In Hagen v. City of Eugene, ___ F.3d ___ (9th Cir. Dec. 3, 2013), the Ninth Circuit Court of Appeals  reversed the decision of the U.S. District Court for the District of Oregon denying  defendants’  motion  for  judgment  as  a  matter  of  law following a jury trial of a federal 42 U.S.C. § 1983 action.

Plaintiff alleged that defendants violated his First Amendment rights when they removed him from his position with the Eugene Police Department’s K-9 team in retaliation for his repeatedly airing concerns about work-related safety issues to his supervisors.

At the close of plaintiff’s case-in-chief and again at the close of trial, Defendants moved for judgment as a matter of law, arguing that plaintiff had failed to establish that he spoke as a private citizen, a necessary element to his First Amendment retaliation claim.  The court denied the motion both times, and in a unanimous general verdict, the jury found that plaintiff had proved by a preponderance of the evidence that defendants had, indeed, deprived him of his First Amendment Right of Free Speech. The jury awarded plaintiff $50,000 in compensatory damages and $200,000 in punitive damages.  Defendants appealed.

The Court of Appeals concluded that defendants were, in fact, entitled to judgment as a matter of law. The evidence presented to the jury did not reasonably permit the conclusion that plaintiff established a First Amendment retaliation claim because he had a duty to report safety concerns to his supervisor. Therefore, that employee does not speak as a private citizen and is not entitled to First Amendment protections.