NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CAROLYN C . RITCHIE,

Plaintiff

- Appellant,

v. STATE OF HAWAII, DEPARTME NT OF PUBLIC SAFETY and NEAL WAT GATSUMA, 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

MEMOR ANDUM *

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 ag ainst 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, CLER K U.S. COURT OF APPEAL S2

Community Correctional Center (“Correction al Center”)

. Ritchie, a psychiatric
social worker at the Correctional Center b etween 2009 and 2012, alleged that she was retaliated against after she made complaints about Wagatsuma’s treatment of
Correctional Center inmates and a correc tional 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, t he district court grant ed 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 t he Equal Opportunity Commission

. T he 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 regar ding 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 N inth 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 on3

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 , 42 1, 42 4 (2006) . “[B]ecause of the fact

- intensive nature of the inquiry, no singl e 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 “ w hether 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 . I n addition to repor ting the suspected abuse to her supervisor , the record evidence indicates that Ritchie spoke to the investigators from the Department’s In ternal Affairs division . She also reported the suspected abuse to the Hawaii State Department of Health, the American Civi l Liberties Union, the Federal Bureau of Investigation , the Hawaii State Attorney General, and the Ha waii Disability Rights Center

.

1 Ritchie also has challenged a number of the evidentiary rulings made by the district court. I f 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 outsid e of the speaker’s professional
duties.” Id. at 1075. Stated in more general terms, a supervisor’s respo nse 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 depar tmental 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 a s addressing systemic abuse. Although both our circuit and the Supreme Court have warned that “employers cannot restrict employees’ rights by creating exc essively broad job descriptions,” i d. at 1070 (quoting Garcetti , 547 U.S. at 424 ), the scope of a job description r emains a relevant consideration . Here, the job description for psychiatric s ocial 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 p sychiatric 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 ju ry 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, mandator y reporters are required to report suspected abu se of vulnerable adults to the S tate 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 Dahli a and Garcetti could decide that Ritchie’s reports were not part of her job

. T he 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.