Kelly H. Tucker v. Patrick Atwater, Jr., et al.

This case involves an off-duty teacher who was disciplined with five days of unpaid suspension by her employer for speaking against a “Black Lives Matter” protest carried out at a local Christmas parade. After Petitioner filed a Section 1983 action against her employer, the Respondents filed a Motion to Dismiss.1 The trial court denied the motion and ruled as a matter of law that the Petitioner’s speech was constitutionally protected, that the case was identical to the facts of Pickering, infra. and that Respondents were not entitled to qualified immunity. The Georgia Court of Appeals reversed the ruling of the trial court imposing only a “materially or fundamentally similar case” analysis and ruled that there were no cases which clearly defined the law applicable to the facts of this case. The Supreme Court of Georgia denied Petitioner’s application for certiorari. However, three Justices of the Supreme Court of Georgia issued a concurrence in which they opined that the Respondents had, indeed, violated Petitioner’s First Amendment rights. The concurrence also questioned whether or not a Pickering balancing test was even applicable to an off-duty employee and, if so, whether the balancing test applies to only potential disruption caused by the public’s reaction to the employee’s viewpoint. Two questions are presented:

1. If Pickering and its progeny are applicable to cases involving off-duty public employees who are speaking to matters of public interest which are not

2. Because the trial court considered evidence outside of the pleadings, the appellate courts treated the ruling as a ruling on a motion for summary judgment.