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Ballou v. McElvain

United States District Court, W.D. Washington, Tacoma

August 12, 2019

JULIE BALLOU, Plaintiff,



         THIS MATTER is before the Court on Defendants James McElvain and City of Vancouver's Motion for Partial Judgment on the Pleadings. Dkt. #24. Plaintiff Julie Ballou, a police officer in Vancouver, alleges that McElvain, Vancouver's Police Chief, discriminated against her on the basis of sex in failing to promote her to a sergeant position. She sued him and the City under 42 U.S.C. § 1983 for violation of her First and Fourteenth Amendment rights, and sued the City under state and federal law for Sex Discrimination and Retaliation.

         Defendants argue Ballou failed to allege facts plausibly showing that the City had an unlawful official policy of sex discrimination, and that it is not responsible for McElvain's actions because he is not a “final policymaker.” They also argue that Ballou's First Amendment claim is negated because it is not a “matter of public concern.” Finally, Defendants argue that McElvain is entitled to qualified immunity because it is not clearly established that Ballou's claims constitute a matter of public concern, or that the Fourteenth Amendment protects


         1. Legal Standard

         The standard applicable to a 12(c) motion for judgment on the pleadings mirrors that of a 12(b)(6) motion to dismiss. See Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff's complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Although the Court must accept as true the complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c) motion. See Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation *1150 of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft, 129 S.Ct. at 1937 (citing Twombly). The Court must construe all allegations in the light most favorable to the nonmoving party. See Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991).

         2. Municipal Liability

         Defendants argue that the City is not liable for McElvain's actions because Ballou did not plausibly allege that McElvain's sex discrimination was part of a “custom and practice so sufficiently widespread to amount to a deliberately indifferent municipal policy.” Dkt. #24 at p. 9. They also argue that the Vancouver City Charter, not McElvain, has the final policymaking authority that could otherwise trigger municipal liability.

         Ballou responds that her complaint alleges “repeated constitutional violations directed at plaintiff because of her gender; the failure to take corrective action to stop the constitutional violations after notice; and the occurrence of additional constitutional violations against plaintiff and others.” Dkt. #25 at p. 3. She also argues that the City Manager is the policymaker with respect to personnel affairs, who plausibly delegates that authority to the Chief of Police “for development of policy related to the Police Department.” Dkt. #25 at p. 8.

         Municipalities can be liable for their employees' constitutional violations under Section 1983, but not under a respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 439 S.Ct. 2018 (1978). Instead, a plaintiff must show a “deliberate” official municipal policy or custom which “was the moving force behind the injury alleged.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 117 S.Ct. 1382 (1997). This can be established in one of three ways: “(1) that an employee was acting pursuant to an expressly adopted official policy; (2) that an employee was acting pursuant to a longstanding practice or custom; or (3) that an employee was acting as a ‘final policymaker.'” Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). If an employee is a final policymaker, “a municipality can be liable for an isolated constitutional violation, ” even if there is no longstanding custom or the “decision is not intended to govern future situations.” Christie v. Iopa, 176 F.3d 1231, 1235 (1999) (citing City of St. Louis v. Praprotnik, 108 S.Ct. 915 (1988); Gillette v. Delmore, 979 F.2d 1342, 1347 (1992)).

         Whether an employee is a final policymaker is a question of state law. City of St. Louis v. Praprotnik, 108 S.Ct. 915, 924 (1988). While policymaking authority may be delegated directly through legislation, “it may also be delegated by an official who possesses such authority.” Lytle, 382 F.3d at 983 (citing Pembaur v. Cincinnati, 106 S.Ct. 1292 (1986). The essential question is whether the employee has “authority in a particular area, or on a particular issue, ” and whether that authority is “such that a final decision by that person may appropriately be attributed to the District.” Id. (citing McMillian v. Monroe County, 117 S.Ct. 1734 (1997)).

         Ballou alleges that the City Manager is responsible for personnel decisions, and that it is unclear “whether the City Manager has or has not delegated policymaking authority to the Chief of Police.” Dkt. #25 at p. 8. It is an undisputed fact, however, that “McElvain makes hiring decisions for all promotions within the Police Department per the City of Vancouver's civil service rules.” Dkt. #21 at p. 3. Ballou also alleges that the Manager “took no corrective action to stop the unlawful conduct, ” plausibly implying that the Manager either ratified McElvain's decision or that his decision is unreviewable, both of which “state a plausible claim against the City based upon the City Manager delegating authority to the Police Chief for development of policy related to the Police Department.” Dkt. #25 at p. 8. These allegations are plausible.

         3. ...

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