A Matter of First Impression in Ninth Circuit – Whether Speech of Public Employee Pursuant to Job Duties is a Mixed Question of Fact and Law, Precluding Summary Judgment.

Robert Posey, a security specialist employed by a public school, expressed concerns to the principal about student discipline and safety, including drugs and weapons, and that he felt his ?hands were tied? in enforcing school policies. ?The principal did not respond so Posey submitted a letter written on his own time, with his own resources, on plain paper to top school officials alleging personal grievances that the principal treated him ?poorly? and occasionally,? in? ?an angry,? threatening? manner,? complained about his safety and security concerns, including lack of training, concealment of safety violations, lack of adequate planning, ineffective enforcement of truancy policies, and ineffective enforcement of sexual harassment policies?and he listed substantiating examples. Subsequently, the school district consolidated Posey?s job with three other employees? responsibilities and did not hire him for the position. ?He sued under 42 U.S.C. section 1983, alleging he lost his job and was not rehired in retaliation for his speech in violation of the First and Fourteenth Amendments.? ?The trial court granted summary judgment against Posey on the ground that his statements were made pursuant to his duties as a public employee. ?On appeal, the Ninth Circuit ruled that ?we agree with the Third, Seventh, and Eighth Circuits and hold that the determination ?whether? the ?speech? in ?question was spoken as a public employee or a private citizen ?presents ?a ?mixed ?question? of ?fact ?and law.? ?The Court found this appropriate ?Because the task of determining the scope of a plaintiff?s job ?responsibilities ?is? concrete ?and ?practical rather than abstract and formal?.?? ?On that element of his retaliation claim, the Court found disputed facts. ?Additionally, since the Court held that Posey?s speech raised matters of public concern and, ?as the School District has already conceded, there was no adequate justification for treating [him] differently from any other member of the general public,? the Court reversed and remanded.? ?Finally, the Ninth Circuit panel instructed that ?District courts should therefore determine first whether the expressions in question were made by the speaker ? upon matters of public concern ? and second whether the state lacked adequate justification for treating the employee differently from any other member of the general public?. ?After having answered each affirmatively, only then should the court consider whether the plaintiff spoke as a private citizen or a public employee.? ?Posey v. Lake Pend?Oreille School Dist. No. 84, 546 F.3d 1121 (9th Cir. 2008).