Desrochers v. City of San Bernardino

WARDLAW, Circuit Judge,

dissenting:

I respectfully dissent. The majority fails to view “the evidence in the light most favorable to the plaintiffs,” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003), as we must on summary judgment. It also fails to evaluate the “ ‘content, form, and context of a given statement, as revealed by the whole record,’ ” Ulrich v. City & County of S.F., 308 F.3d 968, 978 (9th Cir.2002) (quoting Connick v. Myers, 461 U.S. 138, 147-48 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983)), and instead relies on only those portions of the record and case law that support its conclusion that the speech at issue was a mere “workplace gripe.” Maj. Op. 714. Because plaintiffs’ speech “ ‘can fairly be considered to relate to’ ” a matter of public concern, Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) (quoting Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.1995)), I would remand to the district court for consideration of the remaining elements of the First Amendment retaliation inquiry.

I.

From the outset of the grievance process, Sergeants Michael Desrochers and Steve Lowes have maintained that supervising Lieutenant Mitchal Kimball’s behavior impeded the proper functioning of the San Bernardino Police Department (“SBPD”). Captain Frank Mankin, a defendant in this case and' the official to whom Sergeants Desrochers and Lowes first reported their informal grievance, documented the sergeants’ claim “that the interaction between themselves and Lieutenant Kimball had risen to a level so as to impact the operational efficiency and effectiveness of the units over which Lieutenant Kimball had managerial oversight.” In the informal grievance, the sergeants asserted that Kimball violated SBPD “policy and procedure[]” and acted inappropriately toward neighboring police departments. They requested that the city remove Kimball from command of the Specialized Enforcement Bureau (“SEB”), formally investigate the charges contained in their grievance, order Kimball into ad *720 ditional training, and monitor Kimball’s conduct in the future. Kimball immediately requested a transfer out of the SEB, which was granted, but the department failed to initiate an investigation of his conduct or order Kimball into additional training. In an attempt to terminate the grievance, Chief Michael Billdt prepared a resolution letter “acknowledging] that a strained relationship existed between” the sergeants and Kimball, but Desrochers and Lowes refused to sign the letter because it did not address the institutional remedies that they had requested.

Desrochers and Lowes next filed a formal grievance against Kimball, charging that he created a “hostile work environment by his repeated violations” of internal policies and procedures, and added claims against Chief Billdt and Captain Mankin for “failing] to take appropriate action” despite being “continually made aware of the hostile work environment.” The sergeants addressed in further detail the impact of Kimball’s behavior on the SBPD and on SBPD’s interaction with other agencies. For example, Lowes reported that Kimball lectured him in front of the Rialto Police Department regarding the “incompetence of outside agencies” and criticized Lowes for being too “trusting” of the Rialto department. Lowes reported that this interaction “undermined[his] effort to build a positive relationship with Rialto PD and assist them ... in a positive way.” Further, “Kimball embarrassed the [San Bernardino] SWAT team by confronting a visiting SWAT team (Riverside PD)” when the Riverside team was training in San Bernardino. Lowes reported that Kimball left the “definite impression” that he “thought that Riverside PD was incompetent” during the confrontation. In total, Lowes reported that Kimball’s “approach and tactics were destroying the moral[e] and confidence” of the department and that the independently minor “incidents amount to added stress and distrust in the daily operations of the unit.”

Similarly, Desrochers complained that Kimball’s “autocratic” “management style” “negatively” affected the morale in his unit. He claimed that he was “unable to supervise the unit because of [Kimball’s] interference,” and, as a result, it was “very difficult for [him] to perform [his] duty.” Desrochers also complained about Kim-ball’s negative interaction with the members of the Beaumont Police Department in a meeting about warrant service, during which Kimball “did not put the San Bernardino police department in a positive light” and demonstrated that he “was not eager to work cooperatively with this other agency.” Desrochers presented his grievance as “a necessary step forward in an attempt to change the culture of this police department and the way we treat each other.”

In their formal grievance, the sergeants requested an “[acknowledgment that the ... listed violations of policy and core values are not condoned by the administration of the San Bernardino Police Department” and that “the creation and maintenance of high moral[e] of department members is paramount for effective organizational health and development.” They also sought an agreement “to monitor and develop Lt[.] Kimball in order to prevent any future incidents” and a commitment to “develop and publish additions to ... organizational core values that ... reflect the type of culture that fosters respect and friendly interaction between all employees regardless of rank.” No satisfactory resolution was reached after this stage.

The sergeants next filed a complaint with the city’s Human Resources Department against Kimball, Chief Billdt, and Captain Mankin. In addition to the con *721 duct reported earlier, they complained of a threat of retaliation from Chief Billdt and included a claim against Lieutenant Boom, the officer who replaced Kimball as Desrochers’s and Lowes’s supervisor, for “inappropriate and harassing comments given to coworkers, peers and -subordinates.” They requested an investigation of Lieutenant Boom and Chief Billdt and replacement of Boom with a different lieutenant.

II.

The first step of a First Amendment retaliation analysis is determining “whether the plaintiff spoke on a matter of public concern.” Eng, 552 F.3d at 1070 . “Although the boundaries of the public concern test are not well defined,” City of San Diego v. Roe, 543 U.S. 77, 83 , 125 S.Ct. 521 , 160 L.Ed.2d 410 (2004) (per curiam), it is clear that the matter should be “of political, social, or other concern to the community,” Voigt v. Savell, 70 F.3d 1552, 1559 (9th Cir.1995). In evaluating the “ ‘content, form, and context of a given statement,’ ” Ulrich, 308 F.3d at 978 (quoting Connick, 461 U.S. at 147-48 , 103 S.Ct. 1684 ), we may consider the “motivation and the chosen audience” for the speech, Johnson, 48 F.3d at 425 , but “ ‘motive should not be used as a litmus test for public concern,’ ” Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 925 (9th Cir.2004) (quoting Havekost v. U.S. Dep’t of Navy, 925 F.2d 316, 318 (9th Cir.1991)). Moreover, we have adopted a “liberal construction of what an issue'of public concern’ is under the First Amendment,” Roe v. City & County of S.F., 109 F.3d 578, 586 (9th Cir.1997), in recognition that “ ‘one of the fundamental purposes of the [F]irst [A]mendment is to permit the public to decide for itself which issues and viewpoints merit its concern,’ ” Ulrich, 308 F.3d at 978 (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983)).

Key to this inquiry is our recent holding that “[a]s a matter of law, ‘the competency of the police force is surely a matter of great public concern.’ ” Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009) (quoting McKinley, 705 F.2d at 1114 ). In more general terms, we have described speech on matters of public concern as “ ‘[sjpeech that concerns issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.’ ” Coszalter, 320 F.3d at 973 (quoting McKinley, 705 F.2d at 1114 ). Although the speech may involve broader issues such as “ ‘actual or potential wrongdoing or breach of public trust,’ ” Roth v. Veteran’s Admin., 856 F.2d 1401 , 1405 (9th Cir.1988) (quoting Connick, 461 U.S. at 148 , 103 S.Ct. 1684 ), “it is sufficient that the speech concern matters in which even a relatively small segment of the general public might be interested,” Roe, 109 F.3d at 585 . Most importantly, the mismanagement of personnel, performance, functioning, and “inefficiency in managing and operating government entities are matters of inherent public concern,” Johnson, 48 F.3d at 425 ; see also Eng, 552 F.3d at 1072 ; Roth, 856 F.2d at 1406; McKinley, 705 F.2d at 1114 , as are “ ‘discipline and morale in the workplace,’ ” because those “ ‘are related to an agency’s efficient performance of its duties,’ ” McKinley, 705 F.2d at 1114 (quoting Connick, 461 U.S. at 148 , 103 S.Ct. 1684 ). Moreover, the relevance of such concerns to the public increases when the operation of a public safety agency is at issue. See Gilbrook v. City of Westminster, 177 F.3d 839, 866 (9th Cir.1999) (“[A]n opinion about the preparedness of a vital public-safety institution ... goes to the core of what constitutes speech on matters of public concern.”); see also Robinson, 566 F.3d at 822 ; McKinley, 705 F.2d at 1114 . Indeed, we have found speech to be of public con *722 cern even when it concerned exclusively “the manner in which police ... performed their duties on a particular occasion.” Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989).

In contrast, the “[o]nly speech” that is not of public concern is speech “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,’ ” Robinson, 566 F.3d at 822 (quoting McKinley, 705 F.2d at 1114 ); Coszalter, 320 F.3d at 973 , including “speech that relates to internal power struggles within the workplace” or speech that is of no interest “beyond the employee’s bureaucratic niche,” Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir.1996) (internal quotation marks omitted).

III.

While the majority cites many of these legal principles, it fails to place them in the proper context. A canvass of our prior case law reveals that the sergeants’ speech is analogous to other instances of speech that we have found to relate to a matter of public concern.

In Robinson , for example, a police officer reported various incidents of officer misconduct in his department, such as retention of outside employment, consumption of alcohol during work hours, potentially anti-Semitic tattoos, alleged instances of battery and excessive force, and a potentially discriminatory sign. See 566 F.3d at 820-21 . The officer also testified in a class action discrimination suit. Id. at 820 . We affirmed the district court’s conclusion that these statements, which involved “numerous instances of possible corruption, discrimination, or misconduct,” were matters of public concern. 1 Id. at 822 . We held that “[r]eports pertaining to others, even if they concern personnel matters including discriminatory conduct, can still be ‘protected under the public concern test.’ ” Id. at 823 (quoting Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004)). Robinson thus demonstrates that internal grievances regarding officer misconduct constitute a matter of public concern.

Similarly, in Cochran v. City of Los Angeles, two police officers lodged internal complaints about their supervisor’s work ethic, questioned her “ability to make decisions free from personal bias or preferences, and undermined her authority.” 222 F.3d 1195, 1200 (9th Cir.2000). While we ultimately concluded that the speech was unprotected because the plaintiffs’ interest in the speech was “outweighed by the City’s interest in preserving discipline and harmony,” id. at 1199 , we found that “the speech here did concern matters which are relevant to the public’s evaluation of its police department,” even though it was “focused on one employee and not addressed directly to the public,” id. at 1200 . These precedents firmly establish that reports of police officer behavior that *723 impedes the proper operation of a police force are matters of public concern, even when made internally. Viewing the sergeants’ complaints about Kimball’s destructive managerial approach in this context, it is clear that their speech should be similarly protected.

Further, numerous cases provide relevant examples of protected speech that concerns the performance, functioning, and mismanagement of government agencies. In Lambert v. Richard, a library employee who was also a union representative read a prepared statement at a city council meeting criticizing the management style of her supervisor, Richard, due to whom “the library was ‘barely’ functioning” and “employees who dealt regularly with the public were performing ‘devoid of zest, with leaden hearts and wooden hands.’” 59 F.3d 134 , 136 (9th Cir.1995). We concluded that “[g]iven that operation of a public library is among the most visible of the functions performed by city governments, Lambert had a Constitutional right — and perhaps a civic duty — to inform the council if library service was jeopardized by poor management at the top.” Id. Lambert stands for the proposition that poor management of a publicly visible agency — like a police department-that negatively affects the functioning of the agency is a matter of public concern. 2 It also establishes that allegations of illegal misconduct are not required, undermining the majority’s contention that “misconduct” needs to mean what they think it means — i.e., “actual or potential wrongdoing or breach of public trust.” Maj. Op. 712 n. 8 (internal quotation marks omitted).

In yet another case, the unit chief of a Veteran’s Administration (“VA”) hospital “reported wastefulness, mismanagement, unethical conduct, violations of regulations, and incompetence to his superiors and to administrative personnel,” Roth, 856 F.2d at 1403, noting that he did so “for the good of the institution,” id. at 1406. Just as “[i]t can hardly be doubted that the efficient and ethical operation of the VA and the VA’s compliance with applicable rules and regulations are inherently of interest to the public,” id., Kimball’s alleged noncompliance with internal SBPD policies make the sergeants’ speech a matter of public concern.

The majority states that “our sister circuits have suggested” to the contrary. Maj. Op. 713. The cases cited by the majority, however, establish only that speech is not of public concern when the employee complains of management issues that do not implicate the effective operation and provision of public service. See Brooks v. Univ. of Wis. Bd. of Regents, 406 F.3d 476, 480 (7th Cir.2005) (medical researcher complained about his “ability to operate as he saw fit,” which constituted “infighting for control of a [clinical] department” and was not related to “patient welfare”); Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 374 (5th Cir.2000) (noting cases in which per *724 sonally aggrieved employees criticized their superiors), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007); Taylor v. Carmouche, 214 F.3d 788, 789-91 (7th Cir.2000) (employees complained about their supervisor in the context of long-term personal disputes about medical leave and professionalism); Gardetto v. Mason, 100 F.3d 803, 814 (10th Cir.1996) (employee complained about the restructuring of her office).

Issues of performance, discipline, and morale in public safety organizations are especially matters of public concern, given the direct impact of such entities on the well-being of the public. In McKinley , a police officer who was also a union representative discussed police salaries at a city council meeting and gave a television interview regarding the dispute between the city and the police department. 705 F.2d at 1112 . We held that this speech constituted a matter of public concern because salaries affect the ability of the city to attract and retain qualified police personnel, and “the competency of the police force is surely a matter of great public concern.” Id. at 1114 . Certainly, if police salaries are deemed a matter of public concern because they indirectly affect police competence, then speech that directly addresses police competence must also satisfy this element. In light of our precedent, it is particularly incomprehensible why the majority opines that “a reader struggles in vain to discover where or how the proper functioning of the police department was jeopardized by the actions of Kimball.” Maj. Op. 712. In McKinley , we also concluded that “the interrelationship between city management and its employees is closely connected with ‘discipline and morale in the workplace’ — factors that ‘are related to an agency’s efficient performance of its duties.’ ” 705 F.2d at 1114 (quoting Connick, 461 U.S. at 148 , 103 S.Ct. 1684 ). It is undisputed even by the majority that the sergeants’ speech concerns morale in the police workforce, Maj. Op. 716; therefore, McKinley is controlling and requires us to conclude that the sergeants’ speech was of public concern.

Moreover, as long as the public can draw its own inferences, an employee’s speech need not spell out all the aspects of public concern. In Gillette , a firefighter was called to a house where someone was allegedly suffering from a drug overdose; pursuant to city policy, fire and medical personnel took the victim against his will and without notification to the hospital. 886 F.2d at 1195-96 . During the course of these events, the firefighter communicated to his coworkers his disagreement with the handling of the situation. Id. at 1196 . We concluded that Gillette’s speech was a matter of public concern because it “concerned the manner in which police and fire fighters performed their duties on a particular occasion.” Id. at 1197 . We explained that Gillette’s “comments may well raise questions concerning whether persons should be taken to the hospital against their will, what notice they should receive, and what degree of force is appropriate.” Id. at 1198 . Similarly, here, the sergeants’ statements originally concerned the behavior of one lieutenant and later broadened to concern the SBPD’s handling of these issues. Nonetheless, contrary to the majority’s minimizing descriptions of the grievances as concerning only “a poor working relationship” between the sergeants and Kim-ball, Maj. Op. 711 n. 7; id. at 714 n. 14; see also id. at 712 n. 8, the sergeants’ speech raised questions about the effect of Kimball’s management style on the efficient operation of the SBPD, on the SBPD’s capability to cooperate with other departments when necessary, and, ultimately, on its ability to achieve its mission — assuring the public safety.

*725 Most troubling is the majority’s misapplication of the summary judgment standard. Despite acknowledging that “our inquiry” is “fact-intensive,” Maj. Op. 718 n. 27, it has chosen a characterization of the sergeants’ speech by finding some facts and disregarding others — in essence, substituting itself for the jury. The simple fact that the majority cites some portions of the record to conclude that the speech did not involve a matter of public concern, while the dissent cites the remaining portions to demonstrate that it did, indicates, at the very least, that summary judgment on this issue is inappropriate.

We have rejected the majority’s type of analysis in cases like Johnson , where an administrative assistant in the county Department of Environmental Services made statements “to coworkers and others accusing [her supervisor] of mismanagement and possible criminal conduct.” 48 F.3d at 421 . We concluded “that misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern.” Id. at 425 . Though the county emphasized that Johnson did not go to the press and was motivated by a desire to unseat the supervisor whose job she sought, Johnson “presented] evidence to show that she was motivated by a genuine interest in the welfare of [county resources] and a righteous indignation of [her supervisor]^ inadequate job performance.” Id. We concluded that because these facts were disputed, summary judgment on the issue of public concern was not appropriate. Id. at 425-26 . Similarly, here, the defendants raise factual questions regarding the sergeants’ motivation for the speech — questions that should be resolved by a trier of fact.

In stark contrast to the facts presented here stand eases in which courts have found the public employee’s speech not

related to a matter of public concern. In the leading Supreme Court case, Connick , a disgruntled assistant district attorney who was opposed to a transfer circulated an internal questionnaire to her coworkers regarding office policies and morale. 461 U.S. at 141 , 103 S.Ct. 1684 . Characterizing her speech as an “attempt to constitutionalize the employee grievance,” id. at 154 , 103 S.Ct. 1684 , the Court held that Myers’s speech was not on a matter of public concern because the purpose of the questionnaire was only to “gather ammunition for another round of controversy with her superiors,” id. at 148 , 103 S.Ct. 1684 . Connick , however, is wholly distinguishable on its facts. It is undisputed that at the time of filing the grievance, Desrochers and Lowes were secure in their positions — both have been with the force for over twenty years and had no intention (or prospect) of using the grievance process in a self-interested manner. This conclusion is buttressed by the fact that the sergeants continued their grievance process even though Kimball left his position as their supervisor. Had the sergeants been engaged in workplace “power struggles,” Tucker, 97 F.3d at 1210 , or a “running spat” with Kimball, as the majority suggests, Maj. Op. 716, they would have given up at that point. Even more persuasive are the remedies that the sergeants sought — the institutional and policy changes they requested unmistakably signify an effort to highlight and solve problems with the culture of the department and not a conflict concerning only the “employee’s bureaucratic niche.” Tucker, 97 F.3d at 1210 (internal quotation marks omitted). That the sergeants refused to sign the initial resolution letter because the institutional remedies they requested were not implemented militates toward the same conclusion — the sergeants were not asserting their own personal grievances but bringing to the attention of the admin *726 istration pervasive problems within the police force due to the abusive management style of the officer in charge of the unit.

The majority’s disparaging comparison of the sergeants’ speech to complaints regarding law clerk coffee breaks apparently originates from Havekost , in which a grocery bagger in a Navy commissary circulated a petition to other baggers regarding “an internal dispute over the Navy’s dress code, scheduling, and responsibility for certain lost commissary profits.” 925 F.2d at 319 . Characterizing the speech as the “minutiae of workplace grievances,” we concluded that it did not meet the public concern test. Id. Comparing Havekost’s concerns to coffee breaks was fitting under the circumstances, since one of Havekost’s concerns was scheduling. Id. In contrast, the comparison is strikingly ill-adapted here, where police officers raise questions regarding the operational efficiency of a police force. Given the importance of a competent police force to the safety of a community, moreover, neither is the sergeants’ speech similar to the “inter-office transmittal of case citations and summaries,” Roe, 109 F.3d at 585 , that we concluded was not a matter of public concern because it was an “internal dispute with no wider societal implications,” id. at 586 .

Similarly unwarranted is the majority’s comparison of the sergeants’ grievance filings to “workplace gripe[s] exchanged around the water cooler,” Maj. Op. 714, and its description of the sergeants’ speech as “ ‘mere[ly an] extension[ ]’ of the running spat between the sergeants and Kim-ball,” id. at 716 (alterations in original) (quoting Voigt, 70 F.3d at 1560 ). In Voigt , a court employee voiced internal “criticism regarding the way Judge Saveli handled two internal personnel matters.” 70 F.3d at 1560 . We characterized Voigt’s concern “primarily as an extension of his personal dispute with Judge Saveli in which Voigt attempted to galvanize support for himself by weakening staff support for Judge Saveli.” 3 Id. That Desrochers and Lowes took the situation sufficiently seriously to follow formal grievance procedures distinguishes this case from Voigt and from the “water cooler” scenario. The sergeants were not simply complaining about Kim-ball’s disagreeable nature to their coworkers but were instead seeking to address with the administration the negative impact of Kimball’s management style on the operation of the police force.

The majority also emphasizes that the sergeants’ speech was internal instead of directed to the public. Maj. Op. 714-15. Courts have repeatedly held, however, that the fact that an employee “expressed his views inside his office, rather than publicly, is not dispositive. Employees in some eases may receive First Amendment protection for expressions made at work.” Garcetti v. Ceballos, 547 U.S. 410, 420 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006); see also Connick, 461 U.S. at 146 , 103 S.Ct. 1684 . “Neither the [First] Amendment itself nor [the Supreme Court’s] decisions indicate that ... freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.” Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 , 99 S.Ct. 693 , 58 L.Ed.2d 619 (1979); see also Chateaubriand v. Gaspard, 97 F.3d 1218, 1223 (9th Cir.1996) (O’Scannlain, J.) (“The form of the speech — complaints to staff and su *727 periors rather than to the general public— does not remove it from the realm of public concern.”); Gillette, 886 F.2d at 1198 (concluding that Gillette’s speech involved a matter of public concern even though it “was not directed to the public at large” because a public audience “is not critical to the inquiry of whether the speech involves a matter of public concern” (citing Rankin v. McPherson, 483 U.S. 378 , 386 n. 11, 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987))). Finally, given that the sergeants’ superiors were best placed to address the problems arising from Kimball’s effect on the department, it made sense for the sergeants to follow internal grievance procedures. “Bringing problems to the attention of responsible governmental administrators is at least as important a communication for promoting democratic self-government as disclosure to the citizenry as a whole.” Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir.1992). Indeed, a requirement that all concerns of government mismanagement affecting the provision of public services be aired publicly before being raised internally could prove quite counterproductive.

I would not hold that all of the sergeants’ speech constitutes a matter of public concern. The sergeants do not attempt to show how Lieutenant Boom’s alleged inappropriate comments affected the competency of the police force. Complaints regarding Captain Mankin’s promotion appear to concern the internal distribution of power and not the effectiveness of the organization as a whole. The sergeants’ statements regarding Captain Mankin’s and Chief Billdt’s inaction in response to their complaints are more troubling. Like Robinson’s communications following up on his reports of misconduct, the sergeants’ statements “did not merely contain passing references to public safety [that] were incidental to the message conveyed,” but, in discussing the negative impact of

Kimball’s behavior, “related to the danger the misconduct posed and the need to respond to it.” See Robinson, 566 F.3d at 823 (alteration in original) (internal quotation marks omitted). The sergeants’ speech regarding Captain Mankin’s and Chief Billdt’s response to their complaints thus “clearly addressed at least two matters of public concern: the misconduct itself and the distinct question of whether the investigating officers were ... sweeping misconduct under the rug.” Id. Therefore, the sergeants’ speech can be fairly considered to relate to a matter of public concern. Because the district court entered judgment only on the public concern element of the five-step retaliation claim, I would reverse and remand for the district court to consider the remaining elements, including whether the defendants are entitled to qualified immunity. See Singleton v. Wulff, 428 U.S. 106, 120 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).

. The Robinson district court also concluded that three of the reported incidents involved only unprotectable "individual personnel disputes," Robinson, 566 F.3d at 822 , including an incident of "verbal abuse” by a lieutenant "toward Robinson in front of numerous [Office of Public Safety] employees because Robinson complained when [the lieutenant] sent two officers home,” Robinson v. County of L.A., No. CV-06-2409-GAF, slip op. at 3 (C.D.Cal. Aug. 7, 2007). Unlike Desrochers and Lowes, however, Robinson did not demonstrate that this incident was part of a broader pattern of abuse that impacted the operational efficiency of the department. Therefore, we affirmed the district court’s finding that this speech did not involve a matter of public concern. See Robinson, 566 F.3d at 822 .

. The majority distinguishes Lambert on the ground that the public debate about Richard’s management style was already ongoing. Maj. Op. 716-17. We did note that Lambert’s statement was made in the context of protests alleging that "Richard mismanaged the library department and treated employees in an abusive and intimidating manner,” and that there was "no question that Richard's management style had become an issue of significant public concern by the time Lambert spoke.” Lambert, 59 F.3d at 136. What is important, however, is not the timeline of the public’s awareness, but the fact that Richard’s problematic management style did constitute an issue of public concern. It would be nonsensical to provide protection only to employee statements made on topics already of public concern and deprive other employees of protection because they are among the first to highlight a problem at a governmental agency.

. The majority discounts the fact that, despite labeling Voigt's speech a "personal dispute,” we held that the speech "can be characterized as touching on a matter of public concern" because "[t]he public has an interest in knowing whether the court treats its job applicants fairly.” Voigt, 70 F.3d at 1560 .