On May 31, 2019, the United States Court of Appeals for the Ninth District (“Ninth Circuit”) affirmed a four million dollar jury verdict related to a former police chief’s First Amendment retaliation claim against the former City Manager in Greisen v. Hanken.
Facts of the Case
The City of Scappoose, Oregon employed Doug Greisen (“Greisen”) as the chief of police. In 2012, he became suspicious that City Manager Jon Hanken (“Hanken”) was mismanaging City finances. Greisen voiced these concerns to city councilmembers and other government officials. He tried to meet with Hanken to discuss the budget, but Hanken refused. In 2013, Hanken initiated three investigations into Greisen. Hanken issued a suspension as a result of one investigation, and placed Greisen on indefinite leave as a result of another. While the investigations were pending, Hanken also issued Greisen a one-sided gag order prohibiting Greisen from making statements, while Hanken released misleading information to the media. In November 2013, Hanken resigned, and Donald Otterman (“Otterman”) replaced him. After reviewing reports from investigations instigated by Hanken, Otterman utilized a “no-cause” clause in Greisen’s contract to terminate his employment.
Greisen, unable to find other employment as a result of the negative media attention, filed a First Amendment retaliation claim against Hanken. Following a jury trial, Greisen was awarded over four million dollars in damages. Hanken filed post-trial motions for a new trial and for judgment as a matter of law. The Ninth Circuit affirmed the district court’s denial of the motions.
First Amendment Retaliation
To assert a First Amendment retaliation claim, a government employee must show that (1) he spoke on a matter of public concern; (2) he spoke as a private citizen; and (3) the protected speech was a substantial or motivating factor behind an adverse employment action. If the employee satisfies this burden, then the burden shifts to the employer to prove that it had adequate justification for treating the employee differently from other members of the general public and that it would have taken the adverse employment action even absent the protected speech.
A public employee’s speech is protected if the employee spoke as a private citizen about a matter of public concern. The employee must show that the form, content, and context of the statements “substantially involve” a matter of public concern. Additionally, the employee must show that the statements were not made pursuant to official duty or performance of tasks that the employee is paid to perform.
Hanken asserted that there was insufficient information about the content, form, and context of Greisen’s speech to establish that the statements substantially involved matters of public concern. The Ninth Circuit held that Greisen’s testimony regarding the content and general timeline of his discussions, as well as his identification of high-ranking officials with whom he spoke and his motivation for the discussions was sufficient to satisfy this requirement.
Hanken also argued that Greisen did not act as a private citizen because a police chief occupies a position of trust and authority, and thus he is subject to broader duties that encompass the discussions at issue. According to Hanken, a police chief acts pursuant to official duties whenever it is reasonable to view the actions in such capacity. The Ninth Circuit rejected this argument, and declined to hold police chiefs to broader duties.
Adverse Employment Action
In a First Amendment retaliation case, an adverse employment action is one reasonably likely to deter further engagement in protected speech. The Ninth Circuit held that retaliatory speech can form the basis for liability for a First Amendment retaliation claim if: (1) the speech is part of a campaign of harassment to burden the plaintiff’s protected expression; or (2) the speech intimates that some punishment or adverse action would follow further protected expression. The Ninth Circuit found that Hanken’s communications with the media, along with the suspension, indefinite leave, instigation of three spurious investigations, and unilateral gag order, constituted a concerted effort to deter Greisen from further protected speech and to punish him for past protected speech. It also determined that Hanken’s speech intimated punishment or adverse action would follow if Greisen engaged in more protected expression.
To establish adequate justification, the government must show that their legitimate administrative interest outweighs the employee’s First Amendment rights. The Ninth Circuit held that this analysis involves resolution of factual disputes. In this case, because the record lacked facts regarding the balance, the Ninth Circuit could not perform the analysis.
An employee is entitled to damages resulting from injury proximately caused by a violation of First Amendment rights.
Hanken asserted that because Otterman made an independent and legitimate decision to terminate Greisen, his actions did not proximately cause Greisen’s termination. The Ninth Circuit disagreed and held that the evidence showed that Otterman’s decision to terminate was influenced, at least in part, by Hanken’s retaliatory acts.
The Greisen decision concisely summarizes the analysis for a First Amendment retaliation claim, including the shifting burdens. However, of particular concern for employers, the Ninth Circuit confirmed that generalized testimony by a plaintiff is enough to show the content, form, and context of speech and that retaliatory speech can qualify as an adverse employment action under certain circumstances.