Randey Thompson v. Ben Small

facts in Mr. Thompson’s favor, Defendants are entitled to qualified immunity as a

matter of law. Id.

Defendants concede that Mr. Thompson’s Facebook post was private speech

on a matter of public concern and thus protected under the First Amendment. They

argue they demoted Mr. Thompson not for his Facebook post, but for other offensive

statements he made at school that Defendants contend are not entitled to First

Amendment protection. That is a factual dispute we lack jurisdiction to adjudicate.

Id.; see also Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009) (explaining that

whether a public employee’s speech was a substantial or motivating factor in an

employer’s adverse employment action “is purely a question of fact”).

At this early stage of the case, the record does not “blatantly contradict[]” Mr.

Thompson’s allegation that he was demoted because of his Facebook post. Ballou,

29 F.4th at 431 (quoting Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir.

2020)). Because Defendants devote their appeal to this disputed factual issue, “we

may not disturb the district court’s determination” that genuine issues of fact

precluded it from granting summary judgment in…