Those comments followed a presentation by Plaintiff's staff member regarding their program's significant accomplishments without state funding. After Plaintiff made the statements, Defendants became hostile toward him, and according to Plaintiff, thereafter sought to remove him from his position. In so doing, however, the court explicitly stated that it did not reach the qualified immunity issue. Instead, the court concluded that Plaintiff had produced sufficient evidence to create a jury question as to whether he was demoted for his speech, or for his inappropriate actions as revealed by Defendants' investigation. The existence of that jury question, according to the court, obviated the need to address whether Defendants were entitled to qualified immunity.
Defendants now challenge that ruling.
Defendants also challenge the district court's decision to permit Plaintiff to amend his complaint after this Court's remand of the case. They argue that, in permitting the amendment, the district court improperly expanded our mandate on remand. See Litman v. Massachusetts Mut. Defendants further argue that the doctrine of res judicata bars Plaintiff's First Amendment claim, or in the alternative, that Plaintiff waived that claim in the first trial of this case. Those issues, however, are not appealable at this stage of the proceedings.