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 D.C. No.

of Preservation and Maintenance  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
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

MARABLE v. NITCHMAN 16733
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 Washington state law claim of negligent infliction of emotional distress; 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

1Marable 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. 

2Marable’s other three appealed claims, as well as his claim for injunctive relief, are the subject of a separate, unpublished memorandum disposition filed contemporaneously with this opinion. 

16734 MARABLE v. NITCHMAN
reported corrupt practices among members of WSF management, including the defendants, and that the defendants retaliated 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 selection as Chief Engineer, Marable engaged in misconduct,4

which constituted acts of insubordination and grounds for discipline, 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

3According 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.” 

4Marable 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 telephone 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. 

MARABLE v. NITCHMAN 16735
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 lawyer 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 misconduct, 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 defendants, 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

5Marable 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. 

6One “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 participated in corrupt quid pro quo arrangements, including the taking of unlawful kickbacks. 

16736 MARABLE v. NITCHMAN
Washington State Auditor had written Nitchman to inform

him that his department, which included oversight of engineering room and maintenance budgets, was under investigation. 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 criticism of WSF corruption, he was exposed to a product known

as Oil Eater 99 that WSF used on its ferries.7 Marable contends that he had submitted paperwork to the WSF in January

2001, notifying management that he was allergic to the substance and requesting its removal from his ferry. Marable contends 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

7Oil Eater 99 is a heavy duty surfactant degreaser with the lowest hazard 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. 

8A toxicologist testified for the defendants that WSF’s response to Marable’s allergic reaction was appropriate. 

MARABLE v. NITCHMAN 16737
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 practices. Marable seeks damages from Nitchman and Phillips, in

their individual capacities, and injunctive relief from defendants in their official capacities against future violations of his

constitutional rights. 

The defendants filed motions for summary judgment, seeking 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 Amendment 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 thereafter the district court held a jury instruction conference, for

16738 MARABLE v. NITCHMAN
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 protected speech: Marable’s complaints about Special Projects to

former WSF CEO Mike Thorne, his two conversations with

Department of Transportation auditor Jeri Silvertson, his complaint 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 onthe-job speech rather than speech as a citizen and was therefore 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 Silvertson were protected because Marable had proffered insufficient evidence for the court to decide the matter. Marable

appeals the summary judgment against his First Amendment

claim, and we reverse. 

9Defendants 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 impossible for the court to draft “a protected speech instruction without identifying 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 Amendment speech that is in the public interest.” 

MARABLE v. NITCHMAN 16739
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 district court correctly applied the relevant substantive law. Coszalter 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 protected 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 protected 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 public employees make statements pursuant to their official

duties, those statements do not receive First Amendment protection. 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 disciplin16740 MARABLE v. NITCHMAN
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 Marable’s First Amendment claim, there are triable issues of fact

regarding whether the alleged protected speech was a motivating 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 Marable 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 element 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 Marable’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

10It 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). 

MARABLE v. NITCHMAN 16741
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 deputy 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 misrepresentations.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

11The district court did not err procedurally in revisiting its previous

denial of defendants’ summary judgment motion on claim one. The discretionary 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 workplace misconduct, the district court properly reconsidered its previous

denial of summary judgment. 

12According 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. 

16742 MARABLE v. NITCHMAN
defense called Ceballos to recount his observations about the

affidavit. Id. at 1956. 

When he was reassigned, transferred, and denied a promotion, 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 pursuant 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 constitutionally 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 sexual 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 enforceMARABLE v. NITCHMAN 16743
ment of CDCR policy referring repeat offenders to the district

attorney’s office for prosecution; and requesting that her prison’s officers receive additional training on how to manage

inmates with behavioral problems. Id. at 533-34. Freitag further 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 matters 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 protected. Id. at 546. Specifically, we held that “[r]eporting sexually 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 employ16744 MARABLE v. NITCHMAN
ee’s charge of high level corruption in a government agency

has all of the hallmarks that we normally associate with constitutionally 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 subject 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 correctional officer was required as a part of her official duties to

report inmate misconduct and to pursue appropriate discipline. See id. at 534 (discussing CDCR’s policy of referring

repeat offenders to the district attorney’s office for prosecution). 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 perform.” Id. at 544 (quoting Ceballos, 126 S. Ct. at 1960). Her

complaints to her prison’s administration, including its warden, 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 supervisors’ 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 concerning his superiors’ allegedly corrupt overpayment schemes

MARABLE v. NITCHMAN 16745
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 practical one. Ceballos, 126 S. Ct. at 1962 (“[T]he listing of a given

task in an employee’s written job description is neither necessary 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 converting 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 practices. 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

13Defendants rely in part on broad language in the WSF training manuals to argue a different conclusion. However, as suggested, the mere fact

that the WSF’s official Chief Engineer manual includes catch-all provisions 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

16746 MARABLE v. NITCHMAN
supervisors’ actions directly concerned and were pursuant to

her role as a correctional officer overseeing inmates, Marable’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 further proceedings consistent with this opinion, including a resolution 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 suggestion 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, defendants’ argument is unconvincing because Marable’s duties as Chief Engineer 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. 

MARABLE v. NITCHMAN 16747