In June 2019 in Greisen v. Hanken,[1] the Ninth Circuit Court of Appeals affirmed a District Court’s decision upholding a jury verdict in favor of a former police chief plaintiff in his First Amendment retaliation suit against a former city manager. In reaching its conclusion, the Court also determined the former city manager was not entitled to qualified immunity.
Background
By mid-2012, Doug Greisen had worked as the chief of police for the City of Scappoose, Oregon for over ten years. Former city manager Jon Hanken was responsible for overseeing the city’s budget and for annually submitting a budget to the city council for review. Hanken typically submitted his budget to the city council shortly before the budget process began, according to City Councilor Judi Ingham, which gave little time for review. Hanken seemed defensive about budget issues. In mid-2012, Hanken sought Greisen’s support during the budget approval process, but Greisen remained neutral. Hanken told Greisen: “I’m mad at you. You stay on your side of City Hall. I don’t want to see you over here,” which Greisen understood as a warning to focus only on the police department, and to leave the overall city budget to Hanken.
Greisen became suspicious of Hanken’s budgeting practices after learning that the city delayed paying police department invoices, sometimes for as long as four months, before the end of the fiscal year on July 1. Greisen worried Hanken had made the city’s external auditing process less rigorous, and discussed his concerns with several city council members and others in city government over the following year. Greisen learned the city was withholding payment on invoices from other departments also. The city had switched its auditing team from a team of four people on-site to an off-site single person auditing firm. Greisen suspected the new auditor was less diligent, and did not abide by established accounting practices. He took a college course on government budgeting and financial management.
In August 2012, Hanken rebuffed Greisen’s attempt to discuss the budget, telling Greisen that Greisen was not knowledgeable about budgeting and financial management matters. In the summer and fall of 2013, Hanken initiated three separate investigations of Greisen for alleged violations associated with the PIT maneuver, hostile work environment, and financial mismanagement, respectively. During the course of the various investigations, Hanken suspended Greisen, placed him on an indefinite leave and prevented Greisen from speaking publicly about the investigations. Meanwhile, Hanken released information about the investigations to the media. After a city review committee recommended retraction of Greisen’s suspension, Hanken resigned, citing the commission’s findings as the cause of his resignation.
In early 2014, Hanken’s replacement as city manager, David Otterman, fired Greisen after people Otterman spoke with expressed polarizing views about Greisen. Greisen tried to find other employment, but was unsuccessful. A manager from another city who considered hiring Greisen testified that although he knew Greisen personally and respected him, he could not hire Greisen as police chief due to the negative media attention Greisen had endured.
In 2014, Greisen filed an action under 42 U.S.C. section 1983, alleging Hanken violated the First Amendment by subjecting him to adverse employment actions in retaliation for his protected speech. Prior to the trial, the District Court denied Hanken’s motion for summary judgment on qualified immunity. A jury subsequently found for Greisen, and Hanken appealed.
Discussion
The Ninth Circuit Court of Appeals explained at the outset: “A First Amendment retaliation claim turns on a sequential five-step series of 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.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The burden of proof falls upon the plaintiff for the first three questions. If the plaintiff succeeds thus far, the burden shifts to the defendant on the last two questions. The Court also explained that when a constitutional violation has been established, a plaintiff may recover damages that are proximately caused thereby. See County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1548-49, (2017), and that the plaintiff must also establish that the defendant’s retaliatory conduct was a but-for cause of the defendant’s damages.” See Mendez v. Cty. of L.A., 897 F.3d 1067, 1074 (9th Cir. 2018).
Hanken challenged the verdict in favor of Greisen on the first four questions in the First Amendment retaliation analysis. The Court explained that Hanken’s arguments also implicated qualified immunity. Qualified immunity analysis requires a court to determine whether a plaintiff has shown a violation of a constitutional right, and, if so, whether the right at issue was clearly established at the time of defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). To determine that a right was clearly established, the court “must identify precedent as of [the date of the alleged violation] that put [the defendant] on clear notice” that his or her actions were unconstitutional. S.B. v. County of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Courts must not define clearly established law at a high level of generality. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).
Regarding the first question, the Ninth Circuit explained that “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). “[T]he content of the speech is generally the most important.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1069 (9th Cir. 2012). The “misuse of public funds . . . [is a] matter[] of inherent public concern.” Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995). “[S]peech warrants protection when it ‘seek[s] to bring to light actual or potential wrongdoing or breach of public trust.’” Barone v. City of Springfield, 902 F.3d 1091, 1098 (9th Cir. 2018) (second alteration in original) (quoting Connick, 461 U.S. at 148). However, “speech that deals with ‘individual personnel disputes and grievances’ and that would be of ‘no relevance to the public’s evaluation of the performance of governmental agencies’ is generally not of ‘public concern.’“ Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)).
Contrary to Hanken’s view, the Court held that Greisen provided enough information about the content, form, and context of his speech. Regarding content, the Court observed that Greisen had testified about his discussions with the city finance administrator and other department heads regarding Hanken’s practice of delaying invoices, and that he had used these talks to learn how other departments handled invoice payments. He discussed his concerns about the new auditor with the finance administrator and some city councilors. The Court also noted, discussing form and context, that Greisen provided a general timeline, identified the roles of his interlocutors, and described his motivations for the discussions. Thus, Greisen had provided the District Court with enough information to assess the public concern question.
Resolving the first question of the retaliation analysis, the Court found Greisen’s speech substantially involved a matter of public concern. The Court explained that Greisen’s interest in uncovering financial mismanagement using city funds was exhibited by Greisen’s talks with other city officials to learn about the financial management process, his taking of the college budgeting course, and his deep and lengthy involvement in the community. The Court also found that by 1995 when Johnson was decided, it was clearly established that misuse of public funds was a matter of public concern.[2]
Turning to the question of whether Greisen spoke as a private citizen or a public employee, the Ninth Circuit explained that, under Garcetti v. Ceballos, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. 410, 421 (2006). To make this determination, courts consider (1) whether “the employee confined his communications to his chain of command”; (2) whether “the subject matter of the communication” fell within the plaintiff’s regular job duties; and (3) whether the “employee sp[oke] in direct contravention to his supervisor’s order[].” Dahlia v. Rodriguez, 735 F.3d 1060, 1074-75 (9th Cir. 2013) (en banc).
The Court determined that each Dahlia consideration supported the jury verdict that Greisen spoke as a private citizen. The Court explained that Greisen had conversations outside his chain of command with city councilors, other department heads, and the city finance administrator; Greisen’s concerns pertained to discovering “corruption or systemic abuse” (Id. 735 F.3d at 1075) in city finances and management, and these functions were not part of his official duties as chief of police; and Hanken’s warnings for Greisen to stay on his “side” of city hall and to avoid speaking to Councilor Ingham provided strong evidence that Greisen’s supervisor, Hanken, did not want him discussing or looking into the overall city budget or Hanken’s accounting practices. Moreover, Hanken was not entitled to qualified immunity on the private citizen issue because he told Greisen twice that Greisen should not concern himself with issues about the overall budget. The Court found no evidence suggested a reasonable official in Hanken’s position would have believed that analyzing the timing of invoice payments in other departments or city-wide audit practices was within Greisen’s job duties as police chief.
The Court of Appeals explained that the third step in a First Amendment retaliation analysis requires the plaintiff bears to show the state took an adverse employment action against the plaintiff and that the plaintiff’s speech was a substantial or motivating factor in the adverse action. See Eng, 552 F.3d at 1071. “In a First Amendment retaliation case, an adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech.” Coszalter, 320 F.3d at 970. While the Court acknowledged that “[r]estricting the ability of government decision makers to engage in speech risks interfering with their ability to effectively perform their duties” and “ignores the competing First Amendment rights” of the officials themselves,[3] the Ninth Circuit’s decision in Allen v. Scribner[4] held that a First Amendment retaliation claim may be based on retaliatory speech when that speech is part of a campaign of harassment designed to burden the plaintiff’s protected expression. Moreover, retaliatory speech may serve as the basis for a First Amendment retaliation claim when it “intimat[es] that some form of punishment or adverse regulatory action would follow.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (quoting Okwedy v. Molinari, 333 F.3d 339, 343 (2d Cir. 2003)).
The Court found that the instant case fell “squarely within Allen” because Greisen alleged the defamation he endured was part of a concerted effort to deter him from, and punish him for, engaging in constitutionally protected speech; and he alleged Hanken engaged in a campaign of harassment against him that included not only defamatory communications with the press but also a suspension, an indefinite leave, a one-sided gag order and the instigation of three spurious investigations. Thus, the Court found that Greisen’s retaliation claim could be based in part on Hanken’s own speech acts, in the form of defamatory communications to the media. Also, with Allen, Hanken was on notice that a First Amendment retaliation claim could be based in part on acts of retaliatory speech; thus, he was not entitled to qualified immunity on the contrary view.
With the fourth adequate justification question, the burden of proof shifts to the defendant. However, “[t]he district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Here, Hanken briefly asserted this argument for the first time in his reply brief on his renewed motion for judgment as a matter of law; thus, he waived the argument that his actions were supported by an adequate justification.
Finally, the Court found that substantial evidence supported the jury’s conclusion that Hanken’s actions proximately caused Greisen’s termination. Hanken argued that his conduct did not proximately cause Greisen’s termination, because Otterman, Hanken’s successor, “made a wholly independent, legitimate decision to discharge” Greisen. The Supreme Court in Staub v. Proctor Hosp.,[5] held that “[p]roximate cause requires only ‘some direct relation between the injury asserted and the injurious conduct alleged.’“[6] Thus, under Staub, the question was whether Hanken’s actions were a “causal factor” in Otterman’s decision to fire Greisen — i.e., whether Otterman fired Greisen “for reasons unrelated to [Hanken’s] original biased action[s].”
Otterman, the next city manager, testified that his decision to fire Greisen was based on the results of the three investigations Hanken initiated. The Court first noted that there was reason to doubt whether the investigations were independent of Hanken because he admitted at trial that he made a false report to the media in an apparently successful effort to prolong them. The Court explained, even assuming the independence of the investigations, Otterman testified that the negative media attention around Greisen and the fact that “the police department employees felt that they could no longer rely on . . . Greisen as the chief of police” motivated Otterman’s decision. The Court found that Hanken’s “campaign of public humiliation” of Greisen “through, among other things, false and misleading representations” almost certainly played a direct and substantial role in creating or exacerbating the conditions Otterman faced regarding Greisen. The Court observed that Otterman also made clear that Hanken’s actions created an environment of unrest that framed his decision, as demonstrated by Otterman’s testimony about “several articles about [Greisen] and about what was going on in the City.” The Court thus found that a reasonable jury could have found that Hanken’s actions were a causal factor in Otterman’s decision to let Greisen go.
The Court also found that any error in instructing the jury on proximate cause was harmless. Based on the reasoning above and its finding that Hanken was not entitled to qualified immunity, the Ninth Circuit Court of Appeals accordingly affirmed.
HOW THIS AFFECTS YOUR AGENCY
In Greisen, the causative chain was not severed in this 42 U.S.C. 1983 First Amendment retaliation case, despite the fact that the city manager no longer held the position with the city, and despite the fact that he himself did not make the decision to terminate the chief’s employment. Rather, the Court found it controlling that Hanken’s actions were “casual factors underlying [Otterman’s] decision to fire” Greisen. Staub, at 423. In other words, Otterman’s decision was not independent of Hanken’s actions, according to the Court. Agencies should note that the actions, including media communications, of former supervisors can have lingering legal effects as it pertains to retaliation claims.
It should also be noted that Greisen’s private discussions with city officials and others did not transform a matter of public concern to a private matter. As the Court noted, “the choice ‘to convey . . . views privately rather than publicly is not determinative of whether . . . expression is entitled to protection’”[7] because “[p]rivate speech may serve to ‘bring wrongdoing to light.’”[8] First Amendment issues constitute very difficult legal issues. This is an ever evolving area of the law. Accordingly, it is incumbent upon agencies to seek legal advice in dealing with such matters.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] 2019 U.S. App. LEXIS 16202 (9th Cir. May 31, 2019).
[2] See Johnson, 48 F.3d at 425.
[3] Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir. 2016).
[4] 812 F.2d 426 (9th Cir. 1987).
[5] 562 U.S. 411, 419 (2011).
[6] Internal citation omitted.
[7] Thomas v. City of Beaverton, 379 F.3d 802, 810 (9th Cir. 2004).
[8] Ulrich v. City & County of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002) (quoting Havekost v. U.S. Dep’t of Navy, 925 F.2d 316, 318 (9th Cir. 1991).