FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT B. POSEY, 

Plaintiff-Appellant,

v.

No. 07-35188

LAKE PEND OREILLE SCHOOL

D.C. No. DISTRICT NO. 84; BOARD OF  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
COUNSEL

John M. West (presented argument and authored briefs),

Bredhoff & Kaiser, Washington, D.C., for the plaintiffappellant. 

Mark D. Sebastian (presented argument) and Brian K. Julian

(authored brief), Anderson, Julian & Hull, LLP, Boise, Idaho,

for the defendants-appellees. 

14532 POSEY v. LAKE PEND OREILLE SCHOOL
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 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. 

POSEY v. LAKE PEND OREILLE SCHOOL 14533
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

14534 POSEY v. LAKE PEND OREILLE SCHOOL
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. 

POSEY v. LAKE PEND OREILLE SCHOOL 14535
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

1Adding 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. 

14536 POSEY v. LAKE PEND OREILLE SCHOOL
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. 

POSEY v. LAKE PEND OREILLE SCHOOL 14537
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 efficiency of the public services it performs through its employees.’ ” 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). 

14538 POSEY v. LAKE PEND OREILLE SCHOOL
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 elements 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 status 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 determination 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 district 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 retaliation 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 restriction 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”—

POSEY v. LAKE PEND OREILLE SCHOOL 14539
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 Ceballos’s official employment responsibilities. Id. at 424 (“[T]he

parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.”). Thus the

Court had “no occasion to articulate a comprehensive framework 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 question. 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 analyzing 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

2We have twice considered First Amendment retaliation claims after

Garcetti. See Marable, 511 F.3d 924; Freitag, 468 F.3d 528. We concluded that statements are made in the speaker’s capacity as citizen if the

speaker “had no official duty” to make the questioned statements, Marable, 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). 

14540 POSEY v. LAKE PEND OREILLE SCHOOL
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.” BrammerHoelter 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 plaintiffs’ 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 evidence of plaintiff’s alleged but apparently disputed employment 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). 

POSEY v. LAKE PEND OREILLE SCHOOL 14541
The Seventh Circuit has implicitly sided with the Third Circuit, 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

3The 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 district court’s application of the Pickering balancing test” (quotations omitted)), 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 judgment “because there are factual issues about whether plaintiff’s job

responsibilities included the obligation to report wrongdoing by the dis14542 POSEY v. LAKE PEND OREILLE SCHOOL
[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 “application 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 mechanical 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 determination 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”). 

POSEY v. LAKE PEND OREILLE SCHOOL 14543
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 independent 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 ultimate 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 public 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 general 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)). 

14544 POSEY v. LAKE PEND OREILLE SCHOOL
[7] “ ‘[C]ommunication on matters relating to the functioning 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 “ ‘relevan[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] matter[s] of acute concern to the entire community.” Id. (emphasis 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 without 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 “relate[d] to . . . issue[s] of ‘political, social, or other concern to

5That 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 concern.” 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). 

POSEY v. LAKE PEND OREILLE SCHOOL 14545
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 differently 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 specifically 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 private citizen or a public employee. But when there are genuine

and material disputes as to the scope and content of the plaintiff’s job responsibilities, the court must reserve judgment on

this third prong of the protected status inquiry until after the

fact-finding process. 

14546 POSEY v. LAKE PEND OREILLE SCHOOL
[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 disputes 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.

POSEY v. LAKE PEND OREILLE SCHOOL 14547