The question of whether a public employee engaged in protected,
private-citizen speech or unprotected employee speech is often a fact question
for a jury rather than a legal issue to be determined by a judge, a federal
appeals court ruled recently.
The Oct. 15 decision in Posey
v. Lake Pend Oreille School District could have a significant impact in
this contentious area of First Amendment jurisprudence.
The case involved the retaliation claims of Robert B. Posey, who formerly
served as a “security specialist” at Sandpoint High School in Sandpoint, Idaho.
During his employment, which began in 1995 as a parking lot attendant, Posey
became concerned that the school was not providing adequate security. For
example, he believed that the school was not doing enough with respect to drug
and weapons violations.
In November 2002, Posey met with the school principal to discuss his security
concerns. After the principal did not directly respond to Posey’s concerns,
Posey wrote a letter in October 2003 to the school district’s chief
administrative officer, Steve Battenschlag, with whom he had a good
relationship. In his letter, Posey expressed some personal grievances but also
spoke out on what he saw as numerous security problems, including: general
unresponsiveness to safety issues; concealment of safety violations, ineffective
enforcement of truancy violations, ineffective enforcement of sexual harassment
policies and inadequate fire-safety plans.
At the end of the 2003-04 school year, the school district eliminated Posey’s
job, consolidating it with other duties into the new position of “preventative
specialist.” The district claimed this consolidation of job duties was done for budgetary reasons. Posey applied for that new job but was not hired. In June 2004, he filed a grievance with the school district, alleging that the elimination of his position constituted unlawful retaliation. In a 2-1 decision, the panel ruled in Posey’s favor. However, on Jan. 10, 2005, the school board overturned the grievance panel’s decision and rejected Posey’s claim.
In June 2005, Posey sued in state court, alleging a variety of claims
including an argument that his First Amendment rights were violated. The school
defendants successfully removed the lawsuit to federal court.
In February 2007, U.S. District Judge Edward J. Lodge granted summary
judgment to the school defendants, reasoning that Posey’s First Amendment
retaliation claim was foreclosed by the U.S. Supreme Court’s 2006 decision in
v. Ceballos. In Garcetti, the Supreme Court ruled that “when
public employees make statements pursuant to their official job duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.”
Under Garcetti, if an employee speaks as an employee rather than a
citizen, he or she has no viable First Amendment claim.
Garcetti added an additional element to public-employee First
Amendment claims. Under previous law, courts asked two questions from the
Supreme Court’s public-employee decisions Pickering
v. Board of Education (1968) and Connick
v. Myers (1983) : (1) whether the employee spoke on a matter of public
concern or importance rather than merely a personal grievance; and (2) whether
the employee’s free-speech interests trumped the employer’s efficiency interests
in maintaining an undisrupted workplace.
Judge Lodge in Posey v. Lake Pend Oreille School District reasoned
that Posey “did not speak or act in his capacity as a citizen when informing
School District officials of his student-related safety and security concerns,
but as an employee of the School District.” Thus, under Garcetti, Posey
lost his claim before the district court.
On appeal, a three-judge panel of the 9th Circuit reversed Lodge’s decision.
Writing for the appeals court, Judge Michael Daly Hawkins reasoned that an
analysis of whether an employee spoke as a citizen or an employee often requires
a jury to determine the scope and contours of an employee’s job.
Hawkins quoted the Garcetti Court when it wrote that it had “no
occasion to articulate a comprehensive framework for defining the scope of an
employee’s duties in cases where there is room for serious debate.”
Hawkins noted that in Posey’s case “there is room for precisely such debate
regarding whether Posey wrote and delivered his letter in execution of his
official employment duties.” And the 9th Circuit panel in Posey concluded
that “the determination whether the speech in question was spoken as a public
employer or a private citizen presents a mixed question of fact and law.” The
panel further determined that “the scope and content of a plaintiff’s job
responsibilities can and should be found by a trier of fact.”
This case — or a similar one in the future — could very well reach the U.S.
Supreme Court, because the federal circuits are sharply divided on whether the
Garcetti question of job-related speech presents a pure legal question to
be resolved by a court or a mixed question of law and fact that would require a
jury determination. The 5th, 10th and D.C. circuits view the Garcetti
question as a purely legal issue. However, the 3rd, 7th and 8th circuits agree
that it presents a mixed question of law and fact.
In the post-Garcetti world, many courts have viewed Garcetti as
a threshold inquiry before proceeding to the question of whether the employee
spoke on a matter of public concern and balancing the employee’s free-speech
interests against the employer’s efficiency interests.
The 9th Circuit, however, viewed the Garcetti analysis as a third
element in the analysis of whether Posey engaged in protected speech. The panel
determined that Posey’s letter clearly addressed matters of public concern
(student safety) and noted that the school district had conceded in the lower
courts “that none of Posey’s statements adversely affected the School District’s
mission or impinged on the efficiency of its operations.”
The 9th Circuit said district courts should first ask these questions of
whether the employee spoke on a matter of public concern and whether the
employer lacked justification in treating the employee differently from others
(a variation of the balancing question). If the answers to these two questions
are yes, then the appeals court said the possibility of a First Amendment claim
exists and courts should proceed to the Garcetti analysis.
The appeals court explained that “when there are genuine and material
disputes as to the scope and content of the plaintiff’s job responsibilities,
the court must reserve judgment on this third prong of the protected status
inquiry until after the fact-finding process.”
The net result for Posey is that his First Amendment retaliation claim has
been reinstated and is remanded, or sent back down, to the federal district
court for further proceedings. The impact for other public employees remains to