Metropolitan News-Enterprise


Thursday, October 16, 2008


Page 3


Ninth Circuit Revives Employee’s Free Speech Claim


By SHERRI M. OKAMOTO, Staff Writer


The inquiry into the protected status of speech in a First Amendment retaliation claim presents a mixed question of fact and law that does not lend itself to summary judgment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Siding with the Third, Seventh, and Eighth Circuits on an issue that has divided the appellate courts, the Ninth Circuit held that where genuine and material disputes exist as to the scope and content of a plaintiff’s job responsibilities, a court must reserve judgment on the protected status inquiry until after the fact-finding process.

The opinion by Judge Michael Daly Hawkins, who was joined by Judges M. Margaret McKeown and Jay S. Bybee, revived Robert Posey’s retaliation claim against the Lake Pend Oreille School District No. 84 in Ponderay, Idaho.

Posey worked for the district as a “security specialist” assigned to Sandpoint High School. After the school’s principal did not respond to Posey’s concerns about student drug use and violence, Posey wrote a letter to the school district concerning his personal grievances and what he perceived to be inadequate safety and security policies at the high school.

The letter accused the school’s principal of dealing “poorly” with Posey, and in “an angry, threatening manner.” Posey also complained that he had “been fighting with the new administration for over a year now” because the administration’s “new philosophy is to keep me out of everything except for parking and lost and found.”

But, the majority of Posey’s missive addressed his concerns with the school’s safety and enforcement of security policies. It detailed Posey’s recollection of students coming to school with weapons or drunk, sexual harassment and possible rape among school staff, persistent student truancy, and an incident where staff had failed to evacuate a building after a fire alarm had engaged, despite the presence of smoke in the hallways.

Posey also stated his concern that shootings like the one which had taken place at Columbine High School “can happen here and almost did,” and opined that the administration’s failure to update safety and emergency policies was “not right” and constituted “plain negligence.”

 At the conclusion of the school year, Posey was informed that the school district was eliminating his position and consolidating his job responsibilities with three other employees’ job duties to create a new “preventative specialist position.”

After the district declined to hire Posey for the new position, he filed a grievance with the school district. The district initially determined that Posey had been retaliated against, but the district’s governing board overrode that determination.

Posey then filed suit under 42 U.S.C. § 1983 in Idaho state court asserting that the district’s elimination of his position and failure to rehire him for the new position constituted retaliation.

The district removed the case to federal court and moved for summary judgment, arguing that Posey’s speech was not protected by the First Amendment because his statements were made pursuant to his employment duties.

U.S. District Court Judge Edward J. Lodge of the District of Idaho granted the motion in favor of the district, but Hawkins explained on appeal that the speech must touch on a matter of public concern and the speaker’s interest must outweigh the state’s interests in order for the speech to be protected as a matter of law.

Following the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos 547 U.S. 410, Hawkins wrote that a court must also make a determination as to whether the speaker spoke as a public employee or a private citizen, and acknowledged a split among the circuit courts as to whether such inquiry was a question of fact or law.

He reasoned that the inquiry requires consideration of the factual circumstances surrounding the speech at issue, and rejected the approach taken by the Fifth, Tenth, and D.C. Circuits, which concluded that the scope and content of a plaintiff’s job responsibilities can and should be found by a trier of fact through the application of “ordinary principles of logic and common experience.”

Noting that the pleadings and evidence presented genuine disputes regarding the scope and content of Posey’s job responsibilities, that Posey’s speech had raised issues of public concern and that there was no “adequate justification for treating [him] differently from any other member of the general public,” Hawkins concluded the trial court’s grant of summary judgment was inappropriate and remanded the matter for further proceedings.

The case is Posey v. Lake Pend Oreille School District No. 84, 07-35188.


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