9.9
Particular Rights—First Amendment—Public Employees—Speech
As previously explained,
the plaintiff has the burden to prove that the act[s] of the defendant [name] deprived the plaintiff of particular rights
under the United States Constitution. In this case, the plaintiff alleges the
defendant deprived [him] [her] of [his] [her] rights under the First Amendment
to the Constitution when [insert
factual basis of the plaintiff's claim].
Under the FirstAmendment, a public employee has a qualified right to speak on matters of
public concern. In order to prove the defendant deprived the plaintiff of this
First Amendment right, the plaintiff must prove the following additional
elements by a preponderance of the evidence:
1. the plaintiff spoke as a citizen and not as part of [his] [her] official duties;
2. the speech was on a
matter of public concern;
3. the defendant took an
adverse employment action against the plaintiff; and
4. the plaintiff’s speech
was a substantial or motivating factor for the adverse employment action.
I instruct you that the
plaintiff’s speech was on a matter of public concern, and, therefore, the
second element requires no proof.
An action is an adverse
employment action if a reasonable employee would have found the action
materially adverse, which means it might have dissuaded a reasonable worker
from engaging in protected activity.
A substantial or
motivating factor is a significant factor.
Comment
Use this instruction only
in conjunction with the applicable elements instruction, Instructions 9.2–9.7,
and when the plaintiff is a public employee. Use Instruction 9.10 (Particular
Rights—First Amendment—"Citizen" Plaintiff) when the plaintiff is a
private citizen. Because this instruction is phrased in terms focusing the jury
on the defendant’s liability for certain acts, the instruction should be
modified to the extent liability is premised on a failure to act in order to
avoid any risk of misstating the law. See
Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).
As to whether a public
employee’s speech is protected under the First Amendment, the Supreme Court has
"made clear that public employees do not surrender all their First
Amendment rights by reason of their employment. Rather, the First Amendment
protects a public employee’s right in certain circumstances to speak as a citizen
addressing matters of public concern." Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006); see
also Borough of Duryea, Pa. v. Guarnieri, 131
S. Ct. 2488 (2011) (applying Garcetti public
concern test to public employee’s First Amendment Petition Clause Claims).
In Gibson v. Office of Atty. Gen., State of California, 561
F.3d 920, 925 (9th Cir.2009), the Ninth Circuit reiterated the "sequential
five-step series of questions" to consider when evaluating a public
employee’s First Amendment retaliation claim:
Those questions are as
follows: "(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."
Id. (citing Eng v. Cooley, 552
F.3d 1062, 1070 (9th Cir.2009).)
Because this instruction
only addresses the first three elements summarized in Eng, the instruction should be modified if there
are jury issues involving the fourth or fifth factors stated above.
In Garcetti, a prosecutor brought a
§ 1983 action against his superiors and public employer, alleging that he was
retaliated against because of a memorandum he wrote that challenged the
veracity of a deputy sheriff’s affidavit used to procure a search warrant. The
Supreme Court held the prosecutor could not establish a First Amendment
violation because he prepared the memorandum as part of his official duties and
not as a private citizen:
We hold 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. . . .
Restricting speech that owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee might have
enjoyed as a private citizen. It simply reflects the exercise of employer
control over what the employer itself has commissioned or created.
Id., 547 U.S. at 421-22. The Supreme Court, however, limited its
ruling in two respects. First, in an explicit effort to avoid having its
holding serve as an invitation for employers to restrict employees’ rights
"by creating excessively broad job descriptions," the Court noted
that "the listing of a given task in an employee’s written job description
is neither necessary nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties for First Amendment
purposes." Id. at 425. Second, the Court recognized that "[t]here is
some argument that expression related to academic scholarship or classroom
instruction implicates additional constitutional interests that are not fully
accounted for by the Court’s customary employee-speech jurisprudence. . ..[F]or
that reason we do not decide whether the analysis we conduct today would apply
in the same manner to a case involving speech related to scholarship or
teaching." Id.
In Demers v. Austin, 2014 WL 306321 (9th
Cir. Jan. 29, 2014), however, the Ninth Circuit answered the latter question
and held that "Garcetti does not apply to "speech related to scholarship or
teaching." Id. at * 1.
Rather, such speech is governed by Pickering
v. Board of Education, 391 U.S. 563 (1968). The Demers court
went on to conclude that a state university professor’s accreditation plan for
his department addressed a matter of public concern underPickering. Demers, 2014 WL
306321, at * 1.
Whether the plaintiff
spoke as a public employee or a private citizen is a mixed question of fact and
law. Posey v. Lake Pend Oreille School
Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir.2008). In particular, "the
scope and content of a plaintiff's job responsibilities is a question of
fact." Id. at
1130. In Dahlia v. Rodriguez, 735
F.3d 1060 (9th Cir.2013)(en banc), the Ninth Circuit overruled Huppert v. City of Pittsburg, 574
F.3d 696 (9th Cir.2009), and found that the district court had improperly
relied on a generic job description and failed to conduct the practical, fact-specific
inquiry required by Garcetti, 547
U.S. at 424. Dahlia, 735
F.3d at 1063. The Ninth Circuit also set forth guiding principles for
performing the Garcetti inquiry
in analogous cases. Id., at
1073-1076. See, e.g., Hagen v. City of Eugene, 736
F.3d 1251 (9th Cir.2013) (holding that public employee reporting departmental
safety concerns pursuant to duty to so report did not speak as private
citizen).
On the other hand, the
"public concern inquiry is purely a question of law" Gibson, 561 F.3d at 925 (citing Eng, 552 F. 3d at 1070), that
depends on the "content, form, and context of a given statement, as
revealed by the whole record." Ulrich
v. City and County of San Francisco, 308 F.3d 968, 976–77 (9th
Cir.2002) (citations omitted).
The definition of
"adverse employment action" in this instruction is substantially the
same as that in Instruction 10.4A.1 (Civil Rights—Title VII—"Adverse
Employment Action" in Retaliation Cases). See the
Comment to that instruction for supporting authorities.
With respect to causation
and whether "a final decision maker’s wholly independent, legitimate
decision to terminate an employee [can] insulate from liability a lower-level
supervisor involved in the process who had a retaliatory motive to have the employee
fired" when, as a matter of causation, the termination decision was not
shown to be influenced by the subordinate’s retaliatory motives, see Lakeside-Scott
v. Multnomah County, 556 F.3d 797, 799 (9th Cir.2009).
Approved 4/2014
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