The? plaintiff? was ?a ?program ?manager ?for? a private company that provided domestic violence treatment services to the Seattle Municipal Court. He ?was ?subpoenaed ?to ?testify? as ?an ?expert witness in a hearing on behalf of a criminal defendant about treatment received pursuant to a court? ?order.???? ?A?? municipal? ?court? ?employee brought the testimony to the attention of the plaintiff?s manager who brought the concern to the employer.? ?The employer wrote a letter terminating his employment due to recent complaints from the City.

He filed a complaint against both the city employee manager and his employer for First Amendment retaliation.?? The employer settled. The city employee manager moved for summary judgment claiming the speech did not enjoy First Amendment? protection ?and? even? if ?it? did? the right was not clearly established to overcome qualified immunity. ?Judge Zilly ruled in favor of the city employee manager but the Ninth Circuit reversed.

The Court rejected the employee?s argument that the Pickering balancing test does not apply to independent contractors.?? But the panel agreed with the employee his testimony was protected speech.? ?The court refused to decide whether truthful testimony pursuant to a subpoena is always a matter of public concern.?? It held that here the speech was a public concern because it involved treatment per a court order. ?The court held it was irrelevant whether the court actually relied on the testimony. ?The very fact the speech was in a courtroom weighed in favor of protection.? ?The testimony was not about a personal or internal matter.

The court ruled that the plaintiff?s official duties did not require him to testify as an expert witness. The? court ?rejected ?the ?employer?s argument ?the testimony? was ?actually? disruptive ?of ?the workplace. ?A complaint from a city employee was not ?sufficient ?proof ?of ?disruption.???? The ?Ninth Circuit held that the law clear at the time of the plaintiff?s termination was sufficiently to deny qualified immunity.?Clairmont v. Wilson, — F.3d ? (1/19/11) (Paez, Graber, Burns (S.D. Cal.))