CACI 3053 Retaliation for Exercise of Free Speech Rights—Public Employee—Essential Factual Elements (42 U.S.C. § 1983)

New November 2017; Revised May 2020

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This instruction is for use in a claim by public employees who allege that they suffered an adverse employment action in retaliation for their private speech on an issue of public concern. Speech made by public employees in their official capacity is not insulated from employer discipline by the First Amendment but speech made in one’s private capacity as a citizen is. (Garcetti v. Ceballos (2006) 547 U.S. 410, 421 [126 S.Ct. 1951, 164 L.Ed.2d 689].) For a claim by a private citizen who alleges retaliation, see CACI No. 3050, Retaliation—Essential Factual Elements.

Element 1, whether the employee was speaking as a private citizen or as a public employee, and element 6, whether the public employer had an adequate justification for the adverse action, are ultimately determined as a matter of law, but may involve disputed facts. (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071.) If there are no disputed facts, these elements should not be given. They may be modified to express the particular factual issues that the jury must resolve.

Give the bracketed optional sentence in the last paragraph if the defendant has placed the plaintiff’s formal written job description in evidence. (See Garcetti, supra, 547 U.S. at p. 424.)

Note that there are two causation elements. The protected speech must have caused the employer’s adverse action (element 3), and the adverse action must have caused the employee harm (element 5). This second causation element will rarely be disputed in a termination case. For optional language if the employer claims that there was no adverse action, see CACI No. 2505, Retaliation—Essential Factual Elements (under California’s Fair Employment and Housing Act). See also CACI No. 2509, “Adverse Employment Action” Explained (under FEHA).

•“ ‘[C]itizens do not surrender their First Amendment rights by accepting public employment.’ Moreover, ‘[t]here is considerable value … in encouraging, rather than inhibiting, speech by public employees,’ because ‘government employees are often in the best position to know what ails the agencies for which they work.’ At the same time, ‘[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions.’ Accordingly, government employees may be subject to some restraints on their speech ‘that would be unconstitutional if applied to the general public.’ ” (Moonin v. Tice (9th Cir. 2017) 868 F.3d 853, 860–861, internal citations omitted.)

•“First Amendment retaliation claims are governed by the framework in Eng. See 552 F.3d at 1070–72. [Plaintiff] must show that (1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. Upon that showing, the State must demonstrate that (4) it had an adequate justification for treating [plaintiff] differently from other members of the general public, or (5) it would have taken the adverse employment action even absent the protected speech. ‘[A]ll the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff’s case.’ ” (Kennedy v. Bremerton Sch. Dist. (9th Cir. 2017) 869 F.3d 813, 822, internal citations omitted.)

•“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.” (Greisen v. Hanken (9th Cir. 2019) 925 F.3d 1097, 1113.)

•“Pickering [v. Bd. of Educ. (1968) 391 U.S. 563 [88 S.Ct. 1731, 20 L.Ed.2d 811]] and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” (Garcetti, supra, 547 U.S. at p. 418, internal citations omitted.)

•“In the forty years since Pickering, First Amendment retaliation law has evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history reveals 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. Analysis of these questions, further complicated by restraints on our interlocutory appellate jurisdiction, involves a complex array of factual and legal inquiries requiring detailed explanation.” (Eng, supra, 552 F.3d at p. 1070.)

•“Whether speech is on a matter of public concern is a question of law, determined by the court …. The speech need not be entirely about matters of public concern, but it must ‘substantially involve’ such matters. ‘[S]peech warrants protection when it “seek[s] to bring to light actual or potential wrongdoing or breach of public trust.” ’ ” (Greisen, supra, 925 F.3d at p. 1109.)

•“[Defendant] may avoid liability if he shows that a ‘final decision maker’s independent investigation and termination decision, responding to a biased subordinate’s initial report of misconduct, … negate[s] any causal link’ between his retaliatory motive and the adverse employment action. This is because a final decision maker’s wholly independent investigation and decision establish that ‘the employee’s protected speech was not a but-for cause of the adverse employment action.’ ” (Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d 1062, 1072–1073, internal citation omitted.)

•“Whether an individual speaks as a public employee is a mixed question of fact and law. ‘First, a factual determination must be made as to the “scope and content of a plaintiff’s job responsibilities.” ’ ‘Second, the “ultimate constitutional significance” of those facts must be determined as a matter of law.’ ” (Barone v. City of Springfield (9th Cir. 2018) 902 F.3d 1091, 1099, internal citations omitted.)

•“An employee does not speak as a citizen merely because the employee directs speech towards the public, or speaks in the presence of the public, particularly when an employee’s job duties include interacting with the public.” (Barone, supra, 902 F.3d at p. 1100.)

•“[T]he parties in this case do not dispute that [plaintiff] wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.” (Garcetti, supra, 547 U.S. at p. 424.)

•“To show that retaliation was a substantial or motivating factor behind an adverse employment action, a plaintiff can (1) introduce evidence that the speech and adverse action were proximate in time, such that a jury could infer that the action took place in retaliation for the speech; (2) introduce evidence that the employer expressed opposition to the speech; or (3) introduce evidence that the proffered explanations for the adverse action were false and pretextual.” (Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)

•“[I]n synthesizing relevant Ninth Circuit precedent since Garcetti, an en banc panel of this Court in Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir. 2013), announced three guiding principles for undertaking the practical factual inquiry of whether an employee’s speech is insulated from employer discipline under the First Amendment. … The guiding principles are: [¶] 1. ‘First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.’ [¶] 2. ‘Second, the subject matter of the communication is also of course highly relevant to the ultimate determination whether the speech is protected by the First Amendment … When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties … . By contrast, if 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.’ [¶] 3. ‘Third, we conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.’ ” (Brandon v. Maricopa County (9th Cir. 2017) 849 F.3d 837, 843–844, internal citations omitted.)

•“Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’—or, to put it in other words, that it was a ‘motivating factor’ in the [defendant]’s decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the [defendant] had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s re-employment even in the absence of the protected conduct.” (Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274, 287 [97 S.Ct. 568, 50 L.Ed.2d 471].)

•“Although the Pickering balancing inquiry is ultimately a legal question, like the private citizen inquiry, its resolution often entails underlying factual disputes. Thus we must once again assume any underlying disputes will be resolved in favor of the plaintiff to determine, as a matter of law, whether the state has ‘adequate justification’ to restrict the employee’s speech. If the allegations, viewed in light most favorable to the plaintiff, indicate adequate justification, qualified immunity should be granted.” (Eng, supra, 552 F.3d at pp. 1071–1072, internal citations omitted.)

•“Although the Pickering framework is most often applied in the retaliation context, a similar analysis is used when assessing prospective restrictions on government employee speech. Where a ‘wholesale deterrent to a broad category of expression’ rather than ‘a post hoc analysis of one employee’s speech and its impact on that employee’s public responsibilities’ is at issue, the Court weighs the impact of the ban as a whole—both on the employees whose speech may be curtailed and on the public interested in what they might say—against the restricted speech’s ‘ “necessary impact on the actual operation” of the Government,’ ‘[U]nlike an adverse action taken in response to actual speech,’ a prospective restriction ‘chills potential speech before it happens.’ The government therefore must shoulder a heavier burden when it seeks to justify an ex ante speech restriction as opposed to ‘an isolated disciplinary action.’ ” (Moonin, supra, 868 F.3d at p. 861, internal citations omitted.)