Doug Greisen v. Jon Hanken , 925 F.3d 1097 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUG GREISEN, No. 17-35472
Plaintiff-Appellee,
D.C. No.
v. 3:14-cv-01399-SI
JON HANKEN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted October 11, 2018
Portland, Oregon
Filed May 31, 2019
Before: Raymond C. Fisher, Richard R. Clifton
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Fisher
2 GREISEN V. HANKEN
SUMMARY *
Civil Rights / Employment Retaliation
The panel affirmed the district court’s judgment
following a jury verdict in favor of Doug Greisen, a former
chief of police for the City of Scappoose, Oregon, in his
action brought pursuant to 42 U.S.C. § 1983 alleging that Jon
Hanken, the former city manager, violated the First
Amendment by subjecting Greisen to adverse employment
actions in retaliation for his protected speech.
After Greisen discussed his concerns with city council
members and government officials about the city’s
accounting and budgeting practices under Hanken, Hanken
initiated investigations of Greisen, suspended him, placed
him on an indefinite leave and prevented him from speaking
publicly, even as Hanken was releasing information about
the investigations to the media. After a city review
committee recommended retraction of Greisen’s suspension,
Hanken resigned.
The panel held that: (1) Greisen provided sufficient
detail about his speech to establish that it substantially
involved a matter of public concern; (2) he spoke as a private
citizen rather than a public employee; (3) the district court
properly concluded 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; (4) Hanken
waived his argument that his actions were supported by an
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GREISEN V. HANKEN 3
adequate justification; and (5) sufficient evidence supported
the conclusion that Hanken’s retaliatory actions proximately
caused Greisen’s termination, and any error in instructing
the jury on proximate cause was harmless. The panel further
held that Hanken was not entitled to qualified immunity.
COUNSEL
Thomas M. Christ (argued) and Julie A. Smith, Cosgrave
Vergeer Kester LLP, Portland, Oregon, for Defendant-
Appellant.
William Allen Drew (argued) and John D. Ostrander, Elliott
Ostrander & Preston P.C., Portland, Oregon, for Plaintiff-
Appellee.
OPINION
FISHER, Circuit Judge:
Doug Greisen was the chief of police for the City of
Scappoose, Oregon. In 2012, after more than 10 years in that
position, he became suspicious about the city’s accounting
and budgeting practices. He worried Jon Hanken, the city
manager, was hiding something; he believed Hanken was
suspiciously defensive about the budget, improperly delayed
paying invoices at the end of the fiscal year and had
weakened the city’s external auditing process. Greisen
discussed his concerns with various city council members
and others in city government over the following year. In
the summer and fall of 2013, Hanken initiated three
investigations of Greisen, suspended him, placed him on an
indefinite leave and prevented him from speaking publicly,
4 GREISEN V. HANKEN
even as Hanken was releasing information about the
investigations to the media. After a city review committee
recommended retraction of Greisen’s suspension, Hanken
resigned. Hanken’s replacement subsequently fired Greisen,
who has since been unable to find work.
Greisen sued under 42 U.S.C. § 1983, alleging Hanken
violated the First Amendment by subjecting him to adverse
employment actions in retaliation for his protected speech.
A jury found in Greisen’s favor, and Hanken appeals.
We affirm. We hold: (1) Greisen provided sufficient
detail about his speech to establish that it substantially
involved a matter of public concern; (2) Greisen spoke as a
private citizen rather than a public employee; (3) the district
court properly concluded 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;
(4) Hanken waived his argument that his actions were
supported by an adequate justification; and (5) sufficient
evidence supports the conclusion that Hanken’s retaliatory
actions proximately caused Greisen’s termination, and any
error in instructing the jury on proximate cause was
harmless. We further hold Hanken is not entitled to qualified
immunity.
I.
Jon Hanken, the former city manager of Scappoose, was
responsible for overseeing the city’s budget and for annually
submitting a budget to the city council for review. 1
According to City Councilor Judi Ingham, Hanken generally
1
We state the facts in the light most favorable to Greisen. See
Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008).
GREISEN V. HANKEN 5
submitted his budget to the council soon before the
beginning of the budget process, allowing little time for
review, and he was defensive about issues relating to the
budget. In mid-2012, the city had a particularly contentious
budget approval process during which some city councilors
advocated unsuccessfully for a budget that would add a
police officer to the force. Although Hanken had told Chief
of Police Doug Greisen to support the budget at the hearing,
Greisen voiced neither support nor dissent. The next day,
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.”
Greisen understood this as an admonition to focus solely on
the police department, and to leave the overall city budget to
Hanken.
Greisen then learned the city delayed paying police
department invoices, sometimes for as long as four months,
before the end of the fiscal year on July 1. He became
suspicious Hanken was hiding something, and he began
asking “a lot of” other people, including the city finance
administrator, city councilors and other city department
heads, about the city’s budgeting practices during the
remainder of 2012 and early 2013. He learned the city was
withholding payment on invoices from other departments as
well. He also learned the city had transitioned from a four-
person, on-site auditing team to a one-person, off-site
auditing firm, and he was concerned about the differences
between the firms: by contrast to the first auditing team, he
found that the new auditor was less diligent, was unable to
state an opinion on the city’s finances and followed different
practices that he worried were inconsistent with generally
accepted accounting principles. He discussed this issue with
the city finance administrator and city councilors. He also
took a college course on government budgeting and financial
management.
6 GREISEN V. HANKEN
Around August 2012, Greisen tried to meet with Hanken
to discuss the budget. Hanken was not receptive; he told
Greisen that “Ms. Ingham will be the one that will ruin your
career here in the City of Scappoose.” He also said Greisen
“didn’t know what [he was] talking about” when it came to
budgeting and financial management.
In early 2013, Greisen was involved in a police pursuit
during which he authorized an officer to perform a “PIT
maneuver,” a method of stopping a fleeing car by bumping
it with a patrol vehicle, sending the fleeing car into a spin.
Although the maneuver was successful, another officer,
Sergeant Doug Carpenter, wrote a memo to his lieutenant
alleging it was executed at a high speed without proper
procedure. Carpenter’s criticism focused on the officer who
actually performed the PIT maneuver, but it implicated
Greisen’s actions as well. The lieutenant forwarded the
memo to Hanken, along with his own memo clarifying
Greisen’s role in the maneuver and recommending an
investigation.
Hanken arranged for an outside public agency to
investigate Greisen. The investigation’s purpose, according
to the investigator, was to determine “whether or not there
were policy violations,” not to weigh whether a policy
violation was justified. After interviewing various staff, the
agency submitted a 25-page report finding Greisen
committed 10 policy violations associated with the PIT
maneuver. 2
2
The violations included the findings that Greisen had: (1) “failed
to assume proper and informed control of a police pursuit”; (2) “failed to
properly document the pursuit”; (3) “entered into a motor vehicle pursuit
with insufficient knowledge and justification”; (4) “engaged in a pursuit,
GREISEN V. HANKEN 7
Upon receiving the report, Hanken suspended Greisen
for two weeks without pay. According to the report’s author,
the subject of such an investigation would “typically” have
the opportunity to be heard after the report was complete, but
Hanken did not afford Greisen this opportunity. In his
suspension letter, Hanken wrote: “As I draft this letter, I
cannot help but wonder if you would be able to maintain
your position if this report was known by or reported to the
news media.”
Greisen appealed his discipline to the city’s Personnel
Review Committee (PRC), which absolved him of
wrongdoing. The PRC characterized the outside agency’s
report as “an erroneous mischaracterization of the events . . .
that also purposely omitted pertinent and material facts, to
arrive at a conclusion that the PRC finds untenable, out of
context and an egregious lack of professionalism.” In the
PRC’s view, the outside agency’s report was “not an
objective review, but a prosecutorial document that was
colored to arrive at a predetermined result.” The PRC
further found that “the degree of discipline issued to Police
Chief Doug Greisen, for minor discrepancies of best
practices, is entirely out of proportion based on the totality
of the circumstances,” and it recommended that “the City
operating an unauthorized and improperly equipped police vehicle”;
(5) “disregarded policy related to the established procedure for a
secondary pursuing vehicle”; (6) “violated safe driving principles related
to pursuit driving”; (7) “failed to properly evaluate the need for a
continuation of a pursuit”; (8) “demonstrated a lack of knowledge related
to applicable standards and police practice related to pursuit intervention
tactics and authorized a prohibited tactic by an untrained subordinate
officer”; (9) “failed to participate in annual training related to pursuit
driving”; and (10) “failed to read and maintain a current working
knowledge of his departmental policy manual.”
8 GREISEN V. HANKEN
Manager retract, and the Scappoose City Council oversee the
retraction [of], all discipline issued to Chief Greisen.”
While the PIT maneuver investigation was ongoing,
Hanken received another complaint about Greisen from
Sergeant Carpenter, this time alleging Greisen had created a
hostile work environment. In response, Hanken initiated
another investigation by the same outside agency and placed
Greisen on indefinite paid administrative leave pending the
results of this investigation. Ultimately, the investigation
concluded the allegations were not supported by substantial
evidence.
In September 2013, while Greisen remained on leave,
Hanken informed him the city would conduct a third
investigation into his activities. This investigation charged
Greisen with unauthorized financial practices relating to
$2,500 in donations to the police department that Greisen
kept in cash in his office. The investigation, conducted by
the same outside agency, found five violations of city
policy. 3
Hanken sent letters to Greisen precluding him from
speaking about the three investigations with anyone other
than his wife and attorney. Hanken, however, released
3
The investigation found Greisen violated the city’s policy by:
(1) “having unaccounted for cash in his desk drawer”; (2) “adhering to
his own set of rules related to expense reimbursement and submitting
reimbursement requests for meal expenses within 25 miles of
Scappoose”; (3) “fail[ing] to make bank deposits in a timely manner”;
(4) “open[ing] and manag[ing] a bank account to be used as a slush fund
for Police Department business and to avoid making purchases through
the City’s budget process”; and (5) “fail[ing] to donate . . . gift cards
(recovered crime evidence) to a charitable organization as requested by
the crime victim.”
GREISEN V. HANKEN 9
information about all three investigations to the media. In
September 2013, soon after Greisen appealed his two-week
suspension, Hanken released information about the first two
investigations. He admitted at trial that his release of
information about the ongoing second investigation “wasn’t
appropriate.”
Similarly, shortly before he resigned as city manager,
Hanken spoke to the media about the third investigation,
stating “that a bank bag was discovered in the chief’s desk
and that its contents raised questions about whether the chief
was maintaining an unauthorized account.” Hanken also
said that, “[i]f any other officer had been caught using an
unauthorized account, they would have been fired on the
spot.” He further provided the media with a photo of the
cash that he admitted looked like a photo associated with a
drug bust or money seizure. Hanken conceded at trial,
however, that others in the city knew about the money, that
it was associated with authorized accounts and that he spoke
to the press to ensure that the second and third investigations
he had initiated were not discontinued.
On November 8, 2013, less than a month after the PRC
issued its findings that Greisen’s discipline for the PIT
maneuver was unfounded, Hanken resigned, citing these
findings as the reason. He was replaced by Donald Otterman
in an interim capacity, and in early 2014 Otterman utilized a
“no-cause” clause in Greisen’s contract to terminate Greisen,
who had not returned from administrative leave. Otterman
made his decision after reviewing the investigator’s reports
and speaking with various people, whose views were highly
polarized.
Greisen attempted to find other employment, but was
unable to do so. A manager from another city who
considered hiring Greisen testified that although he knew
10 GREISEN V. HANKEN
Greisen personally and respected him, he could not hire
Greisen as police chief given the negative media attention he
had endured.
In 2014, Greisen filed this action. As relevant here, he
brought a First Amendment retaliation claim against Hanken
under 42 U.S.C. § 1983. Before trial, Hanken moved for
summary judgment on qualified immunity, and the district
court denied the motion. The claim was tried to a jury, which
found in favor of Greisen, awarding him $1,117,488 in
economic damages and $3,000,000 in non-economic
damages. Hanken filed post-trial motions seeking a new trial
on the ground that the district court’s jury instruction on
causation was erroneous and seeking judgment as a matter
of law on other grounds. The district court denied the
motions, and Hanken timely appealed.
II.
We review de novo a district court’s denial of a motion
for judgment as a matter of law, but “[a] jury’s verdict must
be upheld if it is supported by substantial evidence, . . . even
if it is also possible to draw a contrary conclusion.” Pavao
v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). We “must view
all evidence in the light most favorable to the nonmoving
party, draw all reasonable inferences in the favor of the non-
mover, and disregard all evidence favorable to the moving
party that the jury is not required to believe.” Harper v. City
of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008).
“‘[W]hen reviewing a motion for judgment as a matter of
law, we apply the law as it should be, rather than the law as
it was read to the jury,’ even if the party did not object to the
jury instructions.” Fisher v. City of San Jose, 558 F.3d 1069,
1074 (9th Cir. 2009) (en banc) (alteration in original)
(quoting Pincay v. Andrews, 238 F.3d 1106, 1109 n.4 (9th
Cir. 2001)).
GREISEN V. HANKEN 11
We review de novo a district court’s decision on
qualified immunity. See Elder v. Holloway, 510 U.S. 510,
516 (1994). Once the jury has reached a verdict, however,
“we must defer to the facts as they were reasonably found by
the jury – we do not draw our own inferences from them.”
A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir.
2013).
“We review de novo whether [a jury] instruction[]
misstated the law.” Fireman’s Fund Ins. Cos. v. Alaskan
Pride P’ship, 106 F.3d 1465, 1469 (9th Cir. 1997). An error
in instructing the jury in a civil case does not require reversal
if it is harmless. See Altera Corp. v. Clear Logic, Inc.,
424 F.3d 1079, 1087 (9th Cir. 2005).
III.
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
plaintiff bears the burden on the first three questions. See id.
at 1070–71. If the plaintiff meets this burden, the burden
12 GREISEN V. HANKEN
shifts to the defendant on the last two questions. See id.
at 1071–72. 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). The plaintiff
must also establish that the defendant’s retaliatory conduct
was a but-for cause of the defendant’s damages. See Mendez
v. County of Los Angeles, 897 F.3d 1067, 1074 (9th Cir.
2018).
Here, Greisen contends Hanken retaliated against him
for discussing the city’s budgeting and accounting practices
with other city officials. He contends that this speech
involved a matter of public concern – the mismanagement of
city finances. He further contends that his discussions with
city officials regarding suspected mismanagement were not
part of his job duties, and hence that he engaged in this
speech as a private citizen rather than as a public employee.
He alleges a number of adverse employment actions – e.g.,
commencement of the PIT maneuver, hostile work
environment and financial mismanagement investigations;
the two-week suspension; the indefinite administrative
leave; the “gag order” prohibiting him from speaking to the
press; and the false and inflammatory information Hanken
provided to the press about him – and he contends that his
protected speech was a substantial or motivating factor in
Hanken’s decisions to take each of these actions. In
addition, although he does not contend that Otterman’s
decision to terminate him was itself retaliatory, he seeks
damages arising from the termination on the ground that it
was proximately caused by Hanken’s retaliatory actions.
Hanken challenges the verdict in favor of Greisen on the
first, second, third and fourth of the questions in the
sequential analysis. In addition, he challenges Greisen’s
GREISEN V. HANKEN 13
recovery of damages arising from the termination. We
address these contentions in turn.
A number of Hanken’s arguments also implicate
qualified immunity. In resolving whether a government
official is entitled to qualified immunity, a court “must
decide whether the facts that a plaintiff has alleged or shown
make out 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) (citations omitted)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). 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).
A. Matter of Public Concern
With respect to the first step in the analysis, “the plaintiff
bears the burden of showing that the speech addressed an
issue of public concern.” Eng, 552 F.3d at 1070.
Whether speech is on a matter of public concern is a
question of law, determined by the court, and reviewed by
us de novo. See Berry v. Dep’t of Soc. Servs., 447 F.3d 642,
648 (9th Cir. 2006). The speech need not be entirely about
matters of public concern, but it must “substantially involve”
such matters. Johnson v. Multnomah County, 48 F.3d 420,
14 GREISEN V. HANKEN
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 v. Myers, 461 U.S. 138, 148
(1983)). The “misuse of public funds . . . [is a] matter[] of
inherent public concern.” Johnson, 48 F.3d at 425.
“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, 461 U.S. at 147–48. “[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). In
reviewing form and context, “we focus on the point of the
speech, looking to such factors as the employee’s motivation
and the audience chosen for the speech.” Ulrich v. City &
County of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002)
(citation and internal quotation marks omitted). This
analysis seeks to determine whether the employee aimed “‘to
bring wrongdoing to light,’ not ‘merely to further some
purely private interest.’” Id. (quoting Havekost v. U.S. Dep’t
of Navy, 925 F.2d 316, 318 (9th Cir. 1991)). “[S]peech 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)).
Hanken does not dispute that the potential
mismanagement of city funds is a matter of public concern.
He argues, however, that he was entitled to judgment as a
matter of law on this question on three independent grounds:
(1) the district court had insufficient information before it to
GREISEN V. HANKEN 15
conclude the speech involved matters of public concern;
(2) the speech did not involve matters of public concern,
because Greisen was motivated by a personal grievance
against him rather than exposing government wrongdoing;
and (3) qualified immunity.
1. The district court had sufficient information to
determine Greisen’s speech substantially involved
matters of public concern
Hanken argues the district court lacked sufficient
information about the content, form and context of Greisen’s
speech to conclude it substantially involved matters of public
concern. Although Greisen testified about his discussions
with other city officials, Hanken contends “he did not
describe the substantive content of those conversations in
any detail.” He contends the descriptions Greisen provided
were insufficient “to allow a court to make a determination
that [the] speech related to a matter of public concern.”
Kurtz v. Vickrey, 855 F.2d 723, 730 n.4 (11th Cir. 1988); see
also Nixon v. City & County of Denver, 784 F.3d 1364, 1369
(10th Cir. 2015); Moss v. City of Pembroke Pines, 782 F.3d
613, 620–21 (11th Cir. 2015). We disagree.
We agree, of course, that a court must have sufficient
information about the content, form and context of speech to
determine whether it was on a matter of public concern. A
plaintiff, however, need not provide transcriptions of the
conversations. Here, Greisen provided enough. With regard
to the content of the speech, Greisen testified about the
discussions he had with the city finance administrator and
other department heads regarding Hanken’s practice of
delaying payment of invoices. Greisen used these
discussions, among other things, to learn about how other
departments handled invoice payments. Greisen also
testified that he discussed his concerns about the new auditor
16 GREISEN V. HANKEN
with some city councilors and with the city finance
administrator. His concerns included the fact that the auditor
was not on-site, the auditor’s inability to offer an opinion
about the city’s finances and the quality of the auditor’s
written reports. As to form and context, Greisen provided a
general timeline, identified the roles of his interlocutors and
described his motivations for the discussions. The district
court, therefore, had enough information before it.
2. The district court properly concluded the speech
substantially involved matters of public concern
Even assuming the information was sufficient, Hanken
argues the district court erred by concluding that Greisen’s
speech substantially involved matters of public concern. He
argues that, even if “the content of the speech does at first
glance look like it raises a public concern because it involves
the city’s finances,” “the form and context suggest that the
speech is really about a power struggle between plaintiff and
defendant – more specifically, about a power play by
plaintiff.” Hanken maintains that Greisen’s speech “was
more like the airing of an internal grievance, the grinding of
a private ax, not [an] effort to provoke a public debate on an
issue of public concern.”
The evidence does not support this contention. It shows
that Greisen was interested in uncovering mismanagement
involving city funds. He spoke to other city officials to learn
about the financial management process. He took a college
course on budgeting and finance. His interest in the welfare
of the city is clear from the record. His family had lived in
Scappoose for 30 years, and he “was very involved in the
community,” where he had “volunteered endlessly.” He also
testified he was motivated by “the cop in [him]” to
investigate whether something was being hidden.
GREISEN V. HANKEN 17
That Greisen spoke privately to other city officials,
rather than publicly, does not show that he was motivated by
a private grudge rather than a desire to detect and expose
potential mismanagement. The choice “to convey . . . views
privately rather than publicly is not determinative of whether
. . . expression is entitled to protection.” Thomas v. City of
Beaverton, 379 F.3d 802, 810 (9th Cir. 2004). Private
speech may serve to “bring wrongdoing to light.” Ulrich,
308 F.3d at 979 (quoting Havekost, 925 F.2d at 318).
In sum, the district court properly concluded, based on
the “content, form, and context” of Greisen’s speech, that his
conversations substantially involved a matter of public
concern. Connick, 461 U.S. at 147.
3. Hanken is not entitled to qualified immunity on the
public concern issue
By 1995, it was clearly established that the misuse of
public funds is a matter of public concern. See Johnson,
48 F.3d at 425. Given the nature of Greisen’s concerns and
his longtime connection to the community, Hanken could
not reasonably have concluded that Greisen’s speech
“deal[t] with ‘individual personnel disputes and grievances’
. . . that would be of ‘no relevance to the public’s evaluation
of the performance of governmental agencies.’” Coszalter,
320 F.3d at 973 (quoting McKinley, 705 F.2d at 1114). The
district court therefore properly denied qualified immunity.
B. Private Citizen
In a First Amendment retaliation case, the plaintiff also
“bears the burden of showing the speech was spoken in the
capacity of a private citizen and not a public employee.”
Eng, 552 F.3d at 1071.
18 GREISEN V. HANKEN
In Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), the
Supreme Court held that, “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.” “[S]tatements are made in the
speaker’s capacity as citizen if the speaker had no official
duty to make the questioned statements, or if the speech was
not the product of performing the tasks the employee was
paid to perform.” Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1127 n.2 (9th Cir. 2008) (alterations,
citation and internal quotation marks omitted). We look to
three non-exhaustive factors to make this assessment:
(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 scope and content of a plaintiff’s official duties
are questions of fact, but a court must “independently . . .
evaluate the ultimate constitutional significance of the facts
as found.” Posey, 546 F.3d at 1129.
1. The district court properly determined Greisen
spoke as a private citizen
Here, viewing the evidence in the light most favorable to
Greisen, every Dahlia factor favors the jury’s conclusion
that Greisen spoke as a private citizen. With regard to the
first factor (chain of command), the record shows Greisen
had conversations with the city finance administrator, city
councilors and at least three other department heads, none of
whom were within his chain of command.
GREISEN V. HANKEN 19
With regard to the second factor (subject matter), Dahlia
noted:
[I]f a public employee raises within the
department broad concerns about corruption
or systemic abuse, it is unlikely that such
complaints can reasonably be classified as
being within the job duties of an average
public employee, except when the
employee’s regular job duties involve
investigating such conduct, e.g., when the
employee works for Internal Affairs or
another such watchdog unit.
735 F.3d at 1075. Here, Greisen’s concerns related to
ferreting out “corruption or systemic abuse” in city finances
and management, and these functions were not part of his
official duties as chief of police. His concerns about the
budget related to secrecy and potential wrongdoing: a lack
of oversight on the part of the new auditor, Hanken’s
unwillingness to let anyone into the budgeting process and
the failure to pay vendors on time. No evidence suggests
these matters fell within Greisen’s regular job duties.
With regard to the last factor (contravention of
supervisors), there is strong evidence that Hanken, Greisen’s
supervisor, did not want him discussing or looking into the
overall city budget or Hanken’s accounting practices.
Hanken instructed Greisen to stay on his “side” of city hall,
and discouraged him from speaking to Councilor Ingham
about the overall budget.
Hanken does not argue that the Dahlia factors favor
reversal, but attempts to distinguish Dahlia, which involved
a lower-ranking employee, on the basis that Greisen, as a
police chief, had broader duties. See id. at 1063. He argues
20 GREISEN V. HANKEN
this case is more analogous to Johnson v. Poway Unified
School District, 658 F.3d 954 (9th Cir. 2011), and Kennedy
v. Bremerton School District, 869 F.3d 813 (9th Cir. 2017).
Poway Unified held that, “because of the position of trust
and authority they hold and the impressionable young minds
with which they interact, teachers necessarily act as teachers
. . . when at school or a school function, in the general
presence of students, in a capacity one might reasonably
view as official.” Poway Unified, 658 F.3d at 968. Kennedy
held that a school coach acted as a public employee where
his job duties “entailed both teaching and serving as a role
model and moral exemplar” and he was “acting in an official
capacity in the presence of students and spectators.”
Kennedy, 869 F.3d at 827. Hanken contends a police chief,
like a teacher, occupies a “position of trust, authority, and
responsibility,” which means that a police chief is
“necessarily acting as the police chief whenever he [is]
interacting with other high- and higher-ranking city
officials.”
We disagree. We have never extended Kennedy and
Poway Unified beyond the school context, and the cases are
distinguishable. Kennedy and Poway Unified focused on the
“impressionable and captive minds” to whom the employees
at issue espoused their views. Kennedy, 869 F.3d at 828
(quoting Poway Unified, 658 F.3d at 968). Leading a police
force of adults does not implicate the same concerns, so
Hanken’s analogies to the public school context are
unpersuasive.
Hanken also looks to Moss v. City of Pembroke Pines,
782 F.3d 613 (11th Cir. 2015). There, the assistant fire chief
– who also served as an elected member of the city’s pension
board – spoke to various employees within his department
regarding city-wide pension and wage issues that would
GREISEN V. HANKEN 21
influence the department. See id. at 616–17. In holding the
communications were within the plaintiff’s job duties, the
court noted the “[p]laintiff’s statements . . . were made in
accordance with his role as a liaison between the Fire Chief
and employees down the chain of command.” Id. at 620.
Here, by contrast, Greisen spoke outside his chain of
command and outside his defined role in the budget process.
Moss thus does not support Hanken’s position.
2. Hanken is not entitled to qualified immunity on the
private citizen issue
In Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th
Cir. 2012), we held that “a reasonable official would . . .
have known that a public employee’s speech on a matter of
public concern is protected if the speech is not made
pursuant to her official job duties, even if the testimony itself
addresses matters of employment.” Id. at 1074 (citing
Garcetti, 547 U.S. at 421; Eng, 552 F.3d at 1075–76; Posey,
546 F.3d at 1126–27). Viewing the record in the light most
favorable to Greisen, Hanken told Greisen on two occasions
that Greisen was not to concern himself with issues relating
to the management of the overall city budget. No evidence
suggests a reasonable official in Hanken’s position would
have believed analyzing the timing of invoice payments in
other departments or city-wide audit practices was within
Greisen’s job duties. Hanken is thus not entitled to qualified
immunity.
C. Adverse Employment Action and Causation
At the third step in a First Amendment retaliation
analysis, the plaintiff bears the burden of showing 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.
22 GREISEN V. HANKEN
Thus, to find in Greisen’s favor on the First Amendment
retaliation claim, the jury had to find Greisen suffered an
adverse employment action. “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. The jury was instructed on several potential adverse
employment actions here, including two that involved
Hanken’s own speech: “misrepresenting . . . accounts to the
press as ‘unauthorized’ before the completion of the
investigation; and giving the press access to an inventory
photograph that . . . Greisen says was ‘inflammatory.’”
Hanken argues the district court should have granted
partial judgment as a matter of law on the ground that his
communications with the media “do not qualify as adverse
employment actions because they involved the exercise of
his own free speech rights.” Alternatively, he contends he is
entitled to qualified immunity on this basis.
“Retaliation claims involving government speech
warrant a cautious approach by courts,” because
“[r]estricting the ability of government decisionmakers 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.”
Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir. 2016). “[A]
balance must be struck between the citizen’s right to exercise
his First Amendment rights and the public official’s personal
First Amendment rights, as well as his duty to the public to
speak out about matters of public concern.” Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 687 n.13 (4th Cir. 2000).
Thus, we have on several occasions rejected retaliation
claims based exclusively on retaliatory speech, noting that
“[i]t would be the height of irony, indeed, if mere speech, in
GREISEN V. HANKEN 23
response to speech, could constitute a First Amendment
violation.” Nunez v. City of Los Angeles, 147 F.3d 867, 875
(9th Cir. 1998); see also Mulligan, 835 F.3d at 989–91; Gini
v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th
Cir. 1994).
We have, however, held that retaliatory speech can serve
as a basis for liability for a First Amendment retaliation
claim under at least two circumstances.
First, 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. In Allen v. Scribner, 812 F.2d 426 (9th Cir.
1987), for example, the plaintiff alleged “he was the subject
of continued harassment designed both to prevent him from
voicing his opinion and to punish him for his having already
done so.” Id. at 429. Specifically, he alleged the defendants
intimidated him, threatened him, harassed him and “made
defamatory statements to the media with the intent of
discrediting him.” Id. In addition, he alleged he was
transferred in retaliation for his protected speech. See id.
We rejected the defendants’ argument that “any
allegation of harassment grounded in a claim of defamation”
was not actionable. See id. at 434 n.17. We accepted the
proposition that, “to establish a claim under § 1983, more
must be involved than defamation by a state official.” Id.
But that principle was inapplicable to the facts of the case:
“Here, something more is involved. [The plaintiff] alleges
that the defamation he suffered was part of a concerted effort
to burden his first amendment expression.” Id.; see also
Coszalter, 320 F.3d at 975–77 (citing Allen and holding that
“engaging in [a] campaign[] of harassment and humiliation”
can be the basis for liability in a First Amendment retaliation
claim).
24 GREISEN V. HANKEN
Second, even when it is not part of a campaign of
harassment designed to burden the plaintiff’s protected
expression, 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)); see Goldstein v. Galvin, 719 F.3d 16, 30–31 (1st
Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 956 (7th Cir.
2011); Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 417 (4th Cir.
2006); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir.
1999); see also Mulligan, 835 F.3d at 989 n.5 (rejecting the
proposition that “speech by government officials can never
give rise to a claim of First Amendment retaliation,” id.
(emphasis omitted), and explaining that “informal measures,
such as the threat of invoking legal sanctions and other
means of coercion, persuasion, and intimidation, can violate
the First Amendment,” id. (internal quotation marks and
alteration omitted) (quoting White v. Lee, 227 F.3d 1214,
1228 (9th Cir. 2000))). 4
This case falls squarely within Allen. As in Allen,
Greisen’s retaliation claim involves something more than
defamation by a public official. He alleged the defamation
he suffered was part of a concerted effort to deter him from,
and punish him for, engaging in constitutionally protected
speech. 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
4
We have left undecided the question of whether retaliatory speech
may also be actionable in some circumstances when it involves the
“disclosure of deeply private personal details.” Mulligan, 835 F.3d
at 990; see also Balt. Sun, 437 F.3d at 417; Bloch v. Ribar, 156 F.3d 673,
676 (6th Cir. 1998).
GREISEN V. HANKEN 25
indefinite leave, a one-sided gag order and the instigation of
three spurious investigations. Greisen thus permissibly
premised his retaliation claim in part on Hanken’s
communications with the media. In addition, Hanken is not
entitled to qualified immunity on the theory that he would
not reasonably have known at the time of his actions that a
First Amendment retaliation claim could be based in part on
acts of retaliatory speech. In light of Allen, decided in 1987,
he was on notice. 5
D. Adequate Justification: Pickering Balancing
“[I]f the plaintiff has passed the first three steps, the
burden shifts to the government to show that under the
balancing test established by Pickering, the state’s legitimate
administrative interests outweigh the employee’s First
Amendment rights.” Eng, 552 F.3d at 1071 (alterations and
internal quotation marks omitted). “This inquiry, known as
the Pickering balancing test, asks ‘whether the relevant
government entity had an adequate justification for treating
the employee differently from any other member of the
general public.’” Id. (quoting Garcetti, 547 U.S. at 418); see
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
Hanken seeks to raise this defense here, but “an appellate
court will not consider issues not properly raised before the
district court.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999) (emphasis added). Here, Hanken briefly asserted
this argument for the first time in his reply brief on his
5
Because this case falls squarely within Allen, we need not
determine whether Hanken’s communications with the media also
intimated that some form of punishment or adverse regulatory action
would follow. See Brodheim, 584 F.3d at 1269-71.
26 GREISEN V. HANKEN
renewed motion for judgment as a matter of law, and the
district court appropriately declined to consider it. See
Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The
district court need not consider arguments raised for the first
time in a reply brief.”). 6 The argument, therefore, is waived.
Hanken argues the question is “purely one of law,”
which could allow us to exercise discretion to review the
argument under Bolker v. Commissioner of Internal
Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985). We disagree.
Although the Pickering balancing test “is ultimately a legal
question, . . . its resolution often entails underlying factual
disputes.” Eng, 552 F.3d at 1071. Here, the record is
undeveloped. It is thus inappropriate to review Hanken’s
argument under the pure question of law exception because
we “cannot rule out the possibility that . . . the merits of the
. . . argument cannot be resolved without further hearings
before the district court.” A-1 Ambulance Serv., Inc. v.
County of Monterey, 90 F.3d 333, 339 (9th Cir. 1996).
E. Damages
As noted, Greisen did not argue that his termination was
an adverse employment action. He argued, however, that it
6
Although Hanken briefly alluded to Pickering balancing in his
opening brief in support of his Rule 50(b) motion, this cryptic allusion
was insufficient to raise the issue. See Whittaker Corp. v. Execuair
Corp., 953 F.2d 510, 515 (9th Cir. 1992) (an argument is properly raised
below when it is “raised sufficiently for the trial court to rule on it”
(quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).
Because the issue was waived for this reason, we need not consider other
possible bases for waiver. See, e.g., EEOC v. Go Daddy Software, Inc.,
581 F.3d 951, 961 (9th Cir. 2009).
GREISEN V. HANKEN 27
was proximately caused by Hanken’s actions. He therefore
sought damages arising from his termination.
Hanken challenges these damages. Quoting Lakeside-
Scott v. Multnomah County, 556 F.3d 797, 804 (9th Cir.
2009), he contends his conduct did not proximately cause
Greisen’s termination, because Otterman, Hanken’s
successor, “made a wholly independent, legitimate decision
to discharge” Greisen, and any reasonable jury would have
so found. Alternatively, he asks us to remand for a new trial
because jury instruction number 17 misstated the law of
proximate cause by failing to require a direct relation
between Hanken’s actions and Greisen’s termination. See
Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011)
(“Proximate cause requires only ‘some direct relation
between the injury asserted and the injurious conduct
alleged,’ and excludes only those ‘link[s] that are too remote,
purely contingent, or indirect.’” (alteration in original)
(quoting Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9
(2010))). This failure, in his view, prevented the jury from
considering whether Otterman’s decision to terminate
Greisen severed the chain of causation. We address these
contentions in turn.
1. Substantial evidence supports the jury’s conclusion
that Hanken’s actions proximately caused
Greisen’s termination
We are not persuaded by Hanken’s argument that any
reasonable jury would have concluded that his actions did
not proximately cause Greisen’s termination. The Supreme
Court considered an analogous issue in Staub. There, the
plaintiff, a member of the United States Army Reserve,
brought a claim under the Uniformed Services Employment
and Reemployment Rights Act, claiming his employer
discharged him as a result of his military obligations. See id.
28 GREISEN V. HANKEN
at 415. The plaintiff’s biased supervisor had reported the
plaintiff to a superior, who reviewed the plaintiff’s file and
fired him partially on the basis of the supervisor’s report.
See id. at 414–15.
The Court framed the question before it as whether “an
employer may be held liable for employment discrimination
based on the discriminatory animus of an employee who
influenced, but did not make, the ultimate employment
decision.” Id. at 413. Answering this question required the
Court to consider whether “the biased supervisor’s action”
was “a proximate cause of the ultimate employment action”
– the precise question at issue here. Id. at 420, 422. The
proximate cause inquiry, in turn, hinged on whether the
biased supervisor’s actions “were causal factors underlying
[the] decision to fire” the plaintiff. Id. at 423. The Court
explained:
[I]f the employer’s investigation results in an
adverse action for reasons unrelated to the
supervisor’s original biased action . . . , then
the employer will not be liable. But the
supervisor’s biased report may remain a
causal factor if the independent investigation
takes it into account without determining that
the adverse action was, apart from the
supervisor’s recommendation, entirely
justified.
Id. at 421.
Under Staub, the question is 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].” Id. Compare
Lakeside-Scott, 556 F.3d at 807–09 (holding that a biased
GREISEN V. HANKEN 29
supervisor’s actions, including initiating an investigation
that led to the plaintiff’s discharge, were not causal factors
in the plaintiff’s discharge where the ultimate termination
decision was based on a thorough investigation that was
independent of the supervisor’s improper influence), with
Poland v. Chertoff, 494 F.3d 1174, 1182–84 (9th Cir. 2007)
(holding that a biased supervisor’s actions were causal
factors in the plaintiff’s transfer where the employer failed
to shield the disciplinary inquiry from the supervisor’s
influence, the supervisor played a role in selecting witnesses
for the inquiry and the supervisor’s memo that initiated the
inquiry was available to the disciplinary board making the
ultimate transfer decision).
Here, the evidence does not show that Otterman’s
decision was “unrelated to” Hanken’s conduct. See Staub,
562 U.S. at 421. Hanken points to Otterman’s testimony that
his decision was based on the results of the three
investigations Hanken initiated. There is some reason to
doubt that these investigations were independent. Hanken
selected the outside agency that performed the
investigations, and, more strikingly, he admitted at trial that
when he learned that the city council was considering ending
the investigations, he made a false report to the media in a
seemingly successful effort to keep them going.
Even assuming, however, that the investigations were
fully independent and that Hanken cannot be held
responsible for what they uncovered, cf. Lakeside-Scott,
556 F.3d at 806–07, they are not the whole story. Otterman
acknowledged that there were “some other things”
motivating his decision, including the negative media
attention surrounding Greisen and the fact that “the police
department employees felt that they could no longer rely on
. . . Greisen as the chief of police.” Hanken’s wrongful
30 GREISEN V. HANKEN
actions – which amounted to a campaign of public
humiliation through, among other things, false and
misleading representations – almost certainly played a direct
and substantial role in creating or exacerbating these
conditions. Otterman did not assert that he made any effort
to shield his termination decision from the influence of
Hanken’s actions. Cf. Poland, 494 F.3d at 1183. And there
is no contemporaneous evidence that Otterman’s decision
was based solely on the investigation results. On the
contrary, rather than identifying a particular justification for
the dismissal – like the employer did in Lakeside-Scott,
556 F.3d at 809 – he concluded “that the best situation for
the City was to exercise the, quote, ‘no-cause,’ unquote,
clause” in Greisen’s contract. Otterman further made clear
that Hanken’s actions created an environment of unrest that
framed and dictated the timeline of the decision:
There were several articles about [Greisen]
and about what was going on in the City. . . .
The police chief was on administrative leave.
And that causes commotion or turmoil in the
organization and needs to be resolved as soon
as possible.
On this evidence, a reasonable jury could have found that
Hanken’s actions were a causal factor in Otterman’s
decision.
2. Any error in the jury instruction on proximate
cause was harmless
As noted, Hanken argues he is entitled to a new trial
because jury instruction number 17 misstated the law of
proximate cause by failing to require a direct relation
between Hanken’s actions and Greisen’s termination. In
relevant part, that instruction stated:
GREISEN V. HANKEN 31
You can award money only for those
damages that arise naturally and necessarily
from the violation of law that the Plaintiff has
proven. . . .
If you find that the Defendant wrongfully
retaliated against the Plaintiff in violation of
the Plaintiff’s constitutional rights, and if you
also find that it was reasonably foreseeable
that such wrongful retaliatory conduct, if any,
by the Defendant would render the Plaintiff
unable to maintain either his position or his
salary (either at the City of Scappoose or at
another employer), then you may award the
Plaintiff any non-speculative, foreseeable
economic damages caused by the
Defendant’s wrongful retaliatory conduct.
We need not determine whether jury instruction
number 17 was erroneous because any error was harmless.
See Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798
(9th Cir. 2017) (“Where ‘it is more probable than not that the
jury would have reached the same verdict had it been
properly instructed,’ the erroneous instruction is harmless.”
(quoting Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.
2009))).
As described above, the evidence here strongly supports
the conclusion that Otterman’s termination decision was
influenced by Hanken’s retaliatory actions. Even fully
crediting Otterman’s testimony, he acknowledged that the
media attention and Greisen’s recent reputation in the
department – almost certainly influenced by Hanken’s
actions – played a role in his termination decision. Otterman
further admitted that Hanken’s actions had placed the city in
32 GREISEN V. HANKEN
turmoil, which he felt “need[ed] to be resolved as soon as
possible.” He did not provide formal reasons for the
termination but rather used a “no-cause” provision in
Greisen’s contract. Cf. Lakeside-Scott, 556 F.3d at 809.
Nothing in his informal review process shielded Otterman
from the influence of Hanken’s actions. In sum, the
evidence strongly suggests Hanken’s actions were a causal
factor in Otterman’s termination decision, and thus it is more
probable than not a jury would have so found.
Moreover, the instructions required the jury to find that
any damages arose “naturally and necessarily” from
Hanken’s unlawful conduct. It would be illogical for a jury
to find that Otterman’s decision to terminate Greisen
followed naturally and necessarily from Hanken’s adverse
employment actions, but nevertheless was unrelated to those
actions. 7
We thus hold that any error in jury instruction number 17
was harmless because it is more probable than not that the
jury would have reached the same result had it been
instructed as Hanken argues.
IV.
The district court properly denied Hanken’s renewed
motion for judgment as a matter of law and motion for a new
trial. The judgment of the district court is therefore affirmed.
AFFIRMED.
7
We do not endorse the “naturally and necessarily” instruction or
imply that it correctly stated the applicable law in this case.