The ninth Circuit made it harder for public entities to prevail on motions for summary judgment when the court decided that the question of whether a public employee’s speech is protected by the First Amendment is a mixed question of fact and law.
Plaintiff was employed as a “security specialist” for the School District. He believed that the District’s safety and emergency policies were inadequate. Plaintiff spoke with the school Principal about his concerns, but the Principal did not respond directly to Plaintiff. Plaintiff then wrote a letter to several District administrators outlining his specific concerns with examples in support thereof. It was undisputed that Plaintiff wrote the letter at home, on his own time and using his own resources. However, the parties disputed whether Plaintiff wrote the letter as part of his official employment responsibilities. A year after writing his letter, Plaintiff’s job was eliminated, and he was not hired into the “new” position created for a “preventative specialist.” Plaintiff brought suit under 42 U.S.C. § 1983 asserting that the elimination of his position and failure to rehire him into the new position was retaliation in violation of his First and Fourteenth Amendment rights. The District moved for summary judgment arguing that Plaintiff’s speech was not protected under the First Amendment since his speech (letter) was made pursuant to his duties in his role as “security specialist.” The District Court agreed with the School District and the Ninth Circuit reversed.
The Ninth Circuit concluded that the question of whether a public employee’s speech is protected by the First Amendment is a mixed question of fact and law. The Court found summary judgment inappropriate here where (1) the Plaintiff spoke out on a matter of public concern, (2) the state lacked adequate justification for treating an employee differently that a member of the general public, and (3) there was a genuine issue of material fact as to whether the speech fell within the scope and content of Plaintiff’s job duties.