Greisen v. Hanken (252 F. Supp. 3d 1042, 2017)

OPINION AND ORDER

Michael H. Simon, United States District Judge

Plaintiff, Doug Greisen (“Greisen”), is the former Chief of Police of Scappoose, Oregon. Greisen brought this lawsuit against Defendant Jon Hanken (“Hank-en”), the former City Manager for the City of Scappoose, and others. Before trial, the Court dismissed all defendants other than Hanken. From July 19, 2016 through July 21, 2016, this action was tried before a jury on Greisen’s claim that Hanken violated 42 U.S.C. § 1983 by retaliating against Greisen based on Greisen’s exercise of speech protected under the First Amendment. The jury found in favor of Greisen and awarded him $1,117,488 in economic damages and $3,000,000 in non-economic damages. Hanken timely filed post-trial motions seeking, in the alternative, judgment as a matter of law, a new trial, or remitti-tur. EOF 120. For the reasons that follow, Hanken’s post-trial motions are denied.

STANDARDS

A. Renewed Motion for Judgment as a Matter of Law

Under Rule 50(b) of the Federal Rules of Civil Procedure, a court may grant a renewed motion for judgment as a matter of law if “the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quotation marks omitted); see also Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (explaining that judgment as a matter of law must be granted if it is clear that “the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party”). Because a motion under Rule 50(b) is a renewed motion, a party may not “raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion.” Go Daddy Software, 581 F.3d at 961 (quotation marks omitted).

In evaluating a motion for judgment as a matter of law, the Court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Experience Hendrix, LLC v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014), The Court may not make credibility determinations, weigh the evidence, or “substitute its view of the evidence for that of the jury.” Krechman v. Cty. of Riverside, 723 F.3d 1104, 1110 (9th Cir. 2013) (quotation marks omitted). A jury’s verdict must be upheld if it is supported by substantial evidence. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence.” Weaving, 763 F.3d at 1111 (quotation marks omitted).

B. New Trial

Under Rule 59(a) of the Federal Rules of Civil Procedure, a court “may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation marks omitted); see also Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir. 2007). Unlike a determination under Rule 50, the Court is not required to view the evidence in the light most favorable to the non-moving party when considering a motion for new trial under Rule 59(a). Experience Hendrix, 762 F.3d at 842. Instead, the Court “can weigh the evidence and assess the credibility of the witnesses.” Id. (citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam)).

As explained by the Ninth Circuit, after weighing the evidence, the trial judge faces a difficult task:

On the one hand, the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter. Probably all that the judge can do is to balance these conflicting principles in the light of the facts of the particular case. If, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.

Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987). Thus, a district judge. should not award a new trial unless the court has a definite and firm conviction that the jury has made a mistake. Id. at 1372. “While the trial court may weigh the evidence and credibility of the witnesses, the court is not justified in granting a new trial merely because it might have come to a-different result from that reached by the jury.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (quotation marks and citation omitted).

C. Remittitur

Remittitur is available to reduce an excessive verdict. Pershing Park Villas Homeowners Ass’n. v. United Pac. Ins. Co., 219 F.3d 895, 905 (9th Cir. 2000) (citation omitted). “Where there is no evidence that passion and prejudice affected the liability finding, remittitur is an appropriate method of reducing an excessive verdict.” Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 (9th Cir. 1987), amended on other grounds, 817 F.2d 609 (9th Cir. 1997). In considering a motion for remittitur, the trial court must view the evidence concerning damages in- a light most favorable to the prevailing party. Id. If the trial court concludes that an award of damages is excessive, ■ it may either grant the defendant’s motion for a new trial or deny the motion conditioned upon the prevailing party’s acceptance of a re-mittitur. Silver Sage Partners v. City of Desert Hot Springs, 251 F.3d 814, 818 (9th Cir. 2001); see also Seymour, 809 F.2d at 1387.

The Ninth Circuit has explained, however, that a district court “must uphold the jury’s finding unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.” Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996); see also Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988) (“An otherwise supportable verdict must be affirmed unless it is ‘grossly excessive’ or ‘monstrous’ or ‘shocking to the conscience.’ ”). Thus, when granting a motion for remittitur, the trial court does not substitute its judgment for that of the jury, but instead reduces the judgment to the “maximum amount sustainable by the proof.” Oracle Corp. v. SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014).

BACKGROUND

In 2001, Greisen became the Chief of Police in Scappoose, Oregon. In - 2004, Hanken became the City Manager of Scap-poose. The City Manager has the authority to hire, fire, and supervise the Chief of Police. The City Manager also is responsible for the City’s budget, among other things. The Scappoose City Council, as a body, has the authority to hire and fire the City Manager. The City Council' has no direct authority over the Chief of Police.

A. Greisen’s Statements About Hank-en’s Management of the City Budget

By 2012, Greisen had become concerned about Hanken’s management of the City’s overall budget. Greisen voiced his concern to several people outside his chain of command, including City Councilor Judi Ing-ham. In addition to discussing his specific concerns about the Police Department’s budget, Greisen discussed with Councilor Ingham matters concerning Hanken’s management of the overall City budget, including the budgets of other departments. Greisen also discussed his concerns regarding several other departmental budgets with City Councilor Donna Gedlich.

On May 14, 2012, the Scappoose City Council held a budget meeting. Two councilors expressed a desire to hire more police officers than Hanken’s proposed City budget would have allowed. At that meeting, Greisen did not voice support for Hanken’s overall budget. The following day, May 15, 2002, Hanken said to Greisen, “I’m mad at you. You stay on your side of City Hall. I don’t want to see you over here.” Trial Transcript 72. After Hanken told Greisen to stay on his side of City Hall, Greisen began to ask himself, “What’s being hidden?” Id. at 73. Greisen then spoke with City Finance Administrator Jill Herr and with other departmental heads, including the heads of the Water Department, the Sewer Department, and the Public Works Department. From these conversations, Greisen learned that, shortly before going into the budgeting process, Hanken had been holding back the City from paying invoices received from various City vendors for as much as three or four months. Greisen also learned that vendors had been asking when they would be paid. Eventually, the vendors would be paid in the following fiscal year. Greisen learned that this practice was happening not only with the Police Department’s budget but in other department budgets throughout the City.

Greisen also raised questions about the city’s audit. In August 2012, Hanken told Greisen that Greisen had better “quit listening to Councilor Ingham about her— the budget.” Id. at 76. Hanken added: “Ms. Ingham will be the one that [sic] will ruin your career here in the City of Scap-poose.” Id.

In the spring of 2013, Greisen continued to be concerned about the fact that vendor invoices were still being held back by more than 30 days throughout the City’s departments. Greisen asked City Finance Administrator Herr about that practice. Herr confirmed that vendor invoices were still being held back for payment in other City department besides the Police Department, explaining that she was just doing what she had been told to do by Hanken.

B. Hanken’s Actions Against Greisen in 2013

1. The First Investigation: Allegations Relating to the PIT Maneuver

In February 2013, Greisen learned that one of his officers was attempting a traffic stop and arrest of a hit-and-run suspect. The officer requested backup. Greisen was less than a mile away, so he left a city council meeting to assist. It was common for Greisen to assist his officers when they needed help. After observing the suspect, Greisen directed another officer to perform a PIT maneuver, to stop the suspect’s vehicle. (“PIT” is an acronym for “precision -immobilization technique.” A PIT maneuver is a law enforcement pursuit tactic by which a pursuing car causes a pursued car to turn sideways, resulting in the pursued driver losing control and being forced to stop.) The suspect was arrested and later pleaded guilty to reckless driving and recklessly endangering another.

On July 17, 2013, Hanken sent Greisen a letter notifying Greisen that Hanken had directed an outside agency to investigate Greisen’s February 3, 2013 authorization of the PIT maneuver. In his letter, Hank-en also told Greisen, “You are hereby notified and ordered not to discuss this matter ■with anyone except your spouse, significant other, or your attorney.” Trial Ex. 33. As a result of this investigation, on August 23, 2013, Hanken imposed a disciplinary sanction on Greisen of two weeks suspension without pay. Hanken informed Greisen of that suspension by letter, adding: “As I draft this letter, I cannot help but wonder if you would be able to maintain your position if this report was known by or reported to the news media.” Trial Ex. 35. Until this time, this was the only disciplinary sanction that Greisen had received in 26 years in law enforcement.

On August 26, 2013, Greisen appealed his disciplinary sanction to the City’s Personnel Review Committee. Trial Ex. 37. On October 14, 2013, the Personnel Review Committee concluded that “the degree of discipline issued to Police Chief Doug Greisen ... is entirely out of proportion based on the totality of the circumstances on the night of Feb. 4th.” Trial Ex. 49. The Personnel Review Committee further recommended that “the City Manager retract, and the Scappoose City Council oversee the retraction, all discipline issued to Chief Greisen.” Id.

2. The Second Investigation: Allegations of a Hostile Work Environment

On August 1, 2013, Hanken sent Greisen a letter notifying him that the City will be conducting a second investigation into Greisen’s conduct. This investigation related to the management of the Scappoose Police Department. According to Hanken, information had come forward “that raises the issue of whether a hostile work environment exists within the City’s Police Department.” Trial Ex. 34. Again, Hanken wrote to Greisen, directing: ‘You are hereby notified and ordered not to discuss this matter with anyone except your spouse or your attorney.” Id. On September 6, 2013, less than two weeks after Greisen filed his appeal on August 26, 2013, relating to his disciplinary sanction concerning the February 2013 PIT maneuver, Hanken placed Greisen on paid administrative leave pending the outcome of the investigation relating to the allegation of a hostile work environment. Hanken also informed the local newspaper that there are additional “potential issues” that are prompting a second investigation into Greisen. Trial Ex. 39. This was contrary to City policy and “wasn’t appropriate.” Trial Transcript 467, 474-76.

Retired Oregon State Police Officer Aaron Olson investigated Police Chief Greisen for the City. After interviewing witnesses and reviewing documents, Olson concluded that the allegation that Greisen harassed employees or maintained a hostile work environment was not supported by the evidence. Id. at 217.

3. The Third Investigation: Allegations of Unauthorized Bank Accounts

On September 30, 2013, Hanken sent Greisen a letter notifying him that the City will be conducting a third investigation into Greisen’s conduct. This investigation related to allegations that Greisen may have violated the City’s financial policies by using unauthorized bank accounts. Trial Ex. 47. Again, Hanken directed Greisen: ‘You are hereby notified and ordered not to discuss this matter with anyone except your spouse, significant other, or your attorney.” Id.

This investigation related to charitable fundraising activities that the Scappoose Police Department had been conducting since the mid-1980s, including under three police chiefs who came before Greisen. Trial Transcript 101. As Greisen explained at trial, when people contributed small amounts of money to the police for charitable programs run by the police, the money was deposited into accounts1 maintained by the Police Department at Chase' Barik. Eventually, these accounts had more than $2,000,-and Chase began to charge a $15 per month service fee. After discussing this with then-Lieutenant Norman Miller of the Scappoose Police Department (who later succeeded Greisen as chief), Greisen closed the Chase accounts and kept the charitable, money in cash in-a bag maintained in the chiefs office. Id.

When people would donate money, they would be given a receipt. According1 td Greisen, everyone in the City “knew about this account,” and no one ever told Greisen that it was unauthorized. Id. at 102-03. Miller knew about the charitable contributions, the fact that the bank accounts that had been maintained for that money for a long time were closed in September 2012, and that the cash, then totaling approximately $2,400, was afterwards kept in the police chiefs office. In fact, in 2011, Miller had been one of the signers on the bank accounts. Id, at 375-77, 388-89. After Hanken appointed Miller as interim Police Chief while Greisen was on administrative leave, Miller had another Police Department employee take several photographs of the money spread out on a desk. Id. at 391. Copies of those photographs were given to Hanken. Id.

Hanken then provided comments and a photograph of the cash spread to the newspaper, in violation of City policy.' Id. at 467, 474-76. Based on information provided by Hanken, the local newspaper ran a story with the headline, “Greisen’s use of unauthorized account probed” and depicted a spread of several hundred dollar bills. Trial Exhibit 51; Trial Transcript 480-81. When Miller saw the photograph of the money spread in the local newspaper his reaction was to wonder, “How did it get there?” Id. at 391. Miller had not authorized the photograph- to be sent to the newspaper because “[t]his was an internal investigation that needed to be dealt with internally, not outside.” Id. at 392. Miller knew all about the charitable source of the cash and its history. At trial, Miller confirmed that when “you lay it out on á table like this and you take a picture of it,” it could be “perceived" as a “drug bust photo;”. Id. . .

At trial, Hanken admitted during cross examination that he provided a copy of the photograph to the news media and made the statements that were attributed to him in the newspaper article. -Trial Transcript 481; Trial Ex, 51. He admitted that he told the news media “that a bank, .bag was discovered in the chiefs desk and that its contents raised questions about whether, the chief was-maintaining an unauthorized account.” Trial Transcript 481. But Hank-en also admitted during cross examination that at the time he knew that this was not money that had just -been found or discovered in Gréisen’s office. Id. at 481-82. Indeed, Hanken admitted that he had known for some time about the Police Department’s charitable fundraising activities (indeed, Hanken had contributed to them), that the money had not being going through the City’s budgetary process, and that the practice of maintaining this money outside of the City’s budgetary process had in fact previously been “authorized.” Id. at 482-89. Hanken also admitted that he knowingly made false statements to the news. media, including stating that the money in Greisen’s, desk was “unauthorized.” Id.

C. Hanken Resigns

On October .14, ;2013, the City’s Personnel Review Committee recommended, retracting all discipline/issued against Greisen relating to- the PIT maneuver. Hanken “viewed this as being the end of [Hank-en’s] career in Scappoose.” Trial Transcript 456, Less than 30 days later, on November 8, 2013, Hanken resigned his position as City Manager.

As described previously, however, shortly before Hanken resigned,' he went to the local news media and told them about finding cash in Greisen’s desk drawer. Hanken also provided the news media with a photograph of-the discovered cash, which the news media published. Trial Transcript 491; Trial Ex. 51. As Hanken further admitted at trial

Q. Isn’t it true that you called up the media in the middle of the investigation to give them this information, this false information that you testified is incorrect, because you learned city councilors were sending emails to each other and the one that you had received had basically said they wanted to stop the investigations of Mr. Greisen?

A. Correct.

Q. And you didn’t, want that to happen, did you?

A. No, I didn’t.

* * *

Q. Before you resigned, you went to the press and gave these, statements about a bag of money found in the desk drawer with no accounting whatsoever when you know, you’ve testified, that those were not true statements; correct?

A. I believed the statements were true at the-time.

Q. Well, I believe your testimony was earlier that you knew better.

A. Right.

Q. And you gave them this photograph; .Exhibit 51? This photograph?

A. Yes, I did..

Q. Have you seen photographs like that before?

A. Yes, I have.

Q. Where?

A. In the news, on TV, in newspapers.

Q. In instances where money is seized or stolen; correct?

A. Some, yes.

Q. Or drug busts, yes?

A. Yes. I’ve also seen where the money is in piles related to an economic development effort.

Trial Transcript 490-92.

Also, regarding the second investigation, Hanken admitted the following:

Q. And you had never observed anything about Mr. Greisen that led you to believe there was a hostile work environment?

A. Not with Carpenter.

Q. Not with anyone?

A. No. There was a incident a few years back with an Officer Scott Hanley who came to complain'about an incident but came back the next day and said, “No, I’m not going to file a complaint.”

Q. You testified in your deposition that you had never observed anything that seemed to be a hostile work environment with Mr. Greisen. Did you make that statement in your deposition?

A. Yes, I did.

Q. Okay. And you had no knowledge of any retaliation by Mr. Greisen?

A. None.

Trial Transcript 494-95.

D. Greisen Is Later Fired by Interim City Manager Otterman

After Hanken resigned, Mayor Scott Burge briefly served as interim City Manager. In January 2014, the City Council appointed Donald Otterman as the new interim City Manager, succeeding Mayor Burge. Otterman served for four months, In May 2014, just before he resigned, Ot-terman made the decision to terminate Greisen’s employment pursuant to a “no-cause” termination provision in Greisen’s contract. Otterman explained at trial that he had “reviewed the three reports that had been done — the report regarding the pursuit, the financial report, and the hostile work environment report — and after I reviewed those reports, I felt that it was the best for the City if he [Greisen] was to leave.” Trial Transcript 291. Otterman also testified that he was aware of the news articles about Greisen and the controversy related to the Chief of Police in Scappoose. Otterman said that it is “difficult for a city to be in turmoil for any extended period of time.” Id. at 303. According to Otterman, “There were several articles about it and about what was going on in the City. The city manager had been fired. The police chief was on administrative leave. And that causes commotion or turmoil in the organization and needs to be resolved as soon as possible.” Id. at 303-304. Otterman “just felt that the best situation for the City was to exercise the, quote, ‘no-cause/ unquote, clause.” Id. at 313.

E. Greisen’s Economic and Non-Economic Damages

Greisen received Otterman’s letter dated April 8, 2014, informing Greisen that his employment with the City is terminated effective May 8, 2014. Trial Exhibit 59. Greisen and his wife then spent about 25 to 30 hours preparing his resume. Trial Transcript 108; Trial Exhibit 60. Over the next two years, Greisen applied for more than 200 different jobs, from Alaska to Arizona to New York. Trial Transcript 108-09; Trial Exhibit 61. He received some temporary, part-time work, which he described at trial. Trial Transcript 110.

At trial, Greisen presented expert economic damage testimony from a certified public accountant, Ronald Greisen, Plaintiffs brother. Id. at 253-54. Plaintiffs expert witness concluded that Greisen’s economic damages through trial, less the part-time wages earned by Greisen in mitigation, totaled $300,194. Id. at 256. Plaintiffs expert witness also testified that Greisen’s future economic losses over the next seven years, discounted to present value, totaled $817,294. Id. at 259. The sum of these two figures is $1,117,488, which is the precise amount awarded by the jury as economic damages. ECF'107 at 2. At trial, Greisen also described his emotional distress caused by Hanken’s conduct. Trial Transcript at 113. Greisen’s wife gave further and more detailed testimony about her husband’s emotional distress, based on her observations of him. Id. at 163-80. The jury awarded Greisen $3,000,000 in non-economic damages. ECF 107 at 2.

DISCUSSION

A. Renewed Motion for Judgment as a Matter of Law

The only claim the Court allowed to proceed to trial was Greisen’s claim against Hanken alleging that Hanken violated 42 U.S.C. § 1983. “Traditionally, the requirements for relief under [§ ] 1983 have been articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Greisen alleges that Hanken violated Greisen’s rights under the First Amendment by causing adverse employment actions to be taken against Greisen, while Greisen was a public employee, in retaliation for Greisen’s exercise of speech protected under the First Amendment. Colloquially, this is referred to as a claim of “First Amendment retaliation against a public employee.”

During the time when Hanken took the actions that Greisen alleges, Hanken was the City Manager of the City of Scap-poose. “[M]unicipalities and other local government units ... [are] among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In addition, municipal government officials also are persons for purposes of § 1988. Id. at n.55. Hanken does not dispute that he was a person acting under color of state law.

Regarding the issue of whether Hanken violated Greisen’s constitutional right to free speech, “[t]he First Amendment shields a public employee if he speaks as a citizen on a matter of public concern. However, 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.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (quotation marks and citations omitted). The Ninth Circuit follows a sequential five-step inquiry to determine whether a public employer, including a municipal government officer, impermissibly retaliated against a public employee for engaging in protected speech.

First, the plaintiff bears the burden of showing: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; and (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action. Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

Id. (quotation marks and citations omitted); see also Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir. 2002). Hanken did not assert either the “adequate justification” or the “same action” defense. Thus, only the first three steps are relevant in this case to Defendant’s renewed motion for judgment as a matter of law.

Hanken raises four arguments in support of his renewed motion. First, Hanken argues that Greisen did not present sufficient evidence of “protected speech” to support his claim of First Amendment retaliation, either because Greisen did not establish that his speech was related to an issue of public concern or because Greisen spoke not as a private citizen but only in his capacity as a public employee under his official duties. These points concern the first two steps discussed in Ellins. Second, Hanken argues that Greisen did not establish that his allegedly protected speech was a substantial or motivating factor in any adverse employment action taken by Hanken against Greisen. This concerns the third step, also known as “retaliatory motive.” Third, Hanken argues that Greisen did not prove that Hanken caused the termination of Greisen’s public employment,' which occurred after Hanken had resigned from his official position. Finally, Hanken argues that he is protected under the “qualified immunity” doctrine. Each argument is addressed in turn.

1. Protected speech

Hanken argues that Greisen did not establish at trial either that his speech was related to an issue of public concern or that Greisen spoke as a private citizen, in contrast to speaking as a public employee as part of his official duties. If Hanken is correct on either point, then Greisen would not have shown that he engaged in speech protected under the First Amendment, which is required for a claim of First Amendment retaliation against a public employee.

a. Matters of public concern

“Speech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community,” Ellins, 710 F.3d at 1057 (quotation marks and citations omitted). “Speech that deals with individual personnel disputes and grievances that would be 'of no relevance to the public’s evaluation of the performance of governmental agencies generally is not of public concern.” Id. (quotation marks and citations omitted). “‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.’ ” Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

The trial record shows that, among other things, Greisen made statements critical of Hanken’s general approach to city budgeting and specifically to Hanken’s practice of withholding payments on vendor .invoices until the next fiscal year, including invoices sent to departments other than the Police Departrnent. These are not statements about individual personnel disputes or grievances that would be of no relevance to the public’s evaluation of the performance of governmental agencies and officials generally. Instead, these are statements of concern about potential systemic financial abuse on a citywide basis. Thus, they are matters of public concern.

b. Speaking as a private citizen, rather than as a public employee

A plaintiff speaks as a public employee when he or she makes statements pursuant to his or her official duties. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In contrast, a plaintiff speaks as a private 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.’ ” Ellins, 710 F.3d at 1058 (quoting Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009)). The scope and content of a plaintiffs job responsibilities is a question of fact. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). The “ultimate constitutional significance of the facts as found” is a question of law. Id. Moreover, Garcetti requires the undertaking of.a “practical inquiry.” Brandon v. Maricopa Cty., 849 F.3d 837, 845 (9th Cir. 2017).

In Dahlia v. Rodriguez, the Ninth Circuit described three factors that are relevant to a determination of the scope of a plaintiffs job duties. 735 F.3d 1060, 1074-76 (9th Cir. 2013). First, “particularly in a highly hierarchical employment setting such as law enforcement,” an appropriate factor is “whether or not the employee confined his communications to his chain of command,” Id. at 1074. “When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Id. For example, in Freitag v. Ayers, the Ninth Circuit held that a correctional officer’s communications with a state senator and the inspector general about inmate sexual misconduct were nqt made pursuant to her official duties and thus constituted speech protected by the First Amendment. 468 F.3d 528, 545-46 (9th Cir. 2006).

Second,, the subject matter of the communication may be considered. Dahlia, 735 F.3d at 1074-75. “When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.” Id. at 1075. For exam-pie, in Freitag, the correctional officer’s internal reports of inmate sexual misconduct were not constitutionally protected speech. 468 F.3d at 546. Similarly, in Gar-ceta, the Supreme Court held that a deputy district attorney’s memorandum regarding the merits of a case before him w;as not protected speech because he routinely prepared such memoranda as part of his job duties. 547 U.S. at 421, 126 S.Ct. 1951. “By contrast, if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee.” Dahlia, 735 F.3d at 1075.

Third, “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.” Id. at 1075. Under this scenario, the speech likely is not being made pursuant to the employee’s official duties.

Greisen concedes that the discussions he had regarding the Police Department’s budget — including the conversations Greisen had with Hanken regarding Ingham’s request to hire additional police officers and the conversations Greisen had with the City’s Finance Administrator regarding unpaid and delayed Police‘Department vendor invoices — all were made pursuant to Greisen’s job duties as Chief-of Police. Thus, these statements are not constitutionally protected and are not part of Greisen’s claim. They only provide background or context for the issues at trial, and the jury was so instructed.

Greisen, however, also presented evidence at trial that he made statements critical of Hanken’s general approach to city budgeting, not limited to the Police Department, and specifically to Hanken’s practice of withholding payments on vendor invoices until the next'fiscal year, including invoices sent to departments other than- the Police Department. For these statements, the Court applies the three Dahlia factors.

First, the Court considers whether the statements were made to individuals within Greisen’s chain of command. The trial record indicates that Greisen raised concerns about Hanken’s handling of the city budget with City Finance Administrator Herr and with several City Councilors, including Councilors Ingham and Gedlich. As City Finance Administrator, Herr was not within Greisen’s chain of command. In addition, although City Councilors are Hanken’s supervisors, and thus within Hanken’s. chain of command, the City Councilors are not within, Greisen’s direct chain of command. The Scappoose City Council, as a body, has the .authority to hire and fire the 'City Manager, but it has no direct authority over the Chief of Police.

Greisen testified that he spoke to City Councilors Ingham and Gedlich in part as a concerned private citizen. Hanken presented no evidence that it was among Greisen’s official duties as Police Chief to expose city-wide budgetary concerns to the City Council. Thus, the first Dahlia factor suggests that Greisen was speaking as a private citizen when he raised concerns about Hanken’s budgetary and invoice payment practices with Herr and City Councilors Ingham and Gedlich. See Freitag, 468 F.3d at 545 (stating that the right to complain to an elected public official “is guaranteed to any citizen in a democratic society regardless of his status as a public employee”).

Regarding the second Dahlia factor, Greisen’s complaints about Hanken’s handling of the budget for departments other than the Police Department and Hanken’s practice of holding back vendor invoices for payment until the next fiscal year can be viewed as an expression of “broad concerns about .. systemic abuse” made by a private citizen. Dahlia, 735 F.3d at 1074. Although Greisen’s concerns regarding Hanken’s practice of holding back and delaying payment on invoices began with Greisen’s questions about unpaid vendor invoices related to Police Department acquisitions, Greisen’s critical statements later extended to Hanken’s more widespread practice of holding back and delaying payment on vendor invoices until the new fiscal year for other City departments as well. This practice, according to Greisen, was a violation of sound accounting principles. Greisen questioned whether Hanken had engaged in serious misconduct in the management of the City’s finances. This fact also distinguishes this case from the Ninth Circuit’s recent decision in Brandon, 849 F.3d at 845 (“Indeed, if Brandon alleged any sort of misconduct this would be a different case.”).

Regarding the third Dahlia factor, the record, viewed most favorably to Greisen, shows that Greisen’s statements were made in direct contravention to Hanken’s orders because Hanken repeatedly told Greisen not to question Hanken’s budget practices. This includes Hanken’s practices relating to other departments in the City besides the Police Department.

Thus, all three Dahlia factors support the jury’s conclusion that Greisen acted outside of the scope of his official duties when he complained about Hanken’s handling of the budget for departments other than the Police Department and Hanken’s practice of holding back or delaying payment of vendor invoices until after the new fiscal year. Drawing all reasonable inferences in favor of Greisen, who prevailed at trial, there was substantial evidence supporting the jury’s finding that Greisen’s statements at issue were made as a private citizen.

2. Retaliatory motive: substantial or motivating factor

Hanken argues that Greisen failed to present evidence at trial that Hanken was aware of Greisen’s protected speech. Hanken further argues that Greisen failed to present evidence at trial required to show retaliatory motive.

In cases alleging First Amendment retaliation, the Ninth Circuit has explained that the plaintiff must produce evidence that the defendant knew of the plaintiff’s protected speech. “In order to retaliate against an employee for his speech, an employer must be aware of that speech.” Allen, 283 F.3d at 1076. In addition, the plaintiff must produce evidence that the plaintiffs constitutionally protected conduct was a motivating factor in the adverse actions taken against him. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). In other words, there must be evidence of a defendant’s retaliatory motive.

A plaintiff may prove retaliatory motive with either direct or circumstantial evidence. When only circumstantial evidence is relied upon to prove retaliatory motive, however, the plaintiff must present “at least one of three general types of circumstantial evidence of .such motive.” Allen, 283 F.3d at 1077. According to the Ninth Circuit:

The three types of circumstantial evidence are: (1) proximity in time between the protected speech and the alleged retaliation; (2) the employer’s expressed opposition to the speech; and (3) other evidence that the reasons proffered by the employer for the adverse employment action were false and pretextual.

Id. (citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 2001)). The Court refers to these three types of circumstantial evidence as the “Keyser plus factors.”

Before directly addressing Hanken’s argument, however, the Court notes that termination of employment is not the only type of adverse employment action that can be actionable. Greisen argues that Hanken’s initiation of three meritless investigations are each an adverse employment action. Greisen adds that imposing a suspension without pay also is an adverse employment action. The Court agrees with Greisen. As the Ninth Circuit explained in Ellins,

In addressing a First Amendment retaliation claim, we also examine whether the actions taken by the defendants were reasonably likely to deter [the public employee] from engaging in protected activity under the First Amendment. The government’s act of retaliation need not be severe and it need not be of a certain kind.

Ellins, 710 F.3d at 1061 (quotation marks and citations omitted). Being subjected to one or more meritless investigations is the sort of employment action that is reasonably likely to deter a public employee from engaging in activity protected under the First Amendment.

At trial, Greisen presented evidence of the following facts. On May 15, 2002, Hanken said to Greisen, “I’m mad at you. You stay on your side of City Hall. I don’t want to see you over here.” Greisen, however, did not stop making his inquiries and statements. In August 2012, Hanken told Greisen that Greisen had better “quit listening to Councilor Ingham about the budget.” Hanken added: “Ms. Ingham will be the one that [sic] will ruin your career here in the City of Scappoose.”

In the spring of 2013, after Greisen expressly asked City Finance Administrator Herr about the City’s practice of holding back payment of vendor invoices until the next fiscal year, Herr responded that she was just doing what she had been told to do by Hanken. Then, within a matter of months after Greisen spoke with Herr, Hanken took his first adverse employment action against Greisen. On July 17, 2013, Hanken sent Greisen a letter notifying Greisen that an investigation had been opened relating to Greisen’s February 2013 authorization of the PIT maneuver. On August 1, 2013, Hanken took his second adverse employment action against Greisen. On that date, Hanken sent Greisen a letter notifying him that the City will be conducting a second investigation into Greisen’s conduct, this time related to an allegation that Greisen had maintained a hostile work environment within the Police Department. Three weeks later, on August 23, 2013, Hanken sent a letter to Greisen imposing a disciplinary sanction of a two-week administrative suspension without pay relating to the PIT maneuver. One month later, on September 30,2013, Hank-en initiated the third investigation into Greisen and sent Greisen a letter notifying him that the City would be conducting an investigation into Greisen’s conduct related to allegations that Greisen may have violated the City’s financial policies by using unauthorized bank accounts.

When Hanken told Greisen in May 2012 that Hanken was “mad” at Greisen and that Greisen had better stay on his “side of City Hall,” this is evidence that Hanken was aware of Greisen’s. protected statements and opposed them. The reference to Greisen staying on his “side of City Hall” reasonably can be understood to refer to Greisen’s comments about City matters other than those involving only the operation of the Police Department and its budget.

When Hanken told Greisen in August 2012 that Greisen had better “quit listening to Councilor Ingham about the budget” and that “Ms. Ingham will be the one that [sic] will ruin your career herein the City of Scappoose,” this is evidence that Hank-en was aware that Greisen and Ingham-had been communicating in violation of Hanken’s earlier warning to Greisen and that Hanken continued to oppose this. It is also , evidence that Hanken was threatening; to take adverse employment action against Greisen, action that could “ruin” Greisen’s career.

Notwithstanding Hanken’s orders to Greisen to stop commenting on matters' outside of Police Department business, Greisen did not stop his questioning and making statements about matters of public concern. In the spring of 2013, Greisen spoke with Herr about the citywide practice of delaying payments to vendors until the next fiscal year. The actions taken by Hanken shortly thereafter, between July 17 and September 30, 2013, came sufficiently close in time to Greisen’s conversation with Herr in the spring of 2013 to constitute sufficient circumstantial evidence that Hanken must have learned of those communications made in violation of Hanken’s previous directions and that Hanken continued to disapprove of them. This is sufficient temporal proximity to satisfy the first Keyser plus factor. The second Keyser plus factor also is shown by Hanken’s direct statements to Greisen, demonstrating that Hanken disapproved of Greisen commenting on City financial matters that were not on Greisen’s “side of City Hall,” ie., that did not strictly concern Police Department business.

Finally, Hanken admitted at trial during cross examination that when he provided the news media with a copy of the photograph of the cash that Greisen had been keeping in his office, along with Hanken’s related statements, Hanken knew that this was not money that had just been found or discovered in Greisen’s office. Hanken also admitted that he had known for some time about the Police Department’s charitable fundraising activities, - that the money be-; ing held by the Police Chief had not being going through the City’s budgetary process, and that the practice .of maintaining this money outside of the City’s budgetary process had in fact been “authorized." Thus, as ' Hanken admitted at trial, he knowingly made false statements to the news media that the money in- Greisen’s desk was “unauthorized.” Hanken also admitted during cross examination - that Hanken’s statements to and conduct with the news media violated City policy, and “wasn’t inappropriate,” Trial Transcript 476, This is evidence that the reasons given for the adverse employment actions, including the initiation of the third invésti-gation, were false or pre-textual and is sufficient to satisfy the third Keyser plus factor.

Even though the Ninth Circuit in Keyser noted that a plaintiff need only show, at least one of the three Keyser plus factors, Greisen at trial presented evidence of all three. Thus, Greisen presented sufficient, evidence to show that Hanken acted with the requisite retaliatory motive.

3. Causation

Hanken argues that Greisen must prove that it was Hanken. who took an adverse employment action against Greisen. Greisen does not dispute this point. Hanken then adds:

The only adverse [ ] employment action Hanken took was issuing a-two week suspension. Plaintiff did not-even seek damages related to the two week suspension. The only adverse employment action for which plaintiff sought damages was his termination. Hanken did not terminate plaintiff, he was terminated by subsequent City Manager named Don Otterman. (Tr, Pit. 137:19-24 & Ex. 59) Plaintiff presented no evidence indicating that Hanken participated in the decision to terminate his employment or otherwise influenced Mr. Otterman’s decision to terminate him.

EOF 120 at 24 (internal page 17). Hanken continues: “The record contains uncontro-verted evidence that in fact Hanken played no part in the decision to terminate plaintiff.” Id. From this, Hanken concludes that he “cannot be liable for the plaintiffs termination because plaintiff did not present any evidence that Hanken sufficiently influenced Mr. Otterman’s later legitimate, independent decision to terminate plaintiff.” Id. at 24-25 (internal pages 17-18). In support of this conclusion, Hanken cites Lakeside-Scott v. Multnomah Cty., 556 F.3d 797 (9th Cir. 2009).

Before directly addressing Hanken’s argument, the Court observes that Hanken is incorrect when he argues that the only adverse employment action that Hahken took was issuing a two-week suspension to Greisen. Initiating each of the three investigations against Greisen also are adverse employment actions. See Ellins, 710 F.3d at 1061 (holding that an adverse employment action includes all “actions taken by the defendants [that] were reasonably likely to deter [the public employee] from engaging in protected activity under the First Amendment. The government’s act of retaliation need not be severe and it need not be of a certain kind.” (quotation marks and citations omitted)). In addition, as will be discussed below, Hanken overstates his' case when he asserts that “Hanken played no part in the decision to terminate plaintiff.”

A person deprives another of a constitutional right “within the meaning of § 1983, if he does an affirmative act ... that causes the deprivation of which complaint is made.” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quotation marks and citations omitted). “The requisite causal connection may be established when an official sets in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional harms.” Id. (emphasis added) (quotation marks and citation omitted). This standard of causation “closely resembles the standard ‘foreseeability’ formulation of proximate'cause.” Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).

These principles also apply in a § 1983 case alleging First Amendment retaliation. In Austin v. Terhune, 367 F.3d 1167 (9th Cir. 2004), the Ninth'Circuit held that Austin, a state prisoner, sufficiently alleged a claim for First Amendment retaliation. Austin claimed that a guard, Williams, filed a false disciplinary complaint against Austin in retaliation for Austin reporting inappropriate conduct by Williams. As a result of the false disciplinary complaint filed by Williams, Austin was placed in administrative segregation for six weeks. The district court granted summary judgment in favor of Williams. The Ninth Circuit reversed, holding:

a jury could" find that the administrative segregation was the natural and proximate result'-of [the guard’s] filing a false report accusing an inmate of violating prison rules ... [and] could also infer that [the guard] intended that result, and acted only after Plaintiff said he planned to report the incident to prison officials. We conclude that a claim of retaliation for the filing of a First Amendment-protected grievance was sufficiently, though certainly not expertly,. raised in the district court.

Austin, 367 F.3d at 1171 (emphasis added) (quotation marks omitted).

Further, in McCollum v. Cal. Dep’t. of Corr. & Rehab., 647 F.3d 870 (9th Cir. 2011), the Ninth Circuit considered a claim alleging First ’ Amendment retaliation brought by McCollum, a volunteer prison chaplain, against a prison official,- Sabrina Johnson. The chaplain alleged that Johnson retaliated against the chaplain for filing a lawsuit against the prison. Specifically, McCollum, the chaplain, alleged that Johnson falsely alleged that McCollum misrepresented himself as a “paid-chaplain” when he was in fact only a volunteer chaplain. This caused an investigation to be instituted that resulted in McCollum losing access to the prison facility for seven months. The district court granted summary judgment in favor of Johnson after finding that Johnson was not involved in the decision to suspend McCollum’s volunteer chaplain privileges. Rejecting that analysis, albeit in dicta, the Ninth Circuit explained:

This conclusion is inconsistent with our case law. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (a false accusation may constitute retaliation where deprivation of a benefit “was the natural and proximate result of’ that accusation and one can infer based on the facts alleged that the accuser “intended that result”). We may, however, affirm on any ground supported by the record. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007). We affirm because McCollum has failed to meet his burden to raise a genuine issue of material fact as to retaliatory motive.

McCollum, 647 F.3d at 882.

Thus, to prove causation in a First Amendment retaliation case, a plaintiff need not show that the defendant personally made the decision that directly resulted in the damage to the plaintiff. All that a plaintiff need prove to show causation is that the defendant, acting with retaliatory motive based on the plaintiffs protected conduct, did something where the natural and proximate result was to set in motion a series of acts by others that caused harm or injury to the plaintiff and that the defendant intended to bring about that harm or injury. The facts in McCollum are analogous to the fact in the present case.

The evidence presented at trial shows that Hanken, acting with retaliatory motive based on Greisen’s protected conduct, initiated three meritless investigations of Greisen in quick successive order, gave knowingly false information and misleading photographic evidence to the news media during an official investigation in violation of City policy, and expressly prohibited Greisen from presenting to the news media his side of the story. These actions set in 'motion a series of acts by others (including by the news media and later by interim City Manager Otterman) that a reasonable jury could find naturally led to Hanken’s economic and non-economic damages. Further, based on Hanken’s prior experience with local governments, see Trial Transcript 397-400, it is a reasonable inference that Hanken was aware that these damages to Greisen would be the natural and proximate result of Hanken’s actions and that he intended these results. As in McCollum, the fact that someone other than Hanken, namely Otterman, made the decision to terminate Greisen’s employment, does not relieve Hanken of responsibility for the natural and proximate consequences of his actions, just like the fact that someone other than Johnson made the decision to suspend McCollum’s volunteer chaplain privileges.

Hanken argues that the Ninth Circuit’s decision in Lakeside-Scott demonstrates an instance of an intervening cause that breaks the chain of proximate causation. In Lakeside-Scott, a discharged county employee (Scott) sued the county and a supervisor (Brown), alleging retaliatory discharge after Scott made certain comments about her co-workers and one of her other supervisors. Scott was directly supervised by Hogue, who reported to Gor-ton, who reported to Brown. Brown, in turn, reported to the department director Fuller. Scott complained to Hogue and Gorton about alleged misuse of the County’s computers by co-workers and managers. Scott also filed a formal complaint with the Oregon Bureau of Labor and Industries (“BOLI”), alleging among other things that Brown gave preferential treatment to gays and lesbians in hiring and promotion. Brown learned about the BOLI complaint shortly thereafter. Lakeside-Scott, 556 F.3d at 800.

In an unrelated episode, Fuller ordered Brown to search the work emails of a different employee, Landis, as part of an investigation of still another employee who allegedly sent racially discriminatory emails at work. Brown directed another employee (Williams) to perform the search. As part of this search, Williams discovered a journal written by Scott and sent by Scott to Landis. After the discovery of Scott’s journal, either Human Resources or Fuller instructed Brown to look for additional materials from Scott. Id. at 800.

In the meantime, either someone in Human Resources, or perhaps Williams, informed Brown about Scott’s journal having been found. Brown read the journal, which included inappropriate remarks. Brown showed Scott’s journal to Fuller, who placed Scott on administrative leave. Fuller then directed another employee, Turner, to conduct an internal inquiry into Scott’s possible violations of County work rules or policies. Brown was not involved in this investigation. Ultimately, it was discovered by Fuller that Scott misused County property, conducted personal business on County time, inappropriately accessed emails and other documents of other employees, and engaged in prohibited workplace harassment. Fuller notified Scott of these charges. At the conclusion of Turner’s investigation, Turner prepared a report for Fuller, concluding that the charges had been sustained. Although Scott’s journal was the reason that Fuller decided to initiate the investigation of Scott, Fuller based her decision to fire Scott on the evidence that Turner uncovered. Id. at 801.

Scott sued, alleging among other claims retaliatory discharge based on Scott’s filing of a BOLI complaint and her criticisms of Brown. A jury found in favor of Scott. Id. at 802. The Ninth Circuit reversed, holding that Scott was discharged after Fuller, the department director, made-an independent decision to terminate Scott’s employment. As explained by the Ninth Circuit:

Here, it is not clear that Scott relies on Brown’s role in bringing the journal to Fuller’s attention or her pártieipation in the administrative leave decision as alone sufficient to support the jury’s verdict finding Brown liable for Scott’s termination. Even ■ if we consider those events, however, the evidence negates any inference that Fuller would not have taken any action against Scott but for Brown’s retaliatory motivations. The journal surfaced in a workplace investigation of possible employee misconduct, and several DCJ employees became aware of its existence contemporaneously with Brown. Brown was engaged in activities typical and appropriate for her position when she became aware of the journal. The journal itself was accidentally discovered during an investigation of another employee’s conduct, and Scott did not allege that Brown targeted her ■for investigation or selectively reported her misconduct. Brown was at most a part of a process that included several other employees who were focused on disciplining violations of workplace rules and policies. Given the numerous potential rules violations revealed in the journal and the actions taken by the human resources department, it is unreasonable to conclude that Fuller — who had already initiated the inquiry into another employee’s misuse of emails — would not have been informed of or reacted to the journal but for Brown’s animus against Scott.

Given the evidence that .Fuller made an independent, principled decision for her own reasons to investigate and eventually terminate Scott, there was by definition no “constitutional injury.”

Id. at 805 (footnotes omitted). The Ninth Circuit held that “the neutrality of the decisionmaking process eliminated any ‘causal’ link to- Brown’s bias,” id. at 806, and that “the record of Fuller’s independent actions and judgments compels the conclusion that she was not influenced by any retaliatory motive on Brown’s part.” Id. at 807.

Hanken’s reliance on Lakeside-Scott is not persuasive because the facts in that case are.significantly distinguishable from the facts in the present case. Otterman testified that he made the decision to terminate Greisen under the “no cause” provision in Greisen’s contract only after Ot-terman “reviewed the three reports that had been done — the report regarding the pursuit, the financial report, and the hostile work environment report — and after I reviewed those reports, I felt that it was the best for the City if he [Greisen] was to leave.” Trial Transcript 291. Otterman, however, did hot testify that he had made an independent decision that Greisen had engaged in misconduct süffícient to justify termination. This distinguishes the'present case from Lakeside-Scott, where Fuller made an independent • decision, not influenced by Brown’s allegedly retaliatory motive, that Scott had engaged in substantial wrongful conduct that warranted termination of her employment, including misusing County property, conducting personal business on County time, inappropriately accessing emails and other documents of other employees, and engaging in prohibited workplace harassment

Otterman made’ no such finding about Greisen. As Otterman testified at trial, “There were several articles about [Greisen] and about what was going on in the City. The city manager had been fired. The police chief was on administrative leave. And that causes commotion or turmoil in the organization and needs to be resolved as soon as possible.” Trial Transcript 303-304. Thus, Otterman terminated Greisen’s contract based on the “commotion or turmoil” that Hanken, acting with retaliatory motive, had set in motion.

In Lakeside-Scott, Fuller, who