Carolyn C. Ritchie v. State of Hawaii, Department of Public Safety

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN C. RITCHIE,
Plaintiff-Appellant,
v.
STATE OF HAWAII, DEPARTMENT OF
PUBLIC SAFETY and NEAL
WATGATSUMA, in his official capacity as
Warden of the Kauai Community
Correctional Center, Department of Public
Safety, State of Hawaii, and in his individual
capacity,
Defendants-Appellees.
No. 17-15880
D.C. No.
1:14-cv-00046-LEK-KJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 9, 2018
Honolulu, Hawaii
Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.
In 2014, Carolyn Ritchie brought suit against the Hawaii Department of
Public Safety (“Department”) and Neil Wagatsuma, the warden at the Kauai
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Community Correctional Center (“Correctional Center”). Ritchie, a psychiatric
social worker at the Correctional Center between 2009 and 2012, alleged that she
was retaliated against after she made complaints about Wagatsuma’s treatment of
Correctional Center inmates and a correctional program run by Wagatsuma called
the Life Time Stand. Ritchie’s operative complaint raised six claims: a retaliation
claim against the state under Title VII, a claim under 42 U.S.C. § 1983 alleging
that Wagatsuma violated Ritchie’s First Amendment rights, and state-law
defamation, retaliation, wrongful termination, and intentional infliction of
emotional distress claims against Wagatsuma.
During trial, the district court granted judgment as a matter of law to
Wagatsuma on the § 1983 claim except to the extent it was based on the reports
Ritchie made to the Hawaii Disability Rights Commission and the Equal
Opportunity Commission. The district court reasoned that Ritchie’s First
Amendment rights were not violated because she was not acting as a private citizen
when she made internal reports regarding Wagatsuma’s conduct. But a jury,
following the law set forth by the Supreme Court and our circuit, could have
reasonably concluded that Ritchie spoke as a private citizen when she made
complaints to her supervisor and others in the Department. See Ninth Circuit
Comm. on Model Civil Jury Instrs., Manual of Model Civil Jury Instrs. for the Dist.
Courts of the Ninth Circuit § 9.10 (2017). Thus, we remand for a new trial on

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Ritchie’s § 1983 claim.1
A public employee’s speech on a topic of public concern, including speech
made at work, is protected by the First Amendment unless that speech is “made
pursuant to official responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 421, 424
(2006). “[B]ecause of the fact-intensive nature of the inquiry, no single
formulation of factors can encompass the full set of inquiries relevant to
determining the scope of a plaintiff’s job duties.” Dahlia v. Rodriguez, 735 F.3d
1060, 1074 (9th Cir. 2013) (en banc). Nonetheless, we have enumerated a number
of factors that a jury can consider during this inquiry.
First, jurors should consider “whether or not the employee confined his
communications to his chain of command.” Id. Here, Ritchie did not confine her
complaints to her chain of command. In addition to reporting the suspected abuse
to her supervisor, the record evidence indicates that Ritchie spoke to the
investigators from the Department’s Internal Affairs division. She also reported
the suspected abuse to the Hawaii State Department of Health, the American Civil
Liberties Union, the Federal Bureau of Investigation, the Hawaii State Attorney
General, and the Hawaii Disability Rights Center.
1 Ritchie also has challenged a number of the evidentiary rulings made by
the district court. If any abuse of discretion occurred, it was harmless error with
respect to the Title VII and state law claims presented to the jury regarding these
rulings. As we are reversing for a new trial on Ritchie’s First Amendment claim,
we do not address the evidentiary rulings with respect to that claim.

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Second, “when a public employee speaks in direct contravention to his
supervisor’s orders, that speech may often fall outside of the speaker’s professional
duties.” Id. at 1075. Stated in more general terms, a supervisor’s response to an
employee’s speech indicates whether that speech was as part of the employee’s job
duties. Here, Richie’s supervisor responded to one report by asking: “How much
of this do you want me to share with the warden[’]s supervisor?” This response
indicates that Ritchie was not required to make these complaints.
Third, jurors are instructed that a “routine report, [prepared] pursuant to
normal departmental procedure, about a particular incident or occurrence” is more
likely to be part of an employee’s job than a report addressing “broad concerns
about corruption or systemic abuse.” Id. Here, a juror could understand Ritchie’s
reports as addressing systemic abuse.
Although both our circuit and the Supreme Court have warned that
“employers cannot restrict employees’ rights by creating excessively broad job
descriptions,” id. at 1070 (quoting Garcetti, 547 U.S. at 424), the scope of a job
description remains a relevant consideration. Here, the job description for
psychiatric social workers at the Correctional Center does not state that social
workers were required to report suspected abuse occurring in the prison. Nor does
the description state that psychiatric social workers were supposed to assess the
efficacy of correctional programs such as Life Time Stand.

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The state, on appeal, largely relies on the fact that Ritchie testified that as a
licensed social worker, she was a mandatory reporter. The jury may consider this
fact when assessing whether Ritchie’s internal reports were part of her official
duties. But the jury could also consider that Richie was not acting as a mandatory
reporter when she made reports to her supervisor. In Hawaii, mandatory reporters
are required to report suspected abuse of vulnerable adults to the State Department
of Human Services, not their superiors.2 Haw. Rev. Stat. §§ 346-222, 346-224.
In sum, a juror reviewing the evidence in light of the factors set forth
in Dahlia and Garcetti could decide that Ritchie’s reports were not part of
her job. The district court erred in holding otherwise.3
Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
2 Hawaii’s relevant mandatory reporter statute covers a broad swath of
government and private employees, including all “[e]mployees or officers of any
public or private agency or institution providing social, medical, hospital, or
mental health services, including financial assistance,” and “any law enforcement
agency, including the courts, police departments, correctional institutions, and
parole or probation offices.” Haw. Rev. Stat. §§ 346-224(a)(2)-(3) (for abuse of
vulnerable adults); see also id. § 350-1.1 (for child abuse). The statute also covers
licensed social workers and a number of medical professionals, including dentists
and optometrists.
3 Because we remand Ritchie’s § 1983 claim for a new trial, we reverse the
district court’s award of costs to the Department and Wagatsuma.

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