Posey v. Lake Pend Oreille Sc ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT B. POSEY, 
Plaintiff-Appellant,
v.
No. 07-35188
LAKE PEND OREILLE SCHOOL
DISTRICT NO. 84; BOARD OF  D.C. No.
CV05-272-N-EJL
TRUSTEES, LAKE PEND OREILLE
SCHOOL DISTRICT NO. 84; JIM OPINION
SOPER, Building Principal, in his
individual and official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
August 28, 2008—Seattle, Washington
Filed October 15, 2008
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Hawkins
14529
14532 POSEY v. LAKE PEND OREILLE SCHOOL
COUNSEL
John M. West (presented argument and authored briefs),
Bredhoff & Kaiser, Washington, D.C., for the plaintiff-
appellant.
Mark D. Sebastian (presented argument) and Brian K. Julian
(authored brief), Anderson, Julian & Hull, LLP, Boise, Idaho,
for the defendants-appellees.
POSEY v. LAKE PEND OREILLE SCHOOL 14533
OPINION
HAWKINS, Circuit Judge:
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.
Plaintiff Robert Posey sued Lake Pend Oreille School Dis-
trict No. 84 (the “School District”), arguing that by eliminat-
ing his job, the School District retaliated for his prior speech,
in violation of the First and Fourteenth Amendments to the
United States Constitution. The district court granted sum-
mary judgment in favor of the School District, concluding—
purely as a matter of law—that the speech in question had
been spoken pursuant to Posey’s job responsibilities and thus
in his capacity as a public employee, and that it was therefore
not constitutionally protected. Posey appeals. We have juris-
diction under 28 U.S.C. § 1291.
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 justi-
fication 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.
14534 POSEY v. LAKE PEND OREILLE SCHOOL
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Posey, an employee of the School District assigned as a
“security specialist” to Sandpoint High School, believed the
School District’s safety and emergency policies were inade-
quate. In November 2002, Posey met with Sandpoint Princi-
pal Jim Soper to express his concerns about student discipline
and safety issues, including ongoing drug and weapons viola-
tions and Posey’s feeling that his hands were tied in enforcing
school policies. Soper did not respond directly to Posey’s
expression of concern, and Posey became increasingly uneasy
about security and safety issues throughout the following
school years.
Posey’s disquiet eventually led him, in October 2003, to
compose and deliver a lengthy letter to School District Chief
Administrative Officer Steve Battenschlag, with whom Posey
had a friendly relationship. The letter was copied to Superin-
tendent Mark Berryhill and two other school administrators,
Kathy Chambers and Todd Reed. It complained in general
and specific terms about both personal grievances and what
Posey perceived to be inadequate safety and security policies
at the high school. With respect to personal grievances, the
letter complained that Principal Soper had dealt with Posey
“poorly” and occasionally in “an angry, threatening manner.”
It acknowledged that Posey had “been fighting with the new
administration for over a year now” because, in Posey’s view,
the administration’s “new philosophy is to keep me out of
everything except for parking and lost and found.”
The bulk of the letter, however, addressed Posey’s concerns
about inadequate safety and security policy and enforcement
at the school. Posey hoped his letter would prompt the school
district to “correct the problems before someone gets seri-
ously hurt.” The letter specifically detailed concerns about:
(1) the administration’s general unresponsiveness to safety
POSEY v. LAKE PEND OREILLE SCHOOL 14535
problems, (2) inadequate staff and faculty training, (3) con-
cealment and insufficient documentation of safety violations,
(4) ineffective enforcement of truancy policies, (5) ineffective
enforcement of sexual harassment policies, and (6) inadequate
fire safety and school evacuation planning.
Each of these concerns was substantiated by at least one
specific example, including Posey’s recollection of students
bringing weapons to school, student intoxication, sexual
harassment and possibly rape among school staff, persistent
student truancy, and failure to evacuate the building when
there had been smoke in the hallways and the fire alarm had
gone off. Posey also stated his concern that the Columbine
school shootings “can happen here and almost did,” alleging
that the administration’s failure to update safety and emer-
gency policies “is not right” and “is plain negligence.” Fol-
lowing delivery of the letter to Battenschlag, Posey met with
Battenschlag and Berryhill at Posey’s home, outside of school
hours, to discuss his concerns.
The parties do not dispute that Posey wrote the letter at
home, with his own resources, on his own time, and of his
own initiative. The letter was written on plain paper and casu-
ally addressed to “Steve.” The parties also do not dispute that
Posey’s workplace resources were inconsistent with his hav-
ing written the letter on school premises.
The parties do dispute, however, whether Posey wrote the
letter as part of his official employment responsibilities. The
evidence indicates that Posey was initially hired in 1995 as a
“parking lot attendant” for Sandpoint High School. His job
title changed periodically throughout his subsequent nine
years of employment for the District. Some time before 2002,
Posey’s title was changed to “Security Specialist.” In that
role, Posey was initially responsible for twenty enumerated
tasks relating to preventing and responding to student miscon-
duct.
14536 POSEY v. LAKE PEND OREILLE SCHOOL
In 2002, however, Principal Soper substantially reduced
Posey’s job responsibilities. Posey was relieved of responsi-
bility for all specified tasks except assisting with security and
crime prevention, and supervising the school parking lot,
grounds, and hallways. Posey had been but was no longer
responsible for liaising with police, enforcing truancy poli-
cies, searching students, and investigating student miscon-
duct.
The parties specifically dispute whether Posey had any
policy-making responsibility or authority to support a conclu-
sion that Posey’s letter “was required as a part of [his] official
duties,” Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir.
2007). In 2002, for instance, Soper instructed Posey to “up-
date” the school’s emergency plan. Posey subsequently sub-
mitted a “document” updating the plan. The School District
therefore insists that Posey “provided reports and information
about security matters at the high school” as “an inherent part
of his duties” and characterizes his letter as an “internal com-
munication” that “ar[ose] as part of [his] job duties.”
Posey counters that no aspect of his job description
required him to “report[ ] wrongdoing by administrators or
co-workers” and that “his role in student discipline did not
extend beyond discrete tasks such as ensuring that the parking
lot remained orderly at the end of the school day.” Indeed the
record indicates, by Soper’s own admission, that responsibil-
ity for updating the emergency plan was reassigned in part
“[b]ecause Mr. Posey was not in full charge of those issues.”1
1
Adding to the confusion surrounding Posey’s job responsibilities, the
parties’ characterizations appear to have shifted in the time between their
depositions and the identification of the relevant legal questions at issue
in this case. Principal Soper, for instance, indicated in 2006 that Posey
“was very good at coordinating the parking lot . . . . but as far as the actual
security of it, not really, he didn’t have a lot to do with that.” And around
the same time, Posey insisted that ensuring student safety and security
“was my job description [and] was a function of my job.” In their briefing
before this court, each party has made a resolute 180-degree turn in their
respective characterizations of Posey’s duties.
POSEY v. LAKE PEND OREILLE SCHOOL 14537
At the conclusion of the 2003-04 school year, Posey was
informed that the School District would be combining his job
responsibilities as security specialist with three other employ-
ees’ responsibilities, in a new consolidated “preventative spe-
cialist” position. Posey applied but was not hired for the
position. He filed a grievance with the School District, which
initially determined that he had been retaliated against for his
letter to Battenschlag. The District’s governing board subse-
quently overrode that determination and refused to hire Posey.
B. Proceedings Below
Posey filed suit under 42 U.S.C. § 1983 in Idaho state court
asserting, in addition to a range of state law claims, that the
District’s elimination of his position and failure to rehire him
in the newly consolidated position constituted retaliation for
his letter to Battenschlag and subsequent meeting with Batten-
schlag and Berryhill, in violation of the First and Fourteenth
Amendments. The School District removed the case to the
Federal District Court for the District of Idaho pursuant to 28
U.S.C. § 1446.
Following discovery, the School District moved for sum-
mary judgment, arguing that Posey’s speech was not pro-
tected by the First Amendment because his “statements were
made pursuant to his duties” in his role as “Security Special-
ist.” Granting the motion, the district court concluded that
Posey had not communicated his concerns regarding school
security and safety issues to the newspapers or his legislators
and that his speech had stemmed from activities that he was
paid to do. Because, in the district court’s view, Posey had not
spoken as a private citizen, it granted summary judgment in
favor of the School District on Posey’s First Amendment
retaliation claim. The court remanded Posey’s remaining state
law claims to the Idaho state court. Posey now appeals the
grant of summary judgment.
14538 POSEY v. LAKE PEND OREILLE SCHOOL
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Suzuki Motor Corp. v. Consumers Union of United
States, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). Summary
judgment is appropriate only when “there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Because
this appeal is taken from an order of summary judgment in
favor of the School District, “ ‘[t]he evidence of [Posey] is to
be believed, and all justifiable inferences are to be drawn in
his favor.’ ” Garcetti, 547 U.S. at 442 n.13 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
III. DISCUSSION
A. The Protected Speech Inquiry after Garcetti
[1] In order to sustain a First Amendment retaliation claim,
a public employee must show “(1) [t]he employee engaged in
constitutionally protected speech, (2) the employer took
adverse employment action against the employee, and (3) the
employee’s speech was a ‘substantial or motivating’ factor in
the adverse action.” Freitag v. Ayers, 468 F.3d 528, 543 (9th
Cir. 2006) (citing Coszalter v. City of Salem, 320 F.3d 968,
973 (9th Cir. 2003)).
Until recently, the first element of this test required the
court to determine as a matter of law (1) whether the speech
at issue “ ‘touch[ed] on a matter of public concern,’ ” and if
so, (2) whether “ ‘the interests of the [employee], as a citizen,
in commenting upon matters of public concern [outweighed]
the interest of the State, as an employer, in promoting the effi-
ciency of the public services it performs through its employ-
ees.’ ” Dible v. City of Chandler, 515 F.3d 918, 926 (9th Cir.
2008) (quoting City of San Diego v. Roe, 543 U.S. 77, 82-83
(2004)) (some internal quotations omitted).
POSEY v. LAKE PEND OREILLE SCHOOL 14539
If a court determined that the speech at issue in any given
case failed to raise a matter of public concern sufficient to
outweigh the state’s interest in efficient operation, then the
speech was not protected and a jury did not need to resolve
the factual questions presented by the second and third ele-
ments of the test. This two-stage inquiry into the protected
status of the speech was purely legal and therefore properly
decided on summary judgment. See Connick v. Myers, 461
U.S. 138, 148 n.7 (1983) (“The inquiry into the protected sta-
tus of speech is one of law, not fact.”).
Garcetti, however, added a third stage to the first element
of the First Amendment retaliation test, requiring a determina-
tion whether the plaintiff spoke as a public employee or
instead a private citizen. The plaintiff in Garcetti, Deputy
District Attorney Ceballos, had been assigned to review a case
in which the police had allegedly filed an inaccurate affidavit
to obtain a search warrant. 547 U.S. at 413-14. Concluding
the affidavit contained serious misrepresentations, Ceballos
submitted to his superiors a memorandum stating his findings
and recommending dismissal of the case. Id. at 414. The dis-
trict attorney nevertheless proceeded with the prosecution. Id.
When Ceballos was subsequently reassigned, transferred, and
passed over for a promotion, he filed suit claiming that his
supervisors had violated his First Amendment rights in retali-
ation for the memo. Id. at 415.
[2] There, the Supreme Court concluded that when a public
employee speaks pursuant to his or her official duties, as
Ceballos did, the speech is not protected because any restric-
tion on that speech “simply reflects the exercise of employer
control over what the employer itself has commissioned or
created.” Id. at 422. The Court distinguished “work product”
that “owes its existence to [an employee]’s professional
responsibilities” from “contributions to the civic discourse,”
which “retain the prospect of constitutional protection” for the
speaker. Id. at 421-22. Because Ceballos’s preparation of the
memo “fell within the scope of his job responsibilities”—
14540 POSEY v. LAKE PEND OREILLE SCHOOL
because it was written in his capacity as employee and not
citizen—the memo itself fell outside the sphere of First
Amendment protection. Id. at 422.
[3] But in Garcetti there was no dispute that Ceballos’s
internal memorandum had been written in execution of Cebal-
los’s official employment responsibilities. Id. at 424 (“[T]he
parties in this case do not dispute that Ceballos wrote his dis-
position memo pursuant to his employment duties.”). Thus the
Court had “no occasion to articulate a comprehensive frame-
work for defining the scope of an employee’s duties in cases
where there is room for serious debate.” Id.
Here there is room for precisely such debate regarding
whether Posey wrote and delivered his letter in execution of
his official employment duties.2 Given the factual disputes
presented in the record, we must therefore determine whether
the inquiry into the protected status of speech remains one
purely of law as stated in Connick, or if instead Garcetti has
transformed it into a mixed question of fact and law.
Our sister circuits are split over the resolution of this ques-
tion. In Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), for
example, the magistrate judge had concluded that the question
whether Charles’s statements were made in his capacity as a
citizen or an employee presented a genuine issue of material
fact requiring trial. Id. at 513 n.17. On appeal, however, the
Fifth Circuit disagreed, concluding that “even though analyz-
ing whether Garcetti applies involves the consideration of
factual circumstances surrounding the speech at issue, the
question whether Charles’s speech is entitled to protection is
2
We have twice considered First Amendment retaliation claims after
Garcetti. See Marable, 511 F.3d 924; Freitag, 468 F.3d 528. We con-
cluded that statements are made in the speaker’s capacity as citizen if the
speaker “had no official duty” to make the questioned statements, Mar-
able, 511 F.3d at 932-33, or if the speech was not the product of
“ ‘perform[ing] the tasks [the employee] was paid to perform,’ ” Freitag,
468 F.3d at 544 (quoting Garcetti, 547 U.S. at 422).
POSEY v. LAKE PEND OREILLE SCHOOL 14541
a legal conclusion properly decided at summary judgment.”
Id.
The Tenth Circuit has also concluded that “[all] three
steps” of the inquiry into the protected status of speech,
including the “determin[ation] whether the employee [has
spoken] pursuant to [his] official duties,” “are to be resolved
by the district court [and not] the trier of fact.” Brammer-
Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03
(10th Cir. 2007). There, despite a dispute among the parties,
the court found at summary judgment that some of the plain-
tiffs’ speech had been made pursuant to their employment
duties and some had not. Id. at 1204.
The District of Columbia Circuit has also held, following
Garcetti, that the question whether a plaintiff “ha[s] spoken
as a citizen on a matter of public concern” is a “question[ ] of
law for the court to resolve,” and not a “question[ ] of fact
ordinarily for the jury.” Wilburn v. Robinson, 480 F.3d 1140,
1149 (D.C. Cir. 2007) (internal quotation omitted) (going on
to affirm summary judgment because, on review of the evi-
dence of plaintiff’s alleged but apparently disputed employ-
ment duties, the speech “easily” fell within the plaintiff’s job
responsibilities).
In conflict with the Fifth, Tenth, and D.C. Circuits, the
Third Circuit has “held that ‘whether a particular incident of
speech is made within a particular plaintiff’s job duties is a
mixed question of fact and law.’ ” Reilly v. City of Atlantic
City, 532 F.3d 216, 227 (3d Cir. 2008) (quoting Foraker v.
Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)). In Foraker, the
Third Circuit considered a First Amendment retaliation case
that had already gone to trial. The court applied “clear error”
review to the factual finding that the plaintiffs’ speech had
been “made pursuant to employment duties.” Foraker, 501
F.3d at 250 (Pollak, J., concurring).
14542 POSEY v. LAKE PEND OREILLE SCHOOL
The Seventh Circuit has implicitly sided with the Third Cir-
cuit, concluding in Davis v. Cook County, 534 F.3d 650 (7th
Cir. 2008), that summary judgment was appropriate because
“no rational trier of fact could find” that Davis’s speech had
been made in her capacity as a private citizen. Id. at 653. And,
prior to Garcetti, the Eighth Circuit had already concluded
(with respect to the second element, requiring the balancing
of interests between the individual and the state3) that “any
underlying factual disputes concerning whether the speech at
issue [is] protected should [be] submitted to the jury.” Casey
v. City of Cabool, 12 F.3d 799, 803 (8th Cir. 1993) (citing
Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993)).4
3
The circuits are also split on the question whether the balancing inquiry
is an issue of law or fact. See Weaver v. Chavez, 458 F.3d 1096, 1101
(10th Cir. 2006) (recognizing the circuit split). For example, compare
Johnson v. Ganim, 342 F.3d 105, 114-15 (2d Cir. 2003) (“factual disputes
pertaining to the potential for disruption and defendants’ motivations in
suspending and terminating plaintiff” are issues which “would properly be
regarded as a question of fact, to be answered by the jury prior to the dis-
trict court’s application of the Pickering balancing test” (quotations omit-
ted)), and Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir. 2000)
(“Although the balancing of interests is a matter of law for the district
court, the underlying factual questions should be submitted to the jury,
generally through interrogatories or a special verdict form.”), with Joyner
v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987) (holding that the balancing
inquiry presented questions which “were not factual issues for the jury,”
but “involved questions of constitutional law for the court” and therefore
that the “jury had no role to play”). This case does not present an occasion
for us to enter this additional, albeit related, fray.
4
In the face of this conflict, district courts within this circuit have also
reached conflicting decisions. Compare, e.g., Neveu v. City of Fresno, No.
CV-F-04-6490, 2007 WL 2330775, at *3 (E.D. Cal. 2007) (concluding
that “[t]he inquiry into the protected status of speech,” including whether
speech was made pursuant to job responsibilities, “is one of law, not fact”
and going on to grant summary judgment despite apparent factual dispute
regarding job responsibilities (internal quotation marks omitted)) with,
e.g., Shewbridge v. El Dorado Irrigation Dist., No. CIV. S-05-0940, 2006
WL 3741878, at *7 (E.D. Cal. 2006) (declining to grant summary judg-
ment “because there are factual issues about whether plaintiff’s job
responsibilities included the obligation to report wrongdoing by the dis-
POSEY v. LAKE PEND OREILLE SCHOOL 14543
[4] Upon consideration, 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.
[5] Although the Supreme Court has previously recognized
“the vexing nature of the distinction between questions of fact
and questions of law,” Pullman-Standard v. Swint, 456 U.S.
273, 288 (1982) (citing Baumgartner v. United States, 322
U.S. 665, 671 (1944)), and characterized the distinction as
“elusive,” Miller v. Fenton, 474 U.S. 104, 113 (1985), it has
also offered some guidance. Facts that can be “found” by “ap-
plication of . . . ordinary principles of logic and common
experience . . . are ordinarily entrusted to the finder of fact.”
Bose Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 501 n.17 (1984). As the present case demonstrates,
the scope and content of a plaintiff’s job responsibilities can
and should be found by a trier of fact through application of
these principles. The Garcetti Court itself seems to have
anticipated as much when it explained that “[t]he proper
inquiry is a practical one,” requiring more than mere mechani-
cal reference to “[f]ormal job descriptions[, which] often bear
little resemblance to the duties an employee actually is
expected to perform.” Garcetti, 547 U.S. at 424-25.
Because the task of determining the scope of a plaintiff’s
job responsibilities is concrete and practical rather than
abstract and formal, we are confident that a factual determina-
tion of a plaintiff’s job responsibilities will not encroach upon
the court’s prerogative to interpret and apply the relevant
trict either internally to his supervisors or externally to other agencies”).
See also Clarke v. Multnomah County, No. CV-06-229, 2007 WL 915175,
at *12 (D. Or. 2007) (stating that “[w]hether particular speech qualifies for
constitutional protection is a question of law” but nevertheless concluding
that summary judgment was appropriate because “no reasonable juror
could conclude anything but all of plaintiff’s communications regarding
the four subject areas, were pursuant to her official job duties”).
14544 POSEY v. LAKE PEND OREILLE SCHOOL
legal rules. “An issue does not lose its factual character
merely because its resolution is dispositive of the ultimate
constitutional question,” Miller, 474 U.S. at 113, and this is
not a situation in which the fact-finding process has any
potential to “cross[ ] the line . . . into the realm of a legal rule
upon which the reviewing court must exercise its own inde-
pendent judgment,” Bose Corp., 466 U.S. at 501 n.17. Indeed,
although a fact-finder’s determination as to a plaintiff’s job
responsibilities may at times appear in itself dispositive of the
protected status inquiry, the “rule of independent review” will
always require the court independently to evaluate the ulti-
mate constitutional significance of the facts as found. Id. at
500-01.
[6] Accordingly, we conclude that the third element of the
protected status inquiry—whether the plaintiff spoke as a pub-
lic employee or a private citizen—is a mixed question of fact
and law. We further conclude that the pleadings and evidence
in this case present genuine disputes of material fact regarding
the scope and content of Posey’s job responsibilities.
B. The Content of Posey’s Letter and the School District’s
Justification for Adverse Employment Action
Determining that there are genuine disputes of material fact
as to Posey’s employment duties does not necessarily mean,
however, that the grant of summary judgment was improper.
If Posey’s letter and subsequent meeting were to fail either of
the other two elements of the protected status inquiry, then
summary judgment would have been appropriate on these
alternate grounds. We conclude, however, that Posey’s speech
did raise 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 gen-
eral public.” Garcetti, 547 U.S. at 418 (citing Pickering v. Bd.
of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568
(1968)).
POSEY v. LAKE PEND OREILLE SCHOOL 14545
[7] “ ‘[C]ommunication on matters relating to the function-
ing of government . . .’ [such as] misuse of public funds,
wastefulness, and inefficiency in managing and operating
government entities are matters of inherent public concern,”
regardless of the purpose for which they are made. Johnson
v. Multnomah County, Or., 48 F.3d 420, 425 (9th Cir. 1995)
(quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th
Cir. 1983) (quoting Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 575 (1980) (plurality opinion))). Here, there is
little doubt that Posey’s assertions about the inadequacy and
inefficacy of school security and safety policies were “ ‘re-
levan[t] to the public’s evaluation of the performance of’ ” the
school’s administration. Freitag, 468 F.3d at 545 (quoting
Coszalter, 320 F.3d at 973-74).5 Principal Soper’s alleged
failure to address Posey’s initial expressions of concern is
therefore “undoubtedly of great public interest” in itself, but
“the specific allegations in this case [are particularly] mat-
ter[s] of acute concern to the entire community.” Id. (empha-
sis added). School staff members presumably come into
contact with students on a daily basis. Whether they have
committed acts of sexual harassment or rape certainly is of
“grave concern,” id. at 545, to the parents of those students.
So too is whether fires had occurred in school buildings with-
out proper student evacuation, and whether students had
brought deadly weapons onto school premises and threatened
the lives of staff members. These matters would be of great
importance to any community concerned with the safety of its
school children. Posey’s letter thus was unquestionably “re-
late[d] to . . . issue[s] of ‘political, social, or other concern to
5
That a portion of Posey’s letter addressed personal grievances is not
relevant. In Connick, the Supreme Court considered whether an internal
questionnaire prepared by the plaintiff raised a matter of public concern,
concluding it was sufficient for First Amendment purposes that only “one
of the questions in Myers’ survey touched upon a matter of public con-
cern.” 461 U.S. at 149. We therefore agree with the Sixth Circuit that
statements presenting “mixed questions of private and public concern”
properly fall within the scope of First Amendment protection. See Bonnell
v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001).
14546 POSEY v. LAKE PEND OREILLE SCHOOL
the community’ ” sufficient to satisfy the First Amendment.
Gilbrook v. City of Westminster, 177 F.3d 839, 866 (9th Cir.
1999) (quoting Connick, 461 U.S. at 146-47).
[8] There is also no dispute that the School District lacked
“an adequate justification for treating the employee differ-
ently from any other member of the general public,” Garcetti,
547 U.S. at 418 (citing Pickering, 391 U.S. at 568). Indeed,
the School District conceded below that none of Posey’s
statements adversely affected the School District’s mission or
impinged on the efficiency of its operations.
CONCLUSION
Agreeing with the Third, Seventh, and Eighth Circuits, we
hold that after Garcetti the inquiry into the protected status of
speech presents a mixed question of fact and law, and specifi-
cally that the question of the scope and content of a plaintiff’s
job responsibilities is a question of fact.
[9] District courts should therefore determine first whether
“the expressions in question were made by the speaker ‘ . . .
upon matters of public concern,’ ” Garcetti, 547 U.S. at 416
(quoting Connick, 461 U.S. at 146-47), and second whether
the state lacked “adequate justification for treating the
employee differently from any other member of the general
public,” id. at 418 (citing Pickering, 391 U.S. at 568). “If the
answer [to both questions] is yes, then the possibility of a First
Amendment claim arises.” Id. at 418 (emphasis added).
[10] After having answered each affirmatively, only then
should the court consider whether the plaintiff spoke as a pri-
vate citizen or a public employee. But when there are genuine
and material disputes as to the scope and content of the plain-
tiff’s job responsibilities, the court must reserve judgment on
this third prong of the protected status inquiry until after the
fact-finding process.
POSEY v. LAKE PEND OREILLE SCHOOL 14547
[11] Here, Posey spoke on matters of public concern, and
the School District lacked adequate justification to treat him
differently from other citizens. Because there are genuine dis-
putes of material fact regarding his job responsibilities, we
REVERSE the grant of summary judgment and REMAND
the case to the district court for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.