WARDLAW, Circuit Judge:
Four days after Angelo Dahlia, a detective in the City of Burbank Police Department, disclosed the alleged use of abusive interrogation tactics by his colleagues to the Los Angeles Sheriff's Department, he was placed on administrative leave by Chief of Police Tim Stehr. That decision prompted Dahlia to file a 42 U.S.C. § 1983 suit against Stehr and lieutenants, sergeants, and a detective of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights. The district court dismissed the suit, concluding that our decision in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), controlled
We take the facts alleged in the complaint as recited by the district court in its June 18, 2010, order granting defendants' motions to dismiss:
District Court Order Granting Defendants' Motions to Dismiss, Dahlia v. City of Burbank, et al., No. 2:09-cv-08453 (C.D. Cal. June 18, 2010), ECF No. 70.
Dahlia filed his § 1983 complaint on November 17, 2009, alleging seven claims: (1) retaliation against a public employee for speech disclosing police misconduct in violation of the First Amendment to the U.S. Constitution; (2) retaliation against a public employee for disclosing information to a government or law enforcement agency in violation of California Labor Code § 1102.5; (3) retaliation against a public employee for making an oral or written complaint to a governmental agency in violation of California Labor Code § 6310; (4) retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety in violation of California Government Code § 53298; (5) violation of the Bane Act, California Civil Code
Police Chief Stehr moved for summary judgment on several grounds, including qualified immunity. The district court denied Stehr's summary judgment motion without prejudice on the ground that it was premature because Dahlia did not have an adequate opportunity to take discovery. Stehr timely appealed the district court's denial of his motion for summary judgment.
The remaining named defendants, Lieutenants Rodriguez and Murphy, Sergeants Penaranda and Duran, and Detective Canales, moved to dismiss this case under Federal Rule of Civil Procedure 12(b)(6). Granting these motions, the district court found Dahlia's § 1983 claim barred because his speech was made pursuant to his official duties and thus was not constitutionally protected, and because placement on paid administrative leave is not an adverse employment action. The district court accordingly dismissed Dahlia's § 1983 claim with prejudice, and declined to exercise supplemental jurisdiction over Dahlia's state law claims.
We have jurisdiction under 28 U.S.C. § 1291 to review the district court's final judgment dismissing with prejudice Dahlia's claims against Lieutenants Rodriguez and Murphy, Sergeants Penaranda and Duran, and Detective Canales.
We review de novo the grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Madison v. Graham, 316 F.3d 867, 869 (9th Cir.2002). In so doing, we accept "all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005).
"It is well settled that the state may not abuse its position as employer to stifle `the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.'" Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). We make a five-step inquiry to resolve First Amendment retaliation claims:
"[T]he plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee." Eng, 552 F.3d at 1071 (citing Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)) (alteration in original). "[S]tatements are made in the speaker's capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform." Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 n. 2 (9th Cir.2008) (internal citations and quotation marks omitted).
The distinction drawn in our First Amendment doctrine between private and official speech is rooted in the Supreme Court's decision in Garcetti v. Ceballos. In Garcetti, a district attorney alleged unconstitutional retaliation for an internal memorandum he had written that recommended dismissal of a pending criminal prosecution because of purported police misconduct. 547 U.S. at 414, 126 S.Ct. 1951. The Supreme Court rejected his claim, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951.
In determining that the plaintiff in Garcetti wrote the memorandum at issue pursuant to his official duties, the Supreme Court explained:
Garcetti, 547 U.S. at 421-23, 126 S.Ct. 1951 (internal citations omitted) (footnotes added). Under Garcetti, the protection of the First Amendment is thus limited where the speech is part of the core tasks that the employee is "paid to perform," but not where the speech is merely related to the speaker's public employment. Id. at 421, 126 S.Ct. 1951 ("The memo concerned the subject matter of Ceballos' employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker's job.").
The parties in Garcetti did not dispute that the memorandum at issue was prepared pursuant to the plaintiff's official duties, thus the Supreme Court did not have occasion to conduct an inquiry into the scope of the plaintiff's professional duties. Id. at 424, 126 S.Ct. 1951. However, the Supreme Court issued guidance to lower courts, noting that the "proper inquiry is a practical one" because:
Id. at 424-25, 126 S.Ct. 1951; see also id. at 424, 126 S.Ct. 1951 ("We reject ... the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions.").
Three years after the Supreme Court's decision in Garcetti, a divided three-judge panel of our court decided Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009).
The majority opinion held that Huppert's cooperation with the FBI — which took place on his own time, was not part of his official job description, and was not at the behest of any official orders — was, nonetheless, also part of his official duties. In reaching that conclusion, the panel majority, interpreting "California's jurisprudence," held as a matter of law that California police officers are required, as part of their official duties, to disclose information regarding acts of corruption:
Id. at 707 (internal citation omitted). The panel majority reached its conclusion regarding "California's jurisprudence" by relying on language from a single California Court of Appeal decision from 1939, obviously decided long before the Supreme Court's decisions in Pickering and Garcetti. In that case, the Court of Appeal opined broadly:
Christal v. Police Comm'n of City & County of S.F., 33 Cal.App.2d 564, 567-68, 92 P.2d 416 (1939) (emphasis added) (citations omitted).
The Christal decision was barely apposite to the facts presented in Huppert, and is even less so here. In Christal, the Police Commission for the City and County of San Francisco dismissed several police officers, who were themselves under investigation by a grand jury on charges of corruption and felonious misconduct. The grand jury subpoenaed both the officers and their records; the officers refused to comply with the subpoenas, asserting their Fifth Amendment rights against self-incrimination. Id. at 566-67, 92 P.2d 416. As the California Court of Appeal stated, "the main question involved is whether appellants, while holding positions as peace officers, could exercise the constitutional privilege of refusing to testify before the grand jury under the circumstances and still insist upon retaining their positions as police officers." Id. at 567, 92 P.2d 416. The Court of Appeal's holding was that given the fact that the police officers were under investigation for public corruption, they could not both assert their right against self-incrimination and remain as police officers. The Court of Appeal explicitly limited its holding to this context: "We are concerned here only with the result of the exercise of such privilege, by those holding the positions of police officers, in an investigation by which it was sought to determine whether such officers had been guilty of criminal activities in connection with their duties as police officers." Id.
The passage lifted from the Christal decision by the Huppert majority directly follows this express limitation of the decision, and must be read in that context. The passage in no way applies to situations where a police officer, not charged with any corrupt or felonious activity but having information about misconduct by other
Nevertheless, Huppert plainly holds that, as a matter of California law, disclosure of police misconduct by fellow police officers contrary to the instructions of superiors is a core professional duty of California police officers, and such speech is thus not protected by the First Amendment. We have considered whether an employee's speech was pursuant to professional duty on three other occasions after Garcetti, but those cases do not control the outcome here because none involved an inquiry into the duties of a police officer. See Marable v. Nitchman, 511 F.3d 924 (9th Cir.2007) (ferry engineer); Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) (prison guard); Eng, 552 F.3d 1062 (deputy district attorney). We feel compelled, like the district court, to follow Huppert, despite our conclusion that it was wrongly decided and unsupported by the sole authority it relies upon. If Huppert, who independently cooperated with the FBI to expose and investigate corruption and memorialized that corruption against his superiors' orders, was acting "pursuant to his professional duties," then Dahlia, who cooperated with a Los Angeles Sheriff's Department investigation of police misconduct, must also have been acting pursuant to his professional duties.
We acknowledge that we are bound by Huppert, because a three-judge panel may not overrule a prior decision of our circuit unless it has been effectively undercut by subsequent higher authority. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003). Because Huppert was decided after Pickering and Garcetti, we cannot conclude that "the reasoning or theory of [Huppert] is clearly irreconcilable with the reasoning or theory of intervening higher authority." Id. at 893. It is clear, however, that we have significant reservations about the holding in Huppert, which appears to be incorrectly decided, conflicts with the Supreme Court's First Amendment public employee speech doctrine, and chills the speech of potential whistleblowers in a culture that is already protective of its own.
The Huppert holding, which determines the scope of a police officer's professional duties as a matter of California law in the First Amendment retaliation context, conflicts with the Supreme Court's instruction in Garcetti that we make a practical, factual inquiry into the job responsibilities of each public employee plaintiff. As the Supreme Court stated:
Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951 (emphasis added) (citations omitted).
The Huppert majority did exactly what the Supreme Court prohibited in Garcetti. It relied on a generic laundry list of police officer duties in an out-of-context California appellate court decision to determine, as a matter of law, that Huppert's speech fell within his job duties. Huppert, 574 F.3d at 707 (citing Christal, 33 Cal.App.2d
The conclusion, as a matter of law, that whistleblowing on fellow officers is part of a police officer's official duties not only conflicts with Garcetti, but also with our own post-Garcetti case law in the First Amendment retaliation context, which consistently holds that determining the scope of a plaintiff's professional duties requires a factual inquiry tailored to the plaintiff's individual circumstances. See, e.g., Eng, 552 F.3d at 1071 ("[T]he question of the scope and content of a plaintiff's job responsibilities is a question of fact"); Robinson v. York, 566 F.3d 817, 823-24 (9th Cir.2009) (holding that the "scope of [Plaintiff's] duties is a question of fact"); Posey, 546 F.3d at 1129 (holding that the "scope and content of a plaintiff's job responsibilities can and should be found by a trier of fact"); Freitag, 468 F.3d at 546(holding that determining the scope of professional duties requires "factual determinations").
We are mindful of the Supreme Court's caution against "the vexing nature of the distinction between questions of fact and questions of law," Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (citations omitted), and acknowledge that the "ultimate constitutional significance of the facts as found is a question of law." Eng 552 F.3d at 1071 (citing Posey, 546 F.3d at 1129). However, our case law is unequivocal that "the question of the scope and content of a plaintiff's job responsibilities is a question of fact." Eng 552 F.3d at 1071; see also Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1071 (9th Cir.2012) ("The scope and content of a plaintiff's job responsibilities is a question of fact...."); Posey, 546 F.3d at 1129. Indeed, in Posey, we expressly considered and rejected the view that whether the speech in question was spoken as a public employee or a private citizen is solely a question of law. 546 F.3d at 1129 ("Upon consideration, we agree with the Third, Seventh, and Eighth Circuits and hold that the determination ... presents a mixed question of fact and law.").
The generic description of a police officer's professional duties in Christal does not reflect an individualized factual assessment of either Huppert or Dahlia's responsibilities,
Moreover, as we noted earlier, the Huppert majority's reliance on the generic language from Christal to determine the scope of a police officer's official duties is misplaced. Christal is a nearly seventy-three year old state court case, written decades before Pickering, Garcetti, or any other applicable Supreme Court precedent. In determining the scope of an employee's official duties, we are bound by the approach taken by the Supreme Court in these more recent cases. Further, as noted, Christal did not address the factual context in either Huppert or Dahlia's case where an officer chose to speak out, as opposed to refusing to speak, to reveal alleged corruption to third parties.
Even if we were to accept the generic list of police officer duties in Christal as an accurate portrayal of California law, neither Huppert nor Dahlia violated any enumerated duty. Indeed, Christal states that police officers have a "duty to disclose... facts [concerning misconduct] to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury." Christal, 33 Cal.App.2d at 567-68, 92 P.2d 416. In both Huppert and the case before us, the speech at issue was not a disclosure to superiors, nor was it in front of a "duly constituted court or grand jury," but rather was made to external, independent investigators (the FBI and Los Angeles Sheriff's Department, respectively).
The upshot of Huppert is a rule, binding only in our Circuit, that the act of whistleblowing is itself a professional duty of police officers, thus stripping such speech of the First Amendment's protection. Where we draw the line between professional duty and private speech has significant implications for potential whistleblowers. Indeed, as the Supreme Court has noted:
City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (internal citation omitted); see also See v. City of Elyria, 502 F.3d 484, 493 (6th Cir.2007) ("Statements exposing possible corruption in a police department are exactly the type of statements that demand strong First Amendment protections."). Huppert's treatment of the reporting of police misconduct and corruption as a routine professional duty belies the personal and professional hazards of such acts. If reporting police abuse and misconduct during the course of an internal investigation, or even a federal or third-party investigation, is considered a professional duty, and is thus unprotected speech, as a matter of law, it is inevitable that police officers will be even less willing to report misconduct than they are now, particularly regarding their superiors. The reasoning in Huppert that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct
The district court dismissed Dahlia's suit on the alternative ground that placement on administrative leave is not an adverse employment action. We disagree. We conclude that under some circumstances, placement on administrative leave can constitute an adverse employment action.
"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." Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.2003). The proper inquiry is whether the action is "reasonably likely to deter employees from engaging in protected activity." Id. at 976; see also id. ("We hold that if the plaintiffs in this case can establish that the actions taken by the defendants were `reasonably likely to deter [them] from engaging in protected activity [under the First Amendment],' they will have established a valid claim under § 1983.") (internal quotations and citation omitted) (alterations in original).
We have never before decided whether placement on administrative leave constitutes an adverse employment action.
These allegations, if proven, however, may very well constitute an adverse employment action. Dahlia's allegations appear to satisfy the Coszalter standard, as the loss of pay, opportunities for investigative experience, inability to take a promotional exam, and the general stigma resulting from placement on administrative leave appear "reasonably likely to deter employees from engaging in protected activity." Coszalter, 320 F.3d at 976. Review of the Title VII case law that gave rise to the Coszalter standard also suggests that even administrative leave with pay constitutes an adverse employment action. After all, temporarily placing an employee on administrative leave with pay pending a discipline determination is clearly "a tangible change in working conditions that produces a material employment disadvantage." Spears v. Missouri Dep't of Corr. and Human Res., 210 F.3d 850, 853 (8th Cir.2000). It also results in "a less distinguished title, a material loss of benefits, [and] significantly diminished material responsibilities." Hilt-Dyson v. City of Chi., 282 F.3d 456, 465-66 (7th Cir.2002). And finally, it constitutes a "materially adverse change in the terms and conditions of employment." Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.2006).
Although we believe that Huppert was wrongly decided, we are bound to follow it. Miller, 335 F.3d at 899. We therefore affirm the district court's grant of defendants' motions to dismiss Dahlia's complaint.