F OR PUB L I CATI ON



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B R I A N H A G E N , Plaintiff-Appellee

,

v

.

C I T Y O F E U G E

N E , P E T E R K E R

N S , J E N N I F E R B I L L S , T O M E I C H H O R N , Defendants-Appellants

. N o. 12-35492

D.C. No. 6:10-cv-06100- AA

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Ann L . Aiken, Chief District J u dg e, Presiding

Arg ued and Submitted November 8, 2013—Portland, Oreg on

F iled December 3, 2013

B e fore: Arthur L . Alarcón, Milan D. Smith, J r ., and Andrew D. Hurwitz

, Circuit J udg es.

Opinion by

J udg e AlarcónH A G E N V

. C I T Y O F E U G E

N E 2

SUMMARY *

Civil Rights

The panel reversed the district cou r t ’ s denial o f defendants’ motion for judgm e n t as a matter of law, following a jury t r ial, in a 4 2 U .S.C. § 1983 action in which plaintiff alleg ed that defendants vi o l a t e d h i s F i rst A mendment rig h t s w h e n they removed him from his position with the Eug ene Police Department’s K-9 team in retaliation for h i s repeatedly airing concerns about work-related safety issues to his supervisors.

The panel concluded that t h e e vidence p resented to the jury did n o t reasonably permit the conclusion that p laintiff established a F irst Amendment r etaliation claim. W here

, a s in this case, a public employ ee reports departmental

- s a f ety

concerns to his or her supervisors pursuant to a duty to do so, that employ ee does n ot speak as a private citiz en a n d i s not entitled to F irst Amendment protection. The panel reversed the judg ment and held that defendants were entitled to judg ment as a matter of law.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.H A G E N V

. C I T Y O F E U G E

N E 3

COUNSEL

J erome L idz (arg

ued), Glen n Klein, City of E u g ene Prosecutors Office, Eug ene, Oregon, for DefendantsAppellants.

J a m i e B

. Goldberg (arg

ued), Makler L emoine & Goldber g PC, Portland, Oreg on, for Plaintiff-Appellee.

OP INION

AL ARCÓN, Senior Circuit J udg e:

The City of Eug ene and Eug ene Police Department (EPD) Chief of Police Peter K erns, L ieutenant J ennifer B ills, a nd Serg e ant Tom Eichhorn appeal from the district court’s denial of their motion pursuant to Rule 50(b) of the F ederal Rules o f Civil Procedure for a judg ment as a matter o f l a w ( J MOL ). Hag en alleg ed A pp el l a nts violated his F irst A mendment rig hts w hen they removed him from his position on the EPD K-9 team in retaliation for repeatedly airing concerns about work-related safety issues to h is supervisors. After a two-day trial, a jury found in Hag e n’ s f a vor ag a inst all Appellants. W e have jurisdiction under 28 U.S.C. § 1291.

W e conclude that the evidence presented to the jury does not reasonably

permit the conclusion that Hag en established

a F irst Amendment retaliation claim. W here, a s h er e , a public employ ee reports departmental-safety concerns to his

or her supervisors pursuant to a duty to do so, that employ ee does not speak as a private citiz e n and is not entitled to F irst Amendment protection. W e reverse the judg ment below a ndH A G E N V

. C I T Y O F E U G E

N E 4

hold that Appellants were e n titled to judg ment as a matter o f law.

I

A

B r ian Hag en beg an working for the EPD in 1998, where he joined t h e K-9 unit in 2004. As a K-9 officer, Hag en occasionally d e p loy ed with the SW AT team for potentially dang erous operations.

As e arly a s the late 1990s, the E PD SW AT team b e g a n

ex p eriencing

problems with officers neg lig ently discharg ing firearms. I n an early ex ample, Serg eant J ay Shadwick—who supervised the K-9 team whe n H ag e n joined in 2004—was shot by a SW AT team sniper during a n operation in 2001.

The accidental discharg es continued after Hag en joined the K-9 team. I n 2005, a SW AT team officer unintentionally pulled the trig g er on his rifle as he attempted to p u ll the pin

on a flash-bang g renade during the ex ecution of a search
warrant. The rifle was aimed at the g r ound. Nobod y was h u r t

. F ollowing that incident, Hag en and his fellow K

- 9 officers, Mark Hubbard and Robert Rosales, voiced concern over the accident to their supervisor, Sg t. Tom Eichorn.

I n J anuary 2 0 0 7, a SW AT officer accidentally shot another officer when he mishandled his rifle while climbing

a fence. The following week, Eichhorn met b riefly with officers Hag e n, Hubbard, and Rosales to further address their safety concerns. When pressed f o r details about E PD’s proposed response to their safety concerns, Eichhorn became irritated and ex pressed f

rustrat i on that the issue w as beingH A G E N V

. C I T Y O F E U G E

N E 5

raised ag ain. A fter that meeting , Hag en voluntarily took the lead among the K-9 officers in coordinating their complaints.

I n April 2007, another SW AT officer unintentionally discharg ed his rifle d

u ring the ex ecution of a search warrant due to a technical malfunction, this time in a residential neig hborhood. I n an e f f ort to make his g rowing safety

concerns “ as public as p ossible” following this third shooting in two y e a r s , H a ge n sent an e -mail on May 23, 2007, to a number of serg eants with K-9 and SW AT t e a m e x perience, invitin g t h e m t o a meeting at c ity hall on May 30, 2007, to discuss “safety issues r elated to our close w orking relationship with the SW AT team.” “Most of t hese issues,” the e -mai l ex plained, “surround the recent accidental discharg es and h ow [ the K -9 and SW AT] teams could be better equipped or trained to function more safely tog ether.” The record is unclear whether this meeting took place on May 30, 2007, as requested. Three day s after Hag e n e-mailed this invitation, then-Chief of Police Robert L eh ner suspended SW AT operations so that safety issues could be resolved. 1

On Ju n e 1 3
, while SW AT operations were still suspended, Hag en met at city hall with Hubbard and Rosales from the K9 team, L t. Ag uilar, an d S gt

. Eichhorn to address neg lig entdi s c harg e concerns. The SW AT team was reactivated on J une 20, 2007. B y ear l y 2 0 0 8
, Hag en and his fellow K-9 officers still had received no detailed inform a t i on about improvements to the SW AT team’s weapons handling

.

1 Def en d an t P ete K ern s b ecam e actin g C h ief o f P o lice on Oct o b e r 1 7
, 2 0 0 8
, an d co n tin

u ed i n th at p o sitio n u n til o f f icially ap p o in ted Ch ief of P o lice o n A u g u s t 2 8, 2 0 09

.H A G E N V

. C I T Y O F E U G E

N E 6

A meeting was held in April 2008 b etween t h e S W AT and K-9 teams, including Sg t. Ei c h horn. Hag en ag ain reiterated his safety c o ncerns reg arding the accidental weapon discharg es. Sg t. Eichhorn became noticeably uncomfortable when those present asked him to whom he had been relay ing Hag en’s repeated complaints.

On May 28, 2 008, Sg t. Eichhorn informed Hag en that he would b e transferred out o f the K-9 unit to a new patrol team. Sg t. Eichh o r n e x plained that he chose to transfer Hag en, a s opposed to K-9 officers H ubbard or Rosales, because Hag en

was “the spokesman for the majority o f the complaints,” h ad

a l o w ac tivity level, and “repeatedly eng ag ed in what [ Sg t. Eichhorn deemed] to be passive insubordination.” On J uly 28, 2008, Chief L ehner reversed Sg t. E ichhorn’s decision to transfer Hag en because Hag en’s p erformance evaluations h ad been strong , and because Hag e n had not been notified of any deficiencies in his performance.

S h o rtly after Chief L ehner rescinded Hag en’s transfer, Sg t. E ichhorn e-mailed L t. A g uilar a l i s t of c oncerns about Hag en’s job performance. These concerns included Hag en’s failure to maintain training l o gs , resistence to chang es in procedure, hig h b i t e r a tios, u se of force bey ond his training

, a n d r esistence to working with the SW AT team. Sg t

. Eichhorn later acknowledg ed that a fter he decided to remove Hag en from the K-9 team, he beg an writing neg atively about
events that he h ad previously reg arded positively or neutrally

.

I n late Aug ust 2008, Hag e n met w ith Sg t. Eichho r n and L t. Ag uilar to discuss Hag e n’s tenure on the K-9 team. They
g ave Hag en a Performance Ex p e c t a tions memorandum, wh i c h i n cluded several of the concerns itemiz ed in Sg t. Eichhorn’s earlier list. Then in October 2008, Sg t. EichhornH A G E N V

. C I T Y O F E U G E

N E 7

and L t. B ills pla c e d Hag en on a formal Performance Manag ement Plan. The memorandum documenting the Plan noted t h a t “situations and concerns ha[ d] arisen with reg ard
to [ Hag en’s] job performance” over “the last several months” and ex p anded o n the performance ex pectations Sg t. Eichhorn and L t. Ag uilar had outlined for H a g en in Aug ust. I n a subsequent F ebruary 2009 Performance Evaluation, Sg t. Eichhorn rated Hag en’s w ork sig nificantly lower than he h ad in the previous two y ears.

I n March 2 009, L t. B ills placed the K-9 team o n s t a n d

down a fter she learned from the city ’ s risk manag er that “the canine officers were not talking to Serg e ant Eichhorn about safety problems on the team.” L t. B ills testified that s h e believed this lack of communication raised serious liability

, safety

, and risk issues, and t h reatened the cohesion a nd
g eneral functioning o f the K-9 team. During the stand-down, L t. B ills investig a ted these safety and commu n i cation

concerns by interviewing K-9 officers H ag en, Hubbard, a nd Rosales, as well as S g t

. Eichhorn. F o llowing the investig ation, L t. B ills determined that “a serious performance issue ex ist[ ed] with t h e officers that pose[ d ] a sig nificant risk to team safety ” and r e c o m mended that officers Hag e n, Hubbard, and Rosales be reassig ned from the K-9 unit to patrol.

I n May 2009, after the stand-down and investig ation, L t. B ills reactivat ed officers Rosales and Hubbard to their K-9 duties, on the condition that they adhere to the chain o f command and follow specified K-9 o peration s p rocedures. L t. B ills decided, however, t o transfer Hag e n from the K-9 unit. F ollowing her investig ation, L t. B i lls presented this decision to then-acting Chief of Police Kerns, who ex pressed

no concerns about L t. B ills’s decision despite his knowledg eH A G E N V

. C I T Y O F E U G E

N E 8

that Hag en believed he was being retaliated ag ainst f o r airing his SW AT safety c o ncerns. L t. B ills later ex plained that her decision to transfer Hag en from the K -9 team was motivated by Hag en’s unwilling ness to speak or resolve issues with Sg t. Eichhorn, in contrast to officers Rosales and Hubbard, w ho

were more willing to do any thing to work thing s out with Sg t. Eichhorn. Hag en had told L t. B ills during his interview with her, however, that he was “willing to do whatever it takes” to resolve trust and communication issues with Sg t. Eichhorn.

B

I n April 2010, H ag en sued the City of Eug ene, C h ief Kerns, L t. B ills, and Sg t. Eichhorn u nder 42 U.S.C. § 198 3. He alleg ed that the individual Appellants deprived h im of his constitutional rig hts b y retaliating ag ainst him for ex ercising his free-speech rig hts under the F irst Amendment. Hag en soug h t to hold the City of Eug ene liable for t h e i n d i vidual Appellants’ p ersonnel actions o n the theory that Chief Kerns

was a fina l p o l i cy

maker f or the City and had ratified Appellants’ retaliatory

conduct on behalf of the City

.

F ollowing discovery

, Appellants moved for summary judg ment o n H ag e n’s F irst Am e n d m e nt retaliation c laim. They arg u ed that ( 1 ) Hag en’s speech was not a matter o f public concern; ( 2) Hag en spoke as a public employ ee, not a s

a priva t e c i t iz en; and (3) Hag en could not show that his alleg edly protected speech was a substantial or motivating factor behind his adverse employ ment action. I n deny ing the motion f or summary judg ment, the court conclude d t h at Hag en’s speech “was a matter of public concern as a matter of law” because “accidental firearms discharg es by police officers while in the field are inherently public,” reg ardless o f Hag en’s own p ersonal-safety concerns. B ut the district courtH A G E N V

. C I T Y O F E U G E

N E 9

also determined that issues of fact r e m a ined “reg a rding the
scope a nd c ontent of plaintiff’s job responsibilities,” and thus it was “unable to rule as a matter of law” whet h e r H ag en

s poke in his capacity as a private citiz en or a pu b l i c employ e e.

The p arties stipulated to have the co u rt decide whether Hag en’s safety complaints involved a matter of public

concern. The day a f

ter a hearing on that issue, but before the
court issued a r u ling

, Appellants moved “for judg ment in their favor bas e d o n qualified immunity on [ the] ‘public concern’ issue,” pursuant to Rule 52(c) of the F ederal Rules of Civil Procedure. The district court denie d A p pellants’ motion, holding that H ag en’s complaints involved a matter o f public concern as a matter of law.

The d istrict court held a jury trial the following week. At the close o f H ag e n’s case-in-chief, Appellant s moved orally for a J MOL under Rule 50(a) of the F ed e r a l R u l es of Civil Procedure. The court denied the motion.

F ollowing the close of Appel lants’ case and after the
court instructed the jury

, A ppellants renewed their Rule 50(a) motion “for the same reasons that were raised a t the close of plaintiff’s case.” The c ourt ag ain denied the motion without
comment.

I n a u n an imous g eneral verdict rendered on March 14, 2012, the jury foun d t h a t Hag e n had proved by a preponderance o f t h e e vidence that e ach Appellant “had deprived [ him] of his F irst Amendment Rig ht of F ree Speech under the United State s C o nstitution.” The jury awarded Hag en $ 50,000 in comp e n s a tory damag es and $200,000 in punitive damag es ( Kerns, $50,000; B ills, $50,000; Eichhorn,H A G E N V

. C I T Y O F E U G E

N E 10

$ 100,000). The district court entered judg ment in H ag en’ s favor on March 23, 2012.

On A pril 19, 2 012, A ppellants moved for J MOL under Rule 50(b). 2 The district court denied the motion “ based on [ its] prior ruling s on the r ecord, the evidence received at trial, and the jury

verdict.”

Appellants timely appealed to t his Court from the judg ment a g ainst them and the district court’s order deny ing their Rule 50(b) motion.

II

“W e review de novo a district c ourt’s denial of a renewed motion for judg ment as a matte r o f l aw.” Barnard v

. Theobold

, 721 F .3d 1069, 1075 (9th C i r

. 2013). “J udg ment

a s a matter of law is appropriate when the evidence, construed in the lig h t most favorable to the nonmoving party , permits only one reasonable conclusion, which is contrary to the jury ’s verdict.” Omega Envtl., Inc. v. Gilbarco, Inc.
, 127 F .3d 1 157, 1161 (9th Cir. 1997). Conversely , if there is “such relevant evidence as reasonable minds mig ht a ccept a s adequate to support [ the jury ’s] c onclusion,” we must affirm the d eni a l of a J MOL motion. Gilbrook v. City of W estminster
, 177 F .3d 8 3 9
, 8 56 (9th Cir. 1999) (quoting

2 In co n j u n ctio n w ith th eir J MOL m o tio n f o llo w in g th e j u r y v erd ict, A p pellan t s s im

u ltan eo u sly m o v ed f

o r a n ew trial u n d er Ru le 5 9 (a)(1 )(A )

o f th e Fed eral Ru les o f Civ il P ro ced u re

. T h e y a rg u ed th at th e d istrict

co u rt’ s ex clu sio n o f ev id en ce o f a g riev an ce arb itratio n pro ceed in g p rej u d iced asp ects o f th eir d e fen se. A pp ellan ts d o n o t p u rsu e th is
arg u m en t o n

ap p eal.H A G E N V

. C I T Y O F E U G E

N E 11

Landes Constr. Co. v. Royal Bank of Can.
, 8 3 3 F .2d 1365, 1371 (9th Cir.1987)).

III

Appellants contend that the district court erred in deny ing their J MOL motion because Hag en failed to establish that he spoke as a private citiz en, a n ecessary el e m e n t t o his F irst Amendment retaliation claim under Garcetti v. C e b a l los

, 547 U.S. 410 (2006). Specifically

, Appellants arg ue that the undisputed evidence at trial supported the conc l usion that Hag en “spoke as part of his public duties as a police officer,
not as a private citiz en, because h e was required by [ the] City and police department po l i cy to report safety concerns.” Hag en responds that he w as not speaking as a public employ e e because he “did not ‘report’ any thing ” pursuant to

a “job d uty ” but rather “discusse d his concerns” about accidents taking

place at work.

A

The F i r st Amendment shields public employ ees from employ ment retaliation for t h eir protected speech activities. Garcetti
, 5 47 U.S. at 4 17. W e have e x plained, however, that

our “recog

ni t i o n for ‘the State’s interests as an employ er in
reg ulating the speech o f i ts employ ees’” requires us to “‘arrive at a balance b etween t h e i n t e rests of the [public

em p l o y e e ]
, as a citiz en, in commenting upon matters o f public concern and the interest of the State, a s a n e mploy er, in promoting the efficiency of the public services it performs throug h its employ ees.’” Karl v. City of Mountlake Terrace
, 6 7 8 F .3d 1062, 1068 ( 9th Cir. 2012) (quoting Connick v. Myers , 461 U.S. 138, 140 (1983); Pickering v. B d. of Educ.

,H A G E N V

. C I T Y O F E U G E

N E 12

391 U.S. 563, 568 (1968)). W e strike this b alance by asking five questions:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke

as a private citiz en or public employ ee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employ ment a c tion; (4) w hether the state had

an adequate justification for tr e ating the employ ee differently f

ro m other members o f the g eneral public; and (5) w hether t h e s tate would have t a k en the adverse employ ment action even absent the protected speech.

E ng v

. Cooley

, 552 F .3d 1062, 1070 (9th Cir. 2009). “ [ A ] l l the factors are necessary , in the sense that failure to meet any

one of them is fatal to the plaintiff’ s c a s e

. ” Dahlia v

. Rodriguez , No. 10-55978, 2013 W L 4437594, at *5 n.4 (9th Cir. Aug . 21, 2013) (en banc).

The dispositive issue here is whether sufficient evidence supports the jury ’s finding that Hag en’s speech was protected because he s p o k e as a private citiz en. This is a mix ed question of law and fact. Posey v

. L a k e Pend Oreille Sch. Dist

. N o

. 8 4
, 546 F .3d 1121, 1129 (9th Cir. 2008). “The
scope and content of a plaintiff’s job responsibilities is a qu es t i o n of fact over which we lack jurisdiction, while ‘the ultimate constitutional sig nificance of the u ndisputed facts’ is a q uestion of law.” Karl

, 6 78 F .3d at 1071 (alteration omitted) (quoting E

ng , 552 F .3d at 1071).

“A public e mploy ee’s speech is not p rotected b y the F irst Amendment when it is m a d e pursuant to the e mploy ee’sH A G E N V

. C I T Y O F E U G E

N E 13

official job responsibilities.” Id. (citing Garcetti
, 547 U .S. at 426). Conversely

, a p ublic employ ee’s speech on a matter o f public c o n cern is protected “if the speaker ‘had n o official duty ’ to make the questioned statements,

. . . or if the speech

was n ot the product of ‘performing the tasks the employ ee

was pai d to perform.’” Posey
, 546 F .3d at 1 127 n.2 (alteration and s o m e internal quotation marks omitted) (quoting M

arable v. Nitchma n , 5 11 F .3d 924, 933 (9th Cir. 2007); Freitag v. Ayers
, 468 F .3d 528, 544 (9th Cir. 2006)). Statements d o not lose F irst Amendment protection simply because they concern “the subject matter of [ the p l a i n tiff’s] employ ment.” Freitag
, 4 68 F .3d at 545. B ut “speech which

‘ owes its ex istence to an e mploy ee’s professional

r e s p o nsibilities’ is not protected by the F irst Amendment

. ” Huppert v. City of Pittsburg

, 574 F. 3 d 696, 704 (9th Cir. 2009) ( quoting Garcetti
, 5 47 U.S. at 421), overruled on other grounds by Dahlia , 2013 W L 4437594.

Generally

, “in a h ig hly hierarchical emplo y m e nt setting such as law enforcement,” Dahlia

, 2013 WL 4437594, at *10, “‘when a public employ ee raises c omplain ts or c oncerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course o f performing his job,’ althoug h ‘it is not dispositive that a public e mploy ee’s
statements are made internally ,’” id. (citation omitted) (quo t i n g D a vis v. McKinney
, 518 F .3d 304, 313 & n.3 (5th C i r

. 2008)). I f, on the other hand, “a public employ ee tak e s his job concerns to persons outside the work place in addition
to raising them up the chain of command at his w o r k p l ace, then those ex ternal communications are ordinarily not made

as an e mploy ee, but as a c i tiz en.” Id. (quoting McKinney
, 518 F

. 3d at 313); see also Fre i t a g , 468 F .3d at 545–46 (holding that where a prison official made “internal reports o f inmate sex ual misconduct

. . . the prison’s failure to respond,”H A G E N V

. C I T Y O F E U G E

N E 14

s he spoke as a “public employ ee,” and that speech thus wa s t h u s unprotected, but w hen she made ex ternal reports abo u t the same circumst a n c es to a state senator and the state in s p ec tor g eneral, she “acted as a citiz en,” and that speech was protected under the F irst Amendment)).

I n Garcetti
, the Supreme Court held t h a t it was “ not dispositive” that an employ ee “ex pressed his views inside his of f i c e , r ather than publicly ,” n or was it dispositive that an employ e e wrote a memorandum that “concerned the subject
matter of [ his] e m p l oy

ment.” 5 47 U.S. at 421. W hile it declined to “articulate a c omprehensive fram e work for defining the scope of an employ ee’s duties in cases where there is room f

or serious debate,” the Court emphasiz ed that “[ t] he proper inquiry

is a practical one” untied to f o rmal job descriptions. Id

. at 424– 25; see also Dahlia

, 2013 W L 4437594, at *10 (acknowledg ing “the fact-intensive nature o f the inquiry ” and the fact that “no sing le formulation of f actors

can encompass the full s e t of inquiries relevant to determining the scope of a plaintiff’s job duties”).

B

Hag en, like the p ublic emplo y e e in Garcetti
, ex pressed his concerns a

bout officer safety to coworke r s a n d others within the chain of command a t E PD. His speech concerned his employ

ment a nd safety issues E PD officers were r equired
to report as part of the “tasks [ they were] paid to p er f o rm

. ” Ellins

, 710 F .3d at 1 058. As a K-9 officer, H ag en worked in

a “hig h ly hierarchical employ ment setting .” Dahl i a , 2013 W L 4437594, at *10. Th e e v idence establishes that his

concerns w ere directed t o h is coworkers a nd his superior officers.H A G E N V

. C I T Y O F E U G E

N E 15

W h ere an “ employ ee prepares a routine report, pursuant to normal departmental procedure a b out a particular incident

or occurrence, the employ ee’s p r e p a r ation of that report is ty pically within his job duties.” Dahlia

, 2013 W L 4437594,
at * 10 (citation omitted). Conversely

, c omplaints r eg a rd i n g “broad concerns a

bout corruption or sy stemic abuse” a re unlikely to “be classified as b eing within the job duties of an averag e public employ ee.” I d. All of Hag en’s complaints involved safety concerns stemming fro m “particular incident[ s] or occurrence[ s] ,” Dahlia

, 2013 W L 4437594, at *10, and the City of E ug e ne’s Human Resource and Risk S e r vices Administrative Policies and Procedures Manu al required him to report safety concerns. The Manual provides that “[ e] mploy ees a

re

. . . responsible for reporting accidents, faulty equipment, unsa

f e practices of fellow employees

, and/or unsafe c onditions of work areas to their supervisors.” I n addition, a EPD General Order p r o vides that employ ees

s h o u ld “[ r] e port any safety haz ard or malfunctioning

e q u i p m ent to [ their] supervisor immediately so that corrective action can be taken.”

Notwithstanding his duty under this policy

, Hag en arg ues that h e d id not a ctually “repo r t ” a n y thing “as that term is

u sed, u nderstood and applied” in Garcetti because he w a s “repeatedly bring ing up w ell-known information.” He maintains th a t G a r cetti and other cases involving r eports to supervi s o r s “have no relevance to a situation where, instead of reporting

information, plaintiff was repeatedly discussing

a known, d ang erous situation until his supervisors eventually became ex aspe r ated.” T h is Court rejected a similar contention in Dahlia : “That [ p l a intiff’s supervisor] appears to have ig n ored [ p lainti f f ’s ] initial report does not convert into protected sp eech [ plaintiff’s] later reports to the same

s u p er visor.” Dahlia

, 2 013 W L 4437594, at *12. Thus, t h eH A G E N V

. C I T Y O F E U G E

N E 16

repetitive nature of Hag en’s complaints did not c onvert them into private speech.

Hag en contends that Marable v. Nichman

, 5 1 1 F .3d 924 (9th Cir. 2007), places his safety complaints o utside of h is official duties. W e disag ree. I n Marable

, a ship eng ineer complained of corruption by the manag er of the W ashing ton State F erries. Id. at 927. This Cour t h e ld that Garcetti was inapplicable because it was n o t p a r t of a ship eng ineer’s assig ned dut i e s t o complain about corrupt conduct of his supervisors. Id. at 933. “Fu n ctionally ,” we ex plained, “it
cannot be disputed that [ Marable’s] job was to do the tasks o f

a Chief Eng ineer on h is ferry

, a nd such tasks did not include poi nting to corrupt actions o f hig her level officials.” Id. at 932

Here, in contrast, H ag en’s concerns a b o u t SW AT safety

were inex tricably intertwined with his duties as a K-9 officer. Hag en’s concerns—that the EPD SW A T team with which he often d eploy ed was poorly trained a nd therefore risked officer and public safety

—contain all the hal l m arks of traditionally internal work-place complaints one w ould ty pically ex pect an officer to communicate to h is superiors, even absent a formal written duty

to do so.

That Hag en r aised his concerns about his and his fellow officers’ job safety intern a l ly and within the chain o f command cements our conclusio n t hat his comments were made as a pu b l i c e m p loy ee, and n o t a s a private c itiz en. 3

3 H ag en h as n o t arg u ed t

h at h e acted as a p riv ate p erso n in rep o rtin g h is

s a fe ty co n cern s to p olice u n io n o f f icials, n o r h as h e p resen ted an y

ev id en ce reg ard in g th e p o lice u n io n ’ s ag reem en t w ith EP D co n cern in g

em p l o y ee g riev an ces.H A G E N V

. C I T Y O F E U G E

N E 17

Compare Dahlia

, 2013 W L 4437594, at *10; id. a t * 1 2 (“Even construing the facts and drawing all inferences in Dahlia’s favor, the o nly r easonable c onclusion is that Dahlia acted pursua n t t o his job duties when he

. . . reported up the chain of command to the s u p e rvising lieutenant overseeing the investig a tion about a b use related to the same investig ation.”), with Andrew v. Clark

, 651 F .3d 261, 266–67 (4th Cir. 2009) (finding that whether an officer’s memorandum reg arding the shooting death of a suspect “was written a s p art of [ the officer’s] o fficial duties was a disputed issue of material fact that ca n n o t be decided on a motion to dismiss pursuant to Rule 12(b)(6),” in part because the officer leaked the memorandum to the Baltimore Sun ).

The district court instruct e d the jury that for Hag e n to prove that Appellants deprived him of his F irst A mendment rig ht, he h a d to prove by a preponderance of the evidence that he “spoke as a citiz en a n d not as part of his official d uties.” I mplicit in the jury ’s g e neral verdict in his favor, therefore, is its finding that Hag en did not air his safety concerns as a part of his official duties. Construing the ev i d ence in the lig ht
most f avora b le to Hag en, however, “permits only o ne reasonable conclusion,” Omega
, 1 27 F .3d at 1161, which is
t h a t a s a factual and a practical matter, H ag en made h i s repeated internal complaints a bou t d e partmental safety a nd officer c ompetency only in his o f f i c i a l capacity as an EPD officer. Hag en therefore has not established a constitutional violation.

Conclusion

W e c onclude that, construing the e vidence in the lig ht
most favorable to Hag en, insufficient evidence supported the jury ’s finding that Hag en spoke a s a private c itiz e n. Hag enH A G E N V

. C I T Y O F E U G E

N E 18

had an official d

uty to r eport his sa f

e t y concerns and thus spoke as a p ublic employ e e when he r epeatedl y complained within the chain o f c ommand a bout work-related safety i ssues. B ecause this conclusion is contrary to the ju r y ’s verdict, each Appellant was entitled to J MOL

.

W e therefore REVERSE a nd REMAND wit h instructions tha t t h e district court vacate its judg ment in Hag en’s favor and enter judg ment in favor of Appe llants on each of Hag en’s claims.