Inasmuch as the substantial motivating factor component of the Mt. Healthy equation was also beyond dispute, see infra text accompanying note 12, we proceed directly to the Pickering balancing test. See Ferrara v. Mills, 781 F.2d 1508, 1512-14 (11th Cir. 1986). The district court incorrectly concluded that the outcome of the Pickering balancing test determines whether speech is constitutionally protected.
As such, it is "readily susceptible to disposition on summary judgment." Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986). If the Plaintiff's speech "cannot fairly be characterized as constituting speech on a matter of public concern, the inquiry is at an end." Ferrara at 1512.
To prevail on his constitutional claim, Kirkland must establish a prima facie case (1) that his supplemental reading list is constitutionally protected speech and (2) that such speech proved to be a substantial or motivating factor in the decision not to rehire him. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). If Kirkland successfully carries the initial burden, Northside, in order to avoid liability, must then demonstrate by a preponderance of the evidence that it would not have rehired Kirkland even in the absence of the protected speech. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
Id. As this court explained in Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986), "a public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run." Because of the ease with which any complaint about the management of government office could be termed a matter of public concern, some courts, in making such determinations, have focused on Connick's directive to consider whether the speech at issue was made primarily in the employee's role as citizen, or primarily in the role of employee.
Rankin v. McPherson, ___ U.S. ___, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). In order to prevail on his claim, Morales must show that his statements addressed a matter of public concern. If the speech does not touch upon a matter of public concern, then the court may not ordinarily scrutinize OCED's decision to reassign Morales. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). If the speech at issue does involve a matter of public concern, then the Pickering balancing process is triggered. The determination of whether a public employer had properly discharged an employee for engaging in speech requires a balance between the interests of the employee as a citizen in commenting upon matters of public concern and the interest of the state, as employer, in promoting the efficiency of the public services it performs.
Under Connick, unless a public employee's conduct involved a matter of "public concern," examining the propriety of the employer's action under the first amendment is inappropriate. Connick, 461 U.S. at 146-47, 103 S.Ct. at 1690; Eiland v. City of Montgomery, 797 F.2d 953, 955 (11th Cir. 1986); Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986). Although the proper juxtaposition of Pickering, Mt. Healthy and Connick in public employee speech cases has been somewhat unclear, we need not attempt to resolve this question in this case because we hold appellant's claims are based upon freedom of association.
As a threshold issue, the Court must determine, "whether the employee's speech may be 'fairly characterized as constituting speech on a matter of public concern.'" Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993), reh'g en banc denied, 15 F.3d 1099 (1994) (citations omitted); Ferrara v. Mills, 781 F.2d 1508, 1512, 1515 (11th Cir. 1986) (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983)). In making this determination the Court looks to "the content, form, and context of the given statement, as revealed by the whole record."
Finally, because we find that the speech in question here can be "fairly characterized as constituting speech on a matter of public concern . . ." Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986), we also REVERSE the district court's summary judgment on the First Amendment issue. I. BACKGROUND
The threshold question of whether an employee's speech may be fairly characterized as constituting speech on a matter of public concern is a question of law, subject to de novo review by this court. Eiland v. City of Montgomery, 797 F.2d 953, 957 n. 5 (11th Cir. 1986) (citing Connick v. Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708 (1983)), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986) (citing Connick, 461 U.S. at 148 n. 7, 150 n. 10, 103 S.Ct. at 1690 n. 7, 1692 n. 10). Because it is a question of law, the public concern issue is "readily susceptible to disposition" by directed verdict. Ferrara, 781 F.2d at 1515 (regarding summary judgment disposition).
Whether such speech relates to a matter of public concern is determined as a matter of law, based upon the content, form and context of the statement. Connick, 461 U.S. at 147, 148, 103 S.Ct. at 1690, 1691; Kurtz, 855 F.2d at 727; Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986). Plaintiff has the burden of showing that her speech involved matters of public concern.