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SYLVIA J. WASSON, an individual, Plaintiff-Appellant,
v.
SONOMA COUNTY JUNIOR COLLEGE; GOVERNING BOARD OF THE SONOMA
COUNTY JUNIOR COLLEGE DISTRICT; ROBERT F. AGRELLA; JAMES MITCHELL;
JOHN ROBERTS, Defendants-Appellees.
No. 98-15967
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-97-02767-WHO
Appeal from the United States District Court for the Northern
District of California
William H. Orrick, Jr., District Judge, Presiding
Argued and Submitted June 17, 1999
Submission Vacated June 23, 1999
Resubmitted August 2, 1999
San Francisco, California
Before: Mary M. Schroeder, Betty B. Fletcher, and Cynthia
Holcomb Hall, Circuit Judges.
COUNSEL
Scott L. Steever, Lanahan & Reilley, Santa Rosa, California,
for the plaintiff-appellant.
Larry J. Frierson and Scott N. Kivel, Liebert, Cassidy
& Frierson, San Francisco, California, for the defendants-appellees.
Filed February 16, 2000
SCHROEDER, Circuit Judge:
The dispositive issue is whether a public employee can
maintain a claim that her employer wrongfully retaliated against
her for the exercise of First Amendment rights to free speech
when she denies having made the speech in question. We conclude
that the plaintiff fails to state a First Amendment claim in
these circumstances because she cannot show the alleged wrongful
conduct was in retaliation for any exercise of her free speech
rights.
Sylvia Wasson is a professor in the Sonoma County Junior
College District ("the District" ). She filed this
suit against District President Robert Agrella and District Vice
President John Roberts after they recommended Wasson' s termination
to the District' s Governing Board. It is undisputed that defendants
sought to fire Wasson because they believed her to be the author
of six publicly disseminated writings that vilified Agrella.
Wasson vigorously denies that she is the author of these writings.
The district court granted defendants' motion to dismiss Wasson'
s First Amendment claim on the basis of qualified immunity. We
affirm on different grounds because we conclude that Wasson has
failed to state a claim.
FACTS
From August 1995 to October 1996, a series of five anonymous
letters and one anonymous flyer ("the letters" ) were
disseminated throughout the college community of the District.
The letters accused Agrella of various types of misconduct. The
District' s Governing Board ("the Board" ) responded
to these letters by launching an investigation to determine who
authored the letters. The Board empowered District counsel Robert
Henry to hire a private investigator and a document examiner
to assist in the investigation.
Wasson was identified as one of three individuals whom
Agrella suspected as the author of the letters. At the time,
Wasson was employed as an instructor by the District. Agrella
authorized that Wasson' s personnel file be turned over to the
document examiner. Based on a comparison of handwriting and prose
style, the document examiner concluded that Wasson wrote the
letters. Wasson denies that she is the author or disseminator
of the letters. On the basis that Wasson' s alleged authorship
of the letters constituted "evident unfitness for service,"
Roberts presented to the Board a recommendation for Wasson' s
dismissal on January 14, 1997. The recommendation included a
Statement of Charges that stated, in pertinent part:
Individually and collectively, these [letters] contain statements
about Dr. Robert Agrella, the Superintendent/ President of Sonoma
County Junior College District, that are false and defamatory
and which had the purpose or effect of undermining his leadership
of the College District and that brought public discredit to
the College District.
The Board adopted the recommendation and issued a Notice
of Decision to Dismiss Wasson that day. Wasson alleges that Roberts
may have been ordered by Agrella to present the recommendation
to the Board. Thus, for purposes of the defendants' motion to
dismiss, we assume that both Agrella and Roberts recommended
Wasson' s dismissal.
Wasson was placed on paid leave pending an administrative
appeal of her termination. On March 24, 1997, the Board withdrew
without prejudice the Notice of Decision to Dismiss and reinstated
Wasson to her instructor position. She is currently employed
by the District in that position. Wasson alleges, however, that
the Board can terminate her at any time until October 28, 2000
by reinstating the Notice of Decision to Dismiss.
Wasson' s First Amended Complaint, which we review here,
names only Agrella and Roberts as defendants. She contends that
the defendants violated her free speech rights by (1) their conduct
in investigating the letters, which led to their conclusion that
Wasson was the author; and (2) the defendants' role in recommending
that Wasson be terminated on the basis that she wrote the letters.
The district court granted qualified immunity to Agrella and
Roberts on their motion to reconsider the district court' s earlier
denial of the defendants' motion to dismiss.
DISCUSSION
It is well-settled that the First Amendment precludes
retaliation by a public employer against an employee on the basis
of certain instances of protected speech by the employee. See
Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board
of Educ., 391 U.S. 563 (1968). A public employee' s speech
is protected when it relates to a matter of public concern, see
Connick, 461 U.S. at 146, and the employee' s interest in
engaging in such speech outweighs the public employer' s interest
"in promoting the efficiency of the public services it performs
through its employees." Pickering, 391 U.S. at 568.
This First Amendment case is unusual because Wasson
asserts that the defendants retaliated against her for speech
that she insists she did not make. Accepting Wasson' s allegations
as true, she thus has not engaged in any relevant constitutionally
protected speech. Yet, she claims that her free speech rights
under the First Amendment were violated because the defendants
falsely imputed to her the letters critical of Agrella.
Several of our sister circuits have rejected claims
identical to Wasson' s, holding that there can be no First Amendment
cause of action where there was no speech by the plaintiff. See
Jones v. Collins, 132 F.3d 1048, 1054 (5th Cir. 1998); Fogarty
v. Boles, 121 F.3d 886, 890-91 (3d Cir. 1997); Barkoo
v. Melby, 901 F.2d 613, 619 (7th Cir. 1990). This circuit,
although never squarely addressing the issue in question, has
recognized that a plaintiff must demonstrate that she has engaged
in constitutionally protected expression to establish a First
Amendment retaliation claim. See Moran v. Washington,
147 F.3d 839, 846 (9th Cir. 1998) (citing Board of County
Comm' rs v. Umbehr, 518 U.S. 668, 675 (1996)). Having denied
that she wrote the letters, Wasson undermines her claim that
the defendants' conduct impermissibly chilled her speech. "[A]
free speech claim depends on speech, and there was none in this
case." Fogarty, 121 F.3d at 890.
A First Amendment retaliation claim is not a wrongful
termination claim. Rather, a First Amendment retaliation claim
seeks to vindicate a public employee' s exercise of free speech
rights when she has suffered an adverse employment action in
response to having spoken out publicly. It cannot be used to
remedy a case of mistaken identity. In fact, the Supreme Court
has "never held that it is a violation of the Constitution
for a government employer to discharge an employee based on substantively
incorrect information." Waters v. Churchill, 511
U.S. 661, 679 (1994). Accordingly, there can be no First Amendment
claim when an employee is falsely accused of making statements
uttered by someone else.
Wasson argues that she should be able to maintain her
action because she is defending the First Amendment rights of
the anonymous author of the letters. Wasson is certainly correct
to point out that an author' s anonymity is an aspect of free
speech protected by the First Amendment. See McIntyre v. Ohio
Elections Comm' n, 514 U.S. 334, 341-42 (1995). She fails
to explain, however, how she has standing to assert the anonymous
author' s rights. Parties ordinarily are not permitted to assert
constitutional rights other than their own. See NAACP v. Alabama,
357 U.S. 449, 459 (1958). A litigant can maintain "third
party" standing only when she satisfies a three-prong test:
(1) the litigant must have suffered an "injury in fact,"
(2) the litigant must have a close relation to the third party,
and (3) there must exist some hindrance to the third party' s
ability to protect his or her own interests. Powers v. Ohio,
499 U.S. 400, 410-11 (1991). Wasson, at a minimum, fails the
second prong because she has established no relationship between
herself and the anonymous author.
Wasson also suggests that defendants violated the First
Amendment because they conducted an unreasonable investigation
to determine that she was the alleged author of the letters.
In Waters v. Churchill, 511 U.S. 661 (1994), Justice O'
Connor' s plurality opinion acknowledged that a public employer
violates the First Amendment when it employs "procedures
outside the range of what a reasonable manager would use"
to determine what an employee supposedly said. Id. at 678.
The facts of Waters demonstrate, however, that it does not
apply to a situation where the employee denies having spoken
at all. In Waters, the employer received two different
versions of plaintiff' s speech: one version would have been
protected under the First Amendment while the other could permissibly
have served as the basis for plaintiff' s discharge. Id. at
665-66; see Fogarty, 121 F.3d at 889. Justice O' Connor reasoned
that the employer is subject to liability under the First Amendment
if an unreasonable investigation led it to believe the unprotected
version of plaintiff' s speech. The logic behind Waters
is that an employer that fails to conduct a reasonable investigation
may not escape liability for mistaken retaliation against an
employee who has engaged in protected speech. The case concerned
a mistake about the content of the plaintiff' s speech, not about
the identity of the speaker.
AFFIRMED.
B. FLETCHER, Circuit Judge, Dissenting:
I respectfully dissent. The majority disposes of this
case on the grounds that Sylvia Wasson failed to state a claim
under the First Amendment. It holds that because she denies writing
a series of letters that were imputed to her by her employer,
she has no standing to challenge and seek recompense for the
retaliation she suffered - a threat of firing, placement on forced
administrative leave, and public humiliation. The majority completely
ignores the chilling effect its holding will have on her as well
as other individuals seeking to exercise their right to speak
anonymously.
The majority would resolve this case by finding that
Wasson does not have standing to assert another' s rights to
anonymous speech. But the right at stake is her right
not to be retaliated against for speech she either made anonymously
or did not make at all. She has been injured. The majority finds
Waters v. Churchill, 511 U.S. 661 (1994) inapplicable
because in Waters the plaintiff acknowledged speaking
but disputed what was said. Justice O' Connor' s plurality opinion
acknowledged that a public employer violates the First Amendment
when it does not conduct a reasonable investigation as to what
was said. I would find Waters fully applicable in the
setting of this case: to determine what wasn' t said by the employee
is equally as important as determining what was said. In this
case as well as Waters, the issue is whether the employee
was wrongfully accused and whether the utterance was or was not
protected.
The employer should not escape liability unless it proves
both that Wasson was the speaker and further, that if
she were the speaker, her speech was not protected (i.e. not
on a subject of public importance).
Anonymous speech has long been protected by the First
Amendment. As the Supreme Court has reminded us, "Anonymous
pamphlets, leaflets, brochures and even books have played an
important role in the progress of mankind." Talley v.
California, 362 U.S. 60, 64 (1960); see also McIntyre
v. Ohio Elections Comm' n, 514 U.S. 334 (1995) (discussing
central role of anonymous speech in free marketplace of ideas).
I cannot join the majority in holding that the protection provided
by the First Amendment does not extend to Wasson, an individual
who has been targeted and punished for allegedly uttering anonymous
speech on the grounds that she denies making the statements at
issue.
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