A police officer's transfer was not retaliatory for his reports about safety concerns, according to a recent Ninth Circuit decision reversing a district court decision affirming a jury verdict in the plaintiff's favor.

The police officer had been working with a K-9 unit that deployed with a SWAT team, and had complained about accidental weapon discharge issues by SWAT team members. His supervisor subsequently informed him that he would be transferred because he had been the spokesperson for most of the complaints and was engaged in passive insubordination. When the transfer decision was rescinded by senior management, the supervisor began to write up the plaintiff's performance and ultimately put the employee on a Performance Management Plan. After learning of communication issues on the K-9 team, another manager investigated and determined that three individuals on the team, including the plaintiff, had stopped communicating with their supervisor about safety issues. Two employees were allowed to remain on the team after they agreed to improve their communication with their supervisor. The plaintiff was not allowed to remain on the team, however, and was transferred to a patrol team instead. He filed suit claiming that the transfer was in retaliation for the complaints he had raised. The claim went to trial and the jury concluded that the plaintiff's transfer constituted unlawful retaliation.

After trial, the employer filed a motion for judgment as a matter of law seeking to reverse the jury's finding, and the trial court denied the motion. The employer then appealed the decision to the Ninth Circuit. In concluding that the district court improperly denied the employer's motion, the Ninth Circuit reasoned that the employee's retaliation claim was improper where he did not engage in protected speech under the First Amendment. While the First Amendment generally shields public employees from employment retaliation for engaging in protected speech activities, the employee's disclosure of safety concerns to his supervisor was done in the course of duty as opposed to in the plaintiff's role as a private citizen. Hagen v. City of Eugene