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Greisen v. Hanken

United States Court of Appeals, Ninth Circuit

May 31, 2019

Doug Greisen, Plaintiff-Appellee,
v.
Jon Hanken, Defendant-Appellant.

          Argued and Submitted October 11, 2018 Portland, Oregon

          Appeal from the United States District Court for the District of Oregon D.C. No. 3:14-cv-01399-SI Michael H. Simon, District Judge, Presiding.

          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.

          Before: Raymond C. Fisher, Richard R. Clifton and Consuelo M. Callahan, Circuit Judges.

         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 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.

          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, 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 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.

         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]

         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 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 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 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)).

         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 ...


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