F I LED

United States Court of Appeals

Tenth Circuit

January 24, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARBARA PEREA CASEY and

FRANK CASEY,

Plaintiffs-Appellees,

v.

WEST LAS VEGAS INDEPENDENT

SCHOOL DISTRICT, and WALTER

ADAMS, AMBROSE CASTELLANO,

PATRICK MARQUEZ, RALPH

GARCIA, MICHAEL VIGIL, and

ARTURO GURULE, in their

individual capacities,

Defendants-Appellants.

No. 06-2054

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-04-1157 ACT/DJS)

Kevin M. Brown (Daniel J. Macke with him on the briefs), of Brown & German,

Albuquerque, New Mexico, for Defendants-Appellants.

Daniel Yohalem, Santa Fe, New Mexico, for Plaintiffs-Appellees.

Before TACHA, Chief Judge, TYMKOVICH, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.
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Barbara Casey, a longtime New Mexico public servant, seeks damages from

the West Las Vegas Independent School District and various of its officials,

alleging that they demoted and eventually fired her in retaliation for exercising

her First Amendment rights. Having moved unsuccessfully for summary

judgment in the district court, defendants appeal to us. While this case awaited

oral argument, the Supreme Court issued Garcetti v. Ceballos, __ U.S. __, 126 S.

Ct. 1951 (2006), which profoundly alters how courts review First Amendment

retaliation claims. Ms. Casey now concedes that a portion of one claim is barred

by Garcetti. We agree and find certain other portions also precluded by the

Supreme Court’s recent ruling. Still, we find that at least one aspect of one of

Ms. Casey’s claims survives to trial.

I

A former New Mexico state legislator and school teacher, Ms. Casey served

as Superintendent of the West Las Vegas Independent School District (“District”)

from January 2002 until April 2003. Viewing the facts in the light most favorable

to her as the party opposing summary judgment, she fairly establishes the

following: 

Upon becoming Superintendent, Ms. Casey assumed responsibility for

serving as the Chief Executive Officer (“CEO”) of the District’s Head Start

program, a federally funded initiative aimed at providing educational

opportunities, meals, and health care services to low-income children between
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three and five years of age. The District’s Head Start program traditionally

received approximately $2.5 million annually from the federal government, but

prior to the 2001-02 school year, federal authorities determined that the District’s

Head Start program had 61 major deficiencies and threatened to suspend its

funding. Appellants’ App. at 131 ¶ 5. 

To help address these problems, in June 2002, the District hired Jacqueline

Padilla (at Ms. Casey’s recommendation) to manage the Head Start program. Ms.

Padilla became the District’s Head Start director, reported to Ms. Casey, and

made a number of changes aimed at bringing the District’s program into

compliance with federal regulations and ensuring its continued funding. Id. at

131 ¶ 6. By the winter of 2002-03, a federal oversight agency determined that the

District’s program had indeed achieved substantial compliance with federal

mandates. Id. 

 Sometime during the period December 2002 - January 2003, Ms. Padilla

informed Ms. Casey that her staff had begun to uncover evidence that as many as

50% of the families enrolled in the District’s Head Start program appeared to

have incomes that were too high for them to qualify for participation. Ms. Casey

learned that some families had intentionally omitted family income information or

inflated the size of their family in order to enroll their children in the program. 

Worried that these problems threatened the District’s progress and risked its

future funding, Ms. Casey reported them to Walter Adams, the West Las Vegas
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School Board’s (“Board”) president and one of the defendants before us. Mr.

Adams allegedly responded that Ms. Casey should not worry about the issue. 

Several more times between January and April 2003, Ms. Casey raised the issue

with Mr. Adams and, in executive sessions of the Board, the other individual

defendants. Each time, she was told variously not to worry about it, to leave it

alone, or not to go there. See id. at 55 [51:20-51:24], 59 [60:12-60:21]. 

Ms. Casey became concerned that, given the Board’s inaction, “she had a

duty as Head Start’s executive director to report this wrong doing [sic] to federal

authorities.” See Appellees’ Br. at 5, 39; see also Appellants’ App. at 138

[51:25-52:3]. Ms. Casey thus instructed her subordinate, Ms. Padilla, to approach

the federal Head Start regional office in Dallas and relay her findings. This Ms.

Padilla did. Eventually, on August 8, 2003, the United States Department of

Health & Human Services (“HHS”) determined that certain enrollments in the

District’s Head Start program were indeed improper and ordered the repayment of

more than half a million dollars in federal aid.

During the 2002-03 school year, Ms. Casey also informed the Board that it

was violating the New Mexico Open Meetings Act by making personnel and other

decisions in executive session without proper notice and meeting agendas. 

Because defendants apparently ignored her warnings, on approximately March 17,

2003, Ms. Casey filed a written complaint with the New Mexico Attorney

General’s office. On March 25, 2003, the Attorney General’s office wrote to Mr.
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Adams outlining the particulars of Ms. Casey’s complaint, enclosing a copy of the

complaint, and requesting a response. After receiving the Board’s response and

completing its review of the matter, the Attorney General’s office determined that

the Board had in fact violated the Open Meetings Act and ordered corrective

action. 

Finally, Ms. Casey brought to the Board’s attention a number of other

issues during the 2002-03 school year regarding the District’s operations that, she

believed, violated federal or state laws. These included, by way of example, an

allegation that the District hired employees without advertising vacancies or

conducting a review process, and that it improperly handled a case where a

teacher and school principal were carrying on an affair.

On April 10, 2003, the Board demoted Ms. Casey to Assistant

Superintendent. While there is some lack of clarity regarding exactly when the

school board further decided not to renew Ms. Casey’s contract for the 2003-04

school year, the facts before us suggest that this may have occurred as early as

April 10 or as late as May 8, 2003. See Appellants’ App. at 130-31 ¶ 3 (“I was

demoted by Defendants to the position of Associate Superintendent on April 10,

2003. On May 8, 2003 Defendants voted not to renew my contract of

employment for any position in the school district.”); id. at 73 (Minutes, Regular

Board Meeting, April 10, 2003) (Board unanimously voted “not to renew the

employment contract with Barbara Casey as Superintendent” and “to immediately
 This Court has jurisdiction over this interlocutory appeal of a denial of 1

summary judgment because it involves the assertion of qualified immunity. See

Blossom v. Yarbrough, 429 F.3d 963, 966 (10th Cir. 2005). 

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reassign Ms. Casey from her present position to the position of Assistant

Superintendent through the remainder of the fiscal year”); id. at 174 (letter from

Superintendent Arturo Gurule to Ms. Casey) (“I regret to inform you that on [sic]

the May 8, 2003 West Las Vegas [School District] board meeting, you[r]

employment contract for the 2003-2004 school year was not renewed.”).

Following her termination, Ms. Casey filed an action against the District,

the new Superintendent, and individual members of the Board alleging, inter alia,

that she was dismissed in retaliation for exercising her First Amendment rights. 

The defendants unsuccessfully sought summary judgment in the District Court

with respect to Ms. Casey’s First Amendment claims based on qualified immunity

and now pursue this appeal raising the same defense. Immediately prior to 1

Appellants’ submission of their reply brief, the Supreme Court handed down

Garcetti and, accordingly, we sought and received supplemental briefing from the

parties to help us in assessing the impact of the Supreme Court’s new guidance. 

II

We review the district court’s denial of summary judgment de novo. See

Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). When a defendant asserts

qualified immunity at summary judgment, the responsibility shifts to the plaintiff

to meet a “heavy two-part burden,” id. (internal quotation marks omitted),
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demonstrating, first, that the defendant’s actions violated a constitutional or

statutory right and, second, that the right at issue was clearly established at the

time of the defendant’s allegedly unlawful conduct. In assessing whether the

right was clearly established, we ask whether the right was sufficiently clear that

a reasonable government officer in the defendant’s shoes would understand that

what he or she did violated that right. If the plaintiff fails to satisfy either part of

the two-part inquiry, we must grant the defendant qualified immunity. 

In analyzing a public employee’s First Amendment retaliation claim, the

Supreme Court has instructed that we must first decide whether the speech at

issue touches on a matter of public concern and, if so, we must then proceed to

ask whether the employee’s interest in commenting on the issue “outweighs” the

interest of the state as employer. See Dill v. City of Edmond, 155 F.3d 1193,

1201 (10th Cir. 1998) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1986)

and Connick v. Myers, 461 U.S. 138, 146 (1983)). “The problem in any case,” the

Supreme Court observed, “is to arrive at a balance between the interests of the

[employee], as citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Pickering, 391 U.S. at 568. How 
 See, e.g., Rodric B. Schoen, Pickering Plus Thirty Years: Public 2

Employees and Free Speech, 30 Tex. Tech. L. Rev. 5, 30-31 (1999) (“When the

Supreme Court commands that these [F]irst [A]mendment cases be resolved by

balancing competing interests, it is scarcely surprising that reasonable persons

will disagree with the ultimate balance struck in specific cases. However, until

the Court provides a different methodology, litigants, lawyers, and lower courts

cannot avoid the uncertainty constitutional balancing inevitably produces when

applied to the ‘enormous variety of fact situations’ presented in cases where

public employees are terminated from government employment for reason of their

spoken or written expression. Lacking further guidance from the Supreme Court,

the federal courts of appeals have occasionally supplemented the Court’s

jurisprudence with their own refinements, nuances, emphases, and ‘rules’ to

simplify resolution of public employee-free speech cases”); D. Gordon Smith,

Comment, Beyond “Public Concern”: New Free Speech Standards for Public

Employees, 57 U. Chi. L. Rev. 249, 276 (1990) (proposing “objective rules that

approximate the results of [Pickering] balancing without the indeterminacy and

excessive expenditure of judicial resources inherent in balancing”); see also id. at

269-76. 

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exactly we are to “weigh” and “balance” the radically incommensurate interests at

stake in Pickering’s second prong is a matter of great debate and little certainty. 

2

The Supreme Court last Term in Garcetti did revisit Pickering’s first prong,

however, and added some clarity to the question when a public employee speaks

as a citizen rather than as an employee. Specifically, the Court held that when

public employees speak “pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” Garcetti, 126 S. Ct. at

1960. The rationale for this rule is that “[r]estricting speech that owes its

existence to a public employee’s professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen. It simply
 Indeed, the Supreme Court noted that employers have a “heightened 3

interest[] in controlling speech made by an employee in his or her professional

capacity,” because supervisors have a need to “ensure that their employee’s

official communications are accurate, demonstrate sound judgment, and promote

the employer’s mission.” Garcetti, 126 S. Ct. at 1960. 

 See, e.g., Frederick Schauer, The Supreme Court, 2005 Term – Foreword: 4

The Court’s Agenda – and the Nation’s, 120 Harv. L. Rev. 4, 35 (noting that

Garcetti “established a new rule governing a vast amount of lower court

litigation”); Supreme Court, 2005 Term – Leading Cases, 120 Harv. L. Rev. 273,

273-83 (2006) (discussing Garcetti); see also Erwin Chemerinsky, The Kennedy

Court: October Term 2005, 9 Green Bag 2d 335, 340 (2006) (during the Supreme

Court’s last Term, “the most significant [First Amendment decision] likely was

Garcetti”). 

 Besides encouraging lower courts to view the facts from a “practical” 5

perspective, the Court declined to provide guidance on how we are to go about

determining the appropriate scope of an employee’s official duties: “We thus

have 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.” 

Garcetti, 126 S. Ct. at 1961. 

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reflects the exercise of employer control over what the employer itself has

commissioned or created.” Id. The question for us on Pickering’s first prong is 3

thus significantly modified, and we are obliged to ask whether Ms. Casey met her 4

burden by providing evidence that her expressions were made in her capacity as a

citizen and not pursuant to her “official duties.” 5

In this case, we are presented with three specific sets of communications

that Ms. Casey cites as the bases for her First Amendment retaliation claims,

those regarding (i) the Head Start program, (ii) the New Mexico Open Meetings

Act, and (iii) miscellaneous other violations of state or federal law (e.g., hiring
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employees without advertising vacancies or conducting a review process, and

improperly handling claims of misconduct by teachers and principals). 

Miscellaneous Violations. In her brief addressing the impact of Garcetti,

Ms. Casey thoughtfully concedes that any action based on this category of

statements is now barred as a matter of law. As Ms. Casey puts it, these

statements fell within the scope of her duties as Superintendent because they were

aimed “solely to the School Board” to which she reported and her job admittedly

included “advis[ing] Defendants about the lawful and proper way to conduct

school business.” See Appellees’ Sur-Reply Brief at 7 n.4. We agree with Ms.

Casey and hold these statements no longer actionable after Garcetti for both of

the reasons she articulates.

Head Start. Ms. Casey’s statements with respect to the Head Start program

themselves are of two types. The first, and the bulk of her comments, involve

statements directed to the School Board conveying concern about the District’s

lack of compliance with federal regulations. In our view, these statements do not

form the basis for a colorable First Amendment retaliation claim after Garcetti for

reasons Ms. Casey has already identified. That is, these comments were directed

only to her supervisors and, in each instance, Ms. Casey sought to raise concerns

about the legality of the District’s operations. As before, because advising her

employer on “the lawful and proper way to conduct school business” was

admittedly part of her portfolio, we cannot help but conclude that Ms. Casey
 See Appellants’ Br. at 18 (arguing that Ms. Casey caused disruption by 6

“remov[ing] herself from her advisory and policymaking role . . . [by advising the

(continued...)

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made these statements pursuant to her official duties. See Garcetti, 126 S. Ct. at

1959-61; see also Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir.

2006) (holding that an employee’s internal discussions advising superiors about

the employing institution’s policies are barred as a basis for a First Amendment

retaliation claim by Garcetti).

One remaining statement about the Head Start program that might give rise

to a cause of action concerns Ms. Casey’s instruction to Ms. Padilla that the latter

should contact federal authorities and convey their mutual concerns about the

legality of the District’s Head Start operations. Here, Ms. Casey did not advise

her employers but instead went very much around them. The question before us

is whether, in doing so, Ms. Casey used Ms. Padilla as her agent to engage in

protected citizen whistleblowing, or whether Ms. Casey acted pursuant to her

official duties in ordering a subordinate to report the District’s regulatory

noncompliance to federal authorities.

Interestingly, the parties before us both made arguments in their principal

briefs filed before Garcetti that cut against the result they wish this Court to reach 

after Garcetti. In their principal brief before Garcetti, the defendants argued that

Ms. Casey acted ultra vires and in a disruptive manner by reporting the alleged

Head Start violations to the federal office. For her part, Ms. Casey argued in her 6
(...continued) 6

outside agencies of the allegedly illegal conduct], without first advising the Board

which she served”); see also id. at 13-14, 18-20.

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principal brief that she “became concerned that she had a duty as Head Start’s

executive director to report this wrong doing [sic] to federal authorities.” 

Appellees’ Br. at 5, 39 (emphasis added). After Garcetti, the parties seemed to

swap positions to meet their respective litigation objectives. In their reply brief

filed after Garcetti, defendants point to the ostensibly “undisputed fact that [Ms.

Casey’s] alleged ‘speech’ was engaged in as Superintendent or CEO of the Head

Start program, not as a citizen.” Appellants’ Reply Br. at 5-6. Ms. Casey,

meanwhile, now asserts that in reporting the Head Start violations she was acting

solely in her capacity as a citizen, not as an employee. See Appellees’ Sur-Reply

Br. at 7-8.

The parties, of course, can hardly be blamed for shifting positions in their

briefs in response to new pronouncements of law. But the underlying discovery

facts cannot be so altered and they seem clear enough to us to establish that Ms.

Casey was acting “pursuant to” her official duties. Black’s defines the relevant

term as meaning “[i]n compliance with; in accordance with.” Black’s Law

Dictionary 1272 (8th ed. 2004). And it is undisputed that Ms. Casey was

designated by the Board as the CEO and person primarily responsible for the

sound administration of the District’s Head Start program. In accepting this

assignment, Ms. Casey necessarily assumed certain responsibilities, pleasant and
See, e.g., Program Fraud and Civil Remedies Act of 1986, 31 U.S.C. 7

§ 3802 (any person who submits or causes to be submitted a claim that the person

knows is false is subject to a civil penalty); Criminal False Claims Act, 18 U.S.C.

§ 287 (any person who presents to an agency a claim with knowledge of its falsity

shall be imprisoned and fined). Recently, HHS coalesced the various federal

statutes, and its own regulations, aimed at deterring fraud into a comprehensive

Grant Policy Statement. See U.S. Department of Health & Human Services, HHS

Grant Policy Statement, I-7 (Oct. 1, 2006),

http://www.acf.hhs.gov/grants/HHS_GPS_Oct_2006.doc (last visited Dec. 26,

2006) (“Anyone who becomes aware of the existence (or apparent existence) of

fraud, waste, or abuse related to HHS grants or use of grant funds should report

this information to HHS.”). 

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unpleasant, and these included acting pursuant to, or in compliance with, certain

federal regulations. Rules issued by HHS expressly state that families with

children enrolled by Head Start grantees must meet specific income eligibility

requirements. See 45 C.F.R. § 1305.4 (2002). The regulations also indicate that

“[a] grantee’s failure to comply with [such eligibility] requirements . . . may

result in a denial of refunding or termination.” Id. at § 1305.10. Further, at the

time these events took place, individuals, like Ms. Casey, with knowledge of

financial irregularities risked civil and criminal liability by remaining silent in the

face of such knowledge. In deposition, Ms. Casey effectively acknowledged 7

these facts, conceding that her responsibilities “as executive director” included a

duty to report the District’s noncompliance to federal authorities because she

“would be held legally responsible for having knowledge of something that was

wrong and not reporting that.” Appellants’ App. at 138 [51:25-52:3]. 
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Buttressing the conclusion that Ms. Casey acted in accordance with, if not

compelled by, her office, she also stated in sworn testimony that her order to Ms.

Padilla was aimed at “fix[ing] the problem before it got worse.” Id. at 147

[112:18-112:20]. That is, Ms. Casey merely wanted “to get direction from

somebody . . . and find out what to do” in reporting the District’s irregularities.

Id. at 141 [65:20-65:21]. None of this suggests ultra vires conduct but rather an

individual striving diligently to fulfill a federal regulatory obligation directly

bearing on her by virtue of the office she held. It is also notable that Ms. Casey

acted not on her own in this matter, but thought it sufficiently a part of her job

duties to report the District’s financial irregularities to HHS that she deemed it

appropriate to order a subordinate, Ms. Padilla, to contact Head Start officials;

nor did the latter blanch at Ms. Casey’s direction or give any other intimation that

she thought she or Ms. Casey might be acting beyond the scope of their

employment. 

While we feel obliged after Garcetti to conclude that Ms. Casey’s actions

were taken pursuant to her official position, we do not mean to suggest that every

agent who disregards a principal’s instructions not to disclose information is

barred from suit by Garcetti. To the contrary, we are confronted in this case with

a rather narrower and subtler set of facts in which the plaintiff’s job, as the chief

overseer of Head Start for the District, included the sound administration of

federal funds; federal law directed the disclosure of any irregularities in the use of
 See, e.g., Schalk v. Gallemore, 906 F.2d 491, 495 (10th Cir. 1990); 8

Considine v. Bd. of County Comm’rs, 910 F.2d 695, 699-700 (10th Cir. 1990);

Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988). 

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such funds; the plaintiff conceded that her job duties required her to report to

federal authorities; and she acted in a manner consistent with this admission. See

McGee v. Public Water Supply, 471 F.3d 918, 921 (8th Cir. 2006) (the court

rejected plaintiff-supervisor’s argument that he acted outside the scope of his job

duties by voicing concerns about a project after he was removed from it and after

being told by superiors “not to concern himself” with another project because,

inter alia, “the projects clearly fell within [his] overall supervisory duties”). 

Similarly, we do not mean to suggest Ms. Casey’s speech regarding the Head

Start program did not relate to a matter of public concern. Far from it. As we

have held many times, speech reporting the illicit or improper activities of a

government entity or its agents is obviously a matter of great public import. We

8

simply hold that Ms. Casey’s speech, such as it was, is more akin to that of a

senior executive acting pursuant to official duties than to that of an ordinary

citizen speaking on his or her own time; accordingly, Ms. Casey cannot meet her

burden here and avoid the heavy barrier erected by the Supreme Court in Garcetti

to the satisfaction of Pickering’s first prong.

Other cases to emerge after Garcetti confirm our conclusion. In Green v.

Board of County Commissioners, No. 05-6297, __ F.3d __ (10th Cir. 2007), we

recently faced a case involving a county drug lab employee who ignored her
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supervisors and scheduled confirmatory drug tests when she suspected earlier

tests had generated “false positives.” See id., slip op. at 2-3. Even though her

conduct was “not explicitly required as part of her day-to-day job

responsibilities,” and was condemned by her superiors, we nonetheless held that

her First Amendment claim was barred by Garcetti because her actions were

generally “the type of activities she was paid to do.” Id. at 13. Much the same

can be said here. While Ms. Casey disregarded her superiors’ direction to

suppress her findings about the Head Start program, her decision to report the

District’s noncompliance to federal authorities was nonetheless in accordance

with (and perhaps even an indispensable part of) her job as the senior official

responsible for the sound administration of the federally funded program she

administered. 

A recent Eleventh Circuit decision, Battle v. Board of Regents, 468 F.3d

755 (11th Cir. 2006) (per curiam), further illuminates this point. There, the court

held that a relatively low-level university employee who reported improprieties in

a supervisor’s handling of federal financial aid funds was acting within the scope

of her duties because, as a financial aid worker, the plaintiff had a duty under

federal guidelines to report any suspected fraud associated with federal financial

aid funding. Id. at 761-62. It seems to us that the responsibility to deal with
 Ms. Casey also spoke to the FBI about the irregularities in the District’s 9

Head Start program sometime in May 2003. See Appellants’ App. at 146 [111:11-

111:18]. But Ms. Casey has failed to meet her burden as the party opposing

summary judgment to point us to evidence that this interaction took place prior to

the adverse employment actions against her on April 10 or May 8, such that it

could give rise to liability on the part of defendants. 

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known misconduct can be no less emphatic when the employee at issue is a CEO

or Superintendent and similar disclosure obligations exist.9

Open Meetings Act. Ms. Casey first reported her concerns about the

Board’s failure to comply with the New Mexico Open Meetings Act to the Board

itself; when that proved unavailing, Ms. Casey personally took the issue to the

New Mexico Attorney General. See Appellants’ App. at 133 ¶ 16, 161-63. With

respect to Ms. Casey’s statements directed to the Board, it seems to us significant

that they were made solely to her superiors and Ms. Casey, as Superintendent, had

a duty to provide candid advice and counsel to the Board, much as any corporate

CEO might to his or her board of directors. This, in our view, suffices to

preclude a claim under Garcetti. See Green, __ F.3d __, slip op. at 13

(dismissing claim under Garcetti even though employee’s conduct was not

required as a part of her job because it was generally of the type of conduct she

was paid to do); Mills, 452 F.3d at 648 (precluding claim under Garcetti where

police officer advised senior managers that her immediate superior had made a

bad decision, despite the fact that the officer had no duty to make such a report).
 See Office of the Attorney General, State of New Mexico, Op. No. 90- 10

26, 1990 WL 509596, at *1 (Dec. 20, 1990) (noting that based on the statute in

effect until April 4, 2003, local school boards had the sole authority to “adopt

regulations pertaining to the administration of all powers or duties of the board,”

including matters related to the manner in which board meetings were conducted).

 Our decision on this score naturally concerns only the summary 11

judgment record before us. Defendants remain free to try to establish at trial that

it was within the scope of Ms. Casey’s office to file her complaint with the New

Mexico Attorney General. We express no opinion, one way or the other, on their

(continued...)

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The statements made to the New Mexico Attorney General, however, are

another kettle of fish. In the first place, Ms. Casey was not seeking to fulfill her

responsibility of advising the Board when she went to the Attorney General’s

office. Just the opposite: she had lost faith that the Board would listen to her

advice so she took her grievance elsewhere. Of course, Ms. Casey also took her

complaints about the Head Start program to outside authorities. But, very much

unlike the administration of the Head Start program that the Board committed to

her care and pursuant to which she had independent responsibilities to the federal

government, we have no evidence in the summary judgment record before us

suggesting that the Board or any other legal authority ever assigned Ms. Casey

responsibility for the Board’s meeting practices. Rather, the evidence before us

suggests that the Board members alone were responsible for making certain their

meetings complied with New Mexico law at the time. Accordingly, we conclude 10

that Ms. Casey’s conduct fell sufficiently outside the scope of her office to

survive even the force of the Supreme Court’s decision in Garcetti.

11
(...continued) 11

ability to do so.

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The question still remains whether, at Pickering’s second prong, the

defendants have amassed evidence that Ms. Casey’s activities were sufficiently

disruptive to eliminate the First Amendment’s protection of her speech. While

there is no easy formula for “weighing” an employee’s First Amendment speech

against an employer’s interest in an efficient and disciplined work environment,

see supra note 2, one of our recent cases, Weaver v. Chavez, 458 F.3d 1096 (10th

Cir. 2006), provides a useful yardstick for comparison. There we held that a city

attorney’s pattern of making complaints about alleged patronage hires, going so

far as contacting a prospective attorney’s prior employer to inquire as to his

qualifications, were not protected by the First Amendment because they were

disruptive to the morale of the office, as well as to the proper functioning of the

hiring process. See id. at 1103. By contrast, we have no record evidence

suggesting that Ms. Casey’s statement to the Attorney General’s office threatened

any of the work of her office, the morale of the Board, or even the Board’s

substantive decisions; instead, it sought only compliance with a sunshine law

requiring notice and opportunity for public comment. 

Even if Ms. Casey had a protected First Amendment right in speaking with

the Attorney General’s office, defendants suggest it is causally beside the point. 

As they describe it, the Board acted to demote her and discontinue her
- 20 -

employment prior to becoming aware of any conversation between Ms. Casey and

the New Mexico Attorney General’s office. It is undisputed, however, that on

March 25, 2003 – well before Ms. Casey’s demotion on April 10, 2003 – the

Attorney General’s office wrote to Mr. Adams, the Board President, outlining the

particulars of Ms. Casey’s complaint, enclosing a copy of the complaint, and

requesting a response. Defendants respond that they did not receive the letter

until April 11, 2003, a single day after Ms. Casey’s April 10 demotion. See

Appellants’ App. at 87. But defendants do not explain why it took so long for

them to receive the letter and thus leave open the possibility that a jury might not

credit their claim. In any event, while it is clear Ms. Casey was demoted in April,

the summary judgment record is muddled on the issue whether the Board decided

not to reappoint Ms. Casey on April 10 or on May 8. See supra pp. 5-6. 

Accordingly, at least based on the facts in the record now before us, a jury could

conclude that Ms. Casey’s complaint to the New Mexico Attorney General caused

the Board to pursue at least one of the adverse employment actions taken against

her.

Finding that Ms. Casey’s right to be free from retaliatory employment

action based on her protected First Amendment activities was potentially violated,

we must still ask whether the right Ms. Casey asserts was clearly established in

law such that it put defendants on notice of the impropriety of their alleged

retaliation. See Medina, 252 F.3d at 1128; supra p. 7 (discussing the qualified
 The district court denied summary judgment on Ms. Casey’s First

12

Amendment retaliation claim without differentiating among the various

defendants. However, one wrinkle makes that course potentially problematic. 

Ms. Casey sues not just individuals but also the District itself. In order to state a

claim against a government entity under Section 1983, however, a plaintiff must

demonstrate the existence of a policy or custom precipitating the plaintiff’s

injury. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997)

(citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978)). 

Because the district court apparently has not yet considered whether Ms. Casey’s

complaint satisfies this requirement with respect to her claim against the District

and the issue was not briefed before this Court, we decline to decide the issue at

this time, and express no views on the matter, but suggest attention to it on

remand. 

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immunity doctrine). This we have little difficulty in doing. It has long been

established law in this circuit that when a public employee speaks as a citizen on

matters of public concern to outside entities despite the absence of any job-related

reason to do so, the employer may not take retaliatory action. See Paradis v.

Montrose Mem’l Hosp., 157 F.3d 815, 818-19 (10th Cir. 1998) (holding that the

law in this area has been clearly established at least since our 1990 decision in

Schalk); see also Considine, 910 F.2d at 700 (establishing, as of 1990, that where

an employee communicates “his concerns directly to persons outside the normal

chain of command” and the employee’s job does not involve doing so, the speech

is protected by the First Amendment).

12

***

The advice Ms. Casey directed to the Board, as her supervisor, is no longer

viable as a basis for a First Amendment retaliation claim after Garcetti. Ms.

Casey’s indirect report to federal Head Start officials likewise implicated
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responsibilities she held by virtue of her administration of a federally funded

program and thus cannot supply the basis for a First Amendment claim. But we

find different in character Ms. Casey’s statements to the New Mexico Attorney

General regarding alleged violations of the Open Meetings Act, violations that

she had no apparent duty to cure or report and which were not subject to her

control. We hold that, even after Garcetti, a claim based on these statements

remains legally viable, and we remand the matter for further proceedings

consistent with this opinion. SO ORDERED.