Brian Hagen v. City of Eugene

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN HAGEN, No. 12-35492

Plaintiff-Appellee,

D.C. No.

v. 6:10-cv-06100-

AA

CITY OF EUGENE, PETER KERNS,

JENNIFER BILLS, TOM EICHHORN,

Defendants-Appellants. OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted

November 8, 2013—Portland, Oregon

Filed December 3, 2013

Before: Arthur L. Alarcón, Milan D. Smith, Jr.,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Alarcón

2 HAGEN V. CITY OF EUGENE

SUMMARY*

Civil Rights

The panel reversed the district court’s denial of

defendants’ motion for judgment as a matter of law,

following a jury trial, in a 42 U.S.C. § 1983 action in which

plaintiff alleged that defendants violated his First Amendment

rights when they removed him from his position with the

Eugene Police Department’s K-9 team in retaliation for his

repeatedly airing concerns about work-related safety issues to

his supervisors.

The panel concluded that the evidence presented to the

jury did not reasonably permit the conclusion that plaintiff

established a First Amendment retaliation claim. Where, as

in this case, a public employee reports departmental-safety

concerns to his or her supervisors pursuant to a duty to do so,

that employee does not speak as a private citizen and is not

entitled to First Amendment protection. The panel reversed

the judgment and held that defendants were entitled to

judgment as a matter of law.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HAGEN V. CITY OF EUGENE 3

COUNSEL

Jerome Lidz (argued), Glenn Klein, City of Eugene

Prosecutors Office, Eugene, Oregon, for Defendants-

Appellants.

Jamie B. Goldberg (argued), Makler Lemoine & Goldberg

PC, Portland, Oregon, for Plaintiff-Appellee.

OPINION

ALARCÓN, Senior Circuit Judge:

The City of Eugene and Eugene Police Department (EPD)

Chief of Police Peter Kerns, Lieutenant Jennifer Bills, and

Sergeant Tom Eichhorn appeal from the district court’s denial

of their motion pursuant to Rule 50(b) of the Federal Rules of

Civil Procedure for a judgment as a matter of law (JMOL).

Hagen alleged Appellants violated his First Amendment

rights when they removed him from his position on the EPD

K-9 team in retaliation for repeatedly airing concerns about

work-related safety issues to his supervisors. After a two-day

trial, a jury found in Hagen’s favor against all Appellants.

We have jurisdiction under 28 U.S.C. § 1291.

We conclude that the evidence presented to the jury does

not reasonably permit the conclusion that Hagen established

a First Amendment retaliation claim. Where, as here, a

public employee reports departmental-safety concerns to his

or her supervisors pursuant to a duty to do so, that employee

does not speak as a private citizen and is not entitled to First

Amendment protection. We reverse the judgment below and

4 HAGEN V. CITY OF EUGENE

hold that Appellants were entitled to judgment as a matter of

law.

I

A

Brian Hagen began working for the EPD in 1998, where

he joined the K-9 unit in 2004. As a K-9 officer, Hagen

occasionally deployed with the SWAT team for potentially

dangerous operations.

As early as the late 1990s, the EPD SWAT team began

experiencing problems with officers negligently discharging

firearms. In an early example, Sergeant Jay Shadwick—who

supervised the K-9 team when Hagen joined in 2004—was

shot by a SWAT team sniper during an operation in 2001.

The accidental discharges continued after Hagen joined

the K-9 team. In 2005, a SWAT team officer unintentionally

pulled the trigger on his rifle as he attempted to pull the pin

on a flash-bang grenade during the execution of a search

warrant. The rifle was aimed at the ground. Nobody was

hurt. Following that incident, Hagen and his fellow K-9

officers, Mark Hubbard and Robert Rosales, voiced concern

over the accident to their supervisor, Sgt. Tom Eichorn.

In January 2007, a SWAT officer accidentally shot

another officer when he mishandled his rifle while climbing

a fence. The following week, Eichhorn met briefly with

officers Hagen, Hubbard, and Rosales to further address their

safety concerns. When pressed for details about EPD’s

proposed response to their safety concerns, Eichhorn became

irritated and expressed frustration that the issue was being

HAGEN V. CITY OF EUGENE 5

raised again. After that meeting, Hagen voluntarily took the

lead among the K-9 officers in coordinating their complaints.

In April 2007, another SWAT officer unintentionally

discharged his rifle during the execution of a search warrant

due to a technical malfunction, this time in a residential

neighborhood. In an effort to make his growing safety

concerns “as public as possible” following this third shooting

in two years, Hagen sent an e-mail on May 23, 2007, to a

number of sergeants with K-9 and SWAT team experience,

inviting them to a meeting at city hall on May 30, 2007, to

discuss “safety issues related to our close working

relationship with the SWAT team.” “Most of these issues,”

the e-mail explained, “surround the recent accidental

discharges and how [the K-9 and SWAT] teams could be

better equipped or trained to function more safely together.”

The record is unclear whether this meeting took place on May

30, 2007, as requested. Three days after Hagen e-mailed this

invitation, then-Chief of Police Robert Lehner suspended

SWAT operations so that safety issues could be resolved.1

On June 13, while SWAT operations were still suspended,

Hagen met at city hall with Hubbard and Rosales from the K-

9 team, Lt. Aguilar, and Sgt. Eichhorn to address negligent-

discharge concerns. The SWAT team was reactivated on

June 20, 2007. By early 2008, Hagen and his fellow K-9

officers still had received no detailed information about

improvements to the SWAT team’s weapons handling.

1

Defendant Pete Kerns became acting Chief of Police on October 17,

2008, and continued in that position until officially appointed Chief of

Police on August 28, 2009.

6 HAGEN V. CITY OF EUGENE

A meeting was held in April 2008 between the SWAT

and K-9 teams, including Sgt. Eichhorn. Hagen again

reiterated his safety concerns regarding the accidental weapon

discharges. Sgt. Eichhorn became noticeably uncomfortable

when those present asked him to whom he had been relaying

Hagen’s repeated complaints.

On May 28, 2008, Sgt. Eichhorn informed Hagen that he

would be transferred out of the K-9 unit to a new patrol team.

Sgt. Eichhorn explained that he chose to transfer Hagen, as

opposed to K-9 officers Hubbard or Rosales, because Hagen

was “the spokesman for the majority of the complaints,” had

a low activity level, and “repeatedly engaged in what [Sgt.

Eichhorn deemed] to be passive insubordination.” On July

28, 2008, Chief Lehner reversed Sgt. Eichhorn’s decision to

transfer Hagen because Hagen’s performance evaluations had

been strong, and because Hagen had not been notified of any

deficiencies in his performance.

Shortly after Chief Lehner rescinded Hagen’s transfer,

Sgt. Eichhorn e-mailed Lt. Aguilar a list of concerns about

Hagen’s job performance. These concerns included Hagen’s

failure to maintain training logs, resistence to changes in

procedure, high bite ratios, use of force beyond his training,

and resistence to working with the SWAT team. Sgt.

Eichhorn later acknowledged that after he decided to remove

Hagen from the K-9 team, he began writing negatively about

events that he had previously regarded positively or neutrally.

In late August 2008, Hagen met with Sgt. Eichhorn and

Lt. Aguilar to discuss Hagen’s tenure on the K-9 team. They

gave Hagen a Performance Expectations memorandum,

which included several of the concerns itemized in Sgt.

Eichhorn’s earlier list. Then in October 2008, Sgt. Eichhorn

HAGEN V. CITY OF EUGENE 7

and Lt. Bills placed Hagen on a formal Performance

Management Plan. The memorandum documenting the Plan

noted that “situations and concerns ha[d] arisen with regard

to [Hagen’s] job performance” over “the last several months”

and expanded on the performance expectations Sgt. Eichhorn

and Lt. Aguilar had outlined for Hagen in August. In a

subsequent February 2009 Performance Evaluation, Sgt.

Eichhorn rated Hagen’s work significantly lower than he had

in the previous two years.

In March 2009, Lt. Bills placed the K-9 team on stand-

down after she learned from the city’s risk manager that “the

canine officers were not talking to Sergeant Eichhorn about

safety problems on the team.” Lt. Bills testified that she

believed this lack of communication raised serious liability,

safety, and risk issues, and threatened the cohesion and

general functioning of the K-9 team. During the stand-down,

Lt. Bills investigated these safety and communication

concerns by interviewing K-9 officers Hagen, Hubbard, and

Rosales, as well as Sgt. Eichhorn. Following the

investigation, Lt. Bills determined that “a serious

performance issue exist[ed] with the officers that pose[d] a

significant risk to team safety” and recommended that

officers Hagen, Hubbard, and Rosales be reassigned from the

K-9 unit to patrol.

In May 2009, after the stand-down and investigation, Lt.

Bills reactivated officers Rosales and Hubbard to their K-9

duties, on the condition that they adhere to the chain of

command and follow specified K-9 operations procedures.

Lt. Bills decided, however, to transfer Hagen from the K-9

unit. Following her investigation, Lt. Bills presented this

decision to then-acting Chief of Police Kerns, who expressed

no concerns about Lt. Bills’s decision despite his knowledge

8 HAGEN V. CITY OF EUGENE

that Hagen believed he was being retaliated against for airing

his SWAT safety concerns. Lt. Bills later explained that her

decision to transfer Hagen from the K-9 team was motivated

by Hagen’s unwillingness to speak or resolve issues with Sgt.

Eichhorn, in contrast to officers Rosales and Hubbard, who

were more willing to do anything to work things out with Sgt.

Eichhorn. Hagen had told Lt. Bills during his interview with

her, however, that he was “willing to do whatever it takes” to

resolve trust and communication issues with Sgt. Eichhorn.

B

In April 2010, Hagen sued the City of Eugene, Chief

Kerns, Lt. Bills, and Sgt. Eichhorn under 42 U.S.C. § 1983.

He alleged that the individual Appellants deprived him of his

constitutional rights by retaliating against him for exercising

his free-speech rights under the First Amendment. Hagen

sought to hold the City of Eugene liable for the individual

Appellants’ personnel actions on the theory that Chief Kerns

was a final policymaker for the City and had ratified

Appellants’ retaliatory conduct on behalf of the City.

Following discovery, Appellants moved for summary

judgment on Hagen’s First Amendment retaliation claim.

They argued that (1) Hagen’s speech was not a matter of

public concern; (2) Hagen spoke as a public employee, not as

a private citizen; and (3) Hagen could not show that his

allegedly protected speech was a substantial or motivating

factor behind his adverse employment action. In denying the

motion for summary judgment, the court concluded that

Hagen’s speech “was a matter of public concern as a matter

of law” because “accidental firearms discharges by police

officers while in the field are inherently public,” regardless of

Hagen’s own personal-safety concerns. But the district court

HAGEN V. CITY OF EUGENE 9

also determined that issues of fact remained “regarding the

scope and content of plaintiff’s job responsibilities,” and thus

it was “unable to rule as a matter of law” whether Hagen

spoke in his capacity as a private citizen or a public

employee.

The parties stipulated to have the court decide whether

Hagen’s safety complaints involved a matter of public

concern. The day after a hearing on that issue, but before the

court issued a ruling, Appellants moved “for judgment in

their favor based on qualified immunity on [the] ‘public

concern’ issue,” pursuant to Rule 52(c) of the Federal Rules

of Civil Procedure. The district court denied Appellants’

motion, holding that Hagen’s complaints involved a matter of

public concern as a matter of law.

The district court held a jury trial the following week. At

the close of Hagen’s case-in-chief, Appellants moved orally

for a JMOL under Rule 50(a) of the Federal Rules of Civil

Procedure. The court denied the motion.

Following the close of Appellants’ case and after the

court instructed the jury, Appellants renewed their Rule 50(a)

motion “for the same reasons that were raised at the close of

plaintiff’s case.” The court again denied the motion without

comment.

In a unanimous general verdict rendered on March 14,

2012, the jury found that Hagen had proved by a

preponderance of the evidence that each Appellant “had

deprived [him] of his First Amendment Right of Free Speech

under the United States Constitution.” The jury awarded

Hagen $50,000 in compensatory damages and $200,000 in

punitive damages (Kerns, $50,000; Bills, $50,000; Eichhorn,

10 HAGEN V. CITY OF EUGENE

$100,000). The district court entered judgment in Hagen’s

favor on March 23, 2012.

On April 19, 2012, Appellants moved for JMOL under

Rule 50(b).2 The district court denied the motion “based on

[its] prior rulings on the record, the evidence received at trial,

and the jury verdict.”

Appellants timely appealed to this Court from the

judgment against them and the district court’s order denying

their Rule 50(b) motion.

II

“We review de novo a district court’s denial of a renewed

motion for judgment as a matter of law.” Barnard v.

Theobold, 721 F.3d 1069, 1075 (9th Cir. 2013). “Judgment

as a matter of law is appropriate when the evidence,

construed in the light 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 1157, 1161 (9th Cir. 1997). Conversely, if there is

“such relevant evidence as reasonable minds might accept as

adequate to support [the jury’s] conclusion,” we must affirm

the denial of a JMOL motion. Gilbrook v. City of

Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (quoting

2

In conjunction with their JMOL motion following the jury verdict,

Appellants simultaneously moved for a new trial under Rule 59(a)(1)(A)

of the Federal Rules of Civil Procedure. They argued that the district

court’s exclusion of evidence of a grievance arbitration proceeding

prejudiced aspects of their defense. Appellants do not pursue this

argument on appeal.

HAGEN V. CITY OF EUGENE 11

Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365,

1371 (9th Cir.1987)).

III

Appellants contend that the district court erred in denying

their JMOL motion because Hagen failed to establish that he

spoke as a private citizen, a necessary element to his First

Amendment retaliation claim under Garcetti v. Ceballos,

547 U.S. 410 (2006). Specifically, Appellants argue that the

undisputed evidence at trial supported the conclusion that

Hagen “spoke as part of his public duties as a police officer,

not as a private citizen, because he was required by [the] City

and police department policy to report safety concerns.”

Hagen responds that he was not speaking as a public

employee because he “did not ‘report’ anything” pursuant to

a “job duty” but rather “discussed his concerns” about

accidents taking place at work.

A

The First Amendment shields public employees from

employment retaliation for their protected speech activities.

Garcetti, 547 U.S. at 417. We have explained, however, that

our “recognition for ‘the State’s interests as an employer in

regulating the speech of its employees’” requires us to

“‘arrive at a balance between the interests of the [public

employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer,

in promoting the efficiency of the public services it performs

through its employees.’” Karl v. City of Mountlake Terrace,

678 F.3d 1062, 1068 (9th Cir. 2012) (quoting Connick v.

Myers, 461 U.S. 138, 140 (1983); Pickering v. Bd. of Educ.,

12 HAGEN V. CITY OF EUGENE

391 U.S. 563, 568 (1968)). We strike this balance by asking

five questions:

(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.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). “[A]ll

the factors are necessary, in the sense that failure to meet any

one of them is fatal to the plaintiff’s case.” Dahlia v.

Rodriguez, No. 10-55978, 2013 WL 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 Hagen’s speech was protected

because he spoke as a private citizen. This is a mixed

question of law and fact. Posey v. Lake Pend Oreille Sch.

Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). “The

scope and content of a plaintiff’s job responsibilities is a

question of fact over which we lack jurisdiction, while ‘the

ultimate constitutional significance of the undisputed facts’

is a question of law.” Karl, 678 F.3d at 1071 (alteration

omitted) (quoting Eng, 552 F.3d at 1071).

“A public employee’s speech is not protected by the First

Amendment when it is made pursuant to the employee’s

HAGEN V. CITY OF EUGENE 13

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

426). Conversely, a public employee’s speech on a matter of

public concern is protected “if the speaker ‘had no official

duty’ to make the questioned statements, . . . or if the speech

was not the product of ‘performing the tasks the employee

was paid to perform.’” Posey, 546 F.3d at 1127 n.2

(alteration and some internal quotation marks omitted)

(quoting Marable v. Nitchman, 511 F.3d 924, 933 (9th Cir.

2007); Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir. 2006)).

Statements do not lose First Amendment protection simply

because they concern “the subject matter of [the plaintiff’s]

employment.” Freitag, 468 F.3d at 545. But “speech which

‘owes its existence to an employee’s professional

responsibilities’ is not protected by the First Amendment.”

Huppert v. City of Pittsburg, 574 F.3d 696, 704 (9th Cir.

2009) (quoting Garcetti, 547 U.S. at 421), overruled on other

grounds by Dahlia, 2013 WL 4437594.

Generally, “in a highly hierarchical employment setting

such as law enforcement,” Dahlia, 2013 WL 4437594, at *10,

“‘when a public employee raises complaints or concerns up

the chain of command at his workplace about his job duties,

that speech is undertaken in the course of performing his job,’

although ‘it is not dispositive that a public employee’s

statements are made internally,’” id. (citation omitted)

(quoting Davis v. McKinney, 518 F.3d 304, 313 & n.3 (5th

Cir. 2008)). If, on the other hand, “a public employee takes

his job concerns to persons outside the work place in addition

to raising them up the chain of command at his workplace,

then those external communications are ordinarily not made

as an employee, but as a citizen.” Id. (quoting McKinney,

518 F.3d at 313); see also Freitag, 468 F.3d at 545–46

(holding that where a prison official made “internal reports of

inmate sexual misconduct . . . the prison’s failure to respond,”

14 HAGEN V. CITY OF EUGENE

she spoke as a “public employee,” and that speech thus was

thus unprotected, but when she made external reports about

the same circumstances to a state senator and the state

inspector general, she “acted as a citizen,” and that speech

was protected under the First Amendment)).

In Garcetti, the Supreme Court held that it was “not

dispositive” that an employee “expressed his views inside his

office, rather than publicly,” nor was it dispositive that an

employee wrote a memorandum that “concerned the subject

matter of [his] employment.” 547 U.S. at 421. While it

declined to “articulate a comprehensive framework for

defining the scope of an employee’s duties in cases where

there is room for serious debate,” the Court emphasized that

“[t]he proper inquiry is a practical one” untied to formal job

descriptions. Id. at 424–25; see also Dahlia, 2013 WL

4437594, at *10 (acknowledging “the fact-intensive nature of

the inquiry” and the fact that “no single formulation of factors

can encompass the full set of inquiries relevant to

determining the scope of a plaintiff’s job duties”).

B

Hagen, like the public employee in Garcetti, expressed

his concerns about officer safety to coworkers and others

within the chain of command at EPD. His speech concerned

his employment and safety issues EPD officers were required

to report as part of the “tasks [they were] paid to perform.”

Ellins, 710 F.3d at 1058. As a K-9 officer, Hagen worked in

a “highly hierarchical employment setting.” Dahlia, 2013

WL 4437594, at *10. The evidence establishes that his

concerns were directed to his coworkers and his superior

officers.

HAGEN V. CITY OF EUGENE 15

Where an “employee prepares a routine report, pursuant

to normal departmental procedure about a particular incident

or occurrence, the employee’s preparation of that report is

typically within his job duties.” Dahlia, 2013 WL 4437594,

at *10 (citation omitted). Conversely, complaints regarding

“broad concerns about corruption or systemic abuse” are

unlikely to “be classified as being within the job duties of an

average public employee.” Id. All of Hagen’s complaints

involved safety concerns stemming from “particular

incident[s] or occurrence[s],” Dahlia, 2013 WL 4437594, at

*10, and the City of Eugene’s Human Resource and Risk

Services Administrative Policies and Procedures Manual

required him to report safety concerns. The Manual provides

that “[e]mployees are . . . responsible for reporting accidents,

faulty equipment, unsafe practices of fellow employees,

and/or unsafe conditions of work areas to their supervisors.”

In addition, a EPD General Order provides that employees

should “[r]eport any safety hazard or malfunctioning

equipment to [their] supervisor immediately so that corrective

action can be taken.”

Notwithstanding his duty under this policy, Hagen argues

that he did not actually “report” anything “as that term is

used, understood and applied” in Garcetti because he was

“repeatedly bringing up well-known information.” He

maintains that Garcetti and other cases involving reports to

supervisors “have no relevance to a situation where, instead

of reporting information, plaintiff was repeatedly discussing

a known, dangerous situation until his supervisors eventually

became exasperated.” This Court rejected a similar

contention in Dahlia: “That [plaintiff’s supervisor] appears

to have ignored [plaintiff’s] initial report does not convert

into protected speech [plaintiff’s] later reports to the same

supervisor.” Dahlia, 2013 WL 4437594, at *12. Thus, the

16 HAGEN V. CITY OF EUGENE

repetitive nature of Hagen’s complaints did not convert them

into private speech.

Hagen contends that Marable v. Nichman, 511 F.3d 924

(9th Cir. 2007), places his safety complaints outside of his

official duties. We disagree. In Marable, a ship engineer

complained of corruption by the manager of the Washington

State Ferries. Id. at 927. This Court held that Garcetti was

inapplicable because it was not part of a ship engineer’s

assigned duties to complain about corrupt conduct of his

supervisors. Id. at 933. “Functionally,” we explained, “it

cannot be disputed that [Marable’s] job was to do the tasks of

a Chief Engineer on his ferry, and such tasks did not include

pointing to corrupt actions of higher level officials.” Id. at

932

Here, in contrast, Hagen’s concerns about SWAT safety

were inextricably intertwined with his duties as a K-9 officer.

Hagen’s concerns—that the EPD SWAT team with which he

often deployed was poorly trained and therefore risked officer

and public safety—contain all the hallmarks of traditionally

internal work-place complaints one would typically expect an

officer to communicate to his superiors, even absent a formal

written duty to do so.

That Hagen raised his concerns about his and his fellow

officers’ job safety internally and within the chain of

command cements our conclusion that his comments were

made as a public employee, and not as a private citizen.3

3

Hagen has not argued that he acted as a private person in reporting his

safety concerns to police union officials, nor has he presented any

evidence regarding the police union’s agreement with EPD concerning

employee grievances.

HAGEN V. CITY OF EUGENE 17

Compare Dahlia, 2013 WL 4437594, at *10; id. at *12

(“Even construing the facts and drawing all inferences in

Dahlia’s favor, the only reasonable conclusion is that Dahlia

acted pursuant to his job duties when he . . . reported up the

chain of command to the supervising lieutenant overseeing

the investigation about abuse related to the same

investigation.”), with Andrew v. Clark, 651 F.3d 261, 266–67

(4th Cir. 2009) (finding that whether an officer’s

memorandum regarding the shooting death of a suspect “was

written as part of [the officer’s] official duties was a disputed

issue of material fact that cannot 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 instructed the jury that for Hagen to

prove that Appellants deprived him of his First Amendment

right, he had to prove by a preponderance of the evidence that

he “spoke as a citizen and not as part of his official duties.”

Implicit in the jury’s general verdict in his favor, therefore, is

its finding that Hagen did not air his safety concerns as a part

of his official duties. Construing the evidence in the light

most favorable to Hagen, however, “permits only one

reasonable conclusion,” Omega, 127 F.3d at 1161, which is

that as a factual and a practical matter, Hagen made his

repeated internal complaints about departmental safety and

officer competency only in his official capacity as an EPD

officer. Hagen therefore has not established a constitutional

violation.

Conclusion

We conclude that, construing the evidence in the light

most favorable to Hagen, insufficient evidence supported the

jury’s finding that Hagen spoke as a private citizen. Hagen

18 HAGEN V. CITY OF EUGENE

had an official duty to report his safety concerns and thus

spoke as a public employee when he repeatedly complained

within the chain of command about work-related safety

issues. Because this conclusion is contrary to the jury’s

verdict, each Appellant was entitled to JMOL.

We therefore REVERSE and REMAND with

instructions that the district court vacate its judgment in

Hagen’s favor and enter judgment in favor of Appellants on

each of Hagen’s claims.