"Proffer" vs. "Establish" or "Show"

The Tenth Circuit issued a new opinion today in an ADEA case. The district court granted summary judgment to the defendant, finding that the plaintiff had failed to bring forth sufficient evidence to create a jury question as to whether the defendant's alleged nondiscriminatory reason for terminating her was actually a pretext for age discrimination. The Tenth Circuit affirmed.

The case discusses the McDonnell Douglas burden-shifting analysis with respect to summary judgment standards, finding that the well-known analytical framework applies even during summary judgment determinations. "In the employment discrimination context, there is no need for a trial if one party has failed to produce sufficient evidence to carry its burden of persuasion. It is therefore appropriate for a court to reference the burdens of proof articulated by McDonnell Douglas in determining whether the parties have come forward with sufficient evidence to make a trial necessary."

Interestingly, the Court also discussed the nature of the burdens placed on the parties during the summary judgment stage. The burden is one of "production." The Court noted that cases had often described the burden of production in general terms like "establish" or "show." The Court noted that a nonmovant is only required to "bring forth evidence tending to establish or show the material fact at issue." With respect to the defendant's obligation to produce evidence of a legitimate nondiscriminatory reason for the adverse action, the Court stated that the proper terminology would be "proffer." Likewise, at the summary judgment stage, the plaintiff must "proffer some probative evidence that would be sufficient to sustain her burden of persuasion at trial, but she need not offer conclusive proof to the court in order to withstand summary judgment."

Word choice appears to matter in this context.

Teacher Discharge: Lessons on Standard of Review

In the recent case of Weston v. Indep. School Dist. No. 35 of Cherokee County, 2007 OK 61, the parties received a lesson in the vagaries of appellate "standard of review" in a teacher discharge case. In that case, a "career" teacher was dismissed by the board of education for the Tahlequah Public School system for "institutional ineffectiveness" and "unsatisfactory teaching performance."

The teacher had apparently been approached by the principal regarding his teaching methods; the principal told the teacher of his plans to "make him a better teacher." The principal had reviewed some of the teacher's previous test scores, and had some concerns, even though the teacher was not shown the test scores in question. The principal suggested that the teacher inprove his particular methodology by instituting a methodology known as "Teaching for Internalization." The method apparently involves: stating objectives, reviewing learned material, involving the learners, restating the objectives, restating the lesson's relevance to past learning and sutdents' experiences, and then summarizing.

Even though the teacher's teaching methods thereafter received satisfactory ratings, the principal recommended that he not be rehired. The superintendent gave him additional time to complete his efforts to improve, but subsequently concurred in the principal's recommendation. The school board agreed, and dismissed the teacher on the grounds of unsatisfactor teaching performance and institutional ineffectiveness.

The teacher petitioned for a new trial before a district court pursuant to 70 O.S. sec. 6-101.27. The section provides for de novo review of the school board's decision; no deference is given to the school board's findings and conclusions. The trial court found that the teacher had substantially complied with the principal's recommendations, and that the test results from students in his class were not substantially different than those of students in other classes.

The Court of Civil Appeals, however, found that the issue was not whether the teacher had complied with the plan of improvement, but whether his teaching was unsatisfactory or ineffective, and that the school board had made an appropriate decision.

(Interestingly, the district court failed to memorialize its findings in a journal entry, but merely read them into the record. After all of the appellate briefing was complete, the Court of Civil Appeals ordered the trial court to enter written findings of fact and conclusions of law, and thereafter supplement the appellate record with the findings. After the new findings were included in the appellate record, the Court of Civil Appeals allowed the parties to submit supplemental briefing related to the written findings. On certiorari, the Oklahoma Supreme Court held this to be an appropriate procedure.)

The Supreme Court of Oklahoma reversed and found that the appellate standard of review effectively prevented the Court of Civil Appeals from reversing the trial court's de novo review of the school board's decision. The Court noted that the standard before the court on appeal is "whether there is any compentent evidence to support the trial court's decision." The appellate court is prohibited from weighing the evidence. Only if the decision was clearly erroneous as a matter of law may the trial judge's findings not be accepted.

The Court also noted the importance of the teacher tenure law, finding that it "was intended to give job security to competent and qualified teachers and to protect them from dismissal or non-renewal for political, personal, arbitrary or discriminatory reasons." Tenure status grants teachers "substantive rights in their continued position." The Court ultimately held that the standard of review required affirmance of the trial court's decision:

There was testimony on Mr. Weston's behalf from a number of former students and their parents. Eighteen parents and students testified, in almost one-hundred pages of testimony, praising Weston's teaching and his effectiveness as a teacher. Students testified that they were not bored in class, that they had worked on special projects and had worked in groups, etc., in contradiction to the assertions of the administration. Those parents and students who were asked why they came to testify for Mr. Weston responded, variously, that it was because he was a good teacher, they did not believe that he should have been fired and they were surprised to learn that he had been fired. School District attempted to discredit their testimony because all of the students who testified made As and Bs in Mr. Weston's classes, suggesting that they were not representative. The burden, however, was on the School Board, who could have called as witnesses students or parents of students who felt adversely affected by Weston's teaching, which was one of the charges leveled at Weston.

The trial judge weighs the evidence and determines the credibility of witnesses and the weight to be given to their testimony. The trial judge applied the correct standard under the Teacher Due Process Act and found that the school district had failed to prove by a preponderance of the evidence that the teacher should be dismissed on the grounds of instructional ineffectiveness and unsatisfactory teacher performance. Because there was competent evidence supporting the trial judge's decision, it will be affirmed on appeal.

Discharge of HEAL Loans in Bankruptcy

The Tenth Circuit issued an interesting decision today regarding discharge of certain student loans known as "HEAL" Loans (more fully known as "Health Education and Assistance Loans"). Such loans are available only for education expenses incurred in the pursuit of a degree in the field of health or medicine. The particular debtor had obtained the loans for purposes of completing a chiropractic degree. Ultimately, he never completed the degree. Later in life, he sought to discharge the loans in a Chapter 7 bankrutpcy. School loans are apparently not normally dischargeable in bankruptcy and, specifically, a HEAL loan is not dischargeable unless the bankruptcy court finds (among other things) that the "nondischarge of such debt would be unconscionable." 42 U.S.C. sec. 292f(g). The bankruptcy court had entered an order finding the debt to be dischargeable. The Bankruptcy Appellate Panel affirmed.

The Tenth Circuit Court of Appeals, in an opinion by Judge Ebel, reversed. The Court held that the unconscionability standard "is a heavy one and is placed squarely on the debtor." The proper standard for analyzing this issue is one of the "totality of the circumstances" -- "bankruptcy courts should examine the totality of the facts and circumstances surrounding the debtor and the obligation to determine whether nondischarge of the obligation would be unconscionable."

The Court listed several factors for bankruptcy courts to consider in analyzing the "unconscionability" issue: (1) the debtor's income, earning ability, health, educational background, dependents, age, accumulated wealth, and professional degree, (2) the debtor's claimed expenses and standard of living, (3) whether the debtor's condition is likely to continue or improve, including whether the debtor has attempted to maximize his income by seeking or obtaining stable employment and whether the debtor is capable of supplementing his income through secondary part-time or seasonal employment, (4) whether the debtor's dependents are, or could be, contributing financially to their own support, (5) the amount of debt and the rate at which interest accrues, and (6) the debtor's good faith. The key question is whether nondischarge would be "shockingly unfair, harsh, or unjust, or otherwise unconscionable." Given the stringency of the standard, the Court was content that, in all but the most difficult cases, the question "will be obvious."

The Court analyzed each of the factors with respect to this particular debtor and found that the debt should not be discharged, determining that the bankruptcy court's findings to the contrary were "clearly erroneous." Judge Ebel, for the Court, concluded:

The above factors paint a picture of Mr. Woody as a man who has struggled to earn a decent income for much of his life, but who has in recent years found employment that utilizes his skills and provides him with a reasonable income. He has lived a relatively frugal existence, but has also chosen to devote a portion of his income to certain expenses that were not necessary to maintain his standard of living. While he was aware of the significant debts he had accrued in educational loans, he made very little effort to address these obligations and has effectively allowed them to languish for more than two decades . . . . Mr. Woody now finds himself approaching retirement age, making a decent income for the time being but concerned about his lack of retirement savings and the potential for expensive health problems in the future . . . . Under these circumstances — in particular, Mr. Woody’s present level of income and his lack of effort to make payments toward his educational loans despite the apparent availability of funds from which he could have done so — nondischarge of his HEAL loan debt would not be “excessive” or “exorbitant,” nor would it “[lie] outside the limits of what is reasonable or acceptable,” or be “shockingly unfair, harsh, unjust,” or “outrageous.”

While we do not doubt that Mr. Woody faces financial difficulty in the future based on his age, health, and lack of significant retirement savings, we cannot ignore the fact that he has gained steady, full-time professional employment and yet has failed to confront in good faith the obligation that he assumed when he accepted a HEAL loan, a failure that persisted even as he put away money for his own retirement and undertook voluntary expenses such as furniture storage, union membership, charitable contributions, and excess life insurance . . . We do not think that Congress intended the discharge provision of sec. 292f(g) to allow a debtor to spend decades without making loan payments, even after having worked full time for several years, then to receive a discharge of his HEAL loan obligations because his health begins to fail as he approaches retirement age.

A Record Pace for Civil Lawsuit Filings

For good or ill, the filing of civil lawsuits is on the upswing. (See here and here.) Between January and June of 2007, 9,522 civil lawsuits were filed in Tulsa County District Court. For the same time last year, only 8,077 civil lawsuits were filed. According to the article, a large portion of the increase was due to the filing of lawsuits requesting money damages not exceeding $10,000.00. There was a only a modest increase in the number of lawsuits requesting more than $10,000.00 in damages. The article, which quotes Judge Russell Hass, indicates that part of the increase may relate to migration of small claims to the middle tier docket. Others blame the recent bankruptcy reform laws, which have apparently made it more likely that debtors will be sued. The article indicates that Tulsa County's record for total number of cases filed (in one year) was in 2003, when 17,082 civil lawsuits were filed.

The website for the Tulsa County District Court can be found here. You can search the Tulsa County District Court Docket here.

Football and the Courts

There was interesting article in the Tulsa World today (here and here), wherein the world of grade school football (yes, grade school football) intersected with the state and federal court system. A third grade football player and his father sought a court order forcing the Indian Nations Football Conference to allow the boy to enter the third-grade football draft or, alternatively, to hold the draft until the question of the child's residency could be settled. The child and his family live in the Union school district, but had made plans to move into the Jenks school district. The lawsuit apparently had a unique sense of urgency because the draft is scheduled for Sunday, July 22, 2007.

The boy and his father initially filed their petition in state court (to be heard by District Judge Gordon McAllister). They had also requested an emergency restraining order. However, the Indian Nations Football Conference filed a Notice of Removal, requesting that a federal judge hear the case. The conference argued that the plaintiffs were pursing a federal claim under 42 U.S.C. sec. 1983.

The federal case was initially assigned to Judge G. Frizzell, but, because of a conflict, the case was re-assigned to Judge C. Eagan. The case did not last long in federal court. In a sua sponte Order, Judge Eagan remanded the case back to state court. The Court found that the plaintiff had not pursued a federal claim in his petition. The plaintiffs' counsel had apparently informally told the defendant that he planned to file a claim under the 14th Amendment. However, the Court found this oral statement between counsel insufficient for purposes of federal question subject matter jurisdiction. "[A]n intent to revise a petition does not meet the 'face of the well-pleaded complaint rule.'"

The remand order sent the case back to state court, where both sides appeared before Judge McAllister. Judge McAllister apparently urged the parties to work out an agreement. And they did. The boy will be placed into a "blind draft" to determine which Jenks team he will be on, and his family must move into a house in the Jenks district. According to the article, the football conference, which includes Jenks, Union and 29 other districts, requires players to live in the districts in which they are playing. The rule is in place to prevent recuiting.

A New Pleading Standard

Rule 8 of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." And, for years, the federal standard for dismissal of a complaint for failure to state a claim was that "a complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-45 (1957).

Well, things have changed. Maybe. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the U.S. Supreme Court appears to have adopted a different -- more amorphous -- standard. The Court stated that, while a complaint need not contain detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than "labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." The threshold requirement of Rule 8(a)(2) is that the "plain statement" possess enough heft to "show that the pleader is entitled to relief." The Court described the requirement as one of "plausibility." The factual allegations must plausibly state a claim. The Court laid Conley to rest:

On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery . . . . It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case . . .

We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

Yet, in an opinion issued subsequent to Twombly, the U.S. Supreme Court held that the Tenth Circuit improperly dismissed a sec. 1983 claim for failure to state a claim. See Erickson v. Pardus, 127 S. Ct. 2197 (2007). Citing Twombly, the Court stated that "[s]pecific facts are not necessary; the statement need only 'give the defendant faire notice of what the claim is and the grounds upon which it rests.'" The Court held that the plaintiff had adequately stated a claim by alleging that his medication had been withheld and that prison officials were refusing treatment. The plaintiff, who was pro se, had also attached certain documents to his complaint.

Aside from Erickson, the Tenth Circuit Court of Appeals has already latched on to the Twombly standard. In The Ridge at Red Hawk, L.L.C v. Schneider, 2007 WL 1969681 (10th Cir. 2007), the Court (via Judge Kelly), recognized the new Twombly standard. Quoting Twombly, the Court noted that a complaint must contain "enough facts to state a claim to relief that is plausible on its face." In other words, the plaintiff must "nudge his claims across the line from conveivable to plausible."

Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

In another case, the Tenth Circuit discussed the Twombly and Erickson cases, and re-emphasized that the standard was one of "plausibility" -- courts should look at the "specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." See Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752, 7 n.2 (10th Cir. 2007); see also Nasious v. Two Unknown BICE Agents, 2007 WL 1895877 (10th Cir. 2007) ("After all, these are, very basically put, the elements that enable the legal system to get weaving -- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits."); White v. Ockey, 2007 WL 1600483 (10th Cir. 2007) (affirming dismissal of Fair Housing Act claim because "the complaint [was] so bare of pertinent factual allegations"). Notably, Judge Payne from the Northern District of Oklahoma has applied Twombly in a recent decision.

An aside: the new Twombly standard does not apply in the state court system. Oklahoma state courts follow what one might call a hyper-Conley standard. A petition filed in state court cannot be dismissed for failure to state a claim "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." See Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The Fanning Court did state that a plaintiff's pleading burden consisted of providing notice of the claim and "the grounds upon which they rest," implying that some factual recitation would be appropriate.

Educational Funding: Standing and Political Questions

Despite the Oklahoma Supreme Court's willingness to exercise its muscle to strike down certain recent legislation, (see here), the Court has also recently held that it could not review a particular lawsuit because it presented a non-justiciable political question. In Oklahoma Education Ass'n v. State ex re. Oklahoma Legislature, 2007 OK 30, 158 P.3d 1058, the Oklahoma Education Association and three school districts (Foyil, Western Heights, and Jenks) sued the Oklahoma legislature, including certain individual senators and representatives, arguing that the state legislature had failed in its duty to provide funding for common education. The plaintiffs alleged that the legislature thereby deprived school children of a constitutional right to a uniform opportunity to receive a "basic, adequate education according to standards set by the legislature, and deprived school districts of the ability to fulfill their constitutional and statutory duties to meet "contemporary educational standards established for every child."

The plaintiffs sought a declaration that the unfunded cost of meeting stautory education standards "exceeds one billion dollars" and that the unfunded capital needs of Oklahoma school districts "exceeds three billion dollars." The plaintiffs requested the Court order the legislature to design, formulate, adopt and fund a comprehensive system of educational funding, and to retain jurisdiction until the legislature had implemented the system.

The Court held that dismissal of the lawsuit was appropriate for two reasons: standing and justiciability.

Standing. The Court held that the OEA did not have standing to advocate on behalf of Oklahoma students. The OEA did not establish that any of its members were students. "As the OEA's members cannot vicariously assert injury to the constitutional rights of Oklahoma's students, neither can the OEA." The Court also held that the school district-plaintiffs failed "to allege facts which support[ed] their standing to assert the rights of all Oklahoma students." The Court noted that it is hesitant to address the constitutionality of a legislative act until presented with a proper case "in which it appears the complaining person has been or is about to be denied a right or privilege to which the person is lawfully entitled." The Court also disposed of the school district's argument that their standing could be based on their duty to comply with unfunded or partially-funded legislative mandates or risk sanctions or other penalties. The Court held that the Oklahoma Constitution imposed on the Legislature the duty to fund the school system, and that school districts and their boards are "but the vehicles which the Legislature uses to carry out this constitutional duty." The constitutional provisions impose no duty on local school districts, school boards, or school employees to maintain or establish public schools. Their standing arguments could therefore not be found in the state's unfunded mandates.

Political Question. The Court also held that it would be futile to allow Plaintiffs to amend their petition, and that dismissal with prejudice was therefore appropriate. This is because, even if the plaintiffs had standing to pursue their claims, the case presented a non-justiciable political question.

The Court noted that the Oklahoma Constitution charges the Legislature -- not the Courts -- with the duty to establish a public school system. The "Legislature has few constitutional restraints in carrying out its duty to establish and maintain a free public educational system." Fiscal policy is exclusively within the Legislature's power. The Court held that the plaintiffs were "attempting to circumvent the legislative process by having this Court interfere with and control the Legislature's domain of making fiscal-policy decisions and of setting educational policy by imposing mandates on the Legislature and by continuing to monitor and oversee the Legislature. To do as the plaintiffs ask would require this Court to invade the Legislature's power to determine policy. This we are constitutionally prohibited from doing."

Update on State Constitutional Challenges

A previous post discussed the Oklahoma Supreme Court's decision to strike down part of the state's workers compensation laws. In that case, the Court found that the law inappropriately limited the worker's compensation court's ability to consider certain evidence in assessing the degree of a claimant's disability. (According to the Court, the law inappropriately [and unconstitutionally] restricted the worker's compensation court's determination of "impairment" and "disability" to the range of opinions provided by the treating physician and the independent medical examiner.)

The Court's momentous decision has apparently had a significant political response. The decision is the subject of an article in the Tulsa World, (available here and here), where certain lawmakers have "vowed to respond to the opinion." In the article, the paper quotes the Senate Democratic Leader (Mike Morgan) as saying that the legislature will respond in a positive manner in the next legislative session. Sen. James Williamson, who co-chairs the Senate Judiciary Committee, believes the ruling will negatively impact the state's ability to recruit businesses, and said it was a "key factor in the workers comp reform bill." Williamson was critical of the Court's decision to strike the statute, noting that "every time we make one step forward the Supreme Court puts us two steps back."

Welcome to Picher, Oklahoma

This billboard sits directly in front of City Hall in Picher, Oklahoma, located in the far northeast corner of the state. For those unfamiliar, the Picher mines supplied a large percentage of the zinc and lead used to manufacture bullets from World War II through early Vietnam.

Working the mines left behind enormous piles of chat that perpetually dust the surrounding community of 20,000 with a residue laden with zinc, lead and cadmium.

From the most recent EPA report (June, 2007): "[T]he percentage of children with elevated blood lead levels remains well above state and national averages." The full report can be found here.

The New Five-Part "Garcetti-Pickering" Test

Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)

Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.

In evaluating retaliation claims, the district court now asks the following questions:

(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.

(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.

(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?

(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.

(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.

The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.

The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.

The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."

An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."

In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.

However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.

Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:

Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.