Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brandon v. Liddy

United States District Court, D. Arizona

September 2, 2014

Maria Brandon, Plaintiff,
Tom Liddy, et al., Defendants.



Before the court is Defendants Maricopa County, Sandra Wilson, and Rocky Armfield's motion for judgment as a matter of law, or in the alternative for a new trial (doc. 217), Plaintiff Maria Brandon's response (doc. 225), and Defendants' reply (doc. 226). After a seven-day trial, the jury returned a verdict in favor of Brandon and against Maricopa County on Brandon's claim under 42 U.S.C. § 1983 for violation of Brandon's First Amendment rights and awarded nominal damages of $1.00. The jury also found in favor of Brandon and against Defendants Armfield and Wilson on Brandon's state law claim of tortious interference with employment contract and awarded Brandon $638, 147.94. Defendants have filed this motion for judgment as a matter of law challenging these verdicts.


Defendants first argue that the jury's verdict against Maricopa County on Brandon's First Amendment claim conflicts with the verdict in favor of the County on Brandon's wrongful termination claim, such that the verdicts must be vacated. According to Defendants the verdicts on the two claims are legally indistinguishable and thus no rational jury could find liability on one claim and not the other. Defendants' efforts to characterize this as something other than an inconsistency argument are wholly unpersuasive.

Where a verdict "contains two legal conclusions that are inconsistent with one another, " a party must object before the jury is discharged or risk waiving the objection. Kode v. Carlson , 596 F.3d 608, 611 (9th Cir. 2010); Zhang v. Am. Gem Seafoods, Inc. , 339 F.3d 1020, 1030-36 (9th Cir. 2003). After the verdicts were read in court, we asked the lawyers if they fully understood each of the verdicts. Tr. (doc. 195) at 22-23. We cautioned that we did not want to discharge the jury if there was going to be "any issue about what these verdicts mean." Id . Both counsel responded they had no questions. Id . By failing to make an objection before the jury was discharged, Defendants have waived the argument that the general verdicts rendered by the jury are legally inconsistent. See Zhang , 339 F.3d at 1030-36; Philippine Nat'l Oil Co. v. Garrett Corp. , 724 F.2d 803, 806 (9th Cir. 1984).

Even if waiver was not dispositive, we would nevertheless deny Defendants' motion. Defendants challenge what they believe are legal inconsistencies in the jury's conclusions on two or more general verdicts. Legal inconsistencies between general verdicts on different claims "are not an anomaly in the law" and are generally upheld. Zhang at 1035-36 (collecting cases). Courts will recognize a jury's right to such "an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law." Id. at 1036.

The jury's verdict finding that Maricopa County violated Brandon's First Amendment rights when it terminated her for her statement to the Arizona Republic is supported by more than sufficient evidence. We will not speculate as to how the jury arrived at the verdicts. Had Defendants objected before the jury was discharged, we might have had the answer. Regardless of the jury's rationale, however, because the challenged verdicts are supported by the evidence and the law, Defendants' motion for judgment as a matter of law, or alternatively for a new trial on the basis of inconsistent verdicts is denied.


Maricopa County next challenges the jury's verdict in favor of Brandon on her § 1983 claim that her First Amendment rights were violated when she was fired in retaliation for a statement she made to a reporter at the Arizona Republic. The statement involved a case that Brandon handled while working for the Maricopa County Attorney's Office ("MCAO"). Maricopa County argues that there was insufficient evidence produced at trial from which the jury could conclude that Brandon acted in her capacity as a private citizen, rather than a public employee, when she spoke to the press.

"Speech by citizens on matters of public concern lies at the heart of the First Amendment." Lane v. Franks , 134 S.Ct. 2369, 2377 (2014). Accordingly, "citizens do not surrender their First Amendment rights by accepting public appointment." Id. at 2374. Nor does speech made at work or concerning work lose its First Amendment protection. Garcetti v. Ceballos , 547 U.S. 410, 420-21, 126 S.Ct. 1951, 1959 (2006). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. at 1960. Conversely, a public employee speaks as a private citizen with protected speech "if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform." Posey v. Lake Pend Oreille Sch. Dist. , 546 F.3d 1121, 1127 n.2 (9th Cir. 2008) (citations omitted). The key inquiry in determining whether speech is public or private is whether the speech was made pursuant to the employee's official duties. Garcetti , 547 U.S. at 421, 126 S.Ct. at 1959-60.

Whether a public employee is speaking as a private citizen or public employee is a mixed question of law and fact. Posey , 546 F.3d at 1129. "[T]he question of the scope and content of a plaintiff's job responsibilities is a question of fact, " and "the ultimate constitutional significance of the facts as found is a question of law." Eng v. Cooley , 552 F.3d 1062, 1071 (9th Cir. 2009) (quoting Posey , 546 F.3d at 1129-30).

In arguing that Brandon spoke to the press as a public employee whose speech is not protected by the First Amendment, Defendants rely on evidence that Brandon spoke to an Arizona Republic reporter (1) about a case she handled in her capacity as deputy county attorney, (2) the resulting newspaper article identified her by her official job title and described her official involvement in the case, and (3) the speech took place in Brandon's office, on her office phone, during business hours. Defendants urge that these facts require a finding as a matter of law that Brandon acted in her official capacity when she spoke to the press. This argument misses the mark.

The Supreme Court has made clear "the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee-rather than citizen-speech." Lane , 134 S.Ct. at 2379. Indeed, the Court has recognized that speech by public employees on matters related to their employment "holds special value precisely because those employees gain knowledge of matters of public concern through their employment." Id . (citing Pickering v. Bd. of Educ. , 391 U.S. 563, 572, 88 S.Ct. 1731, 1736 (1968)). "[I]t is essential that [public employees] be able to speak out freely on such questions without fear of retaliatory dismissal." Pickering , 391 U.S. at 572, 88 S.Ct. at 1736.

The evidence presented at trial established that Brandon's official job duties did not include speaking to the press. William Montgomery, Maricopa County Attorney and Brandon's supervisor, testified that Brandon was not speaking on behalf of the MCAO when she spoke to the reporter. Montgomery testified that there was "nothing to indicate she was doing anything other than speaking as a citizen." Tr. (doc. 206) at 59. Mark Faull, Chief Deputy Maricopa County Attorney, testified that when speaking to the press, deputy county ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.