Doug Greisen v. Jon Hanken

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUG GREISEN, No. 17-35472

Plaintiff-Appellee,

D.C. No.

v. 3:14-cv-01399-SI

JON HANKEN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted October 11, 2018

Portland, Oregon

Filed May 31, 2019

Before: Raymond C. Fisher, Richard R. Clifton

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Fisher

2 GREISEN V. HANKEN

SUMMARY *

Civil Rights / Employment Retaliation

The panel affirmed the district court’s judgment

following a jury verdict in favor of Doug Greisen, a former

chief of police for the City of Scappoose, Oregon, in his

action brought pursuant to 42 U.S.C. § 1983 alleging that Jon

Hanken, the former city manager, violated the First

Amendment by subjecting Greisen to adverse employment

actions in retaliation for his protected speech.

After Greisen discussed his concerns with city council

members and government officials about the city’s

accounting and budgeting practices under Hanken, Hanken

initiated investigations of Greisen, suspended him, placed

him on an indefinite leave and prevented him from speaking

publicly, even as Hanken was releasing information about

the investigations to the media. After a city review

committee recommended retraction of Greisen’s suspension,

Hanken resigned.

The panel held that: (1) Greisen provided sufficient

detail about his speech to establish that it substantially

involved a matter of public concern; (2) he spoke as a private

citizen rather than a public employee; (3) the district court

properly concluded that Greisen’s retaliation claim could be

based in part on Hanken’s own speech acts, in the form of

defamatory communications to the media; (4) Hanken

waived his argument that his actions were supported by an

*

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

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

GREISEN V. HANKEN 3

adequate justification; and (5) sufficient evidence supported

the conclusion that Hanken’s retaliatory actions proximately

caused Greisen’s termination, and any error in instructing

the jury on proximate cause was harmless. The panel further

held that Hanken was not entitled to qualified immunity.

COUNSEL

Thomas M. Christ (argued) and Julie A. Smith, Cosgrave

Vergeer Kester LLP, Portland, Oregon, for Defendant-

Appellant.

William Allen Drew (argued) and John D. Ostrander, Elliott

Ostrander & Preston P.C., Portland, Oregon, for Plaintiff-

Appellee.

OPINION

FISHER, Circuit Judge:

Doug Greisen was the chief of police for the City of

Scappoose, Oregon. In 2012, after more than 10 years in that

position, he became suspicious about the city’s accounting

and budgeting practices. He worried Jon Hanken, the city

manager, was hiding something; he believed Hanken was

suspiciously defensive about the budget, improperly delayed

paying invoices at the end of the fiscal year and had

weakened the city’s external auditing process. Greisen

discussed his concerns with various city council members

and others in city government over the following year. In

the summer and fall of 2013, Hanken initiated three

investigations of Greisen, suspended him, placed him on an

indefinite leave and prevented him from speaking publicly,

4 GREISEN V. HANKEN

even as Hanken was releasing information about the

investigations to the media. After a city review committee

recommended retraction of Greisen’s suspension, Hanken

resigned. Hanken’s replacement subsequently fired Greisen,

who has since been unable to find work.

Greisen sued under 42 U.S.C. § 1983, alleging Hanken

violated the First Amendment by subjecting him to adverse

employment actions in retaliation for his protected speech.

A jury found in Greisen’s favor, and Hanken appeals.

We affirm. We hold: (1) Greisen provided sufficient

detail about his speech to establish that it substantially

involved a matter of public concern; (2) Greisen spoke as a

private citizen rather than a public employee; (3) the district

court properly concluded that Greisen’s retaliation claim

could be based in part on Hanken’s own speech acts, in the

form of defamatory communications to the media;

(4) Hanken waived his argument that his actions were

supported by an adequate justification; and (5) sufficient

evidence supports the conclusion that Hanken’s retaliatory

actions proximately caused Greisen’s termination, and any

error in instructing the jury on proximate cause was

harmless. We further hold Hanken is not entitled to qualified

immunity.

I.

Jon Hanken, the former city manager of Scappoose, was

responsible for overseeing the city’s budget and for annually

submitting a budget to the city council for review. 1

According to City Councilor Judi Ingham, Hanken generally

1

We state the facts in the light most favorable to Greisen. See

Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008).

GREISEN V. HANKEN 5

submitted his budget to the council soon before the

beginning of the budget process, allowing little time for

review, and he was defensive about issues relating to the

budget. In mid-2012, the city had a particularly contentious

budget approval process during which some city councilors

advocated unsuccessfully for a budget that would add a

police officer to the force. Although Hanken had told Chief

of Police Doug Greisen to support the budget at the hearing,

Greisen voiced neither support nor dissent. The next day,

Hanken told Greisen: “I’m mad at you. You stay on your

side of City Hall. I don’t want to see you over here.”

Greisen understood this as an admonition to focus solely on

the police department, and to leave the overall city budget to

Hanken.

Greisen then learned the city delayed paying police

department invoices, sometimes for as long as four months,

before the end of the fiscal year on July 1. He became

suspicious Hanken was hiding something, and he began

asking “a lot of” other people, including the city finance

administrator, city councilors and other city department

heads, about the city’s budgeting practices during the

remainder of 2012 and early 2013. He learned the city was

withholding payment on invoices from other departments as

well. He also learned the city had transitioned from a four-

person, on-site auditing team to a one-person, off-site

auditing firm, and he was concerned about the differences

between the firms: by contrast to the first auditing team, he

found that the new auditor was less diligent, was unable to

state an opinion on the city’s finances and followed different

practices that he worried were inconsistent with generally

accepted accounting principles. He discussed this issue with

the city finance administrator and city councilors. He also

took a college course on government budgeting and financial

management.

6 GREISEN V. HANKEN

Around August 2012, Greisen tried to meet with Hanken

to discuss the budget. Hanken was not receptive; he told

Greisen that “Ms. Ingham will be the one that will ruin your

career here in the City of Scappoose.” He also said Greisen

“didn’t know what [he was] talking about” when it came to

budgeting and financial management.

In early 2013, Greisen was involved in a police pursuit

during which he authorized an officer to perform a “PIT

maneuver,” a method of stopping a fleeing car by bumping

it with a patrol vehicle, sending the fleeing car into a spin.

Although the maneuver was successful, another officer,

Sergeant Doug Carpenter, wrote a memo to his lieutenant

alleging it was executed at a high speed without proper

procedure. Carpenter’s criticism focused on the officer who

actually performed the PIT maneuver, but it implicated

Greisen’s actions as well. The lieutenant forwarded the

memo to Hanken, along with his own memo clarifying

Greisen’s role in the maneuver and recommending an

investigation.

Hanken arranged for an outside public agency to

investigate Greisen. The investigation’s purpose, according

to the investigator, was to determine “whether or not there

were policy violations,” not to weigh whether a policy

violation was justified. After interviewing various staff, the

agency submitted a 25-page report finding Greisen

committed 10 policy violations associated with the PIT

maneuver. 2

2

The violations included the findings that Greisen had: (1) “failed

to assume proper and informed control of a police pursuit”; (2) “failed to

properly document the pursuit”; (3) “entered into a motor vehicle pursuit

with insufficient knowledge and justification”; (4) “engaged in a pursuit,

GREISEN V. HANKEN 7

Upon receiving the report, Hanken suspended Greisen

for two weeks without pay. According to the report’s author,

the subject of such an investigation would “typically” have

the opportunity to be heard after the report was complete, but

Hanken did not afford Greisen this opportunity. In his

suspension letter, Hanken wrote: “As I draft this letter, I

cannot help but wonder if you would be able to maintain

your position if this report was known by or reported to the

news media.”

Greisen appealed his discipline to the city’s Personnel

Review Committee (PRC), which absolved him of

wrongdoing. The PRC characterized the outside agency’s

report as “an erroneous mischaracterization of the events . . .

that also purposely omitted pertinent and material facts, to

arrive at a conclusion that the PRC finds untenable, out of

context and an egregious lack of professionalism.” In the

PRC’s view, the outside agency’s report was “not an

objective review, but a prosecutorial document that was

colored to arrive at a predetermined result.” The PRC

further found that “the degree of discipline issued to Police

Chief Doug Greisen, for minor discrepancies of best

practices, is entirely out of proportion based on the totality

of the circumstances,” and it recommended that “the City

operating an unauthorized and improperly equipped police vehicle”;

(5) “disregarded policy related to the established procedure for a

secondary pursuing vehicle”; (6) “violated safe driving principles related

to pursuit driving”; (7) “failed to properly evaluate the need for a

continuation of a pursuit”; (8) “demonstrated a lack of knowledge related

to applicable standards and police practice related to pursuit intervention

tactics and authorized a prohibited tactic by an untrained subordinate

officer”; (9) “failed to participate in annual training related to pursuit

driving”; and (10) “failed to read and maintain a current working

knowledge of his departmental policy manual.”

8 GREISEN V. HANKEN

Manager retract, and the Scappoose City Council oversee the

retraction [of], all discipline issued to Chief Greisen.”

While the PIT maneuver investigation was ongoing,

Hanken received another complaint about Greisen from

Sergeant Carpenter, this time alleging Greisen had created a

hostile work environment. In response, Hanken initiated

another investigation by the same outside agency and placed

Greisen on indefinite paid administrative leave pending the

results of this investigation. Ultimately, the investigation

concluded the allegations were not supported by substantial

evidence.

In September 2013, while Greisen remained on leave,

Hanken informed him the city would conduct a third

investigation into his activities. This investigation charged

Greisen with unauthorized financial practices relating to

$2,500 in donations to the police department that Greisen

kept in cash in his office. The investigation, conducted by

the same outside agency, found five violations of city

policy. 3

Hanken sent letters to Greisen precluding him from

speaking about the three investigations with anyone other

than his wife and attorney. Hanken, however, released

3

The investigation found Greisen violated the city’s policy by:

(1) “having unaccounted for cash in his desk drawer”; (2) “adhering to

his own set of rules related to expense reimbursement and submitting

reimbursement requests for meal expenses within 25 miles of

Scappoose”; (3) “fail[ing] to make bank deposits in a timely manner”;

(4) “open[ing] and manag[ing] a bank account to be used as a slush fund

for Police Department business and to avoid making purchases through

the City’s budget process”; and (5) “fail[ing] to donate . . . gift cards

(recovered crime evidence) to a charitable organization as requested by

the crime victim.”

GREISEN V. HANKEN 9

information about all three investigations to the media. In

September 2013, soon after Greisen appealed his two-week

suspension, Hanken released information about the first two

investigations. He admitted at trial that his release of

information about the ongoing second investigation “wasn’t

appropriate.”

Similarly, shortly before he resigned as city manager,

Hanken spoke to the media about the third investigation,

stating “that a bank bag was discovered in the chief’s desk

and that its contents raised questions about whether the chief

was maintaining an unauthorized account.” Hanken also

said that, “[i]f any other officer had been caught using an

unauthorized account, they would have been fired on the

spot.” He further provided the media with a photo of the

cash that he admitted looked like a photo associated with a

drug bust or money seizure. Hanken conceded at trial,

however, that others in the city knew about the money, that

it was associated with authorized accounts and that he spoke

to the press to ensure that the second and third investigations

he had initiated were not discontinued.

On November 8, 2013, less than a month after the PRC

issued its findings that Greisen’s discipline for the PIT

maneuver was unfounded, Hanken resigned, citing these

findings as the reason. He was replaced by Donald Otterman

in an interim capacity, and in early 2014 Otterman utilized a

“no-cause” clause in Greisen’s contract to terminate Greisen,

who had not returned from administrative leave. Otterman

made his decision after reviewing the investigator’s reports

and speaking with various people, whose views were highly

polarized.

Greisen attempted to find other employment, but was

unable to do so. A manager from another city who

considered hiring Greisen testified that although he knew

10 GREISEN V. HANKEN

Greisen personally and respected him, he could not hire

Greisen as police chief given the negative media attention he

had endured.

In 2014, Greisen filed this action. As relevant here, he

brought a First Amendment retaliation claim against Hanken

under 42 U.S.C. § 1983. Before trial, Hanken moved for

summary judgment on qualified immunity, and the district

court denied the motion. The claim was tried to a jury, which

found in favor of Greisen, awarding him $1,117,488 in

economic damages and $3,000,000 in non-economic

damages. Hanken filed post-trial motions seeking a new trial

on the ground that the district court’s jury instruction on

causation was erroneous and seeking judgment as a matter

of law on other grounds. The district court denied the

motions, and Hanken timely appealed.

II.

We review de novo a district court’s denial of a motion

for judgment as a matter of law, but “[a] jury’s verdict must

be upheld if it is supported by substantial evidence, . . . even

if it is also possible to draw a contrary conclusion.” Pavao

v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). We “must view

all evidence in the light most favorable to the nonmoving

party, draw all reasonable inferences in the favor of the non-

mover, and disregard all evidence favorable to the moving

party that the jury is not required to believe.” Harper v. City

of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008).

“‘[W]hen reviewing a motion for judgment as a matter of

law, we apply the law as it should be, rather than the law as

it was read to the jury,’ even if the party did not object to the

jury instructions.” Fisher v. City of San Jose, 558 F.3d 1069,

1074 (9th Cir. 2009) (en banc) (alteration in original)

(quoting Pincay v. Andrews, 238 F.3d 1106, 1109 n.4 (9th

Cir. 2001)).

GREISEN V. HANKEN 11

We review de novo a district court’s decision on

qualified immunity. See Elder v. Holloway, 510 U.S. 510,

516 (1994). Once the jury has reached a verdict, however,

“we must defer to the facts as they were reasonably found by

the jury – we do not draw our own inferences from them.”

A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir.

2013).

“We review de novo whether [a jury] instruction[]

misstated the law.” Fireman’s Fund Ins. Cos. v. Alaskan

Pride P’ship, 106 F.3d 1465, 1469 (9th Cir. 1997). An error

in instructing the jury in a civil case does not require reversal

if it is harmless. See Altera Corp. v. Clear Logic, Inc.,

424 F.3d 1079, 1087 (9th Cir. 2005).

III.

A First Amendment retaliation claim turns on a

sequential five-step series of 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). The

plaintiff bears the burden on the first three questions. See id.

at 1070–71. If the plaintiff meets this burden, the burden

12 GREISEN V. HANKEN

shifts to the defendant on the last two questions. See id.

at 1071–72. When a constitutional violation has been

established, a plaintiff may recover damages that are

proximately caused thereby. See County of Los Angeles v.

Mendez, 137 S. Ct. 1539, 1548–49 (2017). The plaintiff

must also establish that the defendant’s retaliatory conduct

was a but-for cause of the defendant’s damages. See Mendez

v. County of Los Angeles, 897 F.3d 1067, 1074 (9th Cir.

2018).

Here, Greisen contends Hanken retaliated against him

for discussing the city’s budgeting and accounting practices

with other city officials. He contends that this speech

involved a matter of public concern – the mismanagement of

city finances. He further contends that his discussions with

city officials regarding suspected mismanagement were not

part of his job duties, and hence that he engaged in this

speech as a private citizen rather than as a public employee.

He alleges a number of adverse employment actions – e.g.,

commencement of the PIT maneuver, hostile work

environment and financial mismanagement investigations;

the two-week suspension; the indefinite administrative

leave; the “gag order” prohibiting him from speaking to the

press; and the false and inflammatory information Hanken

provided to the press about him – and he contends that his

protected speech was a substantial or motivating factor in

Hanken’s decisions to take each of these actions. In

addition, although he does not contend that Otterman’s

decision to terminate him was itself retaliatory, he seeks

damages arising from the termination on the ground that it

was proximately caused by Hanken’s retaliatory actions.

Hanken challenges the verdict in favor of Greisen on the

first, second, third and fourth of the questions in the

sequential analysis. In addition, he challenges Greisen’s

GREISEN V. HANKEN 13

recovery of damages arising from the termination. We

address these contentions in turn.

A number of Hanken’s arguments also implicate

qualified immunity. In resolving whether a government

official is entitled to qualified immunity, a court “must

decide whether the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right,” and, if so,

“whether the right at issue was ‘clearly established’ at the

time of defendant’s alleged misconduct.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (citations omitted)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). To

determine that a right was clearly established, the court

“must identify precedent as of [the date of the alleged

violation] that put [the defendant] on clear notice” that his or

her actions were unconstitutional. S.B. v. County of San

Diego, 864 F.3d 1010, 1015 (9th Cir. 2017). “We do not

require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Courts must not define clearly established law at a high level

of generality. See Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam).

A. Matter of Public Concern

With respect to the first step in the analysis, “the plaintiff

bears the burden of showing that the speech addressed an

issue of public concern.” Eng, 552 F.3d at 1070.

Whether speech is on a matter of public concern is a

question of law, determined by the court, and reviewed by

us de novo. See Berry v. Dep’t of Soc. Servs., 447 F.3d 642,

648 (9th Cir. 2006). The speech need not be entirely about

matters of public concern, but it must “substantially involve”

such matters. Johnson v. Multnomah County, 48 F.3d 420,

14 GREISEN V. HANKEN

425 (9th Cir. 1995). “[S]peech warrants protection when it

‘seek[s] to bring to light actual or potential wrongdoing or

breach of public trust.’” Barone v. City of Springfield,

902 F.3d 1091, 1098 (9th Cir. 2018) (second alteration in

original) (quoting Connick v. Myers, 461 U.S. 138, 148

(1983)). The “misuse of public funds . . . [is a] matter[] of

inherent public concern.” Johnson, 48 F.3d at 425.

“Whether an employee’s speech addresses a matter of

public concern must be determined by the content, form, and

context of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147–48. “[T]he content of the

speech is generally the most important.” Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1069 (9th Cir. 2012). In

reviewing form and context, “we focus on the point of the

speech, looking to such factors as the employee’s motivation

and the audience chosen for the speech.” Ulrich v. City &

County of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002)

(citation and internal quotation marks omitted). This

analysis seeks to determine whether the employee aimed “‘to

bring wrongdoing to light,’ not ‘merely to further some

purely private interest.’” Id. (quoting Havekost v. U.S. Dep’t

of Navy, 925 F.2d 316, 318 (9th Cir. 1991)). “[S]peech that

deals with ‘individual personnel disputes and grievances’

and that would be of ‘no relevance to the public’s evaluation

of the performance of governmental agencies’ is generally

not of ‘public concern.’” Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003) (quoting McKinley v. City

of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)).

Hanken does not dispute that the potential

mismanagement of city funds is a matter of public concern.

He argues, however, that he was entitled to judgment as a

matter of law on this question on three independent grounds:

(1) the district court had insufficient information before it to

GREISEN V. HANKEN 15

conclude the speech involved matters of public concern;

(2) the speech did not involve matters of public concern,

because Greisen was motivated by a personal grievance

against him rather than exposing government wrongdoing;

and (3) qualified immunity.

1. The district court had sufficient information to

determine Greisen’s speech substantially involved

matters of public concern

Hanken argues the district court lacked sufficient

information about the content, form and context of Greisen’s

speech to conclude it substantially involved matters of public

concern. Although Greisen testified about his discussions

with other city officials, Hanken contends “he did not

describe the substantive content of those conversations in

any detail.” He contends the descriptions Greisen provided

were insufficient “to allow a court to make a determination

that [the] speech related to a matter of public concern.”

Kurtz v. Vickrey, 855 F.2d 723, 730 n.4 (11th Cir. 1988); see

also Nixon v. City & County of Denver, 784 F.3d 1364, 1369

(10th Cir. 2015); Moss v. City of Pembroke Pines, 782 F.3d

613, 620–21 (11th Cir. 2015). We disagree.

We agree, of course, that a court must have sufficient

information about the content, form and context of speech to

determine whether it was on a matter of public concern. A

plaintiff, however, need not provide transcriptions of the

conversations. Here, Greisen provided enough. With regard

to the content of the speech, Greisen testified about the

discussions he had with the city finance administrator and

other department heads regarding Hanken’s practice of

delaying payment of invoices. Greisen used these

discussions, among other things, to learn about how other

departments handled invoice payments. Greisen also

testified that he discussed his concerns about the new auditor

16 GREISEN V. HANKEN

with some city councilors and with the city finance

administrator. His concerns included the fact that the auditor

was not on-site, the auditor’s inability to offer an opinion

about the city’s finances and the quality of the auditor’s

written reports. As to form and context, Greisen provided a

general timeline, identified the roles of his interlocutors and

described his motivations for the discussions. The district

court, therefore, had enough information before it.

2. The district court properly concluded the speech

substantially involved matters of public concern

Even assuming the information was sufficient, Hanken

argues the district court erred by concluding that Greisen’s

speech substantially involved matters of public concern. He

argues that, even if “the content of the speech does at first

glance look like it raises a public concern because it involves

the city’s finances,” “the form and context suggest that the

speech is really about a power struggle between plaintiff and

defendant – more specifically, about a power play by

plaintiff.” Hanken maintains that Greisen’s speech “was

more like the airing of an internal grievance, the grinding of

a private ax, not [an] effort to provoke a public debate on an

issue of public concern.”

The evidence does not support this contention. It shows

that Greisen was interested in uncovering mismanagement

involving city funds. He spoke to other city officials to learn

about the financial management process. He took a college

course on budgeting and finance. His interest in the welfare

of the city is clear from the record. His family had lived in

Scappoose for 30 years, and he “was very involved in the

community,” where he had “volunteered endlessly.” He also

testified he was motivated by “the cop in [him]” to

investigate whether something was being hidden.

GREISEN V. HANKEN 17

That Greisen spoke privately to other city officials,

rather than publicly, does not show that he was motivated by

a private grudge rather than a desire to detect and expose

potential mismanagement. The choice “to convey . . . views

privately rather than publicly is not determinative of whether

. . . expression is entitled to protection.” Thomas v. City of

Beaverton, 379 F.3d 802, 810 (9th Cir. 2004). Private

speech may serve to “bring wrongdoing to light.” Ulrich,

308 F.3d at 979 (quoting Havekost, 925 F.2d at 318).

In sum, the district court properly concluded, based on

the “content, form, and context” of Greisen’s speech, that his

conversations substantially involved a matter of public

concern. Connick, 461 U.S. at 147.

3. Hanken is not entitled to qualified immunity on the

public concern issue

By 1995, it was clearly established that the misuse of

public funds is a matter of public concern. See Johnson,

48 F.3d at 425. Given the nature of Greisen’s concerns and

his longtime connection to the community, Hanken could

not reasonably have concluded that Greisen’s speech

“deal[t] with ‘individual personnel disputes and grievances’

. . . that would be of ‘no relevance to the public’s evaluation

of the performance of governmental agencies.’” Coszalter,

320 F.3d at 973 (quoting McKinley, 705 F.2d at 1114). The

district court therefore properly denied qualified immunity.

B. Private Citizen

In a First Amendment retaliation case, the plaintiff also

“bears the burden of showing the speech was spoken in the

capacity of a private citizen and not a public employee.”

Eng, 552 F.3d at 1071.

18 GREISEN V. HANKEN

In Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), the

Supreme Court held 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.” “[S]tatements are made in the

speaker’s capacity as citizen 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 v. Lake Pend Oreille Sch. Dist. No.

84, 546 F.3d 1121, 1127 n.2 (9th Cir. 2008) (alterations,

citation and internal quotation marks omitted). We look to

three non-exhaustive factors to make this assessment:

(1) whether “the employee confined his communications to

his chain of command”; (2) whether “the subject matter of

the communication” fell within the plaintiff’s regular job

duties; and (3) whether the “employee sp[oke] in direct

contravention to his supervisor’s order[].” Dahlia v.

Rodriguez, 735 F.3d 1060, 1074–75 (9th Cir. 2013) (en

banc). The scope and content of a plaintiff’s official duties

are questions of fact, but a court must “independently . . .

evaluate the ultimate constitutional significance of the facts

as found.” Posey, 546 F.3d at 1129.

1. The district court properly determined Greisen

spoke as a private citizen

Here, viewing the evidence in the light most favorable to

Greisen, every Dahlia factor favors the jury’s conclusion

that Greisen spoke as a private citizen. With regard to the

first factor (chain of command), the record shows Greisen

had conversations with the city finance administrator, city

councilors and at least three other department heads, none of

whom were within his chain of command.

GREISEN V. HANKEN 19

With regard to the second factor (subject matter), Dahlia

noted:

[I]f a public employee raises within the

department broad concerns about corruption

or systemic abuse, it is unlikely that such

complaints can reasonably be classified as

being within the job duties of an average

public employee, except when the

employee’s regular job duties involve

investigating such conduct, e.g., when the

employee works for Internal Affairs or

another such watchdog unit.

735 F.3d at 1075. Here, Greisen’s concerns related to

ferreting out “corruption or systemic abuse” in city finances

and management, and these functions were not part of his

official duties as chief of police. His concerns about the

budget related to secrecy and potential wrongdoing: a lack

of oversight on the part of the new auditor, Hanken’s

unwillingness to let anyone into the budgeting process and

the failure to pay vendors on time. No evidence suggests

these matters fell within Greisen’s regular job duties.

With regard to the last factor (contravention of

supervisors), there is strong evidence that Hanken, Greisen’s

supervisor, did not want him discussing or looking into the

overall city budget or Hanken’s accounting practices.

Hanken instructed Greisen to stay on his “side” of city hall,

and discouraged him from speaking to Councilor Ingham

about the overall budget.

Hanken does not argue that the Dahlia factors favor

reversal, but attempts to distinguish Dahlia, which involved

a lower-ranking employee, on the basis that Greisen, as a

police chief, had broader duties. See id. at 1063. He argues

20 GREISEN V. HANKEN

this case is more analogous to Johnson v. Poway Unified

School District, 658 F.3d 954 (9th Cir. 2011), and Kennedy

v. Bremerton School District, 869 F.3d 813 (9th Cir. 2017).

Poway Unified held that, “because of the position of trust

and authority they hold and the impressionable young minds

with which they interact, teachers necessarily act as teachers

. . . when at school or a school function, in the general

presence of students, in a capacity one might reasonably

view as official.” Poway Unified, 658 F.3d at 968. Kennedy

held that a school coach acted as a public employee where

his job duties “entailed both teaching and serving as a role

model and moral exemplar” and he was “acting in an official

capacity in the presence of students and spectators.”

Kennedy, 869 F.3d at 827. Hanken contends a police chief,

like a teacher, occupies a “position of trust, authority, and

responsibility,” which means that a police chief is

“necessarily acting as the police chief whenever he [is]

interacting with other high- and higher-ranking city

officials.”

We disagree. We have never extended Kennedy and

Poway Unified beyond the school context, and the cases are

distinguishable. Kennedy and Poway Unified focused on the

“impressionable and captive minds” to whom the employees

at issue espoused their views. Kennedy, 869 F.3d at 828

(quoting Poway Unified, 658 F.3d at 968). Leading a police

force of adults does not implicate the same concerns, so

Hanken’s analogies to the public school context are

unpersuasive.

Hanken also looks to Moss v. City of Pembroke Pines,

782 F.3d 613 (11th Cir. 2015). There, the assistant fire chief

– who also served as an elected member of the city’s pension

board – spoke to various employees within his department

regarding city-wide pension and wage issues that would

GREISEN V. HANKEN 21

influence the department. See id. at 616–17. In holding the

communications were within the plaintiff’s job duties, the

court noted the “[p]laintiff’s statements . . . were made in

accordance with his role as a liaison between the Fire Chief

and employees down the chain of command.” Id. at 620.

Here, by contrast, Greisen spoke outside his chain of

command and outside his defined role in the budget process.

Moss thus does not support Hanken’s position.

2. Hanken is not entitled to qualified immunity on the

private citizen issue

In Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th

Cir. 2012), we held that “a reasonable official would . . .

have known that a public employee’s speech on a matter of

public concern is protected if the speech is not made

pursuant to her official job duties, even if the testimony itself

addresses matters of employment.” Id. at 1074 (citing

Garcetti, 547 U.S. at 421; Eng, 552 F.3d at 1075–76; Posey,

546 F.3d at 1126–27). Viewing the record in the light most

favorable to Greisen, Hanken told Greisen on two occasions

that Greisen was not to concern himself with issues relating

to the management of the overall city budget. No evidence

suggests a reasonable official in Hanken’s position would

have believed analyzing the timing of invoice payments in

other departments or city-wide audit practices was within

Greisen’s job duties. Hanken is thus not entitled to qualified

immunity.

C. Adverse Employment Action and Causation

At the third step in a First Amendment retaliation

analysis, the plaintiff bears the burden of showing the state

took an adverse employment action against the plaintiff and

that the plaintiff’s speech was a substantial or motivating

factor in the adverse action. See Eng, 552 F.3d at 1071.

22 GREISEN V. HANKEN

Thus, to find in Greisen’s favor on the First Amendment

retaliation claim, the jury had to find Greisen suffered an

adverse employment action. “In a First Amendment

retaliation case, an adverse employment action is an act that

is reasonably likely to deter employees from engaging in

constitutionally protected speech.” Coszalter, 320 F.3d

at 970. The jury was instructed on several potential adverse

employment actions here, including two that involved

Hanken’s own speech: “misrepresenting . . . accounts to the

press as ‘unauthorized’ before the completion of the

investigation; and giving the press access to an inventory

photograph that . . . Greisen says was ‘inflammatory.’”

Hanken argues the district court should have granted

partial judgment as a matter of law on the ground that his

communications with the media “do not qualify as adverse

employment actions because they involved the exercise of

his own free speech rights.” Alternatively, he contends he is

entitled to qualified immunity on this basis.

“Retaliation claims involving government speech

warrant a cautious approach by courts,” because

“[r]estricting the ability of government decisionmakers to

engage in speech risks interfering with their ability to

effectively perform their duties” and “ignores the competing

First Amendment rights of the officials themselves.”

Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir. 2016). “[A]

balance must be struck between the citizen’s right to exercise

his First Amendment rights and the public official’s personal

First Amendment rights, as well as his duty to the public to

speak out about matters of public concern.” Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 687 n.13 (4th Cir. 2000).

Thus, we have on several occasions rejected retaliation

claims based exclusively on retaliatory speech, noting that

“[i]t would be the height of irony, indeed, if mere speech, in

GREISEN V. HANKEN 23

response to speech, could constitute a First Amendment

violation.” Nunez v. City of Los Angeles, 147 F.3d 867, 875

(9th Cir. 1998); see also Mulligan, 835 F.3d at 989–91; Gini

v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th

Cir. 1994).

We have, however, held that retaliatory speech can serve

as a basis for liability for a First Amendment retaliation

claim under at least two circumstances.

First, a First Amendment retaliation claim may be based

on retaliatory speech when that speech is part of a campaign

of harassment designed to burden the plaintiff’s protected

expression. In Allen v. Scribner, 812 F.2d 426 (9th Cir.

1987), for example, the plaintiff alleged “he was the subject

of continued harassment designed both to prevent him from

voicing his opinion and to punish him for his having already

done so.” Id. at 429. Specifically, he alleged the defendants

intimidated him, threatened him, harassed him and “made

defamatory statements to the media with the intent of

discrediting him.” Id. In addition, he alleged he was

transferred in retaliation for his protected speech. See id.

We rejected the defendants’ argument that “any

allegation of harassment grounded in a claim of defamation”

was not actionable. See id. at 434 n.17. We accepted the

proposition that, “to establish a claim under § 1983, more

must be involved than defamation by a state official.” Id.

But that principle was inapplicable to the facts of the case:

“Here, something more is involved. [The plaintiff] alleges

that the defamation he suffered was part of a concerted effort

to burden his first amendment expression.” Id.; see also

Coszalter, 320 F.3d at 975–77 (citing Allen and holding that

“engaging in [a] campaign[] of harassment and humiliation”

can be the basis for liability in a First Amendment retaliation

claim).

24 GREISEN V. HANKEN

Second, even when it is not part of a campaign of

harassment designed to burden the plaintiff’s protected

expression, retaliatory speech may serve as the basis for a

First Amendment retaliation claim when it “intimat[es] that

some form of punishment or adverse regulatory action would

follow.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir.

2009) (quoting Okwedy v. Molinari, 333 F.3d 339, 343 (2d

Cir. 2003)); see Goldstein v. Galvin, 719 F.3d 16, 30–31 (1st

Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 956 (7th Cir.

2011); Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 417 (4th Cir.

2006); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir.

1999); see also Mulligan, 835 F.3d at 989 n.5 (rejecting the

proposition that “speech by government officials can never

give rise to a claim of First Amendment retaliation,” id.

(emphasis omitted), and explaining that “informal measures,

such as the threat of invoking legal sanctions and other

means of coercion, persuasion, and intimidation, can violate

the First Amendment,” id. (internal quotation marks and

alteration omitted) (quoting White v. Lee, 227 F.3d 1214,

1228 (9th Cir. 2000))). 4

This case falls squarely within Allen. As in Allen,

Greisen’s retaliation claim involves something more than

defamation by a public official. He alleged the defamation

he suffered was part of a concerted effort to deter him from,

and punish him for, engaging in constitutionally protected

speech. He alleged Hanken engaged in a campaign of

harassment against him that included not only defamatory

communications with the press but also a suspension, an

4

We have left undecided the question of whether retaliatory speech

may also be actionable in some circumstances when it involves the

“disclosure of deeply private personal details.” Mulligan, 835 F.3d

at 990; see also Balt. Sun, 437 F.3d at 417; Bloch v. Ribar, 156 F.3d 673,

676 (6th Cir. 1998).

GREISEN V. HANKEN 25

indefinite leave, a one-sided gag order and the instigation of

three spurious investigations. Greisen thus permissibly

premised his retaliation claim in part on Hanken’s

communications with the media. In addition, Hanken is not

entitled to qualified immunity on the theory that he would

not reasonably have known at the time of his actions that a

First Amendment retaliation claim could be based in part on

acts of retaliatory speech. In light of Allen, decided in 1987,

he was on notice. 5

D. Adequate Justification: Pickering Balancing

“[I]f the plaintiff has passed the first three steps, the

burden shifts to the government to show that under the

balancing test established by Pickering, the state’s legitimate

administrative interests outweigh the employee’s First

Amendment rights.” Eng, 552 F.3d at 1071 (alterations and

internal quotation marks omitted). “This inquiry, known as

the Pickering balancing test, asks ‘whether the relevant

government entity had an adequate justification for treating

the employee differently from any other member of the

general public.’” Id. (quoting Garcetti, 547 U.S. at 418); see

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

Hanken seeks to raise this defense here, but “an appellate

court will not consider issues not properly raised before the

district court.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th

Cir. 1999) (emphasis added). Here, Hanken briefly asserted

this argument for the first time in his reply brief on his

5

Because this case falls squarely within Allen, we need not

determine whether Hanken’s communications with the media also

intimated that some form of punishment or adverse regulatory action

would follow. See Brodheim, 584 F.3d at 1269-71.

26 GREISEN V. HANKEN

renewed motion for judgment as a matter of law, and the

district court appropriately declined to consider it. See

Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The

district court need not consider arguments raised for the first

time in a reply brief.”). 6 The argument, therefore, is waived.

Hanken argues the question is “purely one of law,”

which could allow us to exercise discretion to review the

argument under Bolker v. Commissioner of Internal

Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985). We disagree.

Although the Pickering balancing test “is ultimately a legal

question, . . . its resolution often entails underlying factual

disputes.” Eng, 552 F.3d at 1071. Here, the record is

undeveloped. It is thus inappropriate to review Hanken’s

argument under the pure question of law exception because

we “cannot rule out the possibility that . . . the merits of the

. . . argument cannot be resolved without further hearings

before the district court.” A-1 Ambulance Serv., Inc. v.

County of Monterey, 90 F.3d 333, 339 (9th Cir. 1996).

E. Damages

As noted, Greisen did not argue that his termination was

an adverse employment action. He argued, however, that it

6

Although Hanken briefly alluded to Pickering balancing in his

opening brief in support of his Rule 50(b) motion, this cryptic allusion

was insufficient to raise the issue. See Whittaker Corp. v. Execuair

Corp., 953 F.2d 510, 515 (9th Cir. 1992) (an argument is properly raised

below when it is “raised sufficiently for the trial court to rule on it”

(quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).

Because the issue was waived for this reason, we need not consider other

possible bases for waiver. See, e.g., EEOC v. Go Daddy Software, Inc.,

581 F.3d 951, 961 (9th Cir. 2009).

GREISEN V. HANKEN 27

was proximately caused by Hanken’s actions. He therefore

sought damages arising from his termination.

Hanken challenges these damages. Quoting Lakeside-

Scott v. Multnomah County, 556 F.3d 797, 804 (9th Cir.

2009), he contends his conduct did not proximately cause

Greisen’s termination, because Otterman, Hanken’s

successor, “made a wholly independent, legitimate decision

to discharge” Greisen, and any reasonable jury would have

so found. Alternatively, he asks us to remand for a new trial

because jury instruction number 17 misstated the law of

proximate cause by failing to require a direct relation

between Hanken’s actions and Greisen’s termination. See

Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011)

(“Proximate cause requires only ‘some direct relation

between the injury asserted and the injurious conduct

alleged,’ and excludes only those ‘link[s] that are too remote,

purely contingent, or indirect.’” (alteration in original)

(quoting Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9

(2010))). This failure, in his view, prevented the jury from

considering whether Otterman’s decision to terminate

Greisen severed the chain of causation. We address these

contentions in turn.

1. Substantial evidence supports the jury’s conclusion

that Hanken’s actions proximately caused

Greisen’s termination

We are not persuaded by Hanken’s argument that any

reasonable jury would have concluded that his actions did

not proximately cause Greisen’s termination. The Supreme

Court considered an analogous issue in Staub. There, the

plaintiff, a member of the United States Army Reserve,

brought a claim under the Uniformed Services Employment

and Reemployment Rights Act, claiming his employer

discharged him as a result of his military obligations. See id.

28 GREISEN V. HANKEN

at 415. The plaintiff’s biased supervisor had reported the

plaintiff to a superior, who reviewed the plaintiff’s file and

fired him partially on the basis of the supervisor’s report.

See id. at 414–15.

The Court framed the question before it as whether “an

employer may be held liable for employment discrimination

based on the discriminatory animus of an employee who

influenced, but did not make, the ultimate employment

decision.” Id. at 413. Answering this question required the

Court to consider whether “the biased supervisor’s action”

was “a proximate cause of the ultimate employment action”

– the precise question at issue here. Id. at 420, 422. The

proximate cause inquiry, in turn, hinged on whether the

biased supervisor’s actions “were causal factors underlying

[the] decision to fire” the plaintiff. Id. at 423. The Court

explained:

[I]f the employer’s investigation results in an

adverse action for reasons unrelated to the

supervisor’s original biased action . . . , then

the employer will not be liable. But the

supervisor’s biased report may remain a

causal factor if the independent investigation

takes it into account without determining that

the adverse action was, apart from the

supervisor’s recommendation, entirely

justified.

Id. at 421.

Under Staub, the question is whether Hanken’s actions

were a “causal factor” in Otterman’s decision to fire Greisen

– i.e., whether Otterman fired Greisen “for reasons unrelated

to [Hanken’s] original biased action[s].” Id. Compare

Lakeside-Scott, 556 F.3d at 807–09 (holding that a biased

GREISEN V. HANKEN 29

supervisor’s actions, including initiating an investigation

that led to the plaintiff’s discharge, were not causal factors

in the plaintiff’s discharge where the ultimate termination

decision was based on a thorough investigation that was

independent of the supervisor’s improper influence), with

Poland v. Chertoff, 494 F.3d 1174, 1182–84 (9th Cir. 2007)

(holding that a biased supervisor’s actions were causal

factors in the plaintiff’s transfer where the employer failed

to shield the disciplinary inquiry from the supervisor’s

influence, the supervisor played a role in selecting witnesses

for the inquiry and the supervisor’s memo that initiated the

inquiry was available to the disciplinary board making the

ultimate transfer decision).

Here, the evidence does not show that Otterman’s

decision was “unrelated to” Hanken’s conduct. See Staub,

562 U.S. at 421. Hanken points to Otterman’s testimony that

his decision was based on the results of the three

investigations Hanken initiated. There is some reason to

doubt that these investigations were independent. Hanken

selected the outside agency that performed the

investigations, and, more strikingly, he admitted at trial that

when he learned that the city council was considering ending

the investigations, he made a false report to the media in a

seemingly successful effort to keep them going.

Even assuming, however, that the investigations were

fully independent and that Hanken cannot be held

responsible for what they uncovered, cf. Lakeside-Scott,

556 F.3d at 806–07, they are not the whole story. Otterman

acknowledged that there were “some other things”

motivating his decision, including the negative media

attention surrounding Greisen and the fact that “the police

department employees felt that they could no longer rely on

. . . Greisen as the chief of police.” Hanken’s wrongful

30 GREISEN V. HANKEN

actions – which amounted to a campaign of public

humiliation through, among other things, false and

misleading representations – almost certainly played a direct

and substantial role in creating or exacerbating these

conditions. Otterman did not assert that he made any effort

to shield his termination decision from the influence of

Hanken’s actions. Cf. Poland, 494 F.3d at 1183. And there

is no contemporaneous evidence that Otterman’s decision

was based solely on the investigation results. On the

contrary, rather than identifying a particular justification for

the dismissal – like the employer did in Lakeside-Scott,

556 F.3d at 809 – he concluded “that the best situation for

the City was to exercise the, quote, ‘no-cause,’ unquote,

clause” in Greisen’s contract. Otterman further made clear

that Hanken’s actions created an environment of unrest that

framed and dictated the timeline of the decision:

There were several articles about [Greisen]

and about what was going on in the City. . . .

The police chief was on administrative leave.

And that causes commotion or turmoil in the

organization and needs to be resolved as soon

as possible.

On this evidence, a reasonable jury could have found that

Hanken’s actions were a causal factor in Otterman’s

decision.

2. Any error in the jury instruction on proximate

cause was harmless

As noted, Hanken argues he is entitled to a new trial

because jury instruction number 17 misstated the law of

proximate cause by failing to require a direct relation

between Hanken’s actions and Greisen’s termination. In

relevant part, that instruction stated:

GREISEN V. HANKEN 31

You can award money only for those

damages that arise naturally and necessarily

from the violation of law that the Plaintiff has

proven. . . .

If you find that the Defendant wrongfully

retaliated against the Plaintiff in violation of

the Plaintiff’s constitutional rights, and if you

also find that it was reasonably foreseeable

that such wrongful retaliatory conduct, if any,

by the Defendant would render the Plaintiff

unable to maintain either his position or his

salary (either at the City of Scappoose or at

another employer), then you may award the

Plaintiff any non-speculative, foreseeable

economic damages caused by the

Defendant’s wrongful retaliatory conduct.

We need not determine whether jury instruction

number 17 was erroneous because any error was harmless.

See Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798

(9th Cir. 2017) (“Where ‘it is more probable than not that the

jury would have reached the same verdict had it been

properly instructed,’ the erroneous instruction is harmless.”

(quoting Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.

2009))).

As described above, the evidence here strongly supports

the conclusion that Otterman’s termination decision was

influenced by Hanken’s retaliatory actions. Even fully

crediting Otterman’s testimony, he acknowledged that the

media attention and Greisen’s recent reputation in the

department – almost certainly influenced by Hanken’s

actions – played a role in his termination decision. Otterman

further admitted that Hanken’s actions had placed the city in

32 GREISEN V. HANKEN

turmoil, which he felt “need[ed] to be resolved as soon as

possible.” He did not provide formal reasons for the

termination but rather used a “no-cause” provision in

Greisen’s contract. Cf. Lakeside-Scott, 556 F.3d at 809.

Nothing in his informal review process shielded Otterman

from the influence of Hanken’s actions. In sum, the

evidence strongly suggests Hanken’s actions were a causal

factor in Otterman’s termination decision, and thus it is more

probable than not a jury would have so found.

Moreover, the instructions required the jury to find that

any damages arose “naturally and necessarily” from

Hanken’s unlawful conduct. It would be illogical for a jury

to find that Otterman’s decision to terminate Greisen

followed naturally and necessarily from Hanken’s adverse

employment actions, but nevertheless was unrelated to those

actions. 7

We thus hold that any error in jury instruction number 17

was harmless because it is more probable than not that the

jury would have reached the same result had it been

instructed as Hanken argues.

IV.

The district court properly denied Hanken’s renewed

motion for judgment as a matter of law and motion for a new

trial. The judgment of the district court is therefore affirmed.

AFFIRMED.

7

We do not endorse the “naturally and necessarily” instruction or

imply that it correctly stated the applicable law in this case.