                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ANGELO DAHLIA,                            
                Plaintiff-Appellant,
                 v.
OMAR RODRIGUEZ, individually and
as a Lieutenant of the Burbank
Police Department; JOHN MURPHY,
individually and as a Lieutenant of
the Burbank Police Department;
EDGAR PENARANDA, individually                      No. 10-55978
and as a Sergeant of the Burbank
                                                     D.C. No.
Police Department; JOSE DURAN,
individually and as a Sergeant of                2:09-cv-08453-
                                                    MMM-JEM
the Burbank Police Department;
CHRIS CANALES, individually and                      OPINION
as a Detective of the Burbank
Police Department,
              Defendants-Appellees,
                and
CITY OF BURBANK, a municipal
corporation; TIM STEHR,
individually,
                        Defendants.
                                          
        Appeal from the United States District Court
           for the Central District of California
       Margaret M. Morrow, District Judge, Presiding

                    Submitted May 8, 2012*
                      Pasadena, California

  *The panel unanimously concludes this appeal is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                8799
8800              DAHLIA v. RODRIGUEZ
                 Filed August 7, 2012

   Before: Kim McLane Wardlaw, Richard A. Paez, and
           Johnnie B. Rawlinson, Circuit Judges.

              Opinion by Judge Wardlaw
8802                DAHLIA v. RODRIGUEZ
                        COUNSEL

Michael A. McGill, Michael A. Morguess, and Russell M.
Perry, Lackie, Dammeier & McGill APC, Upland, California,
for plaintiff-appellant Angelo Dahlia.

Michael Simidijan and Kenneth C. Yuwiler, Silver, Hadden,
Silver, Wexler, & Levine, Santa Monica, California, for
defendant-appellee Omar Rodriguez.

Michael Logan Rains, Harry S. Stern and Lara Cullinane-
Smith, Rains, Lucia, Stern PC, Pleasant Hill, California, for
defendant-appellee Edgar Penaranda.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los
Angeles, California, and Gregory Glenn Petersen, Hunt, Ort-
mann, Nieves, Lubka, Darling & Mah, Inc., Irvine, California,
for defendant-appellee Jose Duran.

Patricia Kinaga and Arthur B. Walsh, Kinaga Law Firm, Los
Angeles, California, and Gregory Glenn Petersen, Hunt, Ort-
mann, Nieves, Lubka, Darling & Mah, Inc., Irvine, California,
for defendant-appellee Chris Canales.

Carol Ann Humiston, Office of the City Attorney, Burbank,
California, and Richard Terzian, Burke, Williams & Sorensen
LLP, Los Angeles, California, for defendant-appellee City of
Burbank.

Eugene Philip Ramirez and Steven Jeff Renick, Manning &
Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, California,
for defendant-appellee John Murphy.

Carol Ann Humiston, Office of the City Attorney, Burbank,
California, for defendant Tim Stehr.
                      DAHLIA v. RODRIGUEZ                   8803
                          OPINION

WARDLAW, Circuit Judge:

                               I.

   Four days after Angelo Dahlia, a detective in the City of
Burbank Police Department, disclosed the alleged use of abu-
sive 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, con-
cluding that our decision in Huppert v. City of Pittsburg, 574
F.3d 696 (9th Cir. 2009), controlled Dahlia’s case “unless and
until overruled” and that, therefore, Dahlia’s speech was not
protected by the First Amendment. The district court, cor-
rectly noting that “the nature of an official’s job duties are
generally a question of fact,” concluded that Huppert held “as
a matter of law that disclosure of incriminating facts is within
the official duties of a police officer in the State of Califor-
nia.” Although we have significant reservations about the
validity of the Huppert decision, we must agree with the dis-
trict court that, under Huppert, Dahlia’s disclosure to the Los
Angeles Sheriff’s Department was made in the course of his
official duties, and thus falls outside the protection offered by
the First Amendment. We therefore affirm the judgment of
the district court.

                               II.

   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:
8804                DAHLIA v. RODRIGUEZ
    On December 28, 2007, an armed take-over robbery
    occurred at the Portos Bakery in Burbank, Califor-
    nia. On the morning of December 29, 2007, Dahlia
    was called at home, informed of the robbery, and
    advised to report to the police department to partici-
    pate in the investigation. Dahlia was the “on-call
    detective” and assisted Detective Pete Allen, the case
    agent for the Portos robbery. Sergeant Penaranda,
    the lead sergeant on the investigation, supervised
    Dahlia and Allen; Lieutenant Murphy oversaw the
    investigation.

    During the evening of December 29, 2007, several
    suspects were brought to the station for questioning.
    At one point during the interviews, Dahlia allegedly
    observed Lieutenant Rodriguez standing directly in
    front of and over a suspect who was seated in a chair
    immediately outside one of the interview rooms.
    Dahlia asserts that he saw Rodriguez use his left
    hand to squeeze the suspect’s throat, retrieve his
    handgun with the right hand, place the barrel of the
    gun directly under the suspect’s eye, and say “How
    does it feel to have a gun in your face motherfuck-
    er?” Over the course of the evening, Dahlia purport-
    edly heard noises coming from the interrogation
    rooms, including yelling and the sound of someone
    being hit. He also contends he overheard officers
    discussing abusive interrogation tactics.

    After December 29, 2007, the Department’s Special
    Enforcement Detail (“SED”) and its Vice Detail
    assumed responsibility for the investigation.
    Although Dahlia and Detective Allen remained the
    investigating officers, they were allegedly excluded
    from participating in interviews. Dahlia asserts that
    he witnessed more illegal interrogation tactics as the
    days continued.
                DAHLIA v. RODRIGUEZ                      8805
Dahlia met with Lieutenant Murphy to report these
violations. Dahlia told Murphy that “things were get-
ting out of hand, the interviews were getting too
physical, and too many people were doing their own
thing and were out of control.” Lieutenant Murphy
allegedly told Dahlia to “stop his sniveling.” When,
days later, Dahlia again pleaded with Lieutenant
Murphy, Murphy purportedly said that “[h]e didn’t
want to hear this shit again” and that “[h]e was tired
of all the B.S.” Dahlia contends that the interroga-
tions and physical beatings continued. [H]e alleges
that booking photos evidence the beatings, and
asserts that he observed SED team members and
Vice detectives put on fingerless gloves with carbon
or hard plastic knuckles while preparing to execute
a search warrant. Purportedly, the officers would
commented [sic] openly that they hoped to hit some-
one using the gloves. At one point, Chief of Police
Stehr appeared at a briefing and, on being informed
that suspects were not in custody, allegedly replied
“Well then beat another one until they are all in cus-
tody.”

In January 2008, Dahlia and Detective Ken Schiffner
met with Lieutenant Murphy and pleaded with him
to put an end to the illegal tactics. Although alleg-
edly Detective Schiffner stated that “the beatings
ha[d] to stop” and Dahlia said that “the madness
ha[d] to stop,” Lieutenant Murphy did not intervene
in the investigation. In February 2008, Dahlia alleges
he heard a loud commotion from the interview
rooms. On responding, Dahlia purportedly saw Ser-
geant Gunn standing and looking over the shoulder
of Sergeant Penaranda while the latter repeatedly
punched a suspect.

In April 2008, officers in the department learned that
Internal Affairs intended to investigate unlawful
8806                DAHLIA v. RODRIGUEZ
    physical abuse of suspects and witnesses. Various
    individual defendants allegedly threatened or intimi-
    dated Dahlia to keep him from revealing his knowl-
    edge of the abusive tactics used to interrogate
    witnesses concerning the Portos robbery. Dahlia
    contends that Lieutenant Rodriguez and Sergeant
    Penaranda began visiting him in his office to monitor
    what he was doing. Sergeant Duran purportedly vis-
    ited Dahlia’s office on a daily basis and asked,
    “What do you know?” and “What did you hear?”
    Dahlia asserts that Lieutenant Rodriguez often went
    out of his way to walk past Dahlia’s office so that he
    could look in and monitor what Dahlia was doing.
    He contends that Lieutenant Rodriguez’s intimida-
    tion escalated and that he began to threaten Dahlia
    not to say anything to Internal Affairs. Dahlia also
    asserts that Sergeant Penaranda made threatening
    public comments, referring to officers who blew the
    whistle as “spineless pussies.”

    On April 29, 2008, Internal Affairs interviewed
    Dahlia. Immediately following this interview, Lieu-
    tenant Rodriguez purportedly demanded that Dahlia
    tell him what Internal Affairs had asked and how he
    had responded. Dahlia told Lieutenant Rodriguez he
    had not said anything. Dahlia contends that Rodri-
    guez walked past Dahlia’s office “constantly” for the
    remainder of that day. In the days following the
    Internal Affairs interview, Sergeant Duran also
    allegedly continued to come to Dahlia’s office to
    monitor him. Dahlia asserts that Sergeant Penaranda
    asked him about the interview, and that, although he
    told Sergeant Penaranda he had not said anything,
    Penaranda threatened Dahlia not to say anything. At
    one point following the first interview, Detective
    Canales purportedly told Dahlia to “watch [his]
    back” and “keep [his] head down.”
                 DAHLIA v. RODRIGUEZ                      8807
On May 8, 2008, Dahlia was interviewed by Internal
Affairs a second time. Prior to this interview, Lieu-
tenant Rodriguez and Sergeant Penaranda allegedly
contacted Dahlia and demanded that he not say any-
thing. Dahlia asserts that, after the interview, he
received a telephone call from Lieutenant Rodriguez,
who ordered Dahlia to meet him at McCambridge
Park in Burbank. Dahlia believed that an incident
was occurring and responded to the park. Lieutenant
Rodrigez and Sergeant Duran were purportedly wait-
ing for him in the parking lot. Dahlia contends that
Rodriguez angrily asked, “What the fuck did you tell
them?” Dahlia again asserted that he had revealed
nothing, but Rodriguez purportedly continued to
intimidate him. Dahlia maintains that, during the
thirteen days between Dahlia’s second and third
Internal Affairs interviews, Lieutenant Rodriguez
and Sergeants Duran and Penaranda continued to
harass, intimidate, and threaten him. On May 2, 2008
and May 14, 2008, Dahlia purportedly received e-
mails from Sergeant Penaranda, which threatened
Dahlia and demanded that he “stay loyal.”

On May 21, 2008, Dahlia was interviewed by Inter-
nal Affairs a third time. Immediately after Dahlia left
the interview, Lieutenant Rodriguez allegedly
appeared in the hallway, staring directly at him.
Dahlia contends that the harassing and threatening
behavior continued following this interview. At one
point, Sergeant Duran purportedly engaged Dahlia in
a conversation about a shooting in which Duran had
been involved a few years earlier and said, “You
know, there’s only two people who know what hap-
pened and one of them is dead.” Toward the end of
2008, Sergeant Penaranda and Lieutenant Murphy
told Dahlia that a federal investigation might take
place, and allegedly said that he should keep quiet.
On January 30, 2009, Lieutenant Murphy and Ser-
8808                  DAHLIA v. RODRIGUEZ
    geant Penaranda approached Dahlia at the police
    shooting range. Lieutenant Murphy purportedly said,
    “It’s on. The Feds are doing an investigation and
    heads are going to roll. Don’t say anything.” Ser-
    geant Penaranda allegedly added, “It’s gonna be bad.
    You can’t say anything.” Dahlia asserts that in early
    February 2009, Lieutenant Rodriguez told him “not
    to talk to the feds.” During March 2009, tension
    within the department was allegedly high, and the
    constant “monitoring” of Dahlia continued.

    On April 2, 2009, Lieutenant Rodriguez called
    Dahlia into his office. Rodriguez purportedly shut
    the blinds and closed the door, retrieved his gun
    from his holster, and placed it in a drawer. Dahlia
    asserts that Rodriguez was angry and animated, and
    at one point placed both hands on his desk, leaned
    forward, and said, “I’m not a fucking cheese eating
    rat.” He purportedly looked at Dahlia and said,
    “Fuck with me and I will put a case on you, and put
    you in jail. I put all kinds of people in jail, especially
    anyone who fucks with me.” Dahlia reported the
    meeting to the Burbank Police Officers’ Association
    President, Michael Parinello, who reported it to the
    Burbank City Manager.

    On May 11, 2009, Dahlia was interviewed by the
    Los Angeles Sheriff’s Department about the Portos
    investigation. Dahlia asserts that, during the inter-
    view, he disclosed the allegedly unlawful conduct
    referenced in the complaint. On May 15, 2009,
    Dahlia was placed on administrative leave pending
    discipline [by Stehr], an action that Dahlia alleges
    constituted retaliation for his protected speech in dis-
    closing the unlawful conduct.

District Court Order Granting Defendants’ Motions to Dis-
miss, Dahlia v. City of Burbank, et al., No. 2:09-cv-08453
(C.D. Cal. June 18, 2010), ECF No. 70.
                         DAHLIA v. RODRIGUEZ                          8809
                                   III.

   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) retalia-
tion against a public employee for disclosing information to
a government or law enforcement agency in violation of Cali-
fornia Labor Code § 1102.5; (3) retaliation against a public
employee for making an oral or written complaint to a gov-
ernmental agency in violation of California Labor Code
§ 6310; (4) retaliation against a public employee for disclos-
ing an abuse of authority or a substantial and specific danger
to public health or safety in violation of California Govern-
ment Code § 53298; (5) violation of the Bane Act, California
Civil Code § 52.1(b), which prohibits interference in the exer-
cise of constitutional rights; (6) intentional infliction of emo-
tional distress; and (7) negligent infliction of emotional
distress.

   Police Chief Stehr moved for summary judgment on sev-
eral 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.1

  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
  1
   In a memorandum disposition filed contemporaneously with this opin-
ion, we reverse the district court’s denial of qualified immunity for Stehr.
Dahlia v. Stehr,___ F. App’x ___, No. 10-55283, 2012 WL ___ (9th Cir.
Aug. 7, 2012).
8810                      DAHLIA v. RODRIGUEZ
was made pursuant to his official duties and thus was not con-
stitutionally protected, and because placement on paid admin-
istrative leave is not an adverse employment action. The
district court accordingly dismissed Dahlia’s § 1983 claim
with prejudice, and declined to exercise supplemental juris-
diction over Dahlia’s state law claims.2 We now consider
Dahlia’s appeal from that dismissal.

                                    IV.

   We have jurisdiction under 28 U.S.C. § 1291 to review the
district court’s final judgment dismissing with prejudice Dahl-
ia’s claims against Lieutenants Rodriguez and Murphy, Ser-
geants Penaranda and Duran, and Detective Canales.

  We review de novo the grant of a motion to dismiss pursu-
ant 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).

                                     V.

   [1] “It is well settled that the state may not abuse its posi-
tion 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
  2
    The district court dismissed Dahlia’s § 1983 claim against all defen-
dants except Stehr, correctly ruling that Stehr’s appeal of the denial of his
motion for summary judgment “divests the court of jurisdiction over the
action between Dahlia and Stehr.” The district court thus concluded that
it “lack[ed] jurisdiction to enter an order dismissing the First Amendment
claim against Chief Stehr.” It follows that this opinion has no bearing on
Dahlia’s § 1983 retaliation claim against Stehr.
                      DAHLIA v. RODRIGUEZ                    8811
U.S. 563, 568 (1968)). We make a five-step inquiry to resolve
First Amendment retaliation claims:

    (1) whether the plaintiff spoke on a matter of public
    concern; (2) whether the plaintiff spoke as a private
    citizen or public employee; (3) whether the plain-
    tiff’s protected speech was a substantial or motivat-
    ing factor in the adverse employment action; (4)
    whether the state had an adequate justification for
    treating the employee differently from other mem-
    bers of the general public; and (5) whether the state
    would have taken the adverse employment action
    even absent the protected speech.

Eng, 552 F.3d at 1070-71. The district court dismissed Dahl-
ia’s complaint, reasoning that he had not met his burden of
satisfying the Eng factors. In particular, the district court held
that Dahlia failed to establish (i) that his speech was “spoken
in the capacity of a private citizen and not a public employ-
ee,” id. at 1071, or (ii) that placement on administrative leave
constitutes an adverse employment action.

                               A.

   [2] “[T]he plaintiff bears the burden of showing the speech
was spoken in the capacity of a private citizen and not a pub-
lic employee.” Eng, 552 F.3d at 1071 (citing Garcetti v.
Ceballos, 547 U.S. 410, 421-22 (2006)) (alteration in origi-
nal). “[S]tatements are made in the speaker’s capacity as citi-
zen 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).

  [3] 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
8812                    DAHLIA v. RODRIGUEZ
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. The Supreme Court rejected his
claim, holding that “when public employees make statements
pursuant to their official duties, the employees are not speak-
ing as citizens for First Amendment purposes, and the Consti-
tution does not insulate their communications from employer
discipline.” Id. at 421.

  In determining that the plaintiff in Garcetti wrote the mem-
orandum at issue pursuant to his official duties, the Supreme
Court explained:

      The controlling factor in Ceballos’ case is that his
      expressions were made pursuant to his duties as a
      calendar deputy.[3] That consideration—the fact that
      Ceballos spoke as a prosecutor fulfilling a responsi-
      bility to advise his supervisor about how best to pro-
      ceed with a pending case—distinguishes Ceballos’
      case from those in which the First Amendment pro-
      vides protection against discipline . . .

      Ceballos wrote his disposition memo because that is
      part of what he, as a calendar deputy, was employed
      to do . . . . Restricting speech that owes its existence
      to a public employee’s professional responsibilities
      does not infringe any liberties the employee might
      have enjoyed as a private citizen. It simply reflects
      the exercise of employer control over what the
      employer itself has commissioned or created . . . .
      Contrast, for example, the expressions made by the
      speaker in Pickering[4], whose letter to the newspaper
  3
    Ceballos did not dispute that he had prepared the memorandum “pursu-
ant to his duties as a prosecutor.” Id.
  4
    In Pickering, the seminal decision on public employee speech, the
Supreme Court held that Pickering’s speech was protected from retaliation
by the First Amendment. 391 U.S. at 574-75.
                     DAHLIA v. RODRIGUEZ                      8813
    had no official significance and bore similarities to
    letters submitted by numerous citizens every day.

    Ceballos did not act as a citizen when he went about
    conducting his daily professional activities, such as
    supervising attorneys, investigating charges, and pre-
    paring filings. In the same way he did not speak as
    a citizen by writing a memo that addressed the
    proper disposition of a pending criminal case. When
    he went to work and performed the tasks he was paid
    to perform, Ceballos acted as a government
    employee. The fact that his duties sometimes
    required him to speak or write does not mean his
    supervisors were prohibited from evaluating his per-
    formance.

Garcetti, 547 U.S. 421-23 (internal citations omitted) (foot-
notes 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 (“The memo concerned the subject
matter of Ceballos’ employment, but this, too, is nondisposi-
tive. The First Amendment protects some expressions related
to the speaker’s job.”).

   The parties in Garcetti did not dispute that the memoran-
dum at issue was prepared pursuant to the plaintiff’s official
duties, thus the Supreme Court did not have occasion to con-
duct an inquiry into the scope of the plaintiff’s professional
duties. Id. at 424. However, the Supreme Court issued guid-
ance to lower courts, noting that the “proper inquiry is a prac-
tical one” because:

    formal job descriptions often bear little resemblance
    to the duties an employee actually is expected to per-
    form, and the listing of a given task in an employee’s
    written job description is neither necessary nor suffi-
8814                    DAHLIA v. RODRIGUEZ
      cient to demonstrate that conducting the task is
      within the scope of the employee’s professional
      duties for First Amendment purposes.

Id. at 424-25; see also id. at 424 (“We reject . . . the sugges-
tion 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).5 Huppert
involved a police officer who had participated, at the order of
his superiors, in several investigations regarding police cor-
ruption. Id. at 699. After the investigations concluded, and
despite orders that he not memorialize his findings, Huppert
drafted and circulated a report to his superiors and city offi-
cials. Id. Huppert also notified the FBI of the police corrup-
tion and cooperated with its investigation. Id.

   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, inter-
preting “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 cor-
ruption:

      Though Huppert argues that he was repeatedly
      informed by the FBI that his investigatory work was
      outside his duties as a police officer, this is not
      enough to overcome California’s jurisprudence
  5
   The two-judge majority included Judge Tallman and Judge Bertels-
man, Senior United States District Judge for the Eastern District of Ken-
tucky, sitting by designation. Judge W. Fletcher dissented from the
decision. See id. at 710.
                     DAHLIA v. RODRIGUEZ                       8815
    defining such duties. It is clear that in California a
    police officer’s official duties include investigating
    corruption, so as to “prevent[ ] the commission of
    crime, . . . [and] assist[ ] in its detection.” While we
    do not know the contents of any speech that Huppert
    made, we do know that such conversations with the
    FBI would have been to “disclos[e] all information
    known to [Huppert]” regarding the alleged acts of
    corruption within the PPD. This obviously encom-
    passes his duty to uphold the law specifically
    entrusted to California’s peace officers.

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:

    The duties of police officers are many and varied.
    Such officers are the guardians of the peace and
    security of the community, and the efficiency of our
    whole system, designed for the purpose of maintain-
    ing law and order, depends upon the extent to which
    such officers perform their duties and are faithful to
    the trust reposed in them. Among the duties of police
    officers are those of preventing the commission of
    crime, of assisting in its detection, and of disclosing
    all information known to them which may lead to the
    apprehension and punishment of those who have
    transgressed our laws. When police officers acquire
    knowledge of facts which will tend to incriminate
    any person, it is their duty to disclose such facts to
    their superiors and to testify freely concerning such
    facts when called upon to do so before any duly con-
    stituted court or grand jury. It is for the performance
    of these duties that police officers are commissioned
    and paid by the community, and it is a violation of
8816                  DAHLIA v. RODRIGUEZ
    said duties for any police officer to refuse to disclose
    pertinent facts within his knowledge even though
    such disclosure may show, or tend to show, that he
    himself has engaged in criminal activities.

Christal v. Police Comm’n of City & County of S.F., 33 Cal.
App. 2d 564, 567-68 (1939) (emphasis added) (citations omit-
ted).

   The Christal decision was barely apposite to the facts pre-
sented 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. As the California Court of
Appeal stated, “the main question involved is whether appel-
lants, 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 retain-
ing their positions as police officers.” Id. at 567. The Court of
Appeal’s holding was that given the fact that the police offi-
cers 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 lim-
ited its holding to this context: “We are concerned here only
with the result of the exercise of such privilege, by those hold-
ing 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 Hup-
pert 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
                      DAHLIA v. RODRIGUEZ                    8817
with any corrupt or felonious activity but having information
about misconduct by other police officers, and directed by
superiors not to speak out or to testify, disregards that instruc-
tion and instead discloses information to third parties—the
classic whistleblower scenario. Thus, the holding in Huppert
is entirely unsupported by the sole California case it purports
to rely upon.

   [4] 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 unsup-
ported by the sole authority it relies upon. If Huppert, who
independently cooperated with the FBI to expose and investi-
gate 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.

                               B.

   [5] 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 subse-
quent 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 the-
8818                 DAHLIA v. RODRIGUEZ
ory 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:

    We reject, however, the suggestion that employers
    can restrict employees’ rights by creating exces-
    sively broad job descriptions. The proper inquiry is
    a practical one. Formal job descriptions often bear
    little resemblance to the duties an employee actually
    is expected to perform, and the listing of a given task
    in an employee’s written job description is neither
    necessary nor sufficient to demonstrate that conduct-
    ing the task is within the scope of the employee’s
    professional duties for First Amendment purposes.

Garcetti, 547 U.S. at 424-25 (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 at 567-68). The majority did
not conduct a “practical” inquiry tailored to Huppert’s job
duties. Instead, it relied on a “broad job description,” which
                       DAHLIA v. RODRIGUEZ                     8819
the Supreme Court has noted “often bear[s] little resemblance
to the duties an employee actually is expected to perform.”
Garcetti, 547 U.S. at 424-25.

   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 tai-
lored to the plaintiff’s individual circumstances. See, e.g.,
Eng, 552 F.3d at 1071 (“[T]he question of the scope and con-
tent of a plaintiff’s job responsibilities is a question of fact”);
Robinson v. York, 566 F.3d 817, 823-24 (9th Cir. 2009) (hold-
ing 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 (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 responsi-
bilities 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 respon-
sibilities 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
8820                      DAHLIA v. RODRIGUEZ
determination . . . presents a mixed question of fact and law.”).6
Regardless of how we have classified the inquiry, we have
repeatedly determined the scope of a plaintiff’s professional
duties by conducting a factual inquiry tailored to the circum-
stances of each particular plaintiff. See Eng, 552 F.3d at 1071;
Robinson, 566 F.3d at 823-24; Posey, 546 F.3d at 1129;
Freitag, 468 F.3d at 546.

   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, and
thus, under Garcetti and our own First Amendment case law,
cannot control the disposition of their First Amendment retali-
ation claims. Were we and the district court not bound by
Huppert, the district court would have been free to consider
the scope of Dahlia’s professional duties—and whether he
was acting in his capacity as a private citizen—as a question
of fact.

   Moreover, as we noted earlier, the Huppert majority’s reli-
ance on the generic language from Christal to determine the
scope of a police officer’s official duties is misplaced. Chris-
tal is a nearly seventy-three year old state court case, written
   6
     In Posey we joined the Third, Seventh, and Eighth Circuits in rejecting
the Fifth, Tenth, and D.C. Circuits’ views that the inquiry is a question of
law. 546 F.3d at 1128. However, even several of the circuits that classify
the inquiry as a “question of law” nevertheless, unlike Huppert, undertake
a tailored, fact-specific assessment of a plaintiff’s professional circum-
stances. See, e.g., Charles v. Grief, 522 F.3d 508, 512-13 (5th Cir. 2008)
(analyzing plaintiff’s particular professional role and duties, even if ulti-
mate question of whether speech is entitled to protection is a legal ques-
tion); Wilburn v. Robinson, 480 F.3d 1140, 1150-51 (D.C. Cir. 2007)
(conducting factual inquiry into nature of plaintiff’s particular professional
responsibilities). As do other circuits not discussed in Posey. See, e.g.,
Trigillo v. Snyder, 547 F.3d 826, 829-30 (7th Cir. 2008) (interpreting Gar-
cetti to conclude that “to define [plaintiff]’s official duties, we must do
more than look to general statutes. Our task is a practical one that requires
a close look at . . . the expectations and responsibilities that came with
[plaintiff’s] job.”).
                      DAHLIA v. RODRIGUEZ                     8821
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. Fur-
ther, 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 dis-
close . . . 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. In both Huppert and the case
before us, the speech at issue was not a disclosure to superi-
ors, nor was it in front of a “duly constituted court or grand
jury,” but rather was made to external, independent investiga-
tors (the FBI and Los Angeles Sheriff’s Department, respec-
tively).

   The upshot of Huppert is a rule, binding only in our Cir-
cuit, 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 implica-
tions for potential whistleblowers. Indeed, as the Supreme
Court has noted:

    [P]ublic employees are often the members of the
    community who are likely to have informed opinions
    as to the operations of their public employers, opera-
    tions which are of substantial concern to the public.
    Were they not able to speak on these matters, the
    community would be deprived of informed opinions
    on important public issues. The interest at stake is as
8822                  DAHLIA v. RODRIGUEZ
    much the public’s interest in receiving informed
    opinion as it is the employee’s own right to dissemi-
    nate it.

City of San Diego v. Roe, 543 U.S. 77, 82 (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 profes-
sional hazards of such acts. If reporting police abuse and mis-
conduct during the course of an internal investigation, or even
a federal or third-party investigation, is considered a profes-
sional duty, and is thus unprotected speech, as a matter of
law, it is inevitable that police officers will be even less will-
ing to report misconduct than they are now, particularly
regarding their superiors. The reasoning in Huppert that pro-
fessional duties can be determined as a matter of law is
wrong, and the result that reports of police misconduct are not
protected by the First Amendment is dangerous.

                               C.

  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 govern-
ment act of retaliation need not be severe and it need not be
of a certain kind. Nor does it matter whether an act of retalia-
tion is in the form of the removal of a benefit or the imposi-
tion 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
                         DAHLIA v. RODRIGUEZ                          8823
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 Amend-
ment],’ they will have established a valid claim under
§ 1983.”) (internal quotations and citation omitted) (alter-
ations in original).

   [6] We have never before decided whether placement on
administrative leave constitutes an adverse employment action.7
See Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803
n.7 (9th Cir. 2009) (declining to reach the question of whether
administrative leave with pay is an adverse employment
action because it had not been properly preserved for appeal).
Even if we were inclined to decide the issue, we would have
insufficient facts in the record to do so given the procedural
posture of the case. We are unable to assess the particular
form of administrative leave imposed upon Dahlia. We have
only the allegations in the complaint as to the nature of Dahl-
ia’s administrative leave—that it prevented Dahlia from tak-
ing the sergeant’s exam, required him to forfeit on-call and
holiday pay, and prevented him from furthering his investiga-
tive experience.

   [7] 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.” Cos-
zalter, 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 employ-
  7
    This step of the Eng test has a sub-element that is not at issue in this
appeal: whether plaintiff’s speech was a substantial or motivating factor
in the adverse employment action. That issue was not raised in the briefs,
and we do not reach it. Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008).
8824                  DAHLIA v. RODRIGUEZ
ment action. After all, temporarily placing an employee on
administrative leave with pay pending a discipline determina-
tion 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 mate-
rial responsibilities.” Hilt-Dyson v. City of Chi., 282 F.3d 456,
465-66 (7th Cir. 2002). And finally, it constitutes a “materi-
ally adverse change in the terms and conditions of employ-
ment.” Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006).

                               VI.

  [8] 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.

  AFFIRMED.
