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Ninth Circuit Strengthens Public Employee Whistleblower Protection

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In Garcetti v. Ceballos, the Supreme Court held that whistleblowing by public employees in the course of performing their official job duties is not protected under the First Amendment as a matter of law.  As a result of the Garcetti decision, many public employee whistleblower retaliation claims have been dismissed on summary judgment.  In a recent decision, Posey v. Lake Pend, the Ninth Circuit held that the question of whether a public employee is speaking on matters of public concern pursuant to her official duties is a mixed question of fact and law, and therefore should be decided by the jury.  This decision is significant because it increases the odds of public employee whistleblower retaliation claims surviving summary judgment where they can prove that:  (1) they spoke on a matter of public concern; (2) the state lacks adequate justification for treating the plaintiff differently from other members of the general public; and (3) there is a genuine issue of material fact as to whether the employee blew the whistle outside the scope of their job responsibilities. 

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