In Hagen v. City of Eugene (9th Cir. 12-35492 12/3/13), the Court of Appeals held when an employee makes statements within the chain of command, regarding an issue of employment, and has a duty to make those statements, they do not first amendment protections.
Officer Hagen was a K-9 Officer who worked on the SWAT team. Over ten years, the SWAT team had 4 accidental discharges, two of which injured a fellow officer. Ofc. Hagen brought up his concerns about safety several times to his supervisor, Sgt. Eichorn, but no one told him of any proposed remedies. When Ofc. Hagen continued to press the issue, Sgt. Eichorn became irritated and annoyed. Then, the Department suspended the K-9 team two months and Ofc. Hagen was removed from the K-9 team permanently in retaliation.
Ofc. Hagen filed lawsuit, saying the Department retaliated against him for an exercise of his First Amendment right to free speech. But, the Ninth Circuit said when Hagen reported the Department safety concerns, he was acting as an employee, not a private citizen, and therefore had no First Amendment protections. The court based its decision on the Department being a highly hierarchical employment setting, and said his statements were within the chain of command concerning his employment and safety. Furthermore, Hagen was required to report all safety concerns under Human Resources Policies and Procedures. Therefore, Hagen’s speech was made within the employment setting, pursuant to a duty to do so, and was not protected by the first amendment.
This case was just about First Amendment protection. Employees have additional protections when they concertedly complain or engage with their union about workplace issues.