NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN C. RITCHIE, 

Plaintiff-Appellant, 

 v. 

STATE OF HAWAII, DEPARTMENT OF 

PUBLIC SAFETY and NEAL 

WATGATSUMA, in his official capacity as 

Warden of the Kauai Community 

Correctional Center, Department of Public 

Safety, State of Hawaii, and in his individual 

capacity, 

Defendants-Appellees.

No. 17-15880 

D.C. No. 

1:14-cv-00046-LEK-KJM 

MEMORANDUM*

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted October 9, 2018 

Honolulu, Hawaii

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

In 2014, Carolyn Ritchie brought suit against the Hawaii Department of 

Public Safety (“Department”) and Neil Wagatsuma, the warden at the Kauai 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Community Correctional Center (“Correctional Center”). Ritchie, a psychiatric 

social worker at the Correctional Center between 2009 and 2012, alleged that she 

was retaliated against after she made complaints about Wagatsuma’s treatment of

Correctional Center inmates and a correctional program run by Wagatsuma called 

the Life Time Stand. Ritchie’s operative complaint raised six claims: a retaliation 

claim against the state under Title VII, a claim under 42 U.S.C. § 1983 alleging 

that Wagatsuma violated Ritchie’s First Amendment rights, and state-law 

defamation, retaliation, wrongful termination, and intentional infliction of

emotional distress claims against Wagatsuma.

During trial, the district court granted judgment as a matter of law to 

Wagatsuma on the § 1983 claim except to the extent it was based on the reports 

Ritchie made to the Hawaii Disability Rights Commission and the Equal 

Opportunity Commission. The district court reasoned that Ritchie’s First 

Amendment rights were not violated because she was not acting as a private citizen

when she made internal reports regarding Wagatsuma’s conduct. But a jury, 

following the law set forth by the Supreme Court and our circuit, could have 

reasonably concluded that Ritchie spoke as a private citizen when she made 

complaints to her supervisor and others in the Department. See Ninth Circuit 

Comm. on Model Civil Jury Instrs., Manual of Model Civil Jury Instrs. for the Dist.

Courts of the Ninth Circuit § 9.10 (2017). Thus, we remand for a new trial on 
3 

Ritchie’s § 1983 claim.1

A public employee’s speech on a topic of public concern, including speech 

made at work, is protected by the First Amendment unless that speech is “made 

pursuant to official responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 421, 424

(2006). “[B]ecause of the fact-intensive nature of the inquiry, no single 

formulation of factors can encompass the full set of inquiries relevant to 

determining the scope of a plaintiff’s job duties.” Dahlia v. Rodriguez, 735 F.3d 

1060, 1074 (9th Cir. 2013) (en banc). Nonetheless, we have enumerated a number 

of factors that a jury can consider during this inquiry.

First, jurors should consider “whether or not the employee confined his 

communications to his chain of command.” Id. Here, Ritchie did not confine her 

complaints to her chain of command. In addition to reporting the suspected abuse 

to her supervisor, the record evidence indicates that Ritchie spoke to the 

investigators from the Department’s Internal Affairs division. She also reported 

the suspected abuse to the Hawaii State Department of Health, the American Civil 

Liberties Union, the Federal Bureau of Investigation, the Hawaii State Attorney 

General, and the Hawaii Disability Rights Center.

 

1 Ritchie also has challenged a number of the evidentiary rulings made by 

the district court. If any abuse of discretion occurred, it was harmless error with 

respect to the Title VII and state law claims presented to the jury regarding these 

rulings. As we are reversing for a new trial on Ritchie’s First Amendment claim, 

we do not address the evidentiary rulings with respect to that claim.
4 

Second, “when a public employee speaks in direct contravention to his 

supervisor’s orders, that speech may often fall outside of the speaker’s professional 

duties.” Id. at 1075. Stated in more general terms, a supervisor’s response to an 

employee’s speech indicates whether that speech was as part of the employee’s job

duties. Here, Richie’s supervisor responded to one report by asking: “How much 

of this do you want me to share with the warden[’]s supervisor?” This response 

indicates that Ritchie was not required to make these complaints.

Third, jurors are instructed that a “routine report, [prepared] pursuant to 

normal departmental procedure, about a particular incident or occurrence” is more 

likely to be part of an employee’s job than a report addressing “broad concerns 

about corruption or systemic abuse.” Id. Here, a juror could understand Ritchie’s 

reports as addressing systemic abuse.

Although both our circuit and the Supreme Court have warned that 

“employers cannot restrict employees’ rights by creating excessively broad job 

descriptions,” id. at 1070 (quoting Garcetti, 547 U.S. at 424), the scope of a job 

description remains a relevant consideration. Here, the job description for 

psychiatric social workers at the Correctional Center does not state that social 

workers were required to report suspected abuse occurring in the prison. Nor does 

the description state that psychiatric social workers were supposed to assess the 

efficacy of correctional programs such as Life Time Stand.
5 

The state, on appeal, largely relies on the fact that Ritchie testified that as a 

licensed social worker, she was a mandatory reporter. The jury may consider this 

fact when assessing whether Ritchie’s internal reports were part of her official 

duties. But the jury could also consider that Richie was not acting as a mandatory 

reporter when she made reports to her supervisor. In Hawaii, mandatory reporters 

are required to report suspected abuse of vulnerable adults to the State Department 

of Human Services, not their superiors.2 Haw. Rev. Stat. §§ 346-222, 346-224.

In sum, a juror reviewing the evidence in light of the factors set forth 

in Dahlia and Garcetti could decide that Ritchie’s reports were not part of 

her job. The district court erred in holding otherwise.3

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.

 

2 Hawaii’s relevant mandatory reporter statute covers a broad swath of 

government and private employees, including all “[e]mployees or officers of any 

public or private agency or institution providing social, medical, hospital, or 

mental health services, including financial assistance,” and “any law enforcement 

agency, including the courts, police departments, correctional institutions, and 

parole or probation offices.” Haw. Rev. Stat. §§ 346-224(a)(2)-(3) (for abuse of 

vulnerable adults); see also id. § 350-1.1 (for child abuse). The statute also covers 

licensed social workers and a number of medical professionals, including dentists 

and optometrists.

3 Because we remand Ritchie’s § 1983 claim for a new trial, we reverse the 

district court’s award of costs to the Department and Wagatsuma.