Posey v. Lake Pend Oreille School Dist. No. 84

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Hawkins
• Citation: Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121 (9th Cir. 2008)
• Decision Date: 15 October 2008
• Docket Number: No. 07-35188.,07-35188.
• Parties: Robert B. POSEY, Plaintiff-Appellant, v. LAKE PEND OREILLE SCHOOL DISTRICT NO. 84; Board of Trustees, Lake Pend Oreille School District No. 84; Jim Opinion Soper, Building Principal, in his individual and official capacities, Defendants-Appellees.

546 F.3d 1121

Robert B. POSEY, Plaintiff-Appellant, v. LAKE PEND OREILLE SCHOOL DISTRICT NO. 84; Board of Trustees, Lake Pend Oreille School District No. 84; Jim Opinion Soper, Building Principal, in his individual and official capacities, Defendants-Appellees.

No. 07-35188.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 28, 2008.

Filed October 15, 2008.

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, ID, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV05-272-N-EJL.

Before: HAWKINS, M. MARGARET McKEOWN, and JAY S. BYBEE, Circuit Judges.

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, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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 District No. 84 (the "School District"), arguing that by eliminating 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 summary 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 jurisdiction 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 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.

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 inadequate. In November 2002, Posey met with Sandpoint Principal Jim Soper to express his concerns about student discipline and safety issues, including ongoing drug and weapons violations 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 Superintendent 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 seriously hurt." The letter specifically detailed concerns about: (1) the administration's general unresponsiveness to safety problems, (2) inadequate staff and faculty training, (3) concealment 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 emergency policies "is not right" and "is plain negligence." Following 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 casually addressed to "Steve." The parties also do not dispute that Posey's workplace resources were inconsistent with his having 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 misconduct.

In 2002, however, Principal Soper substantially reduced Posey's job responsibilities. Posey was relieved of responsibility 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 policies, searching students, and investigating student misconduct.

The parties specifically dispute whether Posey had any policy-making responsibility or authority to support a conclusion 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 "update" the school's emergency plan. Posey subsequently submitted 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 communication" 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 responsibility for updating the emergency plan was reassigned in part "[b]ecause Mr. Posey was not in full charge of those issues."¹

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 employees' responsibilities, in a new consolidated "preventative specialist" 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 subsequently 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 Battenschlag 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 summary judgment, arguing that Posey's speech was not protected by the First Amendment because his "statements were made pursuant to his duties" in his role as "Security Specialist." 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.

II. STANDARD OF REVIEW

We review...