230 F.3d 1275 (11th Cir. 2000)
Valinda F. OLADEINDE, Patricia L. Fields, Plaintiffs-Counter-Defendants-Appellees- Cross-Appellants,v.BIRMINGHAM, CITY OF, a municipal corporation, Defendant-Counter-Claimant- Appellant-Cross-Appellee,Richard Arrington, individually and in his capacity as Mayor of the City of Birmingham, Defendant-Counter-Claimant,Arthur Deutsch, individually and in his capacity as Provisional Captain of Administrative Vice-Narcotics Division, Julius Walker, individually and in his capacity as Provisional Captain of Administrative Vice-Narcotics Division, Defendants-Appellants-Cross-Appellees,R. L. Webb, individually and in his capacity as Provisional Captain of Internal Affairs Division, Defendant.
No. 98-6665.
United States Court of Appeals, Eleventh Circuit.
October 16, 2000.October 26, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeals from the United States District Court for the Northern District of  Alabama. 9no. 91-00196-CV-AR-S), William M. Acker, Jr., Judge.
Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
ALARCON, Circuit Judge:


1
Former Police Chief Arthur Deutsch and Captain Julius Walker appeal from the  denial of their motions for a judgment as a matter of law filed pursuant to Rule  50 of the Federal Rules of Civil Procedure. The Rule 50 motions were filed by  Chief Deutsch and Captain Walker following the jury's verdict awarding damages  to the plaintiffs, Valinda F. Oladeinde ("Sergeant Oladeinde") and Patricia  Fields ("Officer Fields"), in this 28 U.S.C.  1983 civil rights action. Chief  Deutsch and Captain Walker contend, inter alia, that the evidence produced at  trial demonstrated that the action should have been dismissed pursuant to the  defense of qualified immunity. They also assert that the district court  improperly allowed the jury to determine whether the plaintiffs engaged in any  protected speech.


2
The City of Birmingham ("the City") appeals from the district court's order  granting Sergeant Oladeinde's motion for injunctive relief and requiring the  City to promote her. The City maintains that the injunctive relief ordered by  the district court was contrary to the jury's factual findings in its special  verdict.


3
Sergeant Oladeinde cross-appeals from the judgment entered against her on the  City's counterclaim for breach of implied contract. She argues that the judgment  resulted from improper jury instructions and argument.


4
We reverse the denial of Chief Deutsch's and Captain Walker's motions for  judgment as a matter of law because we conclude that the plaintiffs' speech was  not protected under the First Amendment. We reverse the order requiring the City  to promote Sergeant Oladeinde because her First Amendment rights were not  violated. We affirm the judgment against Sergeant Oladeinde for breach of  implied contract because any error in the jury instructions or argument was  harmless.


5
* FACTUAL BACKGROUND


6
A.Events that Occurred Prior to January 4, 1991


7
Officer Fields became a member of the Birmingham Police Department ("BPD") in  June of 1970 as a citation officer. Her initial assignment was to issue  citations for parking meter violations. In 1972, she was promoted to the  position of police officer and assigned to patrol duty. In March 1989, Officer  Fields was assigned to the Administrative Vice-Narcotics Unit ("Narcotics  Unit"). Her team leader was Sergeant Oladeinde.


8
Sergeant Oladeinde joined the BPD in July of 1981. In November of 1985, she was  promoted to sergeant and assigned to the Narcotics Unit. Sergeant Oladeinde and  Officer Fields were assigned to the Organized Crime Drug Enforcement Task Force  ("Task Force"). The Task Force consisted of local, state, and federal officers  whose mission was to investigate drug trafficking, money laundering, crimes of  violence and firearms violations.


9
Beginning in 1988, Sergeant Oladeinde and Officer Fields were told by informants  that certain drug traffickers had suspicious contacts with city officials and  officers of the BPD. Sergeant Oladeinde filed a written report in 1988 with her  commanding officer setting forth alleged improper conduct of several BPD  officers.


10
In the summer of 1989, Sergeant Oladeinde participated in a meeting with members  of the Federal Bureau of Investigation and the United States Attorney's Office.  Also present was Captain R.L. Webb ("Captain Webb") of the BPD Internal Affairs  Division ("IAD").1 The purpose of the meeting was to discuss police corruption.  The BPD representatives requested federal resources and manpower to investigate  allegations from informants that BPD police officers were extorting money from  drug dealers.


11
As a team leader, Sergeant Oladeinde was responsible for funds to be used by  officers in her group to purchase drugs in undercover operations. In the latter  part of 1989, Sergeant Oladeinde discovered that she could not account for some  of these funds. She reported this problem to her commanding officers. An  internal audit was conducted in January of 1990. The audit disclosed that  Sergeant Oladeinde could not account for $4,484 expended between March 1, 1986  and December 31, 1989.


12
As a result of the internal audit, the BPD requested that the auditors from the  City's Internal Audit Division examine the Narcotic Unit's records. On February  21, 1990, Sergeant Oladeinde discovered that one of the city's auditors,  Mitchell Smith ("Smith"), was "on deferred prosecution for drugs." Sergeant  Oladeinde reported to the commander of the Narcotics Unit, Captain Johnnie  Johnson, that Smith had access to records containing the names of confidential  informants. At Captain Johnson's request, Smith was removed from the audit of  the Narcotics Unit's records. The City's Internal Audit Division determined that  Sergeant Oladeinde failed to account for $2,056 in BPD funds. Sergeant Oladeinde  testified that she could not explain what happened to this money. On advice of  its counsel, the City did not write a letter to Sergeant Oladeinde at that time  to request that she repay the money.


13
On May 10, 1990, Officer Nicholas Mazzarella filed a complaint alleging  widespread corruption in the Narcotics Unit. Chief Deutsch ordered the IAD to  question more than a dozen officers including Sergeant Oladeinde. On May 21,  1990, Sergeant Oladeinde and Captain Webb went to the United States Attorney's  office. There, Sergeant Oladeinde reported that there was corruption in the BPD.


14
On June 14, 1990, Sergeant Oladeinde was interviewed by Officer V.O. Little of  IAD regarding the missing Narcotics Unit funds. On June 21, 1990, Sergeant  Oladeinde was subjected to three polygraph examinations by Officer Little.  Officer Little informed Sergeant Oladeinde that the tests revealed that she was  "having trouble" with questions concerning money, stealing, and the sale of  information.


15
Officer Little gave Sergeant Oladeinde another polygraph examination on June 26,  1990. On June 27, 1990, Officer Daugherty also gave her a polygraph examination.  On July 2, 1990, Captain Webb met with the United States Attorney, Frank  Donaldson. The United States Attorney requested that the BPD temporarily suspend  the investigation of Sergeant Oladeinde because she was assisting the United  States Attorney's Office with its case against Curtis Motley, an alleged drug  dealer. The United States Attorney wanted to make sure that Sergeant Oladeinde  was available to assist in prosecuting Motley and that her credibility was not  damaged by an active investigation of her. Captain Webb agreed to the request.  On July 19, 1990, Sergeant Oladeinde wrote a letter addressed to Chief Deutsch  complaining about the length of the IAD's investigation of the Narcotics Unit  stemming from Officer Mazzarella's complaint.


16
On July 31, 1990, Captain Webb and Captain Walker testified under subpoena  during the trial of Ricky Germany that they would not believe the testimony of  Sergeant Oladeinde. Captain Walker's opinion was based upon hearing Sergeant  Oladeinde's testimony in two depositions, her responses during polygraph  examinations, and her failure to account for funds she had received for the  purchase of narcotics in the undercover work of her unit. The following day,  Sergeant Oladeinde complained to members of the United States Attorney's Office.  She reported that Captain Webb was involved with a known felon, David Swanson,  and had improperly informed him that he was under investigation.


17
Captain Walker was assigned as the Commander of the Narcotics Unit in September  1990. On October 2, 1990, Mr. Swanson complained to the Birmingham City Council  during a public meeting that Sergeant Oladeinde was harassing him. On October 3,  1990, Sergeant Oladeinde reported to Captain Walker that she had observed  Lieutenant James Hope's car parked at Regina Hunter's house for several hours.  Regina Hunter, the wife of a convicted drug dealer, had previously been  convicted of possession of cocaine. Captain Walker told Sergeant Oladeinde to do  her job and "[n]o retribution would occur."


18
In November 1990, Officer Fields, while undergoing a polygraph examination, told  Sergeant Daugherty that she would not tell Lieutenant Hope anything because of  his alleged personal involvement with Regina Hunter. Officer Fields filed a  complaint with the IAD concerning Lieutenant Hope. When Officer Fields returned  to the Narcotics Unit, Captain Walker told her he was very angry and stated that  he was "like a snake fixing to strike." Officer Fields testified that she felt  intimidated by Captain Walker's demeanor.


19
On November 6, 1990, Sergeant Oladeinde was questioned about Lieutenant Hope.  Lieutenant Hope and Captain Walker were questioned on November 7, 1990, about  Officer Field's complaint about Lieutenant Hope. On November 8, 1990, Sergeant  Oladeinde was given a polygraph examination by Officer Daugherty. He telephoned  Sergeant Oladeinde the next day to inform her that she passed the polygraph  examination. Officer Fields and Captain Walker were not asked to submit to a  polygraph examination. Later that month, Lieutenant Hope was removed from the  Narcotics Unit and demoted because he refused to discontinue his contacts with  Regina Hunter.


20
B.Events that Occurred on January 4, 1991 and Thereafter


21
On January 4, 1991, Sergeant Oladeinde requested permission to meet with Captain  Walker. When she and Officer Fields arrived in Captain Walker's office, he  placed a derringer, a short barreled pocket pistol, on his desk and set up two  bullets next to it. The derringer was broken down so that you could see through  the barrels. Captain Walker then stated: "I don't need my gun to talk to you  ladies, do I?" Officer Fields replied: "Captain Walker, are you planning on  committing suicide?" Shortly thereafter, Captain Walker put the derringer back  in the desk drawer.


22
This exchange occurred before Sergeant Oladeinde and Officer Fields disclosed  the purpose of their visit.2 The record discloses the following testimony  regarding the derringer:


23
Q.[Cross-examination of Sergeant Oladeinde by Mr. Thomas, counsel for Captain  Walker]. Now as I understand-as I have understood your testimony today in  trial and your deposition, the derringer was placed-pulled out of the drawer  and placed on the table prior to anything being said?


24
A.That's right, Mr. Thomas. I hadn't said a word other than walk in the  captain's office where he invited me to come in there, and he pulled a gun out  of his desk at me.


25
Q.And you had not said one word?


26
A.I hadn't uttered a word before he got the gun out.


27
Officer Fields asked Captain Walker for permission to talk to the district  attorney about the "records case" because she had seen something involving two  police officers. Captain Walker asked Officer Fields to describe the information  she wished to report to the district attorney. Officer Fields refused. Sergeant  Oladeinde informed Captain Walker that Officer Fields had revealed the facts to  her. Sergeant Oladeinde refused Captain Walker's order that she reveal the  information to him.


28
Captain Walker asked Officer Fields and Sergeant Oladeinde whether they had  information that an officer had committed a crime, or may have done so. Officer  Fields said: "No." Following their refusal to disclose the nature of the conduct  observed by Officer Fields, Captain Walker denied their request to go to the  district attorney. Instead, he directed them to make their report to the IAD.


29
After leaving Captain Walker's office, Sergeant Oladeinde and Officer Fields  went to Deputy Chief Howard Miller's office and asked him to seize the derringer  from Captain Walker. He refused. Captain Walker informed Deputy Chief Miller  later that same day about the derringer incident. Captain Walker stated that it  was a stupid mistake and that he "messed up ... cracked a joke and it didn't  work." Sergeant Oladeinde wrote a letter to Deputy Chief Miller complaining  about the incident.


30
Upon the recommendation of Deputy Chief Miller, Joe Whatley, an attorney for the  City, met with Sergeant Oladeinde and Officer Fields on January 8, 1991  regarding the derringer incident. On January 10, 1991, Sergeant Oladeinde wrote  a follow-up letter to Mr. Whatley, documenting their conversation and stating,  "I do not AT THIS TIME wish to make a complaint." Sergeant Oladeinde reported to  Chief Deutsch on January 11, 1991, in a written memorandum, that she had been in  contact with Mr. Whatley regarding "the documents case." Captain Walker's  conduct was investigated. He received command discipline for displaying the  derringer.


31
On January 16, 1991, Captain Walker sent a memorandum recommending that Sergeant  Oladeinde be transferred from the Narcotics Unit. The memorandum stated:


32
One of the supervisors currently assigned to the Administrative Vice Division-  Narcotics Detail is Sergeant V.F. Oladeinde. It is my request that for the  good of the Department as well as the good of the Sergeant that consideration  be given to the possible transfer of this supervisor into another Unit.  Sergeant Oladeinde has been assigned to Narcotics since her promotion to the  rank of Sergeant. She has, for the most part, done an adequate job. However, I  have noticed from the inception of my command that there are several  deficiencies in this supervisors [sic] performance. It appears that this  sergeant has an "ax to grind" either with me or with other superior officers.


33
It is my concern that this Unit operate in an effective, efficient and  professional manner. This cannot be achieved with the turmoil from within.


34
This supervisor appears to run her team in such a manner that it is not  conducive to a smooth running operation. I feel that this sergeant's lack of  supervisory skills is the prime reason for this.


35
I recommend that this sergeant be put in a patrol atmosphere where she would  undoubtedly learn supervisory skills in a structured environment. With this  type training this supervisor may one day become a well rounded supervisor and  possibly may be able to see a broader picture concerning this Department as  opposed to the narrow minded view she has exhibited in the past.


36
On or about January 24, 1991, Captain Walker met with Sergeant Oladeinde,  Officer Fields, and Lieutenant J.J. Todd. Sergeant Oladeinde stated that a  reliable confidential informant had reported to her that Erica Arrington, the  daughter of Birmingham's mayor, Jeff Germany, a Jefferson County Commissioner,  and William Bell, a city council member, were seen at a party around a table  that had cocaine on it. Captain Walker asked Sergeant Oladeinde to identify her  informant. She refused to do so.


37
Captain Walker then instructed Sergeant Oladeinde and Officer Fields not to make  this information public unless it was verified and then submitted to him.  Captain Walker explained to them that informants sometimes lie "[s]o make real  sure that you verify this information before you destroy lives."


38
On January 25, 1991, Captain Walker received a memorandum from Sergeant  Oladeinde in which she informed him that she planned to present the information  regarding Erica Arrington, Jeff Germany, and William Bell to the Federal Task  Force. Prior to that date, Sergeant Oladeinde had not complied with Captain  Walker's order that the information must be verified before she made the  information public. On the same date, Deputy Chief Miller transferred Sergeant  Oladeinde to a patrol unit. Chief Deutsch, as department head, signed the  personnel transfer form.


39
Sergeant Oladeinde and Officer Fields filed this action on January 29, 1991.  They alleged inter alia that they were harassed and punished for exercising  their First Amendment rights in violation of federal and state law.


40
On February 1, 1991, Officer Fields was transferred "due to the current conflict  with supervision within [her] unit...." In March 1991, Sergeant Oladeinde  applied for a promotion to police lieutenant. It was the first time she was  certified as eligible for a promotion to lieutenant. The BPD utilized the  following procedure in promoting an officer. The chief of police would request  from the Personnel Board a list of persons certified as eligible for the  promotion. The chief would then call a meeting of deputy chiefs and captains to  decide which candidates on the list should be promoted. The names of the  candidates selected for promotion would be forwarded to the mayor for final  approval. The mayor testified that he had always accepted the recommendations  from Chief Deutsch regarding promotions. At trial, an officer who participated  in the meeting testified that when Sergeant Oladeinde's name was mentioned Chief  Deutsch said, "no, scratch her" and there was no further discussion of her  candidacy. Sergeant Oladeinde was not promoted. On June 3, 1991, the plaintiffs  filed an amended complaint which alleged facts regarding Officer Fields's  transfer and Sergeant Oladeinde's failed promotion request.

II
PROCEDURAL BACKGROUND

41
Our resolution of the issues presented in this appeal has been hampered by the failure of the plaintiffs to specify which, if any, of the numerous written  reports and verbal statements made by Sergeant Oladeinde and Officer Fields were  protected by the First Amendment. This confusion and lack of specificity in the  plaintiffs' theory of their case continued up to the time of oral argument. The  district court's failure to perform its duty to determine which of plaintiffs'  speech, if any, was protected, and to instruct the jury accordingly,  unnecessarily complicated our task.


42
The defendants named in the initial complaint filed a motion to dismiss it, or  in the alternative, to certify the following questions for an interlocutory  appeal pursuant to 28 U.S.C.  1292(b): (1) whether the district court erred in  denying the defendants of certain discovery requests? (2) whether the district  court erred in ruling that "under the Task Force arrangement in effect between  the United States and defendant City of Birmingham, plaintiffs had the right to  give paramount loyalty to the United States rather than to the defendant City  and its superior police officials"? and (3) whether the district court erred in  denying the defendants access to in camera materials and the names of  confidential informants?


43
On April 5, 1991, the district court denied the motion to dismiss and granted  the alternative motion for a certification to this court of the issues raised by  the defendants. This court denied the petition for permission to appeal pursuant  to  1292(b). In explaining the basis for its order, this court noted that "the  complaint presented to us with the petition-is a typical 'shotgun' pleading, in  that in one count the plaintiffs have presented multiple claims for relief,  supporting them with a rambling set of factual allegations that may or may not  be relevant to each claim." Oladeinde v. City of Birmingham, No. 91-2063 (11th  Cir. May 8, 1991) (citation omitted). Citing Pelletier v. Zweifel, 921 F.2d 1465  (11th Cir.1991), this court commented that where a plaintiff fails to comply  with the requirement of Rule 8 of the Federal Rules of Civil Procedure to  provide a short, clear, and concise statement of the claim, "then the burden  shifts to the trial judge; acting sua sponte, the judge should require a  repleader." Oladeinde, No. 91-2063 (11th Cir. May 8, 1991).


44
On June 3, 1991, the plaintiffs filed an amended complaint seeking damages and  equitable relief for the deprivation of their rights to free speech, equal  protection, and freedom of association. On June 12, 1991, the defendants filed  motions for a dismissal based on (1) the plaintiffs' failure to conform to Rule  8 of the Federal Rules of Civil Procedure, (2) the plaintiffs' failure to state  a claim for which relief might be granted, (3) the argument that the substance  of the alleged activity was privileged from discovery, (4) the argument that the  individual defendants were entitled to qualified immunity, and (5) the argument  that the district court should not exercise pendent jurisdiction. The district  court denied the motions. It concluded that the plaintiffs' complaint conformed  to procedural rules. It did not explain the bases for the denial of the defense  of qualified immunity. The individual defendants filed an interlocutory appeal.


45
This court began its analysis of the issues raised by the individual defendants  by stating: "Many factors complicate our review of defendants' three claims, but  no factor plays as dominant a complicating role as the long and wordy nature of  plaintiffs' amended complaint." Oladeinde v. City of Birmingham, 963 F.2d 1481,  1484 (11th Cir.1992). This court also commented that "[w]e are perplexed and  frustrated by the fact that, despite clear guidance from this court, 'the  complaint presented to us ... [continues to be] a typical "shotgun" pleading.' "  Id. Nevertheless, this court concluded that it would review the defendants'  contentions and would not remand for future repleading "in light of the fact the  case is presented to us for the third time (although the case has yet to advance  much beyond the initial pleading stage) and in the interest of judicial economy  and efficiency." Id.


46
This court rejected the defendants' contention that the plaintiffs had violated  the requirement that a pleading contain a short and plain statement of the claim  notwithstanding "serious doubt that the complaint complies with Rule 8." Id.  This court held that the plaintiffs had failed to plead sufficient facts to  support their claims of a denial of due process, equal protection and freedom of  association. See id. at 1485. This court concluded, however, that the plaintiffs  had pleaded sufficient facts, when taken as true, to state a First Amendment  claim against Chief Deutsch, Captain Walker, and Captain Webb, for which relief  might be granted. See id. at 1486. The court held that the plaintiffs had failed  to state a  1983 claim against the mayor, Richard Arrington. See id. at  1486-87.


47
This court next addressed the question whether Chief Deutsch, Captain Walker,  and Captain Webb were entitled to qualified immunity. This court affirmed the  district court's order denying qualified immunity for the remaining individual  defendants. This court explained its ruling as follows:


48
[A]t this stage in the proceedings, the qualified immunity defense of Deutsch,  Walker and Webb fails because the limited record before us does not support  defendants' contention that, in light of prevailing legal standards, their  interest in efficiently operating the police department arguably outweighed  plaintiffs' free-speech rights on a matter of public concern. We stress,  however, that defendants retain the right to assert the qualified-immunity  defense at the next stage of the proceedings (and, for that matter, throughout  the proceedings) as more facts are developed.


49
Id. at 1487.


50
On July 1, 1993, the individual defendants filed a motion for summary judgment,  again asserting the defense of qualified immunity. In denying the motion, the  district court relied on this court's conclusion that the limited record at the  motion to dismiss stage in the proceedings did not support the individual  defendants' contention that their interests in efficiently operating the police  department outweighed the plaintiffs' First Amendment rights. The district court  stated that, since the 1992 opinion of the 11th Circuit, the "defendants have  offered no significant new evidence ... to justify their qualified immunity  defense."


51
The individual defendants filed an interlocutory appeal from the denial of their  motion for summary judgment on qualified immunity. On June 14, 1996, this court  affirmed the district court's order in an unpublished disposition without  setting forth its rationale, pursuant to Eleventh Circuit Rule 36-1.3 Oladeinde  v. City of Birmingham, No. 95-6352, 89 F.3d 855 (11th Cir. June 14, 1996).


52
The case proceeded to trial on June 22, 1998, on the plaintiffs' First Amendment  claims against the City, Chief Deutsch, Captain Walker, and Captain Webb. The  plaintiffs testified as summarized above. At the close of the plaintiffs' case  in chief, the individual defendants moved for judgment as a matter of law,  pursuant to Rule 50(a)(1)(2) of the Federal Rules of Civil Procedure based on  the defense of qualified immunity. The district court did not rule on the motion  until after the jury returned its verdict.


53
The district court did not instruct the jury regarding which instances of  plaintiffs' speech were protected. Instead, the court instructed the jury as  follows:


54
Where the speech activity that each plaintiff engaged in was protected and  where it was not protected, where it was guaranteed by the First Amendment and  where it was not, I'm not going to try to go through everything they said and  did in every context to tell you this was protected; this was not protected;  this was. It's going to be for you to determine based on whether it was a  matter of public concern, not just internal private matters ... I am saying  that in this case, at least to some degree, the speech they engaged in, or the  activities that could be described expression, were protected....


55
Following the court's charge to the jury, the defendants objected to this  instruction on the ground that the court had improperly required the jury to  decide which speech, if any, was protected. The court declined to reinstruct the  jury.


56
The court requested that the jury respond to special interrogatories. The court  inquired whether the plaintiffs had proved by a preponderance of the evidence  that each of the individual defendants "did something or failed to do something  with the intent to adversely affect Sergeant Oladeinde [or Officer Fields] for  the purpose of suppressing [their] exercise of constitutionally protected speech  or for the purpose of retaliating against [them] in response to any  constitutionally protected expression or expressions by [them]?" The jury was  not asked to specify which of the plaintiffs' statements were constitutionally  protected. The jury responded affirmatively regarding Chief Deutsch and Captain  Walker. The jury found that Captain Webb did not suppress constitutionally  protected speech nor did he retaliate against Sergeant Oladeinde and Officer  Fields for exercising their freedom of expression.


57
The jury was also asked to respond to the following question:


58
[D]id Oladeinde [or Fields] prove by a preponderance of the evidence that  defendant City had some policy or policies that encouraged or allowed some  violation or violations of 42 U.S.C.  1983 by Deutsch, and/or by Webb, and/or  by Walker, and or by Deputy Chief Miller?


59
The jury answered "No" to this interrogatory. The jury was questioned regarding  whether the individual defendants were policy makers for the City in committing  "any violation of 42 U.S.C.  1983." The jury gave a negative response to this  question.


60
The jury found that Chief Deutsch was liable to Sergeant Oladeinde in the amount  of $36,379.20. The jury found the that Chief Deutsch was not liable to Officer  Fields. The jury found that Captain Walker was liable to Sergeant Oladeinde in  the amount of $150,000 and liable to Officer Fields in the amount of $125,000.  The jury rendered a verdict in favor of the City and Captain Webb as to the  claims filed by each of the plaintiffs. The jury also found that Sergeant  Oladeinde owed the City "$2,056 plus 6% interest to date" on its counterclaim.


61
On July 8, 1998, the district court denied the individual defendants' initial  motions for judgment as a matter of law. On the same date, Sergeant Oladeinde  filed a motion for judgment as a matter of law seeking equitable relief. The  district court treated Sergeant Oladeinde's motion as a motion for additional  relief pursuant to Rule 59 of the Federal Rules of Civil Procedure.


62
Chief Deutsch and Captain Walker filed renewed motions for judgment as a matter  of law, or for a new trial, on July 14, 1998. They again asserted the defense of  qualified immunity. They also argued that the district court erred by failing to  instruct the jury as to which speech was protected.


63
In their opposition to the renewed motion for a judgment as a matter of law, the plaintiffs maintained that the jury's verdicts were based on the plaintiffs'  request to take information regarding tampering of the records to the district  attorney, the conduct of Captain Walker on January 4, 1991, and the transfer and  failure to promote Sergeant Oladeinde thereafter, as the suppression of  protected speech of public concern, and the defendants' retaliatory acts.4 In  arguing that the admission of the testimony of witnesses from the United States  Department of Justice was harmless, the plaintiffs stated that their testimony  "revealed only or chiefly the DOJ's witnesses' knowledge of events through 1990.  The liable conduct of Walker and Deutsch, as reviewed above, took place after  that time." (emphasis added). In footnote 8 of their opposition, the plaintiffs  stated: "This point refers only to jury findings on Walker and Deutsch's conduct  in January, 1991, and afterward which is the period of time for the specific  events reviewed above." The plaintiffs also asserted that knowledge of what took  place at the meeting could be imputed to Chief Deutsch, and that their transfers  and Sergeant Oladeinde's failed promotion request stemmed from their request for  permission to report Chief Deutsch's involvement in tampering with the records  of the arrest of the mayor's daughter.


64
The district court denied the renewed motions for judgment as a matter of law.  The court explained that "the big ticket item" supporting the jury's finding  that Captain Walker violated the plaintiffs' constitutional rights "was the  derringer incident," and his conduct in testifying that Sergeant Oladeinde could  not be believed under oath in the Ricky Germany trial and the transfer of  Sergeant Oladeinde.5 The court communicated that "there was gracious plenty of  evidence to demonstrate that Captain Walker consciously intended to quiet  Sergeant Oladeinde and Officer Fields and that he undertook to accomplish that  purpose in ways causing plaintiffs physic [sic] damage, by frightening and  embarrassing them."


65
The court further concluded that "[i]t is an entirely permissible inference that  Chief Deutsch knew of plaintiffs' visit to Captain Walker that occasioned the  display of the derringer." The court did not set forth the facts in evidence  that it believed supported this inference. The court also observed that "[i]t  was well within the realm of reason for this jury to have found a causal  connection between Deutsch's decision to deny Oladeinde a promotion and  Oladeinde's attempt to speak out on matters of passing public concern."


66
On July 29, 1998, the court granted Sergeant Oladeinde's motion for injunctive  relief against the City, and ordered the City to promote her to the position of  lieutenant. The City, Chief Deutsch, and Captain Walker filed timely notices of  appeal from the final judgment entered against them. Sergeant Oladeinde filed a  cross-appeal challenging the validity of the judgment in favor of the City on  its counterclaim for $2,056.


67
We have jurisdiction over the appeals from the final judgments entered in this  matter pursuant to 28 U.S.C.  1291. We will first address the appeal filed by  Chief Deutsch and Captain Walker. We will next consider the City's appeal, and  conclude our review by deciding the merits of Sergeant Oladeinde's cross-appeal.

III

68
APPLICABILITY OF THE DEFENSE OF QUALIFIED IMMUNITY ON THIS RECORD

A.Law of the Case

69
Chief Deutsch and Captain Walker contend that the judgments against them must be  reversed because the trial record demonstrates that they are entitled to  qualified immunity. The plaintiffs maintain that Chief Deutsch and Captain  Walker are foreclosed from prevailing on this defense because this court has  previously decided the issue against them. They assert that this court's prior  decisions regarding the applicability of the defense of qualified immunity  constitute the law of the case. Thus, before addressing the merits of the  individual defendants' contention that they are entitled to qualified immunity,  we must determine whether we are precluded from reviewing this issue based on  the law of the case doctrine.


70
"Under the law of the case doctrine, both the district court and the appellate  court are generally bound by a prior appellate decision of the same case." Venn  v. St. Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1063 (11th Cir.1996). The law  of the case doctrine, however, bars consideration of "only those legal issues  that were actually, or by necessary implication, decided in the former  proceeding...." In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 n. 3 (11th  Cir.1990). Furthermore, "[t]he doctrine 'directs a court's discretion, it does  not limit the tribunal's power.' " Murphy v. Federal Deposit Ins. Corp., 208  F.3d 959, 966 (11th Cir.2000) (quoting Arizona v. California, 460 U.S. 605, 618,  103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). Therefore, we may reconsider an issue  already decided by this court in the same case if, since the prior decision, new  and substantially different evidence is produced, or there has been a change in  controlling authority. See Venn, 99 F.3d at 1063. We may also reconsider an  issue if the prior decision was clearly erroneous and would result in a manifest  injustice. See id.


71
This court first addressed the issue of qualified immunity in this case on an  appeal from the denial of a motion to dismiss pursuant to Rule 12(b)(6) of the  Federal Rules of Civil Procedure based on an alleged failure to plead a  violation of federal law and the denial of the qualified immunity defense. See  Oladeinde, 963 F.2d at 1485. As this court noted, that decision was based upon  the facts as alleged in the complaint. See id. The complaint did not contain all  of the facts related to the circumstances of the plaintiffs' meeting with  Captain Walker, facts which, as discussed below, bear upon a determination of  whether the defendants violated a clearly established right. Thus, as this court  recognized when it published its first opinion on this issue, the defendants  were not precluded from asserting the qualified immunity defense throughout the  proceedings as the facts developed. See id. at 1487. Indeed, the Supreme Court  has recognized that "resolution of the immunity question may 'require more than  one judiciously timed appeal,' because the legally relevant factors ... will be  different on summary judgment than on an earlier motion to dismiss." Behrens v.  Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Here,  because the complaint did not contain all of the relevant facts that were  introduced both at summary judgment and at trial, this court's first opinion  affirming the denial of qualified immunity did not establish the law of the  case.


72
The plaintiffs assert that, even if this court's published opinion did not  establish the law of the case, Chief Deutsch and Captain Walker had an  opportunity to develop the facts and present evidence in support of the defense  of qualified immunity when they filed their motion for summary judgment. The  plaintiffs note that, despite the volumes of evidence submitted by the  defendants with their summary judgment motion, this court nevertheless affirmed  the district court's denial of qualified immunity. The plaintiffs argue,  therefore, that this court's second unpublished order affirming the denial of  the motion for a summary judgment established the law of the case. We conclude  that it did not for several reasons.


73
First, in ruling on the motion for summary judgment, the district court did not  consider Sergeant Oladeinde's claim that she was denied a promotion because of  her speech.6 Thus, whether the defendants were entitled to qualified immunity  for the decision not to promote Sergeant Oladeinde to lieutenant was not before  this court in its order affirming the district court's order denying summary  judgment. This court's June 14, 1996, order is not the law of the case as to  that issue.


74
Furthermore, new and substantially different evidence was introduced at trial  regarding the incident in Captain Walker's office when he placed a derringer on  his desk. During cross examination, Sergeant Oladeinde admitted that Captain  Walker placed the gun on his desk before anyone had said anything at the  meeting. As discussed further below, these facts are relevant to the question  whether Captain Walker is entitled to qualified immunity for his conduct.


75
Because this court did not set forth its reasons for affirming the district  court's denial of summary judgment, it is unclear whether this court affirmed  the district court's ruling because issues of fact as to the police department's  interests and the defendants' motives in transferring the plaintiffs should be  decided by the jury, see Jennings v. BIC Corp., 181 F.3d 1250, 1254 (11th  Cir.1999), or whether, in viewing the facts in the light most favorable to the  non-moving party, summary judgment was inappropriate, see Katz v. Comprehensive  Plan of Group Ins., 197 F.3d 1084, 1088 (11th Cir.1999). Where a previous panel  has given no explanation for its decision, a subsequent appellate court panel is  "not bound by any 'law of the case' unless a determination by us concerning the  propriety of [the district court's order] is necessarily inconsistent with every  possible correct basis for the earlier rulings of this court." Key v. Wise, 629  F.2d 1049, 1054-55 (5th Cir.1980). One correct basis for this court's earlier  ruling is that there remained genuine issues of material fact in dispute  requiring a trial as to the police department's interests and the individual  defendants' motives in transferring the plaintiffs. Such a ruling would present  no binding conclusion of law as to the defendants' qualified immunity, but would  simply allow the case to proceed to the jury. A conclusion now, after the facts  have been developed at trial, that the defendants are entitled to qualified  immunity would not be inconsistent with this possibly correct basis for the  earlier ruling of this court. We hold, therefore, that we are not bound by the  law of the case doctrine in deciding whether the individual defendants were  entitled to qualified immunity regarding their decision to transfer the  plaintiffs.


76
B.Applicability of Qualified Immunity for First Amendment Claims


77
Chief Deutsch and Captain Walker contend that they are entitled to qualified  immunity because they did not violate clearly established law. They argue that  the information regarding two police officers and Chief Deutsch that the  plaintiffs desired to present to the district attorney was the fruit of the  plaintiffs' work as police officers and was not an appropriate matter of public  concern. They assert that the duty to disclose the details and source of  information concerning non-criminal activity by fellow police officers to a  superior officer for a determination whether it should be investigated by IAD,  in order to maintain a loyal and cohesive law enforcement agency, outweighed the  plaintiffs' freedom of expression. They also maintain that reasonable officials  in their position would have believed that there were legitimate reasons,  unrelated to the plaintiffs' speech, for transferring the plaintiffs and failing  to promote Sergeant Oladeinde.


78
The plaintiffs contend that Chief Deutsch and Captain Walker are not entitled to  qualified immunity because it was clearly established on January 4, 1991, that  their speech was protected, and because the jury expressly determined in a  special verdict that the defendants were motivated by a retaliatory motive and  did not act against the plaintiffs for appropriate reasons.


79
This court reviews a district court's ruling on a motion for judgment as a  matter of law de novo, viewing the evidence in the light most favorable to the  non-moving party. See Gupta v. Florida Board of Regents, 212 F.3d 571, 582 (11th  Cir.2000). In determining whether a government official is entitled to qualified  immunity following a jury verdict, we view the evidence in the light most  favorable to the party that prevailed at trial. See Priester v. City of Riviera  Beach, 208 F.3d 919, 925 n. 3 (11th Cir.2000) (citing Iacobucci v. Boulter, 193  F.3d 14, 23 (1st Cir.1999)). In so doing, we give deference to the jury's  "discernible resolution of disputed factual issues." Iacobucci, 193 F.3d at 23  (citing Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir.1996)).


80
"Government officials performing discretionary functions are entitled to  qualified immunity 'insofar as their conduct does not violate clearly  established statutory or constitutional rights of which a reasonable person  would have known.' " Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir.1999)  (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396  (1982)). In determining whether the defense of qualified immunity is applicable,  we must first consider whether the plaintiffs established facts demonstrating a  deprivation of an actual constitutional or statutory right. See id. (citing  Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). If so,  we must then determine whether that right was clearly established at the time of  the alleged violation. See id. A right is clearly established if "the contours  of the right [violated are] sufficiently clear that a reasonable official would  understand that what he is doing violates that right." McElligott v. Foley, 182  F.3d 1248, 1260 (11th Cir.1999) (quoting United States v. Lanier, 520 U.S. 259,  270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))


81
We first examine whether the plaintiffs presented evidence of a deprivation of  an actual First Amendment right. A public employee has a limited right to free  speech. See Maggio v. Sipple, 211 F.3d 1346, 1351 (11th Cir.2000). A public  employee's speech is constitutionally protected if the speech may be "fairly  characterized as constituting speech on a matter of public concern," and the  employee's interest in commenting on the matter outweighs the government's  interest "in promoting the efficiency of the public services it performs through  its employees." Id. (quoting Connick v. Myers, 461 U.S. 138, 142, 146, 103 S.Ct.  1684, 75 L.Ed.2d 708 (1983)); see also Pickering v. Board of Educ., 391 U.S.  563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (establishing the balancing test). In  determining whether a government employee's speech is related to a matter of  public concern, we must consider "the content, form, and context" of the speech.  See id. at 1352 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). Even if  the speech is protected, the Government may prevail if it can prove that "it  would have reached the same decision ... even in the absence of protected  conduct." Grigley v. City of Atlanta, 136 F.3d 752, 754 (11th Cir.1998) (quoting  Bryson v. City of Waycross, 888 F.2d 1562, 1566 (11th Cir.1989)) (internal  quotations omitted).


82
1.Speech Related to a Matter of Public Concern


83
As discussed above, the plaintiffs did not clearly specify the allegedly  protected speech until oral argument before this court. In response to a  question from the court, plaintiffs stated that the violation of plaintiffs'  right to speak out about a matter of public concern at issue in this appeal  occurred when "plaintiffs approached Walker to present information regarding the  jail records tampering."7 Accordingly, our analysis of the alleged protected  speech will be limited to the request by Sergeant Oladeinde and Officer Fields  for permission to make a report to the district attorney, Captain Walker's  refusal, and the alleged retaliatory acts that followed.8


84
The record shows that Sergeant Oladeinde and Officer Fields requested Captain  Walker's permission to report to the district attorney that Officer Fields had  seen two fellow officers looking at jail records concerning the arrest of Mayor  Arrington's daughter. Officer Fields refused Captain Walker's request that she  disclose what she had observed. Sergeant Oladeinde also refused to reveal what  Officer Fields had told her about the conduct of the two BPD officers regarding  the jail records. After Officer Fields informed Captain Walker that she had not  observed the commission of a crime by the two BPD police officers, Captain  Walker denied their request to go to the district attorney, and directed the  plaintiffs to make a report to the IAD.


85
While Officer Fields failed to disclose any facts concerning her observations,  including the names of the officers, she did inform Captain Walker that it  related to the investigation of Chief Deutsch's alleged tampering of arrest  records. See Stanley v. City of Dalton, 219 F.3d 1280 (11th Cir.2000) ("Although  the theoretical form of [the plaintiff's] statements affects the weight we give  this speech in the Pickering balance, it does not defeat the public concern  nature of [his] speech."). Clearly, it is a matter of public concern that a  police chief and members of his department would tamper with public records to  cover up the criminal conduct of a family member of the highest elected official  of a city. Such speech relates to a "matter of political, social, or other  concern to the community." See Maggio, 211 F.3d at 1352 (quoting Connick, 461  U.S. at 146, 103 S.Ct. 1684) (describing speech that constitutes a matter of  public concern). An attempt to disclose alleged corruption within a police  department is speech related to a matter of public concern because "a core  concern of the first amendment is the protection of the 'whistle-blower'  attempting to expose government corruption." Bryson, 888 F.2d at 1566; see also  Cooper v. Smith, 89 F.3d 761, 765 (11th Cir.1996) ("There can be no doubt that  corruption in a police department is an issue of public concern."); Fikes v.  City of Daphne, 79 F.3d 1079, 1084 (11th Cir.1996) (same); Stanley, 219 F.3d  1280 (same).


86
Chief Deutsch and Captain Walker argue that the speech did not involve a matter  of public concern because Officer Fields made her observations in the course of  her work as a police officer. They also note that Officer Fields reported her  observations to her supervisor, Captain Walker, and not to the public. Chief  Deutsch and Captain Walker assert that this case is therefore controlled by  Morris v. Crow, 142 F.3d 1379 (11th Cir.1998). In Morris, this court held that  the plaintiff's speech did not involve a matter of public concern because his  speech "was generated pursuant to his official and customary duties as an  accident investigator with the sheriff's office." Id. at 1382. This court based  its conclusion that the speech was not related to a matter of public concern,  however, on the fact that there was nothing in the record demonstrating that the  plaintiff's purpose "was to bring to light any wrongdoing or to do any more than  accurately report an accident in the course of his employment." Id.


87
Unlike the plaintiff in Morris, Officer Fields informed Captain Walker that she  observed two BPD police officers looking at records involved in the  investigation of Chief Deutsch's alleged tampering with prison records.  Sergeant. Oladeinde's and Officer Fields's purpose was to bring possible  wrongdoing to light. Simply because the plaintiffs sought permission from their  supervisor before reporting the information to the district attorney does not  remove their speech from the public's interest. Nor does the fact that the  plaintiffs did not report Officer Fields's observations to the district attorney  change the fact that the speech suppressed by Captain Walker was related to a  matter of public concern. See Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290,  1296 (11th Cir.1998) (rejecting argument that a plaintiff's speech was not  related to a matter of public concern simply because the speech was made solely  in the confines of the workplace) (citing Connick, 461 U.S. at 149, 103 S.Ct.  1684); Morgan v. Ford, 6 F.3d 750, 754 n. 5 (11th Cir.1993) (recognizing that,  although it is a relevant factor, "a court cannot determine that an utterance is  not a matter of public concern solely because the employee does not air the  concerns to the public"); see also Dill v. City of Edmond, 155 F.3d 1193, 1202  (10th Cir.1998) ("[T]he fact that Plaintiff chose a private forum within the  police department and the district attorney's office, rather than a public  forum, does not remove the speech from First Amendment protection."). We are  persuaded that the plaintiffs' speech in this case was related to a matter of  public concern.

2.Pickering Balancing Test

88
In order to establish that their speech was protected, a plaintiff must do more  than assert that the speech relates to a matter of public concern. A plaintiff  must also demonstrate that his or her interest in speaking out on the matter is  not outweighed by the government's interest "in promoting the efficiency of the  public services it performs through its employees." Maggio, 211 F.3d at 1351  (quoting Connick, 461 U.S. at 142, 103 S.Ct. 1684); see also Pickering, 391 U.S.  at 568, 88 S.Ct. 1731 (establishing the balancing test). Several factors inform  our analysis of the government's interest in the efficient provision of public  services: "(1) whether the speech at issue impedes the government's ability to  perform its duties efficiently, (2) the manner, time and place of the speech,  and (3) the context within which the speech was made." Bryson, 888 F.2d at 1567.


89
In considering these factors in a  1983 action brought by police officers  against their public employer, we are required to consider the fact that members  of a law enforcement agency are part of a quasi-military organization. See  Hansen v. Soldenwagner, 19 F.3d 573, 577 (11th Cir.1994) ("[T]he Pickering  balance is also affected ... by the special concerns of quasi-military  organizations such as police departments."). In a law enforcement agency, there  is a heightened need for order, loyalty, morale and harmony, which affords a  police department more latitude in responding to the speech of its officers than  other government employers. See Rogers v. Miller, 57 F.3d 986, 991 (11th  Cir.1995) (citing Hansen, 19 F.3d at 577); see also O'Donnell v. Barry, 148 F.3d  1126, 1135 (D.C.Cir.1998) ("[B]ecause of the special degree of trust and  discipline required in a police force there may be a stronger governmental  interest in regulating the speech of police officers than in regulating the  speech of other governmental employees."); Dill, 155 F.3d at 1203 (recognizing  that the government's interest is "particularly acute in the context of law  enforcement, where there is a heightened interest ... in maintaining discipline  and harmony among employees") (quoting Moore v. City of Wynnewood, 57 F.3d 924,  934 (10th Cir.1995)); Campbell v. Towse, 99 F.3d 820, 829-30 (7th Cir.1996) ("It  surely cannot be doubted that individuals who work in the highest echelons of  the command of a police department must be assured of the loyalty of their  immediate subordinates, as these subordinates are entrusted with carrying out  their orders, at times under the most trying conditions.").


90
Here, Officer Fields refused to disclose any facts to Captain Walker other than  that she observed two police officers looking at the arrest records of the  mayor's daughter and that they were not committing a crime. Sergeant Oladeinde  also refused Captain Walker's request that she provide further detail regarding  the information they wanted to report. Given the fact that the plaintiffs  provided no details regarding the alleged misconduct, and that they refused to  do so when asked by their commanding officer, the plaintiffs' speech was  disruptive to the efficient operation of the BPD.


91
Because they refused to name the BPD police officers observed by Officer Fields,  Captain Walker was unable to determine whether the officers observed by Officer  Fields were conducting an authorized investigation of Chief Deutsch's alleged  misconduct, or if they were engaged in a non-criminal violation of departmental  regulations calling for administrative discipline. Without any verifiable facts,  the BPD had an interest in keeping Officer Fields's allegations against the BPD  police officers within that agency until the IAD could investigate their  conduct, especially because Officer Fields stated that they were not committing  any crime.


92
In Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991), this court recognized  that "[i]n quasi-military organizations such as law enforcement agencies,  comments concerning co-workers' performance of their duties and superior  officers' integrity can directly interfere with the confidentiality, esprit de  corps and efficient operation of the police department." Id. at 774 (quoting  Egger v. Phillips, 710 F.2d 292, 327 (7th Cir.1983)) (internal quotations  omitted); see also Stanley, 219 F.3d 1280 (recognizing that a police department  has a strong interest in preventing its officers from making unfounded  accusations against a superior officer because it "could be considered  disruptive and potentially undermining to the mutual respect and confidence  needed for fellow officers in a police department"). In Busby, this court  concluded that, in light of these interests of a law enforcement agency, the  defendants were entitled to qualified immunity because the defendants "did not  bar [the plaintiff] from voicing her complaints; they merely sought to delay her  access to a public forum until after the [ ] internal affairs division could  investigate her complaints." Id. Like the defendant in Busby, Captain Walker did  not order the plaintiffs not to disclose Officer Fields's observations. Rather,  he directed the plaintiffs to report it to IAD.


93
Furthermore, the plaintiffs' speech interfered with the efficient operation of  the BPD because they refused to disclose the nature of the information to  Captain Walker after he requested them to do so. Such a refusal of their  commanding officer's order demonstrates that the plaintiffs' speech interfered  with the BPD's strong interest in maintaining discipline and loyalty of its  officers. See Rogers, 57 F.3d at 991 (holding that, given the special need for  order and loyalty, a supervising officer in the sheriff's department was  entitled to qualified immunity for transferring his subordinate where the  supervisor expressed concern that he could no longer supervise the subordinate  because of his speech activities); see also Campbell, 99 F.3d at 829-30 ("It  surely cannot be doubted that individuals who work in the highest echelons of  the command of a police department must be assured of the loyalty of their  immediate subordinates, as these subordinates are entrusted with carrying out  their orders, at times under the most trying conditions."); Cochran v. City of  Los Angeles, 222 F.3d 1195 (9th Cir.2000) (concluding that a city has a  significant interest in responding to a police officer's speech where the speech  "impair[ed] discipline by superiors.") (citation omitted). Indeed, the record  shows that the tension between Captain Walker and the plaintiffs was a primary  reason for transferring them out of the Narcotics Unit. Thus, the plaintiffs'  interest in taking the information to the district attorney was outweighed by  the BPD's interests in its efficient operation given the disruption that might  be caused if the plaintiffs reported Officer Fields's observations to the  district attorney without a prior investigation by IAD. Furthermore, a report by  Officer Fields to the district attorney of her undisclosed and unverified  observations, prior to an investigation by the IAD, would have created a risk of  harming the reputation and careers of two BPD officers who may not have  committed any misconduct. Permitting such an injustice undoubtedly would have  harmed the morale of the members of the BPD.


94
We conclude that the plaintiffs' speech was not protected because their interest  in speaking out was outweighed by the BPD's interests in maintaining order,  loyalty, morale, and harmony. Because the plaintiffs have not demonstrated a  violation of a right protected by the First Amendment, we need not proceed to an  analysis of whether the law was clearly established. Likewise, we need not  consider whether their transfers, and the failure to promote Sergeant Oladeinde  were retaliatory. We conclude that Captain Walker and Chief Deutsch were  entitled to the protection of the defense of qualified immunity as a matter of  law. Thus, the district court erred in submitting this question to the jury, see  Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)  ("The entitlement is an immunity from suit rather than a mere defense to  liability ...."), and in denying their renewed motions for a judgment as a  matter of law.

IV
THE CITY'S APPEAL

95
In response to the district court's special interrogatories, the jury found that  Chief Deutsch and Captain Walker were not policy makers for the City, and that  the City did not have any policy that encouraged Chief Deutsch and Captain  Walker to violate  1983. Based on these conclusions, the jury found that the  City was not liable to Sergeant Oladeinde or Officer Fields for money damages.


96
A city or local government agency "may not be held liable for constitutional  deprivations on the theory of respondeat superior. Rather, they may be held  liable only if such constitutional torts result from an official government  policy, the actions of an official fairly deemed to represent government policy,  or a custom or practice so pervasive and well-settled that it assumes the force  of law." Denno v. School Bd. of Volusia County, 218 F.3d 1267, 1276 (11th  Cir.2000) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98  S.Ct. 2018, 56 L.Ed.2d 611 (1978)). An official represents government policy if  he or she has final policy making authority. See id. Furthermore, "[f]inal  policy making authority over a particular subject area does not vest in an  official whose decisions in the area are subject to meaningful administrative  review." Id. (quoting Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th  Cir.1997)). The opportunity for meaningful review will suffice to divest an  official of any policy making authority. See id. at 1276.


97
In response to a post trial motion filed by Sergeant Oladeinde, the district  court ordered the City to promote her to the rank of lieutenant based on the  jury's implied finding that Chief Deutsch retaliated against her because of her  exercise of her right to speak regarding a matter of public concern. We have  concluded that Sergeant Oladeinde failed to prove that her speech was protected.  Accordingly, Chief Deutsch's refusal to promote her was not in retaliation for  the exercise of her First Amendment rights. Thus, even if we assume that the  court correctly determined that the City was liable for Chief Deutsch's conduct  because he was a policy maker, since the record does not show a violation of   1983 by Chief Deutsch, the court erred in granting injunctive relief to Sergeant  Oladeinde.

V
JUDGMENT FOR DAMAGES AGAINST OLADEINDE

98
In her cross-appeal, Sergeant Oladeinde requests that we reverse the judgment  against her in the amount of $2,056. She contends that because the counter-claim  against her was founded on a theory of quasi-contract, or breach of implied  contract, the district court erred in instructing the jury concerning the crimes  of conversion and embezzlement. Sergeant Oladeinde further argues that the City  tried to trick the jury into believing that she had in fact been dishonest about  the missing money in her drug account by arguing that the polygraph evidence  demonstrated that Sergeant Oladeinde had been dishonest.


99
We review de novo the question whether the court's instructions to the jury  misstated the law or misled the jury to the prejudice of the objecting party.9  See Palmer v. Board of Regents, 208 F.3d 969, 973 (11th Cir.2000). In  determining whether there was reversible error, we consider the jury  instructions as a whole. See Torcise v. Community Bank of Homestead, 116 F.3d  860, 868 (11th Cir.1997). "We will not overturn a jury verdict because of an  erroneous jury instruction unless there is also a showing of prejudice." Mosher  v. Speedstar Division of AMCA Int'l, Inc., 979 F.2d 823, 826 (11th Cir.1992).


100
The plaintiffs have failed to demonstrate that the court's instruction on  embezzlement was prejudicial. In addition to instructing the jury on theories of  embezzlement and conversion, the district court instructed the jury on a theory  of money had and received. The district court admonished the jury as follows:


101
The City seeks to recover from the plaintiff money which it contends plaintiff  Oladeinde received but which rightfully belongs to the City. When a person  receives money belonging to another, the law creates an implied promise to  repay it. The measure for damages for money had and received is the amount of  money belonging to the defendant ... which the defendant counterclaimant  proves by a preponderance of the evidence that it was received by Oladeinde  and which she was bound to return together with interest....


102
This instruction captures the essence of the quasi-contract instruction that  Sergeant Oladeinde proposed to the court.10 See Schafer v. Time Inc., 142 F.3d  1361, 1368 (11th Cir.1998) ("[T]he trial judge is entitled to wide discretion  over the style and wording employed as long as the instructions accurately  reflect the law."). The interrogatory to the jury simply asked: "Did the City  prove by a preponderance of the evidence that Oladeinde owes some amount of  money to the City?" The jury answered affirmatively.


103
The jury could not have found Sergeant Oladeinde liable to the City unless, at a  minimum, it believed that Sergeant Oladeinde was owed money to the City under a  quasi-contract theory. The record supports such a finding because Sergeant  Oladeinde admitted that she had received the money from the City, that she was  responsible for it, and that she could not account for $2,056 of it. The  instructions did not allow the jury to find Sergeant Oladeinde liable under a  theory that imposed a lesser burden of proof on the City than that she  requested.


104
Sergeant Oladeinde did not object to City's argument to the jury regarding the  polygraph test. We review, therefore, only for plain error. See Oxford Furniture  Cos. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1128 (11th Cir.1993).  In a civil trial, a finding of plain error is seldom justified in reviewing  counsel's arguments. See id. The district court did not commit plain error  because the jury could have found Sergeant Oladeinde liable to the City for  $2,056 without also concluding that Sergeant Oladeinde was dishonest in failing  to return the money to the City.

VI
CONCLUSION

105
We REVERSE the judgment against Captain Walker and Chief Deutsch because  Sergeant Oladeinde and Officer Fields failed to present evidence that  demonstrates that they were engaged in speech protected by the First Amendment. We REMAND with directions that the district court vacate its order denying the  renewed motions for a judgment as a matter of law and to enter an order granting  such motions. We REVERSE the judgment against the City requiring it to promote  Sergeant Oladeinde because Chief Deutsch did not retaliate against her for the  exercise of protected speech. We AFFIRM the judgment on the counterclaim in  favor of the City.


106
REVERSED in part, REMANDED in part, and AFFIRMED in part.



NOTES


*
 Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting  by designation.


1
  IAD is the unit of the BPD charged with the responsibility of investigating  corruption by members of the BPD.


2
  At this time, an investigation was ongoing regarding whether Chief Deutsch had  tampered with the records pertaining to the arrest of the mayor's daughter.


3
  Rule 36-1 states:
When the court determines that any of the following circumstances exist:
(a)the judgment of the district court is based on findings of fact that are not  clearly erroneous;
(b)the evidence in support of a jury verdict is sufficient;
(c)the order of an administrative agency is supported by substantial evidence on  the record as a whole;
(d)a summary judgment, directed verdict, or judgment on the pleadings is  supported by the record;
(e)the judgment has been entered without an error of law; and an opinion would have no precedential value, the judgment or order may be  affirmed or enforced without opinion. 11th Cir. R. 36-1.


4
  The plaintiffs opposition reads as follows:
The distinction drawn in Morgan v. Ford, 6 F.3d 750 (11th Cir.1993), and Morris  v. Crow, [142 F.3d 1379,] No. 97-2784, Slip. op. (11th Cir. June 9, 1998) (per  curiam) (two decisions which post-date the law of this case), between speech for  private advantage on one hand (i.e., "upon matters of personal interest,")  Morris, ante, and matters of public concern raised in ways which show that  private advantage was not the main aspect of the speech, applies with full force  in the plaintiffs' favor. The verdicts against Deutsch and in Walker are  consistent with the distinction and clearly supported by it.
At the meeting in which Walker threatened and intimidated them, the plaintiffs  spoke of evidence of official wrongdoing, namely Deutsch's role in the so-called  "jail records case." The plaintiffs testified that Walker ranted against them  throughout the meeting and continued to pose a derringer and bullets after they  asked him (unsuccessfully) for permission to take the evidence to outside  authority (the county D.A.). Walker denied the plaintiffs' accounts, describing  the gunplay as an "ice-breaker." The jurors believed the plaintiffs instead.  (They may have also considered rebuttal evidence which powerfully impeached  Walker's credibility.)
The plaintiffs notified their superiors of Walker's possession and use of the  derringer, an unauthorized firearm they reported (speech also on official  wrongdoing). Walker responded by officially complaining against plaintiff  Oladeinde, a step which led, the circumstances indicate, to her transfer from  narcotics duty. (footnote omitted.) Deutsch authorized the transfer (the  evidence proves), a fact from which the jurors could infer Deutsch's knowledge  of the instant events. (The inference could have been drawn, and properly so,  separate from or together with other evidence.)
Even before Walker's complaint, an emissary of the City of Birmingham (City) and  Mayor Arrington tracked the plaintiffs down to question them about the  information they communicated to Walker during the meeting. (The emissary was  attorney Whatley, whom the Mayor conceded had been retained.) Again, jurors  could infer Deutsch's knowledge of the events. Thereafter, in short order (a  matter of months), Deutsch denied Oladeinde's promotion to lieutenant. The  evidence of that act showed it to be retaliatory, or so the jury found.


5
  Although the district court included Captain Walker's testimony as one of the  relevant acts of retaliation, he testified in the Ricky Germany trial on July  31, 1990. This was over five months before the plaintiffs' meeting with Captain  Walker, at which time, they requested permission to report information regarding  the records tampering case to the district attorney. His testimony, therefore,  could not have been in retaliation for that speech.


6
  The district court listed the plaintiffs' contentions at the start of its  memorandum opinion accompanying its order denying the defendants' summary  judgment motion. Although it listed several alleged retaliatory actions since  the filing of the law suit, it did not include the denial of the promotion.  Later in its memorandum opinion, it made reference to the failed promotion  request, but noted that "[i]t is beyond this court's ability to infer not only  that Oladeinde was 'certified' for promotion but also that this certification  necessarily entitled her to a promotion. Accordingly, the failure to promote  Oladeinde may not be received as evidence relevant to her First Amendment claim,  depending upon what the condition of the evidence is at the time."


7
  In their responsive brief, the plaintiffs argued as follows: "The plaintiffs  proved the speech which grounds Deutsch's and Walker's liability. The verdicts  rest on the tampering information against Deutsch, which the defense referred to  as the second area of speech."


8
  The plaintiffs include Captain Walker's brandishing of the derringer as one of  these retaliatory acts. The record shows, however, that Captain Walker placed  the derringer on his desk before the plaintiffs disclosed that the purpose of  the meeting was to request permission to report Officer Fields's observations to  the district attorney concerning the conduct of the two officers in looking at  the records involved in the tampering case against Chief Deutsch. This act,  therefore, could not have been in retaliation against the plaintiffs' exercise  of their First Amendment rights.


9
  The City asserts that Sergeant Oladeinde waived her right to challenge the jury  instructions on appeal because she failed to object to them. The record reveals  that Sergeant Oladeinde filed a response to the defendants' proposed jury  instructions in which she objected to the use of the instructions for  embezzlement and conversion because they would be inflammatory, prejudicial, and  inconsistent with the counterclaim. Thus, even though she did not object at the  time the district court read the instructions to the jury, the trial court was  adequately informed as to her contentions. See Industrial Dev. Bd. v. Fuqua  Indus., Inc., 523 F.2d 1226, 1238 (5th Cir.1975).


10
  Sergeant Oladeinde requested that the instruction state, in part: When because of the acts of the parties, or others, someone comes into  possession of money under such circumstances that in equity and good conscience  that person ought not to be allowed to retain it and which in justice and  fairness belongs to another, the law implies the obligation to pay or deliver it  to the one entitled thereto. If you are reasonably satisfied from the evidence  that a quasi-contract exists, and that Oladeinde received a benefit from the  City when she received the money (if you find that she received it); and that  she accepted and retained the benefit under such circumstances that it would be  unjust and unfair for her to retain it without paying the value thereof, then  the City would be entitled to recover the reasonable value of the benefit  received.


