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9th Circuit reinstates former school worker's retaliation claim

By David L. Hudson Jr.
First Amendment scholar

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 Garcetti 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 be seen.


High court curbs whistleblower lawsuits

By 5-4 vote, justices say nation's 20 million public employees don't have carte blanche right to disclose government's inner workings. 05.30.06

Head-scratching follows Garcetti ruling
By Tony Mauro Will government employees now go public with complaints, rather than to supervisors? 05.31.06

Garcetti's palpable effect on public-employee speech
By David L. Hudson Jr. Supreme Court's ruling successfully invoked as agencies defend against critics from within. 05.29.07

5th Circuit reinstates Miss. jailers' job-retaliation lawsuit
By David L. Hudson Jr. Decision could affect other cases involving when employee speech is made as part of official job duties, how such determinations are made. 05.14.08

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