In a First Amendment Retaliation Case, an employee argues retaliation by an employer based on an employer’s action that is likely to harm the employee’s use of constitutionally protected speech. To prevail, the plaintiff must prove: (1) his speech was on a matter of public concern; (2) his First Amendment interest in engaging in the speech outweighs his employer’s interest in prohibiting the speech; and (3) his speech played a “substantial part” in the adverse employment decision. Speech is a matter of public concern when the employee speaks as a citizen, not an employee fulfilling official duties. If a person speaks as an employee, then there is no claim for First Amendment Retaliation. Garcetti v. Ceballos, __ U.S. ___, 126 S.Ct. 1951 (2006). Speech is made in fulfillment of official duties when it is made as part of the plaintiff’s role as an employee. Unprotected speech includes a district attorney’s memo criticizing the use of an affidavit to secure evidence, and a financial aid counselor’s reporting on fraudulent management and use of federal financial aid funds. It appears that a First Amendment Retaliation Claim will be successful only when the speech is outside the areas of the employee’s job responsibilities completely or when the statements are made in a public forum. Battle v. Board of Regents for the State of Ga., 468 F.3d 755 (11th Cir. 2006); Springer v. City of Atlanta, WL 2246188 (N.D.Ga., 2006).
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