Jottings By An Employer's Lawyer

Saturday, May 28, 2005

Quick, Judge Owen Where Are You? 5th Circuit Affirms Summary Judgment for Plaintiff

It is a good thing that the Senate has finally confirmed another out of the mainstream judge to the 5th Circuit, as they seem to have lost their bearing -- affirming a summary judgment for a plaintiff in a 1st Amendment retaliation case. Salge v. Edna Independent School District (5th Cir. 5/27/05) [pdf]. Hopefully, my irony will not be lost on those who are in any way in touch with reality, as opposed to say, Senator "Chuck" Schumer, D.-N.Y. whose comments about Judge Priscilla Owen were as off as his ego is big.

More to the point on the Salge case, it is somewhat unusual for a plaintiff to win summary judgment in any employment case as there are usually factual questions which clearly preclude it. So much so in fact that such motions are rarely filed. Here though there was no dispute that a school secretary was fired for answering a reporter's question about the contract status of the principal that she worked for. Whether that involved public or personal speech and how it fared in the balancing between the employer's interests and the constitutional right of Ms. Salge, was under the circumstances a legal question. The 35 page decision is a good overview in the legal aspects that are relevant in 1st amendment retaliation cases.


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