Plaintiff? was ?a? law ?enforcement ?officer with the Burbank Police Department. ?He observed various acts of outrageous police misconduct, and reacted in disbelief.? ?The Plaintiff met with a Lieutenant involved in the investigation to disclose the abuse he had witnessed.?? The Lieutenant told Plaintiff to ?stop his sniveling.? ?At one point, the Chief of Police appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, ?Well then beat another one until subjected to an adverse employment action as a result of his protected speech in violation of 42 U.S.C. Section 1983.? The retaliatory acts include inter alia, threats, ostracism, denial of employment ?opportunities, ?undue ?scrutiny? of work performance, denial of continued employment, and malicious statements calculated to destroy his reputation.?? The Chief of Police moved for summary judgment on the grounds of qualified immunity.?? The trial court denied the motion, but was reversed in an unpublished opinion from an interlocutory appeal.??? The remaining individual Defendants were granted summary judgment on the basis that the Plaintiff was speaking pursuant to his official duties and was not constitutionally protected.?? ?A panel of the Ninth Circuit ?reluctantly? affirmed relying upon?? Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009) (holding that a law enforcement officer?s internal complaints about police misconduct and assistance to prosecutor not protected under Garcetti).?? ?See Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir. 2012).?? The Court granted en banc review and the panel was reversed. The Court?s analysis reviewed in detail the Supreme Court and Ninth Circuit jurisprudence concerning the First Amendment rights of public employees.?? ?Judge? Paez ?then ?focused ?on ?an ?in depth evaluation of Garcetti v. Ceballos, 547 U.S. 410 (2006), and the Ninth Circuit?s earlier decision in Huppert. ?The Court overruled Huppert ??to the extent that it improperly relied on a generic job description and failed to conduct the ?practical,? fact-specific inquiry required by Garcetti.? ?Precisely because of the fact-intensive nature of the inquiry, no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff?s job duties. However, we find that existing case law and common sense dictate a few guiding principles relevant to the case before us.? ?Those guideposts include: 1) 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; 2) relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties; and 3) 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. Applying? these ?principles, ?the ?Court ?ruled questions? of fact? remain? about? whether Plaintiff was acting within the scope of his job duties. The Court also ruled that placement on administrative? leave ?can ?be ?an ?adverse employment ?action ?under? some? circumstances. ?To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind.?? Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden.??? ?[T]he proper inquiry is whether the action is ?reasonably likely to deter employees from engaging in protected activity.??? ??We conclude that, under some circumstances, placement on administrative leave can constitute an adverse employment action.? Judge Pregerson concurred by separate opinion.? ?Judge O?Scannlain (joined by Chief Judge Kozinski) concurred in result but dissented from the majority?s analysis.
Dahlia v. Rodriguez, ???????F.3d ?????????(9th Cir. Aug. 21, 2013) (en banc).