Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding D.C. No. 3:04-cv-00559-
The opinion of the court was delivered by: McKEOWN, Circuit Judge:
Argued and Submitted March 17, 2011-San Francisco, California
Before: Thomas M. Reavely,*fn1 M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
Opinion by Judge McKeown;
This case tests the bounds of a public employer's right to discharge or demote an employee for taking action on a matter of public concern. Under the balancing test in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), we have long given public employers significant discretion to discipline employees if their conduct disrupts the workplace. That discretion, however, has never been unfettered. An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the work-place or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the "because I said so" approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption.
Kathleen Nichols, a former employee of the Washoe County School District ("District"), was forced to take early retirement after attending a school board meeting at which her boss was fired. The District claimed it was concerned that her association with her former boss would create conflicts in the office. Viewing the record in the light most favorable to Nichols, however, it appears the triggering factor in the District's action was simply Nichols's decision to sit next to her boss at the public board meeting, without even speaking to him. Because the District produced no evidence that Nichols's association with her boss actually disrupted the office or her performance, or reasonably threatened to cause future disruption, the District has failed to show that its interests in work- place efficiency outweigh Nichols's First Amendment interests. Accordingly, we reverse the district court's grant of summary judgment in favor of the District.
Nichols worked for the District for nine years. During her last six years, she served as the administrative assistant to Jeffrey Blanck, the District's General Counsel. In this position, Nichols reported directly to Blanck and had a variety of responsibilities related to the District's legal matters, including providing litigation support and managing case files. Nichols and Blanck were friends and would sometimes socialize outside the office.
In late 2003, a dispute developed between Blanck and James Hager, the District Superintendent, over allegations by Blanck that Hager had misused District funds. On January 16, 2004, Blanck was suspended as General Counsel. Laura Dancer, the head of Human Resources for the District, told Nichols about Blanck's suspension and instructed her that she should no longer take direction from Blanck, but only from Hager or Dancer.
After Blanck was suspended, Nichols was transferred to a temporary position in the Human Resources department, while decisions were made about the future of the General Counsel's office. She got along well with her colleagues in Human ...