093667P.pdf   02/08/2011  Tim Dempsey  v.  City of Omaha
   U.S. Court of Appeals Case No:  09-3667
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Melloy, Author, with Loken and Bright, Circuit Judges]
   Civil case - Employment. In the limited context of this case, Garcetti v.
   Ceballos, 547 U.S. 410(2006) and Pickering v. Bd. of Educ., 391 U.S.
   563 (1968) do not apply; in the alternative, even if they do apply,
   plaintiff's comments to a newspaper reporter would qualify for protection
   as speech by a citizen that addresses a matter of public concern and had
   little ability to impede the City's provision of public services; because
   plaintiff was qualified for several positions filled after his protected
   speech and was not hired for those positions, he has alleged failure to hire
   as an adverse action; record would permit a reasonable juror to conclude
   animus based upon plaintiff's comments played a substantial or
   motivating factor in the City's decision to deny him employment;
   although summary judgment was improper as to plaintiff's First
   Amendment claim, individual defendants were entitled to qualified
   immunity; judgment reversed and the case remanded for further
   proceedings. Judge Loken, dissenting.