What is the test for assessing First Amendment retaliation claims?

In Eng v. Cooley, 552 F.3d 1062 (9th Cir.2009), we set forth the five-factor inquiry for evaluating First Amendment retaliation claims. First, the plaintiff bears the burden of proof at trial of showing (1) that she spoke on a matter of public concern; (2) that she spoke as a private citizen rather than a public employee; and (3) that the relevant speech was "a substantial or motivating factor in the adverse employment action." Id. at 107071. If the plaintiff establishes such a prima facie case, the burden of proof shifts to the government to show that (4) "the state had an adequate justification for treating the employee differently from other members of the general public"; or (5) "the state would have taken the adverse employment action even absent the protected speech." Id. at 107072.²

[816 F.3d 1260]

All of the Eng "factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff's case." Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n. 4 (9th Cir.2013) (en banc). Because "all five factors are independently necessary," a reviewing court is free to address a potentially dispositive factor first rather than addressing each factor sequentially. Id.

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