Turning to Ms. Vigil's individual claims, she maintains that she was terminated in retaliation for speaking out against inequitable staff treatment, unethical employment practices, and inadequate security measures at SVA. “[T]he First Amendment bars retaliation for protected speech.”
Crawford–El v. Britton, 523 U.S. 574, 592, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). In
Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court recently altered the traditional free speech retaliation claim analysis set forth in
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
See Brammer–Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir.2007) (“it is apparent that the ‘
Pickering ’ analysis of freedom of speech retaliation claims is a five step inquiry which we now refer to as the ‘
Garcetti/
Pickering’ analysis”);
see also Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1325 (10th Cir.2007) (noting that
Garcetti “profoundly alters how courts review First Amendment retaliation claims”). We now begin by asking whether the employee spoke “pursuant to [her] official duties.”
Garcetti, 126 S.Ct. at 1960. Public employees who speak pursuant to their official duties are afforded “no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
Brammer–Hoelter, 492 F.3d at 1202 (internal quotation marks omitted). Next, if the employee has not spoken pursuant to her official duties, but rather as a citizen, we must determine whether the speech relates to a matter of public concern.
See Green v. Bd. of County Comm'rs, 472 F.3d 794, 798 (10th Cir.2007). Speech that is of no public concern is not protected and the inquiry ends. However, once it is determined that the employee has spoken as a citizen on a matter of public concern, we ask “whether the employee's interest in commenting on the issue outweighs the interest of the state as employer.”
Casey, 473 F.3d at 1327 (internal quotation marks omitted). If the employee's interest is greater than that of the employer, she must then show that the speech was a motivating factor behind the adverse employment decision.
Belcher v. City of McAlester, 324 F.3d 1203, 1207 (10th Cir.2003) (quotation omitted). Finally, if an employee makes this showing, the employer may demonstrate by a preponderance of the evidence that its action would have been the same toward the employee even without the protected speech.
Id.