Employee's Speech Was Protected By First Amendment
Public employees suffer a constitutional violation when they are wrongfully terminated or disciplined for making protected speech. 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. 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.
In this case, reversing summary judgment for the defendant, the 9th Circuit held that a State employee's complaints concerning his superiors' allegedly corrupt overpayment schemes were not in any way part of his official job duties, since the employee's job was to do the tasks of chief engineer on a state ferry, which did not include pointing to corrupt actions of higher level officials allegedly abusing public trust and converting public funds to their own use by “pay padding.” Accordingly, the employee’s allegations qualified as “protected speech.”
Marable v. Nitchman
The 9th Circuit Court of Appeals’ jurisdiction includes California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii.