IMLA Appellate Practice Blog - December 5, 2013
If a public employee reports departmental-safety concerns to his supervisor, and the employee is removed from duty for raising those concerns, does the employee have a viable First Amendment retaliation claim?
In Hagen v. City of Eugene, No. 12-35492 (Dec. 3, 2013), the Ninth Circuit ruled that a public employee did not have a viable First Amendment claim under the particular circumstances there. The court ruled that, viewing all the evidence in the light most favorable to the employee, he was speaking as a public employee, not a private citizen.
The case involved a City police officer, Brian Hagen, who noticed that members of his SWAT team were often firing their weapons accidentally and negigently. Hagen tried to make his concerns about the team ”as public as possible” by sending e-mails and raising the issue in meetings. Eventually, Hagen was removed from the K-9 team.
Hagen claimed that the City and senior officers had retaliated against him for exercising his First Amendment rights.
A jury found for Hagen. It awarded him $50,000 in compensatory damages and $200,000 in punitive damages.
The City moved for judgment as a matter of law, which the district court denied. The City then appealed. The Ninth Circuit explained that it must ask five questions:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
A plaintiff must prevail under all of these factors. Here, the court focused on factor (2): whether Hagen spoke as a private citizen or public employee. It concluded that there was not sufficient evidence to support the jury’s finding that Hagen spoke as a private citizen.
The court explained that “speech which owes its existence to an employee’s professional responsibilities is not protected by the First Amendment.” Huppert v. City of Pittsburgh, 574 F.3d 696, 704 (9th Cir. 2009). The inquiry is a “practical one.” Garcetti v. Ceballos, 547 U.S. 410 (2006).
Conducting this inquiry, the court found that Hagen raised his concerns to superiors, not individuals outside the organization. His concerns were also about particular incidents or occurrences, not “corruption or systemic abuse.” It was also among Hagen’s official duties to report these safety concerns. The court further rejected Hagen’s argument that he was not “reporting” anything, because these issues were already known. And unlike the safety concerns raised in Marable v. Nichman, 511 F.3d 924 (9th Cir. 2007), the court found that Hagan’s concerns were “inextricably intertwined with his duties as a K-9 officer.” They “contain all the hallmarks of traditionally internal work-place complaints one would typically except an officer to communicate to his supervisors.”
Image courtesy of Flickr by NCSPhotography (creative commons license, no changes made).
* This blog post was originally published in IMLA Appellate Practice Blog, December 5, 2013. Republished with permission. Visit www.imla.org/blog to read additional IMLA Appellate Practice Blog posts.