1448919732.jpgOn September 24, 2015, the Tenth Circuit issued a published opinion interpreting the scope of employee speech under the Garcetti/Pickering analysis following the Supreme Court’s decision in Lane v. Franks.  The plaintiff in Holub was an internal auditor for a school district and raised concerns that the budgeted salary figures had been inflated in advance of negotiations with the teacher’s union.  After the finance team attempted to demonstrate her figures were incorrect in multiple meetings, the plaintiff accused the budget director of illegal activity, and the school district hired an independent expert to review the budget.  When the expert found no support for the plaintiff’s accusations, she approached several members of the Board of Education and asked to present her findings before the entire board.  The plaintiff was eventually fired and later brought a First Amendment claim, along with several state law claims.  Lane v. Franks, discussing the scope of a government employee’s job duties for purposes of First Amendment protection, was issued after briefing was completed in the district court but before oral argument. The district court entered summary judgment in favor of the school district, and the plaintiff appealed.

On appeal, the plaintiff’s primary argument on the First Amendment claim was that the reference in Lane v. Franks to an employee’s “ordinary job responsibilities” meant the job duty at issue must be performed on a regular basis.  Because she had never made presentations to the Board of Education, she argued her efforts to do so were outside the scope of her ordinary job responsibilities and, therefore, protected speech.  The Tenth Circuit rejected this approach and followed prior circuit cases finding that a job duty fell within an employee’s job duties if it was consistent with the type of activities she was paid to perform, even if it was not done on a regular basis.  Because the internal auditor was expected to report to the Board of Education, she was acting within the scope of her duties, and her speech was not protected.

The Tenth Circuit also affirmed the dismissal of the supplemental state law claims on the ground the plaintiff offered no evidence the school district had feigned engagement in a review of her budget concerns to fabricate a reason to fire her.

Plaintiff’s petition for rehearing was denied by the 10th Circuit on October 26, 2015. The Defendants were represented throughout the proceedings by Gillian Dale and Thomas J. Lyons of Hall & Evans.