Tristan Coomes worked in the Edmonds School District as the manager of Meadowdale Middle School's Emotional/Behavioral Disorders (EBD) program and the primary teacher for students in the program. Coomes' relationship with the school administration deteriorated because she believed that some of her students who were ready for "mainstream" classes were not being allowed access to them. Later, she objected to a change in the EBD program in which EBD students were placed in more mainstream classes because she believed new students should be placed in her EBD classroom full time so she could help them adjust.

Coomes continued to express her concerns, including by sending emails to administrators. Meanwhile, Coomes' evaluations began to worsen and both the principal and assistant principal wrote Coomes a number of letters criticizing her performance. Coomes complained to the District superintendent and the District agreed to transfer her to a position at another school. However, prior to her transfer, she collapsed in the school's halls, falling to the floor and sobbing uncontrollably. Coomes decided not to return to work and the District processed her employment separation.

Coomes filed a lawsuit against the District, principal, and assistant principal alleging, in part, that her First Amendment rights were infringed and that she was retaliated against for exercising those rights. The District and administrators filed a motion seeking dismissal of the claims, and the court entered judgment in their favor. Coomes appealed to the Ninth Circuit Court of Appeals.

The Court explained that in evaluating First Amendment retaliation claims, the plaintiff bears the burden of showing (1) that she spoke on a matter of public concern; (2) that she spoke as a private citizen rather than a public employee; and (3) that the relevant speech was a substantial or motivating factor in the adverse employment action. If the plaintiff establishes this, the burden shifts to the government to show that (4) the state had an adequate justification for treating the employee differently from other members of the general public; or (5) the state would have taken the same adverse employment action even absent the protected speech.

The Court focused on the second factor: whether Coomes spoke as a private citizen or as a public employee. The Court emphasized that the First Amendment does not protect speech by public employees that is made pursuant to their employment responsibilities no matter how much a matter of public concern it might be. When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The key question, then, was whether Coomes' speech was within the scope of her employment duties.

Coomes did not argue that the District failed to meet its initial burden of establishing that Coomes spoke as a public employee, and the Court found that Coomes raised no genuine issues of material fact about this. Rather, Coomes focused on relevant case law. Coomes described her speech as relating to two topics—the "illegal and improper treatment of vulnerable students in the public school system," and "bullying and harassment by Meadowdale administrators in retaliation for taking a stand." Coomes' speech was made to two distinct audiences. The Court first considered her speech directed to District personnel, and then her speech directed to parents.

The Court noted that, generally, when a public employee raises complaints or concerns up the chain of command at her workplace about her job duties, that speech is not protected. The Court concluded that Coomes' speech made to Meadowdale and District administrators was made up of complaints or concerns raised up the chain of command at her workplace about her job. Moreover, Coomes failed to raise a genuine issue of material fact with respect to the scope of her duties, and the evidence indicated that her communication with District staff about the implementation of IEPs and management of the EBD program fell within her job duties as manager of the EBD program. Therefore, the Court concluded that Coomes' speech made to District personnel was made in her role as a public employee and is not protected by the First Amendment.

Coomes also spoke to parents—clearly outside of her chain of command. However, communicating with parents about students' Individualized Education Programs and their progress in the EBD program was part of her job. In fact, Coomes submitted evidence emphasizing that her responsibilities included collaborating with parents. The Court therefore concluded that her speech to parents was within the scope of her duties and is not protected by the First Amendment.

Because Coomes' speech to her supervisors and District administrators was unprotected "up-the-chain-of-command" complaints, and her speech to parents regarding their students' educational programs was, by her own admission, part of her job as head of the EBD program, the Court concluded that Coomes failed to meet her burden to show that the relevant speech was made in her capacity as a private citizen, and that the district court's judgment with respect to Coomes' First Amendment claim was proper.

Coomes v. Edmonds School District No. 15 (2016) __ F.3d __ [2016 WL 1128122].