CACI No. 3053. Retaliation for Exercise of Free Speech Rights - Public Employee - Essential Factual Elements (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3053.Retaliation for Exercise of Free Speech Rights - Public
Employee - Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] because [he/she/nonbinary pronoun] exercised [his/
her/nonbinary pronoun] right to speak as a private citizen about a matter
of public concern. To establish this claim, [name of plaintiff] must prove
all of the following:
1. [That [name of plaintiff] was speaking as a private citizen and not
as a public employee when [he/she/nonbinary pronoun] [describe
speech alleged to be protected by the First Amendment, e.g.,
criticized the mayor at a city council meeting];]
2. That [name of defendant] [specify retaliatory acts, e.g., terminated
plaintiff’s employment];
3. That [name of plaintiff]’s [e.g., speech to the city council] was a
substantial motivating reason for [name of defendant]’s decision to
[e.g., terminate plaintiff’s employment];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
If [name of plaintiff] proves all of the above, [name of defendant] is not
liable if [he/she/nonbinary pronoun/it] proves either of the following:
6. That [name of defendant] had an adequate employment-based
justification for treating [name of plaintiff] differently from any
other member of the general public; or
7. That [name of defendant] would have [specify adverse action, e.g.,
terminated plaintiff’s employment] anyway for other legitimate
reasons, even if [he/she/nonbinary pronoun/it] also retaliated based
on [name of plaintiff]’s protected conduct.
In deciding whether [name of plaintiff] was speaking as a public citizen or
a public employee (element 1), you should consider whether
[his/her/nonbinary pronoun] [e.g., speech] was within [his/her/nonbinary
pronoun] job responsibilities. [However, the listing of a given task in an
employee’s written job description is neither necessary nor sufficient
alone to demonstrate that conducting the task is part of the employee’s
professional duties.]
New November 2017; Revised May 2020
Directions for Use
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 employers 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).
Sources and Authority
‘[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 1070-1072. [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 employers 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 speakers 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.)
“Public employees’ expression is on a matter of public concern if it ‘relat[es] to
any matter of political, social, or other concern to the community,’ and not ‘upon
matters only of personal interest.’ Some subjects both affect a public employee’s
personal interests and implicate matters of public concern. Rendish [v. City of
Tacoma (9th Cir. 1997) 123 F.3d 1216, 1223] held that unlawful discrimination
is such a matter, recognizing that ‘the public has an interest in unlawful
discrimination’ in City government, and that employee speech about such
discrimination therefore involves matters of public concern even if it arises out
of a personal dispute. . . . ¶] Th[is] rule applies to both administrative and
judicial proceedings seeking to ‘bring to light potential or actual discrimination’
by government officials, and controls even when the plaintiff seeks only private
relief for the vindication of her own rights. This precedent clearly establishes
that speech by public employees about unlawful discrimination in the workplace
is inherently speech on a matter of public concern.” (Ballou v. McElvain (9th
Cir. 2022) 29 F.4th 413, ___, 2022 U.S. App. LEXIS 8038, *33, original italics,
internal citations and footnotes omitted.)
“[Defendant] may avoid liability if he shows that a ‘final decision makers
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 makers 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
supervisors orders, that speech may often fall outside of the speakers
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.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 563
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law §§ 894,
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, 2.03
(Matthew Bender)
3054 Reserved for Future Use

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