stillbe justified in firing the employee. In determining a publicemployee's rights to free speech, courts must strike a balance"between the interests of the [employee], as a citizen, in com-menting upon matters of public concern and the interest of theState, as an employer, in promoting the efficiency of the pub-lic services it performs through its employees." Pickering v.Board of Educ.,
391 U.S. 563, 568
(1968). The employer'sinterest outweighs the employee's interest in speaking on amatter of public concern if the employee's speech "impairsdiscipline by superiors or harmony among co-workers, has adetrimental impact on close working relationships for whichpersonal loyalty and confidence are necessary, or impedes theperformance of the speaker's duties or interferes with the reg-ular operation of the enterprise." Rankin,
483 U.S. at 388
.[8] We conclude that Davis did not show that Nunez'sspeech impaired discipline or harmony among co-workers.Davis testified that the absence of the clerks for two days toattend the training seminar disrupted office routine and exac-erbated the court's backlog. Everyone else in the office testi-fied that the backlog existed prior to Nunez's speech, and thatthe problem was not made worse as a result of her speech.[9] Davis also argues that Nunez's speech impaired his"close working relationship" with Nunez. There is little meritto this claim. As this court has previously stated,"real, notimagined, disruption is required, and the `close working rela-tionship' exception cannot serve as a pretext for stifling legiti-mate speech or penalizing public employees for expressingunpopular views." McKinley, 705 F.2d at 1115. A publicemployer cannot claim disruption of a close personal relation-ship to cover up animus toward an employee's speech and adesire to silence the employee.[10] Furthermore, Davis did not show that Nunez's sym-bolic speech interfered with her ability to perform her job orthe regular operation of the court. Davis testified that his rela-tionship with Nunez became "quite strained" after the seminarincident and that the erosion of their relationship had anadverse impact on the court, but Bell testified that Nunezclearly remained loyal to Davis and there was no noticeabledifference in Nunez's and Davis's relationship. In fact, Bellsaid she was "shocked" when Davis fired Nunez. As the ver-dict below suggests, the jury simply did not find Davis's testi-mony credible.[11] In addition, the verdict demonstrates that the juryrejected Davis's justifications for firing Nunez as pretextual.Nunez testified that prior to her termination, Davis told herthat she had "failed him" for a number of reasons, includingher failure to change stained ceiling tiles in his office, to cleanup leaves outside the office, and to obtain his desired raise of$7,500 from the city council. But the jury found that Nunez'sspeech--and not Davis' stated reasons--was the substantialmotivating factor in Davis' decision to fire Nunez, and thatshe would not have been fired but for her speech.[12] In short, Davis has offered no credible evidence to tipthe scales in his favor, and thus has failed to demonstrate astate interest that outweighs Nunez's First Amendment rights.Nunez's expressive conduct of allowing the court clerks toattend the training seminar is therefore constitutionally pro-tected under the Pickering balancing test.II.Whether a public official is entitled to qualified immunityis a question of law. See Hyland v. Wonder, 117 F.3d 405,409 (9th Cir. 1997), cert. denied, 118 S. Ct. 1166 (1998).Thus, the district court did not err in declining to submit thisissue to the jury.[13] A district court's decision on qualified immunity isreviewed de novo.3 See id. To preclude a state official fromreceiving qualified immunity for dismissing a publicemployee in violation of her First Amendment rights, Nunezmust show that her asserted right was clearly established andthat her employer could not have reasonably believed that thedismissal was proper. See Moran v. Washington, 147 F.3d839, 844-85 (9th Cir. 1998). Nunez has met that burden. First,her speech clearly involved a matter of public concern. SeeConnick,
461 U.S. at 149
. In addition, on balance, Nunez'sinterest in exercising her First Amendment rights clearly out-weighs Davis's asserted interest in maintaining an efficientworkplace. The jury found Davis's testimony of office disrup-tion not credible, and his other justifications for firingNunez--her failure to change stained ceiling tiles in hisoffice, to clean up leaves outside the office, and to obtain hisdesired raise of $7,500--pretextual. This being the case, therewere no factors weighing in Davis's favor, and thus Nunez'sright at issue was clearly established. Because the jury foundthat Nunez was fired for her speech and not for the other rea-sons Davis offered, Davis could not have reasonably believedthat Nunez's dismissal was proper.[14] Finally, Davis argues that he is entitled to qualifiedimmunity because he consulted the City Attorney, RichardMaurer, prior to firing Nunez. Davis argues that his relianceon Maurer's advice that he could legally terminate Nunezshould bar imputation to him of "constructive knowledge con-cerning the law allegedly violated by his conduct. " Relianceon the advice of counsel, however, is not dispositive on theissue whether Davis acted reasonably. See Lucero v. Hart,915 F.2d 1367, 1371 (9th Cir. 1990). Here, Davis's argumentis vitiated by Maurer's testimony that Nunez's speech was notamong the reasons Davis gave him for his desire to dismissNunez. In light of this fact, it was not reasonable for Davis torely on Maurer's advice that he could legally dismiss Nunez.Accordingly, the district court correctly ruled that Davis wasnot entitled to qualified immunity.III.[15] The district court erroneously submitted to the jury thequestion whether Nunez's speech implicated a matter of pub-lic concern and whether her conduct was speech. This is prop-erly a question of law. See Connick,
461 U.S. at 148
n.7. Errorin instructing a civil jury does not require reversal if it is morelikely than not harmless. See Benigni v. City of Hemet, 879F.2d 473, 479 (9th Cir. 1989). Here, the district court's erroris harmless because, as the above discussion demonstrates,Nunez's speech involved a matter of public concern.AFFIRMED. the end
___________________________FOOTNOTES 1 The determination whether speech involves a matter of public concernis a question of law. See Connick v. Myers,
461 U.S. 138
, 148 n.7 (1983).Although, as we discuss infra, the district court erred by submitting thisquestion to the jury, the court implicitly held that Nunez's speech involveda matter of public concern when, in denying Davis' motion for judgmentas a matter of law, the court noted that "the government has no interest inthe chilling of an employee's political expression. " We review this ques-tion de novo. Allen, 812 F.2d at 430 n.8.2 As Nunez testified, "I was tired of him pressuring everybody to workon the campaign . . . . I felt very protective of those clerks."3 Davis is not entitled to absolute immunity because the hiring and firingof court personnel is a non-judicial act for absolute immunity purposes.See Forrester v. White,
484 U.S. 219, 229
(1988).