Marable v. Nitcham ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEN MARABLE, the senior Chief 
Engineer of The Washington State
Ferries and a married man and his
marital community,
Plaintiff-Appellant,
v. No. 06-35940
MARK NITCHMAN, former Director
of Preservation and Maintenance  D.C. No.
CV-05-01270-MJP
of the Washington State Ferries;
OPINION
DOUGLAS MACDONALD, Director of
the Washington State Department
of Transportation; RICHARD D.
PHILLIPS, a Staff Chief of the
Washington State Ferries,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
September 24, 2007—Seattle, Washington
Filed December 26, 2007
Before: Betty Binns Fletcher, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
16731
MARABLE v. NITCHMAN 16733
COUNSEL
Shawn Hart, for the plaintiff-appellant (argued and on the
brief).
Catherine Hendricks, Senior Counsel, Seattle, Washington,
for the defendants-appellees (argued and on the brief). Robert
16734 MARABLE v. NITCHMAN
M. McKenna, Attorney General, State of Washington, for the
defendants-appellees (on the brief).
OPINION
GOULD, Circuit Judge:
Plaintiff Ken Marable appeals the district court’s grant of
a motion for summary judgment in favor of the defendants,
with resulting dismissal of Marable’s case. Marable appeals
the district court’s summary judgment dismissing his claims
for damages and injunctive relief to “protect [his] rights . . .
under the U.S. Constitution”: 1) a 42 U.S.C. § 1983 claim
alleging violation of his First Amendment rights as applicable
to the states by way of the Fourteenth Amendment; 2) a 42
U.S.C. § 1983 claim alleging violation of his Fourteenth
Amendment rights to procedural due process; 3) a Washing-
ton state law claim of negligent infliction of emotional dis-
tress; and 4) a Washington state statutory claim for
whistleblower retaliation.1 We have jurisdiction pursuant to
28 U.S.C. § 1291. We address in this opinion only Marable’s
First Amendment claim for damages, and on this First
Amendment claim we reverse and remand to the district court
for further proceedings consistent with this opinion.2
I
Marable is an engineer for the Washington State Ferries
(“WSF”) with more than thirty years of experience. In his
complaint he alleged that in recent years he had observed and
1
Marable also brought a fifth claim, namely for breach of contract under
Washington state law, but he does not appeal the district court’s grant of
summary judgment on that claim.
2
Marable’s other three appealed claims, as well as his claim for injunc-
tive relief, are the subject of a separate, unpublished memorandum dispo-
sition filed contemporaneously with this opinion.
MARABLE v. NITCHMAN 16735
reported corrupt practices among members of WSF manage-
ment, including the defendants, and that the defendants retali-
ated against him for speaking out against corruption.
In 1999 Marable began work aboard the WSF ferry MV
Puyallup. Defendant and Staff Chief Engineer Doug Phillips,
to whom Marable was directly responsible, selected Marable
as the ferry’s Alternate State Chief Engineer, a position from
which Marable was in full charge of the engine department.3
As WSF Maintenance Director, defendant Mark Nitchman
ranked higher than both Phillips and Marable. In 2002 WSF
instituted disciplinary actions against Marable.
According to the defendants, shortly after Marable’s selec-
tion as Chief Engineer, Marable engaged in misconduct,4
which constituted acts of insubordination and grounds for dis-
cipline, up to and including employment termination. On
November 13, 2002, Nitchman wrote Marable of misconduct
charges that Phillips made against Marable, advising Marable
that such charges, if proven, might warrant termination and
3
According to the WSF Human Resources Safety and Training Manual,
a Chief Engineer “is in full charge of the Engine Department of a ferry of
any class carrying vehicles and passengers on Puget Sound waters. . . .”
The Chief is directly responsible to the Staff Chief Engineer and must
assume whatever responsibilities that Staff Chief Engineer may assign.
The Chief Engineer is “responsible for implementing all federal and state
regulations, WSF policies and procedures, and Staff Chief Engineer . . .
directives that relate to his/her vessel.” The duties include “ensuring that
all machinery aboard a [WSF] vessel, both mechanical and electrical, . . .
is properly maintained and serviced.”
4
Marable was accused of: violating multiple of Phillips’ standing orders,
including failing to contact Phillips regarding important vessel-related
events, some of which required notification of the U.S. Coast Guard or
WSF Port Engineers; refusing to “run the stern tube lube pumps” during
his watch without a written order from Phillips; criminally recording tele-
phone conversations on the ship’s cellular phone in violation of R.C.W.
§§ 9.73.030 and 9.73.080; and writing comments in the ship’s official
engine room log book that Phillips viewed as discourteous, insubordinate
and undermining his authority.
16736 MARABLE v. NITCHMAN
that a pre-disciplinary meeting (or a “Loudermill” hearing)
was set for December 19, 2002, at which Marable was entitled
to union or legal representation.
At Marable’s Loudermill hearing, over which Nitchman
presided, Marable was represented by both his personal law-
yer and union counsel. Marable did not object to Nitchman’s
presiding role at this hearing. Nitchman found Marable guilty
of the alleged misconduct warranting termination, but given
Marable’s long WSF employment record without similar mis-
conduct, Marable was not terminated but instead received a
week’s suspension without pay and was barred from being
Chief Engineer for a year. Marable neither filed a grievance
relating to Nitchman’s ruling, as the union contract allowed,
nor appealed to the Marine Employees Commission.5
Marable asserts that this disciplinary action was taken not
because of misconduct by him but rather in retaliation for his
complaints about the corrupt practices of WSF management.
Marable had alleged that WSF managers, including the defen-
dants, participated in such schemes as claiming inappropriate
overtime and using WSF “Special Projects” to enable them to
supplement their pay inappropriately.6 Marable argues that
these alleged forms of “pay padding” are a waste of public
funds and a threat to public safety. Additionally, Marable
points out that on July 18, 2002, a few months before Marable
received Nitchman’s letter asserting disciplinary charges, the
5
Marable asserts that his union refused to represent or support him in
an appeal to the Marine Employees Commission because of the conflict
of interest created by the control of the union by management including
Nitchman and Phillips.
6
One “pay padding” scheme that Marable alleges involved WSF
employees who purportedly failed to make entries in the ferry logbooks
so that on-duty ferry workers would have to call them at home to get the
needed information, allowing the off-site employees to log overtime hours
for these calls. Marable also claims generally that some managers partici-
pated in corrupt quid pro quo arrangements, including the taking of unlaw-
ful kickbacks.
MARABLE v. NITCHMAN 16737
Washington State Auditor had written Nitchman to inform
him that his department, which included oversight of engi-
neering room and maintenance budgets, was under investiga-
tion. Marable implies that this audit investigation was a cause
for retaliation, though Marable does not say how Nitchman
would have connected the audit to Marable, and the record
does not establish that any of Marable’s complaints instigated
the investigation.
Marable further asserts that, also in retaliation for his criti-
cism of WSF corruption, he was exposed to a product known
as Oil Eater 99 that WSF used on its ferries.7 Marable con-
tends that he had submitted paperwork to the WSF in January
2001, notifying management that he was allergic to the sub-
stance and requesting its removal from his ferry. Marable con-
tends further that Nitchman caused the cleaner to be placed
aboard Marable’s ferry in retaliation for Marable’s criticisms
of Special Projects.8
Marable claims that he repeatedly attempted to remove Oil
Eater 99 from the ferry, that Phillips repeatedly reordered it,
that Marable continued to exhibit an allergic reaction when
exposed to the substance, and that finally an external office
called to order Oil Eater’s removal from the ferry altogether.
Marable asserts, with a witness’s support, that Phillips once
stated something to Marable similar to, “I have [Oil Eater 99],
I will use it, and you will be gone.”
Finally, Marable claims that a union representative
informed him in January of 2005, shortly after Marable had
submitted a declaration in support of another whistleblower
case against Nitchman, that Nitchman had discussed firing
7
Oil Eater 99 is a heavy duty surfactant degreaser with the lowest haz-
ard health rating of all WSF-purchased products and is purported to be not
only the best degreaser for the WSF system but also safe for use.
8
A toxicologist testified for the defendants that WSF’s response to Mar-
able’s allergic reaction was appropriate.
16738 MARABLE v. NITCHMAN
Marable with the representative. Both Phillips and Nitchman
deny that any retaliatory motive underlies any of the alleged
actions.
Against this alleged background, Marable sued Nitchman
and Phillips on five counts, four of which remain on appeal
before us. We address in this opinion Marable’s claim against
the defendants in their individual capacities under 42 U.S.C.
§ 1983, asserting that Nitchman and Phillips violated his free
speech rights under the First Amendment, applied to the states
by way of the Fourteenth Amendment, by retaliating against
him for criticizing their alleged corrupt and wasteful prac-
tices. Marable seeks damages from Nitchman and Phillips, in
their individual capacities, and injunctive relief from defen-
dants in their official capacities against future violations of his
constitutional rights.
The defendants filed motions for summary judgment, seek-
ing to dispose of all claims against them. The district court
granted defendants’ motion for summary judgment denying
injunctive relief. The district court, noting that Oil Eater 99
has been removed from Marable’s workplace and that most
alleged events took place more than four years ago, concluded
that Marable did not demonstrate a likely threat of future
injury and was therefore barred from injunctive relief.
As to Marable’s First Amendment claim, the district court
at first denied defendants’ motion for summary judgment. The
district court held that Marable’s speech referred to issues of
public resources and safety and was of public concern. The
district court also, relying upon the U.S. Supreme Court case
Garcetti v. Ceballos, 126 S.Ct. 1951 (2005), concluded that
Marable’s complaints of misconduct were not assigned duties
of WSF engineers and therefore were afforded First Amend-
ment protection. Finally, the district court noted the existence
of conflicts of fact about whether the alleged protected speech
was a motivating factor in the disciplinary action. But thereaf-
ter the district court held a jury instruction conference, for
MARABLE v. NITCHMAN 16739
which it had requested and reviewed supplemental briefing.
The district court also heard oral argument, and then issued an
order reversing course on Marable’s First Amendment claim
and granting summary judgment for defendants, dismissing
Marable’s entire case.9 In its dismissal order, the district court
reviewed each example that Marable provided of specific pro-
tected speech: Marable’s complaints about Special Projects to
former WSF CEO Mike Thorne, his two conversations with
Department of Transportation auditor Jeri Silvertson, his com-
plaint to the State Executive Ethics Board, and his two phone
calls to Nitchman.
In light of our recent precedent of Freitag v. Ayers, 468
F.3d 528 (2006), the district court concluded that Marable’s
communications with Thorne and Nitchman constituted on-
the-job speech rather than speech as a citizen and was there-
fore not protected by the First Amendment. The court also
held that Marable’s conversation with the State Executive
Ethics Board was similarly not protected because it fell within
Marable’s job duties, as well as because it was not adequately
of “public concern” under the test of Pickering v. Bd. of
Educ., 391 U.S. 563 (1968). Finally, the district court rejected
Marable’s contention that his conversations with Jeri Silvert-
son were protected because Marable had proffered insuffi-
cient evidence for the court to decide the matter. Marable
appeals the summary judgment against his First Amendment
claim, and we reverse.
9
Defendants assert that the lower court’s dismissal of Marable’s First
Amendment claims was largely because Marable did not identify specific
examples of protected speech. Without these examples it would be impos-
sible for the court to draft “a protected speech instruction without identify-
ing what the speech is that the jury is told to protect.” The district court’s
dismissal order states that Marable was unable to provide the trial court
with a specific complaint he had made to Nitchman or anyone else on the
subject of pay padding. During the jury instruction conference, the district
court commented that “it is a failure of proof on the plaintiff’s part that
keeps me from making the basic analysis of whether this is First Amend-
ment speech that is in the public interest.”
16740 MARABLE v. NITCHMAN
II
We review de novo the district court’s decision on cross
motions for summary judgment. Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1172 n.11 (9th
Cir. 2005) (en banc). We consider, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are genuine issues of material fact and whether the dis-
trict court correctly applied the relevant substantive law. Cos-
zalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). We
do not weigh the evidence but only determine whether there
is a genuine issue for trial. Abdul-Jabbar v. Gen. Motor
Corp., 85 F.3d 407, 410 (9th Cir. 1996).
III
[1] Public employees suffer a constitutional violation when
they are wrongfully terminated or disciplined for making pro-
tected speech. See Pickering, 391 U.S. at 563. To state a First
Amendment claim against a public employer, an employee
must show: 1) the employee engaged in constitutionally pro-
tected speech; 2) the employer took “adverse employment
action” against the employee; and 3) the employee’s speech
was a “substantial or motivating” factor for the adverse
action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.
2003) (citing Bd. of County Comm’rs, Wabaunsee County,
Kan. v. Umbehr, 518 U.S. 668, 675 (1996). Significantly, to
qualify as “protected speech” under the first element, the
employee must have uttered the speech as a citizen, not an
employee; as the Supreme Court recently clarified, when pub-
lic employees make statements pursuant to their official
duties, those statements do not receive First Amendment pro-
tection. Ceballos, 126 S.Ct. at 1955-56.
[2] Marable doubtless suffered adverse employment action
and thus meets the second element of the Coszalter test; his
employer accused him of misconduct, conducted a disciplin-
MARABLE v. NITCHMAN 16741
ary hearing, and suspended him without pay. This is about as
adverse as it gets.
Also, as the district court noted in its first order on Mar-
able’s First Amendment claim, there are triable issues of fact
regarding whether the alleged protected speech was a motivat-
ing factor in the disciplinary action, i.e., whether Marable
meets Coszalter’s third element.10 To support his retaliation
claim, Marable points to the temporal proximity between his
alleged protected speech and the retaliatory conduct. The
defendants, by contrast, contend that they had no knowledge
of such alleged speech until after seeking to discipline Mar-
able and that they had separate and distinct material grounds
for disciplining Marable. Because we must at this stage view
the evidence in the light most favorable to Marable as the
nonmoving party, we conclude that there remains a genuine
issue of material fact on the causation element, the third ele-
ment of the Coszalter test, mandating resolution of the First
Amendment claim by a jury if Marable is able to satisfy the
summary judgment threshold on the first element, that of
whether Marable engaged in constitutionally protected
speech, and it is to that issue that we now turn.
“The inquiry into the protected status of speech is one of
law, not fact.” Connick v. Myers, 461 U.S. 138, 148 n. 7
(1983) (internal citations omitted). In its first order on Mar-
able’s First Amendment claim, the district court concluded
that Marable’s speech referred to issues of public resources
and safety and therefore was of public concern, and that it was
not a part of the assigned duties of WSF engineers; thus the
district court concluded that the speech was constitutionally
protected. However, in its subsequent order, the district court
changed its view, based on an interpretation of our recent
10
It is Marable’s burden to show that his constitutionally protected
speech was a motivating factor in WSF’s adverse employment action. See
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977).
16742 MARABLE v. NITCHMAN
decision in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006),
denying the majority of Marable’s speech the constitutional
protection that Marable seeks.11 The district court reasoned
that Freitag requires the conclusion that most of Marable’s
speech was pursuant to his official duties, and therefore not
protected.
We disagree with the district court’s conclusion. We will
discuss at some length how we see Ceballos and Freitag, as
related to this case.
In Ceballos, plaintiff Richard Ceballos was a calendar dep-
uty in the Los Angeles County District Attorney’s Office,
where he had certain supervisory responsibilities over other
lawyers. Ceballos, 126 S.Ct. at 1955. After a defense attorney
asked Ceballos to investigate a pending criminal case and
alleged inaccuracies in an affidavit used to obtain a critical
search warrant in that case, Ceballos researched the matter
and concluded that the affidavit contained serious misrepresen-
tations.12 Id. Ceballos wrote a disposition memorandum to his
superiors, recommending that the case be dismissed. Id. at
1955-56. Ceballos’s supervisors proceeded with the case
despite his recommendations, and at a subsequent hearing, the
11
The district court did not err procedurally in revisiting its previous
denial of defendants’ summary judgment motion on claim one. The discre-
tionary law of the case doctrine—generally providing that a court will not
reconsider an issue decided explicitly or by necessary implication by the
same or a higher court in the identical case, Jeffries v. Wood, 114 F.3d
1484, 1489 (9th Cir. 1997)—is inapplicable where intervening controlling
authority makes reconsideration appropriate. Id. Because our intervening
opinion in Freitag clarified how the relevant Supreme Court case of
Ceballos should apply to facts involving similar employee invocation of
First Amendment protection for speech complaining internally of work-
place misconduct, the district court properly reconsidered its previous
denial of summary judgment.
12
According to Ceballos, it was not unusual for defense attorneys to ask
calendar deputies to investigate aspects of pending cases. Ceballos, 126
S.Ct. at 1955.
MARABLE v. NITCHMAN 16743
defense called Ceballos to recount his observations about the
affidavit. Id. at 1956.
When he was reassigned, transferred, and denied a promo-
tion, Ceballos sued his employer and supervisors, alleging
that they violated his First Amendment rights in retaliation for
his disposition memorandum. Id. Ceballos’s case presented
the Supreme Court with the question whether the First
Amendment protects a government employee from discipline
based on speech made pursuant to the employee’s official
duties. The Supreme Court held that Ceballos’s speech did not
qualify as “protected speech” because it was made as an
employee, not a citizen; as all parties agreed in Ceballos’s
case, he prepared his disposition memorandum as part of his
official duties. Id. at 1960. Where the employee speaks pursu-
ant to official duties, the speech is not protected. Id.
In Freitag, Deanna Freitag, a former correctional officer for
the California Department of Corrections and Rehabilitation
(CDCR), had sued several CDCR administrators, claiming
that they had retaliated against her for engaging in constitu-
tionally protected speech in violation of 42 U.S.C. § 1983.
Freitag, 468 F.3d at 532. During her tenure at CDCR, Freitag
had had numerous encounters with inmates engaging in sex-
ual exhibitionist behavior. Id. at 533-34. In response, Freitag
had submitted both disciplinary reports and documents called
128 Forms to detail the incidents for the inmates’ files, and in
multiple instances she recommended and/or requested that the
offending inmate receive discipline. Id. CDCR officials had
repeatedly discarded the 128 Forms she submitted and had
denied her requests for discipline. Freitag next complained to
her prison’s warden that her reports of inmate misbehavior
were being denied or thrown away, undermining Freitag’s
authority and discretion. Id. at 533. She wrote more letters to
an associate warden, to the warden again, and to the director
of the CDCR, all complaining about her supervisors’
responses to the alleged incidents of misconduct, and the
resulting hostile work environment; recommending enforce-
16744 MARABLE v. NITCHMAN
ment of CDCR policy referring repeat offenders to the district
attorney’s office for prosecution; and requesting that her pris-
on’s officers receive additional training on how to manage
inmates with behavioral problems. Id. at 533-34. Freitag fur-
ther complained to a California State Senator, who contacted
the California Office of the Inspector General (IG) to initiate
an investigation. Id. at 535. The IG then interviewed Freitag,
among others, in its investigation. Id.Having subsequently suffered various adverse employment
actions that were undisputably substantially motivated by
these communications, Freitag brought her First Amendment
claim. Applying the Supreme Court’s recent decision in
Ceballos, we held that Freitag’s communications with the
California State Senator and the IG were clearly protected
under the First Amendment. Id. at 545. We concluded that
Freitag had acted as a citizen in complaining to an elected
public official and an independent state agency on these mat-
ters of public concern. Id. at 545-46.
However, as to the internal forms Freitag prepared, on the
other hand, we concluded that Freitag had submitted those
reports pursuant to her official correctional officer duties, and
therefore those communications were not constitutionally pro-
tected. Id. at 546. Specifically, we held that “[r]eporting sexu-
ally hostile inmate conduct to agents of the [CDCR], either
formally or informally” and “[d]ocumenting [ . . . her
p]rison’s responses or failures to respond to Plaintiff’s reports
of sexually hostile inmate conduct” were a part of Freitag’s
official duties. Id. at 544, 546. Regarding Freitag’s letter to
the CDCR director, we remanded to the district court for a
determination of whether prison guards are expected to air
their complaints regarding prison conditions all the way up to
the CDCR director. Id.The district court erred in concluding that Freitag mandates
the holding that Marable’s speech was pursuant to his official
duties. At the outset, we think it worth noting that an employ-
MARABLE v. NITCHMAN 16745
ee’s charge of high level corruption in a government agency
has all of the hallmarks that we normally associate with con-
stitutionally protected speech. The matter challenged was a
matter of intense public interest, had it become known, and
criticisms of the government lie at or near the core of what the
First Amendment aims to protect. Also, turning back to
Freitag, the conclusion that Freitag’s preparation of internal
forms was pursuant to her official duties, was not reached
merely because these forms were internal. See Ceballos, 126
S. Ct. at 1959 (“That Ceballos expressed his views inside his
office, rather than publicly, is not dispositive.”). Nor were
they part of her official duties merely because they concerned
the subject matter of her employment. See id. (noting that sub-
ject matter of employment is nondispositive). That Freitag
complained about conduct of her superiors in and of itself was
neither necessary nor sufficient to our conclusion that
Freitag’s acts were official duties.
Instead, and critically, in Freitag the plaintiff as a correc-
tional officer was required as a part of her official duties to
report inmate misconduct and to pursue appropriate disci-
pline. See id. at 534 (discussing CDCR’s policy of referring
repeat offenders to the district attorney’s office for prosecu-
tion). The misconduct revealed in Freitag’s communications
—and which Freitag alleged that her supervisors mishandled
—concerned inmates that her position as a correctional officer
required her to supervise and discipline. Thus her critique of
inmates was a part of the “work . . . [s]he was paid to per-
form.” Id. at 544 (quoting Ceballos, 126 S. Ct. at 1960). Her
complaints to her prison’s administration, including its war-
den, stated that her reports of inmate misbehavior were being
thrown away, thus causing her “authority and discretion [to
be] undermined,” id. at 533; stated another way, her supervi-
sors’ actions were preventing her from effectively doing her
job, and her complaints about being ignored by them were
directly related to her job duties.
[3] By contrast, in Marable’s case, his complaints concern-
ing his superiors’ allegedly corrupt overpayment schemes
16746 MARABLE v. NITCHMAN
were not in any way a part of his official job duties. The
Supreme Court has observed that the inquiry into whether
employee speech is pursuant to employment duties is a practi-
cal one. Ceballos, 126 S. Ct. at 1962 (“[T]he listing of a given
task in an employee’s written job description is neither neces-
sary nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties for
First Amendment purposes.”) Thus Marable’s formal job
description is perhaps not dispositive. Functionally, however,
it cannot be disputed that his job was to do the tasks of a
Chief Engineer on his ferry, and such tasks did not include
pointing to corrupt actions of higher level officials whom he
purportedly thought were abusing the public trust and con-
verting public funds to their own use by overpayment
schemes.
[4] Making the practical inquiry on Marable’s job duties,
which we think is required by the Supreme Court’s reasoning,
we conclude that Marable had no official duty to ensure that
his supervisors were refraining from the alleged corrupt prac-
tices. While the WSF Human Resources Safety and Training
Manual’s description is not dispositive, it is informative. As
a Chief Engineer for WSF, Marable was “in full charge of [his
ferry’s] Engine Department . . . .” His official duties all
related to “ensuring that all machinery aboard [his] vessel,
both mechanical and electrical, . . . [wa]s properly maintained
and serviced”; i.e., he was responsible for ensuring that his
ferry’s physical machinery functioned properly and safely. He
was not responsible for attempting to ensure that his superiors
abstained from allegedly corrupt financial schemes.13 Unlike
in Freitag where the plaintiff’s communications about her
13
Defendants rely in part on broad language in the WSF training manu-
als to argue a different conclusion. However, as suggested, the mere fact
that the WSF’s official Chief Engineer manual includes catch-all provi-
sions such as that Marable, as a Chief Engineer, “[k]now and enforce all
applicable federal and state rules and regulations” does little to inform our
analysis. As the Supreme Court stated in Ceballos—in which there was no
question but that the plaintiff’s internal memorandum was pursuant to his
MARABLE v. NITCHMAN 16747
supervisors’ actions directly concerned and were pursuant to
her role as a correctional officer overseeing inmates, Mar-
able’s official duties did not extend so far as to encompass the
communications at issue.
IV
We reverse the district court’s holding that Marable’s job
duties foreclosed any of his proffered instances of protected
speech from the First Amendment’s protection. We remand
Marable’s First Amendment claim to the district court for fur-
ther proceedings consistent with this opinion, including a res-
olution of the remaining triable issues of fact surrounding
whether Marable’s communications were a motivating factor
in the adverse employment actions that Marable endured.
REVERSED AND REMANDED.
official duties, Ceballos, 126 S. Ct. at 1960— “[w]e reject . . . the sugges-
tion that employers can restrict employees’ rights by creating excessively
broad job descriptions. The proper inquiry is a practical one [into] . . . the
duties an employee actually is expected to perform . . . .” Id. at 1961-62
(internal citations omitted). Additionally, defendants urge us to conclude
that the relevant speech falls within Marable’s official duties because of
the communications’ purported links to safety issues. However, defen-
dants’ argument is unconvincing because Marable’s duties as Chief Engi-
neer in charge of the engine room only concerned safety insofar as he was
required to ensure the safe operation of the ferry’s mechanical systems.