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September 4, 2013

Ninth Circuit Broadens Definition of Adverse Employment Action and Protected Speech of Public Employees

The en banc panel of the Ninth Circuit Court of Appeals reversed an earlier three-judge panel decision in Dahlia v. Rodriguez (9th Cir. 2012) 689 F.3d 1094, holding that public employees may allege a legal claim for violation of their free speech rights even when reporting unlawful conduct is part of their official duties.  Dahlia was employed as a police detective in December of 2007 assigned to investigate a takeover robbery that occurred at Porto’s café in the City of Burbank.  Dahlia alleged that he was present and observed the use of excessive force.  Dahlia did not immediately stop the conduct or report the excessive force.  Dahlia alleged that a few days later, he attempted to report his observations of excessive force to his lieutenant.  His lieutenant according to Dahlia, did nothing to respond to his complaints.  Dahlia was interviewed by the Burbank PD Professional Standards Bureau (“Internal Affairs”) on three separate occasions in April and May of 2008 when rumors about an incident involving a gun had been rampant.  In January of 2009, word began to spread within the Burbank PD that the FBI was now looking into the rumors of serious officer misconduct tied to the Porto’s investigation.  As a result, about a year and a half after having originally witnessed the misconduct in December 2007, Dahlia  reported the misconduct he had witnessed to an independent investigator from the Los Angeles Sheriff’s Department (“LASD”).  He was placed on administrative leave four days after coming forward.  Dahlia then filed a federal civil rights suit in Federal Court claiming that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights in disclosing the alleged use of abusive tactics by his fellow officers.

Old Rule
The district court granted the Department’s motion to dismiss relying on Huppert v. City of Pittsburgh (9th Cir. 2009) 574 F.3d 696 (“Huppert”) for the proposition that “disclosure of incriminating facts is within the official duties of a police officer in the State of California.”  Additionally, the district court dismissed Dahlia’s suit on the alternative ground that placement on administrative leave did not constitute an adverse employment action.  As a result, since Dahlia’s disclosure to the Los Angeles Sheriff’s Department was made in the course of his official duties, it fell outside of the protection of the First Amendment.
Dahlia appealed the district court’s dismissal to a three Circuit Judge panel of the Ninth Circuit.  The panel affirmed the judgment of the district court in Dahlia v. Rodriguez (9th Cir. 2012) 689 F.3d 1094.  In so doing, the court explained that in order to establish a First Amendment claim Dahlia “[bore] the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.”  Although the panel was highly critical of the Huppert decision, it ultimately concluded that it was bound by it and affirmed the district court’s judgment.  However, the panel disagreed with the district court’s finding that being placed on administrative leave is not an adverse employment action and held “that under some circumstances, placement on administrative leave can constitute an adverse employment action.”

New Rule
In its decision rendered on August 21, 2013, an eleven Circuit Judge panel of the Ninth Circuit overruled Huppert v. City of Pittsburgh (9th Cir. 2009) 574 F.3d 696, finding that the Huppert court failed to conduct the “practical,” fact-specific inquiry mandated in Garcetti v. Ceballos (2006) 547 U.S. 410.  As it pertains to Detective Dahlia’s claim, the court looked to three main factors in concluding that Dahlia had sufficiently alleged that he was engaging in protected activity.  First, the court reasoned that, because Dahlia took his job concerns outside of the chain of command to the LASD investigators, his speech could be construed as that of a private citizen, not a public employee.  Second, the court stated that the subject matter of Dahlia’s complaint concerning corruption or systemic abuse could not be reasonably classified as being within the job duties of an average public employee.  Third, the court found that when a public employee speaks in direct contravention to his supervisor’s orders, as Dahlia did when he spoke to the LASD investigator, such speech may often fall outside of the speaker’s professional duties.  Ultimately, the court concluded that viewing the facts in the light most favorable to Dahlia, under the fact intensive Garcetti analysis, he had sufficiently pled protected First Amendment activity.

Additionally, the court took the lead from the three judge panel’s commentary concerning whether being placed on paid administrative leave constitutes adverse employment action.  In overturning the district court’s dismissal on this alternative ground, the court stated, “Dahlia’s assertions – that administrative leave prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience – if proved, would constitute an adverse employment action.”

Takeaway Points:
1. Disclosure of incriminating facts is not, as a matter of law, within the official duties of a police officer in the State of California.

2. Being placed on PAID administrative leave may constitute adverse employment action for the purpose of establishing a First Amendment Retaliation claim.

Impact Of New Rule Concerning Protected Activity For California Peace Officers
The effect of the Ninth Circuit’s decision concerning protected activity is disconcerting for law enforcement agencies.  The old rule was clear and straightforward.  If a peace officer witnessed a crime, even by fellow officers, it was part of their duty as a peace officer to report it.  Moreover, because it was part of their regular work duties to report such activity, it could not be deemed protected activity for the purpose of First Amendment retaliation analysis.

The new rule has muddied the waters for law enforcement agencies.  It allows courts to do a fact intensive analysis, allowing it to place whatever weight it desires to any factor to determine whether or not something constitutes protected activity.  Where the old rule would have necessitated the dismissal of claims like Dahlia’s, the new rule will give rise to additional First Amendment litigation by peace officers against law enforcement agencies.

Impact Of New Rule Concerning Adverse Employment Action For Peace Officers
The new rule articulated by the Ninth Circuit allows an officer who is placed on paid administrative leave to claim that they have suffered adverse employment action.  This is obviously disconcerting for law enforcement and other public agencies who typically place an employee who is under administrative investigation for serious allegations of misconduct on paid leave.  As a result, public agencies may see an uptick in litigation, even for officers who are eventually exonerated of any misconduct, but were nonetheless placed on paid administrative leave.

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