Alaska Employment Law

A School District “safety specialist” wrote a letter to the District Administrator, complaining that the District’s policies tied his hands on weapons and drug issues.  He wrote the letter from home, on his own time, and on his own initiative.  Whether his job required such a letter was disputed.  The District later consolidated his job with several others, and rejected his application for the new position.  He alleged retaliation under 42 USC § 1983.  

The  District Court entered summary judgment for the District, holding that the employee had written the letter “pursuant to his duties.”  The 9th Circuit has now reversed the trial court.  The 9th Circuit sided with the Third Circuit (and against the Fifth, Tenth, and D. C. Circuits) in holding that “whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law.”  

This case requires us to determine whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law.

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We conclude that, following Garcetti, the inquiry into whether a public employee’s speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law. Summary judgment is therefore inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff’s employment duties. Accordingly, we reverse the grant of summary judgment on Posey’s First Amendment retaliation claim and remand to the district court for further proceedings consistent with this opinion.

Posey v. Lake Pend Oreille School, 2008 WL _______ (9th Cir. Oct. 15, 2008)