                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRIAN HAGEN,                              No. 12-35492
                 Plaintiff-Appellee,
                                            D.C. No.
                v.                       6:10-cv-06100-
                                               AA
CITY OF EUGENE, PETER KERNS,
JENNIFER BILLS, TOM EICHHORN,
            Defendants-Appellants.         OPINION


     Appeal from the United States District Court
              for the District of Oregon
     Ann L. Aiken, Chief District Judge, Presiding

             Argued and Submitted
        November 8, 2013—Portland, Oregon

                Filed December 3, 2013

    Before: Arthur L. Alarcón, Milan D. Smith, Jr.,
       and Andrew D. Hurwitz, Circuit Judges.

               Opinion by Judge Alarcón
2                  HAGEN V. CITY OF EUGENE

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s denial of
defendants’ motion for judgment as a matter of law,
following a jury trial, in a 42 U.S.C. § 1983 action in which
plaintiff alleged that defendants violated his First Amendment
rights when they removed him from his position with the
Eugene Police Department’s K-9 team in retaliation for his
repeatedly airing concerns about work-related safety issues to
his supervisors.

    The panel concluded that the evidence presented to the
jury did not reasonably permit the conclusion that plaintiff
established a First Amendment retaliation claim. Where, as
in this case, a public employee reports departmental-safety
concerns to his or her supervisors pursuant to a duty to do so,
that employee does not speak as a private citizen and is not
entitled to First Amendment protection. The panel reversed
the judgment and held that defendants were entitled to
judgment as a matter of law.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 HAGEN V. CITY OF EUGENE                      3

                         COUNSEL

Jerome Lidz (argued), Glenn Klein, City of Eugene
Prosecutors Office, Eugene, Oregon, for Defendants-
Appellants.

Jamie B. Goldberg (argued), Makler Lemoine & Goldberg
PC, Portland, Oregon, for Plaintiff-Appellee.


                          OPINION

ALARCÓN, Senior Circuit Judge:

     The City of Eugene and Eugene Police Department (EPD)
Chief of Police Peter Kerns, Lieutenant Jennifer Bills, and
Sergeant Tom Eichhorn appeal from the district court’s denial
of their motion pursuant to Rule 50(b) of the Federal Rules of
Civil Procedure for a judgment as a matter of law (JMOL).
Hagen alleged Appellants violated his First Amendment
rights when they removed him from his position on the EPD
K-9 team in retaliation for repeatedly airing concerns about
work-related safety issues to his supervisors. After a two-day
trial, a jury found in Hagen’s favor against all Appellants.
We have jurisdiction under 28 U.S.C. § 1291.

    We conclude that the evidence presented to the jury does
not reasonably permit the conclusion that Hagen established
a First Amendment retaliation claim. Where, as here, a
public employee reports departmental-safety concerns to his
or her supervisors pursuant to a duty to do so, that employee
does not speak as a private citizen and is not entitled to First
Amendment protection. We reverse the judgment below and
4                HAGEN V. CITY OF EUGENE

hold that Appellants were entitled to judgment as a matter of
law.

                              I

                              A

    Brian Hagen began working for the EPD in 1998, where
he joined the K-9 unit in 2004. As a K-9 officer, Hagen
occasionally deployed with the SWAT team for potentially
dangerous operations.

    As early as the late 1990s, the EPD SWAT team began
experiencing problems with officers negligently discharging
firearms. In an early example, Sergeant Jay Shadwick—who
supervised the K-9 team when Hagen joined in 2004—was
shot by a SWAT team sniper during an operation in 2001.

    The accidental discharges continued after Hagen joined
the K-9 team. In 2005, a SWAT team officer unintentionally
pulled the trigger on his rifle as he attempted to pull the pin
on a flash-bang grenade during the execution of a search
warrant. The rifle was aimed at the ground. Nobody was
hurt. Following that incident, Hagen and his fellow K-9
officers, Mark Hubbard and Robert Rosales, voiced concern
over the accident to their supervisor, Sgt. Tom Eichorn.

     In January 2007, a SWAT officer accidentally shot
another officer when he mishandled his rifle while climbing
a fence. The following week, Eichhorn met briefly with
officers Hagen, Hubbard, and Rosales to further address their
safety concerns. When pressed for details about EPD’s
proposed response to their safety concerns, Eichhorn became
irritated and expressed frustration that the issue was being
                   HAGEN V. CITY OF EUGENE                            5

raised again. After that meeting, Hagen voluntarily took the
lead among the K-9 officers in coordinating their complaints.

    In April 2007, another SWAT officer unintentionally
discharged his rifle during the execution of a search warrant
due to a technical malfunction, this time in a residential
neighborhood. In an effort to make his growing safety
concerns “as public as possible” following this third shooting
in two years, Hagen sent an e-mail on May 23, 2007, to a
number of sergeants with K-9 and SWAT team experience,
inviting them to a meeting at city hall on May 30, 2007, to
discuss “safety issues related to our close working
relationship with the SWAT team.” “Most of these issues,”
the e-mail explained, “surround the recent accidental
discharges and how [the K-9 and SWAT] teams could be
better equipped or trained to function more safely together.”
The record is unclear whether this meeting took place on May
30, 2007, as requested. Three days after Hagen e-mailed this
invitation, then-Chief of Police Robert Lehner suspended
SWAT operations so that safety issues could be resolved.1

    On June 13, while SWAT operations were still suspended,
Hagen met at city hall with Hubbard and Rosales from the K-
9 team, Lt. Aguilar, and Sgt. Eichhorn to address negligent-
discharge concerns. The SWAT team was reactivated on
June 20, 2007. By early 2008, Hagen and his fellow K-9
officers still had received no detailed information about
improvements to the SWAT team’s weapons handling.




 1
   Defendant Pete Kerns became acting Chief of Police on October 17,
2008, and continued in that position until officially appointed Chief of
Police on August 28, 2009.
6                HAGEN V. CITY OF EUGENE

    A meeting was held in April 2008 between the SWAT
and K-9 teams, including Sgt. Eichhorn. Hagen again
reiterated his safety concerns regarding the accidental weapon
discharges. Sgt. Eichhorn became noticeably uncomfortable
when those present asked him to whom he had been relaying
Hagen’s repeated complaints.

    On May 28, 2008, Sgt. Eichhorn informed Hagen that he
would be transferred out of the K-9 unit to a new patrol team.
Sgt. Eichhorn explained that he chose to transfer Hagen, as
opposed to K-9 officers Hubbard or Rosales, because Hagen
was “the spokesman for the majority of the complaints,” had
a low activity level, and “repeatedly engaged in what [Sgt.
Eichhorn deemed] to be passive insubordination.” On July
28, 2008, Chief Lehner reversed Sgt. Eichhorn’s decision to
transfer Hagen because Hagen’s performance evaluations had
been strong, and because Hagen had not been notified of any
deficiencies in his performance.

    Shortly after Chief Lehner rescinded Hagen’s transfer,
Sgt. Eichhorn e-mailed Lt. Aguilar a list of concerns about
Hagen’s job performance. These concerns included Hagen’s
failure to maintain training logs, resistence to changes in
procedure, high bite ratios, use of force beyond his training,
and resistence to working with the SWAT team. Sgt.
Eichhorn later acknowledged that after he decided to remove
Hagen from the K-9 team, he began writing negatively about
events that he had previously regarded positively or neutrally.

    In late August 2008, Hagen met with Sgt. Eichhorn and
Lt. Aguilar to discuss Hagen’s tenure on the K-9 team. They
gave Hagen a Performance Expectations memorandum,
which included several of the concerns itemized in Sgt.
Eichhorn’s earlier list. Then in October 2008, Sgt. Eichhorn
                HAGEN V. CITY OF EUGENE                    7

and Lt. Bills placed Hagen on a formal Performance
Management Plan. The memorandum documenting the Plan
noted that “situations and concerns ha[d] arisen with regard
to [Hagen’s] job performance” over “the last several months”
and expanded on the performance expectations Sgt. Eichhorn
and Lt. Aguilar had outlined for Hagen in August. In a
subsequent February 2009 Performance Evaluation, Sgt.
Eichhorn rated Hagen’s work significantly lower than he had
in the previous two years.

    In March 2009, Lt. Bills placed the K-9 team on stand-
down after she learned from the city’s risk manager that “the
canine officers were not talking to Sergeant Eichhorn about
safety problems on the team.” Lt. Bills testified that she
believed this lack of communication raised serious liability,
safety, and risk issues, and threatened the cohesion and
general functioning of the K-9 team. During the stand-down,
Lt. Bills investigated these safety and communication
concerns by interviewing K-9 officers Hagen, Hubbard, and
Rosales, as well as Sgt. Eichhorn.           Following the
investigation, Lt. Bills determined that “a serious
performance issue exist[ed] with the officers that pose[d] a
significant risk to team safety” and recommended that
officers Hagen, Hubbard, and Rosales be reassigned from the
K-9 unit to patrol.

    In May 2009, after the stand-down and investigation, Lt.
Bills reactivated officers Rosales and Hubbard to their K-9
duties, on the condition that they adhere to the chain of
command and follow specified K-9 operations procedures.
Lt. Bills decided, however, to transfer Hagen from the K-9
unit. Following her investigation, Lt. Bills presented this
decision to then-acting Chief of Police Kerns, who expressed
no concerns about Lt. Bills’s decision despite his knowledge
8                HAGEN V. CITY OF EUGENE

that Hagen believed he was being retaliated against for airing
his SWAT safety concerns. Lt. Bills later explained that her
decision to transfer Hagen from the K-9 team was motivated
by Hagen’s unwillingness to speak or resolve issues with Sgt.
Eichhorn, in contrast to officers Rosales and Hubbard, who
were more willing to do anything to work things out with Sgt.
Eichhorn. Hagen had told Lt. Bills during his interview with
her, however, that he was “willing to do whatever it takes” to
resolve trust and communication issues with Sgt. Eichhorn.

                               B

    In April 2010, Hagen sued the City of Eugene, Chief
Kerns, Lt. Bills, and Sgt. Eichhorn under 42 U.S.C. § 1983.
He alleged that the individual Appellants deprived him of his
constitutional rights by retaliating against him for exercising
his free-speech rights under the First Amendment. Hagen
sought to hold the City of Eugene liable for the individual
Appellants’ personnel actions on the theory that Chief Kerns
was a final policymaker for the City and had ratified
Appellants’ retaliatory conduct on behalf of the City.

    Following discovery, Appellants moved for summary
judgment on Hagen’s First Amendment retaliation claim.
They argued that (1) Hagen’s speech was not a matter of
public concern; (2) Hagen spoke as a public employee, not as
a private citizen; and (3) Hagen could not show that his
allegedly protected speech was a substantial or motivating
factor behind his adverse employment action. In denying the
motion for summary judgment, the court concluded that
Hagen’s speech “was a matter of public concern as a matter
of law” because “accidental firearms discharges by police
officers while in the field are inherently public,” regardless of
Hagen’s own personal-safety concerns. But the district court
                 HAGEN V. CITY OF EUGENE                      9

also determined that issues of fact remained “regarding the
scope and content of plaintiff’s job responsibilities,” and thus
it was “unable to rule as a matter of law” whether Hagen
spoke in his capacity as a private citizen or a public
employee.

    The parties stipulated to have the court decide whether
Hagen’s safety complaints involved a matter of public
concern. The day after a hearing on that issue, but before the
court issued a ruling, Appellants moved “for judgment in
their favor based on qualified immunity on [the] ‘public
concern’ issue,” pursuant to Rule 52(c) of the Federal Rules
of Civil Procedure. The district court denied Appellants’
motion, holding that Hagen’s complaints involved a matter of
public concern as a matter of law.

    The district court held a jury trial the following week. At
the close of Hagen’s case-in-chief, Appellants moved orally
for a JMOL under Rule 50(a) of the Federal Rules of Civil
Procedure. The court denied the motion.

    Following the close of Appellants’ case and after the
court instructed the jury, Appellants renewed their Rule 50(a)
motion “for the same reasons that were raised at the close of
plaintiff’s case.” The court again denied the motion without
comment.

   In a unanimous general verdict rendered on March 14,
2012, the jury found that Hagen had proved by a
preponderance of the evidence that each Appellant “had
deprived [him] of his First Amendment Right of Free Speech
under the United States Constitution.” The jury awarded
Hagen $50,000 in compensatory damages and $200,000 in
punitive damages (Kerns, $50,000; Bills, $50,000; Eichhorn,
10                 HAGEN V. CITY OF EUGENE

$100,000). The district court entered judgment in Hagen’s
favor on March 23, 2012.

     On April 19, 2012, Appellants moved for JMOL under
Rule 50(b).2 The district court denied the motion “based on
[its] prior rulings on the record, the evidence received at trial,
and the jury verdict.”

    Appellants timely appealed to this Court from the
judgment against them and the district court’s order denying
their Rule 50(b) motion.

                                 II

    “We review de novo a district court’s denial of a renewed
motion for judgment as a matter of law.” Barnard v.
Theobold, 721 F.3d 1069, 1075 (9th Cir. 2013). “Judgment
as a matter of law is appropriate when the evidence,
construed in the light most favorable to the nonmoving party,
permits only one reasonable conclusion, which is contrary to
the jury’s verdict.” Omega Envtl., Inc. v. Gilbarco, Inc.,
127 F.3d 1157, 1161 (9th Cir. 1997). Conversely, if there is
“such relevant evidence as reasonable minds might accept as
adequate to support [the jury’s] conclusion,” we must affirm
the denial of a JMOL motion. Gilbrook v. City of
Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (quoting



  2
    In conjunction with their JMOL motion following the jury verdict,
Appellants simultaneously moved for a new trial under Rule 59(a)(1)(A)
of the Federal Rules of Civil Procedure. They argued that the district
court’s exclusion of evidence of a grievance arbitration proceeding
prejudiced aspects of their defense. Appellants do not pursue this
argument on appeal.
                 HAGEN V. CITY OF EUGENE                    11

Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365,
1371 (9th Cir.1987)).

                             III

    Appellants contend that the district court erred in denying
their JMOL motion because Hagen failed to establish that he
spoke as a private citizen, a necessary element to his First
Amendment retaliation claim under Garcetti v. Ceballos,
547 U.S. 410 (2006). Specifically, Appellants argue that the
undisputed evidence at trial supported the conclusion that
Hagen “spoke as part of his public duties as a police officer,
not as a private citizen, because he was required by [the] City
and police department policy to report safety concerns.”
Hagen responds that he was not speaking as a public
employee because he “did not ‘report’ anything” pursuant to
a “job duty” but rather “discussed his concerns” about
accidents taking place at work.

                              A

    The First Amendment shields public employees from
employment retaliation for their protected speech activities.
Garcetti, 547 U.S. at 417. We have explained, however, that
our “recognition for ‘the State’s interests as an employer in
regulating the speech of its employees’” requires us to
“‘arrive at a balance between the interests of the [public
employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.’” Karl v. City of Mountlake Terrace,
678 F.3d 1062, 1068 (9th Cir. 2012) (quoting Connick v.
Myers, 461 U.S. 138, 140 (1983); Pickering v. Bd. of Educ.,
12               HAGEN V. CITY OF EUGENE

391 U.S. 563, 568 (1968)). We strike this balance by asking
five questions:

       (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 plaintiff’s protected speech was a
       substantial or motivating factor in the adverse
       employment action; (4) whether the state had
       an adequate justification for treating the
       employee differently from other members of
       the general public; and (5) whether the state
       would have taken the adverse employment
       action even absent the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). “[A]ll
the factors are necessary, in the sense that failure to meet any
one of them is fatal to the plaintiff’s case.” Dahlia v.
Rodriguez, No. 10-55978, 2013 WL 4437594, at *5 n.4 (9th
Cir. Aug. 21, 2013) (en banc).

    The dispositive issue here is whether sufficient evidence
supports the jury’s finding that Hagen’s speech was protected
because he spoke as a private citizen. This is a mixed
question of law and fact. Posey v. Lake Pend Oreille Sch.
Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). “The
scope and content of a plaintiff’s job responsibilities is a
question of fact over which we lack jurisdiction, while ‘the
ultimate constitutional significance of the undisputed facts’
is a question of law.” Karl, 678 F.3d at 1071 (alteration
omitted) (quoting Eng, 552 F.3d at 1071).

  “A public employee’s speech is not protected by the First
Amendment when it is made pursuant to the employee’s
                 HAGEN V. CITY OF EUGENE                      13

official job responsibilities.” Id. (citing Garcetti, 547 U.S. at
426). Conversely, a public employee’s speech on a matter of
public concern is protected “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, 546 F.3d at 1127 n.2
(alteration and some internal quotation marks omitted)
(quoting Marable v. Nitchman, 511 F.3d 924, 933 (9th Cir.
2007); Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir. 2006)).
Statements do not lose First Amendment protection simply
because they concern “the subject matter of [the plaintiff’s]
employment.” Freitag, 468 F.3d at 545. But “speech which
‘owes its existence to an employee’s professional
responsibilities’ is not protected by the First Amendment.”
Huppert v. City of Pittsburg, 574 F.3d 696, 704 (9th Cir.
2009) (quoting Garcetti, 547 U.S. at 421), overruled on other
grounds by Dahlia, 2013 WL 4437594.

     Generally, “in a highly hierarchical employment setting
such as law enforcement,” Dahlia, 2013 WL 4437594, at *10,
“‘when a public employee raises complaints or concerns up
the chain of command at his workplace about his job duties,
that speech is undertaken in the course of performing his job,’
although ‘it is not dispositive that a public employee’s
statements are made internally,’” id. (citation omitted)
(quoting Davis v. McKinney, 518 F.3d 304, 313 & n.3 (5th
Cir. 2008)). If, on the other hand, “a public employee takes
his job concerns to persons outside the work place in addition
to raising them up the chain of command at his workplace,
then those external communications are ordinarily not made
as an employee, but as a citizen.” Id. (quoting McKinney,
518 F.3d at 313); see also Freitag, 468 F.3d at 545–46
(holding that where a prison official made “internal reports of
inmate sexual misconduct . . . the prison’s failure to respond,”
14               HAGEN V. CITY OF EUGENE

she spoke as a “public employee,” and that speech thus was
thus unprotected, but when she made external reports about
the same circumstances to a state senator and the state
inspector general, she “acted as a citizen,” and that speech
was protected under the First Amendment)).

    In Garcetti, the Supreme Court held that it was “not
dispositive” that an employee “expressed his views inside his
office, rather than publicly,” nor was it dispositive that an
employee wrote a memorandum that “concerned the subject
matter of [his] employment.” 547 U.S. at 421. While it
declined to “articulate a comprehensive framework for
defining the scope of an employee’s duties in cases where
there is room for serious debate,” the Court emphasized that
“[t]he proper inquiry is a practical one” untied to formal job
descriptions. Id. at 424–25; see also Dahlia, 2013 WL
4437594, at *10 (acknowledging “the fact-intensive nature of
the inquiry” and the fact that “no single formulation of factors
can encompass the full set of inquiries relevant to
determining the scope of a plaintiff’s job duties”).

                               B

    Hagen, like the public employee in Garcetti, expressed
his concerns about officer safety to coworkers and others
within the chain of command at EPD. His speech concerned
his employment and safety issues EPD officers were required
to report as part of the “tasks [they were] paid to perform.”
Ellins, 710 F.3d at 1058. As a K-9 officer, Hagen worked in
a “highly hierarchical employment setting.” Dahlia, 2013
WL 4437594, at *10. The evidence establishes that his
concerns were directed to his coworkers and his superior
officers.
                 HAGEN V. CITY OF EUGENE                     15

    Where an “employee prepares a routine report, pursuant
to normal departmental procedure about a particular incident
or occurrence, the employee’s preparation of that report is
typically within his job duties.” Dahlia, 2013 WL 4437594,
at *10 (citation omitted). Conversely, complaints regarding
“broad concerns about corruption or systemic abuse” are
unlikely to “be classified as being within the job duties of an
average public employee.” Id. All of Hagen’s complaints
involved safety concerns stemming from “particular
incident[s] or occurrence[s],” Dahlia, 2013 WL 4437594, at
*10, and the City of Eugene’s Human Resource and Risk
Services Administrative Policies and Procedures Manual
required him to report safety concerns. The Manual provides
that “[e]mployees are . . . responsible for reporting accidents,
faulty equipment, unsafe practices of fellow employees,
and/or unsafe conditions of work areas to their supervisors.”
In addition, a EPD General Order provides that employees
should “[r]eport any safety hazard or malfunctioning
equipment to [their] supervisor immediately so that corrective
action can be taken.”

    Notwithstanding his duty under this policy, Hagen argues
that he did not actually “report” anything “as that term is
used, understood and applied” in Garcetti because he was
“repeatedly bringing up well-known information.” He
maintains that Garcetti and other cases involving reports to
supervisors “have no relevance to a situation where, instead
of reporting information, plaintiff was repeatedly discussing
a known, dangerous situation until his supervisors eventually
became exasperated.” This Court rejected a similar
contention in Dahlia: “That [plaintiff’s supervisor] appears
to have ignored [plaintiff’s] initial report does not convert
into protected speech [plaintiff’s] later reports to the same
supervisor.” Dahlia, 2013 WL 4437594, at *12. Thus, the
16                  HAGEN V. CITY OF EUGENE

repetitive nature of Hagen’s complaints did not convert them
into private speech.

    Hagen contends that Marable v. Nichman, 511 F.3d 924
(9th Cir. 2007), places his safety complaints outside of his
official duties. We disagree. In Marable, a ship engineer
complained of corruption by the manager of the Washington
State Ferries. Id. at 927. This Court held that Garcetti was
inapplicable because it was not part of a ship engineer’s
assigned duties to complain about corrupt conduct of his
supervisors. Id. at 933. “Functionally,” we explained, “it
cannot be disputed that [Marable’s] job was to do the tasks of
a Chief Engineer on his ferry, and such tasks did not include
pointing to corrupt actions of higher level officials.” Id. at
932

    Here, in contrast, Hagen’s concerns about SWAT safety
were inextricably intertwined with his duties as a K-9 officer.
Hagen’s concerns—that the EPD SWAT team with which he
often deployed was poorly trained and therefore risked officer
and public safety—contain all the hallmarks of traditionally
internal work-place complaints one would typically expect an
officer to communicate to his superiors, even absent a formal
written duty to do so.

    That Hagen raised his concerns about his and his fellow
officers’ job safety internally and within the chain of
command cements our conclusion that his comments were
made as a public employee, and not as a private citizen.3


 3
   Hagen has not argued that he acted as a private person in reporting his
safety concerns to police union officials, nor has he presented any
evidence regarding the police union’s agreement with EPD concerning
employee grievances.
                 HAGEN V. CITY OF EUGENE                       17

Compare Dahlia, 2013 WL 4437594, at *10; id. at *12
(“Even construing the facts and drawing all inferences in
Dahlia’s favor, the only reasonable conclusion is that Dahlia
acted pursuant to his job duties when he . . . reported up the
chain of command to the supervising lieutenant overseeing
the investigation about abuse related to the same
investigation.”), with Andrew v. Clark, 651 F.3d 261, 266–67
(4th Cir. 2009) (finding that whether an officer’s
memorandum regarding the shooting death of a suspect “was
written as part of [the officer’s] official duties was a disputed
issue of material fact that cannot be decided on a motion to
dismiss pursuant to Rule 12(b)(6),” in part because the officer
leaked the memorandum to the Baltimore Sun).

     The district court instructed the jury that for Hagen to
prove that Appellants deprived him of his First Amendment
right, he had to prove by a preponderance of the evidence that
he “spoke as a citizen and not as part of his official duties.”
Implicit in the jury’s general verdict in his favor, therefore, is
its finding that Hagen did not air his safety concerns as a part
of his official duties. Construing the evidence in the light
most favorable to Hagen, however, “permits only one
reasonable conclusion,” Omega, 127 F.3d at 1161, which is
that as a factual and a practical matter, Hagen made his
repeated internal complaints about departmental safety and
officer competency only in his official capacity as an EPD
officer. Hagen therefore has not established a constitutional
violation.

                          Conclusion

    We conclude that, construing the evidence in the light
most favorable to Hagen, insufficient evidence supported the
jury’s finding that Hagen spoke as a private citizen. Hagen
18              HAGEN V. CITY OF EUGENE

had an official duty to report his safety concerns and thus
spoke as a public employee when he repeatedly complained
within the chain of command about work-related safety
issues. Because this conclusion is contrary to the jury’s
verdict, each Appellant was entitled to JMOL.

    We therefore REVERSE and REMAND with
instructions that the district court vacate its judgment in
Hagen’s favor and enter judgment in favor of Appellants on
each of Hagen’s claims.
